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u
KUR SEAL ARSIXRAXION.
i; 15 \u\A'
PROCEEDINGS
OF THE
Tribunal of Arbitration,
CONVENED AT PARIS
UNDER THE
TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 20, 1S92,
FOR THE (5"'^, Q l^fl l6.(
DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV^
ERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES
IN THE
WATERS OF BERING SEA.
VOLUMK XV.
WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1895.
4. 'T^s<j^~ T^^ ^ 4
FUK-SEAL AKBITRATION.
ORAL ARGUMENT
OF
EIOK. EDWARD J. PHELPS,
ON BEHALF OF THE UNITED STATES.
B S, PT XV 1
FORTY-THIRD DAY, JUNE 22^", 1893.
Mr. Phelps. — I congratulate the Tribiiual, Mr. President, on its
approacli to the end of this debate; I cannot express my regret that
my duty compels me at this late day to continue it. It has had much
to commend it to your attention ; it has presented most important and
interesting questions; it has been dignified by the occasion and the
circumstances that have attended it; it has been adorned as well as
elucidated by the distinguished advocates who have preceded me; but
it is impossible not to feel now, that it has been prolonged beyond all
our anticipations, and that the whole subject has become a weariness.
The inexhaustible patience, the more than kindly courtesy which you.
Sir, and your eminent associates have accorded to us, have been men-
tioned in appropriate terms by my learned friends on the other side.
It is not for them, it is not for us, to thank you; the ackuowledgment
should come, and will come, no doubt, in due time, from the great
Nations at whose invitation and for whose benefit you have under-
taken this onerous task. To that patience and kindness I have still to
appeal, most reluctantly, and perhaps at some length. It would be a
very undeserved compliment to the able arguments we have listened
to diuing these twenty-eight days from my learned friends on the other
side, to assume that they could be brushed hastily aside.
The discussion, Sir, has taken a wide range. I do not complain of
it; I have no right to complain of it. It is not for me to assume to set
bounds to the limits of this subject, or to prescribe the considerations
npou which it has to be determined. That is a matter entirely for the
better and less partial judgment of the Tribunal. It is for me, how-
ever, and it will be my endeavour, to recall the discussion to the real
questions we conceive to be involved, and to the real grounds uj)on
which, as we believe, their determination must proceed.
Now, Sir, what are the questions proposed by the Treaty for decision?
They are chiefly two, the one the alternative of the other. The first is,
(and in one view of the case it is the only question), whether the Cana-
dian sealers and the renegade Americans who seek the protection of
the British flag in order to defy with impunity the laws of their coun-
try, have a right to which the United States must submit, to continue
the destruction in which they have been engaged.
Several other questions are in form propounded by the Treaty. They
are but incidental and subsidiary to this. They cannot be made other-
wise than secondary, because in their very nature they are so. They
are only important so far as the answer to them throws light (if it does
throw light) upon the only question ever in dispute between the two
countries on that subject — does the right exist in these individuals to
contijiue the business they have been engaged in*? When you have
decided that, you have decided all that is in dispute. Until you have
decided that you have decided nothing. It is useless to explore the
dead bones of the dijilomacy of seventy five years ago, to try and ex-
tract a meaning from language which i)erhaps was employed to conceal
3
4 ORAL ARGUMENT OP HON. EDWARD J. PHELPS.
meaning, unless by so doing, assistance can be obtained in deciding
this ])riucipal question.
What then is the business these men have been engaged in? It is so
long since this case was stated, that perhaps I may be excused for briefly
restating it. Tlie Ishmds have been in possession of Enssia, down to
the time when they were ceded to the United States, ever since their
discovery. They were discovered and first occupied by Eussia, and her
title has never been questioned, and is not questioned now. Nearly
one hundred years ago that country established upon the Islands an
industry, a husbandry, in the protection and management of the seals
which resorted there in almost countless numbers. Whatever else took
place between Enssia aiul other countries, that industry remained unim-
paired, undisturbed. No man, no nation, ever claimed in any instance
which the preparation of the case on either side has disclosed, the
right to go there, to touch one of these animals, or to interfere in any
way whatever witli the industry that Eussia was carrying on. In 1807
the province of Alaska, including those Islands, was transferred to the
United States for a large consideration, between seven and eight million
dollars, and, as I shall have occasion to show later in the case, the exist-
ence of that industry, which was all that gave the province any present
or immediately future value, was the chief inducement to the purchase.
After that, considerably later, not to any serious or appreciable extent
till 1884 perhaps, they began from Canada to destroy these seals; and
in what way? What is it they have since been doing, and which they
claim the right to continue to do? It is the extermination of the race.
If we have not proved that, we have not i:>roved anything.
I shall not take leave of you, Sir, if that question can be said to be
still in doubt, without demonstrating from the evidence the absolute
correctness, the absence of all exaggeration in the statement I have
made. It is a matter of evidence, printed and lying before you, out of
which any intelligent man who will give time enough and trouble
enough, can make it perfectly a])parent that the process that is being
carried on is the extermination of the race of seals. How "? By destroy-
ing on their annual passage to the Islands the females pregnant with
young, just about to be delivered, in large numbers, 80 or 85 per cent
of the whole catch being of that sort, and the destruction, after their
young have been born, of the mothers who are nursing them, and who
go out to sea for sustenance, and if destroyed, leave their young to
starve on the islands.
That is the method of the destruction. That is the result which is
claimed here as a right — as a part of the freedom of the sea to which a
great nation must submit, not at the hands or for the benefit of another
nation or even a i)roviuce, but for a little knot of adventurers of one sort
and another who find their temporary and miserable profit in that sort of
business. Coming as they do from both nations, it is only just to say that
we cannot charge all of this upon Canada, except so far as the flag of
Great Britain enables Americans to join with the Canadians in this
employment. It is the right to do that thing, in that way, with those
consequences, that is in question in this case, and which is asserted on
the part of Great Britain on this hearing — never before — and denied on
the part of the United States.
Now, Sir, how has that question been met by my learned friends?
It has not been met. All the resources of the most accomplished advo-
cacy have been exhausted in escaping from it — in avoiding it — in
circumventing it— in approaching it from every direction except the
straight forward one. My learned friends have felt as any man must
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 5
feel, wlio is capable of feeling, tliat the bare statement of tliis case in
its naked and simple facts, exactly as they are established, involves
a proposition it is impossible to encounter: that there is no hxw, there
is no learning, there is no pretense of Justice that can possibly encounter
such a proposition with success. It must therefore be approached
indirectly. Your minds, as my learned friend, the Attorney General
said, must be "prepared" before you can examine it. He devotes a
couple of days of argument to preparing your minds. What preparation
does a, judicial tribunal need for meeting a case that is brought before
it? What is a tribunal ex})ected to do excei)t to look the case square
in the face, ascertain the facts, and apply to those facts the law?
What is my learned friend's reci])e for the preparation of a judicial
Tribunal so that they may be brought indirectly to a result it would be
impossible to propose to them directly? Why, you must get rid of your
ideas of right and wrong, because that is not law. You must bear in
mind that you do not sit to do right; far from it; you sit to administer
the law, which is, or may be, a very difterent thing from the right. You
must remember that the extermination of the seal is not a matter of any
very great consequence, after all, since it only involves the ladies going
without their sealskin cloaks ; and that, as to cruelty, that always accom-
panies the taking the life of an animal. You cannot help that, and, if
you give him what they are pleased to call "a fair sporting chance" for
his life, all the dictates of humanity are answered.
Then the discussion of the case is taken up by starting at some remote
point and coming down sideways so as to consider abstract propositions,
and not the actual concrete case that is put before you. A day or two has
been devoted to arguing the question of the legality of the seizuies of
the British vessels made by the United States Government in 1886 and
1887. What have you to do with that? Is any such question proposed
for deci.sion by the Treaty ? The only function the Tribunal is entrusted
with, or needed to be entrusted with on that subject, is to find such
facts, at the instance of either party, as the party might think would
be material in future negotiations, provided the facts are true. But
those facts are all agreed upon ; they are put in writing, and submitted
to the Tribunal, and there is no question about them. There never
was. They are notorious, well understood, undeniable facts. A little
question as to the precise form of their statement arose, which was
easily accommodated between counsel ; and the Tribunal is thus relieved
from the duty of finding any facts in respect of those seizures at all.
Then, for what purpose and upon what principle are two days devoted
to the argument of a question not before the Court, which may come up
between these Governments hereafter, or nmy not? It is jirobable that
it never will, because the whole amount in controversy on that point
is not worth a dispute or a prolonged debate. Mr. Blaine once ottered
to pay it, as you have seen in this correspondence, if he could settle the
important rights of the country for the future in respect of this industry,
saying that it was too small to stand in the way, especially as the money
was going to individuals who might have supposed and probably did
suppose that they were authorized to do what they did.
It is because it was far more agreeable, and was felt by the accom-
plished advocates to be far more prudent to discuss some other question
than the right of the Canadians to exterminate the seals in this barba-
rous and inhuman manner, that my friends evade that point and say,
next, "let us talk about the right of search in time of peace". That is a
ground upon which they are formidable. We have had a lar-ge array of
authorities to show that the right of search does not exist in the time
6 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
of peace. Well, who said that it did? Who has said anything about
the right of search ? Or the right of seizure? That is as little involved.
Then, we are told that the question of Regulations, which is the
alternative question to the principal one I have stated, alternative in
one event, must be discussed in an entirely different argument from
the question of the right. Why? We found no difficulty on our side
in taking up those two questions in their legitimate order. What is
the trouble with my learned friends? It is the same trouble. The
moment you begin to talk about Kegulations, you have to approach the
actual facts of this case. The moment you begin to talk about Regula-
tions, this wretched business of the destruction of gravid females and
nursing-mothers stares you in the face; and it is not convenient to dis-
cuss the question of right in the light of such facts as that. It is much
better as an abstraction than as a reality. I might pursue, if it were
necessary, through the arguments of my learned friends, the straits to
which they have been driven in order to discuss this question abstract-
edly from the facts on which it arises, as if there ever was a question
of law in the world capable of being separated from the facts that gave
rise to it; as if it were possible, in the actual administration of justice
between man and man, or nation and nation, ever to separate or to
sever the question of law that is supposed to control, from the actual
facts and circumstances on which it depends.
A great deal of time has been devoted, also, to attempting to prove
that the United States, earlier iu this discussion, put itself principally
upon the ground of a derivative title from Russia to close up Behring
Sea, or to do what is substantially equivalent to that, to extend terri-
torial jurisdiction over Behring Sea; and my learned friends seem to
be quite unhappy that we have not persevered in that proposition,
because they think they can triumphantly overthrow it. You have not
failed to observe that they have two stock propositions, the sheet-anchors
of their case. The first is that you cannot shut up the open sea. On
that they are powerful and triumphant. And the second is that a
municipal Statute is bounded in its operation by the limits of the terri-
tory in which it exists. To these they perpetually return, and really
seem to feel hurt that we should put the case upon very different grounds.
I am not going over the ground so well covered hy my Associate, Mr.
Carter, who took the i)ains, unnecessarily, to point out how inaccurate
that was. If the memory of the demonstration he was able to make on
that subject has faded from the minds of the Tribunal (and it is long
enough ago, perhaps), I commend to the perusal of the Members, if
they attach any importance to this point, first, the printed Argument
of the United States, pages 27 to 40, and, secondly, the reported argu-
ment of Mr. Carter which is in print before you. I content myself (for
I shall try to read very little of this wearisome corresi)ondence) with
sui)plementing the references he made with two letters which, in the
multiplicity of the papers, he omitted to refer to.
I will ask your attention to a letter in the third British Appendix
page 350, dated November 1, and addressed by Sir Julian Pauucefote
to the Marquis of Salisbury — a letter that of course we had no access
to and did not see, until it apjieared in the British Case, and I shall
read but a few words from it. it is an account of the first interview he
had with Mr. Blaine on this subject when he arrived in the United
States as Minister of Great Britain, under instructions to renew the
negociations with regard to the Behring Sea. He reports the interview
nine days after he reached Washington.
I lost no time after my arrival here on the 15tli ulto. in seeking an interview with
Mr. Blaine on the Behring's Sea question.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 7
He states the couversation ; and (in reply to what Mr. Blaiue said),
remarks:
I observed that this appeared like an assertion of the inare claiisitm which I could
hardly believe would be revived at the present day by his Covernnient or any other;
to which he replied that his Government had not officially asserted such a claim and
therefore it was unnecessary to discuss it. As a matter of fact there had been no
interference with any Canadian \cs8ols in Bohring's Sea except such as were found
engaged in the capture and destruction of fur-seals. But his Government claim the
exclusive right of Seal fishery, which the United States and Russia before them, had
practically enjoyed for generations without any attempt at interference from any
other country. The fur-se.al was a species most valuable to mankind. And the
Behring's Sea was its last stronghold. The United States had bought the Islands in
that sea, to which these creatures periodically resort to lay their young aud now
Canadian iishermen step in and slaughter the seals on their passage to the islands,
without taking heed of the warnings given by Canadian Officials themselves, that
the result must inevitably be the extermination of tlie species. This was an abuse,
not only reprehensible in itself aud opposed to the interests of mankind, but an
infraction of the rights of the United States. It inflicted, moreover a serious injury
on a neighbouring and friendly State, by depriving it of the fruits of an industry on
which vast sums of money had been expended and which had long been pursued
exclusively, and for the general benefit. The case was so strong as to necessitate
measures of self-defence for the vindication of the rights of the United States and the
protection of this valuable fishery from destruction.
Now, Sir, if you care to consider the utterly immaterial question
whether the position of the United States as asserted by its counsel on
this trial differs from tliat which was earlier taken by Mr. Blaine, I ask
you to discriminate if you can, between the position of Mr. Blaine at
the outset of these negociations, and the proposition T have endeavoured
to state to you to-day as being- the only one this case presents. Sir
Julian gives the remainder of the interview, which I need not read — it
is before you — and, as corroborating what I said a little while ago about
the unimportance of these seizures, I will only read from the concluding
paragraph of the letter :
As regards compensation, if an agreement should be arrived at, he (Mr. Blaine),
felt sni'e that his Government would not wish that private individuals who had acted
hona fide in the belief that they were exercising their lawful rights should be the
victims of a grave dispute between two great countries, which had happily been
adjusted. He was not without hope therefore, that the wishes 1 had expressed might
be met, and that all might be arranged in a manner which should involve no humil-
iation on either side.
His tone was most friendly throughout and he manifested a strong desire to let all
questions of legal right and international law disa})})ear in an agreement for a close
season, which he believes to be urgently called for in the common interest.
This is the report of the language of the dead statesman, coming to
us through the eminent representative of Great Britain in the United
States, Sir Julian Pauncefote, and published in their evidein^e. Surely,
no one who has Mr. Blnine's reputation at heart need blnsh for the
record thus made. And if the United States have been unfortunate
in this matter at all, it is that they did not adhere as Eussia did, firmly
and resolutely, to ground that was unanswerable, and never give way
for a moment to any suggestion of negotiation, or settlement, or arbi-
trament, short of the plain necessity and justice of the case.
I shall refer to anotlier letter. Sir, with your permission, which will
be found on page 305 of the same volume. This is again from Sir Julian
Pauncefote to tlie Marquis of Salisbury, is dated on the 12th of Decern'
ber, 1889, and to make it intelligible 1 first refer to a ])reeeding letter
of December 7th, 188!>, from Lord Salisbury to Sir Julian Pauncefote
on the same page:
I have been informed that a telegram has been received by the Secretary of State
for the Colonies from the Governor-Geneial of Canada, reporting that his council
have expressed the following views in regard to reopening ncsgotiations with the
United States Government on the subject of th« Behring's Sea seal fishery.
8 ORAT. ARGUMENT OF HON. EDWARD J. PHELPS.
It is held by tlic GovernmnTit of Cnnnrla, on evidence wliicli they deem snfficient,
that no real danger exists of the extermination of the seal fishery in Bclning's Sea.
They therefore contend that, if the United States Government are not of that opinion,
that (Joverninent should make the pru[)()sals which they consi(hir necessary for the
protection of the s])ecies. If, however, the renewal of negotiations is considered
expedient by Her Majesty's Government, Canada will agree to that course on the
following conditions:
If this formed an important chapter in the history of G-reat Britain,
the future historian miulit enquire which was the Empire and which was
the Province. Canada graciously informs Her Majesty's Government
upon what terms she will agree to negotiations with the United States,
one of which is,
that the United States Government shall first abandon any claim to regard the
Behring's Sea as a mare clanaum, and that any existing legislation in the United
States, which would seem to support that claim, shall be either amended or repealed.
Some other conditions are added which I will not stop to read; and
Sir Julian Pauucefote writes in reply :
Immediately on the receipt of yonr Lordship's telegram of the 7th instant, con-
taining certain proposals of the Dominion Government in relation to the Behring's
Sea question and instructing me to report whether, in my o]>inion, those pro{)osal8
furnished a liasis of possible negotiation, I obtained an interview with Mr. Blaine
and I sounded him on the subject of Canada being directly represented in any dii)lo-
matic negotiations which might be renewed for the settlement of the controversy.
Mr. Blaine at once expressed his absolute objection to such a course. He said the
qnestion was one between Great Britain and the United States, and that his Govern-
ment would certainly refuse to negotiate with the Imperial and Dominion Govern-
ments jointly, or with Great Britain, with the condition that the conclusions arrived
at should be subject to the approval of Canada.
I did not touch on the other proposals for the following reasons.
As regards the abandonment of the mare clansnm claim, no such claim having been
officially asserted by the Unite:! States Government, they would naturally object to
withdraw it; and as regards the suggested amendment of their legislation, such a
proposal would gravely embitter the controversy, and is hardly necessary, as I con-
ceive that there is nothing in the terms of such legislation, if correctly interpreted,
with due regard to international law, which supports the mare clausiim claim.
With those citations, Sir, I leave upon the argument of my learned
friend, Mr. Carter, the question, utterly immaterial I repeat, whether
the ground we have placed this case upon was or was not the original
ground asserted by the United States. I need not remind you, that
this subject engaged the attention of the previous adniinistratioii to
that with which Mr. Blaine was connected, when the United States
began by seizing the sealing vessels in two successive years, and that
Mr. Bayard, the former Secretary of State absolutely declined to enter
into the discussion of these Russian questions. They we^-e introduced,
in the lirst place, by the Earl of Iddesleigli when Foreign Secretary of
Great Britain, in a letter through Sir Lionel West, then British Min-
ister, which elicited no reply except a courteous acknowledgment of its
receipt. Then they were brought forward again by Lord Salisbury in
another letter during Mr. Bayard's administration. And my learned
friend, the Attorney General very much complained that it met with
no res]ionse. On two occasions, in two successive Administrations,
through two Secretaries of Foreign Affairs on one side and two Secre-
taries of State on the other, it was attempted on the part of Great
Britain to carry this controversy into the held of old diplomatic diffi-
culties between Russia ami the United States, and Russia and Great
Britain. The United States declined to discuss it, and, as has been
pointed out — I shall not go over it again — always asserted through Mr.
Bayard, as well as through Mr. Hlaine, the proposition I have stated.
It is true that Mr. Blaine was afterwanls drawn by the great adroit-
ness of Lord Salisbury — a diplomat of very great ability, sagacity and
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 9
ex|ierience — few men living are perhaps his ennal — and who felt quite
as strongly as my learned friends feel that England could not put itself
on record before the world by justifying the action of Canada, to transfer
the discussion in some measnre from the actual facts that were going on
in Behring Sea and the North Pacific, to the old story about the Ukase
of 1821 put forth by Kussia and subsequently more or less modified at
the instance of the two countries. Finally, Mr. BUiine was drawn
into a discussion of this, and 1 need not say, discussed it with great
ability. We shall not shrink from that discussion at its ai)propriate
l)lace, as a 8upi)ort and corroboration to a title which we prefer to put
in its origin on stronger and clearer grounds. And when it is said tliat
Mr. Blaine remarked that if the Behring Sea was included in the
Pacific Ocean within the meaning of the Treaties of 1824 and 1825, the
United States had no further claims, we will see whether such a remark
was justified or not, and whether he could not have safely stood there.
It is not because we hesitate in attempting to support the views
expressed by Mr. Blaine in this correspondence, that we put those ques-
tions in a secondary place. It is because they are secondary, necessa-
rily and unavoidably, and could not bemade otherwise, even if we agreed
to consider them as primary.
Then, say my learned friends, still avoiding the plain issue of fact,
this is a question of the freedom of the sea. You must beware how
you step. You are approaching dangerous ground. You are in danger
of interfering with the freedom of the sea; and, in the Attorney Gen-
eral's concluding observations the other day, he remarked in very elo-
quent language, which his own emotion showed was not mere rhetoric,
that the question is one of the freedom of the sea, important far beyond
and above the preservation of the seal.
It is a question of the freedom of the sea. I accept that issue. I
agree that it is a question of the freedom of the sea, but it is not
whether the sea at this day is free in the general acceptation of that
term. That question has been settled for more than a century, and the
United States is the last Government in the world that could attord to
have the determination of it changed. Not all the seals in the world
would compensate the United States for having the freedom of naviga-
tion, of commerce, of passage, and of use of all the open seas of the
globe fail to be maintained intact. But the question is, what are the
limits of the freedom of the sea? How far does it go? Where does it
stop? Is it mere absence of restraint, the absence of law; an unbridled
and unlimited freedom to do on the sea what the laws of all civilized
countries repress everywhere else? Is that what was conceded by the
nations, when a hundred years ago they came by common consent to
change the old doctrine of mare claii,mni that had always prevailed till
then, whenever it was fouiul desirable by a maritime nation to assert
it, into the doctrine of mare libervmf How much did they give away?
How much did they surrender? Why the moment you atteuqjt to give
freedom such a definition upon the high sea as it obtains nowhere
else on earth, you restore piracy; you restore every outrage cai)able of
being perpetrated on the sea. It is manifest that is not what the free-
dom of the sea means. It has limits; there are things we cannot do
upon the sea; there are bounds we cannot overstep. Where does
freedom begin to be regulated by law? 1 shall come to that further on.
Now, in passing away for the present from the subject of the freedom
of the sea, our general proj)osition, which I may state as well here as any-
where, is this: — that this slaughter of the seals, which 1 have attempted
to describe, is, in the first i)Iace, barbarous and inhuman, and wrong in
10 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
itself. In the next place, it is contrary to those rules of law which are
estahlished by the municipal government of every civilized country on
earth for the protection of all wild animals that are of any value and,
to a certain extent, of those harmless wild animals that may be said to
be of no pecuniary value. In the third place, it is the destruction of
an important and valuable industry, long established and maintained by
the United States on the Islands, to which these seals are appurtenant;
to wliich they are attached; where they belong; where alone they may
be made the subject of any liusbandry that is not extermination. And,
finally, that this extermination of a race of animals, a race that have
not only their own right to live as long as they can live harmlessly, but
are a valuable race to mankind, to commerce, to trade, to an industry
supporting many people, is conduct that the freedom of the sea does
not embrace, and that no individual, whether he can make a profit out
of it or not, has a right to do upon any part of the high sea, an act of
that character, entailing such consequences.
It is important before entering upon the discussion of the exact
question of legal right which I propose to address myself to, to consider
what has been up to the commencement of this trial the attitude of
these nations with respect to the question, not for the purpose of show-
ing, as my learned friends have attempted, that either side has laid
greater stress later on than they did in the beginning on particular
points — that is of no consequence — but to show Avhat in our judgment
is important to be understood and taken into account.
I may briefly allude to the correspondence which has been read,
which I need not go over again. The. first thing was the seizure of
these vessels in 1886. It was followed by letters of inquiry from Great
Britain, later on by letters of remonstrance not at all upon the ground
of defending the vessels in what they were doing, but upon the question
whether whatever that conduct was they could be seized in the manner
in which they were seized and condemned by the United States Govern-
ment. Mr. Bayard's first letter in reply was one in which briefly, some-
what indirectly, but very distinctly, the general right of the United
States was affirmed. But he presently took a difl'ereut — perhaps not
a different — but a more desirable view. Experienced statesmen and
diplomatists do not need to be told how important it is for nations to
avoid the discussion of abstract questions as long as it can be avoided.
No good comes from it. It is not their business to enlarge the learning
of the world. It is not in their power to change the law of the world
except as between themselves, and therefoie, wise statesmen avoid ab-
stract discussion, and endeavour to meet the exigency of the particular
case. They prefer the precept of scripture. "Agree with thine adver-
sary quickly while thou art in the way with him, lest the adversary
deliver thee to the judge ". Mr. Bayard, a large minded far seeing man,
of that sagacity which is the sagacity of wisdom and not of cunning,
saw at once that instead of entering into the endless debate about the
extension of abstract principles to this case, it were far better for two
nations of the same race and blood, having a common interest and a
common law, to agree to settle this dispute, and to leave the abstrac-
tions to sucli future generations as should be unfortunate enough to be
obliged to settle them. Therefore leaving the question of right and
putting it aside, but not for a moment receding from it, his suggestion
was "Cannot we agree? You are as much influenced by the dictates
of humanity, and justice as we are: — Your interest is the same as ours.
You desire to do right as we do; let us agree."
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 11
He made that proposal not only to Great Britain but to Eussia and
Japan, who are interested in tlie matter of the seals, and to various other
nations who are not. I need not read again the letter he addressed to
M. Vignaud, the Secretary of Legation in Paris, and which in the
same words was sent to the other American Ministers, projiosing tliat
in this work of humanity and justice all should concur, and waive the
questioH of the United States to assert itself in its own defense.
I wish to read one letter not before read, from Mr. Lothrop, a very
able American lawyer then Minister of the United States, at St. Peters-
burgh, addressed to the Secretary of State in resi)onse to this com-
munication. It is to be found in the first volume of the United States
Appendix, page 192, and is dated December 8th 1887.
Sir, I have the honor to transmit herewith the translation of a note from the
Foreign OflSce, received at the legation yesterday, on the proposition of the United
States for an international agreement tonching the capture of seals in Behring Sea.
The earnestness felt here in the matter is plainly indicated by the language of the
note, which speaks of unrestrained seal-hunting as a thing which not only threatens
the wellbeing hut even the existence of the people of the extreme north-east coast.
This language represents a view which I have heard here in conversation, of
course not officially, and which is substantially as follows:
The seal tishery on our Behring coasts is the only resource our people there have;
it furnishes all the necessaries of life; without it they perish. Now, international
law concedes to every people exclusive jurisdicfciou over a zone along its coasts
sufficient, for its protection; and the doctrine of the equal rights of all nations on
the high seas rests on the idea that it is consistent with the coninion welfare and not
destructive of any essential rights of inhabitants of the neighboring coasts.
Such common rights, under public law, rest on general consent, and it would be
absurd to affirm that such consent had been given where its necessary result would
be the absolute destruction of one or more of the parties. Hence the rule cannot be
applied blindly to an unibreseen case, and these alleged common rights must right-
fully be limited to cases where they may be exerciseil consistently with the welfare
of all. Behring Sea partakes largely of the character of an inclosed sea; two great
nations own and control all its inclosing shores. It possesses a peculiar fishery,
which, with reference to its preservation, can only be legitimately pursued on laud,
and even there only under strict regulations. To allow its unrestrained pursuit in
the open waters of the sea is not only to doom it to annihilation, but, by necessary
consequence, to destroy all its coast inhabitants. If this result is conceded it fol-
lows that the doctrine of common rights can have no application to such a case.
I have thought it might not be uninteresting to give this as a view which has
found expression here, and, if found necessary, I think it not improbable that Rus-
sia would feel that she was driven to act on it.
The note of Mr. de Giers is enclosed by Mr. Lothrop in this commu-
nication. I will read it. It is very brief.
Mr. Minister. — Mr. Wurts, under date of August 22 (September 2), was good enough
to communicate to me the views of the Government of the United States of America
upon the subject of the desirableness of an understanding, among the governments
concerned, for the regulation of the taking (la chasse) of the fur-seal (loutrcs) in the
Behring Sea, in order that an end might be put to those inconsiderate practices of
extermination which threaten to dry up, at their source an important branch of
international commerce.
We concur entirely in the views of the Government of the United States. Like it
we also have been for a long time considering what means could be taken to remedy
a state of things which is prejudicial not only to commerce and to revenue, but
which will soon work disastrous results, not only to the well-being but even to the
existence of our people in the extreme Northeast. The establishment of a reasonable
rule, and of a lawful sys'em in the use {rexploilniion) ot the resources, whichfurnish
their only industry, is for those people of vital importance.
The pressing interest which the Imperial Government has been thus called to con-
sider had already suggested to it the idea of an international agreement, by which
this interest might fiiul its most efficient protection. It is by this way that the dif-
ferent questions involved can be best resolved, and among which there exists, in our
opinion, a close connection.
It was after the writing of that letter of Mr. Bayard's to Mr. Vignaud,
certainly before it was received at the Foreign ollice of Great Britain,
that the letter I have before alluded to from Lord Salisbury came, in
12 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
•wliicli for the first time, as far as lie was concerned, though it had been
mentioned before by Lord Icblesleigh, he introchiced the discussion of
tlie okl Kussian pretensions, — the letter to which my learned friend
com])lains that Mr. Bayard did not reply. In the meantime, however,
whieli is probably one reason why Mr. Bayard did not think it necessary
to enter into tliat dispute, he had transmitted to the United States Min-
ister at London instru<'tions to approach the British Government, and
to ask for a (Jonventiou by which the seals might be protected, not aj)on
the ground tliat the Government had not a right to protect itself, but
upon the ground I have stated, upon wliich it was far better to reach
that result, as he was sanguine, and justified in the belief as the event
showed, that it would be immediately accorded by Great Britain. What
was the result of that proposal? There was a little delay, explained in
the correspondence on the part of the Minister in London, on account
of the absence of Lord Salisbury, perhaps in the belief that such things
would be better discussed personally than oni)aper; but when the Min-
ister and Lord Salisbury met, the whole matter was settled in one inter-
view; a second was not necessary. Tlie proposition of the United
States for a close time in the killing of the seals between the 1st of
April and the Istof November, subsequently modified, I nmy say, to the
loth of October, was agreed to; and there on the map [Pointing], are
the boundaries to which it was extended. I am speaking of it as it was
originally; it was enlarged afterwards. Between the United States
Minister and Lord Salisbury, an Agreement covering the water com-
prised within those lines and excluding within that limit all the seals
killed between the 1st of April and the 15th of October was agreed to.
I do not mean to say that a Treaty was made; but it was agreed that
one should be made.
Now, my learned friend, Mr. Eobinson, yesterday alluded to what he
thought ])roper to call " the misunderstanding" between the Minister
and Lord Salisbury, in respect to the agreement I have referred to. If
it was that, it would not play much of a part here; and, therefore, I may
usefully enough pause to consider whether it was a misunderstanding,
or a very explicit and direct understanding on both sides. My learned
friend, with a sort of compassion for the weakness of Lord Salisbury,
which, I presume, his Lordship does not feel the need of, intimates that
nobody could be less informed on matters connected with seals than
Lord Salisbury; and that he was the kind of a statesman who when
the propiKsal was made, would fall immediately upon the neck of the
United States Minister, and say. — "By all means; anything you want
in a Treaty between two great nations, I shall be only too happy to
agree to. Let us swear eternal friendship". Those who know that
statesman do not need to be told that his weakness does not lie in that
direction. He does not speak before he thinks; he thinks before he
speaks. He does not make Conventions or Agreements of any kind to
biiui his country, until he is quite sure that he understands what they
mean.
And I am going to take the trouble to show yon that Lord Salisbury
did perfectly understand what he was about, and that in the course of
the negotiation, which continued about the details of this agreement
up to the time when it disappeared, never having been recalled by him
or by Great Britain, when the United States made up their mind that
it would not go any further, he had all the information from all quar-
ters that existed, aiul that at no time did he intimate that in making
the agreement he had acted without knowledge or upon mis-information.
And that alter he had heard from Canada, and received the otticial
OEAL ARGUMENT OP HON. EDWARD J. PHELPS. 13
comment upon it and protest against it by Canada (wliich I shall allude
to hereafter) he did not put himself for a moment with the United
States upon any other ground than this — that time was wanted, but
that the convention would ultimately be carried into effect. I shall
prove this by reading some few of the letters that bear directly upon
that point, so that it will be seen exactly how Great Britain, in a man-
ner most honourable to herself, and to the statesman who had charge, of
her Foreign Affairs, met this proposal of the United States.
The letter of November 12th 1887 from the United States Minister
to Mr. Bayard at page 171 of the 1st Volume of the United States
Appendix, states the Minister's account, and is the first thing that
appears in the correspondence to show what took place. He says :
Referring to your instructions numbered 685, of Angnst 19th 1887, I have now to
say that owing to the absence from London of Lord Salisbury. Secretary of State
for Foreign Affairs, it has not been in my power to obtain his attention to the sub-
ject until yesterday.
I had then an interview with him, in which I proposed on the part of the Govern-
ment of the United States that by mutual agreement of the two (Toverniiients a code
of regulations should be adopted for the preservation of the seals in IJehring Sea
from destruction at improper times and by improper means by the citizens of either
country; such agreement to be entirely irrespective of any questions of conflicting
jurisdiction in those waters.
His Lordship promptly acquiesced in this proposal on the part of Great Britain,
and suggested that I should obtain from mj'^ Government andsul>mit to him a sketch
of a system of regulations which would be adequate for the purpose.
I have therefore to request that I may be furnished as early as possible with a
draft of such a code as in your judgment should be adopted.
I would also suggest that copies of it be furnished at the same time to the Minis-
ters of the United States in Germany, Sweden and Norway, Russia, France, and
.Japan, in order that it may be under consideration by the Governments of those
countries. A mutual agreement between all the Governments interested may thus
be reached at an early day.
Mr. Bayard had to take time to answer the request of the British
Government as to what these Regulations should be. It was only
agreed at the first interview that a code should be adopted, and the
United States were invited to propose one. Here is a reply on Febru-
ary 7th from Mr. Bayard that covers three pages, and which will use-
fully repay perusal. I shall only be able to read some extracts from it.
The substance of the letter is to state these leading facts as they
now appear before you; the migration of the seals; the period of the
year; the great slaughter of the females and the death of the young;
the extermination to which it conducted, and various other considera-
tions, and embracing — this is the important point — a proposal for tliese
Eegulations. That is the substance of it. 1 will read this passage:
The only way of obviating the lamentable result above predicted appears to be by
the United States, Great Britain, and other interested powers taking concerted action
to prevent their citizens or snljjects from killing fur-seals with tirearm.s, or destruc-
tive weapons, north of 50° of north latitude, and between 160° of longitude west,
and 170° of longitude east from Greenwich, during the period intervening between
April 15th and IS^ovember 1st.
To prevent the killing within a marine belt of 40 or 50 miles from the islands
during that period would be ineffectual aa a preservative measure.
And so forth.
Then comes a letter from the United States Minister to Mr. Bayard,
on page 175, in which he says :
I have received your instruction No. 782, under date of February 7, relative to the
Alaskan seal fisheries. I imniediat(dy addressed a note to Lord Salisbury, inclosing
for his perusal one of the printed co])ios of the instruction, and requesting an
appointment, for an early interview on the subject.
14 OKAL ARGUMENT OF HON. EDWARD J. PHELPS.
I also seut a note to the Russian Ambassador, and an interview with him is arranged
for the 21st instant.
The whole matter will receive my immediate and thorough attention and I hope
for a favorable result. Meauwhilo I would ask your cou.sideration of the manner in
which you would propose to carry out the regulations of these fisheries that may be
agreed upon by the countries interested. Would not legislation be necessary; and,
if so, is there any hope of obtaining it on the part of Congress?
Another letter from the same to the same on the same page, of Feb-
ruary 25th, 1888, says:
Referring to your instructions, numbered 782 of February 7, 1888, in reference to
the Alaska seal lisheries, and to my reply thereto, numbered 690, of February 18, I
have the honor to inform yon that I have since had interviews on the subject with
Lord Salisbury and with Mr. de Staal, the Russian Ambassador.
Lord Salisbury assents to your proposition to establish, by mutual arrangement
between the Governments interested, a close time for fur-seals, between April 15 and
November 1, and between 160° of longitude west, and 170° of longitude east, in the
Behring Sea.
He will also join the United States Government in any preventive measures it may
be thought best to adopt, by orders issued to the naval vessels in that region of the
respective Governments.
I have this morning telegra4)hed you for additional printed copies of instructions
782 for the use of Her Majesty's Government.
The Russian Ambassador concurs, so lar as his personal opinion is concerned, in
the propriety of the proposed measures for the protection of the seals, and has
promised to conuunnicate at once with his Government in regard to it. I have fur-
nished him with copies of instructions 782 for the use of his Goverumeut.
Theu there is the rej^ly of Mr. Bayard on the 2ncl of March contin-
uing the subject. It need not be read; but I will read Mr. White's let-
ter. The Minister having returned home temporarily, the subject was
left in the hands of Mr. White, who became Charge, to carry out the
details which had been substantially agreed on; and Mr. White writes
to Mr. Bayard on April 7th, 1888.
Referring to your instructions. * *^ * i bave the houor to acquaint you that I
received a private note from the Marquis of Salisbury this morning stating that at
the request of the Russian Ambassador he had appointed a meeting at the Foreign
Office next Wednesday, 11th instant "to discuss the question of a close time for the
seal lishery in Behring Sea," and expressing a hope that I would make it convenient
to be present, and I have replied that I shall be happy to attend.
Then there is Mr. White's letter to Mr. Bayard on April 20th, 1888,
on page 179 of the same book. He speaks first of having met the Mar-
quis of Salisbury and M. de Staal and then says :
M. de Staal expi'essed a desire, on behalf of his Government, to include in the area
to be protected by the convention the Sea of Okhotsk, or at least that portion of it in
which Robben Island is situated, there being, he said, in that region large numbers
of seals, whoso destruction is threatened in the same way as those in Behring Sea.
He also urged that measures be taken by the insertion of a clause in the proposed
convention or otherwise, for prohibiting the importation, by merchant vessels, into
the seal protected area, for sale therein, of alcoholic drinks, firearms, gunpowder,
and dynamite.
Lord Salisbury expressed no opinion with regard to the latter proposal, but, with
a view to meeting the Russian Government's wishes respecting the waters surround-
ing Robben Island, he suggested that, besides the whole of Behring Sea, the sea of
Okhotsk and the Pacific Ocean north of north latitude 47° should be included in the
proposed arrangement.
There you get (if Mr. White is correct and we shall see wliether he is
or not soon), the Southern line of this previously indicated area extended
to the west, and, by the apparent construction of the language, I should
think extended to the east — certainly to the west. And there is another
letter which I will refer to, about that. Then he says :
I referred to the communications already made by Mr. Phelps on this subject to
Lord Salisbury, and said that I should be obliged to refer to you the proposals which
had just been made, before expressing an opinion with regard to them.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 15
I have accordin<ijly the honor to ask for iustructions iu referei)ce to tlie same.
Meanwhile the Marquis of Salisbury promised to have jireijared a draft convention
for submission to the Russian embassador and to myself. I shall lose no time iu for-
warding you a copy of this document when received.
I have omitted a paragraph in Mr. White's letter, that I shoukl have
read. At tlie bottom of page 179 he says:
His lordship intimated furthermore that the period proposed by the United States
for a close time, April 15th to November Ist, nii^ht interfere with the trade lonj>er
than absolutely necessary for the protection of the seals, and he suggested October
1st, instead of a month later, as the termination of the period of seal protection.
Then Mr. Bayard re]dies to Mr. White. The letter is on page 180 of
the same book, nnder date of May 1st, 1888.
Your dispatch No. 725 of the 20th ultimo stating the result of your interview with
Lord Salisbury and the Russian ambassador relative to the protection of seals in
Behring Sea, and requesting further instructions as to their proposals, has been
received.
As you have already been instructed, the Department does not object to the inclu-
sion of the sea of Okhotsk, or so much of it as may be necessary, in the arrangement
for the protection of the seals. Nor is it thought absolutely necessary to insist on
the extension of the close season till the 1st of November.
Only such a period is desired as may be required for the end in view. But in order
that success may be assured in the efforts of the various Governments interested in
the protection of the seals, it seems advisable to take the 15th of October instead of
the 1st as the date of the close season, although, as I am now advised the Ist of
November would be safer.
The suggestion made by Lord Salisbury that it may be necessary to bring other
Governments than the United States, Great Britain, and Russia into the arrange-
ment has already been met by the action of the Department, as I have hitherto
informed you. At the same time the invitation was sent to the British Government
to negotiate a convention for seal protection in Behring Sea, a like invitation was
extended to various other powers, which have without exception returned a favor-
able response.
In order, therefore, that the plan may be carried out, the convention proposed
between the United States, Great Britain, and Russia should contain a clause pro-
viding for the subsequent adhesion of other powers.
Mr. White then writes to Mr. Bayard on the 20th of June, 1888. It
is on page 181 :
I have the honor to inform you that I availed myself of an early opportunity to
acquaint the Marquis of Salisbury and the Russian ambassador of the receipt of
your iustructions numbered 804, of May 3rd.
(That is the last letter I read :)
And shortly afterwards (May 16) His Excellency and I called together at the For-
' eign Office for the purpose of discussing with his lordship the terms of the proposed
convention for the protection of seals in Behring Sea. Unfortunately Lord Salisbury
had just received a communication from the Canadian Government stating a memo-
randum on the subject would shortly be forwarded to London, and expressing a hope
that pending the arrival of that document no further steps would be taken in the
matter by Her Majesty's Government.
Now I turn from this American evidence to some letters that are to
be found in the same third volume of the British Appendix from which
I have been reading before. I have shown the Tribunal (because I
attach so much importance to this that I think it ought to be clearly
perceived whether this was a misunderstanding or not), what view was
entertained in regard to it, and what was understood about it by the
American representatives in Loudon, and through them, by the Uuited
States Government at home. I refer to a letter from the Marquis of
Salisbury to Sir E. Morier and also to Sir Lionel West the British
Minister at Washington. Duplicates of this letter seem to have been
sent out, one to Sir Ilobert Morier and the other to Sir Lionel West. It
16 OKAL ARGUMKNT OF HON. EDWARD J. PHELPS.
is to be found at page 196 of the 3rd volume of the British Appendix to
the Case.
Sir: The Russian Ambassador and the United States Chargd d' Affaires called upon
nie this iit'teriioon to discuss the qnestion of the seal fisheries in Behj'ing's Sea, which
had been brought into prominence by the recent action of the United States.
The United States Government had ex])ressed a desire that some agreement should
be arrived at between the three Governments for the purpose of ])rohibiting the
slaughter of the seals during the time of breeding; and, at my request, M. de Staal
had obtained instructions from his Government on that question.
M. de Staal, you will recollect, Sir, was the Eussian Ambassador:
At this preliminary discussion it was decided provisionally, in order to furnish a
basis for negotiation, and without definitively pledging our ijovernments, that the
space to be covered by the proposed Convention should be the sea between America
and Russia north of the 47th degree of latitude; —
that gives the entire southern line —
that the close time should extend from the 15tli of April to the Ist November;
that was written before Mr. Bayard's suggested modification that he
would take the 15th October —
that during that time the slaughter of all seals should be forbidden ; and vessels
engaged in it should be liable to seizure by the cruisers of any of the three Powers,
and sliould be taken to the port of their own nationality for condemnation ; that the
traffic in arms, alchol, and powder should be prohibited in all the islands of those
seas; and that as soon as the three Powers had concluded the Convention, they
should join in submitting it for the assent of the other Maritime Powers of the
northern seas.
The linited States Charge d' Affaires was exceedingly earnest in pressing on us
the importance of dispatch on account of the inconceivable slaughter that had been
and was still going on in these seas. He stated that in addition to the vast quantity
brought to market, it was a common practice for those engaged in the trade to shoot
all seals they might meet in the open sea, and that of these a great number sank, so
that their skins could not be recovered.
On the 28th of July there appears in the British Appendix the same
Volume, page 209, a letter from the United States Minister who had
then returned to London to the Marquis of Salisbury; I ask you to
notice this date, July 28th, 1888.
This letter is as follows :
My Lord: I beg to recall your Lordship's attention to the subject of the proposed
Convention between the Government of the United States, Great Britain and Russia
for the protection of the seal fisheries in Behring Sea. A considerable time ha« now
elapsed since the last conversation I had the honour to have with your Lordship in
regard to it, when it was mutually believed that an early agreement might be ,
arrived at.
I am sure your Lordship will concur with me in conceiving it to be for the interest
of all parties that a conclusion should be reached as soon as possible. And my
Government instructs me respectfully to urge upon Her Majesty's Government the
propriety, under existing circumstances, of immediate action.
I understand the Russian Government to be ])repared to concur in the proposed
Convention as soon as the other Governments concerned are ready to assent to it.
Here, sir, you have from Lord Salisbury in his letter to the British
representatives abroad, a statement which precisely concurs in every
particular with that of the American Minister, and the American charge
d'affaires, in representing this agreement to their Government.
Then there took place a correspondence, or perhaps I should say
there had taken place in the meantime a correspondence from April to
July between the Governments, containing a suggestion made in the
form of a letter of the United States Minister, that has been read, as to
the means by which this convention should be carried into effect, and
whether legislation would not be necessary in both countries to
empower the Governments and the courts of the Government to enforce
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 17
the provisions of the stipulntions; ami it appears from that correspond-
ence that the sug-gestiou made by the American Minister to Lord Salis-
bury, as it was made to his own Government, was acceded to; that it
was proposed by his Lordship to have introduced into Parliament a bill
for the enforcement of this proposed Convention; that a copy of it was
promised to the American Minister, at his request, for the use of his
Government; that subsequently Her Majesty's Government thought it
would be better to enforce the convention in Great Britain through
orders in Council, and that was understood by Mr. White to mean tliat
no act of Parliament was necessary, but tliat the Executive would
enforce it through orders in Council. That mistake of his was subse-
quently corrected by an explanation from the British Foreign Office
that they only meant that instead of passing a definite bill prescribing
the manner in which a Convention should be carried out which was not
yet fornuilly executed, an act should be passed emi)owering the Privy
Council to issue such orders and under such circumstances as might be
necessary.
I allude to this correspondence only to say that it is apparent from it
that the convention was agreed to be executed on both sides, and that
the details of it were all understood, and that it was likev>'ise tlie subject
of consideration and of conclusion as to the means by which it should
be carried into effect; and whether au act was introduced into Congress
for that purpose, 1 really do not know. Now, sir, why are we here?
Sir KiCHAED Webster, — There is a letter of the 3rd of September
on page 220, from Lord Salisbury to Sir Lionel West, which I think
should be read in connection with what you are saying.
Mr. Phelps. — I will read it with much pleasure :
With reference to my despatch of the 16th April last, relative to the proposals
received from the Government of the United States for concerted action on the part
of the Powers interested in the matter, with a view to the establishment of a close
season for the preservation of the fur-seals resorting to Behrinjjfs Sea, I have to
inform you that I have recently had a long conversation with Mr. Phelps on the
subject.
He stated that his Government were very anxious that an agreement should be
arrived at as soon as possibh^
I pointed out the difticnlties felt by the Canadian Government, and said that
while the scheme was favorable to the industries of the mother country, consider-
able apprehension was felt in Canada with respect to its possible eftect on colonial
interests.
I added that I was still sanguine of coming to an arrangement, but that time was
indispensable.
That letter is on my notes to have been read a little later in another
connection.
Sir KiCHARD Webster. — I beg your pardon, Mr. Phelps.
Mr. Phelps. — It does not disturb me at all. I am glad to read it at
this time to oblige my learned friend; because I was about to put the
inquiry — I had ])ut the inquiry — How come we here? After the agree-
ment that you learn from both these Governments had been made, its
details adjusted, the methods of its being carried into effect considered
and arranged, and after repeated applications by the United States
Government, based upon the urgency of the case, had been met by
saying that it was necessary to consult Canada. We have been spoken
of as comi)laining of tliat. Certaiidy not; it was the duty of the
British Government to consult the province on that subject, and we at
once acquiesced, as will be seen from the correspondence, in the pro-
priety of waiting until an answer could be had. Then we lind as late
as September, after the communication from Canada that 1 am about
to read iiom, Lord Salisbury writes that he had had a conversation
B s, PT XV 2
18 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
with the American Minister, wlio was pressing for the fulfillment of
the Convention, and had told him that time was necessary, but that he
was still sanguine that it would be executed.
Now, what was the diliiculty ? The difficulty was the protest of Can-
ada. It was communicated from the Foreign Office to the Colonial
Government. Time was demanded, and an official reply was sent back
to Her Majesty's Government, which is the reply Lord Salisbury
alludes to in the letter I have just read, as the cause of the delay.
On page 212 of the same book, the third volume of the British Appen-
dix, under date of August 18th, is a letter from John Bramstou, whom
I believe my friend said was —
Sir EiCHARD Webster. — He was a Secretary of the Colonial Office.
Mr. Phelps. — A Secretary of the Colonial Office.
Sir: With reference to the letter from this Department of the lOfch instant, I am
directed by Lord Knutsford to transmit to you, to be laid before the Marquis of
tSalisbury, a copy of a dispatch from the (iovernor-General of Canada forwarding a
Minute of his Privy Council on the subject of the proposal of the United States
Government for the establishment of a close time for seals in Bchring's Sea.
Ill view of the explanations of the Dominion Government, which state very
clearly the strong objections to the proposed close season, it appears to Lord Knuts-
ford tuat it will lie necessary for the United States Government to make some mod-
ified proposal if the negotiations are to have any useful result.
The enclosure in that is "The Report of a Committee of the Hon-
orable Privy Council for Canada, approved by His Excellency, the
Governor-General in Council, on the 14th July, 1888." I will read the
whole of it, as it is brief:
The Committee of the Privy Council have had under consideration a despatch
dated the 8th Alarch, 1888, from the Right Honorable the Secretary of State for the
Colonies, transmitting a copy of a letter from the Foreign Office, Avith a note from
the United States Minister in London, submitting a proposal from Mr. Secretary
Bayard for the establishment of a close season for the seal fishing in and near
Beiiring's Sea, to extend from the 15th April to the 1st November of each year, and
to be operative in the waters lying north of latitude 50 degrees north and between
longitude 160 degrees west and 170 degrees east from Greenwich, in which despatch
Lord Knutsford asks to be favored with any observations which the Canadian
Government may have to otter on the subject.
The Minister of Marine and Fisheries to whom the said despatch and inclosures
were referred, submits a Report thereon, dated the 7th July, 1888, protesting
against Mr. Bayard's pi'oposal as an unjust and unnecessary interference with, or
ratlier prohibition of, rights so long enjoyed to a lawful and remunerative occupa-
tion upon the high seas.
The Committee concur in the said Report, and advise that a copy thereof, and
of this Minute, if approved, be transmitted by your Excellency to the Right Honor-
able Secretary of State for the Colonies.
Then follows the Minute from the Department of the Marine and
Fisheries, as the result of the Report of the Committee of the Privy
Council, signed by George E. Foster, Acting Minister of Marine and
Fisheries, in which the grounds of the objection were stated.
I cannot take your time. Sir, to read the whole of this, nor is it neces-
sary. It is in print before you. 1 only read enough to point out that
their objection is that the increase of the seals is so great, the number
so large, that the pelagic sealing complained of by the United States
does not even stop the increase. Therefore, that the convention cannot
be necessary for the preservation of the seal, and that the real object
of the United States is not the ])reservation of the seal, which is in no
sense endangered, but is an attempt to obtain a monopoly of the seal-
skins, and to deprive Canada of that share in the product obtained upon
the high seas which can be taken, not merely without risk to the
existence of the herd, but without stopping its increase.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 19
He refers to a rej^ort of the Uuited States Ageut from which it
appears, as he says :
1. That none but yonng male seals are allowed to he killed on the Pribilof Islands,
and of these only 100,000 annually.
2. That a careful uieasureniout of the breeding rookeries on St. Paul and St. George
Islands showed 6,357,750 seals exclusive of youug males.
3. That 90 per cent of the pups bred by these go into the water, leaving a mortal-
ity of but 10 per cent at the ])lace of breeding.
4. That fully one-half of the above UO per cent of pups returned the following
year as yearlings to the rookeries, leaving thus a total mortality of 45 i)er cent from
various causes at sea.
It needs but a slight consideration of these figures to demonstrate that an addition
of millions each year must be made to the surviving seal life in the North Pacific
Ocean.
The Agent in his Report says: "This vast number of animals, so valuable to the
Government, are still on the increase. The condition of all the rookeries could not
be better".
That report is stated to have been dated July 18th, 1887.
Sir KiCHARD Webster. — It is a United States document.
Mr. Phelps. — Yes ; it is quoted from a United States document.
Against the enormous yearly increase of seal life may be placed the average
slaughter as given in the Memorandum attached to Mr. Bayard's letter, viz., 192,457
for the whole world, or for the seals near to LJehring's Sea as follows:
Pribilof Islands 94, 967
Commander Islands et Robbin Reef 41, 893
Japan Islands 4, 000
North-west coast of America 25, 000
Or a total of 165, 860
With an annual clear increase of millions, and an annual slaughter of less than
200,000 in the North Pacific Ocean, it surely cannot be contended that there is any
necessity for such stringent and exclusive measures as the one proposed in order to
preserve the seal fishery from threatened destruction. Not only Avould it appear
that the present rate of catch could be permitted, and a continual increase of the
total number of seals be assured, but it would seem that this annual take might be
many times multiplied without serious fears of exhaustion so long as the present
condition of breeding on the Pribilof Islands are preserved.
And he goes on to discuss the subject. The purport of it all is, as I
have said, that while this proposal of the Uuited States is totally
unnecessary, altogether uucalled for, the real motive of it is to estab-
lish an absolute and complete monopoly on the islands.
Senator Morgan. — Mr. Phelps, before we rise for the recess, I would
like to know whether in the understanding that there is between the
counsel in this Case, in regard to the geographical definition of Behring
Sea, the line is to be drawn inside the Aleutian range or outside?
Mr. Phelps. — Do you mean. Senator, on the question of whether it
is included in the Pacific Ocean?
Senator Morgan. — No ; I mean in reference to the words in the treaty
"In or habitually resorting to Behring Sea."
Sir Eichard Webster. — I might perhaps save trouble on this matter
by saying and I think Mr. Phelps will agree that the matter is a little
involved, but so far as Her Majesty's Government is concerned we have
not the slightest objection to the passes into Behring Sea being con-
sidered as part of Behring Sea. I do not think it would be accurate to
consider the passes into the sea as being a part of it, but for the pur-
poses of the Begulations I was discussing yesterday, we have not the
slightest objection to those ])asses being considered a part of the sea.
^Ir. Phelps. — Yes, Sir. That answers Senator M<n-gan's question.
If you wiU permit me a moment, Mr. President, the Minute that 1 have
20 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
been reading from is dated the 7th day of July, 1888. It was approved
by the Governor-Geiieral in Privy Council on the 14th of July, 1888
and it was transmitted by Lord Stanley of Preston to Lord Knutssford
on the 3rd of August 1888, and would be in the possession of the
British Foreign Office in about the usual time after that.
The Tribunal here adjourned for a short time.
Mr. Phelps. — My learned friend, Sir liichard Webster desires that
I should refer to another letter upon the same subject, which 1 had not
mentioned this morning. I do it with great pleasure, because it is by
no means my intention to deduce any conclusions from any part of this
correspondence which are not sustained by the whole of it. It is a
letter from Lord Salisbury to Sir Julian Pauncefote of the2Und October
1890, and it is in the 3rd British Appendix, page 18 of the second part.
The Tribunal will remember before I read from this letter, that the
correspondence I have been reading took place at, and immediately
following, the time when the Agreement between the two Governments
for a convention that I was speaking of took place.
Senator Morgan.— In 1888?
Mr. Phelps. — Yes, the letters on both sides. Now on the 22nd Octo-
ber 1890, Lord Salisbury writes to Sir Julian Pauncefote a letter which
is produced here, iu which, being pressed upon this subject, he gives
an explanation:
I understand liis complaint —
that is to say, in Mr. Blaine's correspondence —
to be that, in a conversation with Mr. Phelps, reported by that gentleman in a
despatch dated the 25th February, 1888, I had assented to the American proposition
to establish, by mutual arrangement between the Governments interested, a close time
for fur-seals between the 15th April aud the Ist November iu each year, and between
160° west lonjiitude and 170 east longitude in the Behring's Sea; that I had under-
taken to cause an Act to be introduced in Parliament to give effect to this arrange-
ment as soon as it could be prepared, and that I subsequently receded from these
engagements.
The conversation in question took place on the 22nd February 1888, and my own
record of it, written on the same day in a despatch to your predecessor, is as follows:
Mr. Phelps then made a proposal on the basis embodied in Mr. Bayard's despatch
of the 7th February, a copy of whicli accompanies my previous despatch of this day's
date. Mr. Bayard there expresses the oj)inion that the only way of preventing the
destruction of the seals would be by concentrated action on the p.irt of the United
States, Great Britain, and other interested Powers, to prevent their citizens or sub-
jects from killing fur-seals with firearms or other destructive weapons north of 50°
north latitude, and between 160 west longitude and 170^^ east louiiitude from Green-
wich, during the period intervening between the 15th April aud the 1st November.
I expressed to Mr. Phelps the entire readiness of Her Majesty's Government to join
in an Agreement with Russia and the United States to establish a close time for seal
fishing north of some latitude to be fixed.
And he subsequently discusses that at a length I need not read,
speaking very kindly of the United States Minister and giving his views
which are before you.
I am very glad that this letter, as it is in the case, where it would
naturally encounter aud probably has before encountered the eye of the
tribunal, should have been brought to my attention by my learned
friend on the other side. I ai)peal from that letter which is not after
all very different from what appeared from the former correspondence —
I appeal from Lord Salisbury's recollection in 1890, to what he said in
the rei)eated letters I read this morning, written immediately after that
agreement was made. If the Tribunal take the trouble, which I will
not stop to do, to compare the letters which I have read this morning
from the British Government as well as from the re])resentative of the
American Government with the subsequent recollection of Lord Salis-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 21
bury in 1890, I think tliey will find in which he was correct, and in
which he was undoubtedly mistaken. In that letter (you will remeuiber
those letters) he suji'^ested the 47th parallel. He states the agreement
to have been that both the dates were fixed, and the limits were fixed,
when now he seems to be of a recollection that all he agreed to was
something or other to be fixed hereafter.
Now still on the point whether there could have been any misunder-
standing or rather want of information on the part of Lord Salisbury,
I want to call your attention to a letter on the 24th i)age of this book,
the third British Appendix, fi-om Messrs. Lampson the great fur house
of London through whose hands as it has appeared and will appear in
another connection all these seal skins passed. They are a very old
established house, and the letter I refer to is a letter from these gen-
tlemen to the Earl of Iddesleigh when he was Secretary for Foreign
Affairs, dated the 12th November 1880, almost two years before the
making of the Agreement between Lord Salisbury and the American
Minister:
My Lord: We understand a question of intemationallaw has arisen between the
Government of the United .States on the one band, and the Governments of Great
Britain and ot the Dominion of Canada on the other hand, respecting the seizure by
the United States Revenue cutter "Corwin" of certain Dominion fishing- vessels
engaged in capturing fur-seals in the v^aters of Alaska.
As the future existence of the fur-seal skin traffic, in which we have for years past
been engaged, largely depends upon the settlement of this question, we beg to sub-
mit for j'our consideration, the following facts:
Situated in the waters of Alaska, latitude 57° north, longitude 170° west, is the
Pribilof group of islands, belonging to the United States.
These islands, which are occupied every year from May to October by a large
nuuiber of fur-seals for the purpose of breeding, have been leased to an American
Company under stringent conditions, which restrict them from killing more than
100,000 young males per annum, and strictly prohibit them from killing any female
seals whatever.
The fur-seal being a polygamous animal, the annual inc^rease is not affected by. the
killing of this limited number of young males; and it has been found that the wise
nursing by these means of this very important fishery has not only resulted in the pre-
servation of the seals during the past sixteen years, but has also given an ample
supply of skins for purposes of trade.
During the last few seasons, however, fishing vessels have been fitted out from
ports in British Columbia and the United States, and have been engaged in the
wholesale slaughter of female seals, which, during the breeding season, swarm in
the waters round the island for a considerable distance out to sea.
Last sunmier several of the Dominion vessels were seized by the United States
cutter, and it is stated that a case is being prepared by the Dominion Government,
for presentation to the United States Government, disputing the legality of the said
captures.
Should Great Britain deny the right of the United States Government to protect
the fishery in an effectual manner, there can be no doubt that the Alaska fur-seals,
which furnish by far the most important part of the world's supply of seal-skins,
will be exterminated in a very few years, just as in the South Atlantic the Shetland
and Georgia fur-seals which used to furnish even finer i)elt8 than the Alaskas, have
already been.
It is evident, therefore, that the benefit derived by the Dominion fishing-vessels
from the slaughter of these female seals will be short lived.
We would next point out that the 100,000 skins, the annual produce of the islands
(worth I. 350,000 at present prices) have been shipped to us for sale and manufacture
in London for sixteen years past, thus aft'ording in this city employment for a large
amount of capital and means of subsistence to some 10,000 people, many of whom
are skilled workmen earuiug wages up to I. 3 per week.
We need, therefore, hardly suggest that it would be a short sighted and disastrous
policy to allow such an industry to be destroyed, especially at a time when so much
distress is already prevalent among the working classes.
We therefore earnestly trust the British Government will, after verifying the
above facts, see its way to give its friendly support to the United States in the
exercise of their right to protect and preserve an article of commerce equally efif'ect-
ing the interests of both countries. We have telegraphed to New-York for the
22 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
" Monograph of the Seal Islands " by Professor Elliott, which fully describes the seal
life upon the islands. When we have received the book we shall have the pleasure
of handing it to your Lordship.
Senator Morgan. — What is the date of that?
Mr. Phelps. — IS'ovember 12th 188(5, before any communication had
passed between the United States and the Britisli Government on tliat
subject excepting a letter of inquiry from the Foreign Office to the
United States State Department, after it had heard of the arrest of
these vessels, desiring to be informed of the particulars. I cite it for
the purpose of showing that when this agreement during the long
period between September 1887 and September 1888 was in process of
being made and of having its details settled and the legislation neces-
sary provided for it, the British Foreign Office not only had this paper
of Mr. Bayard's, which I referred to this morning stating all these facts,
and this communication from Canada in July 1888 which I referred to,
but they had for two years the remonstrance of this important house of
their own subjects, in view of their own interests and what they con-
ceived to be British interests quite irrespe(;tive of the United States,
so that the subject was in no respect a new one. And so Lord Salisbury
instead of dealing with a subject he was not conscious he understood,
had complete information from various sources in respect to all the
facts, connected with it.
But if there was a misunderstanding at the time of it, if when he
gets this information from Canada, he felt he had been misled, that he
had acted too hastily, that he had been misinformed by Mr. Bayard, and
that the facts stated in Mr. Bayard's communication did not stand the
test of examination, or were exaggerated, or were inaccurate, he would
have said so. He states himself when writing to the Colonial Office
and to his Eepresentative at Washington, at the same time that the
American Minister was stating it to his own Government, that he was
putting the matter off — exj^ressing his regret — sanguine for more than
thirty days after he had received these communications from Canada that
the agreement would be carried out, and saying that only time was
necessary to effect it; — and during all that time he never suggested
either to the American Government or to its Eepresentative, to the
Colonial Government of Canada, to the Colonial Office, or to any of
the ministers of the British Government anywhere, "we must recall
this agreement, we have been hasty, we have acted without sufficient
information". And whatever Lord Salisbury may remember as late as
1890 about the indefiniteness of the Agreement, which he does not
deny that he made, is completely contradicted by his own letters in
which he stated with the utmost particularity the very details which
in 1890 he thinks were left for future adjustment.
Lord Salisbury was mistaken in that recollection; he had not before
him, when he made that statement, these letters signed by himself.
He was pressed, — a high-toned and honourable man, as incapable of
receding from any Agreement that he had made as any man in the
world, jealous of the honour of his Country, he was pressed with the
position that the British Government found itself in. You see it trans-
parent through all this correspondence. If, as I have said, he had been
drawn hastily into this Agreement, or had entered into it under some
misunderstanding, or if Canada had presented a remonstrance which
justified him in receding, he would have done so. Instead of that, all
through the summer he was saying, "Time only is necessary; we shall
yet bring it about ".
OBAL ARGUMENT OF HON. EDWARD J. PHELPS. 23
Then, when pressed at Wasliiiijiton by Mr. Blaiue with this dehxy, no
excuse for which had been ofit'ered by Her Majesty's Government,
because they had heard from Canada, they Imd got this formal rei)ort
from the Privy Council of Canada signed by the Minister, and that
source was exhausted, still pressed, as he writes himself, by the Ameri-
can Minister calling upon him and urging dispatch, he writes a letter to
which I must allude, and which will be found in the 1st V^olnme of the
United States Appendix, page 238. It is quoted from by Sir Julian
Piiuncefote to Mr. Blaine, in a note of June the 30th, 1890:
I have received a dispatch fvom the Marquis of Salishury with reference to the
passaije in your note to me of the 4th instant, in whicli you remarlc that in 1888 liis
Lordsliip abruptly closed the negotiations because "the Canadian Government
objected", and that he " assigned no otlier reason whatever".
In view of the observations contained in Lord Salisbury's dispatch of the 20th of
June, of which a copy is inclosed in my last preceding note of this date, his Lord-
ship deems it unnecessary to discuss at any greater lengtli the circumstances which
led to an interruption of the negotiations of 1888.
Wvth regard, however, to the passage in your note of the 4th instant above referred
to, his Lordshii> wishes me to call your attention to the following stateuient made
to him by Mr. Phelps, the United States Minister in London, on the 3rd of April,
1888, and which was recorded in a despatch of the same date to Her Majesty's
Minister at Washington:
Under the peculiar political circumstances of America at this moment, said Mr.
Phelps, with a general election impending, it Avould be of little use, and indeed
hardly practicable, to conduct any negotiation to its issue before the election had
taken place.
Now, let me say for myself, witliout making myself a witness, that I
am quite willing it should stand as Lord Salisbury remembers it, for
the purposes of this case; I did make a similar remark to his Lordship.
It had reference, however, to a very different subject, a proposed Treaty
between the IJuited States and the British Government on the subject
of the Fisheries on the East Atlantic. I said it was of no use to make
a Treaty with the expectation that it would pass the United States
Senate where a vote of two-thirds is required to confirm it, with a
political majority in the Senate adverse to the Government. And sub-
sequent events showed the correctness of that opinion, because an
excellent Treaty was made which failed of ratilicatioii by a strict iiarty-
vote. But let it stand, because I do not propose to testify.
In the third British Appendix, page 189, is Lord Salisbury's letter to
Sir Lionel West stating this observation of mine. This is April 3rd,
1888, the time it was made, the time he refers to in his comn)unicatiou
with Sir Julian Pauncefote that I have just referred to, and he says,
The United States Minister called upon me to-day, previous to his return to
America. He was anxious to speak to me especially with reference to the condition
of the seal fishery in Behring Sea. He expressed the hope instructions would soon
arrive which would enable the Russian Ambassador to negotiate on the subject of
establishing a close time during which the capture of seals in certain localities
should not be permitted; and be added that, whenever that Convention could be
arranged, it would put an end to all the diSiculties which had arisen with respect to
the seal-fishery in that sea.
Mr. Phelps was very anxious for dispatch, because the destruction of the species
was enormous, and was increasing in volume every year. But under the peculiar
political circumstances of America at this moment, with a general election impend-
ing, it would, he said, be of little use, and indeed, hardly practicable to conduct
any negotiation to its issue before the election had taken place. He held it, how-
ever, to be of great importance that no steps should be neglected that couhl lie taken
for the purpose of rendering the negotiation easier to conclude, or for su])])lyiiig tiie
place of it until the conclusion was obtained. He informed me, therefore, unofficially,
that he had received from Mr. Bayard a private letter, from which he read to me'a
passage to the following effect : — " I shall advise that secr(^t instructions be given to
American cruizers not to molest British ships in Behring's Sea, at a distance from the
24 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
shore, and this on tho gronnd that the negotiations for the establishment of a close
time are going on." But, Mr. PheljJS added, there is every reason tiiat this step should
not become public, as it might give encouragement to the destruction of seals that
is taking place.
And then something more in regard to communicating that to Lord
Lansdowne.
He also said he presumed that any Convention for exercising police in Behring's
Sea must, in the case of America and Great Britain, be supported by legislation;
and he would be A^ery glad if Her Majesty's Government would try to obtain the
recjuisite powers during the present session.
1 replied that the matter should have our immediate attention.
You perceive, therefore, that when pressed for an excuse for not car-
rying this Convention into effect, Lord Salisbnry falls back upon a
remark that I have no doubt he supposed was api)lied to this subject,
as an excuse for delay, when the very letter in which he conununicates
that remark to his own Minister shows that if it was made or as it was
made, it was used by the Minister as a reason for greater despatch. So
that the reason for delay which he set Mr. Blaine to defend liimself
against, as coming rather from ^he American side than the British, was
a reason that was given on the American side for greater despatch. It
shows that a mind charged with many matters is liable sometimes to
forget exa(;tly what took place in i)articular conversations. It is
unquestionable that Lord Salisbury, as I have said, felt the embarrass-
ment of the position in M'hich he was placed.
You will see that this agreement was made, continued, and repeated
and attempted to be carried out, as far as Great Britain could get, with-
out the concurrence of Canada; — that nothing but the objection of
Canada prevented its being carried into effect; and that the objection of
Canada was founded upon a statement of fact which now is not pretended
to be true; it was founded alone upon the sup])osition that the increase
of seals was so great that all the results of pelagic sealing would not even
arrest it, and that, therefore, the attempt of the United States to inter-
fere was simply saying, while the abundan.ce of these animals is greater
than we can take, and greater than we want, we will still prohibit you
from taking a small fraction out of the sea of the seals we should not
and could not use.
Mr. Blaine is inaccurate in saying that the British Government
abruptly terminated these negotiations. It never did terminate them;
they died of inanition, and on the 12th of November is the letter of the
United States Minister that has been so often referred to that I shall
not read from it again, which is the last time, I believe, till the subject
was referred to in 1890 by Mr. Blaine, in which this Convention figures,
and which expresses the belief of the Minister, though Lord Salisbury
had not said so, that Great Britain would not carry that arrangement
out withoitt the consent of Canada, that the consent of Canada could
not be had, and that the United States Government might as well
understand that the whole agreement was at an end. That is the pur-
port of it.
Now, when you come (and I shall soon be through with these pre-
liminaries, I hope) to the renewal of the negotiations with Mr. Blaine,
the first communication in regard to which I read this morning, —
between Sir Julian Pauncefote, the then Minister, and Lord Salis-
bury,— what then was the attitude of Great Britain? It was, from
first to last, all the way through, exactly this: — " We deny the li^lit of
the United States Government to protect itself against this dcstiiictitm
of the seals, because it would be an infringement of our rights uj^on
the high seas. We deny that you have acquired that right from Russia;
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 25
vre deny that you have acquired it in any other way ; but, when you come
to the business of preserving the seals, we are ready to join you in any
and every Regulation necessary for the purpose, without regard to any
interest which it may affect". That was their position, — a position
perfectly honourable to Great Britain. Whether right in its law on the
question of right or not, is another question. It was perfectly honoura-
ble to Great Britain to say " We are with you in the preservation of this
animal; we donot desire to countenanceor to inflict upon j'^ou any serious
injury; we simply assert what we conceive to be the right of the sea;
but we will join you in everything that is necessary". So that the issue
M'ith Great Britain came to-be, not whether pelagic sealing was right,
not whether it could be justified, not whether it was sure to result in
the extermination of the seals, — not that at all. It was, " Who shall
protect the seal herd by such measures as may be necessary? You
propose to do it for yourselves; to that we object, but we will join you
in doing it."
In view of the attitude which this case has assumed, I must trouble
you, not at length, with a few extracts from the correspondence to
establish that position, because I think it a very important one in the
threshold and outset of this case. I say that Great Britain never under-
took to defend this business of pelagic sealing; she never undertook to
deny that it resulted in extermination ; she never undertook to say that
the Canadians must be protected in it. In one letter only in all this
voluminous correspondence, and if I have overlooked anything I shall
be glad to be corrected, in one letter only, in the most guarded manner,
something is intimated by Lord Salisbury on this point.
It will be found in the first United States Appendix, page 208, in a
long letter in reply to Mr. Blaine.
With regard to the first of these argnments, namely, that the seizure of the Cana-
dian vessels in tlie Behring's Sea was justitied by the fact that they were engMged in
a pursuit that is in itself contra horios 7)W7-es — a pursuit which of necessity involves
a serious and permanent injury to the rights of the Government and ])eoplo of the
United States, it is obvious that two questions are involved; first, whether the pur-
suit and killing of fur-seals in certain parts of the open sea is, from the point of
view of international morality, an offence contra bonos mores ; and, secondly, whether,
if such be the case, this fact justifies the seizure on the high seas and subsequent
confiscation, in time of peace, of the private vessels of a friendly nation.
Then he says,
It is an axiom of internntional maritime law that snch action is only admissible
in the case of piracy or in pursuance of special international agreement. This prin-
ciple has been universally admitted by jurists, and was very distinctly laid down by
President Tyler in his special message lo Congress, dated the 27th February, 1843,
when, after acknowledging the right to detain and search a vessel on suspicion of
piracy, he goes on to say: With this single exception, no nation has, in time of peace,
any authority to detain the ships of another upon the high seas, on any pretext what-
ever, outside the territorial Jurisdiction.
Now, the pursuit of seals in the open sea, under whatever circumstances, has never
hitherto been considered as piracy by any civilized state. Nor, even if the United
States had gone so far as to make the killing of fur seals piracy by their municipal
law, would this have justified them in punishing offences against such law, com-
mitted by any persons other than their own citizens outside the territorial jurisdic-
tion of the United States.
In the case of the slave trade, a practice which the civilized world has agreed to
look upon with abhorrence, tlie right of arresting the vessels of another country is
exercised only by special international agreement, and no one goA'ernm(>nt has been
allowed that general control of morals in this respect which Mr. Blaine claims on
behalf of the United States in regard to seal-hunting.
But Her Majesty's Government must question whether this pursuit can of itself
bo regarded as contra bonos mores, unless and until, for special reasons, it has been
agreed by international arrangement to forbid it. Fur-seals are indisputably ani-
mals /era naturw, and these have universally been regarded by jurists as res nullins
26 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
until they are cauglit; no person, therefore, can have property in them until he has
actually reduced them into possession by capture.
It requires something more than a mere declaration that the Government or citi-
zeus of the United States, or even other countries interested in the seal trade, are
losers by a certain course of proceeding to render that course an immoral oue.
That is all the defence — a defence based upon a teclinical proposition
of law — tbat you cannot call tliis contra honos mores, (as my friend the
Attorney General argues here) until it is agreed by nations so to clas-
sify it. My friend Mr. Coudert was kind enougli to attribute to me the
honour of having introduced into this discussion the Latin phrase contra
honos mores. I must disclaim it. Such ideas as I possess I am under
the necessity of expressing, as well as I can, in the P^nglish language,
with which I am more familiar. Whether the slaughter of animals in
this condition, in such a manner as has been alluded to, is a breach
of good manners, may be remitted to the forum of good manners to
consider. I should not so class it. It is very interesting to see in the
history of discussion, what is the first step that always has to be taken,
and always is taken, in defending that which is indefensible; it is to
find a phrase by which it can be spoken of without describing its
character. Some people acquire a considerable reputation in devising
ingenious circumlocutions by which they can describe a thing too objec-
tionable to be stated in straightforward langnage, througli the con-
venient cover of the Latin or the French. That is not one of my accom-
plishments, and I must modestly disclaim the honour which my friend
has attributed to me of introducing this phrase.
Now in the latter part of this same letter there is one other sentence
by Lord Salisbury. 1 am reading, Sir, from page 210:
The statement that it is " a fact now held beyond denial or doiibt that the taking
of seals in the open sea rapidly leads to their extinction" would admit of reply, and
abundant evidence could be adduced on the other side. But as it is proposed that
this part of the question should be examined by a committee to be appointed by the
two Governments, it is not necessary that I should deal with it here.
Now, Sir, if I am not mistaken, in those two paragraphs in the same
letter, in one of which he says (as the learned Attorney General has
said here), that this business, whatever it is, cannot be technically
classed as contra honos mores until the nations have agreed to call it
so, — and the other in which he says that this statement by Mr. Blaine
that it certainly leads to extermination would admit of reply and that
there is or may be evidence on the other side, is every word tliat can
be ascribed to Great Britain from the beginning to the end of all this
correspondence, which approaches the point of defending eitlier the
character or the consequences of this business that is called '^ pelagic
sealing." Another invention, (in the English language, but derived
from the Greek as far as the word " j)elagic" is concerned), by which
this slaughter is characterized.
1 wish now to call attention on this point to some extracts from
British correspondence, having pointed out that, strenuous as Great
Britain was in asserting what she claimed to be the rights of the sea,
the business itself never was defended except in the faint manner I
have indicated. On the other hand, in April 1890, Sir Julian Paun-
cefote writes to Mr. Blaine — 1 am reading from the same United States
Appendix, page 205.
It has been admitted, from the common (-ement, that the sole object of the nego-
ciation is the preservation of the fur-seal species for tlie benefit of nianlcind, aud
that no considerations of advantage to any particular nation, or of benefit to any
private interest, should enter into the question.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 27
Again under date of May 22nd 1880, i)ages 207 to 209 of the same
book, Lord Salisbury writing to Sir Julian says :
Her Majesty's Government would deeply reijjret that the pursuit of fur-seals on
the high seas by British vessels should iuvolve even the slightest injury to the
people of the United States. If the case be proved, they will be ready to consider
what measures can be properly taken for the remedy of such injury, but they would
be unable on that ground to depart from a principle on which free commerce on the
high seas depends.
Sir Julian under date of June 3rd 1890, writes to Mr. Blaine at page
217 of the same book.
Her Majesty's Government are quite willing to adopt all measures which will be
satisfactorily proved to be necessary for the preservation of the fur-seal species, and
to enforce such measures on British subjects by proper legislation.
On June 9th 1890 at page 220 of the same volume Sir Julian writes
again to Mr. Blaine:
Her Majesty's Government have always been willing, without pledging themselves
to details on the questions of area and date, to carry on negociations, hoping thereby
to come to some arrangement for such a close season as is necessary in order to pre-
serve the seal species from extinction.
Then on June 20th 1890, Lord Salisbury writes to Sir Julian, at page
286 of the same book:
Her Majesty's Government always have been, and are still, anxious for the arrange-
ment of a convention which shall provide whatever close time in whatever localities
as is necessary for the preservation of the fur-seal species.
Then on the 21st of July 1891, Lord Salisbury again expresses him-
self thus to Sir Julian at page 290 of the same book:
Whatever importance they
(the British Government)
attach to the preservation of the fur-seal species — and they justly look on it as an
object deserving the most serious solicitude — they do not conceive that it confers
upon any maritime power rights over the open sea which that power could not assert
on other grounds.
And on page 244 of the same volume his Lordship says in the same
letter.
Her Majesty's Government have no objection to refer the general question of a
close time to arbitration or to ascertain by that means how far the enactment of
such a provision is necessary for the preservation of the seal species, but any such
reference ought not to contain words appearing to attribute special and abnormal
rights in the matter to United States.
These are but selections. There are other passages, to the same
purport, showing that the position which Great Britain assumed in the
second stage of this negotiation with Mr. Blaine was that the result
of the negotiation ought to be that all measures that were found to be
necessary for the protection of the seal, without regard to the advan-
tage of any nation or of any interest, should be taken. Then it was
proposed by Great Britain — this was all long after tlie views of Canada
had been heard — to have these measures ascertained by a Joint Com-
mission. The proposition for a Joint Commission, which resulted in
the provision of the modus vivendi of this Treaty, came in the first
place from Great Britain. It was in the first instance resisted by the
United States. It was adhered to by Great Britain with so much per-
tinacity that it was finally adopted. Having reached the point of
agreeing that whatever was necessary for the preservation of the race
would be assented to, the question then being what is necessary — a
28 ORAL ARGUMENT OP HON EDWARD J. PHELPS.
point on which the British Government never expressed itself — it said,
" we will refer tliat to a Commission".
In Sir Julian's l(y,ter of April 30th 1890 in the same volume from
which 1 have been reading at page 205 he says:
The great di verjrence of views which exist as to whether any restrictions on pehagic
eealinii; are necessary for the preservation of the fur spt cies, and if so as to tlie char-
acter and extent of such restrictions, renders it impossible in my opinion to arrive at
any solution which wouhl satisfy public opinion either in Canada or Great l^ritain
or in any country which may he invited to accede to the proposed arrangcmfnt
without a full inquiry by a mixed commission of experts the result of whose labours
aud investigations in the region of seal fishery would probably dispose of all the
points in dispute.
And in that letter is proposed the draft of a legal convention consti-
tuting such a commission.
In the note of May 23rd to Lord Salisbury, Sir Julian says in relation
to an interview with Mr. Blaine in which he had been urging ujjon the
latter the propriety of adopting Lord Salisbury's proposed convention.
Moreover, it supplies the most complete machinery for arriving at a final decision
as to what regulations should be adopted for the preservation of the seal species.
Mr. Blaine replies to Sir Julian's note in the letter of April 30, 1890,
in the same book, page 204, but he fails to comment on the position and
he rejects the draft convention.
I need not read this correspondence, more or less of which has been
referred to before. It shows throughout what I have stated, that this
proposition for a joint commission came from Great Britain in the first
place, was received with disfavor by the United States Government,
was pressed again and again, assumed different forms, and finally was
assented to by the United States Government and found its way into
tlie Treaty.
What, then, was the final result of all this up to the time of the com-
mencement of this Arbitration ? It was that the Convention first agreed
to, and delineated on the map, having fallen through for the reasons I
have stated, and the negotiation being renewed, the attitude of Great
Britain was that while the question of right must remain to be decided,
which they could not agree upon, the matter of regulations should be
referred to a joint commission, which they were confident would settle
the business. So was Mr. Blaine. So were all those who had anything
to do with it. They did not have a moment's doubt that when a commis-
sion of experts were sent out upon that theory to visit the islands and
examine the subject and inform themselves and decide what was neces-
sary for the preservation of the species, both nations would at once
accede to it: but in the event that they failed to agree, it was provided
that the subject should then be referred to arbitration — then and not till
then — a contingency not foreseen, and which ought not to have occurred.
We shall see as we go on how it happened that it did occur. It was in
that event only that this Tribunal, provided for by the treaty, was to be
charged with the business of doing what was first assigned to the mixed
conimission ; and if that had been satisfactorily performed, both nations
would have been quite willing to waive the discussion of the abstract
question of right.
What is the attitude of this case as it appears before you now ? The
question of right still remains, as it remained before, to be discussed
and decided. The learned Attorney General was desirous to persuade
you that even the question expressed in the broad and comprehensive
terms of the sixth article only meant that you were to try again these
old Russian questions involved in the first four. I do not think that
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 29
requires reply. It did not seem to me that the suggestion commended
itself to the judgment of the Tribunal. The question of right, upon
whatever ground it is asserted and upon whatever ground it is denied,
remains. My learned friends were alarmed api)arently at a remark that
fell from Senator Morgan, that he thought there was anotlier question in
this treaty. They seemed to fear there was some point as yet unkuowu
and undisclosed, that was liable to spring out of the recesses of this
document to embarrass the Tribuiml, or to subject them to some claim
they had not heard of. I did not so understand the remark of the
learned Arbitrator. Perhaps I misunderstood it. I understood him
to mean that these questions were to be read in the light of the first
article of the Treaty, and that when read in connection with the con-
text they submitted exa(^tly the i)roposition I have submitted this
morning, whether the right existed to carry on this business with its
necessary consequences.
Now sir, it is for those who engage in such a business with such con-
sequences to justify it. The attempt to assume that they are engaged
in a lawful business and are suri)rised to find that upon some uncom-
prehensible grounds the i)ursuit of tliat business is objected to, will not
succeed. The burden of Justification is on the other side. To assume
that they are simply engaged in a lawful industry which the United
States claims upon some ground to interrupt, is to beg the whole
question.
The question in regard to regulations I shall encounter later on. I am
now saying, as 1 have said, that when a Groveriiment presents itself, as
the proprietor of such territory, with such an industry established upon
it for nearly half a century, and when it is proposed by the individuals,
whose description I shall have to deal with later, to destroy that industry,
to exterminate the race of animals upon which it is founded, and to do
it in a manner that is prohibited by all law everywhere, and which is so
barbarous and inhunmn that it ought to be prohibited, if it had no con-
sequences at all of an economical character, the parties that propose to
do that under the pretence of the freedom of the sea, must establish
their justification. The burden is upon them.
Now, how do they propose to do if? They rest their case upon two
proi)ositioiis : first, that the seals ureferce naturfv, and are therefore open
to be killed by anybody; sec(uully, that the high sea is free, so that con-
duct such as 1 have described, if the Tribunal find as a matter of fact
that it is described correctly, is a part of the freedom of the sea, and
must be submitted to by any nation, whatever may be the consequences.
Those are the propositions. That is the justification. Both those prop-
ositions we deny.
But before I discuss them, I had intended to contrast the position of
Great Britain on this trial with the position that I have shown that it
occupied all through the correspondence. There, questioning the right,
undoubtedly, of the United States Government to protect itself, gen-
erous and complete in its offer to join the United States in doing every-
thing that was necessary without regard to any interest. Here, the
whole case, aside from the discussion of the question of strict right, has
degenerated into a defence of the business of pelagic sealing, from the
re])ort of the British Commissioners, with which they set out, to the end
of the argument of my learned friend, Mr. Kobinson, when he a]»y)ealed
yesterday to the Tribunal to takecareof the 1,083 people whoaie engaged
in the business of pelagic sealing, to take care of the towns that desire
to enhance their prosperity by inducing people to come there to engage
30 ORAL ARGUMENT OF HON. EDWARD J, PHELPS.
in such a business as tbat, to remember that this was a most important
industry, and that no regulations must be adopted except such as were
perfectly consistent with its preservation ; a resistance from beginning
to end to every proposal of regulations that did not provide — not only
admit, but i)rovide — for the continuance of this business in all its sub-
stantial particulars.
Wliich government has changed front in the history of this business?
Is it that of the United States or that of Great Britain ? On the diplo-
matic correspondence the record of Great Britain is perfectly clean and
fair. It is not open to criticism except as to the correctness of their
proposition that we may not defend ourselves against tliis wrong — a
question that admits, of course, of discussion ; but as to the rest of it,
as to the inhumanity, the extermination, the injury to the United
States — all that is jmt aside. Here we encounter, from one end to the
other, the most strenuous resistance to any sort of regulation of any
kind that puts any real restriction upon the business of pelagic sealing.
Eeturning, then, in the time that remains to me this afternoon, to the
question of this justificatiou, we reply to the propositions of Great Brit-
ain, that the seal are not ferce naturo}, in the legal sense of that term;
that they are, in the true sense of the word, the property of the United
States; and what 1 mean by the term "property", I shall try to describe.
That, in the second place, such a business as we claim pelagic sealing is,
is not open to anybody, upon the open sea any more than any where
else, and that any nation that is injured by it has a right to object.
My learned friend the Attorney- General informs us that this case is
not to be decided upon what appears to be right, or what appears to be
wrong. It is to be determined upon the principles of international law ;
that the object of this Tribunal, the duty of this Tribunal, is to admin-
ister the principles of international law. We agree to that. We have
not proposed any other standard. We have not asked to set up any rule
of conduct that is not justified by what is properly called international
law. Then what is international law? He tells us it is what the nations
have agreed to; that the idea that international law depends upon what
is right, upon what is just, upon what is indicated by morality and fair
dealing, is chimerical; that a person who asserts any such proposition
goes up into the clouds of metaphysics, and occupies himself with dis-
sertations not upon what the law is, but what it ought to be; and that
this Tribunal is not convened for that purpose.
On those questions of international law in respect to which it maybe
admitted that nations have so far concurred that the points have become
settled and established and understood, there is no question that such
conclusions jirevail. Nobody on our side has pretended that you
were to overrule established principles of international law that have
become settled and recognized, because you were brought to see or to
think that you saw, that they are in some respects contrary to ethical
considerations; so that if a vessel were brought before His Lordship,
if he were sitting again in the court over which he so long presided
with such eminent distinction — cai)tured in war, for a breach of block-
ade, or for carrying contraband of war, or captured by a privateer,
legitimately commissioned by one of the belligerents and brought in for
condemnation in his court, — he is to be harangued upon the subject of
whether the established law of the world upon those points is or is not
in conformity with ethical considerations, is or is not what he would
declare the law to be if in place of a judge he were a law-giver, to pro-
pound law instead of administering it. Nobody pretends that. It would
be absurd.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 31
In the first place, we contend that this case of onrs, this right of
proi)erty or protection, call it what yon please, is as completely estab-
lished by the just principles of international law as it is by the consid-
eration of ethics and morality.
But waiving- that point for the moment, which Ave will discuss by and
by, suppose it is not. Supi)ose you have here i)reseuted to you for
decision a question of international law, which can be said to be a new
one. Such cases are of very rare occurrence. That place and those
transactions in this world which the "gladsome light of jurisprudence"
has not reached are very few. But suppose you encounter one here.
The question confronts you as a Tribunal, and, whether it is new or old,
it must be decided; and if in looking over the fiedd of what is called
authority you are unable to say that it has been provided for before,
what then ? Shall it be decided right, if what is right is plain and clear
not only to the legal sense, but to the most common and way-faring
sense in the world f " Oh no" says my learned friend; ''you must not
do that. The nations have not consented." But you nnist decide it.
If you cannot decide it right, you must decide it wrong. Have the
nations consented to that? Is that what the nations have agreed ? You
are in a position where you must go one way or the other, where you
cannot fall back and say, "We do not know; it is too soon to decide
this question. The nations have not agreed. It is jilain how it ought
to be decided, if we were at liberty to do it, but we are admonished
that no considerations of that sort constitute international law, and that
the sanction of the nations must first be had." Therefore, what is the
alternative? Decide it wrong? If this is — what I altogether deny —
such a case as that; if this is a new question; if it is one upon which
you close your books, having searched them in vain for light, the
alternative is to decide it right or to decide it wrong. If nations have
not agreed that you may decide it right, then you must assume that
they have agreed that you should decide it wrong. That is the irresisti-
ble logical conclusion. My friend does not help you out of that dilemma
with his definition of International law.
What is another consequence of his proposition? It is that inter-
national law can never advance another step. The last book is written ;
the last addition has been made. It is like the Mosaic law, written,
laid up, historic, and cannot be extended another step in the adminis-
tration of human afl'airs. In other words it is a dead law, because any
system of law perishes when it ceases to keep up with all the vicissi-
tudes, emergencies, requirements and conditions of human afl'airs;
when its principles cease to be elastic enough to comprehend and take
in every human transaction that can possibly occur on the face of the
earth, and to settle all the rights that grow out of it, it perishes, as
systems of law have perished before.
How can it advance? Howhns it advanced? What has been tlie
growth of International law? There is no legislature to propound it,
there are no Courts comi)etent to declare it. There can be no general
convention of nations called to agree to it. If you put a provision into
a Treaty, that only makes the law of a contract, that is to say a law that
binds the two parties to law which all the rest of the world may disre-
gard. That is not international law. How then has it arisen? Jt iias
advanced from its earliest rudiments by a nation asserting for itself in
every new emergency, under every new condition, in every step forward
that human affairs liave taken, what it claims to be right.
What it claims to be riglit, but that does not make it so. It remains
to be seen what the world says, what intelligent mankind say. And
32 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
peradventnre by the g^eneral acquiescence of men, by the approval of
wise men, by the endorsement of Courts of Justice — in all ways in which
the sentiment of the world transpires, the claim may bye and bye come
to be what we call settled — no longer to be discussed. And the history
of international law is simply the history of those assertions that have
been successfully made by nations in their own behalf on the basis of
what they thought was right and under the pressure of what they
thcmght to be a necessity, or at least a propriety — the assertion I say
of propositions and principles which have thus been gathered by the
subsequent general concurrence of men into the purview of what is
called international law.
Suppose, Sir, that any proposition, that if stated now would be said
to be perfectly settled, was presented to a Court for the hrst time.
Suppose there never had been a blockade of a port in the history of
the world. Suppose now for the lirst time in a warfare between two
great maritime Powers, one of them sends a squadron and blockades
the port of another and stops commerce, trade and intercourse, and
gives notice that it will capture and confiscate any vessel that under-
takes to violate the blockade and carry on any trade, however innocent.
Another nation — a neutral, says: "We recognize no such law as that.
We are not parties to this war. We are engaged in an innocent, a
lawful trade. We desire to continue it. We are not to be put down
by either of these belligerents; we shall go in;" — and such a vessel is
captured and brought up for condemnation. What shall the Court of
the nation who has made that assertion say to such a case? Why, that
nations have never agreed to this. That woukl be quite true. It is the
first case that ever occurred. It is the first vessel that ever was seized
for attempting to violate the first blockade that ever was made. What
are you going to do with itf You must decide it one way or another.
You must confiscate the vessel or let it go. 1 might continue these illus-
trations by referring to every proposition that might be agreed by
international lawyers to be among the settled propositions. Suppose
it is presented now for tlie first time. Why, the question must be —
and no other ground could be found for dis])osing of it — what is right
under the circumstances of the case? What do the necessities of the
nation that has established this blockade require? What is it that
the just defence of its interests needs?
That must be the resort because there is no other; and unless there
had been some first case, there woukl be no international law to this
day. Piracy never would have become an offence against nations.
How came it to be an oft'ence against nations? How came it to be on
the open seas a business that anybody could interfere with, except the
vessel that was attacked. How came it to pass that if an American
pirate should capture a British vessel, a French cruiser might carry
the pirate in for i)rosecution to a French Court, if France chose to
empower her Courts to deal with such cases? It came to pass because
under the pressure of the necessity, the right came to be asserted.
The justice of the claim and the necessity of the case were so far
recognized that the world approved of it; and it is by these suc(;essive
stei)S, and by these steps alone, that every single proposition that may
to-day be successfully affirmed to belong to the domain of international
law had its origin, obtained its maturity and passed under the sanction
which Courts of fJustice and international obligations confer.
Now what is our proposition ? It is tliat, where questions-have become
settled in this way, they establish the law, and the law is not open to
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 33
be changed by purely ethical considerations, until they become, at any
rate, so strong that a nation is justified iu asserting them; and so
gradually the law becomes changed. Ou the other hand, as wlien the
first Napoleon undertook to carry the right of blockade, that I have
been speaking of, a step further, and to provide that a "paper block-
ade", as it was called, might be establislied by proclamation, and that
he might exclude the vessels of neutrals from ports, while no block-
ading force was present, by virtue of a proclamation, what said the
world to that? They rejected it. There is an illustration of an asser-
tion that did not become international law. Then if you have before
you a new question, or a new question in its application, have you
anything to resort to when it must be decided, excejjt the plain princi-
ples of right and justice, if you are able to see what they are, until the
opinion of the world upon it transpires? It is a proposition that can
be sustained by numberless illustrations. The only question can be
whether the point is new, or is covered by the ai)plication of an old and
established i)rinciple. That is the meaning of the authorities that
were cited in the opening argument on the part of the United States so
largely. That is what authors mean when they say that international
law is founded on the principles of right and justice and conscience.
They do not mean to say that established law may be defeated by
resort to those considerations; but they do mean to say, that is the
foundation, that is the source from which it is all derived. Those are
the principles on which we are to proceed — until the time arrives when
it is found that the contrary has become so far established that it is
necessary to respect it. I shall have to refer to some authorities on this
point, but the reference will be only biief.
The President. — Does this contention of yours go farther than what
you would say for municipal law?
Mr. Phelps. — No, Sir, the same principle is at the root of municipal
law; and I shall cite to-morrow a provision from the French Code that
seems to me to bear upon that. But municipal law has two resorts that
are not open in international law. There is the Legislature of the
Municipality, which can pass Statutes which are law proprio vigors.
Whether right or wrong, they become the law. There are the Courts
sitting constantly to extend and apply the general principles of law so
as to cover the case.
The President. — So is Diplomacy, I might suggest. You have been
a Diplomatist yourself.
Mr. Phelps. — Yes; so is diplomacy, but without the sanction attend-
ing the decisions of the constituted Tribunals in municipal Government.
Therefore, municipal law has its regulated steps of progress, either
through Statutes or through the Judgments of the Courts, because
both those sources are authority, — they make law. But when it comes
to the point which your question, Sir, suggests, when addressing the
Court and invoking the application of an established principle to a new
case, there you fall back on, and every Court, consciously or uncon-
sciously, must be guided by, the plain consideration of right or wrong,
until it gets to the line which separates the domain of law from that of
morality. Therefore, I might appeal to a Court of Justice for some
remedy, or redress, which morally I am entitled to, and might be met
with the answer, " Your claim is only a moral one. You are outside of
the domain of municipal law; you have sustained a wrong that, as
moralists and as just men, we might be glad to see redressed ; but it is
pot w^ithin the domain of law to deal with youj? case, That domjiiu
B S, PT XV— -3
34 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
must be enlarged by a Statute before we can deal with it." But as
long as the suitor is within what may be called the i)rovince of munici-
pal law, as long as he is dealing with a subject that the law deals with,
so long all that he has to do is to make out a just case, unless he is
encountered by a Statute or adverse decisions that have settled the
law otherwise. That is the only distinction, in my judgment, Sii', if I
have answered your question.
The President. — Yes; I am much obliged.
[The Tribunal thereupon adjourned until Friday, the 23rd of June, at
11.30 o'clock.]
FORTY-FOURTH DAY, JUNE 23^^", 1893.
Mr. Phelps. — At the adjournment yesterday, Sir, I had been consid-
ering the proposition in respect to international law which had been
advanced by my learned friends on the other side, particularly by the
Attorney-General, that nothino- could be comprehended within that
definition that had not received the sanction of the established usage of
Nations; that the requirements of justice, of ethics, of sound morality
between Nations were not sufficient until the further sanction had been
obtained of the custom of nations. I had endeavoured to point out that
the proposition involved this necessary consequence, that international
law became incapable of advance; tliat it terminated with the present;
that whenever any new question was presented, it necessarily fell
without the sco])e, and outside of the domain of international law.
And that the further consequence follows my learned friends' proposi-
tion, if it were sound ; that if a new question arose within the province of
international law, affecting those subjects with which international law
must deal in the intercourse of nations, — if there were no established
usage for deciding it right, the consequence would be that it must be
decided wrong. It will be for the Tribunal to remember what I am
sure they do not need to be reminded of, that the constitution of inter-
national arbitration is in itself a new feature in international law.
Only on two or three occasions in the history of the world has any such
thing been attempted, and those have been occasions when the issues
between the disputing nations were principally, if not entirely, issues
of fact, or of figures, which involved no questions of international law,
and no other novelty than always attaches to the finding of facts upon
evidence in disputed cases. It must be remembered, then, if such
Tribunals, as I am now addressing, are to exist, and are to be useful,
they must be authorized to meet every case of new impression which
it becomes necessary to decide. They are not called together, they can
never be called together, for the pur])oseof simply acknowledging their
own incapacity; for the purpose of saying "You have invited us to
determine this important question which must be determined one way
or the other between these Nations, which, if it cannot be determined
by arbitrament, the nation claiming the right must assert for itself.
You have invited us in the interests of peace and of humanity to deter-
mine that question, but we find that we are incapable of it, because it
has never arisen before." The fact that it has never arisen before is
the very reason why an arbitration becomes necessary. Nations do
not resort to Arbitration to determine principles of law which are
already determined and understood. There is no occasion for that.
No intelligent nation would undertake to dispute such a proposition.
It is when they differ upon the point of what is law — when the question
is so far undetermined by usage and custom that it cannot be unanswer-
ably asserted on either side, that the answer should be one way or the
other, it is then that the intervention of the Tribunal is agreed upon.
35
36 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
I hog that it may not be inferred from wliat T say upon this point,
whicli I ho])e to dismiss pretty soon, — I beg that it may not be under-
stood tliat I am treatinji- tliis case as a new one — as one that is not
covered by the established principles of law. I shall contend to the
contrary with very fiieat confidence. But I am on the point which at
the threshold should be very clearly understood, of what is to take
place, if I am, in the judgment of the Tribunal, wrong in my assump-
tion; if instead of concurring in my view that the general principles
of law international and municipal a]>i)]icable to this case control and
prescribe its decision, the Tribunal or some of its Members may be of
oi)inion that a question more or less new is presented. Therefore it
becomes im])ortant and material to clearly understand as far as possible
in the first instance what is to take place in that event.
Now, Sir, if I were to turn about the i)roposition of my learned
friend, and apply it to his own case, I fear the result would not be such
as would satisfy him with the theory fi'om Avhich it was derived. The
fallacy of the whole argument on the part of Great Britain is, that it
starts by assuming that the destruction of the seal herd is the exercise
by the persons engaged in it of a plain and clear right, which it is the
object of the United States in some way to defeat or to restrict. That
begs the whole question, and brings the case to an end as soon as it is
begun; for if these people are in the exercise of a right, upon what
ground can it be denied to them'? On what footing can the United
States complain of the consequences to them of the exercise by these
people of what is a right in the view of international law? The case
is at an end when that is assumed. But the question in this case is
whether they have such a right, upon the fticts and circumstances as
they are found to exist, taking the whole case upon the evidence, aiid
determining, first of all, what are the facts material to be considered.
What is this conduct? What is its character? What are its conse-
quences'? The question is whether those who are seeking to work such
consequences, and to do such things, can make out its justification.
Now, says my learned friend, international law is what the nations
have agreed to regard as international law. Is there then any usage in
favor of conduct of this description in the whole history of mankind,
in all the intercourse of nations since the dawn of civilization, and
since law began to take the place of mere violence? Is there any
precedent for such a business as this is, if it is what we claim it to be,
and what I expect to demonstrate it is'? Did it ever take place before'?
Is there a treaty, is there a judgment, is there the language of any
writer, is there anytliing in law, literature, or history, that can be cited
in behalf of such a proposition'?
It is for them to establish this justification, and if my learned friend's
idea of international law is right, we might safely enough accept it for
the purposes of this case.
This Tribunal is substituted, by the agreement of parties, for the
right that the United States would have had to assert that proposition
for themselves, and to enforce it, if they could, in this individual case.
They have waived that; they have discharged the vessels, or some of
them, that were condemned ; they have stop])ed the arrest upon the sea
of any further cruisers pending those negotiations. They have asked
you to say what they would have had a right to say for themselves if
your intervention had not been invoked. Is the answer to that tabe,
"We do not know, because it is new; because there has been no usage
of Nations"'? Why? Because no such outrage was ever attenipted
before, There is uo precedent because there never has been an occasion
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 37
for a precedent. There is no iisao-e, for nobody ever iittenipted any
such thing before; and, therefore, while what is right is plain, while
the way-faring man, though a fool, Avhen he looks at the circumstances
of the case, can see what justice calls for, what is sound policy, and the
interests of mankind so far as they have an interest in this subject, —
while that is all plain enough, while we can see, as my learned friend
says, wliat the law ought to be, we are powerless to declare it. Then,
Sir, when you have so decided, you have decided another thing; and
that is, that no further international Arbitration will vex the general
ear of mankind, except ujion pure questions of ftict.
If that is to be the conclusion, if that is to be the contribution of
such Tribunals to the science of international law, their mission will be
very speedily terminated. You are in the place. Sir, I most respect-
fully say it, which the (Tovernment of the United States miglit have
occupied for itself. Instead of asserting their right and putting them-
selves on the general sense of mankind as every nation does in every such
case, that Government has stepped aside and has said — " Say you what
we should have been justified in doing; say you what you would have
done if you had constituted the Cabinet that controlled the affairs of
the United States Government, say you what you would have done.
Sir, if you had been the President of the United States, or Secretary of
State, in this emergency; tell us what you think you would have had a
right to do and what it was necessary to do, and what you believe that
mankind would have justified you in doing."
Another word about the assent of mankind, which is, of course, the
ultimate authority, the last judgment on questions of international law.
It comes to that sometime. A word about how that is to be ascertained
where it has not been so far ex]iressed by general usage that it may be
regarded as' established. In the first i)lace, it may be inferred in the
proper case. In the next place, it may be jiresumed in the proper case.
It may be anticipated by inference; it may be anticipated by presump-
tion, or by both. It may be inferred where the proposition in question
has been made the municipal law, as in this case, of every civilised
country. Are you to infer that, if all nations could be called together
to decide upon this question, they would reject the universal rule which
they all adopt at home, — the protection of animals of this kind during
the breeding time that are valuable to man'? That is universal law
now in civilisation; and as I said, it goes even further, for there are
still left some other motives in our race besides those of dollars and
cents, and pounds and shillings. It goes even further; it protects those
harmless animals with which the Creator has furnished this world, and
which now live here without detracting in any way whatever from the
use and enjoyment that mankind has to make of the world. It pro-
tects even those, and especially does it protect those which are not
merely harmless, not merely contributors to what might be regarded
as perhaps a sentimental enjoyment, but to those which do minister, in
their place and according to tlieir measure, to the wants and comforts,
or luxuries, of mankind. That is universal law. Xow when the question
is whether that is to be applied to this case, what is the fair inference?
In the next place it is to be presumed, because it is to be presumed
that every nation will assent to what is plainly right and just. I am
making these observations upon the assumption that what we contend
for here is plainly right and just. We shall consider that more fully
later on. I assume tliat, for tlie purpose of wliat I am saying now. If
there is a plain and obvious right, if there is a plain and obvious wrong
in the statement of a question, and you have to presume which way
38 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
manldiul will go on that subject, it is not merely tlie presumption of
comity, the presumi^tion of courtesy which obtains inexorably in all the
intercourse of nations, whereby — (whatever they may think) — they are
compelled to the external courtesy of assuming that the other nation
means to do what is right. Why, Sir, in any diplomatic correspondence
that ever took place, or that can take place, between nations, is there
anything that would bring it to a more speedy and a more proper termi-
nation than for one party to permit itself to insinuate in its correspond-
ence that the other side does not mean what is right? Can it be carried
any further? Will any nation submit to that"? If its adversary, its
opponent,its brother nation, so far forgets the proprieties and amenities
which are observed between nations, as to charge, even indirectly or
remotely, that it is not the purpose of the nation with which it is dealing
to do right — that it means to do wrong — there is the end of the discus-
sion. Until that is withdrawn and apologised for, it can be carried no
further with any self respecting nation.
JSTo diplomatic representative would for a moment, in a question that
was the subject of discussion or negotiation, permit himself to send
forth a document that he had not carefully revised for that i)urpose
alone, to see if, in the warmth of debate, in the earnestness of his con-
viction, he had used one word that could possibly be construed as an
intimation that it was not the intention of the nation with which he
was dealing to do what was right and what was just.
I have pointed out what appear to me, with much deference to my
learned friends, to be the necessary results of their definition of inter-
national law. Let me now state onr proposition. I have stated theirs.
I believe I have stated it fairly. What is our ])roposition in the place
of it? It is that the law of nations is in everv case, and all cases of
new impression, what can be seen to be just and right, what the human
conscience, what the sense of right and wrong, what the general ideas
of morality, ethics, and humanity, tluit prevail in the world, recognize
as right. You maj^ call it the law of luiture if you please. It is often
called so by distinguished writers. My learned friend objects to that.
Then let him call it by some other name if he likes it better. I care not
what it is called. That is what constitutes the law of nations in every
case that can possibly arise between nations, except where the usage of
nations has settled the jjarticular point or question otherwise.
As I said yesterday, Ave do not contend that we are to harangue a
Court of Justice or any tribunal that has to deal with such matters in
opposition to established rules of international law, on the ground that
they contravene justice or morality. Where they do, a gradual change
will be brought about. The law will be kept abreast somehow of the
general sentiments of mankind. But in addressing a tribunal in a
particular case, we do not contend that we can abrogate an established
rule of law by pointing out, if we were able to point out, that the true
and sound morality was the other way. Therefore, I say there is noth-
ing of international law, and there never can be anything in inter-
national law except these recognized principles of right and justice
between nations, that obtain between nations as far as they are appli-
cable, until they are met by a proposition of law that has become so far
established by the usage of nations, that a tribunal is not at liberty
to disregard it. Abstract principles are of no value in a case of this
sort, unless they apply to the concrete case before us. It is much less
important to eidighten mankind than to do justice in the case to be
determined. If we are right in the facts we assert, if from those facts
the character of the conduct which is attempted to be jnstilied, is made
plain and clear as oi^posed to justice, morality, and sound policy, then
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 39
it is against international law, unless it can be shown on tlie otber
side that a usage to tlie contrary lias become established. I shall
trouble you, sir, as this projiosition has been disputed, an elementary
one, as it seems to ine, with the thoughts of a few writers whose authority
is universally recognized in the world.
It is said by my learned fiiends, that my associate, IMr. Carter, has
gone into the clouds, and into the region of meta])hysics, and has
explored the writings of those philosophers who consider what the law
ought to be, and what the law will be when the millennium comes, and
proposes to substitute that for the law. What we contend for in the
present case we contend is the law. It may be alarming to have it
shown also that it ought to be the law; but I do not think it is fatal.
I do not think it is fatal to the propositions we advance that my learned
friend, Mr. Carter, has demonstrated that they ought to be the law,
and thaf it is necessary that they should be the law, if any property
of this kind is to remain on the face of the earth for a longer time than
it takes to destroy it. We are putting forward what we say is the law,
as completely established, more completely established, by the weight
of what may be called authority, than any proposition in the domain
of international law, because this is the foundation that underlies it all.
I shall not read I hope at any weary length, but I must trouble you with
a few brief extracts that are directly to the point, not of what ought to
be law, but of what is the law. And I will refer in the first place to
the judgment of Sir Robert Phillimore in the case that has been referred
to before, of the Queen v. Kei/n, in the 2nd Exchequer. Let me say
first that in that case the question was so far a new one that the Judges
of England all assembled were divided as nearly as possible equally iu
respect of its determination. The judges not only diifered as to the
conclusion, but those who agreed in the conclusion differed widely in
the grounds upon which they rested their judgments. It was in such
a case that Sir Robert Phillimore used this language:
Too rudiniental an inquiry must be avoided, but it must be remembered tliat tlie
case is one of primce impressionis, of tlie greatest importance both to r^ugland and to
otber states, and the character of it in some degree necessitates a reference to first
principles.
Then what are these first principles?
In the memorable answer pronounced by Montesquieu to be re'ponse sans replique,
and framed by I^ord Miinstield and Sir George Lee, of the British, to the Prussian
Government: "The law of nations is said to be founded upon justice, equity, con-
venience, and the reason of the thing, and confirmed by long usage."
Chancellor Kent says on the same subject. (The quotation is from
the first volume of Kent's Commentaries pages 2 to 4.)
The most useful and practical part of the law of nations is, no doubt, instituted
or positive law, founded on usage, consent, and agreement. But it would be improper
to separate this law entirely from natural jurisprudence and not to consider it as
deriving much of its force and dignity from the same principles of right reason, the
same views of the nature and constitution of man, and the same sanction of divine
revelation, as those from which the science of morality is deduced. There is a natural
and a positive law of nations. By the former every state, in its relations with other
states, is bound to conduct itself with justice, good laith, and benevolence; and this
application of the law of nature has been called by Vattel the necessary law of
nations, because nations are bound by the law of nature to observe it; and it is
termed by others the internal law of nations, because it is obligatory upon them iu
point of conscience.
Then passing a pare of the extract which I will not take time to read,
though it is all very pertinent —
"The law of nations" is a complex system, composed of various ingredients. It
consists of general princi])les of right and justice, e<|ually suitable to the govern-
ment of individuals in a state of natural equality and to the relations and conduct
40 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
of nations; of a collection of usages, customs, and opinions, tlio growth of civiliza-
tion and conimerco, and of a code of conventional or positive law.
This is the point which T particularly desired to reach :
In the ahsence of these latter regulations, the intercourse and conduct of nations
are to bo governed by principles fairly to be deduced from the rights and duties of
nations and the natiire of moral obligation ; and we have the authority of the lawyers
of antiquity, aud of some of the first masters in the modern school of public law,
for placing the moral obligation of nations and of individuals on similar grounds,
and for considering individual and national morality as parts of one and the same
science.
The law of nations, so far as it is founded on the principles of natural law, is
equally binding in every age and upon all mankind.
I refer also to the language of Sir Travers Twiss in his Treatise on
International Law, and an excellent treatise it is, as is universally
known. He divides the Law of nations as follows:
The natural or necessary law of nations, in which the principles of natural justice
are applied to the intercourse between states; secondly, customary law of nations
which embodies those usages which the continued habit of nations has sanctioned
for their mutual interest and convenience, and thirdly, the conrcntionnl ov diplomatio
law of nations. . . Under this last head many regulations will now be found which
at first resulted from custom or a general sense of justice,
Mr. Justice Story says; in the same argument the quotation will be
found :
In resting on the basis of general convenience and the enlarged sense of national
duty, rules have from time to time been promulgated by jurists and supported by
courts of justice by a coui'se of judicial reasoning which has commanded almost
universal confidence, respect, and obedience, without the aid either of municipal
statutes or of royal ordinances, or of international treaties.
And there is farther cited in the same connection and on the same
page a note from Mr. Amos in his edition of Mannings International
Law:
Though the customary usages of states in their mutual intercourse must always
he held to aft'ord evidence of implied assent, and to continue to be a mean basis of
a structure of the law of nations, yet there are several circumstances in modern
society which seem to indicate that the region of the iniluonce will become increas-
ingly restricted as compared w^ith that of the influence of well-ascertained ethical
principles and formal convention.
There Mr. Amos with the acuteness that usually characterises his
observations, gives to the ethical considerations an increased influence
in the determination of what is called International Law, even over the
usage and customs which he admitted may control it.
Mr. Wheaton, the American writer, refers to this; and I read from
page 14 of the United States Argument. He has this passage to the
same point :
International law, as understood among civilized nations, may be defined as con-
sisting of those rules of conduct which reason deduces, as consonant to justice, from
the nature of the society existing among independent nations; with such definitions
and modifications as may be established by general consent.
Says Ortolan, and I read from the translation in the same argument;
at page 21 :
It is apparent that nations not having any common legislator over them have fre-
quently no otlier recourse lor determining their respective rights but to that reason-
able sentiment of right and wrong, but to those moral truths .already brought to
light and to those which are still to bo demonstrated. This is what is me.ant when
it is said that natural law is the first basis of international law. This is why it is
important that Governments, diplomats, and publicists that act, negotiate, or write
upon such matters should have deeply (rooted) in themselves this sentiment of right
and of wrong which we have just defined, as well as the knowledge of tlft point of
certainty (point de certitude) where the human mind has been aide to attain this
order of truths.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 41
Yattel is also cited on pages 22 and 23 of tlie same book, from the
SGtli page of bis work:
We must, therelbn', ajiply to nations the rules of nature, in order to discover what
thtir obligations are, and what their rights: consequently, the law of nations la
originally no other than the law of nature applied to nations.
Ferguson, page 24 of the same book, uses this language:
Investigating thus this spirit of Itiw, we find the definition of international law
to consist in certain rules of conduct which reasou, prompted hi/ conscience, deduces as con-
sonant to justice, with such limitations and modifications as may be established bji general
consent, to meet the exigencies of the present state of soch't;/ as existing among nations and
which modern civilized states regard as binding them in tiieir relations with one another,
uith a force comparable in nature and degree to that binding the conscientious person to
obey the laws of his country.
From Testa, the Portuguese writer, I will read from page 25 a few
lines:
Although in the philosophical order natural law occupies the first place, yet in
the practical order of external relations, when questions are to be decided or nego-
tiations conducted, its rank is no longer the same; in these cases the obligations
contracted in the name of conventional law, in virtue of existing treaties, ai-e con-
sidered in the first place. If such treaties are lacking, the law of custom estab-
lishes the rule; and when there are neither treaties to invoke nor customs to follow,
it is usual to proceed in accordance with what reason establishes as just, and with
simple principles of natural law.
There are other and numerous citations. I shall not, as they are in
print before you, take the trouble to pursue them furtlier. It will be
seen that Jurists, English, American, and iudeed all Jurists concur,
not merely in saying that the principles of justice, of morality, of right,
are the foundations of the law, but that in international law, which can
be no otherwise prescribed, they are the only resort, except when, in
the first place, there is a Treaty between the parties which settles the
question for them, or, in the second place, there is an established usage
or custom that settles it generally.
But there is a passage from Vattel, which I will ask Mr. Carter
kindly to read for me.
Mr. Carter. — It is his preliminary chapter to the English transla-
tion, page 5G, Mr. Chitty's edition, the North American edition of 1844.
Asmenaresnhject to thelawsof nature — and as their union in civil society can not
have exeni])ted them from the obligation to observe those laws, since by that union
they do not cease to be men — the entire nation whose common will is but the result
of the united wills of the citizens, remains subject to the laws of nature and is
bound to res])ect them in all her proceedings. And since right arises from obliga-
tions, and as we have just observed, the nation possesses also the same rights which
nature has conferred upon men in order to enable them to perform their duties. We
must therefore apply to nations the rules of the law of nature in order to discover
what these obligations are and. what their rights. Consequently, the law of nations
is originally no other than the law of nature applied to nations. But as the appli-
cation of a rule cannot be just and reasonable unless it be made in a manner suit-
able to the subject, we are not to imagine the law of nations is precisely and in every
case the same as the law of nature, with the difference only of tlio subjects to which
it is applied, so as to allow of our substituting nations for individuals. A state
or civil society is a subject very different from an individual of the liuman race,
from which circumstances, pursuant to the law of nature itself, there result in many
cases very difierent obligations and rights, since the same general rule applied to
two subjects cannot produce exactly the same decision when the subjects are difier-
ent; and a particular rule which is perfectly just with respect to one subject is not
applicable to another subject of a quite difierent nature. There are many cases,
therefore, in which the law of nature does not decide between state and state in the
same manner as it could between man and man. We must, therefore know how to
accommodate the application of it to difierent subjects; and it is the art of thus
applying it with a precision founded on right reason that renders the law of nations
a distinct science. Wo call that the Necessary Law of Nations which consists in
the application of the law of nature to nations. It is necessary, because nations are
42 ORAL ARGUMENT OF SON. EDWARD J. PHELPS.
absolutely bound to observe it. This law contains the precepts prescribed by the
law of nature to states on whom that law is not less obligatory than on individuals.
Since States are composed of men, their resolutions are taken by men as the law of
nature. It is biudinji: on all men under whatever relations they act. This is the
law which Grotius and those who foUow him (^all the internal law of nations, on
account of its being obligatory on nations in point of conscience.
Mr. Phelps. — Without referiing- to any other autliorities of whicli
nuiuy are to be foniid in the i)iinte(l argument already submitted, I
leave it Avith tins citation, which seems to me instructive. It is from
the French Code, article 4 of the Civil code.
A .judge who under the pretence that a law is silent, obscure or insufficient refuses
to decide a case may be prosecuted as being guilty of a denial of justice.
It is a wise provision. It answers. Sir, the question you were good
enough to put to me yesterday, whether what I have asserted in respect
of international law is not equally true of municipal law; that so long-
as you are within the domain of municipal law, dealing, for instance,
with the question of property — so long as you are asking for that sort
of relief the law is accustomed to give, it is enough for yon to show
that justice requires it, until you are encountered by either a statute
or a i^rinciple of law that has been settled to the contrary. In other
words, to put the proposition in another form, the only way in a Court
of Justice, even in muidcipal law, to answer the man who demands a
right that is within the province of law, and satisties the Court that it
is just, is to show that the law has been settled otherwise, upon some
ground that restrains the hand of the Court from doing what it other-
wise would.
Now I come back to this case. I hope the time has not been quite
wasted in considering this principle, though, as will be apparent from
what I have to say, it may not be necessary to invoke it. We return to
the subject of the right of these people to i)rosecute the business that it
called pelagic sealing. Of course, if they have not the right to do it,
the United States have a right to protect themselves from it. Then
arises the question which my learned friends, with the ingenuity that
comes to able advocates with long experience, have sought to dispose
of by analysis. ''What does the right of the United States stand on?"
They are entitled to an answer to that question. We are here on our
own territory, dealing with a race of animals that is appurtenant to it;
begotten there, born there, reared there, living there seven months in
the year, protected from the extermination that has overtaken their
species in every other spot on the globe, where they ever inhabited,
and which would speedily overtake them here if we were to relax the
reins of Government. One year after the United States took possession,
that is to say after they acquired title and before the necessary legisla-
tion could be had and arrangements made to police these Islands, an
enormous number of seals, some 260,000 were destroyed on the Islands
by poachers. That fate would overtake them all immediately, if not
protected.
We have built up a valuable industry; we have introduced upon
those Islands a civilization, an account of which yon will find in the
American Case, illustrated by some coini)arative ])hotographs showing
the manner in which the natives used to live and the manner in which
they live now, — the Schools, the Churches, the cleanliness, the order,
the Christianity that has superseded the old barbarism; and some of
them, as I am reminded, have property and de])osits in r>anks. That
is what has been brought about for them, the United States deriving a
large revenue, the world getting the benefit of this product, all which
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 43
must be lost, if the seal race is to be destroyed. That is our claim ; and
it is the claim uot of individuals, as 1 shall have occasion to say more
distinctly hereafter, but of the United States Government, whose land
and industry and income this is, under whose law and under the super-
vision of whose otticers this business is carried on. It is a possession
that the law will protect; an industry, an interest, a right, that the
law of the world protects, unless it is assailed by somebody who has a
better right.
My learned friends go into a fine spun argument. They ask, " what
is your property? Is it in the particular seal, that you may follow all
over the world f Is it in the herd? Can you have a i)roperty. in the
herd, if you have not a property in every one? What is its exact
nature, — how do you define it?"
My friends who are so adversetogoingdown to the foundation of things
in another part of the case, are very anxious to get to the extreme
foundation in this case. What is the remote analysis"? There is not a
claim of property in the world but to the mind shallow enough to be
open to that sort of influence, can be reduced to the point of ridicule
by that process of reasoning. Human rights are not dealt with in that
way, I respectfully sulunit, in Courts of Justice, or in the estimation of
wise men. Our right is derived from all the fa(;ts and circumstances
of the case. They result in what is properly defined as "property".
What is the meaning of the term "property ?" It is a word of the widest
signification — of the most general api)lication; it a])plies to every inter-
est in every thing that is cajjable of appropriation and is valuable,
which is recognized bylaw. It maybe corporeal; it may be incorpo-
real. It may be capable of manual possession; it may beincaiiable. It'
may be aright; nothing but a right. It may be an interest, nothing
but an interest. The man who undertakes to define the term "prop-
erty", has a long way to go, and many things to consider. 1 have prop-
erty by the law of England, and by the law of one of the States of
America — though the general law of America is different — in the light
and in the air; I have a right in it, that the law will defend and protect.
In the very light and air of Heaven I have a property interest; and
my neighbour cannot on his own land, where he has a right to do every-
thing that a man may do lawfully, build a wall that shuts them out. I
have a right of way across my neighbour's land; perhaps limited to the
right to walk over it; perhaps to use it at a particular season of the
year only, or for a iiarticular purpose only — limited iii a thousand Avays,
or generally for all purposes. I cannot take possession of the land;
I cannot set foot on it for any other purpose, but I may walk over it, or
I may walk over it to a j)articular wood or to a particular ice-pond ? Is
not that property? I have a claim ui)on a man for damages for money
under a contract. Is it not property"? Now when you ask us to define
with a remote analysis the precise nature in the last resort of the prop-
erty interest that accrues to a nation in wild animals of this sort under
just such circumstances as are disclosed in this case, from which a valu-
able and civilizing industry has arisen and is carried on for the benefit
of the nation, and of the world at large as far as the production is valu-
able to human use — when my friends ask us to define for them what
that property right or interest is, I have a right to say, with great
respect: "Define it yourselves; that is not our business: Itisourbnsi-
ness to assert it; to show that by universal law it is recognized and
protected, and that it must be recognized and i)rotected unless such
product is to perish off the face of the earth."
44 ORAL ATlGiniENT OF HON. EDWARD J. PHELPS.
That IkS all we have to do. Pursue its analysis for yourselves ; christen
it for yourselves if it is necessary. It is a property interest — a property
right — extending', as far as the beneficial character of it extends, receiv-
iug- all the protection that it is necessary to receive. I might decline this
discussion altogether, but I shall not. I am going to pursue it to some
extent lest it be said that we are asserting a right that we are afraid
to attempt to analyse. But I premise what I have to say upon that
point by the respectful assertion that I am called upon to do no such
thing; that the princii)les of law we contend for are established, are
recognized by usage all over the world, under which every property of
this s©rt in the world is held to day, and by the assent of all mankind
has been acknowledged and protected everywhere. That is the ground
upon which we stand; let those who assail it show that it is a part of
the just freedom of the sea that they may come and exterminate this
property.
Now, Sir, let us go a little further. Suppose we consider what this
claim of property does exactly stand upon"^ There are some prelimi-
nary remarks that should be made about that, as it seems to me. The
first is, that the rules of property extend as completely to wild animals
under proper circumstances — i)evhaps I should say valuable wild ani-
mals not noxious — as they do to any other property in the world.
Where it is said that this kind of property is qualified, it is meant that
it is qualified only because it is liable to cease without the act of the
owner. No right of property except in wild animals ceases without the
act of the owner. Its forfeiture to the public law of the country is no
exception, because that depends on the owner's act. The property in
wild animals of this sort may cease by the animals reganiing-their wild
state and forsaking their proprietor. That is what is meant, and all
that is meant, when it is said that it is "qualified."
Then a right of property, my learned friend the Attorney General
says, must always have its root in municipal law. That is true, in
respect to individual property. No man can possibly have any property
right or interest of any description that is not given to him by the
municipal law under which he lives, or under which the property that
he claims is controlled. If he has got it rightly, it is derived under
some municipal law — the law of his doniicile, the law of the situs, the
law of the place of contract. But how is it with a Government ? The
Government creates the municipal law; it is not the subject of it, except
to the limited extent in which it may deal, as an individual might, when
he buys a particular piece of property; but as a general proposition
Government does not derive its title from nninicipal law — it derives its
title from assertion and possession, unless that assertion and posses-
sion controverts the rights of some other nation. A Government takes
possession ; it asserts that it has a title. That makes a title, unless, in
making that assertion, and taking that possession, it infringes the right
of another nation. It is upon that, the whole theory of discovery and
occupation depends. I may not go into some sea and find an undiscov-
ered island, and take possession of it as my property. My Government
can, and all the land in the world is held by the governments that
possess and control it under just that title — by occupation or discovery,
or by succession to those who did occupy and discover. It is assertion
and possession, I repeat, that gives a title to a Government, unless it
transgresses the rights of others who alone can complain. How came
we by the Pribilof islands'? IJussia discovered them, occupied them,
kept them, and asserted the title to which they had no other claim but
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 45
prior discovery, and transferred it to the United States. We stand
upon their title. The seals are appurtenant to it, and that Govern-
ment had taken possession and founded this industry and set all this
machinery in motion, — had sent their cruizers there to protect it, and
their agents to carry it on, and to save and jn^eserve animals that would
have disappeared long- before any of us were troubled with legal ques-
tions, if it luid not been for that interposition.
There is another suggestion before I come to the precise consideration
of this question of i)roi)erty. Over all wild animals — 1 mean all useful
wild animals — every Government has the prinuiry right of control.
Not the property; it does not own that. It does in this case, but not
always. The Government does not own the partridge on my land; if
it is killed i^does not belong to the Government, but the right of com-
plete control does, so that the Government has a right to say to me, and
does say everywhere to its subjects. Yon shall not slay the i^artridge
on your own land that is necessary for your iood, except at a certain
period of the year, in a certain way, under certain restrictions, perhaps
by taking out a certain license. It may go further and say. You shall
not" kill it for a series of years if it is deemed necessary for the general
preservation of these animals, Avliich with their capacity to go from one
proprietor to another never can be made the absolute pro])erty that
domestic animals are. The theory of protecting, for the benefit of
mankind these animals, is carried so far that every Government assumes
without dispute, the primary and prior right of control, even over the
owner on whose land the bird or animal is, while it is there. And that
is a proposition that is no longer open to any dispute.
Now, the claim of property, I say again, which is assailed by the
pelagic sealer, is a claim by the Government of the United States; and
it will be seen, I think, before I am through that that may make an
important difference — that a Government has certain rights against
conduct on the high seas which an individual would not have — that a
Government may be entitled to protection in the ownership of such an
industry as this, when if it were mine, I might not be.
Keturning then to the question of property, let us iirst regard it in
the light of the rules of the municipal law that prevails between indi-
viduals where no governmental riglit is involved. Where a wild ani-
mal, valuable to man, is so far restrained — brought under the custody
and the control of the proprietor of the land — that it has what has been
called the animus revertcndi, which brings it constantly back wherever
it goes, to the place where it receives protection and care, it becomes
the property of the proprietor until the animus revertcndi is lost. That
proposition is not disputed as a general proposition. The numerous
illustrations of it found in the law books are not disputed; they cannot
be. All those have been gone over, — the right in the bees, in the swans,
in the pigeons, in the deer, and so on — all those cases which have arisen
have had the general principle particularly ai)plied to them. There are
valuable animals found on a proprietor's land, to which those principles
have been held not applicable, and to which I shall allude; but the
general jirinciple and the application of it to all those animals that have
been the subject of i)recise legal decision is not disputed. I need not
go over that ground again. It need not have been gone over at all; it
is very familiar of course to every raeinber of the Court.
Then what is the dis[)ute? Where are we at issue? You have had
on that side from my learned friend Sir Eichard Webster, what Courts
always have from him on every question, the very best argument that
46 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
can be made. He has addressed himself to it in an exhaustive manner.
He saw \yith perfect acnteness what the point was; and you have the
satisfaction of knowing that you have heard every word that can be
usefnlly said on tliat side of the case. So tliat in dealiiiji- with that
argument we are dealing with the wliole. They admit the in-inciple.
They admit every illustration which has been established by judicial
decision ; but they say it does not apply to the seals. To all these other
animals, but not Xo the seals. Is there any law to the contrary? Oh,
no. The question never came up as to fur-seals before. The attempted,
application of that rule to the fur-seal is new. There is no decision on
that subject. Then you have to resort to the principle on which those
decisions depend; and my friend has undertaken — and he succeeded so
far as anybody can succeed, 1 am sure — to ])oint out what is the dis-
tinction which would include the other animals to which this rule has
been ajiplied, and exclude the seals.
This whole case turns upon that distinction — u])ou that precise point,
whether there are differences in the condition of the fur-seal under the
circumstances of this case, and the condition of those other animals in
respect to which the right of property is not denied. Let us see in the
first place exactly what are the facts on which we claim that the seals
are within that general rule; and then let us see on what ])oints of dif-
ference, if any, it is claimed or may be claimed that tliey are not within
the rule. Let us deal with the subject fairly on both sides. Fairly
my learned friend has dealt with it, certainly, and lairly I shall try to
deal with it.
These animals, as I have said, are begotten, born and reared on this
land, and have been, since the first knowledge of mankind in respect to
them. It is not merely a ])lace to whi(;h they can go, as in the case of
other animals that have the animus revcrtendi. It is probably — not
certainly, but probably — the only place. Some land of this description
is absolutely indispensable. Tliey are am])hibious. They cannot prop-
agate or breed or rear their young but u[)on the land. The young could
not be born elsewhere. They could not live if they were born elsewhere
than upon the land. For seven months in the year they remain there, —
I do not mean every individual of the herd, but from the time the herd
begin to arrive until they get through going away is about seven months;
sometimes longer, according to the testimony. They would not go away
at all if the winter was mild enough, 'i'hat seems to be generally agreed.
It is the inclemency of the climate — the inclemency of any climate that
in the summer affords qualities necessary to their existence and their
proi)agation, that obliges them to move for the winter. There they are
submitted so completely to the control of man that there is nothing that
can be done to an animal that we could not do to every one of those, if
it was of any use. We can shut them up; inclose them; brand them;
mark them — we can do anytliing with them. They are completely
within our control. There they derive the protection without which
they would cease to exist, through the forbearance, tlie judicious, intel-
ligent forbearance taught by experience. The Eussians did not have
it in the first place. They used to kill the seals indiscriminately; but
as early as 1847 — perhaps earlier than that, but certainly as early as
1847 — they found out that indiscriminate killing meant extermination;
that they must save the females ; and then they introduced the practice
of selected killing by which only the males of a certain age are taken,
and only a certain restricted number; and that has continued down to
the present time.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 47
Tliose are the eirciiinstaiices upon wliieli we say that this animal is
brought more fully witliiu the reasons wliich are assigned by courts of
justice for the establishment of this general rule and the application of
it to other animals, than any other animal that h;is been the subject of
judicial consideration. Here is an animal of a high degree of intelli-
gence, an animal to whom this land, or some land which is like it, is
absolutely essential. The (oiinius revertcndi is not only perfect, but it
is constant and it is undisturbed.
Senator Mokcjan. — Mr. Phelps, in speaking of some other land just
like this to which the seal may resort for their summer habitat, is tliere
any evidence in this case to show that any trace has been found else-
where in Behring Sea than on these islands that they have ever had
such a home?
Mr. Phelps. — I was about to remark upon that, sir. It is a sugges-
tion that comes very naturally to mind in considering this. In all the
exhaustive evidence in this case, in all the discoveries of the British
Commissioners — and it is pretty safe to assume that anything that can
be discovered on their side they have found, there is not the shadow of
a suggestion that a fur-seal in the Behring Sea ever hauled out, as the
phrase is, ever went ashore on any spot except the Pribilof Islands and
the Commander Islands. I do not speak of the Japan Islands, of course.
"We are speaking of these waters. Whether if the United States were
to plant batteries on the Pribilofs, open tire upon the herd of seals when
they came there in the spring, drive them off, and absolutely prevent
their landing there — whether they would gather themselves together
and seek fresh lields and pastures new somewhere else, is a question
that nobody can answer. It is purely and only a matter of conjecture.
To begin with, there would be no young that year. The young would
all perish. There would be no young tlie next year because no ])ro])a-
gation could take ])lace. Then what would become of these re])elled
animals not killed but driven away? No man knows. It is known
that they must have some laud like this, possessing its qualities, its
moisture, its cloud, its particular Ibrnuition. It is not for me to say
that there is not in the world any other such land, except the Com-
mander and the Kurile Islands. They have brought, (which I shall
allude to in another connection,) the evidence of some conjecture by
l)ersons more or less qualitied to express conjecture — some of them
pretty well qualitied, others less so — to show that if we did not care
for these animals, if we allowed them to be disturbed, if we interfered
with them too much, if they were rei)clled, they would go to the Com-
mainler Islands, or they would go somewhere else. Perhaps they
"would; for they must go somewhere or i)erish.
Now, what is the distinction on which it is said by my learned friends
that the seals are ditferent irom all these other animals held to be the
subject of ])roperty ? The law never has been applied to this particular
animal, under these particular circumstances. It is a new question, as
far as the ai)plication is concerned. The principle is as old as Bracton,
and Blackstone, and the Boman law. The application of it to this
particular animal is new, simply because a case has not occurred before.
What is the distinction between them? If the seals Hew through the
air instead of swimming; if -these islands were only a i)eninsnla and
they ran as the deer do, would that make a difference? If the bees on
the other hand, swam when they went abroad after honey, or the deer
Hew, would the law be changed ? If the wild swans travelled on foot
and the wild geese, would the law cease to be what it is now? Would
48 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
courts of justice say, "We protected the bees while tliey flew, now
that they swim they have ceased to be protected. We protected the
deer while it ran, now that it flies — that is the end of it." Why you
cannot consider that serionsly. It does not depend on those differences.
Some of these animals fly; some of them rnn; some of them swim,
some of them stay; and they are all under the protection of the prin-
ciple of law.
" Well, but " says my learned friend, " there is not any case in which
the animal has not been confined. You have bees; you put them in a
hive. You have pigeons; you put them in a dovecote. You have
swans; you put them in an enclosed pond. You have deer; you put
them in a i)ark." Why? Because that is what the necessities of their
life require. That is what is appropriate to them. Is there any diffi-
culty in our enclosing these aninnds after they get there in June? Is
there any difficulty in the United States running a fence around the
whole, and shutting them in? Not the slightest. But you see what
would become of the animals. We should have to leave the gate open
for them to go out into the sea, or else that would be only another mode
of destroying them. Is there any difficulty about putting everyone
into an enclosure? It is a mere question of expense. We could build
one big enough to hold them all; or, as I said, we can brand them.
Now it is very evident that this distinction will not do. You must
find something better than that. If my learned friends are right in
saying that the seals are outside the rule and the other animals are
within it, you must find some better reason. "Oh, but" says my
learned friend. Sir Kichard, "did you ever find a case of an apidication
of it to the migratory animals." There is a distinction — the migratory
animals. What is a migratory animal, pray? It is an animal that
goes away and comes back again, is it not? Is there any other defini-
tion to the word. Whether he goes once a week or once in three
months, or once in six months; whether he stays twenty-four hours or
three months or five months; does that touch the principle? If
there is no case in the books of a migratory animal, it is because it has
not arisen. Have you got a case where it is held that it would not
apply to a migratory animal? Do you find in the learned opinions of
these judges whom we have been reviewing, anything to show that they
would not have applied them to the animal, if it had been migratory;
anything to show that the reason of the rule, the principle, does not
touch the migratory animal? When you say migratory in distinction
to an animal that you would say was not migratory, the ditt'erence
between the seal and the bee, you speak only of the absence being
jieriodical, and longer continued. You do not touch either the certainty
of return, the value of the industry, the husbandry on which it is
founded, the care and protection that is given — you do not touch any-
thing that aft'ects the ])rinciple. These animals do not go as far as the
carrier pigeon goes. Was it ever heard that you may have property in
tlie tame pigeons that never go more than a mile or two from home;
but the carrier pigeon that crosses the sea and goes to another conti-
nent and comes back again, you cannot have any property in him ? Did
any judge ever venture upon any such absurdity as that? Then if
the distance does not make any difference, does the frequency of the
journey make any difference, or does the period of time, so long as the
animus revertendi remains comi^lete? The length of absence may be
very important evidence indeed on the question whether there is an
animus revertmdi; but when that is not questioned, wheu it cannot be
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 49
questioned; when every single fact that gives rise to this rule of law
and that enables it to be ap])lied to those animals applies to these,
except the distance to which they may go or may not, or the time when
they are gone, althongh their return is absolutely certain and periodic,
can you predicate any ditference" in tbe principle? Can you say that
the bees, for instance, if it was the habit of the animals to go away in
November for 500 miles and come back with an unerring certainty nec-
essary to their life to the same control the next April — do you say the
rule of law that used to apply to them is gone? If I had a hive of
bees, Sir, some newly discovered animal, different from former bees who
made their honey in that way, who went to the southern States where
the roses bloom in the winter, and came back laden with the material
for their honey in April to the home that was necessary to their existence,
with an absolute and unerring certainty, I ask whether the property I
have in the ordinary bees in my other hives would be lost in them"?
The Tribunal here adjourned for a short time.
The President. — Mv. Phelps we are ready to hear you.
Mr. Phelps. — I think. Sir, I may dismiss the distinction that is sought
to be drawn between the seals and the other animals in respect of which
property is predicted by the Common Law, on the score of seals being
migratory. 'Now says my learned frieiul, the animus revertendi does not
create property — it only continues it; it nuist have another origin besides
animus revertendi. Well, if I understand him correctly, I agree with
him. I do not say with regard to wild ducks, for instance, that return
by their instinct to the water adjoining my property, that ipso facto,
and if that were all, that makes them my property.
If my friend means that there mast be based upon this animus rever-
tendi or in connection with it such a possession or contact with the ani-
mal as enables me to make him the fcmndation of a usefnl and valnable
industry, then I agree with him. We are not at issue upon that ])oint.
But what is i)ossession "? He says the animal must be confined. What
is confinement? Is it anything but the possession, the control, the
confinement, which the haliits of the animal admit of consistently with
his life and his preservation and usefulness? Is not that possession?
Many attempts have been made, as all lawyers know, to define the term
"possession" as applied to property. None was ever successful. If
there is a term that is difficult to define in words, it is the word "pos-
session" as applied to property, because the nature of the possession,
the character of it, and the means of it, are just as various as the kinds
of property that are found in the world. Possession of real estate —
what is it? — One might suppose that tliere you would be able to state
what is possession. But the moment you undertake to define it you
find that it depends upon the nature of the land. Is it a house in a
city like this, or is it a wild lot upon the mountains? Both arc real
estate. Both are governed by precisely the same rules of law. To
occupy the lot of wild land in the wilderness as I might occupy a
house in the city, is impossible. What then is the possession of the
wild land? It is such i)ossession as the property admits of. Slight
acts of possession — payment of taxes — recording of a survey — going
upon the land sometimes — keeping up a supervision. The question
that is left to the jury if the title to that land in a suit depends ui)on
possession is: whether this claimant has, during the requisite period of
time, exercised such acts of ownership as the property admitted of;
very slight perhaps, but still enough to indicate it. Can such a sort of
possession as that be regarded as the possession of a house in this city?
B S, PT XV 4
50 OKAL ARGUMENT OF HON. EDWARD J. PHELPS.
Why certainly not. Wlien yon come to personal property what is pos-
session ? Why the possession of a watch, of a diamond, of a bank note,
of a coin is one thing, the ])ossessiou of articles which are moveable,
but which cannot be carried about the person, as the contents of a
house is another; and so you go on from article to article. Possession
is sometimes symbolical. The delivery of a key is the delivery of pos-
session. The supervision of au agent may be possession. In short the
only definition, that is to say the nearest approach to a definition, of
the term "possession" that has ever been successfully given in any
book that I ever saw, or in any Court whose judgment I ever heard or
read, is that it is such occupation or control indicating ownership as
the nature of the property admits of, and its usefulness requires.
I have spoken of possession of the air and light. What is my pos-
session of running water? Ho interest in property is better defined
than that — I do not mean navigable water, but small streams — the mill
streams that approach or run along past my property — the mill rights,
the water privileges as they are called. It is the right to use that water
fur mechanical purposes; for irrigation; for the use of animals; for
any purpose for which Avater is valuable. The water is not mine.
1 cannot do anything with it that destroys the value of it to my
neighbour up-stream; I cannot do anything with it that destroys the
value of it to my neighbour down stream. Their rights are as good
as mine. My right to use must be consistent with their rights to use.
I may use it, but I must pass it along nnpolluted, so that the use of my
neighbour below is as good as mine. So with my neighbour oi)posite.
He has a mill privilege on one side; I have one on the other. 1 may
have two-thirds of it ; 1 may have the paramount, he the subordinate use
or otherwise. It may be divided in all forms. He may or I may have the
right to it for a particular mill, for a particular purpose, and no other.
All that is property. When am I in possession of it? When am I in
possession of the stream that is running on to the ocean, not a drop of
which remains'? I am in possession of it when I am employing it in
any way that is consistent with its use, and of which the nature of it
admits. I am in possession of it when it is turning a water-mill; I am
in i)ossession of it when it is watering my animals. Now these illustra-
tions make it perfectly apparent that when you talk about "possession
and control", you are using a term that is absolutely indefinite, and
that must be defined according to the nature of the property. My
learned friends cited, as authority, from Pollock and Wright's excel-
lent treatise on Possession in the Common Law. I have the passage
which they cited. They cite this passage in the printed authorities
they have submitted to the Tribunal pending the discussion. I am read-
ing now from page 231.
On the same ground trespass or tlioft cannot at common law be committed of liv-
ing animals/rra' natiww unless tliey are tame or conllned. They may be in the park
or pond of a person who has the exclusive riijht to take them, but tliey are not in
his possession unless they are either so confined or so powerless by reason of imma-
turity that they can be taken at pleasure with certainty.
That is copied. In the haste of the preparation of the ease my friends
omitted to read a little further.
An animal once tamed or reclaimed may continue in a man's possession although
it Jly or run abroad at its will, if it is in the habit of returning regularly to a place
where it is under his complete coutrol. Such habit is commonly called animus
revertendi.
That is what the author meant. But it is not for that I took up the
book at this moment — it was on the subject of possession; and perhaps
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 51
I shall be excused for reading a few words from Sir Frederick Pollock's
admirable chapter on this subject, in which, through a number of pages,
he illustrates, with care and accuracy of language, the difticulty of defin-
ing this word '' possession" and the vast range of applications in which
it is dependent upon the nature of property. It will repay any person
who desires to investigate this subject, to read this whole chai)ter. He
says, for instance, at page 6:
To prevent perpetual equivocation, it is necessary carefully to distinguish between
physical and legal possession. We here refer to the former. It does not suppose
any law —
I find I am mistaken in saying this is Sir Frederick Pollock's
language. It is quoted by him from Sir E. Perry, who is translating
Savigny on possession; and the language I am reading is not Sir Fred-
erick Pollock's, but is quoted and adopted by him; though what I have
said quite apidies to what he does say in his own words.
We here refer to the former: it does not suppose any law; it existed before there
were laws; it is tlie possession of the subject itself, wiiether a thing or the service
of a man. Legal possession is altogether tlic work of the law ; it is tlie possession of
the right over a tbing or over the services of man. To have pliysical possession of a
thing is to have a certain relation with that thing, of which, if it please the legis-
lator the existence may hold the place of an investitive event, for the ])urpose of
giving commencement to certain rights over that thing. To have legal possession
of a thing is already to have certain rights over that thing, whether by reason of
jihysical possession or otherwise.
It would seem as if this author anticipated what would be claimed
some day by eminent counsel on this subject — that possession meant
l)hysical confinement, even though it was a physical confinement that
destroyed the object of ])ossession.
I do not read the whole page, but I pass to another passage.
The idea of possession Avill be different according to the nature of the subject,
according as it respects tilings or the services of man, or hctitious entities, as
l^arentage, privilege, exem])tiou from services, etc.
The idea will be different according as it refers to things moveable or immove-
able. How many questions are necessary for determining what constitutes a building,
a lodging. Must it be factitious, but a natural cavern may serve for a dwelling, —
must it be immoveable f But a coach, in which one dwells in journeying, a ship,
are not immoveables? But this land, this building — Avhat is to be done that it may
be possessed? Is it actual occupation? Is it the habit of possessing it? Is it
facility of possessing without opposition, and in spite of opposition itself.
Again, this is Sir Frederick Pollock's own language at page 10:
It has constantly been asked : Is possession a matter of fact or of right? Bentham
and others have made the want of a plain answer a reproach to the law. But in
truth no simple answer can be given to such a question, for all its terms are complex
and need to be analysed. Every legal relation is or may be an affair both of facts
and of right: there are not two separate and incommunicable spheres, the one of
fact and tlie other of right. Facts have no importance for the lawyer unless and
until they appear to be, directly or indirectly, the conditions of legal results, of
rights which can l)e claimed and of duties which can be enl'orced. Rights cannot
be established or enforced unless and until the existence of the requisite facts is
recognized.
Then at page 12 he says :
It appears, then, that even at the earliest stage we have many things to distin-
guish. De facto i)ossessiou, or detention as it is currently named in continental
writings, nuiy be paraphrased as effective occupation or control. Now it is evident
that exclusive occu])ation or control in the sense of a real unqualified power to exclude
others, is nowhere to be found. All i)hy8ical security is finite and qualified.
Then on page 13 he says:
To determine what acts will be sufficient in a particuhir case we must attend to
the circumstances, and especially to the nature of the thing dealt with, and the
62 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
manner in -vvliich things of the same kind are liabitually tised and enjoyed. "We
uuist distinguish between moveable and immoveable property, between portable
objects, and those which exceed the limits of portable mass or bulk. Further, wo
must attend to the apparent intent with which the acts in question are done. An
act which is not done or believed to be done in the exercise or assertion of dominion
■will not cause the person doing it to be regarded as the de facto exerciser of the
powers of use and enjoyment.
Again, on page 14 lie says:
And in order to ascertain whether acts of alleged occupation, control, or use and
enjoyment, are effective as regards a given thing we may have to consider.
"(rt) Of what kinds of physical control and use the thing in question is practically
capable ;
{})) With what intention the acts in question were done;
(c) Whether the knowledge or intention of any other person was material to their
effect, and if so, what that person did know and intend.
Then on page 6 he says:
When the fact of control ia coupled with a legal claim and right to exercise it In
one's own name against the world at large, we have possession in law as well as in
fact.
All that, Sir, is very obvious. It is felicitonsly stated, but it is not
new. It is not new to that class of lawyers who have been accustomed
to apply law to human affairs. There are two kinds of law, I may be
l^ermitted to say : the law that is practicable and the law that is imprac-
ticable— that is visionary — that is theoretical. The one comes out of
the closet of the man who has never been anywhere else; the other
comes from the constant application of the principles of law to the
administration of human justice, never separating law from facts,
always remembering that law depends upon facts, and their changes,
variations, conditions, and circumstances; and that no other rule can
be stated, except that when a principle is established, it is in the light
of that principle that all questions arising under it are to be considered.
What then, still having in mind my friends proposition, which as I
have said is sound enough if I understand itriglitly — if he did not mean
to carry it further than I think he did — that there must be something
besides the animus revertendi — there must be some i^ossession, control,
something practicable, something useful, something entitled to be pro-
tected— tiiat annexes itself to the animal. In other words, the animus
revertendi is in itself only an evidence of possession. It is evidence or
an element, as you please to call it, in this complex qitestion of fact and
law, of what is possession. The animus revertendi, in the case of an
animal, of this description, is one element — not enough of itself I
admit— but a strong element, when it is connected with the recognized
control and the recoguized usefulness. Now what is that? It is, in the
first i)lace, as I have said, a possession that the nature of the property —
the nature of the animal (to come to this particular case), admits of. It
varies with every different animal. It is different with tlie Bee, with
the Pigeon, with the Deer, with the Swan, and with the Seal; because
what is a useful possession with one is tlie destruction of the other.
And it varies in the next ])lace, with the requisites of the usefulness of
the industry, the husbandry, that makes it vahtable.
Now in the cases cited by Mr. Carter of Blades v. Higgs; Davies v.
Powell; and Morgan v. The Earl of Abergavenny — those three cases in
respect of deer tliat were cited in the opening, and which are quoted
very largely, if not entirely, in the Appendix, and some parts of the
United States' Argument. What took i)lace there? Everybody, that
knows anything of the laws of England, knows that the deer, while
ferie naturw, is not in itself property. If one buys a deer forest in Scot-
laud of 20,000 acres, the only value of it is the deer. The laud is good
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 53
for notliinj? except for tlie deer. Does Le own any particular deer that
is on it? Not one. They are liere today and ^one tomorrow. He can-
not say to liis ueigiibour,| "These deer were here last suniiner; they
were probably born on the land; they come back to me, and you must
not touch them". The law does not justify such a claim as that. When
they go on the neighbour's property, the neighbour has the same right
as he has. So far as thej^ give value to the land, they go with the realty ;
and, when one buys the soil, he gets the advantage, the privilege of the
deer frequenting it and the opportunity to take them for sport or profit.
But when we come to these cases, we hud that deer may become
property under the same law of England which I have referred to,
under which they were not property. Presently we find they are dis-
trainable for rent; that is to say, they are specific personal property
which may be taken by the landlord by distress for his rent; that they
go to the executor and do not go to the heir on the decease of the owner.
How comes that to pass*? What is the distinction upon which the same
Court renders an entirely different judgment in respect of the same
animal in one case from what it gives in another? Are these deer con-
fined? In one case the range they had was 600 acres, and in the other
700 acres. They could not be caught except by hunting them, or shoot-
ing them with a ritle, at a long distance. The proprietor of the land
can no more put his hand upon them than anybody else. They flee
from his approach, and it is only by running them down in an open
forest that he could get hold of them.
Then what did make them property? The animus revertendi alone,
say my learned friends, would not do it. I agree to that. It would not
have done it in the case of the deer forest in Scotland. Then, what did
make them property? Solely and only the fact that the proprietor had
established a husbandry; that they were no longer objects of sport,
which assumes that they are /6T«? nafurcv to begin with, — the object of
hunting and shooting, — no longer that, but they w^ere made the basis
of an actual industry and husbandry, by which their produce was taken
by selective killing and sent to the market. Well, but what did he do?
He did not shut them up; he did not confine them. He did what the
nature of the animal rendered possible, and what the necessity of the
industry rendered desirable. That is what he did ; and forthwith, under
that same intelligent and discriminating law, the animal that was yes-
terday ferw naturce is to-day the subject of jjroperty, and is personal
property with all its incidents, going ito the personal representative at
death, distrainable for rent, and the subject of an action if anybody
interfered with it.
Now nothing- can be plainer, as I respectfully submit, to a mind
accustomed not only to deal with legal principles, but to apply them
to the vicissitudes and emergencies of human affairs, than that the sub-
stantial distinction which renders those wild animals iiroperty which
were not property before, and may cease to be property afterwards, is
that they are taken into possession in connection with the perpetuation
of the animus revertendi that brings them back to the spot, taken into
such possession as they adnnt of, and such possession as is necessary.
There is the principle. There is no artificial distinction that depends on
their means of locomotion or the character of their covering — whether
it is fur or feather, whother they fly, run, or swim, whether their ab-
sences are periodic or occasional, longer or shorter, regular or irregular.
It is the operation of the ])rincii)le under which they are subjected to
the control which they admit of and are made the basis of a valuable
54 ORAL ARGUMENT OP HON. EDWARD J. PHELPS.
iiidnstiy. And in eonncetion witli tliaf, becanso that standinf? alone
would not be enough, that is to say, would not apply when the animal
was temporarily gone, we have this constant and certain aniiuHs rever-
tendi. 1 cannot found an industry upon wild aninals upon my land
that would make them property if they go away according to their
nature and do not come back again. JVly husbandry is not enough,
because when the animals are gone they leave us the animus revertendi.
On the other hand, if they merely came back by habit and I did nothing
to them and made nothing out of them, that would not create a prop-
erty, I must put the two together. I must combine possession and the
animus revertendi, and combine it for a useful purpose, and combine it
with all the custody that is necessary and all the habits of the animal
admit of, whatever they are.
But, says my learned friend, you must create the animus revertendi.
With great respect, what does he mean by that? Create the animus
revertendi in an animal? — create an instinct which, so far as the word
may be applied to an animal below the scale of humanity, is a mental
quality? Suppose you could, how does that differ from the animus
revertendi which you perpetuate? Can that make a difference? It may
exist before your industry begins, and your industry may be based
upon it, but I cannot conceive how it can be created.
We have the speculations of a number of learned gentlemen gathered
together by the British Commissioners on the question which 1 was
discussing this morning — what would become of these seals if they
were turned away from the islands in which they have had their home
ever since the Creator first looked upon his work? No man can answer
that question. Any man can speculate about it with more or less wis-
dom. They assemble the speculations of several gentlemen", some of
whom admit tliey have spoken without much thinking, that if you cease
to care for the seals, which you do if you allow them to be disturbed or
too much interfered with, they will go away and notcome back — they will
go to the Commander Islands or to the Kurile Islands, where the other
seals go, or go somewhere else. As I said this morning, I do not under-
take to dispute that, because I can no more dispute it than they can
assert it. It is pure conjecture, and it may be true for aught I know.
Assume it to be true as these learned naturalists or some of them
believe. We are and have been preserving that animus revertendi by the
care aud the protection they receive there. "What do you do to them,"
says my learned friend the Attorney General. "You only kill them."
Only kill them ! Do not we preserve the whole race from extermina-
tion? The cruisers that surround the Islands, the agents and emplo3M3S
who are on the Islands, and the strict rules that are enforced there in so
many particulars against their disturbance, and against their injury —
does not that protect them? If the seals were capable of having a
case stated for the opinion of my learned friend, whether in as nnich as
they are killed there more or less every year, they had not better leave
the Pribilof Islands, and find some other place, is there any doubt
about the advice they would receive? Their lives are not safe any-
where; they are surrounded by all sorts of enemies, human and other-
wise; to preserve all their lives is impossible. Would not they be
advised that there is no other spot in the world where they would be
as well preserved, where their reproduction would be kept so safe, and
where so many of them would be spared as there? That a ])art of
their life goes to the service of humanity is a proposition that is trap
of all created things. There is no place for any creature to go and be
safe. There is no life, part of which does not go to the public service.
ORAL ARGUMENT OF HON. EUWARt) J. fllELPS. 55
There is no animal on the earth that has not to contribnte, after liis
measure and accordiiij]^ to his place, to the requirements of niankindi
That is the law of nature. It would not be for their benefit to attempt
to preserve every one; but they are protected from extermination ; they
are protected from cruelty, from wronj?, and the proof of that is fouiul
in the fact that they do come back year after year, for these hundred
years, since mankind took possession of that Island, and have^ from
year to year, all that time taken the product of this herd. What bet^
ter evidence do you want than that? They tell us they could defeat it
so easily. They bring these philosophers to inform us that if we failed
in these duties away would go these animals. Who then creates the
animus remrtendif I do not say that we created it in the first place^
before the footsteps of man had reached those Islands; but who has
perpetuated it so that instead of forsaking the Islands, as these gen-
tlemen tell us they could be so easily induced to do, they have stayed
there from that time to this.
"But they are free-swimming animals", says Sir Charles Eussell.
Who invented that term, and on what authority does it stand? What
does it mean? Those are questions that I think it would puzzle my
learned friend to answer. lie uses that as though it constituted an
impregnable position. "Free-swimming!" Is there any animal that
swims that is not a free swimmer'? And what is the difference between
a free swimming and a free fiying animal and a free running animal, or
a free staying animal? There are oysters, that are the subject of
property, wild. There are bees; there are deer; there are swans, and
there are pigeons. All but the oysters have some mode of locomotion
in some element.
Then they say, you are making grouse and pheasants and partridges
property. These animals, these seals, are like the pheasants and the
grouse that are raised upon English estates, that is to say protected
there, fed there and used. There is an analogy that it is important to
observe. AVell, let us see. There you have a class of animals who
have, to a certain extent, the animus revertendi, and they are not prop-
erty. No suggestion can better illustrate our i^roposition, which is
that the property depends upon the conditions and the use.
My learned friend raises pheasants upon his land, as his neighbours
do. They are hatched there; they are sheltered to some extent; they
are protected, and they go away, the nature of the animal. They
go away on somebody else's land, and that somebody else may shoot
them; and all my learned friend gets out of raising them is the privi-
lege of shooting them on his land at such times as the law allows
them to be taken, and in such a manner as the law allows. Because
there is no animiis revertendi that is capable of apprehension, of proof,
of being distinguished. All his neighbours have pheasants over the
County in which he lives; they are alike; you cannot tell them apart.
That some of them come back is highly probable; that many do not
come back is equally certain, and that many pheasants from other
estates come to him is also equally certain.
Now applying the principle of law which I have been trying to state
to these animals, what is the difficulty that we encounter? The first
thing is that there is no certainty and no proof of this animus revertendi.
The animus revertendi exists in his neighbour's pheasants to return
to him, and in Ms to return to them^ and they scatter about. The
attempt to separate those i)heasants and say that my learned friend's
were his, and Mr. A's his, and Mr. B's his, all over an English County,
is absolutely imx^ossible and equally unjust and unnecessary. If his
56 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
pheasants go away others come to him. If his neighbour kills some
that were hatched on his premises, he kills others that were hatched
on his neighbour's premises.
Now let me state a different case. I have a friend not far from my
residence who has undertaken to import into America, where the bird
does not belong and is not indigenous, English pheasants. He has sent
abroad and obtained the eggs of the pheasants from England and on
his estate has caused them to be bred. He protects them in the winter
without which protection they would i)erish in that climate. He feeds
them and looks after them and nobody else has any English pheasants.
It has an animus revertendi of course, because if it did not go back
it would perish. ISTow by the law of England if those pheasants are
his property when on his land, every one of them being recognizable
and capable of proof, brought there by him as well as protected, if
when they are on my land and with my eyes open to that fact I under-
take to kill one, I should like to know by the same law of England if
I am not responsible for it?
No case can be plainer. Why is the same pheasant under the same
law property on that man's estate and not property on the estate of
my learned friend ? Simply because the conditions are changed, because
in the one case he has a wild bird which without possibility of identifi-
cation goes and comes as the other birds go and come.
Lord Hannen. — As you speak of English law; I cannot admit that
if you give a foreign bird its freedom in your country, you would be
entitled to say it is yours wherever it flew, I cannot admit that that is
English law. Take a marked exami)]e of that. Those who first intro-
duced the Himalaya jiheasant and the golden pheasant, they turned
them out and gave them their freedom, they are subject to the general
law applicable to wild pheasants.
Mr. Phelps. — But if the bird, in the exercise of its own habits, goes
abroad and returns again, under the circumstances, it has seemed to
me — perhaps because I am more fjimiliar with the law of Vermont than
with that of England, that the Court which administered there what
we sui)pose to be the law of England, would hold, in the case of this
foreign bird that went abroad temporarily and with a constant animus
revertendi to its owner, that there was a right of property that could be
protected against wanton destruction. Take it that the estate is on the
borders of Lake Ohamplain, which runs up to Canada, and is public
water on which Canadians have a right, under the existing Treaties
between the countries. Suppose they comiB down on Lake Chamijlain
for the purpose of shooting those birds in the breeding time whenever
they cross the owner's line, and exterminating the race, is there no jiro-
tection? I must defer to His Lordship's tar better knowledge of the
law of England, but I may be permitted to say, under the law of Ver-
mont they would be most certainly protected. But the illustration, of
course, depends on the view that is taken of that particular case. It is
but an illustration, and I do not care at all to insist upon it.
There is another difference. The law of England in respect to this
game has become established. It is assumed by courts of justice as
being the established law, and they would spend no time in discussing
what the law would or ought to be if it was to be made over anew in a
new case. But even in that case they would probabl^^ come to the
same conclusion in respect to game being the subject of property
that they have now, because it would stand upon the same reasons,
and the same course of reasoning would conduct to the same result.
You have here animals that are quite sui generis, animals that return
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 57
because they must return — to wliom this place is necessary, who derive
no protection or sustenance or advantage from anybody else in the
world, who are made the subject of this natural industry and hus-
bandry of great value, and the question is not on the right of i)roperty,
but on the right of extermination — not as against the mere individual
owner, but as against the Government to which they belong.
2*^ow a word or two more and I shall be able to leave this subject.
As a concluding remark on this branch of the case, dealing with it thus
far upon purely municipal law, is not this the true and sound proposi-
tion; that inasmuch as there is a principle of law which includes many
animals of different varieties under the term property, and as that
principle of law undoubtedly does exclude otiier animals such as we
have been already si^eaking of as game, which might be property, and
since here is a new animal, that is to say, new in this inquiry, and the
question is into which class does it fall — within the class of those
animals in which property is maintained, or within those in which
property is not maintained, that the criterion is to ascertain what is
the principle and what are the circumstances that mark the distinction
between the two classes of animals. Is not tiiat the just criterion?
These seals cannot be put in both categories. They cannot be put into
the category of the bees and the deer and swans and pigeons, and at the
same time be in the category of the pheasants and the partridges and
the rabbits and English stags. It is the same law that includes one
set of animals on the one side and excludes the other. On which side
of the line do they fall? If it had ever been determined by authority
you could repose upon that. It has not. Is there any other way than
to see whether the facts in regard to the seals assimilate them to the
animals that are property, or assimilate them to the other. It is not
an extension of the law to include them. It is simply an application
of the principles of the law.
In the case of the "Atalanta " in 6 Robinson's Eeports, which as the
Court are aware are the reports of the decisions of that great English
Judge, Lord Stowell, sitting in Admiralty, there are a few useful words,
as it seems to me, bearing upon this question of the operation of ])Tm-
ciples of law upon new cases.
On page 458, Lord Stowell says :
Under the authority of that decision. . . .
he is speaking of some Admiralty case; the case itself is not material.
It is his language I quote this for. The question was whether a ship
was forfeited by a certain business that it had been engaged in, and it
had been argned that the shij) was not forfeited, only the property —
I am warranted to hold that it is an act which will affect the vehicle without any
fear of incurring the imputation which is souietinies strangely cast upon this Court
that it is guilty of iuterj)olation in the law of nations. If the Court took upon itself
to assume principles in themselves novel, it might justly incur such an imputation;
but to apply establislied principles to new cases cannot surely be so considered.
All law is resolvable into general principles. The cases which may arise under new
combinations of circumstances, leading to an extended application of principles
ancient and re<;ognised by just corollary, may be infinite; but so long as tlie conti-
nuity of the original and established principle is preserved pure and unbroken, tlie
practice is not new, nor is it justly chargeable with being an innovation on the
ancient law, wlieu in fact the Court does nothing more than apply old principles to
new circumstances. If, therefore, the decision the Court has to pronounce in this
case stood ujjou principle alone, I should feel no scruples in resting it upon the just
and fair application of the ancient law.
That is the language of that great Judge when he was sought to be
alarmed by the idea that, in dealing with a novel question, he was
extending the law. It is tlie business of Courts of Justice to inform
58 ORAL ARGUMENT OF HON. EDWARD J. PPIELPS.
themselves of principles and to extend tlieni to new cases wlierc it is
necessary,
Tlie case of the "Adonis" is anotlier decision of the same Jndge.
This is in Volnnie 5 of 0. Robinsoji's Ifeports; and perhaps this deci-
sion is more directly appropriate on the point I was discnssing this
morning, how the law of nations is to be collected in a case where it is
not established.
• "This is :i case," says ho, "in which I have taken some short time to deliberate,
being imwillinn' to press with any dei^rce of uniuH-cssary severity the effect of pre-
sumption against tliis class of cases; more especially because it is one in which the
princij)les of law, though un(iue8tional)ly built n]i()U the just rights of war, must
be allowed to operate with some hardship on neutral conimcrce and b(;cause it is a
class of cases on which the Court has little authority to resort to, but has to collect
the law of nations from some such sources as reason, 8upi)orted in some slight degree
by the practice of nations, may appear to jioiut out."
I read from page 159.
There is a passage or two that I may read from the United States
Argument, i)age ITLJ, for convenience. One is quoted from Philliniore's
Treatise on International Law.
Analogy has great influence in the decision of international as well as municipal
tribunals; tiiat is to say, the application of the principle of a rule which has been
adopted in certain former cases, to govern others of a similar character as yet unde-
termined.
Then from Bowyer's Readings, page 88, is cited this line.
Analogy is the instrument of the progress and development of the law.
In determining this question there is another consideration which
seems to me to be altogether conclusive, in addition to all that I have
referred to, as pointing out which class of animals the seal under the
circumstances belongs to. There is a reason for all intelligent law. It
is founded upon the necessities of human att'airs, especially in regard to
property. Now, with regard to this English game is there any neces-
sity at all? I have shown that it is impossible, that it is altogether
unfair to undertake to make the specific game that arises on one estate
property against everybody else, because it gets as much from other
estates as it does from the one that claims it, on which it is born.
There is no extermination of the race of i)heasants going to take place
if such is not the law, and, therefore those wise considerations of the
common law of England in respect to game have been found right.
How is it with the seals'? If we have not the right of property the
animal perishes otf the earth. It is of no use to talk about treaties
that we may make. That is a matter not of right, nor of law. If we
have no property in this industry, this herd, this business, — call it what
you will — that we are in possession of, then the animal is gone, as in
every other instance his si)ecies, substantially speaking, is gone. Some
small remnant on one of those southern islands has been preserved at
a late date — by what? By the institution of this very claim and the
maintenance of it; but with that insignificant exception they are all
gone from the face of the earth. As pointed out by Mr. Carter in his
opening, the only means by which they can be preserved for the use
of America, for the use of any country, for the use of anybody, is by
sustaining the right which we claim.
My learned friend says, Mr. Carter has dealt with the reasons. Well,
as I said this morning in respect to showing that a thing was right, is it
any objection to a rule of law that it is shown to be necessary to the
existence of the subject of it? If there is not sufficient in and of itself
as a matter of positive law to give the principle effect and efficacy, has
ORAL ARGUMENT OF HON. EDWARD J. PHELrS. 59
that consideration no Aveiglit in determining the question I have been
discussing, on whicli side of the line these animals fall? When it is
made ai)parent that not only their usefuhiess to mankind but their
existence on the earth depend upon the right of the nation in posses-
sion of them to preserve them, and as they have preserved them — they
and their predecessors — for one hundred years, if there is any doubt
upon the plain principles of municipal law — when you come to weigh
in the balance the reasons on which the law is founded, they settle the
question.
Sir, suppose that the Province of Alaska was a country by itself, poor
and barren, and to a certain extent desolate. Suppose instead of being
a province of a great nation, which does not need it, it was a country
by itself. It would be larger then than many of the independent states
in the world; and suppose, what is almost true, if it is not quite true,
that the seal industry is all they liave, all the provision the Almighty
made for the existence of the inhabitants, all the food, the raiment,
the commerce, the business, the means to prevent their starving to
death; would the law be any different that applied to this case then,
than it is when ai)plied to the case of the United States? Would the
principle of law vary in that case? Could any intelligent man say,
" why, as they have nothing else, they own these animals; but if they
had gold and silver and abundant revenue they would not own them?"
Now, pressed by the difticulty which my friends who have prepared
this case on the part of Great Britain felt themselves embarrassed by,
they have made an effort to break in, in some small degree, upon the
facts on which we base this right of possession. They say that all the
seals do not come back to the Pribilof Islands. The great bulk of
them do; but there are some few that travel over to the Commander
Islands.
Before proceeding to demonstrate, as I can out of this evidence, that
there is not one word of truth in that suggestion, nor one word of evi-
dence to support it that does not perish when you expose it to the
light — I should like to inquire what difference it would make if it was
true? Suppose we were to concede that while the bulk of this army
comes back with an extraordinary certainty and pertinacity, yet a few
individuals scatter away and wander across the sea and may bring uj)
on the Commander Islands, the only other place besides Japan in the
Korthern Pacific where any other seals have been known to exist. How
far does that affect the case? I have said that our interest did not
depend upon the si)ecific ownership of every seal, whether each one came
back. It depends upon the general interest in the great herd and the
industry that is founded upon it.
If it were conceded that some few of these seals did wander away,
and find their way to the Commander Islands, is that a distinction
which prevents the application of the general principles of law? The
statement of that question carries the answer to it. It is a question
that does not survive a distinct statement. Why then shall I take the
pains, with the permission of the Tribunal, to show that there is no
foundation for it? Because we believe that it is better for the Govern-
ment of the United States to be right than to succeed; because I sliall
not consent that any assertion that has been deliberately made by the
United States in this case upon any of these questions shall turn out
to be one in which the Government was wrong. This case has not
only been ably prepared by my friend who has had that subject in
charge. — General Foster; it has in my judgment been conscientiously
prepared. There is no assertion that has been made in this case,
60 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
whether important or unimportant, tliat we do not claim completely to
have snstainetl. There is no attempted contradiction of our assertion
of any fact that we do not claim is completely overthrown by the evi-
dence; and therefore I propose to look into this evidence, from which
bits and scraps have been referred to here and there, as tending- to show
some comminglino- of these seals, under the idea that perhaps if that
were made out the force of the case, arising from their attachment, their
appurtenance to this land, would be to some small extent weakened.
I may have time for the few moments before the adjournment to illus-
trate on the null) one or two things.
There, Sir, are the Pribilof Islands (indicating on map), as you have
perceived; and there are the Commander Islands (indicating), 800
miles away. Here is the route of the Alaskan seals (indicating) going
from the islands in the fall, down through the Aleutian passes (indicat-
ing), across where the blue line indicates (indicating), until they come
opposite to San Francisco. I do not know that there is any evidence
that they go much lower down. I do not think they do. They then
return gradually along in the spring, following the blue line (indicating)
around until in June or July they come back again. That is the migra-
tion route, in respect to which I shall read something from some of the
naturalists ; the regular migration route of these animals excepting only
that the old bulls, as they are called, do not make this circuit. They
remain, I believe, up north as far as Sitka. The black line indicates
the route of the old bulls (indicating on map). They are seldom found,
as the evidence is, south of Sitka. But there is the route of the others
(indicating).
From the Commander Islands, there is what is shown by. the evi-
dence, and I believe there is no dispute about it — the British Commis-
sioners admit that — to be the migration route of the seals from the
Commander Islands (indicating on map); far away from that of the
American seals, and they return, I supi^ose, iu the same general course
(indicating). There is uot much evidence about it. But you see from
the geographical construction, that there is not an opportunity, prob-
ably, for them to go elsewhere; but at any rate, there is the migration
route (indicating).
Now, what is the suggestion — and it is nothing more than a sugges-
tion, as we shall see when we come to analyze this evidence? It is that
some of the American seals get out of their migratory route, at some
time or other, and find their way across here (indicating on map), for
the .purpose of getting mixed up with another herd. What for, upon
what motive, upon what inducement that is applicable to such animals,
or to any animals, nobody even suggests.
Now, here is shown upon the map, indicated between those red lines
(indicating) what is called the ISorth Pacific drift current. That sets
over from the Japan coast (indicating). It is described by some wit-
nesses, whose testimony I shall refer to, as a warmer current, full of
food fish, which naturally attracts the seal, both from its temperature
and especially from its food. And you see when they come down far
enough to strike this current (indicating) — it is not very far below the
Aleutian Islands that the current passes — they go with the current of
food, and on around here (indicating) until the necessities of nature
require them to go away to the north. So that in addition to the reg-
ular migratory route, which, as we shall see from the naturalists, is one
that the animals never depart from, nor any animals of this class — in
addition to that, they strike into the North Pacific drift current, which
is the i)lace for their food and the jilace which at that time of the year,
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 61
the winter, gives tliem the mildness which they come away to obtain,
on account of the cold and the ice that surrounds these islands in the
winter.
The President. — Does that drift current run all the year round, or
only in certain seasons?
Senator Morgan.— It runs all the year.
Mr. Phelps. — I think, Sir, it runs all the year round.
Senator Morgan. — It is like the Gulf Stream in the Atlantic Ocean.
Mr. Carter. — It is as constant as the Gulf Stream in the Atlantic.
Mr. Phelps. — Yes; T suppose it is.
Now then, the suggestion is that under those circumstances, at some
time, — and I believe their evidence, so far as you may dignify it with
the name of evidence tends to show that it is in the fall when they
come away from here (indicating) — some of these seals find their way
over here (indicating), where they would encounter the migration of
the Commander seals south. It is not contended that the Commander
Island migration is any later in the year than the migration from
the Pribilof Islands. One would suppose it is about the same time.
Whether the evidence states I do not remember. But under those
circumstances, after this migration has begun in the fall, the sugges-
tion is that they find their way over into this space here (indicating),
so that they can be seen to some extent to have been mingled with the
seals on the Commander Islands.
The President. — Perhaps the commingling would come from the
other side, from the Commander Islands seals coming into this curreut?
Mr. Phelps. — Yes; I was about to say that upon any evidence or
pretence of evidence, it might as well come from the Commander seals
as from these. That is left altogether in doubt. Now, that is the
theory suggested.
Senator Morgan. — If you will allow me to inquire, does not the evi-
dence in this case show that this great ocean current of warm water
that you speak of divides out to the southwest of the Aleutian group,
one branch of it going up into the Pichring Sea, and keeping that sea
open, and the other passing around upon the coast of British Columbia
and the United States'?
Mr. Phelps. — That suggestion, Sir, is true, and the maps show it;
but the evidence in this case does not show it. Tlierefore I desire that
it should not be put down upon this map, because it is not proved by
the evidence. But it is laid down on the public maps, and I have no
doubt that the division of the current that you suggest is true.
Senator Morgan. — Are not the public maps evidence?
Mr. Phelps. — I do not know but they are.
Lord Hannen. — The whole course of the movements of the ocean
have been laid down upon charts, and it would be very easy to find one
which would show the whole course.
Mr, Phelps. — There is an atlas that we will bring into court that
does show it.
Senator Morgan: — If you will allow me to suggest in that connec-
tion, I think it is stated in this evidence, perhaps without any dissent,
that the latest arrivals at the Pribilof Islands are the pup seals.
Mr. Phelps. — Yes.
Senator Morgan. — Is not that accounted for by the fact that having
very imperfect or short coats of hair or fur, they naturally take a longer
route to the south, in order to get to a warmer climate, aiul therefore
they cannot arrive at the seal islands at the same time that the old
males, the holluschickie, or the females would : that they have a longer
detour necessarily because of the demands of their nature?
62 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — It is a very natural and probable conjecture. I am
not aware that there is any evidence in tlie case tliat establishes it. It
would seem natural that it should be so, and I do not know that there
is any other reason given in the evidence wliy this portion of the herd
are later in arriving. At the same time, I have no right to say that the
evidence proves that.
And now, having indicated what the suggestion is that is to be
encountered, before alluding to any of the evidence or theories tlnit
are said to supjiort it, I will, with the i)ermission of the Tribunal, defer
entering uixni that evidence at this late moment.
[The Tribunal then adjourned until Tuesday, June 27, 1893, at 11.30
o'clock A. M.]
FORTY-FIFTH DAY, JUNE 27™, 1893.
Mr. Phelps. — On Friday last, Sir, as the Tribunal will remember,
in entering npon the assertion in resi)ect to tlie commingling of the
two herds of seals, belonging resijectively to the Pribilof and Com-
mander Islands, 1 had begun to i)oint out on tlie map the routes which
they followed; and. in order that wliatl am about to say may be intel-
ligible, perhaps you will permit me, for a moment, to refer again to the
map. (Kefers to the routes and distances on the map.)
Now, what is meant by the term "intermingling"! If it means only
the casual intermingling of the seals in the open sea to some small
extent, then it is manifestly of no importance to the case. If the seals,
on leaving the Pribilof Islands, make their circuit and return to the
Pribilof Islands again, it is, of course, utterly immaterial whether a
few of them do or do not in that interval pass far enough to the west-
ward, or a few of tlie Conimander seals i)ass far enough to the east-
ward so that they are brought togetlier, because they separate again.
How pre])osterous it is, I may say in passing, because no motive, — no
possible inducement can exist why they should turn about and go
against the drift current, forsakiug their ordinary migratory route, a
long distance to the west or a long distance to the east for the mere
l)leasure of encountering in the water some scattered seals from the
other herd, and then have to make their way back again; — but it is not
worth while to stop to refute it because it is of no consequence.
If on the other hand it is meant to be asserted that any part of the
Pribilof Islands seals not only go out into the western sea where they
encounter seals from the otlier side, but go to the Commander Islands
and join themselves to anotlier herd, breed on the Commander Islands
and forsake the Pribilof^or if it appeared tliat any portion of the Com-
mander seals forsake the herd which they belong to, and come across
and join themselves to the Pribilof Island seals, then it would be a
fact the materiality of which would of course depend upon its frequency
and its extent.
There is one consideration which is perfectly conclusive against that
theory before you enter upon any evidence whatever, except the evi-
dence afforded by the map'. If it were true, — if it is true to-day, that
these seals intermingle to any a])preciable extent — tlien there is every
reason to supjxjse that they have always done so. There is no reason
why that should occur now any more than always. If it had always
occurred, tliese two species would long ago have been entirely undis-
tinguishable. The cross breeding that would have taken ])lace if the
seals went indifferently to any extent at all to the Islands that belonged
to other herds, would long ago have effaced the dilference which it is
still conceded exists between these seals. They would be no longer dis-
tinguishable. It would not be true as I shall have occasion to show
from the evidence of the Furriers — every one of them on both sides of
the case — tliat there is a marked and i^lain dilference between the
skins which enables an expert to distinguish them from each other.
63
64 ORAL ARGUMENT OF HON. EDWARD J. PHFLPS.
It could not be any longer true if for centuries — or numberless centu-
ries— we do not know how long — interbreeding had beea taking place
between the seals.
Let us look for a moment at this question as it stood upon the testi-
mony, up to the lime of the tiling of the British Counter Case, The
American Commissioners speak of tliis, and as I shall not read very
much I may be excused for reading a few words from wiiat they say at
page 323 of the United States Case.
3. The fur-seals of the Pribilof Islands do not mix with those of the Commander
and Kurile Islands at any time of the year. In snmmerthe two herds remain entirely
distinct, separated by a water interval of several hnndred miles; and in their winter
migrations those from the Pribilof Islands follow the American coast in a south-
easterly direction, while those from the Commander and Knrile Islands follow the
Siberian and Japan coast in a southwesterly direction, the two herds being separated
in winter by a water interval of several thousand miles. This regularity in the
movements of the different herds is in obedience to the well-known law tliat m'ujra-
tori/ aiiimals follow definite routes in migration: and return year after year to the same
places to breed. Were it not for this law there would be no such thing as stability
of species, for interbreeding and existence under diverse physiographic conditions
woiTld destroy all si)ecific characters.
The pelage of the Pribilof fur-seals differ so markedly from that of the Commander
Islands fur-seals that the two are readily distinguished by experts, and have very
different values, the former commanding much higher prices than the latter at the
regular London sales.
Dr. Allen's report, in the first volume of the Appendix to the Case at
page 4(J6, is to the same effect. It is a very able and interesting article.
He says :
The Commander Islands herd is evidently distinct and separate from the Pribilof
Islands herd. Its home is the Commander group of islands on the western side of
Behriug sea, and its line of migration is westward and southward along the Asiatic
coast.
To suppose that the two herds mingle, and that the same animal may at one time
be a member of one herd, and at another time of the other, is contrary to what is
known of the habits of migrating animals in general. Besides while the two herds
are classified by naturalists as belonging to one and the same species, namely, the Cal-
lorliinus nrsinus, they yet present slight physical differences, as in the shape of the
body and in the character of the hair and fur, as regards both color and texture,
sufficient not only to enable experts in the fur trade to recognize to which herd a
given skin belongs, but sufficient to aff'ect its commercial value. As yet, expert
naturalists have been unable to make a direct comparison of the two animals, but
the differences alleged by furriers, as distinguishing the representatives of the two
herds, point to their being separable as sni)species, in other words, as well marked
geographic phases, and thus necessarily distinct in habitat and migration.
Then we go into considerable evidence wliich I shall not feel justified
in detaining the Tribunal to read; but we have examined six British
furriers in London, twelve American- scientists aside from the gentle-
men from whom I read just now, and one witness, Mr. Morgan, who
was a superintendent on the Islands for a long time, and a ship
master in those regions for a very long time. The evidence will be
found on pages 92 to 98 of the Appendix to the American Argument,
in which the testimony is collated. These witnesses state the difference
between the furs — the animals and the skin; and they state the differ-
ences in the i)rice, and they all state that anybody acquainted with the
trade can readily and easily distinguish them.
Now one further citation, and that is what the British Commissioners
have said about it. I shall not be understood, I trust, let me say once
for all, as referring to the British Commissioners Eeport as evidence in
respect to any question of fact that is in dispute, except so far as I
gather from it the admission of the other side. I refer to it as I refer
to the statements of a party, and I shall liave something to say about
that by and by. It is enough to say now that I refer to this book as
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 65
the statement of the adverse party, and where it contains any admission
that is favourable to us, I have the right to use it as such. Where it
contains any other statement, I shall have an opportunity to show before
I get through, or rather all the way along whenever I deal with questions
of fact, just how far it is reliable as evidence. If the case had remained
where it remained at the beginning of this Counter Case, nothing more
would need to have been added, because the British Commissioners, as
you will see, admit the whole point for which 1 have been contending?,
and coincide generally with the American claim, and with the great
body of evidence.
They say at section 197 page 32:
Respecting the migration-range of the fur-seals which resort to the Commander
Islands, to Robben Ishxnd, and in small numbers to several places in the Kurile Islands,
as more fully noted in subsequent pages, comparatively little has been recorded ; but
the result of inquiries made in various directions, when brought together, are suffi-
cient to enable its general character and the area which it covers to be outlined.
The deficiency in intoriiiation for the Asiatic coasts depends on the fact that pelagic
sealing, as understood on the coast of America, is there xiractically unknown, while
the people inhabiting the coast and its adjacent islands do not, like the Indians and
Aleuts of the opposite side of the North Pacific, naturally venture far to sea for
hunting purposes.
ivTow I call ijarticnlar attention to this:
The facts already cited in connection with the migration of the seals on the east
side of the Pacific, show that these animals enter and leave Bchriug Sea almost
entirely by the eastern pusses through the Aleutian chain, and that only under excep-
tional circumstances, and under stress of weather, are some young seals, while on
their way south, driven as far to the west as Atka Island. No large bodies of migrating
seals are known to pass near Attn Island, the westernmost of the Aleutians, and no
young seals have ever within memory been seen there. These circumstances with
others which it is not necessary to detail here, are sufficient to demonstrate that the
main migration- routes of the seals frequenting the Commander Islands do not touch
the Aleutian chain, and there is every reason to believe that although the seals become
more or less commingled in Behring Sea during the summer, the migration-routes of
the two sides of the North Pacific are essentially distinct.
I refer now to section 453 of this document on page 80:
The inquiries and observations now made, however, enable it to be shown that the
fur-seals of the two sides of the North Pacific belong in the main to practically dis-
tinct migration-tracts, both of which are elsewhere traced out and described, and it
is believed that while to a certain extent transfers of individual seals or of small
groups occur, probably every year, between the Pribilof and Commander tribes, that
this is exceptional rather than uoruial. It is not believed that any voluntary or
systematic movement of fur-seals takes place from one group of breeding islands to
the other, but it is probable that a continued harassing of the seals upon one group
might result in a course of years in a corresponding gradual accession to the other
group.
In what I have further to say on this subject, I hope, Sir, that you
will bear this language in mind. I will also read 454:
There is uo evidence whatever to show that any considerable branch of the seal tribe
which has its winter home off the coast of British (Columbia resorts in summer to the
Commander Islands, whether voluntarily or led thither in pursuit of food-fishes, and
inquiries along the Aleutian chain show that no regular migration route follows its
direction, whether to the north or south of the islands. It is certain that the young
seals in going southward from the Pribilof Islands only rarely get drifted as far to
the westward as the 172tu1 meridian of west longitude, while Attn Island, on tlie 173rd
meridian east, is never visited by young seals, and therefore lies between the regular
autumn migration-routes of the seals going from the Pribylof and Comnumder Islands
respectively.
If any difference between that and the i)roposition in regard to these
seals, which is stated by the American Commissioners, by 1)^ Allen,
and by a considerable number of witnesses 1 shall allude to hereafter,
can be i)erceived, it is a difference that is not ijerceptible to me. Never-
B a, PT XV 5
66 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
tlieless, and this is not the first instance, nor the last, in which different
statements on the same snbject and on the same point will be found in
this document, there is sonjething in section 210 that seems to bear the
other way, — that it is not easy to reconcile with that which I have been
reading-.
In section 210 it is said:
In order to arrive at as comxilete a knowledge as possible of the actual distribution
of the fur-seal in Beliring Sea, a circular was prepared, in which it was requested
that regular seal logs should be kept on the British cruizers, and, through the
kindness of the Comniauder-in-chief on the Pacific Station, communicated to their
Commanders. The work was taken up with enthusiasm by the various officers, and
niaiutaiued throughout the season. Careful observations of the same kind were also
made on our own steamer, the "Danube", and subsequently, through the courtesy
of the United States Commissioners, copies of the track-charts, and observations
made of seals by the various United States cruizers, were supplied. Information on
the same subject was also sought in various other ways, such as by inquiry from the
captains and hands of sealing-vessels met in Victoria and Vancouver, and from the
inhabitants of various places touched at during the summer.
Then section 212 page 35 :
The observations at command for 1891 practically cover jiretty thoroughly the
period of aljout two months during which seals are ordinarily taken by pelagic
hunters in Behring Sea, extending from the middle of July to the middle of Septem-
ber, and they are much more comiilete for the eastern than for the western part of
the Behring Sea.
On consideration of the material to be dealt with, it was decided that it might
be most advantageously divided into two periods of about a month each, the first
including all dates from the loth July to the 15th August, and the second those
between the 15th August and the 15th September. All the lines cruized over in the
lirst of these periods were plotted on one set of maps, and those in the second pe-
riod on another. The parts of these tracks run over during the night, and in which
seals tlierefore could not well be observed, were indicated on the maps in a differ-
ent manner from the day tracks, as far as possible; and with the assistance of the
logs, the numbers of seals seen in certain intervals were then entered along the vari-
ous routes in a graphic manner. The places in which pelagic sealers had reported
seals to be abundant or otherwise, as well as those in which sealing-vessels were
found at work by the cruizers, and other facts obtained from various soiirces, were
also indicated on the maps.
The result of all this is, if you will now have the kindness to turn to
page 150 of the British Commissioners' Eeport, that three maps are set
forth by these gentlemen. The first is immaterial to my present pur-
pose. It only indicates their own cruise; in the second and third maps
you will find indicated, in red colour, what they call the resorts and
migration routes of the fur-seals in the North Pacific. You will see
from that red colour that the resort and habitat (to use a very awkward
word) of these animals extend clear across from the American to the
Eussian side, a considerable distance to the north and south. It is
represented so that the map conveys the idea that the seals are scat-
tered all through that body of water in such a manner that, if it was
true, it would be totally impossible to assume which seal went to which
Island, or whether it made any difference to any seal which Island it
w^ent to. The third map extends from July the 15th to August the 10th.
The fourth map, which I omitted to refer to, gives the area frequented
by fur-seals from August the IGth to September the 15th 1801.
Looking at that map and looking at nothing else, it would settle the
question that there is no particular distinction and that these seals
are everywhere intermingled. Tliat is, of course, what the map was
intended to convey, and what it does convey until it is refuted. You
will remember the particularity with which it is stated by the British
Commissioners that these maps are founded upon the logs of the Brit-
ish cruisers and the American cruisers. They are not conjectural;
they are not hypothetical, nor suggestive; they are put before you as
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 67
the result of actual cruises and observations recorded in the logs by
the naval Officers of Great Britain and America, undertaken with jireat
enthusiasm by the British Ofticers, you Avill remember, and undertaken
at all events, whether with enthusiasm or not, by the American Officers.
Now, would it be credited till a reierence is had to the map that we
were fortunately able to furnish on this subject, that no one of those
cruisers ever was in a position to arrive at any such result, or to fur-
nish any information whatever on the subject ? That these maps with
their apparently conclusive results as to the locality of these seals,
stated to be founded upon observation of the very best official charac-
ter by gentlemen whose qualitications are unquestionable and whose
character is above dispute, had no foundation whatever? That there
were no such cruises and no such observations'? I shall ask your atten-
tion to Maps N"* 1, 2 and 3, in the Portfolio of the American Counter
Case; N" 1 sliows the cruises of the American vessels, six in number,
from July the loth to August the 15th. You will see how far to the
west they went. You will see that they never entered the waters that
are concerned by this encjuiry. They went to no such place. They not
only made no such observations and no such record as would aftbrd a
foundation for the British Commissioners' maps, but they never went
where they could have made any observations or have known anything
upon the subject.
If you will, now kindly look at Map N" 2 of the same Portfolio, you
will find the logs of the British Vessels for the same period of time.
These are the gentlemen who entered into the matter with great
enthusiasm. I have no doubt they did, as far as they went; and you will
see that not one of them was much west of the 174th degree of longi-
tude, between that and 175'^, from the Yakutat Pass up to St. Law-
rence Island, and, of course, they could not have made any such
observations as to the locality of the seals beyond that, as these maps
pretend.
Then, by referring to the third Chart, you will see that the logs and
cruises of the two Naval Squadrons, the American and the British,
cover the second period and combine the two in one map. For the first
period, they are given in separate maps; for the second period, they
are given in the same ma]), and it gives the courses of six United
States vessels and four British vessels. You will see in that chart that
they run across once and back again, and on this map, are laid down
the seals they saw, without attempting to discriminate between the
fur and the hair seals which frequented that region. You will see,
from the log, there are almost none at all. The first Chart shows that
the ships never were in a place where they could have obtained evi-
dence in support of the other map. The second shows that they did
once or twice run across there, and, when they did, they did not see any
seals. So that their evidence was exactly the other way.
Now this is exposed in the Counter Case of the United States; and
what has the British Government to say about it"? Nothing whatever.
In the British Counter Case, it is said in substance that the informa-
tion referred to seems not to support the map, or some words to that
efiect. But they neither claim, what of course, no man could claim,
that their map derives any support from these charts, nor do they otter
any explanation how it came to jjass that they were led to construct
these elaborate maps, citing no other authority for them than the
observation of shii)s that either never were there at all, or, when they
were there, their observations were directly the other way. When this
was pointed out in the American Counter Case, when it was shown
that the foundation for these maps in the British Commissioners Keport
68 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
had utterly perished; that they were sustained up to that time by no
evidence whatever, we then have given us a body of what is called evi-
dence of a totally different kind takeu in 1892, which I shall allude to
in the proper order; I am speaking now of this case as it stood up to
the time of the filing of the British Counter Case. After stating' what
is claimed by the United States, that document goes on to say:
It is then assumed that the ouly data were those derived from logs of cruizers, and
those of the British cruizers are reproduced in the form of Charts appended to the
United States Counter-Case, togetlier with the tracks of United States cruizers m
1892.
In reply to these contentions, it may be stated the distribution of seiils in Behring
Sea in 1891, as shown on the British Commissioners' Maps, in so far as it relates to
the part of Behring Sea surrounding the Pribilof Islands, depended chietly upon the
several cruizers. But an insjiection of the tracks, as printed by the United States,
will show that the cruizers in most cases coutined their operations to the regions
surrounding the Pribilof Islands.
Then:
For other parts of the sea, other sources of information had to be employed. The
British Commissioners refer to those other sources (including their own voyages) in
a general way.
I have read the way in which the British Commissioners before
referred to this subject, by saying that nothing Avas known in regard to
it that was at all reliable, and that there was nothing to change the
inference that these migratory animals followed their ordinary route;
and one section that I did not read was that, if the sealers knew other-
wise, they kei)t it to themselves because they desired to keep secret the
l)lace where the best sealing was to be found. The way in which they
referred to it was to admit that there was no other authority whatever;
and because there was no other authority they desired to set on foot
these explorations by the ships of the British Government, which the
Americans had done for themselves; and, on the strength of those
observations, they base these Charts. Is there any explanation? Is
there any excuse '? Not one word. I have read it all.
That is the way, Sir, that this question stood when the Counter Case
was filed. What is the Counter Casel It is a document by which
under the interpretation of this Treaty adopted by Great Britain, and
which has been the subject of observation before in the preliminary
argument that you listened to on the admissibility of evidence, the
whole body of evidence put in on the part of Great Britain on all ques-
tions of fact, except what is found in the British Commissioners' lieport,
was put in at a period too late to be met or replied to by the United
States.
So that this case iiresents the extraordinary spectacle, unknown as it
seems to me in any Court of Justice before, of a trial u])on important
issues of fact and very voluminous evidence of every description, includ-
ing many new descriptions not known before, put in by one side, none
of which the other side has any opportunity to reply to or even to read
until it is too late to put in evidence in explanation, impeachment, or
contradiction.
Now, in that Counter Case, they return to the charge, and bring for-
ward a considerable body of what they regard as proof, and what is
proof as far as it goes undoubtedly, — on this question of intermingling.
If it had been left where it was left by the parties and the two sets of
Commissioners in the first place, it would not have been open to any
contradiction, except so far as the Ma])s of the British Coinnsissioners
attemi)t to introduce a contradiction, which I have shown is completely
refuted. In the very extraordinary document called the Supplemen-
tary Eei^ort of the British Commissioners which has been received here
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 69
as an Argument; it is nothiug else, — the Eeport was nothing but an
Argnment, and this is nothing but a Supplementary Argument, — we
are told, at page 23, that,
" In our previous Report it seems to be necessary,"
— these Gentlemen begin to i)erceive that it is desirable at any rate, if
not necessary, to meet the extraordinary state of facts about these maps
by something.
Mr. Justice Harlan. — Do you understand that report to have been
presented to us as part of the aigument of the British Counsel?
Mr. Phelps. — Eeally, Sir, I do not. I believe there have been one
or two feeble references to it, and by feeble I mean of course, brief,
because I do not mean that anything which comes from my learned
friends could be feeble; — General Foster reminds me that what I am
about to read was read by Sir llichard Webster.
Mr. Justice Harlan. — But I understood the part read was objected
to at the time.
Mr. Phelps. — It is not evidence. It is only a statement — it is an
apology.
Mr. Justice Harlan. — I only asked for the puri)ose of knowing
whether we are to look into that report.
Mr. Phelps. — Not by any means with our consent, Sir. Our position
has been stated, and we do not withdraw from it. I only refer to a word
or two of apology on this point, which I was about to read, which is the
only reference, perhaps, I shall make to it, and it has been already read
by Sir Richard Webster.
Mr. Justice Harlan. — I repeat the enquiry that we may know
whether we are to look into it. I do not understand tliat Counsel for
the British Government have ofllered that report as a part of their
argument, though entitled to do so.
Sir EiCHARD Webster.— 1 should like the Tribunal to understand
that we most certainly have offered that report as part of our argument.
Tiiere are matters in it which were not referred to — matters of subse-
quent depositions, which turned out to be common knowledge, but we
have not withdrawn. It was originally offered and tendered as part of
our argument, and we do not withdraw that now. My learned friends
themselves suggested they might refer to other ])arts, and any part they
wish to refer to is open to them, but we have tendered it as part of our
argument.
Mr. Justice Harlan. — I have not so understood.
The President. — It is understood that the United States do not take
that supplementary Eeport as evidence.
Mr. Phelps. — Of course.
I shall add one new contribution from that document.
In our previous Report, as the existence of a certain amount of iutermingliug lias
never been questioned —
Sir EiCHARD Webster. — It is "had" in the original.
Mr. Phelps. — My copy is probably a misprint then. It savs "has";
buti will read it "had"
"had never been questioned".
That is to say, had never been questioned when they wrote their
Eeport. That is no doubt what they mean, whether the word is "has"
or "had."
It was not considered necessary to note in detail the evidence and observations
npou which the general statements were based.
70 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Wellj what was the general statement — that there was an inter-
mingling or not? What are the observations and statements that it
referred to, except tlie proceedings of these cruisers and a very small
suggestion that they had enquired generally of sealers, followed by
the paragraph I alluded to just now, pointing out that sealers were very
reticent in speaking on the subject.
Xow in 1891, when they were on the Commander Islands, they took
the testimony of a native long eni]doyed, named Snigeroff, and John
Malowanski acted as interpreter, Mr. Thomas Morgan being present.
This is copied from the United States Appendix, vol. 2, page 198:
Suigeroff testified that he had lived on the Pribilof Islands for many years and
knew the distinctive characteristics of both heards, Commander and Pribilof and
their liabits, and that he removed from tlience to Behring Island. He pointed out
that the two heards have several diflereiit characteristics and stated that in his belief
they do not intermingle.
That is one statement which these gentlemen have on the Islands;
and then Mr. Morgan on page 201 of the same book testifies that —
Said Commissioners asked said Snigeroff the further question, whether he believed
that the Pribilof herd and the Komandorski herd ever mingled, and he replied that
he did not.
We hear of no other statements to the British Commissioners what-
ever.
Now, my learjied friends, or whoever had charge of the preparation
of the Counter Case, perceiving that to sustain the proposition that
these seals were such wild animals that they might be slain at pleasure
on the high seas, and that the United States had no right in them, it
was necessary to infringe in some way upon the great leading facts
which attach the animals to the Islands, select this point, and ibr the
first time they go into a considerable amount of testimony, from two
sources; one is from some London furriers, wholesale and retail, prin-
cipally retail I should think, of whom they have examined a consider-
able number, the other is from a body of sealers, men engaged in the
business of sealing. The one refers to the diiference between the skins
which we had originally proved and which was not at all contradicted by
the British Commissioner's Eeport — all the evidence that we had or they
had on the subject then was that they were completely distinguishable;
the other is from the men who claimed to have seen seals all over the
sea from west to east, and at all times intermingling — evidence, of course,
to which we had not a chance of reply.
(Mr. Phelps proceeded to review critically all the evidence on both
sides bearing upon the question of the alleged intermingling of the
seals of the Pribyloft' Islands with those of the Commander Islands,
reading many iiassages from it, and claimed that so far from any such
intermingling being proved, the contrary was completely established.
He pointed out that the fact had never been claimed in the whole
history of seal life until suggested by the British Commissioners in the
contradictory passages from their report before considered. That it
was denied by witnesses of the highest credit and fullest means of
knowledge, both Russian and American, who had been concerned in
the management of the Commander Islands, and of the Pribyloff
Islands, and was supported by no witness who had ever had any such
experience.
That no witness was produced who claimed ever to have seen a Com-
mander Island seal on the Pribyloff Islands or a Pribyloff Island seal
on the Commander Islands. That the only evidence brought forward
to prove intermingling was from a body of men employed in the Cana-
ORAL ARGfUMENT OF HON. EDWARD J. PHELPS. 71
dian sealiug vessels who swore to having seen seals in varions parts of
the sea outside of the migration routes, and at various times.
That none of this evidence attempted to discriminate between the
island or fur seals and the hair seals which were proved to frequent
these waters, and which at a little distance could not be discriminated
from the fur seals.
That these witnesses were swearing ex parte in defence of their own
craft; were a class of men whose credit was not to be depended upon,
and were brought forward not in the principal but in the counter case,
so that the United States had no opportunity whatever to reply to their
evidence by testimony.
That they divided into two classes : those who undertook in their
aflidavits to state the locations in which they saw the seals referred to,
and those who give no locations wliatever but speak of seeing them all
over the sea. That those who give locations turn out in every instance
to have seen the seals where they should have been, in their proper
migratory route as shown on the map. That of these who give no loca-
tion, not one testifies that he ever killed a seal in the outside waters he
refers to, though engaged in the business of sealing and with the proper
outfits.
That this class of witnesses are completely contradicted by many wit-
nesses on both sides of unquestionable character, who made careful
observations in crossing these waters at the instance of the British Com-
missioners or of those of the United States. That these witnesses
include all the captains of the British .steamship line running between
Vancoover and Japan. They include also the officers of seven vessels
of the United States Navy who thoroughly cruised the waters in ques-
tion and made charts of their observations which we i)roduced. These
charts show the extent of the cruises and the exact number of seals
seen and the localities. That the cruises of the British Commissioners
themselves as well as those of the American Commissioners are to the
same effect. That none of these various witnesses saw any seals out-
side of the regular navigation route upon any of these careful and often
repeated examinations.
That the alleged intermingling is demonstrated to be untrue by the
great difterence that has always existed between the species from the
Commander Islands and those from the Pribyloif Islands. A dilierence
described by many dealers and master sealers examined as witnesses,
and not denied by any witness, and which is still further shown by
the great difference in the price in the Loudon market between the Com-
mander Islands and the Pribylofif Islands species which was from 20 to
30 i)er cent in favour of the latter. A difference which could never exist
if the seals from the two islands intermingled in tlieir reproduction.
That the attempt on the British side to break the force of the evidence of
the furriers by re examining some of them entirely failed.
Of the six leading furriers in London, through whose hands pass all
these skins, and who were examined on the part of the United States
and testified to the facts above stated, but three have been re-examined
on the ])art of Great Britain, though they are British subjects, quite
accessible in London. To six other furriers who testify on the British
side no question is put on this subject, though they must of course
have full knowledge in regard to it.
One of the British witnesses of the largest experience says that the
new skins are readily distinguishable, but that the iDrocess of dyeing
and dressing causes the difference to disappear to a considerable
extent. Four others testify that there are some skins in each catch
that are indistinguishable after they are dressed and dyed.
72 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Of some others who state that there are some skins that are undis-
tingiiishable every one mentions as existing' some one or more of the
differences stated by tlie witnesses who testify on the side of the United
States.
No witness in tlie case states tliat he ever bought or sohl or heard of
there being bought or sold a skin from the Commander Ishinds for a
skin from the Pribyloff Islands, or of any question ever arising among
the trade or elsewhere as to which islands a skin belonged to. Nor
does any witness deny the great and uniform difference in the prices as
above stated.
Nor is any naturalist called on the part of Great Britain to contra-
dict the strong and clear evidence given by the American Commission-
ers and other scientists, as well as by practical sealers, showing the
difference that exists between these two species, apparent to all who
are acquainted with them either scientifically or practically.)
Mr. Phelps continued : I shall refer briefly to another question which
has been made by the British Commissioners but which has not been
observed upon by my learned friends on the other side, and therefore I
think I have the right to infer that they do not depend upon it and that
they agree with me in thinking there is nothing in it. But it has not
been specifically withdrawn, the evidence is there, and it may be useful
and may throw light on some other things briefly to consider it. The
British Commissioners suggest in their Report another theory that is
new to the world, — one of the numerous discoveries they have been able
to make in this case; and that is that the seals have a kind of winter
habitat, as they call it, over on the Columbian coast opposite to the
British Possessions. Now, what is the imijortance of that suggestion ?
If it were true, what is the use of it? It is another proof of the jn-es-
sure they felt themselves under of escaping the overwhelming facts
that attach those seals to the Pribilof Islands and tlie American ter-
ritory. That is all there is of this theory. It is that the home of the
seals on the Pribilof Islands may be to some extent balanced, or offset,
by showing that they are on the British coast in winter. For that
theory, which is nothing but a theory and a conjecture, there is not
one word of foundation. When you begin with the beginning, with
its genesis, in this Re])ort and read what they have to say in sup})ort
of it, and theu contrast it with the evidence in the case, it perishes so
utterly that I am not surprised that my learned friends do not con-
ceive there is anything in it, and, therefore, I can deal with it very
briefly.
(Mr. Phelps proceeded to review the statements on this subject in the
British Commissioners' Rej)ort, and to point out —
1. That this theory also is original with those gentlemen, finding no
warrant in any facts or belief that had ever been known before,
2. That in the fullest extent to which it is attempted to be stated, the
facts would be of no consequence, because it is not j)retended tliat any
seal was ever known to go ashore or to reproduce in British Columbia
or anywhere else except ujion the islands.
3. That no evidence or proof of any sort is cited in support of it
except the reports of vague statements which are not given, and whose
authors ii) most instances are not named, not amounting to the dignity
of hearsay, because what is said is not stated, nor by whom nor to
whom; that the princi])al source of them is a witness who is shown
by his own testimony and by various evidence in the case to be utterly
ignorant on the subject of seal life, and to have advanced and main-
tained with equal positiveness several other theories in respect to it
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 73
which are now conceded to be entirely without foundation; tliat he is
also shown to be an extreme partisan of tlie sealers, employed in their
behalf, as a writer for the newspapers and general advocate; that his
statements show him to be very reckless of what he says; and that
finally, when examined as a witness by the United States, he substan-
tially takes back what he has said on the subject and aduiits that his
observations and information had no just foundation.
4. That the theory thus suggested is opposed to all the known facts
in seal life in regard to their course of migration, and is entirely dis-
proved by the evidence.)
Mr. Phelps continued: There is only one other question of fact
which I have to allude to, quite briefly. I have dealt with two partic-
ulars iu wliicb it was attempted by the British Commissioners to qualify-
to some extent the great facts we have claimed to be true, and 1 think
I may say, proved to be true, in respect of the resort of the seals to the
Pribilof Islands.
The first was the commingling; the second was the winter habitat.
There is another attempt upon which a good deal of testimony has
been expended, that is to say, a considerable number of witnesses have
been examined, but upon which nothing has been said by my learned
friends, though they allude to it as a fact in the Case, and evidently
rely upon this evidence, and tliat is, that impregnation of the seals has
taken place to some small extent, or rather may have taken place to
some small extent in the water.
To save time and to avoid going through evidence of that sort, I have
put some observations upon it, with references to testimony, upon
paper, which, with your permission, I will hand up, and I have given
copies to my learned friends. It embodies notliing except what I
should say if it was a subject that I cared to discuss at length. There
is nothing in it except references to evidence and the heads of sugges-
tions that I should have intended to make.
Sir Charles Kussell. — Looking at its subject matter and my learned
friend having been good enough to show us a copy of this, we do not
object to its being handed in.
The President. — We quite appreciate the propriety of that measure.
Mr. Phelps. — I will make only one or two general observations, and
leave the rest to the contents of the printed paper. In the first place
that theory is completely disproved, in my apprehension, by the fact
that it contravenes the great dominating fact of this animal's life, which
distinguishes it from all other animals that ever were known; and
which has been so clearly explained in the evidence that it is not the
subject of any dispute. This theory is entirely opposed to that fact,
and would render it an absurdity and an impossibility.
In the next place, the theory is completely disproved by the i^eriod
of the year in which the young of this animal are i^roduced, and about
which there is absolutely no conflict in the evidence. The period of
gestation is stated by all witnesses on both sides to be about 12
months, — undoubtedly lunar months, which I believe is usual with such
animals. The time when the young are produced and born on the Islands
is not the subject of disj)ute. Consequently it is made ajiparent that
impregnation must occur on the Islands. Then when we come to
analyse the testimony to the contrary, it absolutely disappears into
thin air; there is really nothing of it.
Now, Sir, that brings me to the end of one i)rincipal topic in this case.
I have thus far endeavored to consider the title we should have to these
sales under the general principles of municipal law, if instead of the
United States Government we were merely a Corporation, which had
74. ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
bcH'ome the i)i-opric'tors of these ishiiids, and stood in the same situation
that the United States Government now do. I shall proceed on the next
hearing to take a hir,i>er view of that subject. Thus far I liave confined
myself to the principles of municipal law, and I have tried to point out
that upon the great facts, undisputed excei)t so far as the three minor
particulars I have discussed to day are concerned, and not disputed
successfully I think I am warranted in saying in those particulars, we
have a right of property in this herd of animals where they are situated,
and as they are situated; in view of the husbandry and industry estab-
lished in respect of theiu; in view of the control under which they were
brought; and of the animus revertendi, which causes them constantly
to return voluntarily to our control.
My friends enquire : " What have you done?" They say : " You have
done nothing except to kill the animals — you select them for killing".
We have, in the first place, by Act of Congress, appropriated this terri-
tory and reserved it, which, otherwise, the Government might occupy
for other purposes or might make subject to entry and sale as the lands
of the Government of the United States are made, except when reserved
for special purposes. By special Act of Congress these islands are con-
secrated to the use of these animals. Under the Statutes of the United
States, and by the superintendents of the United States, appointed by
the Government, and i)aid by the Government, they are Avatched over
and protected from the extermination that would otherwise certainly
come to them. The cruisers of the United States surround the islands;
and thus we have founded this valuable husbandry. If we have not
confined the seals more closely it is not because we could not do so if
we desired, but because it would have been not merely useless, but
prejudicial to the animal.
Here are two classes of animals — wild animals — valuable animals — to
one class of which the law annexes property so long as the animus con-
tinues, which returns the animal to the possession. The animus rever-
tendi is nothing but an element of possession — it takes the place which,
in domestic animals, entire confinement takes. It is a mere element.
It takes the place of the fence or the wall that would restrain animals
who, if so restrained, would perish and lose their usefulness. There are
other animals, and the distinction was pointed out the other day, under
which the law of England — probably the law of other countries — applies
a diiierent rule because the conditions are entirely different.
Now to which class do these seals belong? What is the distinguish-
ing fact on which this legal principle attaches? That is the question.
We have seen that the animals are as diverse as they can be. They
belong to every species. We have seen that the confinement is as dif-
ferent as the animals themselves. What is the principle? It will be
found in the English cases that were cited by my associate Mr. Carter
in the opening. It is the establishment of the husbandry — the indus-
try— which means, in the first place, care, painij, protection, ex])enditure
of money, on the part of the proprietor, which obtains the product for
himself, and for the world, without which the animal would perish.
There is the criterion. That the animus revertendi so largely enters
into it is because it is so commonly the case that without the animus
revertendi it is not subject to any custody that would make it useful —
that if you shut it uj) in the yard or in the building you have destroyed
it. It is the husbandry — the industry.
That is the great leading fact that distinguishes those from the wild
deer of Scotland or the wild deer of America. It was the husbandry
that was founded and maintained by taking such i)ossession as the
uatUre of the animal admitted of; and I respectfully say that there is
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 75
no case in the range of the law where those facts have not operated in
mnnicipal hiw, to give a title. There is no snch case where a right of
property has not been deduced and protected by the law; and when
you find on the other hanil the cases of the wild game that are put in
the other class, you find animals which are the subject of sport, where
the animal returning cannot be identified, where when he goes on to
the neighbour's land, he gets from that neighbour exactly what he gets
at home, so that the pheasant or partridge that goes from my estate to
the estate of my friend owes nothing more to me than he owes to him.
Now when you come to apply those considerations to the case of the
far-seal, it will be found that in every respect and i)articular the case is
much stronger than that of any wild animal to which a property was
ever attached in any system of law. You see their great intelligence.
You see that this soil is not merely a casual place which they could
exchange for another to-morrow, but is necessary for their existence.
You see that this animus revettendi which constitutes a part, and but
a part of our possession, is continued and virtually created by the care
and protection that they receive; and you see the husbandry which the
proprietors — it is the Government in this case — have built up and
maintained, without which there would be no such animal for them or
for the world.
If it is convenient for you to stop here, Sir, I will continue my argu-
ment to-morrow.
[The Tribunal thereupon adjourned until Wednesday, the 28th June,
1893, at 11.30 a. m.j
FORTY-SIXTH DAY, JUNE 28™, 1893.
Mr. Phelps. — I liave thus far, Sir, as tlie Tribunal will have per-
ceived, dealt with the question of riglit in this case as it would have
ariseji if these islands had been the proi)erty not of a Government but
of an individual or a corporation. I come now to take a dilferent view,
a larger view perhaps, of the question, upon principles that have
become a part of international law, in the first place because they are
right, in the next place because they are necessary, and finally because
they have been adopted by the usage and custom and practice of
nations in all parts of the world in respect to all the varieties of j)rop-
erty of this class. And still at the risk of unnecessary repetition, let
me recur again to the observation I made in the outset, which I desire
to keep constantly in view, and subject to which I hope everything I
say upon this subject will be understood. That is, that it is not for tlie
United States to make out a property or a right; it is for those who
propose to continue such conduct as we complain of, to establish the
justification for it; and in establishing that justification, the theoretical
analysis is for them, if any is necessary, and not for us.
On this branch of the case my proposition is this: That where any
marine or semi-marine animal, valuable and not inexhaustible, is
attached, and becomes appurtenant to, a marine territory, is there
made the basis of a valuable industry by the nation to which that terri-
tory belongs, is protected by its laws and by its care from the extermi-
nation that would otherwise overtake it, so as to give to commerce, and
to the world, its product, as well as the profits of the industry to the
nation or its subjects, it becomes the property of such nation within
the definition of the term "property" which I have once attempted to
give, even though its habitat (as it is called) may extend outside of what
is known as the three-mile or cannon shot limit, partially, entirely, or
temporarily, i)rovided, always that if it is temporary it is accompanied
by such an animns revertendi as ensures its return. We claim that this
rule is established in the first place on authority, so far as the words of
writers of acknowledged authority can be regarded as such. That it is
established by principle for the sound reason that it is necessary to
the continued existence of any such property; that under its protec-
tion all property of that sort that remains in the world has been saved
and is held to day; and that wherever it has been omitted to be asserted,
such product has i:)erished.
In the United States Argument, page 134, there are one or two cita-
tions which as they are brief, and express my idea better than I can
express it, perhaps you will pardon me for reading. Puftendorf, in his
law of Nature and Nations, has this language:
As for fishing, tboiigli it hatli mucli more abnudaiit subject in the sea than in
lakes or rivers, yet 'tis manifest that it may in part be exhansted, and that if all
nations should desire such right and liberty near the coast of any particular country,
76
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 77
that country must be very much prejudiced in this respect; especially since 'tis
very usual that some particular kind of tish, or perhaps some more precious com-
modity, as pearls, coral, amber, or the like, are to be found only in one part of the
sea, and that of no considerable extent. In this case there is no reason why the
borders sbould not rather challeuiie to themselves this happiness of a wealthy shore
or sea than those who are seated at a distance from it.
It is very apparent tliat this lan^nnage refers to that portion of the
sea which is ontside of the territorial line, because inside of that line it
has never been questioned that the exclusive right of pursuing any
kind of property to be found in the sea, belongs to the nation. That
is not questioned here by my learned friends. This language applies
to those adjacent seas \Yashing the shores of the nation in which a
product of that kind is found, which would be destroyed if it were
thrown open to the world witliout protection, and a title to which may
well be asserted by the nation to which it properly belongs. •
Another citation is from Vattel, and perhaps there is no other among
the many great authors on tlie subject of international law whom the
world has the benetit of, that is more generally recognized as sound
authority. His work, written at a comparatively early date, before
most of those now extant, still retains its original authority, and is
vStill quoted, and this very passage is cited by my learned friends in the
printed argument on their side.
The various uses of the sea near the coast render it very susceptible of property.
It furnishes iish, shells, pearls, amber, etc.; now in all these respects its use is not
inexhaustible. Wherefore, the nation to whom the coast belongs may appropriate
to themselves, and convert to their own profit, an advantage which nature has so
placed within their reach as to enable tliem conveniently to take possession of it,
in the same manner as they possess themselves of the donunion of the land thej'-
inhabit. Who can doubt that the pearl hsheries of Bahrem and Ceylon may law-
fully become property? And tliough, Avhere the catching of fish is the only object,
the tishery appears less liable to be exiiansted, yet if a nation have on their coasts
a particular hsherj' of a profitable nature, and of which they may become masters,
shall not they be permitted to appropriate to themselves that bounteous gift of
nature as an appendage to tlie country they possess, and to reserve to themselves the
great advantages which their commerce may thence derive, in case there be a sufifi-
cieut abundance offish to furnish the neighbouring nations?
Then citing from another section of the same author, not reading it
continuously :
A nation may appropriate to herself those things of which the free and common
use would be prejudicial or dangerous to her. This is a second reason for wliich
governments extend their dominion over the sea along their coasts, as far as they are
able to protect their right.
That passage will be found more frequently quoted by writers on the
subject of international law, by jurists and in diplomatic correspond-
ence, than any ijassage that can be found in any other writer, quoted
with approbation and never questioned; and what is the purport of if?
Here again the author is not speaking of the cannon shot limit, the
three-mile limit — there is no question about that at all; he is speaking of
that sort of marine property extending even to fish, in which specific-
ally nobody ever claimed a property — an animal tliat has no animus
revcrtendi, not capable of being shut up until after it is caught, when it
dies, which is absolutely free, and carrying the proposition much
further than we have any occasion to carry it here.
The President. — Do not you think he means fishery rather than the
fish.
Mr. Phelps. — Quite so, Sir, I was about to mention thatj the right
of fishing, not the individual fish.
The President. — A distinct right of property.
78 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Lord Hannen. — I must beg your pardon, Mr. Phelps, but I confess
I have read and understood that passage to refer only to the three-mile
limit, because he says:
A nation may appropriate to herself these thinjics of which the free and common
Tise would be prejudicial or dangerous to her. This is a second reason for which
Governments extend their dominion over the sea alongtheir coasts as far as they are
able to protect their right.
I understand that to be a reference to the theory that it is as far as
a cannon shot would go.
Mr. Phelps. — I do not so understand it.
Marquis Venosta. — I remember that Vattel, after expressing the
consideration you have cited, concludes by adopting the well-known
maxim of Bynkershock — terrw dominium finitur ubi finitur armorum
vis, or, in- other words, the rule of the cannon shot. Do you not think
that the citation you have read is in connection with that conclusion?
It is an elucidation I ask you for. You do not tliink that these consid-
erations have a direct reference to that conclusion. It is the same as
the sentiment that Lord Hannen has expressed.
Mr. Phelps. — I do not. Sir, with great submission, and I think I can
show immediately that it is not so. The very illustration Vattel employs
in this passage in respect of the pearl fisheries which extend twenty
miles into the sea, shows what he is thinking of, and the context of the
book shows that he is not merely affirming there the truism of the line
of sea over which a nation is authorized for many i^urposes to extend
its territorial dominion: it requires very few words to aftirm that and
no reasoning to support it. He is refei^ring to the product, to the article
of the industry, not to the precise limit of the sea in wliich it is con-
tained, and I understand his proposition to be that where such a marine
product as he refers to, not only the pearl fishery, but fisheries in gen-
eral, where it is in the adjacent waters, where it appertains to the terri-
tory, where it is not inexhaustible and would perish if it were not pro-
tected, the property is in the industry, in the fishery, not in tlie specific
animal. By which he does not mean that he could follow that animal off
into a distant sea and assert the property over him that he would over a
domestic animal — over his horse or his ox, but the property in the
industry.
Sir Charles Russell. — May I interpose, if it is not inconvenient
to my learned friend?
Mr. Phelps. — Certainly.
Sir Charles Russell. — I have the book here, and it will be found,
with reference to the book, he is dealing with the question of the cir-
cumstances under which dominion may be extended.
There is no question of property; but dominion maybe extended,
and he justifies that with relation to the line of defence. He goes on
in the very next passage following to show how far this possession may
extend; and then he proceeds to justify the extra territorial limit of a
certain margin of the sea.
Mr. Justice Harlan. — But when he refers to the Fisheries of Ceylon,
do you think he means to say that property only within the territorial
water, but no property in the fishery outside?
Sir Charles Russell.— No; he is then dealing with a difterent
matter altogether, that you may acquire by possession ; and the case
he puts is dominion in that spot, in that place, — it is clear from the
context. The passages are not together, and they are not in the same
connection.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 79
Mr. Phelps. — They are succeeding sections.
Sir Charles Russell. — He is showing how far this possession may
extend; and then he proceeds to discuss tlie limits referring to the old
ideas of extended jurisdiction. In that paragraph 289, he refers to the
limitation of cannon shot.
Senator Morgan. — Sir Charles, as to the property outside the three-
mile limit, I understand you to insist that the author refers to the
doctrine of acquisition by prescription?
Sir Charles liussELL. — Partly that, I do not say wholly that, but
possession.
Mr. Phelps. — 1 am very much obliged to my learned friend for
reminding me of what had escaped me for the moment. There is
another passage from this author to be cited in another part of my
argument which shows that my construction of his language is right.
It does not depend merely on the illustration he employs, which shows
very plainly that he is not proceeding on the ground of a three-mile
limit. Within the three-mile line, anytliing that can be taken out of
the water belongs exclusively to the nation: nobody denies that.
Sir Charles Russell. — Well, we do not admit that in that sense at
all. We say that there is the exclusive right to take it, not that the
property belongs to the nation.
Mr. Phelps. — The exclusive right, if my learned friend likes that
expression better, and it is, perhaps, the more correct expression, within
the three mile limit of a nation to take out of the sea anytliing that is
worth taking, no matter what it is, is just as complete as its exclusive
right to take similar property on its soil. I take it there is no question
about that. What, then, is the necessity for this eminent author going
further than that in the assertion he makes about these rights? When
he has said that within the territorial limit the right is exclusive, he
has said everything. He does not say that at all. He says that nations
may challenge to themselves the right to appropriate property of this
kind which, as he says, appertains (if I give his words correctly), and
that their right becomes as extensive as the necessities of the husbandry
of this marine or semi-marine product; and, as I shall show, that is the
usage that has obtained everywhere, without it, this would be nonsense.
If you write in to what Vattel has said there, the limitation "provided
always that this product or fishery, or whatever it may be, can be
availed of within three miles of the coast," he has only aitirmed in all
this language what nobody at all denies, and what might be stated, if
he had occasion to state it, in a single line.
Sir Charles Russell. — He is writing at the end of the last century,
in 1797.
Mr. Phelps. — We were aware of the date of Vattel's writing, and I
presume the Tribunal were. If my learned frjend means to assert that
Vattel does not support my view, that is one thing. If he asserts that
Vattel is not authority, that is another thing.
Sir Charles Russell. — ISTo, I referred to the date, because the limi-
tation of the territorial jurisdiction was not then fixed as it is now.
Mr. Phelps. — It was fixed and there was the same limitation that
now prevails.
Senator Morgan. — And it is not fixed now.
Mr. Phelps. — No as I shall showin-osently by the English decisions,
but we must take one thing at a time.
If it be said that Vattel wrote too early to be authority, that will dis-
pose of this citation; that is a point on which I have nothing to say.
80 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
If it be that he, in using this language, meant only to assert that the
exclusive right to take ])roperty out of the sea, within the limit assigned
to the territorial jurisdiction, was enjoyed, then I say, with very great
respect, his language is completely misnnderstood. Another section,
which Avill be found on page 148 of the United States Argument, shows
that plainly enough. That is section 289 which is the section immedi-
ately following the two from which I have read. Those I have read
are sections 287, a part of 288, and this is 289, or an extract from it.
It is not easy to determine to what distance the nation may extend its rights over
the sea by which it is surrounded. . . Each state may on this head make what
regulation it pleases so far as respects the transactions of the citizens with each
other, or their concerns with the sovereign; hut, hetween nation and nation, all that
can reasonably be said is that in general the dominion of the state over the ueigh-
houring seas extends as far as her safety renders it necessary, and her power is able
to assert it.
And in that connection I should like to read what Chancellor Kent
says.
Sir Charles Russell. — Bat then Vattel goes on to say in the same
passage that he refers to the cannon-shot.
Mr. Phelps. — If you will give me the book I will read it.
Sir Charles Russell. — No, I beg your pardon for interrupting you.
Mr. Phelps. — It is no embarrassment, and I will read anything that
is desired.
Sir Charles Russell. — No, I do not wish that.
Mr. Phelps. — I regret that I read these citations from copies, with-
out bringing in the volume, as I might have done, but if there is any-
thing further I will recur to this subject again.
Chancellor Kent says in his First Commentaries, at page 29,
It is difficult to draw any precise or determinate conclusion amidst the variety of
opinions as to the distance to which a state may lawfully extend its exclusive
dominion over the sea adjoining its territories and beyond those portions of the sea
which are embraced by harbours, gulfs, bays, and estuaries, and over which its juris-
diction uoquestionably extends. All that can reasonably be asserted is, that the
dominion of the sovereign of the shore over the contiguous sea extends as far as is
requisite for its safety and for some lawful end.
It is pretty clear that Chancellor Kent is not talking about the three-
mile limit there, because the very question he is discussing is, how far
beyond the territorial dominion may a nation extend its powers; and
he answers that question by saying, ove rthe contiguous sea, the sea
that washes its coast, as far as is requisite for its safety and for some
lawful end.
And he says in another connexion on page 31 :
And states may exercise a more qualified jurisdiction over the seas near their coast
for more than the three (or five) mile limit for fiscal and defensive purposes. _ Both
Great Britain and the United States have prohibited the transhipment within four
leagues of their coast of foreign goods without payment of duties.
I shall come to that subject later on. I only refer to it here in con-
nexion with what Vattel has said; and I resijectfully insist tljat both
these authors, Puffendorf and Vattel intend to assert and do assert the
right of the nation to extend its dominion over property of that sort
attaclied to its territcjry, which is made the basis of an imi)ortant indus-
try, just as far into the contiguous sea as is necessary to protect it;
and whether that falls outside of the three-mile line, whether indeed, as
in the case of the pearl fishery, it all falls outside of the three-mile line
or whether it is property that is part of the time within the three-mile
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 81
line and part of the time without, it all comes in mider the general prin-
ciple, the necessary principle, without which I have said there would
be no such property to quarrel over. As my friend suggests to me, both
writers make a cardinal condition of the exhaustibility of this product,
distinguishing such a product as this from those general fisheries that
are, as far as we know, practically inexhaustible.
Then there is a passage from Yalin, a French writer, which is cited
at page 188, which may usefully enough be referred to in this connec-
tion, though it is quoted for another purpose. When we come to dis-
cuss the question of the Newfoundland Fisheries that have been spoken
of before in this argument, it will be seen that this passage from Vattel
Avas quoted in that discussion as giving to Grreat Britain the exclusive
control over those fisheries, extending- very, very fnv out into the ocean
in all directions from the coast. It is in that connection that this from
Yalin is quoted.
As to the right of fishing upon the bank of Newfonndland, as tliat island which
is as it were the seat of this lisheiy then belonged to France, it was so held by the
French tliat other nations could naturally fish there only by virtue of the treaties.
How far out that was we shall see when I come to deal with the
subject.
This has since changed by means of the cession of the island of Newfoundland
made to the English by the treaty of Utrecht; but Louis XIV, at the time of that
cession, uuide an express reservation of the right of fishing upon the bank of New-
foundland, in favor of the French as before.
It will be seen, as the context, I think, is read from this book, from
the construction that has been put upon this many times when it has
been cited in similar controversies, that Vattel never has been under-
stood as merely assuming that the nation liad a certain territorial
jurisdiction outside of the land, which nobody denies, but he asserts
that irrespective of that it may exercise a control over this sort of
product under those conditions and under those circumstances.
ISTow is there any authority tiie otlier way? Have my learned friends
in the exhaustive and very able argument of this case, both in writing
and orally, which the Tribunal have had the advantage of hearing,
produced anything on the other side? Is there some writer on inter-
national law who has declared somewhere, that this right does not
exist ? Is there any writer or any Court to be found to assert that in prop-
erty situate like this to which Vattel refers, the right of protection
terminates at three miles or at a cannon shot or at any other specified
distance? Why yes, there are jurists who have had the high honour
of being cited by the distinguished counsel of a great nation; there is
a man who writes for a newspaper in America, who is brought forward
as a jurist, who has been a steadfast volunteer champion to the extent
of his capacity, of the British side of the case from the beginning, on
every single point that has been discussed. He is an authority for my
learned friends, not only on this important point of international law,
but on every other question that has been proposed in the course of this
dispute. What his motives are may be conjectured. I do not know
anything about tliem, and 1 do not know anything about him. He is
not a lawyer, and who and what he is, and whether his name is a worn
de plume or not, I do not know.
There was a very celebrated English Jmlge who, in one of his judg-
ments, declared that reading and writing came by nature; if he had
lived a little later he might have added international law to the cate-
B s, PT XV G
82 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
gory. That is a subject on whicli a great many people are able to
enlighten the world, without having had the advautage of any previous
education. Problems that occasion grave ditliculties to great lawyers
and judges, they are able to dispose of in a very short time. Then
there is another young gentleman who has written an argument and
printed it to the same effect. I have not the pleasure of knowing him.
These productions are about as much authority, I was going to say,
though they are really far less authority than the argumeHts of my
learned friends; the difference being that the arguments of my learned
friends come from gentlemen eminently qualified to make them, instead
of from those who are not qualihed at all.
Then it is said that my friend. President Angell, of the University
of Michigan, a gentleman of very high standing, in a magazine article
has said that we have no such right. President Angell is not a law-
yer, and has had no o])portunity to see the United States Case, or to
know on what ground we put it, or what the ftxcts are. I should be
very willing, with those additional advantages, to submit this Case to
his judgment. He would frankly say i)robably, if he were enquired of,
that this was a casual, superficial expression upon a subject he had not
examined, with which he was not familiar, and in which he had assumed
as true what had been so largely claimed on the part of Canada at
least, if not of Great Britain. If we were going into pamphlet litera-
ture on this subject, I would rather commend an Article that has more
recently appeared from Mr. Tracy, a very eminent lawyer, in the
"North American Review-', which 1 have seen since I came here; and
an Article by Mr. Slater, one of the most eminent of British Naturalists,
in the " Nineteenth Century", which came out pending my learned
friends' argument on the other side. If these are the sources to which
we are to go, I think the weight of the magazine literature will be
found to be as much against my learned friends as authorities of a
higher character. With those exceptions, if we have misread Vattel
and Palfeiidorf, no other writer is produced to show it; no writer who
has put a different construction on those passages; no writer who has
affirmed the rule of law to be different from what we affirm it to be
here. It is to such sources as that that my learned friends have to go
for what is called authority.
Now, it cannot be, at this age of the world, that in respect of prop-
erty of this kind contained in many seas, on many shores, the question
of the legal right of the nation to which it appertains to enjoy and
protect it can be new. It may be new as applied to the seals, or it
may not. It cannot be new in the sense in which Vattel and Puffen-
dorf discussed it. It can be found out one way or the other, and if we
are wrong, certainly the learning and diligence of my learned friends
must be able to show it.
As I remarked the other day, the title of a nation comes by pos-
session and assertion, where that possession and assertion does not
controvert a right of another nation, or any established principle of
international law that is founded upon the rights of another nation.
It is possession, and assertion, in every case, as will be seen when we
refer again to the cases presented to you in the opening, that the title
of the nation stands on. They required no conveyance from anybody.
They made no treaty with anybody. In every case they stretched out
the hand of the national power and took possession of the adjacent
product, and ])roceeded to husband it and improve it, and to give the
world as well as themselves the benefit of it. If any nation had a
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 83
better right, that step on the part of the iiation that appropriated it
would liave been open to question, and would have been made the sub-
ject of controversy. If they had a])propriated what belonged to some-
body else, their appropriation would have been open to challenge, and
would have been challenged. If, on the other hand, they had a[)pro-
priated only that which was the common property of all mankind, still
more would their appropriation have been successfully resisted and
challenged by those who had an interest in doing it, who desired to
avail themselves of their right to participate. When the United States,
therefore, in appropriating this territory to the x)rotoction of the seals
and in founding this industry upon it, have so taken possession of it
and asserted the title on which the existence of this herd depends, the
question is, what right of mankind have they invaded °? It can only
be the right of numkind to exterminate that race of animals, because
they cannot participate in it on the sea without doing so. If it were
possible for the rest of the world to come and avail.themselves of what
is called pelagic sealing of this herd and not exterminate it, then the
argument of the other side would have the advantage of being placed
not upon the right of extermination, but upon a riglit of participation
in what they say is open to all the world. But that is imi)ossible, as
I shall show more clearly when I come to deal with the evidence.
When the United States stretches out its arm and takes possession
of this property, this herd or this interest — which appertains to their
territory, is produced there and would perish there — takes care of it
and protects it and founds this industry upon jt, and asserts its title,
then when the individuals who challenge that come forward and say
we are assuming a title to what belongs to the world, and are shutting
them out from a participation in what as a part of the freedom of the
sea belongs to all mankind^ I say, "What is it you pro])Ose to dol —
what do you want to do"? We want to take tliese seals, indiscrimi-
nately in the watei'. Can you distinguish between sexes ? No. Do you
attempt to distinguish? No, because it would be of no use." What
is the result of that"? The result would be tlmt before live years the
seals would have ])erished oft" the earth. Now upon tlie proposition of
my learned friend, international law is on that side. International
law provides by a principle founded upon wrong and not upon right,
enunciated nowhere, by no writer, applied in no other instance that we
hear of in the history of the world — international law, this subtle
essence that only exists for mischief and can be traced to no founda-
tion of right, steps in now and says we cannot assert our right to this
property on the part of the United States Government. It is the right
of mankind to exterminate it, and therefore, if there is a little knot of
adventurers anywhere, who desire to embark in that business, the
Government must retire and extermination must take place.
I say that stands upon no authority; it is justified by no writing in
any book that would receive a moment's attention by lawyer or judge.
It is justified by no practice that ever prevailed; but is contradicted
by all practice that ever was known ; it rests upon nothing, — upon no
reason that can be stated. My learned I'riend criticised my associate,
Mr. Carter, for saying that the right of the (iovernnient to avail itself
of this industry depends upon the fact that they could so administer it
as to preserve it for mankind, at the same time giving mankind and
themselves the benefit of the product. That surjjrised my learned
friends. Their capacity for surprise is large; and I have noticed some-
times that their surprise at propositions advanced, was in the direct
84 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
ratio of their inability to answer them. When a proposition is stated
that cannot be answered, my learned fiiends say, "Are we to regard
that as serious *? Do you mean to persist in it aiter you liave been
informed in the Britisli Counter Case that it is wrong?" Well, when
they are ai)piised that we should venture to persist in it till we heard
the answer to it, that occasions reiterated and additional surprise. Now,
if you do not like my brother Carter's reason, if that is not sufficient,
what is the reason on which this case must be determined? On what
ground does your proposition stand? Here are two i)ropositions tliat
are directly opposed to each other; one of them must stand to the
exclusion of the other.
The proposition on our side is that the nation to which such a prop-
erty appertains, where it belongs, and is produced, which can alone
admiinster it, and which has at labour and expense and through a long-
period of time established that industry, has a right to it by the prin-
ciples of international law. — Their proposition is that it belongs to such
portions of numkind, — 1083 people, I believe my brother Ivobinson says
constitute mankind in this case, — that it belongs to such portion of
mankind as want to use this property in a way that is certain extermi-
nation.
Now, there is where we are at issue exactly. When we ask our
learned friends: has this been established by authority, so that we are
too late in setting forth our ])roposition ? We are referred only to one
or two newspaper writers. When we ask for the practice and usage,
which, in another part of this case, we are told by my learned friend
constitute international law and is indispensable to it, you find the
practice of the whole world is the other way. In every case, when we
get down to fundamental })rinciples and ask for the right on which it
stands, what have they to say? Sir, I res])Octfully say, as I said in the
outset, the statement of this proposition either to a legal mind or to a
mind possessed of any sense of justice, is its argument; — there is noth-
ing to add to its statement; the answer to it may be demanded, and
until that answer is ibrthcoming surely there is nothing more to be
said.
I do not propose in the review I am about to make, somewhat rap-
idly, of the various instances, — all the instances in the history of the
world that we know anything about property similarly situated, — to
spend a great deal of time, because this has been presented by my
associate in the opening, and it certainly is not necessary for me to
repeat what has been already said at the risk of not repeating it as
well; but I want to review them in order to give point to what I
have said in respect to the argument on the other side, and in respect
to the practical application to these principles.
The first one is tliat of the Ceylon Pearl Fisheries, They extend
from 6 to 21 miles from the shore, outside entirely of any jurisdictional
line. There is not an oyvSter, as far as I understand, within 6 miles of
the shore. By various Statutes, and most just and proper Statutes,
throughout a very long period of time (I will not undertake to say how
long,) but it is said in the British Argument "from time immemorial,"
and I presume that expression is correct, these Fisheries have been reg-
ulated and ])rotected, and exclusively enjoyed under the British Gov-
ernment or its Colonies. Not a pearl-oyster was ever taken there, so
far as we have any reason to believe, by any man, except subject to
those Eegulations, — and not an instance has been produced of any
ship or any individual ever attempting to interfere with them.
Oral argument of hon. edward j. phelps. 85
Now let me suppose that some sharp American should fit out a fish-
ing fleet, and go there in pursuance of the rights ot mankind, and
begin taking up thoi-se oysters in defiance of the regulations by Avhicli
alone they are protected from extermination — in defiance of laws wliich
prevent British subjects at least from interfering with them in a man-
ner that is not consistent with their protection. The commander of tliis
expedition is asked: "What are you iiroposing to do here"? " We are
proposing to take up pearl oysters and we have come out to make a
profit". Take tliem uj) — how? "Why as we get them". "At any i^ar-
ticular time" ? " Ko, at any time". " In any particular way " ? "No, iu
any Avay we can get them". "Are you aware that that would result in
the speedy destruction of the whole product"? "Well we do not care
anything about that. Let the ladies go Avithout their pearls. Wliat
consequence is it if they are exterminated? It is a small matter. And
any how, I am here on the part of mankind: you have no control over
the high sea; we are exercising the right of fishing on the high seas
free to all mankind".
What does anybody suppose would take place? — That Great Britain
would stand back and bow in deference to those rights of mankind and
l)ermit that fishery to be exterminated? Will any man say tliat a
Government ought to do so? Does anybody suppose that it would do
so? Why the question answers itself.
Wliat is tlie answer in the British argument to this? It is said in
the printed argument by my friends: "The right to these pearl fish-
eries out in the sea has been recognized from time immemorial by every
body ". That is precisely what we say. It belonged to you from time
immemorial, and it has been well recognized, and all the nations of the
earth have agreed to recognize it so far as can be shown by their
abstaining from interference. You have had — you have been permitted
to have — by the acquiescence of all nations, this ])ropei''ty: you bring
yourself— (in fiict this illustration is given by Vattel) — exactly within
the princii)le — you bring yourselves within analogous usages, when you
inlorm this fleet of quasi pirates that come there for the purpose of
destroying this industry with its means ot livelihood for those engaged,
witli its profits to the Government. Suppose that the case in this
Arbitration between Great Britain and the United States was, tliat
the United States claimed that the British Government vShould pa.y
for fishing vessels fitted out by the United States to go and prey
upon this pearl fishery at the risk of exterminating it; and suppose
Great Britain had done what she certainly would, and ought to
have done when those i)eople announced the purpose of their i)res-
ence there — had taken the ship, carried it in and confiscated it under
the provision of the laws made there and in force for that purpose,
and the United States calls upon Great Britain (as they call upon
us in this case), to pay for vessels seized in such fishing; suppose
that to be the question addressed to this Tribujial, and we to become
the advocates of the rights of mankind iu the open sea and ask
an award that vessels there for that avowed purpose and with that cer
tain result and seized by the British Government in pursuance of stat-
utes long in force, and well known to all the world should be paid for,
I should like to know what decision would be expected from this
Tribunal in that case? I should like to know what member of this
Tribunal would entertain that proposition for one single moment; and
yet it stands upon everything that can be invoked in favour of tlie
propositions of my learned friends iu respect of the seal. That is to
86 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
say, it would stand upon a general dissertation on the freedom of the
sea, and the right of tishing as a part of the freedom of the sea, and
upon this favourite proposition of my learned friends that they recur to
with so much pleasure — (because it seems more grateful to them than
discussing some other propositions in the case) — that you cannot give
an extra-territorial effect to municipal statutes. That is all very true
as a general proposition, but not true as applied to this class of
cases. It is as true in this case, as it is in the other cases of the
Atlantic: it is true' that the sea is free: it is true that fishing, as a
general rule, is one of the rights of tlie freedom of the sea: it is true
That as a general rule statutes do not extend in their effect beyond the
territorial jurisdiction of the nation tliat enacts it. We should have
the advantage in our claim for payment for the schooners that were
destroying tlie pearl fisheries, of those propositions. Should we suc-
ceed"? and if we should not, upon what ])rinciple is one rule to be
appealed to in that case, and another in this?
Now, sir, if it Avere true that those Pearl Oysters had to go ashore
seven months of the year in order to continue their species, and went
ashore upon the British territory for that purpose, would the case be
any weaker ? Should we be able to say under those circumstances "you
could successfully maintain your right to tlie oysters, if they had stayed
in the sea all the time outside your jurisdiction, but if they went on
laud and propagated there you could not"?
Senator Morgan. — Does the British Government get any revenue
from these fisheries?
Mr. Phelps. — I do not know. I suppose they do. I take it for
granted that they do, or they would not regulate them by public enact-
ment.
Sir Charles Russell. — I do not speak with certainty, but I believe
not. If you think it material we can enquire.
Mr. Phelps. — I do not speak with certainty. I supposed they did,
but I do not really know.
Senator Morgan. — The American government, of course, get a reve-
nue from the product of the fur-seals, and they are made tlie instrument
of profit there to that extent.
Mr. Phelps. — That is a view of the case lam coming to pretty
soon. I had supposed that the British Government derived a revenue.
I may be mistaken. My friends would know a great deal better than I
should, but it is not material to my argument.
If you maintain the unquestioned right of Great Britain in the pearl
fisheries (which they contend for in their argument very properly), I ask
upon what ground you are expected to discriminate the case of the seals
from that? because when you come to look into the condition of the
animal, these animals who have come on sliore to live, to propagate, to
continue to exist, are ten times as much attached to the coasts as the
fish. If there is any discrimination between the two cases the case of
the seals is ten times stronger than that of the oyster.
Then it is said by whichever of my friends is responsible for the
printed argument (and I believe it is said in the oral argument). " The
oysters are on the bottom of the sea; the seals are on the top. That
makes a difference". In the first place, what authority does that stand
on. When they set up a distinction that has no reason for it, and no
sense in it, why, if it exists, it exists as a technical rule that is estab-
lished by authority, and, therefore, must be regarded. Is there any
authority for it? Is there a line from anybody who wrote before this
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 87
argument, to explain to us why it is that there is a difference between
a product of that sort on tlie bottom of the sea, and on the surface?
Supi)ose seals i)ropagated on the bottom of the sea instead of going
ashore, woukl they concede tliat we should be any better oif ? Suppose,
in the nature of these animals, when they came in they Avent to the bot-
tom within three miles and their young were born, nurtured and raised
there, would that make a case in our favour that we have Jiot now ? Or
suppose on the other hand, as I said just now, that oysters went ashore
for this purpose. Why, it is very apparent that it is not a difference
that could touch the principle? That is not a dilference that there is
auy sense in. It is not a difference that was ever heard of before, as far
as we may infer from the absence of any authority being cited in favor
of it.
In answering Senator Morgan's question Mr. Foster puts into my
liands one of the Acts with regard to the Pearl Banks of Ceylon, It
is called Regulation No. 3, of 1811.
Mr. Justice Harlan. — Where are you reading from?
Mr. Phelps. — Page 401 of the first volume of the United States
Appendix. The Regulation is in these words :
AVbereas there is reason to suspect that dejjredations are committed in the Pearl
Banks of this Ishiud by boats and other vessels frequenting those places in the calm
season, without any necessity or lawful cause for being in tliat situation.
For the jirotection of His Majesty's property rt«ri revenue, His Excellency the
Governor in Council is pleased liereby to exact and declare:
Then follows the Regulation.
That if any boat or other vessel shall hereafter, between the 10th of January and
the end of April, or between the 1st of October and the end of November in any year
be found within the limits of the pearl banks, as described in the schedule hereunto
annexed, anchoring or hovering and not proceeding to her proper destination as wind
and weather may permit, it shall be lawful lor any person or persons holding a com-
mission or warrant from his excellency the Governor, for the purpose of this Regu-
lation to enter and seize such boat or other vessel, and carry tlie same to some
convenient jiort or ])lace in this island for prosecution. And evei'y such boat or other
vessel is hereby declared liable to forfeiture by sentence of any court having revenue
jurisdiction of sufficient amount, and shall be condeumed accordingly; two-thirds
thereof to the use of his Majesty and one third to the person seizing or prosecuting,
unless such boat or other vessel shall have Ijeen forced into the situation aforesaid
by accident or other necessary cause, the proof whereof to be on the party alleging
such defence.
Senator Morgan. — That is a sort of prize jurisdiction.
Mr. Phelps. — Yes that is what would happen to the vessel of another
nation that went in there in the prohibited time, and intended to make
a temporary profit out of the pearl oysters, that would destroy the
animal itself, and the industry.
Are we to understand that the meaning of that statute is that if any
British subject violates it his vessel shall be forfeited, but it is a nullity
to all the rest of the world; and therefore if a British subject will go
and register his vessel under the laws of some other nation, that will
give him that privilege; that he may come there with impunity, just as
these renegade Americans are doing, under the protection of the British
flag in the destruction of these seals, to commit w'hat would be an
indictable offence if it were not under that protection. Is that the
meaning of that statute? Is that what my learned friends desire us
to infer from this technical argument as to the general applicability of
statutes, that the real reading of that statute is that if any person,
under the British flag, should depredate upon these oysters within the
prohibited time, his vessel is liable to seizure and confiscation j but if
88 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
he caine tliere under any other flag in the Avorld that he could get the
use of, whether it is his own or uot, then he may exterminate them at
pleasure.
Senator Morgan. — It could not be meaut as a hovering provision.
Mr. Phelps. — One would think not. The language is broad enough.
1 shall have occasion pretty soon, in another connection, to consider
exactly, what is the meaning of such a statute. I am now upon the
general subject. Have they shown us that in this case, or in any other
of those that have been referred to, and that I shall refer to again, —
have they shown us that in any case, either that an individual has been
permitted with impunity to violate any statute made for the protection
of any such product, or that any nation in the world in diplomatic cor-
respondence, or in any other way, has challenged the right, or asserted
the right of its citizens to go and i)articipate in it. It is the usage and
custom of nations that my friend says makes international law; and it
undoubtedly does when such usage and custom have been sufliciently
expressed, and it can only be expressed by acquiescence. Undoubt-
edly, on a point where the usage and custom of nations can be regarded
as established, he is quite right in saying that makes International
law, and may make it to such an extent that you can not countervail it,
even upon strong moral considerations. We are not now engaged in the
discussion of the general principles of the extent and applicability of
particular statutes, whether they are or are not sometimes defensive
regulations, whether they may or nuvy not be extended bejond the
three mile line. That is uot the point. What is the usage and custom
of nations in practice, in point of fact, in regard to pro]ierty of this
kind under similar conditions — weaker always — but similar,? Now I
repeat the question :
Instead of this argument on the general ])ropositious that nobody
denies, and that is perfectlj^ foreign to anything we have before us,
have t\\ey shown us the case in any of these countries wiio have asserted
such rights in which any individual belonging to another country has
been permitted to transgress it, or any nation has challenged their right
to forbid it? I go further: have they shown that in addition to all these
instances, which, as I said, comprehended every case of such property
that we know of, now existing in this w^orld, have they been able to say
" in another country that you have not mentioned, in respect of another
class of similar property which you have not brought forward, a nation
which has undertaken to protect it and build up an industry upon it,
has found itself incapable of enforcing its rights, and has permitted
foreigners to come there and invade it to the extent of destruction, or
to any extent at all. Have they fouud such an instance? Not one.
Starting with my learned friend's proposition, that it is the usage of
nations, just or unjust, right or wrong — that makes international law —
that it is of no use to talk about the principles of justice, of right,
of the fundamental ideas that underlie the law, the necessity of man-
kind, the policy, tlie comity of nations — the ])oint is what the usage
of nations has been, we undertake to show (and there is no contradic-
tion in the evidence in this respect) what the usage of nations has
been in every similar case that we know of. Do they ])r()duce any
other case establishing a dift'erent precedent? Not one. But they say :
" statutes do not operate beyond the jurisdiction of the country that
enacts them". Does the power of the country (call it by what name
you please), operate to the extent of protecting this industry whether
it is inside of the three-mile line or not? That is the question. Now
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 89
what is the technical effect of a statute. What has beeu the actual
effect of such statutes, for the one hundred years or more that they
have prevailed in all parts of the earth. My learned friend who just
now was so clear that the passage from Vattel, that I began by read-
ing this morning, applied only to the three-mile limit, forgot for the
moment that they have cited that very ])assage in the printed argu-
ment in sui)port of their right to protect tliose Pearl Fisheries 20 miles
out at sea. JMy friend cites the same passage that I have read as show-
ing that their right to the Pearl Fisheries is unquestionable. But this
morning he iiilorms us that Vattel is very clearly applying it only to
the three-mile limit.
Sir Charles Kussell. — 1 was not referring to that passage in the
observation I made.
Mr. Phelps. — That passage was the only subject of discussion at
the time.
Sir Charles Kussell. — They are not in the same section at all —
not in the same connection,
Mr. Phelps. — I am referring to the passage that I read from the
United States Argument this morning, being one section and a part of
the next section, and the question arose — it was suggested by his Lord-
ship, that perhaps that Vattel meant to say that the right was exclu-
sive within 3 miles. That was the point, and my friend says that is
what it means, and that the context shows it; and yet in the British
Argument, at page 51, you will lind this very j)assage referred to in
support of the claim they there make that their right to the Pearl
Fisheries which they have had from time immemorial, is unquestioned;
and they give there the very meaning and the correct meaning to the
passage from Vattel that I gave it this morning.
Now my friends may have this one way or the other. It does not so
much stand upon whac Vattel says, eminent as he is; it is a good
starting point to find the proposition so felicitously stated by so great
a writer. Cast that aside: what is the usage of mankind in regard to
these various kinds of i^roperty? They say: there is no analogy
between oysters and seals. Well, what is the reason that there is not?
And, if there is a dilference, which way does the difiereuce make 1 Both
are marine products to a certain extent — the oysters exclusively so.
They never come ashore — never touch the British territory: the seals
do come ashoie, and they must. Thej' are produced there and they
remain there a consideraljle ])art of the time. Now what is the reason
that there is not an analogy? and, so far as the analogy fails, in
which is the case the strongest for the right of protection if there is a
difference between the two cases?
There is the case of the Mexican Pearl Fisheries. I will not read
those Statutes again. They have been read once, and they are in
print before you. We know what their effect is, but I will briefly refer
to the map. If you will have the kindness. Sir, to glance at the map,
it is at page 486 of the first volume of the United States Appendix.
You Avill see there laid out — (and it has not been questioned in the
British Counter Case that it is laid out correctly) — the extent of the
Fisheries that are there protected. Those red and blue concessions —
(that is the space in which these oysters are found) — are each 5 kilo-
metres in width. The technical operation of these Statutes I Avill
consider by and bye; what has faleii, place with regard to those Fisher-
ies? Have tliey ever been permitted to be invaded by the Government
of Mexico? Is there proof that somebody has gone there sailing under
90 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
the flag- of mankind and claimed to take a hand in those Fisheries in
the sea outside of the three mile limit, and that the Mexican Govern-
ment have permitted him to do it; or that any nation has asserted any
such right? Those laws apply in terms to foreigners, but I lay no
stress ui^on that. You cannot extend the jurisdiction of a statute, by
the words of the statute itself, beyond the power which the nation has
to pass sucli a statute. If a Statute does not operate beyond the juris-
diction of the country tliat enacts it, it cannot be made to operate by
jjassing another Statute in that country that it shall. I lay no stress
(except for a purpose I shall come to l)y and bye), upon the fact that
many of these statutes — both British and Foreign — are general in their
terms, and nmnifestly apply, so far as the language goes, to foreigners.
I am upon the question of what has taken place under such statutes.
International law is not made by any nation passing a statute — it is
the acquiescence of mankind in the assertion of a right that makes
International law.
iSTow take the matter of the Coral Reefs. The French law protecting
that product will be found in Volume I of the United States Appendix
page 4C9. You will find opposite page 4G1) on the map, the area of the
Coral lisheries on the coast of Algeria which are protected by the French
law. The second article li'om the Decree of the 10th May 1862 is quoted
in French at page 469; and the translation is this:
Upou the request of the expert lisliermeii of their representatives, or, for the want
of them, of the syndicates (organizations) of seafaring men, certain fisheries may lie
temporarily forbidden over an extent of sea sitnated beyond three miles from the
shore, if such measure is required in the interest of the preservation of the bed of the
sea or of a fishery composed of migratory fishes.
You will see on the map the extent to which that runs out," which is
considerable. I do not know that the exact figures are given — 7 miles
I am told is the extent.
The Australian Pearl Fisheries will be seen indicated in a previous
map opposite to page 468. You will see how very extensive they are —
much beyond any limit of territorial jurisdiction, and that statute is by
its terms restricted to British subjects and boats. It has been remarked
upou by my friends on the other side. But there again whatever the
effect of the statute nniy be, the same question occurs: what has taken
place? Is that a business that is open to mankind at large? Has it
ever been attempted ?
The Italian Coral Beds have been referred to. The Coral beds of
Sardinia and Sicily, the former from 3 to 15 miles from the land; the
latter 14 to 32 miles from the land. The maps relative to those will be
found opposite pages 470 and 472 showing the extent of these "fish-
eries", if that is a correct term. One map is of the coral beds of Sar-
dinia and the other of the coral beds of Sicily. You will see to what
distance they extend. And those statutes are general in their terms so
that by the language of the statutes they would apply to foreigners. It
was observed by the Marquis Venosta when that was under discussion
before — I believe when my associate was speaking — that he did not
understand those Statutes to ai)i)ly to foreigners, but that foreigners did
not go there. Well that is the point upon which I am now. Has Sicily,
or has it not, from the beginning, up to now, successfully asserted its
protection over this property? Has any writer challenged it? Has
any nation challenged it?
Passing from the subject of coral — we have considered the pearl
oysters and the coral — I believe I have named all that there are — pass-
ing to oyster beds, the British Fisheries Act of 1868 (which will be
OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 91
foniid ou page 457 of the 1st volume of the United States Appendix),
you will see, without my stoj)])!!!};- to read it, is very explicit, and is
bounded by lines which are shown on the map which tahe in a very
great area of the sea. They are 20 miles out in breadth, and for a long
distance — some degrees of latitude, along the coast of iJublin, Wicklow,
and Wexford Counties; and it is provided there after giving these
boundary lines from the eastern point of Lambay Island to Carnsore
jjoint on the Coast of Ireland within a distance of 20 miles from there
measured from a straight line drawn as shown on the map, that all such
Bye laws should apply equally to all boats and persons on whom they
may be binding. Then it proceeds in conclusion to say this:
It shall be lawful for Her Majesty by Order in Council to do all or any of tbe fol-
lowing things namely.
(a) To direct that such Byelaws shall be observed.
(b) To impose penalties not exceeding twenty pounds for the breach of such Bye-
laws.
(c) To apply to the breach of such Byelaws such if any of the enactments in force
respecting the breach of Reguhvtions respecting Irish Oyster Fisheries within the
exclusive lishery limits of the British Islands and witli such modifications and alter-
ations as may be found desirable.
(d) To revoke or alter any Order so made, provided that the length of close time
prescribed by any such Order shall not be shorter than that prescribed for the time
being by the Irish Fishery Commissioners in respect of beils or banks within the
exclusive lishery limits of the British Islands. Every such (Jrder shall be binding
on all British Sea Fishing Boats and on any other Sea iishing boats in that behalf
specified in the Order, and on the crews of such boats.
There we have in explicit terms that the statute authorises the Orders
in Council to extend to everything. Well, says my friend, they have
not extended them. I do not know whether they have or not. If he
says that, I take his statement.
Lord Hannen. — That requires a little explanation. It is only giving
the power to the Crown by the advice of the Privy Council to do certain
things in certain events.
Mr. riTELrs. — I am quite aware of that.
Lord Hannen. — It is a common mode. It is only to give the power
of exercise; but of course it has no effect.
Mr. Phelps. — I am quite awareof it. It is a statute that gives power
to issue Orders in Council.
Now if England has not that power, how can that statute confer it by
Orders in C<juncil"?
Sir Charles Russell. — Tiiat is explained in the Argument at
page 50.
Lord Hannen. — It is to enable the crown to enter into Conventions,
and other things, without the trouble of going to Parliament.
Mr. Phelps. — I should have said if the remark had not come from
your Lordship but from the argument on the other side — that that was
a far-fetched constructioiL
Lord Hannen. — I am only telling you the fact; deal with it as you
think fit.
Mr. Phelps. — The statute contains no such reference. The statute
is:
Every such Order shall be binding on all British Sea Fishing Boats and on anj
other Sea Fishing Boats in that behalf specified in the Order.
Senator Morgan. — lias the statute been re])ealed.
Mr. Phelps. — No not that I know of. I believe it is not claimed to
have been repealed.
If as is said by my learned friends this is the reason of that statute,
with the extreme particularity with which English statutes are usually
92 ORAL ARGUMENT OF HON. EDWARD J PHELPS.
drawn, I suppose it would have said so; it would have said that it
shall api)ly to any fishing boats in respect to which any convention
or Treaty may be entered into; but we are still short of the practical
question; what has become of the fisheries? While we may be dis-
cussing the technical operation of a Statute that authorises Orders
in Council — while we may be considering whether in fact any such
Order in Council has ever been issued — and if my friends say it has
not I of course take their statement because they know very well —
while we are discussing that, what has become of the fish — the
oysters'? There again is it shown, in this exhaustive preparation, ihat
notwithstanding the language of this Statute the beds have been open
to all the world up to the extent of the tliree mile limit? Has any
instance of any infringement been shown, or does the same conclusion
come as in every other one of these cases? The Government take the
business in hand as they ought to do — as they are bound to do in jus-
tice to their subjects and themselves— they take the business in hand
by making a revenue and making an industry, and they pass a statute
that on the face of it says to the world: " Stand off; you cannot come
here within 20 miles and take these fish".
My friend says that that statute would not do any good if the world
came. Did they ever come?
Has any body attempted it? Has any nation asserted it, or has it
resulted in a complete protection of that industry? And what would
have happened if they had come?
The President. — War. It has perhaps not been challenged, but it
is a challenge.
Mr. Phelps. — Yes, if it can be dignified with the name of -"war";
but it is unquestionable that if any foreign vessel had undertaken to
come there and destroy the fish, that vessel would have been taken and
prevented from going on in the business. If that is war, then call it so.
But what nation would have backed up its citizens in any such attempt?
What nation, I repeat, ever made such an assertion? It is the practi-
cal result of those acts by the exclusive acquiescence of nations that I
am dealing with.
The Scotch Herring Fishery Act is a provision of a very similar kind.
The map will be found opposite page 458 of the 1st volume of the
United States Appendix, showing the extent of the sea. It is a very
large one and covers a very large tract of sen, extending some thirty
miles from land. It applies in its terms to " any person ". My friend
says "any person" means any person within the jurisdiction of Great
Britain and, for certain purposes, when that language is used in an
Act, tliey are undoubtedly right. But here again comes the same ques-
tion as to the i)ractical result that has taken place. 1 do not know,
Sir, that, aside from these Herring Fislieries, Oyster Beds, Pearl Oys-
ters, and Coral, there is any other description of proi)erty now known
in the world that comes within the purview of this priucij)le, except it
be the seals.
Now what about the seals? What is the protection that has been
extended to them? And before entering upon that branch of the sub-
ject, as it is within two or three minutes of the time of adjournment,
perhaps it would be convenient for you to hear me afterwards.
The President. — Quite so.
The Tribunal then adjourned for a short time.
Mr. Phelps. — I hope. Sir, I shall not be found tedious iii pursuing
this line of illustration, or rather of historic precedent, over which I
shall pass as fast as I can. I now come to the particular point of the pro-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 93
tection that has been afforded to the seal in the various countries, — all
the countries I beheve in which it is now to be found, and the conse-
quence of the want of it in those countries in which it formerly existed
and from which it is now gone.
The first instances I shall allude to are under the Imperial Govern-
ment of Great Britain, but in force in its Colonies. In the 1st United
Stares Appendix, at i);iges 43(5 and 437 will be found tlie Act for the
protection of seals in ^ew Zealand — an abstract run ninrj through pages
438, 439 and 440, and a Map. It is said by my learned friends in regard
to the map, and I think they are right in this criti( ism, that as drawn
it carries an erroneous impression of the etfect of the Act fixing- the
boundary of the Province of New Zealand; that while the map is cor-
rect in giving the limits of latitude and longitude which are described
as constituting the Colony, that it was not the intention of the Act to
assert such a jurisdiction over all the intermediate sea, but only to
make that a boundary so as to include within it all tlie land and islands
with the usual territorial limits. Certainly that was not the intentiori
of tlie gentleman who prei)ared this map; but I think the observation
of my friend is well founded. Neither is it in the least material to our
purpose, because as I believe I remarked this morning, nothing can be
clearer than that the jurisdiction upon the high seas of a country can-
not be arbitrarily extended to geographical limits, aside from any
special necessity that would justify it, by a Statute of that country.
So that if it were true that the Legislature of New Zealand had under-
taken to assert that several thousand miles of sea, irrespective of a"ny
particular purpose, should beregardedas the territory of New Zealand,
that would no more make it so than it would have followed if they had
passed no such act whatever. But the point is the ch)se protection,
the very special protection given by these acts, and under which, on
the face of the act, any vessel, boat or crew are made liable if found
within the waters where the seals are. That is the point to which we
have intended to invite attention by reference to these Statutes and
the construction of the map.
Section 4 of the act of 1887 provides :
If any person shall be foniul iu the possession of any seal, or the iinniannfaotnrecl
product of any seal, dnrin.o- the close season, such possession shall, for the purjtosea
of the said act and this act, be deemed to he, in the absence of satisfactory evidence
to the contrary, suflicient proof, and so on.
Then section 5 is :
Any vessel or boat the crew of which, or any part of the crew of which, shall bo
engaged in illesally takini^ seals, and any vessel or boat on board of which any seals
so illeijjally taken, or tlie skin oil, blubber, or other product of a seal so illegally
taken, shall be found, shall, together with the boats, furniture, and appurtenances
of such vessel or boat be forfeited to Her Majesty, and shall he disposed of as the
Commissioner may think lit.
There are other very stringent provisions. There is one in section 7
that provides in effect that any officer of that Government shall have
])ower to enter upon and search any vessel within the jurisdiction of
the Government of the Colony of New Zealand for aiiy seal or the
product of any seal. I need not go through with the details of this
protection; it is enough to say that they are such measures as are very
.properly and intelligently adopted by that Government for the protec-
tion of tlie seal, and whether they are greater or less, or right or wrong,
in themselves, does not affcf.t the principle.
Here again the same observation which I have had occasion to make
before is applicable. During all this period and through all these Acts,
94 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
if the practical operation of them during many years has been only to
control British subjects and British ships, and if it be true that tlie
seal fisheries of J^ew Zealand have been oi)en to the world during this
time or any part of it, or if such an assertion has ever been nnule, evi-
dence of it would have been forthcoming, because my learned friends,
of course, and those who instruct them are quite in possession of all
the records, and all the information and knowledge that is to be fur-
nished by the (jrovernment of New Zealand, on this .subject.
Look at it for a single moment. Is there a single spot in the world
where the fur seal is known ever to have been that it has not been made
the subject of i)ursuit from the very i)rofitable results of such pursuit ?
Is there a place? We have seen in the ])rogress of this case that on
almost every S])ot in the world except these Islands in BehringSea, the
seal has not been only i^ursued, but exterminated. In two or three
localities, under the influence of such protection as has been adopted
at a comparatively late day, when attention was called to the value of
it — in two or three localities like the Lobos Islands, and such places,
there is a remnant of the seal. Now if the New Zealand seals had«been
open during all this time to general pursuit as my learned friends con-
tend the Behring Sea seals should be and are, how happens it that that
place alone has been free from the attacks of the vessels that have
gone to the utmost parts of the earth, as the evidence shows, for the
purpose of depopulating and exterminating the seal Islands. This then
appears, that under these Statutes which on the face of them apply to
everybody — under the effect of those Statutes in the districts .shown by
the map, the seal has been protected, and the world — that is, such ]>or-
tion of the world as could have any interest m trespassing upon it —
has acquiesced in that.
The Falkland Islands is another place, where at a later period — as
late as 1881 — measures were adopted for this purpose. It was an Ordi-
nance to provide for the establishment of a close time in the seal fl.shery
of the Falkland Islands and their dependencies, and the seas adjacent
thereto ; and the preamble is :
Whereas the seal fishery of these ishinds which was at one time a source of profit
and aclvanta.i;e to the colonists has been exhausted by indiscriminate and wasteful
fishiusi, and it is desirable to revive and protect this industry by the establishment
of a close time, during which it shall be unlawful to kill or capture seals within the
limits of this colony and its dependencies,
Be it therefore enacted, and so forth. That is the reason and the
first reason why no person .shall kill or attempt to capture, and without
stopping to read the various jnovLsions, they will be seen to apply in
their terms to any person, any ship, any master or sailor, and to every
description of seal including some varieties that are not strictly of the
family of the fur seal.
Sir Charles Russell. — Within the limits of the Colony.
Mr. Phelps. — Within the limits of the colony and its dependencies,
yes. It does not appear there, — I think the contrary does appear — that
the sealing is not pelagic. I do not know whether it does or not appear
that this sealing is principally, I believe, on the Island.
Mr. Justice Harlan. — At any rate, that state went as far as flie
country thought it could go for the protection of the seal.
Mr. Phelps. — It went as far as it was necessary to go and only limits
it by the limits of the Colony.
I may say in ])a.ssing what I might better have said at the beginning
of this afternoon, that this protection of the seal, shown to be univer-
sal now as far as there are any seals left, will be a very important con
sideration when we come to discuss the extent of the freedom of the
ORAL, ARGUMENT OF HON. EDWARD J. PHELPS. 95
sea. It will be seen, as I pass over these instances, that in every spot
wliere there are any seal -. now, even in places where they have been so
nearly exterminated, that it is almost qnestionable whether it is worth
while to try to restore them, like these very Falkland Islands and some
other places, wherever there are seals enongli to afford any prospect of
nsefnlness in attempting to protect them, there they are protected. So
that if the right exists to come here and exterminate this race npon the
high seas, then it follows that you may do on the high seas what the
inhabitants of this country are prohibited by their own laws from doing
within their Jnrisdiction, — what is ])rohibited by the laws of every
country where the same animal is still to be found.
It is said by my learned friend, Sir Richard Webster, that in the
case of the "Harriet", which was a vessel belonging to the United
States that was captured at the Falkland Islands, the correspondence
contains some language tending to show that the Government of the
United States did not recognize any right to interfere with them upon
the high seas, but asserted the contrary. My learned friend is wrong
in the inference he draws from that case, except to the very limited
extent that I shall point out. The correspondence will be found in the
Counter Case of the United States at page 184. The American vessel,
the "Harriet", which was seized there, was seized for taking seals on
the Falkland Islands; and, of course, there can be no question about
the illegality of that, or the proju-iety of the seizure; but the case fell
for discussion into the hands of some gentleman not named, who Avas a
United States Charge d'Affaires, that is to say, he was the Secretary
of the Legation at Buenos Ayres, which is not a very great Legation,
and had the good fortune to be able to deal with this subject in the
absence of his principal. Those who have paid much attention to
diplomacy have become aware that the ablest diplomatists are those
who consume the least ink in dispatclies that have to be printed. But
there is another class of diplomatist, if you can dignify them by such
a name, of less distinction, and of whose labours the results are gener-
ally wanting, who lose no opportunity to enlighten the world by the
discussion of those abstract propositions that wise nations and wise
statesmen avoid the discussion of just as far as they can. I do not
know who this young gentleman was, his name has not survived; but
young or old, I should judge from his style he was not past tiie period
of imagination.
Sir Charles Russell. — He says he is stating the views of his Gov-
ernment.
Mr. Phelps. — Undoubtedly he is stating the views of his Govern-
ment, as expressed by himself. A Charf/e cV Affaires always does
express the views of his Government in what he says officially ; but
whether he had received instructions from his Government to discuss a
question that was not raised, is not shown; from my knowledge of the
statesmen who had control of the Government of the United States at
the date of this correspondence, I should think it very doubtful if he
had. I think if he had received any instructions from his Department,
it would have been to confine his discussion to the i)oint in dispute, and
not to anticipate evil by discussing some question that was not up.
He does set forth what fiilminations would have been launched by the
United States Government against anybody that had seized a hypo-
thetical vessel on the high sea, on the pretence that it was doing some-
thing that could be imagined; and what he says on that subject may
go for what it is worth, as far as it is authority. But iJu; case jiresents
nothing except the right of the authorities to capture that vessel for
96 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
going on to the Falkland Islands and killing the seals. That is all
there is of it. What he says on tlie general subject is not of one tenth
part the consequence of what either of my learned friends say, because
they are so much more competent to discuss it than he is.
The deposition of Captain Budington is to be found in the 2iid volume
of the United States Appendix at page 593, and throws a little light
upon this vexed question of how far these Statutes and liegulations
and provisions are actually in force. He was a master mariner, and a
sealer in the Antarctic, who had made, as he says, several voyages to
the Southern hemisphere for the purpose of seal hunting, and was
thoroughly acquainted with the islands and coasts. He speaks of vari-
ous localities in which the Seals had been found, which he had visited
and helped to exterminate them. One is Patagonia. There, he says.
Great quantities have been taken from the Eastern Coast, hiat at present there are
no seals there.
Then.
Terra del Fuego and the islands in the vicinity. These islands were at one time
very abundant in seals and were considered among the best rookeries. I vis^ited
them in 1879-1880 and took 5,000 skins. On my last voyage in 1891-1892 I took only
900 and the majority of these came from auother portion of the coast which had not
been worked for twelve or fifteen years. Thousands of skins had formerly been
taken from these islands but the animals are practically extinct there today.
But what I was coming at is this:
Falkland Islands. At one time these islands were very abundant in seal life, but
excessive and indiscrimiuate killing has nearly annihilated them; this fact was rec-
ognized by the government of the Islands, which passed an ordinance in 1881 estab-
lishing a close season from October to April. It will be recollected, being in the
Antarctic, this is the opposite period of the year, for the islands and the seas adjacent
thereto. My understanding of this ordinance was that the Government would seize
any vessel taking seals close to or within 15 or 20 miles of the islands. It certainly
would not have been allowed to take seals between the Falklands and Beauchene
Island 28 miles distant, which is considered part of the group. I understood this
ordinance was passed on the ground that the seal resorting to these islands was the
property of the Government," and therefore it had a right to protect them every-
where. The Government, however, gave licenses ,to certain parties at from I. 80
to I. 100 a year to take seals during the close season. On account of these licenses I
think the effect of the ordinance is nullified, although the islands are well guarded,
and seals have increased very little if at all, because of allowing hunting to take
place under these licenses.
^ow it is said by my learned friends, and said truly, this is the under-
standing of that man. Who is he? A sealer whose business has been
going through that part of the world and capturing the seals indis-
criminately, who had visited the Falkland Islands, who while there
were seals enough there to make it an object to have pursued them
refrains, because he understood as the fact undoubtedly was, that if he
meddled with them in defiance of the existing regulations, his vessel
would have been seized. It is the best evidence we can get in such a
case, unless indeed some one had been hardy enough to attack the seals
and had been seized in point of fact. The next best evidence is that of
persons who had been engaged in that destruction, and had such an
understanding in respect of the manner in which these statutes were
enforced, that they were induced to refrain and did refrain, and it is
most likely that their understanding was correct.
In Newfoundland there is protection extended to a different variety
of the seals, but still seals. They are hair seals. The Act of 1879 and
the Act of March 1883, and the Act of 1882 are three Acts that are
quoted in the 1st vo. of the United States Appendix at pages 442 and
following, and were enacted and very properly enacted for the protection
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 97
of those anhiials, being found necessary to their protection if they were
to be saved. The terms of the Act show wliat the distance is. It pro-
vides that no steamer shall leave port for the seal fishery before <>
o'clock in the forenoon on the 10th day of March in any year, and no
sailing vessel shall leave port for the seal fishery before the hour of 6
o'clock in the forenoon on the 1st day of March in any year. It ])ro-
vides that no steamer shall make a second trip in any one year, from
any port of this colony or its dependencies; that no official of Her
Majesty's customs in this colony shall clear any steamer for a sealing
voyage before the 9th day of March, or any sailing vessel for a sealing
voj'age before the last day of February. AH that shows, without the
aid of any map, that it is a voyage for which a vessel requires a clear-
ance, and the time of sailing for which is material; and only one voy-
age is permitted during the year. All that shows that this is something
outside the three mile limit, and the nature of the animal, as we have
heard from the evidence in this case, is such that it must be sought
principally in the open sea, beyond that line, some hundreds of miles —
I am told by General Foster, but far enough to answer the purpose of
this discussion, because quite outside of any territorial jurisdiction.
There is a deposition on this subject as well.
Senator Morg-an. — Is there any evidence to show those hair seals
have any summer home on land anywhere, at any particular place?
Mr. Phelps. — I do not think there is. I thijik that they do not
breed or proi)agate on laud as the fur-seals do. They propagate on the
ice, I am informed. 1 do not understand that they come to the land
for any such purjiose or such period of time as the fur-seal do.
Senator Morgan. — The reason of my question was that I supposed
that was the occasion for the enactment of laws by governments inter-
ested in the hair-seal fishery on hunting that were several hundred
miles distant. No particular country had jurisdiction over the land
upon which that species of seal was propagated.
Mr. Phelps. — I suppose that is true. I suppose that there is no
analogous case, in respect to their attachment to the soil, to that of the
fur-seal to be found in the hair-seal; but, nevertheless, under circum-
stances much weaker on behalf of i)rotection than that of the fur-seal,
this protection is extended, and as I insist it is properly extended.
The President. — I believe they are less migratory in their habits.
Mr. Phelps. — They are less migratory, so that in one respect they
remain nearer, but in the other particulars I think they do not go on
the shore. There is evidence to which I shall have to refer so as to
answer that.
Senator Morgan. — As I understand, several European Governments
have by convention arranged for the jn-otection of these seals by a
close season and otherwise, and I state the proposition with a view of
having information ux)on it, if it can be obtained. I suppose that this
joint arrangement between the nations is really predicated on the fact
that no one of them had a i)articular jurisdiction over the animal,
because they landed or were in the habit of landing at a particular
territory.
Mr. Phelps. — That applies to some of the fisheries that I shall refer
to. This one is an Act by Canada, or JSTewfoundland I should say, in
which no other nation, as far as 1 am aware, participates, and in respect
of which there is no convention.
Senator Morgan. — It protects the hair-seal within certain degrees of
latitude and longitude in the open sea.
Sir Charles Uussell. — It is Is'ewfoundland.
B s, PT XV 7
98 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Senator Morgan. — Yes.
Sir Charles Russell. — It lias regulations about preventing sealing
from a particular day in the year.
Senator Morgan. — To a certain place in the ocean.
Sir Charles Russell. — There is no question about any place in the
ocean.
Senator Morgan. — It seems to me it must be.
Mr. Phelps. — I will refer again to the act, whicli will be found on
page 442 and 444 of the United States Case.
Sir Charles Russell. — This is the Jan Mayen Convention.
Mr. Phelps. — That is the other side of the Atlantic, but in this one
the legislation is confined to Newfoundlnnd; and I will read a few of
these sections and then you will see how far it goes. The Act of 1892,
on page 444, I will refer to.
No steamer shall leave any port of Newfoundland or its dependencies for the prose-
cntion of the Seal Fishery before the hour of six o'clock in the fore noon of the twelfth
day of March in any year under a penalty of five thousand dollars, to be recovered
from the master, owners, or other person on whose account such steamer shall have
been sent to such fishery; provided.
And so forth.
Then
No seals shall be killed by any crew of any steamer, or by any member thereof
before the fourteenth day of March or after the twentieth day of April in any year,
nor shall seals so killed be brought into any port of this colony or its dependencies,
as aforesaid, in any year under penalty of four thousand dollars.
and SO forth.
Senator Morgan. — Now if you will allow me to ask, all that relates,
as I understand it to pelagic hunting of hair seals.
Mr. Phelps. — Yes.
Senator Morgan. — The question I was asking was, whether there
was upon the coast of Newfoundland, or any otber place where these
seals assemble, a rookery or place of resort or habitat.
Mr. Phelps. — I understand not. I understand that they breed in
the open sea or upon the ice in the open sea, that they do not come
ashore, that in that respect they are entirely different from the fur-seal.
Senator Morgan. — That is what I wanted to know.
Mr. Phelps. — You will remember, although in the evidence in this
case as to the Behring Sea, it is shown the hair seals frequent more or
less and are seen in the water, there is no proof they come up at the
Pribilof Islands or the Commander Islands or anywhere else.
Senator Morgan. — So that the Statute you have just read relates
entirely to pelagic hunting.
Mr. Phelps. — Entirely.
Sir Charles Russell. — There is a statement by Professor Allen on
the subject which would seem to be rather contrary to my learned
friend's view.
Mr. Phelps. — I may not be quite accurate in what 1 say about the
natural place of these animals. I confess it has not attracted my
attention.
Sir Charles Russell.— There is a reference in it to Professor Allen,
and there is this reference from Professor Flower, page 185 of the Brit-
ivsh Commissioners Report. He says:
In habits all the OtariidcB, whether hair-seals or fur-seals, appear to be much alike.
As might be inferred from their power of walking on all fours, they are better capa-
ble of locomotion on shore, and range inland to greater distances than the true seals
at the breeding season, though even then they are always obliged to return to tlie
water to seek their food, and the rest of the year is mainly spent in the open sea far
£iwav from land.
ORAL ARGUMENT OF HON EDWARD J. PHELPS. 99
Mr. Phelps. — I will be ready in the morning to answer the qnestion
definitely, but I am not at tliis moment. It is not in my mind, and wbat
I have said is upon my general understanding of the subject and may
be somewhat inaccurate. My general understanding is that they are
not much on shore, and certainly do not breed on shore, but that they
may come on shore at certain times may be true, as my learned friend
says, and is true if Professor Allen says so, as he is an authority on the
subject; but in all this mass of evidence I recall no statement by any
witness about any hair seal being ashore in Behring Sea — certainly not
on the Commander or Pribilof Islands Avith the fur seals, and I do not
think there is a statement by anybody as to having seen one ashore
anywhere else.
The propriety of those provisions is shown by the affidavits of a couple
of masters of sealing vessels which will be found at page 591 of the 2nd
United States A^jpendix. One of them says he has:
Been twenty four years prosecuting the seal fisliery on the coast of Newfound-
land, Labrador, and Gulf of St. Lawrence, nine years of which I have corumanded
a steamer.
I am opposed to second trips to the seal fishery, as I consider they are calculated
to destroy the, species, as all the seals killed on such trips are old and mature seals,
and at least 75 per cent of them are female seals.
I am now speaking of harpseals; they are principally shot on the ice, hut when
the ice pachs tliey are killed with bats. When shot on open or floating ice a large
number of them escape into tiie water and die from bleeding.
I should say that for every seal shot and captured three escape wounded to die in
the water.
That is when they are shot on the ice where, of course, it is easier to
hit them than when shooting at the head of animal that is swimming in
the water.
I have seen ten seals on one pan shot and wounded and all escaped. To kill and
capture the seal the bullet must lodge in the head ; if it strikes any part of the body,
the seal will manage to get to the edge of the pan and escape into the water. I
know from my own knowledge that the number of seals brought in on second trips
is yearly decreasing, and that tlie fishery is being depleted by the ])ro8ecution of
this trip. Apart from the number of old mature and female'seals destroyed, the
hunting necessary for their capture prevent the male and female coming together.
Eichard Pike testifies to the same effect.
1 cannot speak of the percentage of seals taken on a second trip, nor of the sex.
Nearly all the seals taken are bedlamors and old harps. The second trip generally
covers the month of April. Nearly all the seals taken on the second trip are shot oii
oi)en and floating ice. Very few are shot in the water, for if hit there is very little
chance of their capture as they sink immediately. They are seldom or never fired
at in the water for unless they are very close there is very little chance of their being
recovered. Fully one third of the seals shot on the ice are lost, for when wounded
they manage to crawl to the edge of the pan and into the water and when once in
the water tbey sink or die from their wouuds.
Seals shot in the water in the month of March can be recovered, as they are fat
and in good condition, and float, but in the latter part of April when shot they sink
immediately. I am strongly against second trips, as in my opinion they are causing
a rapid decline in the industry, likely to lead to the extermination of the species
by the killing of old and mature seals and the destruction caused by the use of fire
arms.
I refer to that to show what the point is of this statute enactment
against going out to the fishery before a certain period of the year and
against second trips. They are simply measures necessary for the
preservation of the seal.
The Greenland Fisheries, to which Senator Morgan referred, will be
found stated in the United States Case at page 227. I have a reference
to the State Papers on that subject, but the book accidentally has been
100 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
left out, and I may have to recur to that again to-morrow. I will only
point out now what the character of this Legislation is.
This region in the open sea is embraced in the area lying between the parallels of
67° and 75° north latitude and the meridians of 5° east and 17° west longitude from
Greenwich. These fisheries were made the subject of legislative regulation, appli-
cable to their own subjects, by the Governments of Great Britain, Sweden and Nor-
way, Russia, Germany, and Hollaud, by a series of statutes passed by these several
con'ntries during the years 1875, 1876, 1877, and 1878. The 3rd of April is estab-
lished as the earliest date each year on which the seals could be legally captured,
and penalties are fixed for a violation of the prohibition.
That shows the protection it has been found necessary by those
Governments to extend over a portion of the sea, so very large that no
one Government could undertake to assume it, because the water
washed ecjually the shores of others; and for Great Britain to have
said, "We will protect the seals clear across the north, up to the
coast of Norway", would be asserting to itself a right that ISTorway at
least might as well assert. The same with Holland; the same with
Eussia; the same with Belgium ; the same with Germany. The conse-
quence is that those Nations, wisely enough, entered iuto an Agreement
by which they should all pass Statutes; but when they have all passed
Statutes, how far have they reached an American, for instance?
America has adopted no such Statute; France has adopted no such
Statute as far as I know.
Suppose an American or a French vessel sails up into these Seas and
says "We will capture these seals, in a close time even, although it
amounts to an extermination ; we care nothing for your Statutes. Half a
dozen nations can no more adopt a Statute that shall reach our citizens
than one nation can"; and that is quite true. The Statutes derive no
force, as against any other nation, by the participation of various coun-
tries in passing them, excepting only that each country which adopts
such a Statute excludes its citizens by agreement from particii)ating in
the Fisheries. But suppose, I repeat, an American vessel is titted out
and starts for these Jan Mayen Fisheries in defiance of all this, on the
high seas, is there any power of defense, or must all these nations
stand back? If somebody from Nantucket in Massachusetts thinks
proper to fit out a poaching expedition to go and destroy those seals in
the breeding time, — is there any redress? Would that be permitted?
What would be the usage and custom of nations in regard to this?
Senator Morgan. — I may say the point I was trying to settle in my
own mind was, I did not know how it was; whether either of these nations
that entered into this Convention had any piece of land or piece of terri-
tory within the area of latitude and longitude which had been covered
by the Convention upon which these seals were in the habit of resort-
ing and have made a home, or was it simply the open sea?
Mr. Phelps. — There is no such place to my knowledge. It is the
open sea that they cover. Where these seals have their rookeries, that
is to say if they have rookeries, I do not know, and I am not aware of
any evidence in the case that discloses it.
Senator Morgan. — It is the floating ice, I understand.
Sir Charles IvUSSELL. — Yes; in the North Atlantic, if not exclu-
sively, at all events chiefly, — apparently on the floating ice.
Mr. Phelps. — I assumed so, because the area comprised by this lati-
tude and longitude is only Ocean, and as far as I am aware embraces no
land at all.
Senator Morgan. — It was an exercise of jurisdiction by Convention
over a part of the sea where there was no laud at all?
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 101
Mr. Phelps. — Yes, and where either nation has no right to legislate
except against its own subjects. And when various nations concur,
they do not make the case any stronger against a non-concurring nation
than it would be if only one nation legislated. What I am upon is, what
is the usage and custom of mankind f And if you have, in the pursu-
ance of tlie duty you have undertaken of deciding these questions,
to ascertain whether the freedom of the sea extends to this business,
and what is the general sense and sentiment and opinion of mankind
in reference to it, this is among the instances from which you derive
the sense of mankind. There is the action of these nations over a
part of the high sea, expressing what? Their belief that protection
of this sort is necessary in the free open sea, even of those animals which
do not attach to any territory, have no home and no resort, and which
no nation is making a husbandry of on its own territory at all.
Now I was about to remark as to a question put by me before tlie recess,
as to what would take place in these waters outside of the three-mile
limit covered and protected, or wliere the Government had covered and
protected, as far as they could, the animal life — the fish or oysters, what-
ever it may be — what would take place if a vessel of some other nation,
notwithstanding that, sails into this area and says " I am on the high
sea — 1 will take these fish and care nothing for your Statute or Eegula-
tions, and care nothing about what the consequence is," What would
take place?
" War" says the learned President, and in answering that question
in that way he touched the very point of this whole subject. What will
take place? The force of that nation will repel that aggression — that
nation will put a stop to that infringement of its rights and of those
instructions. Then if the nation to which this invading ship belongs
chooses to take the matter up, why it may or may not result in war.
There are such things as just causes of war recognized in international
law. If any nation should rise up and say if a predatory schooner of
one of our subjects goes up on to your coast in defiance of your Laws and
Pegulations to exterminate there a fishery industry and you rejiel it by
force we will go to war, then it would stand in the judgment of mankind
how far it could maintain that proposition. It would be force in the
place of war. I would use the word " force".
Well now when the United States put aside the right which in my
judgment it ought to have exercised, and refers it to this Tribunal, wliat
is the question that is referred? Is it not what would the United States
have been justified in doing for itself. The Award of this Tribunal
should give to the United States all they would have if they exercised
thisright for themselves. That i)erhaps comes under a little later branch
of my Argument which more strictly deals with the subject of self-
defence than this does on the question of a property interest with which
I am now dealing.
The President. — It is a very interesting and ingenious exposition of
your views, but that is not quite an answer to another question on
which I should like to hear you, and which you put a few minutes ago:
what would happen in the case of the Jan Mayen Convention if an Amer-
ican boat wa§ fitted out and was to interfere? You ])ut the question,
but did not give us an answer. I would like to know your view, whether
the American government, not being a party to this Convention, would
stand exa(;tly by the same obligations and have the same rights as those
other Governments which have been parties to the Convention. You
understand mv meaning?
102 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — Certainly, Sir, and while the answer will come in
appropriately a little later I am very glad to have the question put now;
I can answer it as well now as at any time.
There the case arises where these Governments are entitled to pro-
tect themselves against an aggression which is destructive to their
valuable industry, and which is without any warrant except the profit
that can be made out of it — except the profit to be made out of it by
the invading individual. That is a subject I shall deal with by and by.
Lord Hannen. — And would have equal force if only two made such
a convention.
Mr. Phelps. — If only two or only one, provided always that the one
which makes it has a specific right growing out of its territorial interest,
to make it.
I do not mean to say that one nation or half a dozen can control the
open sea without any other cause than its interest in the open sea
which every body else has alike. I do not mean to say that. I mean
to say when the interest is attached to the territory and is in the terri-
tory— the source of a valuable husbandry, an interest by which a valu-
able animal is preserved coming within the ]Hirview of the case that I
have been discussing, there the Government has a perfect right to repel
by force, as it would, as it ought and as it always has, any invasion
of it.
Then applying that to this larger area where several nations have to
combine to protect this interest, although perhaps it does not attach
itself to the shore of either of them, I should say that the nations united
would have the same right of protection they would have if standing
alone, if the husbandry was peculiar and the interest was particular to
its own country; but it is not necessary for us in this case to go so far.
The question involves the discussion of rights further out at sea, and
sei)arated from the particular territory of the nation.
I am not prepared at this moment to say as a matter of fact how far the
hair seal fishery is protected by this legislation under the convention of
various countries. Here is an interest like the whale fishery, which is
pursued exclusively in the open sea, which attaches itself to no terri-
tory, and is the basis of no industry, of no protection. It is a right
that all mankind share in common. Then, when you come to interfere
with that in the open sea, by the concurrence of several nations, it may
well follow that only the subjects of nations so concurring are bound
by that. Why? Because no one of them has a greater right of pro-
tection than anybody else has; but the moment, instead of being a
pursuit that is in the open sea, it attaches itself to the territory and
becomes appurtenant to it, and is there made the foundation of a
husbandry, and there protected, and is there preserved from extermi-
nation, and there statutes of that sort are applied, then it comes within
the doctrine of self-defence, that I shall allude to by and by, of the
nation itself, whether it is made the subject of concuirent regulations
and statutes of various nations, or whether it stands alone. As if, for
instance, Eussia had joined with the United States, as it would have
joined if Great Britain had, when the settlement of this question was
first made in England in 1887; suppose Pussia and Great Britain and
the United States, the three countries principally interested, owning
all the territory that approximated to these waters — all the shores
that are washed by these waters — suppose they had joined together.
Technically, you may say the case is no stronger than it would have
been on behalf of each nation protecting its own industry, as if each
ORAL ARGUMENT OF HON. EDWARD J. PHELPS 103
had separately legislated on the subject. But in another view of the
case it might have been regarded as proper.-^
Senator Morgan. — In asking the question I did, and which was
for information, I did not have in my mind the running out of these
principles into the serious results which have been discussed, and
which are not within our purview or even within the purview of our
contemphition.
I was looking at the question as to the value of these arrangements
between these Great European Powers as a precedent on the subject of
regulations that might be adopted by this Tribunal, affecting the riglits
of Great Britain and tlie United States on the Pa(;itic Ocean.
Mr. Phelps. — It undoubtedly has an important bearing on that
branch of the case. But aside from the question of regulations, there
is no doubt at all that it has an important bearing, on the other ques-
tion, of the character of the conduct which is sought to be justified
here, whether it comes witliiu the legitimate freedom of the sea or not,
as shewing what the sense of mankind is upon that subject. It is
principally in those two connections that we have cited it, not because
it is in other respects at all analogous to the case that we have in hand.
The Uruguay protection provisions will be found on page 441) of the
Book I have been reading from, the 1st United States Appendix, and
inchides the Lobos Islands, where there are still, as we learn from the
testimony of the furriers, seals enough to afford a small annual profit,
not large commercially, but still appreciable. This comes from the
custodian of the Archives at Montevideo:
I have to iuform you iu compliance with the foregoing decree, that the taking of
seals on the islands called Lobos, Polonio, Castillos Graudes, and Corouilla, on the
coasts of the Rio de la Plata, and in that part of the Ocean adjacent to tlie depart-
ment of Maldonado and Rocha is done by contractors who obtain their contract for
periods of ten years each paying annually into the public treasury seven thousand
dollars in gold, and also the departmental duty of twenty cents on each seal-skin
and four cents on each arroba of oil.
A very similar arrangement to that which the Government of the
United States asks.
This duty was established (and provision made for the object to which it was to
be apidied) by the Act of July 23rd 1857, and that of June 28th 1858, (Caraira, vol-
ume I, pages 440 and 448, Digest of Laws). The State guarantees to the contractors
that they shall carry on their industry without molestation. It does not permit ves-
sels of any kind to anchor otf any of the said islands, and does not allow any works
to be constructed that might frighten the seals away. The catch begins .June 1st
and ends October 15th (Decree of May 17th 1876, page 1480 of Laws now in Force,
t*y Goyena). This is all that the undersigned has to communicate. God guard you
many years.
It is under that provision that the few seals left on the Lobos Islands,
(and some of the witnesses tell you what has become of the race that
was there in great numbers formerly,) are preserved. Anyone who
supposes that an individual can fit out a ship, to go down there and
destroy those seals out of the three mile line to the extent of extermin-
ation, would probably find out his mistake. Nobody has attempted it.
Lobos Island used to be free plunder for seals till the seal was almost
exterminated, and since then the extermination has almost stopped?
Why is that? The sealers belong to other nations, not to Urugua>
The sealers come from America largely. What has put a stoj) to it?
Why, the knowledge that it is forbidden and would not be tolerated;
and it would not be safe for anybody to take them.
The President. — Tliere is notliing here against Pelagic Sealing.
104 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — I am aware of it. I do not know how far tlie sealing
was pelagic at the Lobos I.slands; bnt it is such protection as the case
requires; in the anchoring of vessels off" there the three mile limit is
not observed, and it is very apparent under the effect of the Statute
which the Chief Clerk furnishes (he does not send the full Act) — no act
wonld be permitted to be done by foreigners which would tend to exter-
minate those seals, w^hatever it was; — it might be ])elagic sealing; and
it would be no answer to say if a vessel were to go and anchor outside
the three mile line and take any measures that would tend to destroy
the seal, — it would be no ans\\er to the Government to say they were
outside the line; nor is there a geographical limit to the Act in question.
The case of Chile and the Argentine Republic Statutes will be found
on page 229 of our Case:
The Lobos Island rookeries have for over 60 years beeu protected by the Govern-
ment of Uruguay.
And the return comes, as the Furriers testify, into the London market.
The Governments of Chile and the Argentine Republic have also recently given pro-
tection to the fur-seals resorting to their coasts in the hope of restoring their almost
exterminated rookeries.
In the second United States Ajipendix is a deposition on that point
from a sealer I believe at page 597.
Sir Charles IIussell. — The Chilian law is expressly stated to be
territorial.
Mr. Phelps. — This is the deposition of George Cower. He is a resi-
dent of East Haddam Connecticut, and has been engaged in sealing in
the southern hemisphere for a number of years and has visited all these
I)laces, and si)eaks of visiting these islands. He says:
About 1850 this island was visited by an American who practically cleaned off the
seals. The captain I shipped with Joseph F'nller visited the island in 1880 and took
3,600 seals practically all there were; and this was their increase for the 30 years
from 1850. While I was at Cape Town 1 saw a gang start out for sealing on that
coast; the rookery I understood to be about 25 miles from Cape Town.
They are in the possession or control of a Company, as I was then informed, which
has the exclusive right to take seals there. We did not dare go to those rookeries
because sealing was prohibited and we would not have been allowed to take them
in the waters adjacent thereto. Argentina also claimed possession of Staten Land at
Cape Town and since about 1882 or 1883 we have not been allowed to take seals at
that point or in the waters near there, although the citizens of Argentina themselves
have taken seals there every year as I understand and believe.
That is all on that subject. It is simply to show the extent of this
protection.
The enactments of Japan are in the first United States Appendix,
page 449, and it is a prohibition entirely for the present, is general in its
terms, and simply shows the necessity for the protection in the judgment
of that government, and the protection that it received.
Now I come to the ground taken by Russia in the possession and pro-
tection of these Commander Island Fisheries, in respect of which a good
deal has been said by my friends on the other side — 1 do not mean the
ancient protection — I mean the present protection — the recent protection
of the Commander Islands.
Senator Morgan. — Do they differ — the ancient and the present 1
Mr. Phelps. — They do not differ, but I mean I will deal with the cir-
cumstances of the recent protection. I hope to show that they do not
differ from what has always been enforced by the Russian Government.
Now in reply to what is said in the printed Argument of the United
States in reference to what is called there "the firm and resolute action
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 105
of the Eiissiaii Goveniment in seizing several vessels", — Canadian ves-
sels I believe — perliai)s one of tliem was an American — wliicli were
engaged iu sealing, my friend Sir Cliarles Ivnssell refers to a correspond-
ence with Secretary Frelinglinysen in 1882, and Secretary Bayard
in 1887. That wonld not at first sight be particnlarly apposite to the
seizures that took place iu 1802, especially as those seizures were ]>rin-
cii)ally of British vessels, and this correspondence appears to have been
M'ith a former Secretary of State of the United States. No man is so
fertile in that s])ecial recourse of advocacy which transfers the dis-
cussion of a question to a different subject, as my learued friend Sir
Charles Kussell. He answers what is said about 1892 by a reference to
a controversy on an entirely different subject several years before; and
it is not difticult to make such an answer quite successful, because you
get rid of the exact couditions under which the question arises in the
case in hand; and therefore if the case presents any difticulty it can
sometimes be successfully met by discussing another case that stands
ui)ou a dift'erent footing.
Now what was this correspondence in 1883 and 1887? It had noth-
ing to do with the taking of seals. It was in reference to the whale
and cod fishing and the trade iu arms and liqnors with the natives on
the Eussian Coast. Now I respectfully ask : What has that to do with
the seizure of Sealing vessels in 1892? The San Francisco firm which
made the complaint upon which Secretary Frelinghuysen's representa-
tion to the Eussian Government was presented, state explicitly that
they have nothing to do with the taking or purchase of furs, in their
complaint of the action of the Eussian Government — they take care to
clear themselves from the embarrassment of having it supposed that
they are interfering with the sealing. Then all that was said on that
subject had reference to an entirely different controversy. Lynde and
Hough's note to Mr. Folger who was the Secretary of the Treasury, is
the foundation of that controversy, which I shall pursue just far
enough to show that it has nothing whatever to do with any question
in this case. I read now from page 18 of Part 3 of Volume II of the
Appendix to the British Case. This letter is dated San Francisco,
February 15th 1882:
Sir: You will please pardon us for this seeming intrusion, but tlie matter in which
we now seek your aid and kind assistance is of great imjiortance to us.
We now are and have been extensively engaged in the Pacific Coast Cod fisheries,
and, in fact, are among the very few who fifteen years ago started in a small way,
believing with energy and fair dealing we could work up an enterprise that would
be a benefit to the coast. Our ideas were correct. We have been yearly sending
vessels to the coast of Kamtchatka (Sea of Okhotsk) for fish.
We never have been molested in Russian waters from catching cod-fish or procur-
ing bait, which are small salmon in the rivers, or filling fresh water for the use of
ship, but it appears now there is a law which has never been enforced against for-
eigners, the same wo have recently noted, and wlilch we have been apprised of, and
the substance is that foreign vessels must receive an order Irom the Governor of
Siberia, besides must pay a duty of 10 dollars per ton on all fish caught in Russian
waters. This decree, if sustained, is ruinous to one of the best and rising industries
of the coast, and as we fit our vessels to sail about the 1st May, leaves us but
little chance to arrange matters this season save with your kind assistance in the
matter. Our business is fishing entirely. We do no trade with natives, having
nothing to do with the taking or purchasing of furs. At this time we are nlaced in
a very bad jn-edicament. Trusting that yon can relieve us from this embarrassment,
and receive an early reply on the subject, we are, etc.
(Signed.) Lynde and Hough.
P. S. — Our vessels fish from 10 to 55 miles from shore.
L. AND H.
106 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
That is tlie fouiKlation. The correspondence with INIr. Hoffman from
St. Petersburgh (who I believe was Charge d'Attaires at that time), is
based upon this letter. I need not read through this correspondence.
It follows here in the British Case. There are several letters and
finally there is one (on page 19 of the 3rd Part of Volume II of the
Appendix to the British Case), from M. de Giers to Mr. Hoffman dated
May 8 (20), 1882, in which he says:
This measure
that is, the measure that was complained of by the merchants or ship-
Ijers that I read from just now —
this measure refers only to jirobibited industries and to the trade in contraband;
the restrictions which it establishes extend strictlj' to the territorial waters of Rus-
sia only. It was required by the numerous abuses proved in late years aud which
fell with all their weight on the population of our sea-shore and of our islands,
whose only means of support is by fishing and huntiug. These abuses inflicted also
a marked injury on the interests of the Company, to which the Imperial Govern-
ment had conceded the monopoly of fishing and hunting (" exportation "j in islands
called the "Commodore" aud the "Seals".
IsToAv i^assing that for the present (with the privilege of referring to it
again tomorrow morning), you will find the view of the Eussian Gov-
ernment as to pelagic sealing — (we are going back to the case of 1802) —
in the United States Appendix, Volume I, page 192 — in a letter enclosed
b3' Mr. Lothrop the Minister at St. Petersburg!! to Mr. Bayard, secre-
tary of State, on the 8th December 1887, which I read to tiie Tribunal
on the first day I was addressing you.
I^ow until 1892 the sealing industry on the Commander Islands,
maintained by the Government of Eussia, was not attacked. Up to
that time there had been no pelagic sealing, I infer, that was irarticu-
larly mischievous to the Eussian Government; and the British Com-
missioners at page 167 of their Eeport remark, referring to the Eussian
seal herd in its migrations to the Eussian seal islands:
It is a matter of some surprise that no attempt is made to take them in the open
sea, as is done on such a large scale in the case of the seals resorting to the breediug
grounds of the eastern portion of Behring Sea.
Sir EiOHARD Webster. — That is not the British Commissioners
Eeport.
The President. — Is that the right reference?
Mr. Phelps. It is published in their report. It is a report — I was
wrong in saying it was the British Commissioners' Eepoi't.
Sir EiCHARD Webster. — It is in answer to enquiries that were
asked for.
Mr. Phelps. — It is a Eei)ort nmde by the British Secretary of Lega-
tion in Japan at the request of the British Commissioners dated Tokio,
November 19th 1891.
Lord llANNEN. — Where is it to be found.
Mr. Phelps. — At page 107 of the British Commissioners Eeport, or
of the Appendix or Addendum to the British Commissioners Eeport.
It is the Eeport, I repeat, of the British Secretary of Legation in Japan
in reply to the British Commissioners and published by the Commis-
sioners. It is not their own language but it answers sufticiently to
show the fact.
Then when the modus vivendi in 1892 was in force to a greater or less
extent, a great number of vessels resorted for the first time to the
vicinity of the Commander Islands, and then took place the seizures
by Eussia of those vessels — seizures which they had never had occa-
sion to make before because they had never been attacked, and which
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 107
wero made tlien, and have been the subject of so much observation-
very properly — by my learned friends in their Argument. And as I
have something to say upon that point that it wonkl be qnite impossible
to eonclnde at this late honr, with the permission of the Tribnnal I
will defer it nntil tomorrow morning.
The President. — If you please; It is a very interesting subject.
We will hear the rest tomorrow.
[The Tribunal thereupon adjourned until Thursday the 29th of June
1893 at 11.30 a. m.l
FORTY-SEVENTH DAY, JUNE 29I", 18CJ3.
lu pursuance of Senator Morgan's enquiry of yesterday, I read a few
words on the subject of the hair-seals from the 1st Volume of the United
States Appendix to the Case, page 3G7. It is a part of Dr. Allen's
Article on tlie natural history of these animals, which has been fre-
quently alluded to.
The great tribe of Pinnipeds is divisible into tliree quite distinct minor groups
termed i'amilies, namely, the ■walruses (family Odobenidw), the eared-seals (family
Olariidcr), and the common or earless seals (family Phocidce). Tliese groups diii'er
notably from each other in many points of structure.
Then passing over to page 381 of the same book:
The seals proper, or the hair-seals
This writer classes the hair-seals as the seal proper
Have no external ears, are short-necked, rather, thick-bodied, and have the hind
limbs permanently directed backward and useless for terrestrial locomotion. They
vary greatly in size, and so forth.
The seals (that is to say, this variety of seals, those that he calls " seals proper ''),
unlike the walruses and eared-seals, are of almost Avorldwide distribution, being
found on the coasts of nearly all countries, except within the tropics; they also
ascend many of the larger rivers for long distances, and occur in some of the inland
seas, as the Caspian and others in Asia.
Then further down :
SeaLs, as a rule, are not iiolygamous, ''(referring, of course, to the Phocidw. these
hair-seals)", and resort to the land or ice fields to bring forth their young, according
to the species. They are also more or less migratory.
Then in respect to the Harp-seal (on page 382 of the same Article)
■which is a different species, classed as the Phoca groenlandica, by this
writer.
Habitat: North Atlantic, from the Gulf of St. Lawrence and the North Sea north-
ward to the Arctic Sea; also Behring Sea.
The harp-seal, known also as the saddle-back, white-coat (when young), Greenland
seal, etc., is by far the most important commercially of all the true seals, being the
principal basis of the Newfoundland and Jan Mayen seal lisheries.
It is preeminently gregarious, migratory, and pelagic. It is nowhere a permanent
resident, and annually traverses a wide breadth of latitude. AUhough often met
with far out at sea, it generally keeps near the edges of drifting ice. It appears
never to resort to the land, and is seldom found on firm ice.
About the beginning of March, thoy assemble at their favorite breeding stations,
selecting for this purpose immense ice fields far from land. Their best known
breeding grounds are the ice packs off the eastei'n coast of Newfoundland and about
the island of Jan Mayen. Oft" the Newfoundland coast the young are chiefly born
between the .5th and 10th of March ; at the Jan Mayen breeding grounds between
the l!3rd of March and the .5th of April.
The females take up their stations on the ice very near each other, the young being
thtis sometimes born not more than 3 feet apart. The males accompany the
females to the breeding stations and remain in the vicinity, congregating mostly in
the open pools between the ice floes. The mothers leave their young on the ice to
fish in the neighborhood for their own subsistence, but they frequently return to
their young to suckle them. The young grow very rapidly, and when three weeks
old are sai(l to be nearly half as large as the old ones.
The young are said not to voluntarily enter the water until at least twelve days
old, and that they require four or five days practice before they acquire sufficient
strength and proficiency in swimming to enable them to care for themselves.
108
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 109
Tliere is much more intbrmatiou in this article if auyoue cares to
peruse it; but I will not take time to read ivirtlier.
On yesterday, in commenting upon wLat liad been said by my learned
friends on tlie other side in regard to the attitude of Russia, I found
myself destitute at the moment of the reference I desired to make show-
ing that the seizures of American vessels referred to by my learned
friend Sir Charles Kussell, the "Eliza" and "Henrietta", were the sub-
ject of a correspondence between the Russian Government and the
United States Government, and bad nothing at all to do with the busi-
ness of seal hunting. And I will now read, as it is not long, Mr.
Lothrop's letter, the Minister of the United States at St. Petersburg,
written in 1887 to the Secretary of State, in which he gives concisely
the whole facts in regard to those vessels and shows very clearly that
it had nothing to do at all with the subject on which we are engaged.
This is page 22 of volume 2, part 2, of the Appendix to the British Case :
I have the honor to trausmit to you a translation of a couininnication received
i"rom the Imperial Foreign Office on the 1st February instant, relative to the seizure
of the schooner ''Eliza." The Russian Governnieut claims that she was seized and
condemned under the provisions of an Order or Regulation, \Yhich took effect at the
beginning of 1882, and which absolutely prohibited every kind of trading hunting
and tishing on the Russian Pacific coast without a special licence from the Governor-
General.
It is not claimed that the "Eliza" was engaged in seal fishing, but that she was
found engaged in trading with the contraband articles of arms and strong liquors.
She was condemned by a commission sitting on the Imperial corvette "Raslioinik"
composed of the officers thereof. In this respect the case is precisely like that of the
"Henrietta" mentioned in my last preceding despatch No. 95 and of this date.
It will be noticed that Mr. Spooner, the owner of the Eliza, in his statement of his
claim, declares that the "Eliza" was "on a trading voyage, engaged in bartering
with the natives, and catching walrus, and as such did not come under the Notice of
the Russian Government, which was directed against the capture of seals on Copper
Robben and Behring Islands".
It will be seen that Mr. Spooner either refers to an Order of the Russian Govern-
ment difierent from the one mentioned by the Imperial Foreign Office, or he under-
stood the latter in a very different sense.
I may add that the Russian Code of Prize Law of 1862, Article 2, and now in force,
limits the jurisdictional waters of Russia to 3 miles from the shore.
As stated in my previous despatch, I have asked for a copy of the Order or Regula-
tion under which the " Henrietta" and "Eliza" were seized and condemned.
It is seen therefore by the statement of the American Minister in
regard to the claim of his own country, that the grounds on which these
vessels were seized were, that they were violating the Order against
trading with the natives, especially in fire-arms and spirituous liquors,
and the seizure by the Russian Government was submitted to therefore,
by the United States Government, and the claims for compensation if
made were not insisted upon.
Now I come, as I am nearly through with what I may call the historic
instances of the protection of property of this description, to the recent
transactions, so recent that they have come before you by papers sub-
mitted by my learned friends since the argument was finished on their
side, or nearly so; at any rate at a late stage in the argument. They
have submitted two Parliamentary papers, Russia No. 1, 1803, and
Russia, No. 3, 1893, on this subject, printed after being laid before Par-
liament; and my learned friends seem to be of opinion that what we had
said in the argument in respect of tbe firm and resolute action of Russia
on this subject is refuted to some extent by the correspondence that is
shown to have taken place between the Governments in reference to tliat
action. On the contrary, in my judgment the position taken in the
argument is exactly confirmed by the correspondence, as I shall tiy to
point out, reading from the Parliamentary paper, No. 1, in the first x^lace,
110 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
page 11, the letter of Mr. Cbichkine. I read from the translation of it.
The correspondence contains the letter in French and the translation
as well. It is addressed to the British Ambassador, and is dated the
12th February, 1893. Of course, I shall not read all these letters but
only such extracts as bear on the points I am concerned with.
While tbaukiug you, Mr. FAmbassadeiir, for this actiou, of which the Imperial
Goveruuient takes uote, I hasten to inform you that the question of the measures to
be a<b)pte(l to prevent the flestructiou of tlie seal species has been under considera-
tion for some time past, and that 1 have been obliged to await the preliminary results
of tliis investigation before replying to the note which you were so good as to address
to me.
In approaching, on the present occasion, the question of the seal fisheries, I must
first of all point out to your Excellency that the insufticieney of the strict applica-
tion to this matter of the general rules of international law respecting territorial
waters has been proved by the mere fact that negotiations were commenced in 1887
between the three Powers principally, with the ol)ject of agreeing upon special and
exceptional measures.
That was, as you will readily ijerceive, with reference to the negotia-
tion initiated by Mr. Bayard.
The necessity for such measures has been more lately confirmed by the Anglo-
American agreement of 1891.
That is the modus vivendi.
Her Majesty's Government, by taking part in these negotiations and in this Agree-
ment, have themselves admitted the propriety of a possible departure from the general
rules of international law.
That is, as I understand it, the rule he has just referred to respecting
territorial waters, the 3 mile limit.
A further point to which it would seem important to call the special attention of
Her Majesty's Government is the absolutely abnormal and exceptional position in
which Russian interests are placed by the stipulations of the Anglo-American Agree-
ment. The prohibition of sealing within the limits agreed upon in the modus trircndi
of 1891 has, in fact, caused such an increase in the destruction of seals on the Rus-
sian Coast, that the complete disappearance of these animals would be only a ques-
tion of a short time unless efficacious measures for their protection were taken without
delay.
Then.
The number of seals to be killed annually is fixed by the Administration in pro-
portion to the total number of seals. In the years 1889 and 1890, before the estab-
lishment of the Anglo-American modus vivendi, the catch amounted to 55,915 and
56,833, while for the years 1891 and 1892 (after the above-mentioned Agreement) the
figures fell to 30,689 and 31,315.
And in another and very different connection, the importance of this
experience will come to be seen. I do not pause to remark upon it now.
On the other hand, according to the statistical information which the Imperial
Government has been able to obtain, the quantity of seal-skins of Russian origin
delivered by the sealers to the London market, increased during those two years in
an infinitely greater proportion.
That is to say that under the operation of the modus vivendi which
XJrecluded the pelagic sealers from the American part of Behring Sea,
while the supply of Kussian skins increased in Loudon, it so decreased
on the Islands that they had to fall from 50,000 to 30,000.
According to the observations made by the local Administration, the number of
vessels engaged in sealing and seen in the neighbourhood of the CJoramander Islands
and Tulenew (Robben) Island has also increased considerably. The l^arbarous and
illicit proceedings of these sealers are also proved by the fact, established by sei-
zures, that more than 90 per cent, of the seal-skins carried away by them'are those
of female seals, who are hardly, if ever, found far from the shore during the sealing
season, and whose destruction entails that of all the young which they are suckling.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. Ill
The destructive character of the fishery is also shown by the number of seals
wounded or abandoned on the shore or within territorial waters, and afterwards
found by the local authorities.
It will be seen from tbis that the moment a check to a greater or less
extent nuder the modus vivendi was pnt on the pelagic sealers on the
American side, Russia was pnt precisely in the iiosition in which we
stand to day; instantly the number of seals they were able to take on
their Islands fell off, though the Russian skins in market increased.
Immediately it became api»arent that part of this catch was females,
and when taken away, their young i)erished, and of those shot near
shore the greater part was probably lost or abandoned.
This is the passage we come to:
Tinder these circumstances, we think ourselves justified, M. I'Ambassadeur, in
expressing our entire confidence that Her Majesty's Government will admit the
urgent necessity of restrictive measures pending the establishment of international
sealing regulations between the Powers principally concerned.
The Imperial Government on their side do not hesitate to recognize the fact that
protection cannot be carried out in a really satisfactory manner unless it is preceded
by some such agreement. Accordingly, they are disposed to enter into negotiations
at once with the Governments of Great Britain and of the United States of America;
but they recognize at the same time tlie absolute necessity of innnediate provisional
measures, both on account of the near approach of the sealing season and in order
to be in a position to reply in good time to the question contained in your Excel-
lency's note of the 11th (23d) January.
With this object, and after thorough investigation, the Imperial Government has
thought it necessary to decide on the following measures to be in force during the
year 1893:
They do not say: "We ask the consent of Great Britain" or "we
propose this measure;" they say after pointing out the necessity:
The Imperial Government has thought it necessary to decide on the following
measures.
1. No ship unprovided with a special authorization shall be permitted to hunt for
seals within a distance of 10 miles along all the coast belonging to Russia.
2. This prohibited zone shall be 30 miles wide around the Commander Islands and
Tul^new (Robben) Island according to the Russian official maps, which implies that
the passage between the Commander Islands will be closed to vessels engaged in
sealing.
With regard to the 10-mile zone along the coast, these measures will be justified
by the fact that vessels engaged in the seal fisbei\y generally take up positions at a
distance of from 7 to 9 miles from the coast, while their boats and crews engage in
sealing both on the coast itself and in territorial waters. As soon as a cruizer is
sighted, the ships take to the open sea and try to recall their boats from territorial
waters.
With regard to the 30-mile zone around the islands, this measure is taken with a
view to protect the banks, known by the sealers as " sealing grounds," which extend
round the islands, and are not shown with sufficient accuracy on maps. These
banks are frequented during certain seasons by the female seals, the killing of
which is particularly destructive to the seal species at the time of year when the
females are suckling their young, or go to seek food on the banks known as " seal-
ing grounds,"
While requesting you, M. I'Ambassadeur, to bring the foregoing considerations to
the knowledge of Her Majesty's Government, I think it important to insist on the
essentially provisional character of the above measures adopted under pressure of
exceptional circumstances which maybe regarded as a caseof/07-ce 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 genei-ally recognized rules with respect to territorial waters. In their
opini(m, 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 jiroves the rule.
Here you have stated over again on the part of Russia the American
case:
The force of the arguments set forth above will certainly not escape the enlight-
tiued appreciation of Her Majesty's Government, and I am firmly convinced that they
112 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
will not refuse to take steps with regard to the English sealing-vessels, in accord-
ance with the rueasnres which the Imperial Government propose to take for the vear
1893.
On their side, the Imperial Government will not fail to give to these measures, in
good time, the publicity which they require.
Besides this, and in order to prevent as far as possible any misunderstandings and
disputes in case of infraction of the above provisional measures, as well as of the
general rules of international law, the cruizers of the Imperial Government and also
the local authorities will receive precise instructions, clearly laying down the cases
in which the right of pursuit, of search, and of seizure of offending vessels should
be exorcised.
As it is affirmed that the sealing-vessels, while themselves remaining outside
territorial waters and sometimes more than 10 miles from shore, dispatch a portion
of their crews and their boats to the coast, and within, or very nearly within, terri-
torial waters, the above-mentioned instructions will prescribe the pursuit and
search of all vessels whose boats or crews shall have been observed or seized while
sealing on the coast, or within the zone prohibited by the provisional measures for
1893.
As a strong presumption results from the mere fact of the presence of boats near
the coast or within the prohibited zone, even when it has been impossible at first to
decide whether these boats were engaged in sealing or not, it shall be permissible to
pursue and search the vessels to which such boats belong.
The seizure, on board vessels thus searched, of special implements employed in
sealing on shore, as well as of seal-skins the greater part of which are those of
females, will constitute sufficient grounds for the seizure of the vessel, in view of
the fact that the female seals, during the season of suckling their young, rarely, if
ever, depart further than 10 miles from the shore, excepting on the banks around the
islands.
When informing the captains of English sealing-vessels of the provisional meas-
ures drawn up for the year 1893, Her Majesty's Government will perhaps think it
advisable to communicate to them likewise a summary of the instructions which
will be given to the Russian cniizers, and to add that the right of surveillance will
also be given to vessels belonging to the coast on the mainmast of which the Gov-
ernor of the Commander Islands hoists the Russian Custom-house flag when he is on
board in the discharge of his duties.
When I wrote those lines which my learned friends criticise, in which
I referred to the firm and resolute action of Kussia, these words had
not been written. They completely confirm what I said, not by the
strength of what she has said, but by the strength of what she has
done, which was more emphatic. When Russia finds herself, for the
first time in her history, in the position in which the United States
are now in respect of this business of pelagic sealing, excepting that
her interest is much smaller than that of the United States, what does
she do ? Invite Great Britain to enter into some modus vivendi by which
the depredations may be suspended"? Far from it. She says " We are
ready and anxions to enter into the Triple convention between the three
nations concerned, proposed in 1887. We agree in the ])ropriety of such
a Convention, — we are most desirous for it; but in the meantime direc-
tions will be issued to the crnisers of the Eussian Government and to
all vessels hoisting the Custom House flag, to seize every vessel that is
found within 30 miles of the Islands or 10 miles of the shore, and to
search and examine any vessel, or the boats of any vessel, which hov-
ering round there, gives reasonable grounds for suspicion as to the bus-
iness they are engaged in." That is the position of Russia; and, if
that had been the position of the United States I repeat, this Arbitra-
tion never would have taken place. There is the difference. We had
invited the Convention and, as I pointed out to you, it had been con-
ceded and agreed upon and then was arrested by the objections of
Canada. They had participated in 1887, as the correspondence shows
you, in the same negociations and manifested the same willingness;
but when that fell through on account of the objection of Canada, Russia
said: "in the meantime this infamous business is not to go on." That
was their position ; and what is the consequence. The consequence is
ORAL ARGUMENT OF HON. EDWARD J. PHELPS, 113
that while we are here at this late period begging' of this Arbitration
some measure of protection that may preserve this herd of seals, they
obtained from the British Government instantly all that they claimed.
I refer you to Lord Rosebery's letter in reply. I say they obtained it as
a temporary measure; but see what follows"? The Earl of Kosebery,
with the diplomatic skill for which he is so iiistly distinguished, writes
this sentence; and, if literature of this kind were ever amusing, one
might be excused for indulging in a smile on reading this.
The Earl of Rosebery to Sir R. Monier, that is the British Minister
at St. Petersburgh :
Sir: Her Majesty's Government have given tlieir most careful consideration to the
note of M. Chichkine of the 12th (24th) ultimo inclosed in yonr Excellency's de-
spatch of the following day and stating the measures which the Russian Government
deem necessary for tlie ]irotection of their sealing interests in the Nortli Pacific dur-
ing the approaching fishery season and which are submitted to Her Majesty's Gov-
ernment with a view to their acceptance.
Then he repeats the measures I have just read.
Her Majesty's Government take note of the statements made in M. Chichkine's
note, that the Russian Government have no intention of disputing the generally
recognized rules of international law as to territorial waters, that these measures,
of an exceptional and provisional nature, are designed to meet a pressing emergency,
and that Russia is desirous of entering at once upon discussions with the Govern-
ments of Great Britain and the United States with a view to an agreement between
the Powers principally interested for the proper control of the sealing industry.
While Her Majesty's government have not committed themselves to a decided
opinion as to the absolute necessity of any particular class of regulation for tlie
preservation of the seal species, they have more than once expressed their willing-
ness to take part in the framing of a general scheme for the protection of the seals
which shall have due regard to the various interests concerned.
They quite recognize that the provisions of the modus vivtndi agreed upon between
Great Britain and the United States tends to drive the sealing-vessels of both those
nations, which have been accustomed to resort to the eastern part of Behring Sea,
to the waters adjacent to the Russian coasts,
And so on. I need not read all that unless it is particularly desired.
Sir Charles Russell. — The next sentence I should be glad if you
would read.
Mr. Phelps. — I will read anything that is desired certainly.
Her Majesty's Government could not admit that Russia has therefore the right to
extend her jurisdiction over British vessels outside the usual territorial limits, but
they are anxious to afford all reasonable and legitimate assistance to Russia in the
existing circumstances. They are ready to enter at once into an agreement with
the Imperial Government for the enforcement of the protective zones proposed in
M. Cliichkiue's note on conditions similar to those of their modus vicendi with tlie
United States, which it will be observed are of a reciprocal character.
That reads a little like accepting an Invitation that has not been
issued. I find nothing in the note of Mr. Chichkine that invites from
Great Britain consent to these Kegulations. I find a courteous and
respectful notification that they will be propounded and insisted upon
and carried into effect, with the exj^ression of a confidence that Her
Majesty's Government will see the necessity and the propriety of them.
The result of the correspondence then, for I must not take up too
much time with this unless my learned friend desires me to read some-
thing more of it, is that the measures Russia propounded are agreed
to, with the single addition that they will on the Islands refrain from
taking more than 30,000 seals. It had already appeared that for the
last two years they had only been able to get a little more than 30,000,
and that proposal of Great Britain they accept. But Mr. (Jhichkiiie
appeared to take the view that I do of this invitation; and he replies
B s, PT XV 8
114 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
to Lord Eosobery most courteously to the effect tlmt tlie acceptance of
the invitation is extremely pleasant, though he must point out to him
that it had not been given.
I cannot discuss the subject, Mr. I'Ambassadeur, without calling your attention
in the first instance to this fact, viz., that the object of my note of the (12th) of
February was to warn the British Government of certain legitimato measures of
defence necessitated for the moment by exceptional circumstances, and not to lay
down the basis of a regular modus viiendi, that is to say, of a bi-lateral arrange-
ment, which might be prolonged until the question was dolinitively settled.
The only idea was to provide a minimum of protective measures, intended to pre-
vent the disa])2)ftarance of the subject of the dispute, even before the negotiations
with regard to it were commenced. In view of the near approach of the fishing-
season
If it had been intended to lay down basis of a modiis vivendi of this kind, the
Imperial Government would not have failed to claim that a restriction of territorial
rights, that is to say, the engagement to limit the number of seals to be killed on
land, should in equity carry with it the corollarj- of a complete suspension of pelagic
sealing in the open sea.
He informs Lord Eosebery that, if the purpose of his communication
had been to enter into negotiations, he should have demanded very
different terms. The object of it was to inform the British Government
of the minimum of i)rotective measures which they would acceijt.
They would have especially regarded it as indispensable to make their reservations
as regards the definitive settlement of the seal question, in order to retain their entire
freedom of view as to the measures to be agreed upon for the preservation of the.
seal species, whether by the proliibition or regulation of sealing in the open sea, or
by the extension of special rights of jjrotection of that species beyond the various
distances commonly designated as the limits of territorial waters.
Yet, alter making these observations, I am authorized, Mr. I'Ambassadeur, to
inform your Excellency that the Imperial Government, being anxious to meet half
way any conciliatory offer on the part of the British (liovenmient, are ready to accept
the proposal made in Lord Kosebery's despatch, with the exception of some moditi-
cations on the first point.
That is, the limit of killing on the Islands; and a British agent is to
be allowed, to visit the Islands to see that that is complied with.
The arrangement agreed upon would have no retrospective force, because the dif-
ferent cases of seizures effected last year have been already examined by a special
Commission on the basis of the general principles of international law.
Finally, in regard to the first point of the proposal contained in Lord Rosebery"s
despatch,
that is that any vessel seized should not be carried into a Eussian Port,
but should be handed, over to a English cruiser,
The Imperial Government are of opinion that it would be qiiite impossible to
apply it as it stands, at any rate under the circumstances existing for the present
fishing season, especially as to the engagement to hand over to the Kiu/Ush cruisers or
to the nearest British nulhorili/ the English vessels caught trespassing outside terri-
torial waters within the forbidden zones of 30 and 10 miles.
It may be that means may hereafter be found by common consent to remedy the
practical difficulties in the way of such an undertaking; !>ut for the moment, there
is no doubt that it would comjiletely paralyze the action of the cruizers of tlie
Imperial navy, and render illusory the supervision which they should exercise along
the coast and round the islands.
In practice, any Russian cruizer which had captured an English vessel would have
to choose between the alternatives of searching for an English cruizer, which might
take a long time, considering the extent of the coast, or else of undertaking a voyage
of 3,000 miles to conduct the captured vessel to the nearest port, that of Victoria in
Columbia.
The Russian cruizers would thus l)e exclusively occupied in looking for the
English cruizers, or in making voyages to Port Victoria and back throughout the
fishing season; and the "co-operation" of the cruizers of two nations could, there-
fore, only be a nominal one.
Under these circuuistances, and without insisting lor the moment on another
essential point — that of the absolute absence ol' reciprocity in the British proposal,
as there are not, nor can there be, any vessels under the Russian Hag engaged in
sealing — the Imperial ('Overnnient consider that for tlie current year it would be
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 115
more simple and practical to submit the new prohibited zones, as is the case as
regards territorial waters, to the exclusive supervision of the crui/.ers oi' the Imperial
navy, who would continue to conduct to Pctropaulovsk all vessels caught trespassing
until the conclusion of an ulterior agreement.
The eorrespoudence proceeds; and tliat is the modus agreed upon for
one year only, reserving all rights to the Kussian Government, treating
this purely as an intermediate provision, the least, as they say, which
they could accept for their protection.
The President. — The enactment is not for quite a full year; it is to
the 31st of December.
Mr. Phelps. — You are quite right. It is not quite a full year. I
speak of it in general terms.
Then on pages 27 and 28, the last I have to read from this document,
is another letter from Mr. Chichkiue, and he says they preferred to
leave this subject on the basis of an exchauge of notes, and not to draw
it up in the form of an agreement.
Because the too concise wording of the above-mentioned draft would leave room
for certain misunderstandings, and perhaps even for complications, which it would
be desirable to avoid;
Because the Imperial Government could not agree to the draft in question without
some reservations designed to safeguard their freedom of judgment 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 territorial waters.
As to our reservations, they refer to the points mentioned below:
1. In consenting to hand over to the British authorities the English ships engaged
in sealing within the prohibited zones, we do not wish to ijrejudice, generally, the
question of the rights of a riveraiu Power to extend her territorial jurisdiction in
certain special cases beyond waters jtroperly called territorial.
2. The Imperial Government desire to preserve com[)leto 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 reguhitiug 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.
With these reservations, we accept the British proposal in the following terms:
These are then repeated, which I need not take up your time by
reading again except the second and third (as they have been the
subject of some discussion) as they liiially fouud expression:
English vessels engaged in hunting within the aforesaid zones.
That is, ten miles from that shore and thirty miles from the island :
Beyond Russian territorial waters may be seized by Russian cruizers, to be handed
over to English cruizers or to the nearest British authorities. In case of impedi-
ment or difficulty, the Commander of the Russian cruizer may conline himself to
seizing the papers of the afore-meutioned vessels, in order to deliver them to a
British cruizer, or to transmit them to the nearest English authorities, on the first
opportunity.
;i Her Majesty's Government engage to bring to trial before the ordinary Tri-
bunals, oft'ering all necessary guarantees, the English vessels which may be seized
as iiaviug been engaged in sealing within the prohibited zones beyond Russian terri-
torial waters.
And that is agreed to.
Sir Charles Kussell. — There is the final passage in Lord Kose-
bery's note: — "With regard to the reservation", on the same page.
Mr. Phelps.— This is from Lord Kosebery to Mr. Howard who, I
sui)pose, was the Charge.
Sir Charles Kussell. — Yes.
Mr. 1 'HELPS. —
With regard to the reservations made in Mr. Chichkiiie's Note, you will state that
Her .■^dajesty's Government has taken note oi them, but does not at present propose
to \^iscus8 them.
116 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
There is iiotliing to discuss. No discussiou had been invited. They
had been stated by the llusslan Goverumeut as the measures to which
they i^roposed to resort.
That ou the other hand, they must adhere to the reservation previously made by
them and coutaiiiod in NonrNote of the 12th of this month, and that it is understood,
that the rights and position of either Power are in no way affected by the conclusion
of this provisional arrangement;
which is just what Eussia had said very emphatically.
Now I repeat, Sir, with great respect, was I right or not in forecasting
this corresi)ondence which, as I have said, did not then exist, based
upon the action of Eussia, in characterizing her action as firm and
resolute, and in saying that in consequence of that firm and resolute
action, jjelagic sealing had come to an end in the vicinity of these
Islands to any extent that was regarded as detrimental? Was I right
in calling attention to the different positions which these two great
nations occupy today on that subject? The United States deprived of
the benefit of a convention that had once been really agreed on, and left
to prosecute this claim before an Arbitration ; Eussia instantly accorded,
not what they asked, but what they notified Great Britain they should
insist upon, giving the reasons and grounds of the demand. If my
learned friend says the Eussian Government, (as he did say in the course
of his observations) has the advantage of the advice of a gentleman of
large reputation in international law, I agree with him that there
could be no better evidence of it than this correspondence and its result
afford, that the Eussian Government knew in this matter precisely what
they were about, what they had a right to claim, and what it was neces-
sary for them to assert if they meant to defend or protect their interests.
Now we come to this No. 3. I shall not apologize for the time I am
taking upon this point, because it is important it should be understood.
The President. — Might we, Mr. Phelps, infer from your last words
that the agreement entered upon between England and Eussia would
in your eyes be considered sufficient for the protection of fur seals.
Mr. Phelps. — No, that is a very different question, to which, in a
later stage of the argument, I will address myself. They got what
they demanded, the 30 mile zone and the 10 mile zone. They got
what they thought was sufficient. I mean for the temporary period.
Whether it was sufficient or not, that is to say, whether they were mis-
taken or not in the geographical limits in which they bounded their
right, is another question.
I come now to this last correspondence, the purport of which is — and
I need hardly read anything from it — that on the Eeport of this Com-
mission Eussia made compensation to Great Britain or agreed to make
it, and I, of course, suppose will make compensation for two out of six
or eight vessels.
Sir EiCHARD Webster. — Five.
Mr. Phelps. — Well, out of five vessels that were seized, she has
agreed to make comi)ensation for two, and it has been, if not directly
urged, left to be inferred that that amounted to a concession on the
part of Eussia that she had no right to defend herself against these
aggressions outside the territorial limit, which, as you observe from one
passage in one of these letters I have been reading, is fixed as three
miles. It concedes nothing of the sort. Strong as my views are on
this question, I am free to say that if I had been upon the Commission
to determine as between Eussia and Great Britain whether those two
vessels or rather the owners of them must be compensated, I should
have decided as the majority of the Committee to which it was referred
ORAL ARGUMENT OF HON. EDWARD J. TIIELPS. 117
by Russia decided. It is stated that the majority of the Committee
thought they shouhl be paid. I should have been with the majority,
and wliy? Peh^gic sealing never had been practised, as you see, prior
to 1892. On these Islands no statute existed on the subject which
would be notice to the world. No regulations had been promulgated.
No notice had been given. These vessels came across in the pursuit of
the business of pelagic sealing which they had been accustomed to
conduct with impunity on the other side, without any notice or warn-
ing or statute, and without crossing the territorial limits; these two
vessels that are paid for did not by themselves or their boats cross the
territorial line of tliree miles. That was not all. When they were
captured by the Eussiau vessels, it does not appear that they were
engaged in pelagic sealing — they had been, but it nowhere appears that
they were caught flagrante delicto. But on examination it was found
by the contents of the vessels that they had been so engaged. 1 make
no account of the earlier correspondence given in the United States
Counter Case — the earlier claims on the part of the sealing captains
that were captured of ill treatment by the Eussiau oiticials, and the
confiscation of their personal property and the indignity that had been
put upon them. It is published in the Victoria News, reading from page
201 of the Counter Case Appendix, the head lines being:
Russian Piracy.— Sealers taken in the open sea. — Three Victoria craft
SEIZED AND THEIR CREWS TURP:ATENED WITH SIBERIA. — A FrISCO VICTIM ALSO.
Startliug story of outrage, insult and pillage. — The captured crews turned heart-
lessly adrift.
That proves nothing. I take no account of that, because the cor-
respondence and the Report of the Committee, as far as it appears, does
not justify it. How much that entered into the case or how little I do
not know. The Eeport of the Committee is not here; the evidence is
not here; nothing is here except the result. The results of the Eeport
are stated in the letter of Mr. Chichkine to which I will allude in a
moment, in No. 3. General Foster reminds me that they had the affi-
davit in the Counter Case Appendix as to the locality where these
vessels were seized far out at sea, 30 or 40 miles. Now, even divesting
it of all these charges of special injury and unauthorized conduct, of
M'hich we do not know whether they entered into the account or not, I
say upon the grounds that do appear, and this will become more clear,
I am sure, in what I shall have occasion to say hereafter, the payment
for the vessels was right.
Such regulations must first be necessary. Without that postulate,
you do not advance a step towards justitication. No nation can stretch
out its hand on the high sea, at its own caprice, for its own convenience,
and lay hands upon the vessel of another nation sailing under its own
flag. Before that can be done, the measure nuist be shown to be nec-
essary; just as self-defence by an individual, which may go to the extent
perhaps of taking the life of the assailant in the public highway where
the assailant has a right to be, nuist be shown to be necessary, and the
man who assumes to assert it takes the risk of being able to sliow^ it.
In the next place, when it is necessary, the means by which it is enforced
must be reasonable. These vessels, as I have said, are seized without
warning, either actual or constructive, engaged in a business which
their Government asserts they have a right to engage in ; engaged in a
business which they have practised with impunity elsewhere, and the
loss falls upon them, not upon the Government to which they belong.
118 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Why, what is tho rule in the cnse cf blooliade? The perfectly well
established rule is, that any vessel may be captured that undertakes to
run a blockade; but it must have notice, actual or constructive, such
as amounts to presumptive notice, and the innocent vessel not aware
that a blockade has been established, going in on a business that it has
a right to suppose is lawful, cannot be captured, — it can only be turned
off. The blockade must be declared in such a way that tlie world is
bound to take notice of it.
]S"ow, under the circumstances, is it not perfectly plain that on the
question for compensation to the owners of these Canadian schooners
there is something else to be considered besides the right of self-defence
of Russia? Mr. Blaine did the same thing; that is to say, he substan-
tially agreed to do the same thing, as I have pointed out to the Tribunal
in the discussion of the preliminary question, when Sir Julian Pauncefote
first approached the American Government with the proposal to renew
the negotiation that had been commenced by Mr. Bayard in 1887.
One prominent feature put forward by Sir Julian was the demand of
the British Government for satisfaction for the vessels that had been
seized in 188(5 and 1887. What was the reply of Mr. Blaine to that?
I will not detain you by reading the correspondence; it has been read
and is before you. Why, said Mr. Blaine, strong and resolute as he
was, and I need not say that in this correspondence he goes clear up to
the line of diplomatic reserve and courtesy in his very strong assertitm
of the rights of the United States to protect itself, even he, at the very
threshold, meets it with language which is substantially this:
Why, that is a small matter, the whole amount is not large. It falls
upon men who perhaps thought they were doing what they had a right
to do. We will pay that, if we can arrange for the future. 'It is not
worthy of a moment's dispute between two great nations. Whether the
sealing owners shall be indemnified or not, is not the question between
the Governments. We are concerned with the future; let us make an
arrangement for the future preservation of the seals. We shall not
debate with you over the value of two or three schooners under the
circumstances.
And it is perfectly plain that if they had been fortunate enough to
have disposed of the main subject of dispute at that time, the question
about compensation for these seizures, which is now in a very indirect
way before you, would have disappeared. It would have been the
proper acknowledgment, the proper confirmation of a friendly agree-
ment on an important subject, to make such a payment, and to forego
any dispute on the subject. So that the payment for these vessels,
under the circumstances, jjroves, in my judgment, nothing at all.
General Foster puts into my hands a summary of tlie report of these
Commissioners. There were nine vessels seized.
Two were released soon after they examined the fiicts; two the Com-
missioners recommended should receive compensation for seizure, and
in five the condemnation was confirmed ; and it is only right to say that
in respect of those five, it was asserted by the committee not that they
had been withinthe line, but that they found that their boats had crossed
the three-mile line. I leave that subject, and I claim that out of the cor-
respondence which has taken place, some of it since we have been sitting
here and all of it while we were on our way, the ground that we have
taken in respect to llussia is completely confirmed, and the ground that
we take here in our own behalf is completely sustained by the conduct
of Russia and the claims of Russia so far as they constitute any author-
ity or precedent worthy of consideration.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 119
Now a word upon one more of these instances of j)rotectioii of marine
proi)erty, wbicli is tUe last in the somewhat long list with wliich I
wearietl you yesterday, and which is attbrded to whales by Norway in
the fiords of that country — those broad arms of the sea that run up into
the country. A whale, in the classilicatiou of Natural History, not
strictly a fish, is to all intents and purposes a tish. Its home is in the
open sea. It breeds there — it is attached to no shore; nevertheless, in
Norway, it appears that these animals find their way up to the fiords
where they become the basis of an important husbandry, industry, and
means of subsistence.
Now surely it would be impossible to name in the way of illustration,
any animal that would be further away from the lines upon which
these rules of law proceed, than the whale. It may be well said that
the whale is with the mackerel, the salmon and the cod; he belongs in
the sea always; he is appurtenant to no territory; he has no animus
revertendi; he is brought under no confinement or restriction; there is
no time that you can put your hand upon him except as you can put
your hand upon any fish in the sea; and yet in the statement that Mr.
Gram was kind enough to furnish the Tribunal with, the ground taken
by Norway is pointed out. Even that animal, uiuler those circum-
stances, is brought into the category of those to which we claim the
seals belong; and perhaps as it is stated so much more clearly than I
can state it, as well as being so much better authority than any view of
mine can be, I may be excused for reading a few words of this statement,
and that will be all I have to say upon this point.
The peculiarity of the Norwegian law quoted by Counsel for the Uuited States,
consists in its providing for a close season for the whaling. As to its stipulations
about inner and territorial waters, such stipulations arc simply applications to a
special case of the general principles laid down in the Norwegian legislation con-
cerning the gulfs and the waters washing the coasts. A glance on the map will be
sufficient to show the great number of gulfs or iiords, and their importance for the
inhabitants of Norway. Some of these fiords have a considerable development,
stretching themselves far into the country and l>eiug at their mouth very wide.
Nevertheless they have been from time immemorial considered as inner waters, and
this principle has always been maintained, even as against foreign subjects.
More than twenty years ago, a foreign Government once complained that a ves.sel
of their nationality had been prevented from fishing in one of the largest fiords of
Norway, in tlie northern part oT the country. The fishing carried on in that neigh-
bourhood during the first four months of every year, is of extraordinary im^jortance
to the country, some 30,000 people gathering there from South and North, in order to
earn their living. A Government inspection controls tlie fishing going on in the
waters of the fiord, sheltered by a range of islands against the violence of the sea.
The appearance in these waters of a foreign vessel pretending to take its share of
the fishing, —
(not to destroj^ the fishing for ever — )
was an unheard of occurrence, and in the ensuing diplomatic correspondence the
exclusive right of Norwegian subjects to this industry was energelically insisted
upon as founded in immemorial practice.
Besides Norway and Sweden have never recognized the three miles limit as the
confines of their territorial waters. They have neither concluded nor acceded to
any treaty consecrating that rule. By their municipal laws the limit has generally
been fixed at one geographical mile, or one-fifteenth part of a degree of latitude, or
four marine miles; no narrower limit having ever been adopted. In fact, in regard
to this question of the fishing rights, so important to both of the United kingdoms,
the said limits have in many instances been found to be even too narrow. As to this
question and others therewith connected, I beg to refer to the communications ])re-
sented by the Norwegian and Swedish members in the sittings in the Institiit de Droit
International in 1891 and 1892. I wish also to refer, concerning the subject which I
have now very briefly treated, to the proceedings of the Conference of Hague, in
1877 (Martens. Nourcau recueil general, 11" sdrie volume IX), containing the reasons
why Sweden and Norway have not adhered to the Treaty of Hague.
120 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Not a word conld be added to that. Put in the place of tlie whale,
which, as I have said, in no way attaches itself to or becomes appurte-
nant to any particular property — the seals, if they found in the liords
of Norway i^recisely the home that they find iu the Pribilof Islands and
there became the basis of the same important industry as the whales
are, I should like to know what would be the course of the Government
of Norway"? What ought it to be — what would it be, beyond question ?
Would not that case be a great deal stronger than the one we are
concerned with?
Mr. Gram. — I beg only to observe that that fishery which t have
been stating there, which gave use to Diplomatic Correspondence is
Cod fish — not whales.
Mr. Phelps. — I beg your pardon, Sir, I did not understand it cor-
rectly.
Sir Charles Eussell. — It applies to all fishing 1 understand.
Mr. Gram. — It applies to all fishing; but that instance which I
quoted, which was mentioned in the Diplomatic Correspondence, was
Cod iishing.
]\Ir. Phelps. — That is a fact which I did not understand. I Inid not
read that, perhaps, as attentively as I should; and indeed, being so
ignorant of the surroundings, I might readily fall into an error of that
kind. That fact strengthens what I was saying — it carries the prin-
ci])le further than if it had been limited, as I sujiposed, from reading the
menKu-andum of Mr. Gram, it was limited, namely, to the case of whales.
Lord IIannen. — As I understand, it is based on this view, that those
fiords are territorial waters.
Sir Charles Kussell. — Quite. That is the real point— just as the
large bays in America are claimed.
Senator Morgan. — There are no territorial waters four miles out.
are there?
Mr. Phelps.— What is the authority for that?
Sir Charles Russell. — The statement.
The President. — That may be a case for discussion between nations.
It is the assertion of the Norwegian Government.
Mr. Phelps.— That is exactly what it is.
Lord Hannen. — I oidy meant to point out they did not base it upon
an industry, but they say that it is within their territorial waters.
Mr. Phelps. — With great submission, My Lord, I respectfully insist
that it is exactly the industry upon which they base it. That is all
there is of it. What Mr. Gram says is, that they have never adopted
the three mile limit. He says some of these fiords, as the map
shows, are very wide. I do not find anything in this memorandum, or
in the statute, or anywhere else, and I have been commended to noth-
ing by my friend's argument, to indicate that they should maintain
that, or would undertake to maintain it upon the mere teriitorial limit
which the world generally has adopted of three miles wide. It is
because those fisheries are made the subject, as is said here, of a great
and valuable industry, that they decline to discuss the question whether
they are exactly within, or exactly without, a limit which is not for
Norway alone to fix. It is not in the power of any one country to fix,
in the face of the world, what the territorial limit must be — that must
come by the consent of nations. If Norway was to undertuke to assert,
or any other country, that the limit should be 50 miles, that would not
make it so. No other seafaring nation would be bound by that, if that
were all. Nor have they undertaken so far to put forth any assertion
in respect to it. Without discussing how wide the fiord is, without dis-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 121
cussing liow wide the territorial line may be, wliicli is adopted by the
consent of nations, and which, as Mr. Gram says, Norway has never
estopped itself by agreeing to, whatever that may be, they will notper-
mit foreign vessels to come there and destroy the industry on whicli
their people depend.
Tlie President. — But, jNFr. Phelps, whether the assertion is founded
on the principle of extension of territorial waters — whether it is
founded on the defence of a national industry — do not you think that
concurrence with the views from other nations is equally necessary?
Mr. Phelps. — I do, and that is the very strength of the position that
I have been attempting to maintain. Your question, Sir, anticipates
the remark with which I was going to take leave of this branch of the
case, upon which I hope it will not be thought I have taken more time
than is necessary, although 1 fear I have. What do we chiim from it
all — from everyone of these cases where in so many nations, in so many
waters, so many kinds of marine, or semi-marine, or submarine i)rop-
ertj' (tlie foundation of industry and husbandry), have been success-
fully protected, and are protected to this day — what is it that we claim
from that? We claim that it shows that in every such case it has been
necessary for the nation to assert, and the nation has asserted, a prop-
erty interest, well described by Mr. John Quincy Adams as an interest
that may, perhaps, be an incofjmrealmterQst. The term "property" is
large. It is indefinite: it is broad. Nations have been compelled to
assert, and in every case they have asserted, such a property interest in
an industry founded upon these animals as entitles them to protect it
from destruction; and in every case the whole world has so far
acquiesced and assented to that assertion, whether it has had the neces-
sity to make similar assertions for itself or not. So completely that the
exhaustive diligence with which this case has been prepared has not
shown you one instance of any claim to the contrary, except the solitary
one (if it comes up to that), which Mr. Gram referred to, when, to the
surprise of his people and his Government, a foreign A'essel made its
appearance, and proposed to take part in their fisheries, in violation
of the regulations which are there established. There is not another
instance in the whole length and breadth of this case.
There is not another instance, either, where a nation having this prop-
erty has failed to assert it, or where any other nation, or individual of
any other nation, has openly ventured, dared, or proi)osed to infringe
it — not one. Of those few instances, principally of the seals in the
southern hemisphere, wliere a nation regardless of its interest, perhaps
at a day when the interest was not so valuable — has omitted in respect
to the seals to make that assertion which would have been respected as
it always is if it had been made — what is the consequence? The animal
has perished oft* the territory where it belongs. Therefore these three
postulates may be drawn, without any contradiction, from this long
series of cases: first that the property interest is always asserted where
it exists; secondly, that it is always respected where it is asserted;
thirdly, that in a few instances where it has been omitted, not from fear
of the right of asserting it, bat from neglect, perhaps from the com-
parative unimportance of the industry — the consequence lias been that
it has gone; and if it had not been for the statutes I have referred to,
there would not at this day have been a pearl oyster bed, nor a coral
bed, nor a seal, on the face of the earth. And then the Herring Fish-
eries— even those pure fisheiies of the open sea that I do not ])retend
come within the purview of this principle, except in a very wide view
of it unnecessary for us to take here — even there it is questionable
122 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
AvLetlier tlic places that know tliem now wliore tlioy form so important
a part of the existence and the industry of tlie peoi)le, -would know
tbein at all. I do not mean to say that those fish would have been
exterminated from the earth, because all seas are their home. They can
go elsewhere. They need no particular shoal. I do not say the herring
and the cod would have disappeared fi-om the earth, but they would have
disappeared from those shores where they constitute the commercial
interest, the industry, the means of subsistence. And I say, there-
fore as the conclusion of this, that when it is adjudged, if it is ever
adjudged — that the fur-seal — more valuable than any one of these pro-
ducts, more closely attached to the soil where it propagates and belongs,
ten times over, — is to be excluded from protection, and that the right of
extermination is in any individual man who chooses to go there and
perpetrate it, you have then jdaced this animal, which should be the
very first to come within the purview of these principles, upon a footing
upon which no similar animal, no similar i)ro(luct stands or ever has
stood, and you doom him to immediate destruction. We may talk
about Regulations — which as a substitute for a dispute, as a means by
which nations could bury the disinite, and come together and agree
by convention upon what would have been the right of either to have
enforced as against the other, if it thought proper, — that has its merits
when it comes about in that way; but as the substitute for that right
which alone has ever been sufficient to protect any such property, it is
a mere rope of sand; and nothing that I could say would demonstate
that so completely as the arguments of my friends on the other side,
who day after day have been addressing you and urging that under
the guise of Eegulations you should adopt a series of measures that
would defeat the very end which, theoretically, they are intended to
subserve, which would promote the very business we are endeavoring
to restrict — pointing out in every step of their argument, the embar-
rassments, the difficulties, the vexations and uncertainties that w^ould
attend any effort to enforce any sort of a Code which the learning and
skill of the ablest men in the world would be able to prescribe.
Now a few words on the question of law — on a question of law that
like so many questions of law in this case, is, in my humble judgment,
quite likely to be mistaken, if considered outside the necessities of the
case. — Upon what theory do statutes of the sort we have been perusing
ever since yesterday morning take efl'ecf? Says my friend: A statute
has no operation outside of the jurisdiction of the country that enacts it.
That is very true. That is a mere axiom in the law. How then do
the statutes protect these seals? They protect them upon either of
two theories, either of which is satisfactory — both of which are abun-
dantly supported by authority. They go sometimes upon one ground;
sometimes upon another. It is immaterial upon which ground they
stand, as long as they do stand. A statute — a municipal statute —
Mhich has effect of course only within the jurisdiction of the territory,
and upon nationals outside the jurisdiction — how does that operate?
In the first place, what is the jurisdiction? To begin with, the juris-
diction of a nation is to the water line — that is plain enough. Then
it has come to be understood and considered that it extends a cer-
tain distance into the open sea — the "high sea", for certain purposes
only. The general jurisdiction of a nation through its statutory enact-
ments does not extend an inch beyond the water line — low water mark.
It cannot forbid, for instance, any vessel to sail up as near the shore as
it can, assuming that it does no harm. It cannot exclude vessels from
coming within three miles that is perfectly certain and agreed upon
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 123
eveiywliore. To exclude them yon must conucot tlunr preseueo with
some miscliief, some harm, some danger; the iurisdi(;tion for tlie three
miles, or the cannon shot, or whatever indefinite distance it may be, is
not a general jurisdiction, it is a jurisdiction for all necessary purposes,
leaving to the nation a veryliberal discretion in determining what " neces-
sary purposes" are, — and nothing else. Thus, the jurisdiction of a
nation outside of the water line it will be perceived is a special juris-
diction. Inside of its territory it may pass any law it pleases; beyond
the water line it has a juiisdiction up to a certain extent for certain
proper purposes — revenue, quarantine, pilotage, everything that a
reason can be given for; and an exclusive right, unquestionably, of
fishing and hunting and to the products of the sea.
Then, does this special jurisdict ion terminate on the three mile line? I
shall have occasion to point out, upon the very highest and most recent
authority, how utterly vague aiul uncertain this idea of a three mile
line is. But call it three miles for the purpose of my present discus-
sion, and assume that the whole world have agreed to call it just three
miles — no more — no less, — does the right stop tliere? How comes it there
at all beyond the shore line! — Because it is found necessary, by uni-
versal agreement, that nations, for their own ])rotection, should have
that much ; and therefore it has become settled by the usage of nations
that they shall have it; in other words that they shall add three miles
of the high sea to their territory for certain purposes only. Does it
stop at this limit of three miles? It does not stop there if there is a
just necessity in particular cases for extending it further; and I shall
cite authorities to show that while beyond the three mile line the juris-
diction becomes still more special than it was inside, and is still more
restricted, nevertheless, when it comes to pass that the three mile limit
Is not enough to answer the purposes for which it is accorded, but tiiat
for special occasions, perhaj)S revenue, perhaps quarantine, perhaps
lighthouses, perhaps anything that is really necessary, the jurisdiction
of that nation — I mean the special jurisdiction — the jurisdiction over
waters, on the sea, goes farther still in the adjacent waters — goes as
far as may be necessary. It has been extended to twelve miles and to
various distances. And that while national jurisdiction is not complete
within the three mile line because it only extends to proper subjects
and proper cases, then when the real necessity of the case extends fur-
ther, the jurisdiction of the nation goes with the necessity; in other
words that the limit of the jurisdiction of a maritime nation upon the
high sea is the limit of the actual necessity of the protection of its
interests.
That is the proposition. It is not a geographical limit — it never was;
it never can be — it is a limit of propriety — a limit of reasonable neces-
sity. Of course as I said before on this subject of self defence, the
nation that undertakes to assert that, must be prepared to justify it. I
do not at all say that because a nation chooses to assert that a six mile
limit or a ten mile limit, for certain purposes, are essential to its pro-
tection, that it is thereupon entitled to possess itself of that limit. It
asserts it, and the judgment of the world is the tribunal. When a
nation in tiie exercise of its governmental power makes such an asser-
tion as that, it brings its case before the tribunal of the world, and
there it will be decided one way or the other. It will be determined
by the repudiatiim of natiojis, — the refusal of nations, the dissent of
nations from such a proposition and the refusal to res])ect it, and then
it perishes. It is a mere assertion tliat is fouiul in the judgment of
mankind to be an unwarranted assertion, and it falls to the ground.
124 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
On the otlier liaiul, wlien it is seen by tlie civili/cd world that this
exteii.sion in a particuhir case is proper, is right, is necessary, works
no harm or injustice to anybody, does give tlie nation its just and
necessary protection — tlien it is afifirmed, and, by tlie acquiescence of
mankind it comes to be established as law — it comes to be established
piecisely as what is called the "three mile limit" has come to be estab-
lished, and it derives, undoubtedly, additional force from the number of
cases in which it is embodied in treaties, wliicli, while they do not
make law for any but tbe parties to the treaties, nevertheless shew the
recognition of the proprieties, the justice, of certain propositions by the
imtions of the world.
If it is convenient to you. Sir, to adjourn now, it would be agreeable
to me.
The President. — Certainly.
[The Tribunal then adjourned for a short time.]
Mr. Phelps. — I had stated, Sir, before the adjournment this morn-
ing, one of the theories upon which, as it appears to me, both upon
principle and authority, the efficacy of muni('i]ial statutes or regula-
tions adopted for the preservation and protection of marine or semi-
marine products appurtenant to the shore beyond the ordinary territorial
line may depend. That is to say, that the question involves the enquiry,
what is the necessary line for such purpose. I postpone referring to
various authorities in support of that view until I have stated another
theory, equally applicable and equally supported by authority, because
the authorities I propose to refer to belong so generally to both tliose
propositions, that they can be more advantageously taken up after
both have been stated.
Now a statute, as it appears to iis — a municipal statute, which takes
effect within any line of territorial jurisdiction, say for instance, a three-
mile line or a cannon-shot line, or whatever line may be prescribed — is
enforced by judicial process, is law whether it is necessary and proper
and just or not, and does not depend upon the executive authority of
the country at all. That is to say, in a representative Government,
where there is a legislative power within the territory, it is the abs(»lute
and positive law. It is the business of the executive to enforce it, if
his interposition is necessary. It is the duty of the Courts of Justice
to give effect to it, whenever the case arises. Outside of the jurisdic-
tion it has the same effect as far as those subject to the national juris-
diction are concerned. The ships of that power on the high sea are
still subject to that municipal law. Then when it takes effect, as we
have seen these always do take effect somehow by the consent of the
world outside of the ordinary territorial line, and upon those who are
not nationals, or under that jurisdiction, they may be said not to take
effect as statutes, but as wliat may be called "defensive regulations".
The term is not material. It expresses the idea 1 am trying to con-
vey. There is no magic in the term; there is no authority in the term.
It becomes a regulation which the executive of the country may or
may not enforce in its discretion. It is no longer a statute which must
be enforced. It is a provision which may be enforced or may not be
enforced. In order to justify to other nations its enforcement, the con-
ditions unnecessary to its efficacy within the jurisdiction must occur —
first, that it is necessary, then that it is reasonable. So that this pro-
vision, or regulation, wliicli takes effect as a statute and by judicial
enforcement within the jurisdiction, becomes without, only the guide,
the measure of the executive authority which the executive might
adopt if there were no statute at all, subject to a qualification which I
OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 125
shall state in a moment. It is a part of the defence of the conntry
which is in the hands of its Government, which may be legislated upon
nndonbtedly, but which whether legislated upon or not, must always
be enforced by the executive department of the Government, which
has control of the arm of the national force. Because as the writ does
not run on the high sea except as against nationals, and the sheriff of the
county or the marshal of the district cannot go there with his process,
when such a regulation is enforced at all, it must be enforced by the
executive power of the Government. Because the right of self-defence
is declared to be the paramount right. It is not merely the right of
an independent nation; it is the paramount right to which all otliers
give way.
It is the first duty of the executive, in the necessary case and by the
proper means, to exert the arm of power to protect the interest of the
Government; and that duty would be not the less if the legislative
Department of the Government had failed to interpose. It would still
remain. On the other hand, it is not lost if the legislative Department
does interjwse. As it is not necessary that they should confer it, so it
is impossible that they should take it away. But the propriety of a
statute in such a case, the necessity of which does exist, is in order to
make the act which is necessary likewif^e reasonable. It is not the
statute that makes it necessary ; the necessity comes from without. The
statute neither gives it nor takes it away; but when as against another
nation the act of defence is exerted, it must not only be necessary, it
must be reasonable. Keasonable in the manner of its exercise; reason-
able in the thing that is done. Where the necessity of a case will be
answered by capturing a ship, for instance, and bringing it in, a nation
is not to sink that ship into the ocean with all on board, to burn it, to
execute or even to imprison, as has been well enough said by my learned
friend in reference to a judgment in this case that I shall have occasion
to allude to. The manner of the self-defence, even when the necessity
is conceded, must be reasonable in view of the usage of nations as far
as there is a usage that applies, — reasonable in its adaptation to the
necessity, not transgressing the necessity; just as in the case of indi-
vidual self-defence where the necessity for it arises, it must stop when
the exigency is met.
Now, one of the incidents that must always attend, and the least
reflection will show that it is an iudispensable requisite, is that before
measures of force are resorted to in defence of a nation, reasonable and
proper notice, or information shall be given to the world of the objection
that exists to what is being done, and of the regulation or the defence
that it is proposed to exert. Why, it was a part of my learned friend's
argument, in dealing with these seizures in the Behring Sea, "You
have seized these vessels without giving notice to Great Britain that
you were going to do so ". Well, if that had been true, I mean by that
if the facts that had taken place did not amount to sufficient knowledge,
there would be great force in my learned friend's suggestion. This was
the very point that, as I have remarked this morning, was the infirmity
of the seizures that were made by Eussia of tlie Canadian vessels for
sealing. A vessel came there with no notice whatever that sealing in
the high sea was going to be prohibited, and it had not been prohibited
elsewhere; and the first warning that the vessel had was this seizure.
Eussia may well say that it was necessary to do it. " We cannot ]>re-
serve this industry in any other way ". " Yes, but is it necessary that
you should resort to the extreme measure of capture of a vessel before
you had given notice not to do here as they could do elsewhere, and had
126 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
given them a fair opportunity to withdraw", as it is presumed that they
would with(iiaw when they found that the nation affected objected to itj
then when they dechned to witlidraw and persevered in face of the
objection and the notice, it woukl be time to go a step further and
enforce your Eeguhitions by actual seizure.
That is what a statute does, and tliat woukl be the weakness of the
position of the President of the United States, if without any act of
Congress which by its publicity gives notice to the world, without any
proclamation or declaration he sends a vessel of the navy which is
under his command to seize a vessel and bring it into Court. It may
be necessary that measures be resorted to to stop the depredation of
that vessel, but it is not reasonable that it should be done until notice
has been given to the nation or to the vessels of the nation, and there-
fore you see transpiring in this very correspondence, that whenever a
statute of that kind is passed, or a proclamation of that kind is made,
the Government whose vessels are abroad and likely to be alTected by
it, immediately give notice. It becomes then the duty of the nation
who finds that these acts are forbidden, to give notice to its sulijects,
and to inform them that if they go on they go on at their own risk;
unless the nation prefers to take the giouiid of insisting that such a
statute is inoperative, and that it will not submit to it and that it will
iustify and back up its vessels in disregarding it.
If the nation chooses to take that ground, that is one thing; but if it
is not proper to take that ground, if it is even uncertain whether it will
justify itself, or whether as a matter of policy, even aside from the
question of right, it will go that far, then it gives notice to the sliips,
"you must beware". That is the object of the statute. .Another
object that makes it reasonable is this: — it is not reasonable to ask
nations to refrain on the high seas on the grounds that the acts they
do there are destructive to a national interest, when the subjects of the
nation that demands it are not required to refrain, though their action
would be just as mischievous. No nation could justify that. When
the objection of the nation is the killing of these animals, at such times,
in such places, and in such manner as is destructive, and, we insist, as
a matter of national defence, that the subjects of other nations shall not
do it, we cannot justify that proposition if we permit our own citizens
to go out and wreak the very destruction which they object to in other
people. Therefore, as the first step in the reasonableness of such a
proposition or regulation as that, you must show that we have pro-
hibited it to our own citizens. That we have made it a crime wherever
our writ runs; wherever the jurisdiction of our Court reaches.
The next thing is that we give notice to the world, by these public
statutes, that we propose to require other nations to desist from doing
that which is a destruction of our interests, and which we have made
criminal as against our own citizens. Then the foundation is laid for
saying that such an act is, in the first place, necessary, which, of course,
remains to be seen, and which the nation takes the risk of. In the first
place it is necessary, and in the next place it is made reasonable when
we have required our own citizens to abstain, at whatever cost or detri-
ment and when we have notified to the world what we propose to do.
That can only be done by a statute; I mean, the first of those requisites
can only be done by a statute, restraining their own citizens and their
own ships; and the statute, though not the only means of giving notice
to the world, is, perhaps, the best means. Then, suppose that Congress
or Parliament, perceiving the necessity of such restriction, passes such
statutes, it still remains for the executive of the country to enforce them,
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 127
outside the jurisdiction, because they can be enforced in no other way.
If he declines to send the ship, or the cruiser, or the armed force, then
it is not enforced; but if he sends it, then it is enforced; and then the
question arises between that nation and the other that is affected, "Is
this a necessary thing to do in protection of your interest? Is it a
reasonable thing to do?" The regulation then becomes, in the first
place, through the statute, obligatory upon the citizens. It becomes
in the second place notice to the world. It becomes, in the third place,
the guiiie and the measure for the action of the executive, not necessarily
to control it, because he must act upon his own discretion ; but the guide
and the measure that is suggested to him, which is analogous to what
is enforced against his own people.
Kow, I have dwelt longer than I intended upon a distinction that
is without a substantial diiterence, a distinction that is technical, that is
theoretical, as to the precise legal ground upon which this exercise of the
right of defence stands. It may be supported and it is supjiuorted by the
most respectable authority, upon either of these two theories, — either in
the proper case, in the necessary case, that the jurisdiction of the Gov-
ernment itself goes far enough, or that, if you terminate the jurisdic-
tion at an arbitrary line, then the power of the Government in the
exercise of self-defence, as suggested and guided and directed by the
provisions of the statute, is made reasonable, is notified to the world,
and is enforced in that way.
Now, still a little further on this subject of national self-defence in
respect to its theory. What is the right and the limit of national self-
defence? As I have said before, it is the first of all national rights; it
is the most important of all, — it may be the most necessary of all. It
goes, or it may go, to the existence of the nation; it may stop much
short of that.
Perhaps you will pardon me for reading some extracts. I read first
from Vattel :
Since, then, a nation is obliged to preserve itself, it has a right to everything
necessiiry for its preservation, for the law of nature gives us a right to everything
■without wliich we can not fultill our obligations.
A nation or state has a right to everything that can help to ward off imminent
clanger and to keep at a distance whatever is capable of causing its rnin, and that
from the very same reasons that establish its right to things necessary to its j)re8-
ervation.
Says Mr. Twiss, part I, section 12, of his book on International Law:
The right of self-defence is, accordingly, a primary right of nations, and it may
be exercised, either by way of resistance in an immediate assault or by way of pre-
caution against threatened aggression. The indefeasible right of every nation to
provide for its own defence is classed by Vattel among its perfect rights.
And Phillimore, International Law, chapter 10, sections 111 and 112
says:
The right of self-preservation is the iirst law of nations, as it is of individuals. For
international law considers the right of self-preservation as prior and paramount to
that of territorial inviolability.
And says Mr. Hall in his Treatise on International Law:
In the last resort almost the whole of the duties of states are subordinated to the
right of self-protectiou. Where law affords inadequate protection to the individual,
he must be permitted, if his existence is in question, to protect himself by whatever
means may be necessary. There are, however, circumstances falling short of occa-
sions upon which existence is immeiliately in question, in which, through a sort of
extension of the idea of self-preservation to include self-protection against serious
hurts, states are allowed to disregard certain of the ordinary rules of law, in the
same manner as if their existence were involved.
If a nation is ()l)liged to preserve itself, it is no less ol)]iged carefully to pres(-rve
all its members. Tlie nation owes this to itself, since the loss even of one of its
128 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
members -weakens it and is injurious to its preservation. It owes tliis also to the
members in particular, in consequence of the very act of association ; for those who
compose a nation are united for their defence and common advantage, and none can
justly be deprived of this union and of the advantages he expects to derive from it,
\vhil(3 he, on his side, fulfils the conditions. The body of a nation cannot, then,
abandon a province, a town, or even a single individual who is a part of it, unless
compelled to it by necessity, or indispensably obliged to it by the strongest reasons
founded on the public safety.
It will be seen, therefore, that the right of self-defence is not confined
to the mere defence of the existence of the nation, as from an enemy that
threatens its conqnest or its destruction. It extends to every interest
of the nation tliat is worth protecting, to every individual of the nation,
to every part of the nation, and it is a paramount right. What is the
limit and where is the limit of the place of its exercise? Must the
nation remain on its soil and stand on the defensive until it is attacked?
Nothing is more fundamental, than that the right of self-defence may
be exerted wherever it is necessary to exert it, on the high sen, even
on the territory of a friendly nation. You may even invade the terri-
tory of a nation with which you are at peace, to do an act which the
just defence of the country really rendeis necessary. So far from there
being any objection to enforcing this right upon the high sea, it may
be enforced upon foreign territory. Says Vattel on this subject, page
128, section 289 — ancl 1 read from page 148 of the argument:
It is not easy to determine to what distance the nation may extend its rights over
the sea by which it is surrounded.
And Chancellor Kent made the same observation in different lan-
guage. We have cited a number of cases on this point, and among
them the case of Church v. Hubbard, the decision of the Supreme Court
of the United States when Chief Justice Marshall presided over it, and
which my learned friend in his observations on the case, thinks was not
only right, but was so plainly right, that he could hardly think it
necessary for the Chief Justice to have delivered an opinion in support
of this conclusion. I agree with him. Now what was that case exactly?
It was a case where a country had undertaken by one of its municipal
regulations to prohibit trade with its colony, and the right of a nation
to do that has become sufficiently recognized to be entirely established.
A ship set out to infringe that Regulation by trading with a port of
that country. It was captured on the high sea by the nation whose
Regulation was about to be infringed. The evidence was sufficient to
show that the presence of the vessel near the coast did have for its
object and intent, a trading voyage to the prohibited port. It had
infringed the Regulation by coming within the line which the Regula-
tion prescribed, but which was a line upon the high sea twelve miles
out — it had not infringed the territory of the nation — it had infringed
the Regulation which "took effect, if it took effect at all 12 miles out at
sea, and the question was whether the capture was justified by the law
of nations. The question arose in such a manner that it could not be
justified at all, except upon established principles of law, because the
question arose in an action upon a policy — an action upon a contract,
in which the rights of the parties, whatever the rights of the nation
may have been thought to be, must be determined by the existing and
established law.
The Chief Justice makes it so clear, as he always made every thing
clear in regard to which he spoke or wrote — ho made it so plain that
by the established principles of international law that right of self
defence could be exerted on the high sea, that the vessel could be caj)-
tuiedand brought in and condemned, that it never has been questioned
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 129
from that time to this by any authority that is produced for our con-
sideration except a dictum of Mr. Dana, or possibly one or two of these
American Jurists I alhided to yesterday, wlio have been introduced
into public notice by my learned friends. If any person doubts that
proposition I commend him to a reading of the luminous judgment of
Chief Justice IMarshall and his eminent associates, because it was not
his judgment alone — the entire Court concurred in it.
That self defence, it will be observed, was not of the existence of that
nation. Nobody pretended that was in any danger. It was not a right
in time of war. It w^as a period of profound peace. It was sim])ly a
protection of themselves against the comparatively insignificant conse-
quences of one ship trading at one colonial port; and involved no ques-
tion of existence, and no question of serious danger. Therefore, there
cannot be supposed a case that is more completely and entirely in point
than this case, if it is right. As we have pointed out, Lord Chief Jus-
tice Cockbnrn in his judgment, in the leading case of the Queen v. Eeyn,
speaks of this as declaring the law, and recognizes the ground upon
which Chief Justice Marshall puts the case. He says:
Hitherto legislation, so far as it relates to foreigners in foreign ships in this part of
the sea, has been conliued to the maintenance of neutral rights and obligations, the
prevention of bleaches of the revenue and fishery laws, and, under particular circum-
stances, to cases of collision. In the two first, the legislation is altogether irrespective
of the three mile distance, being founded on a totally different principle, viz the right
of the state to take all necessary measures for the protection of its territory and rights,
and the prevention of any breach of its revenue laws. This principle was well
explained by Marshall, C. J., in the case of Church v. Eubbart.
There is the difference, very clearly pointed out by the Lord Chief
Justice, between the defensive regulation in its operation, and the stat-
ute itself The opinion of Chief Justice Marshall is also cited as stating
the law, by Chancellor Kent, by Mr. Wharton, and by Mr. Wheaton.
Then it was followed by the case of Hudson v. Guesfier, in which the
question was as to the jurisdiction of the French Court, in the matter
of a seizure at sea — whether it could be made beyond the limits of the
territorial jurisdiction, for breach of a municipal regulation. That case
went up twice, and it went upon a different state of facts, that is, a sup-
posed different state of facts. It went up the first time, and it appeared
that the seizure was within the territorial limits. Then, on a new trial,
other proof showed that it was outside. Then it came up to the Supreme
Court of the United States a second time, and there it was held, as was
held before in the former Case, that the seizure on the high seas, for
breach of a municipal regulation, was valid; that it was an exertion of
the right of self defence. Then a previous case to that, which was an
intermediate case, I believe, after the decision of Church v. Hubbard, and
before the decision of Hudson v. GuesUer, was Rose v. Himely, in which
under a similar law a seizure had been made on the high seas, but never
consummated by carrying the vessel into port. The question was
whether that was a justifiable act of self defence. The Court divided
on that question, and the majority of the judges held that it was not
justifiable without carrying the vessel in; in other words the vessel
should not be seized without carrying out and continuing that seizure
up to the ]wint that would give the parties a chance to be heard on the .
question of whether the vessel was violating the regulations in question.
One of the judges, Judge Johnson, held that, notwithstanding that, the
capture was legal, and he has given an opinion which we have taken
the pains to quote, and which will be found in the Appendix to the
Argument, in wliich he reasons out the conclusion that this act of self-
defence did not depend, for its justification, upon bringing in the vessel,
B S, PT XV 9
130 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
but that the seizure was valid. Tlie remaiuder of the Court thought
otherwise. They did uot base it upon the questiou of the validity of
the seizure, but they held that the seizure was never consummated in
the way that international law required; that the ca])t()rs had stopped
short of the point which was necessary to their justification.
The President. — That is a rule of prize jurisdiction of which you
speak.
Mr. Phelps. — Yes, but subsequently, in the case of Hudson v. Gues
tier to which I have just alluded,
Mr. Justice Harlan. — That is in the 6th Cranch.
Mr. Phelps. — Yes, the case of Church v. Hubbard is in the 2nd Cranch.
Bose V. Himely is in the 4th Cranch, and the final Case of Hudson v.
GuesUer is in the Cth Cranch. Now it is said the case of Hudson v.
Guestier over-rules the decision of Rose v. Himely and there is a line lu
the report of the jud^^ment of Chief Justice Marshall, that says in terms
that the case of Rose v. Himely is over ruled. If so, then the doctrine
of Judge Johnson (which goes further than it is necessary for us to go
here) becomes the law. I confess from the report of the case I cannot
see in what particular Hudson v. Guestier over-rules Rose v. Himely but
that is quite foreign to my purpose. Perhaps it over-rules the dicta.
If it is not so, the authority of the case of Rose v. Himely will show that
the judges who thought that seizure was not lawful, put it exclusively
upon the ground that it was not consummated by carrying the vessel
into the Court of the country, and Judge Johnson alone thought it
valid without.
Hudson V. Guestier only holds that a seizure which is carried into
Court, as it happened to be in that case, is valid. But it is quite imma-
terial to our present inquiry whether the one case over-rules'the other,
or uot, because both cases concede our point.
From that time to this, in no authority that is brought forward, and
none that I have ever seen or heard of, have the doctrines established
there been questioned. But again and again, by writers and judges of
the greatest eminence, they have been recognized and declared to be
right. Mr. Dana alone who edited an edition of Wheaton's International
Law over-rules the autlior whom he edits on this point, who had stated
this decision as stating the law, and thinks that the Sui)reme Court of
the United States was mistaken. Now in Wheaton, the author whom
Mr. Dana has edited, chapter 1st, part 4, page 290 of this edition, which
is the 8th — and this is Mr. Dana's edition, by the way — it is said:
The independent societies of men called States, acknowledge no common arbitor
or judjje except such as are constituted by special compact. The law by which they
are governed, or profess to be governed, is deficient in those positive sanctions which
are annexed to the municipal code of each distinct society. Every state has, there-
fore, a right to resort to force as the only means for redress for injuries inflicted
upon it by the others, in the same manner as individuals would be entitled to that
remedy were they not subject to the laws of civil society. Each State is also enti-
tled to judge for itself what are the nature and extent of the injuries which will
justify such a means of redress. Among the various modes of terminating the
differences between nations by forcible means short of war are the following,
giving several methods of embargo and taking possession of things
and retaliation and reprisal.
The second of these is :
By taking forcible possession of the thing in controversy by securing to yourself
by force, and refusing to the other nation the enjoyment of the right drawn in
question.
Another is embargo; another is retaliation, and the fourth is reprisal,
Mr. Justice Harlan. — Are those extracts embodied in your brief
anywhere ?
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 131
Mr. Phelps. — No. I think that this was not noticed in the written
Argument.
Mr. Justice Harlan. — Then will you give me the pagef
Mr, Phelps. — It is part IV, cliapter 1, section 290, page 290 likewise,
of the 8th edition of "Dana's Wheaton".
Sir EiCHARD Webster. — In the chapter about belligerent rights'?
Mr. Phelps. — It is " International rights of States in their hostile
relations". Section 292, on page 292 also, says:
Any of these acts of reprisal or resort to forcible rueaus of rerlress between nations
may assume the character of war in case adequate satisfaction is refused by the
offeudinj? State. Rei)risals, says Vattel, are used between nation and nation in
order to do themselves justice when they cannot otherwise obtain it. If a nation
has taken possession of what belongs to another, if it refuses to pay a debt, or repair
an injury, or give adequate satisfaction for it, the latter may seize something belong-
ing to tlie former, and apply it to its own advantage till it obtains payment of what
is due together with interest and damages, or keep it as a pledge till the offending
nation and so forth.
That refers more particularly to a past injury than the prevention of
a present.
The case of the Marianna Flora, in the 11th Wheaton's Eeports of
the Supreme Court of the United States, in which the opinion was
delivered by Mr. Justice Story, is to the same effect as the decisions I
have previously quoted, though considerably later in the history of the
Court, on the point of the right of self-defence; and the case will be
fouiid an instructive one as to the extent to which the ship of a nation
may go on the high seas in the right of self defence against the armed
vessel of another nation with which it is at peace. I cannot read that
long opinion; but I venture to commend it to the perusal of anyone to
whom it is not already familiar. The facts are that a vessel of the United
States Government was approached by the vessel of another nation, a
Portuguese armed ship, and approached so near that finally a shot was
fired, I believe from the Portuguese vessel. It was really an offensive
act by tlie Portuguese ship, perhaps not intended as offensive but rather
ill-advised, and the result of it was that Captain Stockton, who com-
manded the American vessel, captured the vessel and brought her into
port. The question came up in a double aspect; first, whether the shij)
could be held or confiscated; secondly, if not, whether Captain Stock-
ton was liable in damages for having made the seizure. It was claimed,
on the one side, that the vessel was open to condemnation, that it had
made an assault upon an armed vessel of the United States, and could
be condemned as a prize. It was claimed, on the other hand, that that
was not so, and that really the seizure was so unjustifiable by Captain
Stockton, that he was liable in damages. It was not a naval vessel of
the Portuguese Government. It was an armed vessel.
The Supreme Court of the United States dismissed both those appli-
cations. They held, in the first place, that Captain Stockton was
within the exercise of his right of self-defence of the honour of his Gov-
ernment. He was not placed in any danger. His vessel was the supe-
rior force. He did not require to defend himself or his ship, and, if he
did, it was not necessary to capture the other ship. But the Court put
it upon the ground that an officer of the Navy of the United States
had a right to protect the honour of his flag against being assaulted and
fired upon, and that, therefore, under tlie circumstances, he was right
in capturing the vessel; and was not responsible in damages. They
held, on the other hanjl, that in view of what the mistake really was
on the x)art of the foreign vessel, upon an examination of the facts, not
as they appeared to Captain Stockton, but as they actually took place.
132 ORRL ARGUMENT OF HON. EDWARD J. PHELPS.
the vessel could not be condemned and the vessel was discharged. It
is a most instructive case, because the opinion (jf Mr. -lustice IStory,
like all his opinions, was very able, and had the concurrence of the
whole Court.
The case of the schooner Betsey in Mason's Eeports, page 354 is a
decision to the same eifect by Mr. Justice Story sitting by himself in
the Circuit Court over which he presided.
On page 148 of the American Argument is a citation from the first
of Kent's Commentaries; page 31:
And slates may exercise a more qualified jurisdiction over the seas near their
coast for more tlian the three (or five) mile limit for fiscal and defensive purposes.
Both Great Britain and the United States have prohibited the trans-sliipment within
four leagues of their coast of foreign goods without payment of duties.
That illustrates what I was saying this morning as to the right of a
state to extend its jurisdiction beyond the three mile limit. And in
the notes you will find several citations on that point. Mr. Twiss says
in his volume of International Laws :
Further, if the free and common use of a thing which is incapable of being appro-
priated were likely to be prejudicial or dangerous to a nation, the care of its own
safety would authorize it to reduce that thing under its exclusive empire If possible,
in order to restrict tKe use of it on the part of others by snch precautions as pru-
dence might dictate.
That English author has applied this rule to the very case that we
have in hand, where the free and common use of a thing which is
incapable of being appropriated was likely to be prejudicial or disas-
trous to a nation.
Wildmau, on the same point says:
The sea within gunshot of the shore is occupied by the occupation of the coast.
Beyond this limit maritime states have claimed a right of visitation and inquiry
within those parts of the ocean adjoining to their shores, which the common cour-
tesy of nations had for their common convenience allowed to be considered as parts
of their dominions for various domestic purposes, and particularly for fiscal and
defensive regulations more immediately aliecting their safety and welfare.
Creasy, on International Law, remarks
States may exercise a qualified jurisdiction over the seas near their coasts for
more than the three (or five) miles limit, for fiscal and defensive purposes, that is,
for the purpose of enforcement of their revenue laws, and in order to prevent for-
eign armed vessels from hovering on their coasts in a menacing and annoying
manner.
Halleck says, in his book on International Law,
The three-mile belt is the subject of territorial jurisdiction. Even heyond this
limit states may exercise a qualified jurisdiction for fiscal and defensive purposes.
Then referring again to the language of Lord Chief Justice Cock-
burn, who quotes from Chief Justice Marshall's opinion in Church v.
JIubhard.
To this class of enactments belong the acts imposing the penalties for the viola-
tion of neutrality and the so-called "hovering acts" and acts relating to the customs.
Thus, the foreign enlistment act (33 and 54 Vic. C. 90) which imposes penalties for
various acts done in violation of neutral obligations, some of which are applicable
to foreigners as well as to British subjects, is extended in S. 2 to all the dominions
of Her Majesty, "including the adjacent territorial waters".
In the Appendix to this argument, on ])age 183, we have taken the
pains to bring together a number of citations from Continental Courts.
What we have cited before has been from English or American authori-
ties, either judicial or writers of distinction. Says Azuni :
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 138
Every nation may appropriate thinfjs, the nse of which, if left free and common,
would be greatly to its prejudice. This is another reason why maritime powers
uiay extend their domain along the sea coast, as far as it is possible, to defend
their rights. . . It is essential to their security and the welfare of their dominions.
Tlien Plocque, after discussin<>: the limits of the territorial sea, and
pointing out the great divergence of opinion that has existed on the
point, says :
Moreover, in custom-house matters, a nation can fix at will the point where its
territorial sea ceases; the neighbouring nations are supposed to be acquainted with
these regulations, and are consequently, obliged to conform thereto. As an example,
we will content ourselves with quoting the law of Germinal 4th, year II, Art. 7,
Tit. 2 : ' Captains and officers and other functionairics directing the custom-house, or
the commercial or naval service, may search all vessels of less than 100 tons burden
when lying at anchor or tacking witliin four leagues from the coast of France,
cases of vis major excepted. If such vessels have on board any goods whose impor-
tation or exportation is prohibited in France, the vessels shall be confiscated as well
as their cargoes, and the captains of the vessels shall be required to pay a fine of
500 livres'.
There is an example of a statute operating territorially outside the
ordinary three miles, about three times as far.
Says Pradier-Fodere (Traite de Droit international. Vol. II, sect. 633) :
Independently of treaties, the law of each State can determine of its own accord
a certain distance on the sea, within which the state can claim jurisdiction, and
which constitutes the territorial sea, for it and for those who admit the limitation.
This is especially for the surveillance and control of revenues.
And in a note to this passage he says:
It effect, in the matter of revenue, a nation can fix its own limits, notwithstand-
ing the termination of the territorial sea. Neighboring nations are held to recognize
these rules, and in consequence are considered to conform to them. On this point
the French law of the 4th Germinal, year II, can be cited.
This law fixes two myriameters, or about twelve English miles as the limit within
which vessels are subject to inspection to prevent fraud on the revenue.
La Tour (De la mer territoriale, page 230), speaking of the exterritorial
effect of the French revenue laws at four leagues from the coast, thus
justifies them.
Is not this an excessive limit to which to extend the territorial sea? No, we assert.
At the present day this question will hardly bear discussion, on account of the long
range of cannon; and though we should retui-n to the time when that range was
less, we should still undertake to justify this extension of the custom-house radius;
and for this it is sufiQcient to invoke the reasons given in matters of sanitary police.
It does not involve simply a recijirocal concession of states, or a tacit agreement
between them, but it is the exercise of their respective rights. . .
The American and English practice allows the seizure, even outside of the ordi-
nary limit of the territorial waters, of vessels violating the custom laws.
Says M. Calvo (Le droit international, sec. 244) :
In order to decide the question in a manner at once rational and practical, it
should not be lost sight of at the outset that the state has not over territorial sea a
right of property but a right of inspection and of jurisdiction in the interest of its
own safety, or of the protection of its revenue interests.
The nature of things demonstrates then that the right extends up to that point
where its existence justifies itself, and that it ceases when the apprehcnson of serious
danger, practical utility, and the possibility of effectively carrying on definite action
cease.
Maritime states have an incontestable right however, for the defence of their
respective territories against sudden attack, and for the protection ot their interests
of commerce and of revenues, to establish an active ins))ection on their coast and its
vicinity, and to adopt all necessary measures for shutting off access to their terri-
tory to those whom they may refuse to receive, whei-e they do not conform to estab-
lished regulations. It is a natural consequence of the general principle, that what-
ever anyone shall have done in behalf of his self-defence he will be taken to have
done rightly.
134 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Every nation is thus free to establish an inspection and a police over its coasts as
it pleases, at least where it has not bonud itself by treaties. It can, according to
the particular conditions of the coasts and waters, tix the distance correspondingly.
A common usage has established a cannon shot as the distance wliich it is not per-
mitted to overleap, except in the exceptional case, a line which lias not alone received
the approval of Grotius, IJyukershok, Galiana, and Kluber, but has been confirmed
likewise by the laws and treaties of many of the nations.
Nevertheless we can maintain further with Vattel that the dominion of the state
over the neighboring sea extends as far as it is necessary to insure its safety, and as
far as it can make its power respected. And we can further regard with Rayneval
the distance of the horizon which can be fixed upon the coasts as the extreme limit
of the measure of surveillance. The line of the cannon shot, which is generally
regarded as of common right, presents no invariable base, and the line can be fixed
by the laws of each state at least in a provisional way. (Heliter, Int. Law, Sees.
74-75.)
Bluutcchli says (Int. Law, Book iv, sec. 322) :
The jurisdiction of the neighboring sea does not extend further than the limit
judged necessary by the police and the military authorities.
And section 342:
Whenever the crew of a ship has committed a crime upon land or within water
included in the territory of another state and is pursued by judicial authorities of
such state, the pursuit of the vessel may be continued beyond the waters which are
a part of the territory, and even into the open sea.
And in a note he says :
This extension is necessary to insure the efficiency of penal justice. Tt ends with
the pursuit.
Carnazza-Amari, after citing from M. Calvo the passage quoted above
says:
Nevertheless states have a right to exact that their security should not be jeopard-
ized by an easy access of foreign vessels menacing their territory; they may see to
the collection of duties indispensable to their existence, which are levied upon the
national and foreign produce, and which maritime contraband would doubtless
lessen if it should not be suppressed. From all these points of view it is necessary
to grant to each nation the right of inspection over the sea which washes its coasts,
within the limits required for its security, its tranquillity, and the protection of its
wealth. . . . States are obliged, in the interest of their defence and their exist-
ence, to subject to their authority the sea bordering the coast as far as they are able,
or as far as there is need to maintain their dominion by force of arms. . .
It is necessary to concede to every nation aright of surveillance over the bordering
sea within the limits which its security, its tranquillity, and its wealth demand. . . .
Balde and other anthorities place the line at 60 miles from the shore. Gryphiander
and Pacuinez, at 100. Locennius, at a point from which a ship can sail in two days.
Bynkersheck maintains that the territorial sea extends as far as the power of artil-
lery. This limit is regarded as the correct one, not because it is founded on force,
but because it is the limit necessary for the safety of the state.
One other case I will cite upon this point, and that is the Case of
Manchester v. Massachusetts, in the 13th United States Supreme Court
Eeport; and the law on tliis subject is so well stated by Mr. Clioate in
his argument, that we have cited his language as well as the opinion
of the Court which sustained his contention. It is page 151 of the
argument and the report is at page 240 of the 139th Supreme Court
Eeports.
Without these limits were the " high seas", the common property of all nations.
Over these England, as one of the conunon sovereigns of the ocean, had certain
rights of jurisdiction and dominion derived from and sanctioned by the agreement
of nations expressed or implied.
Such jurisdiction and dominion she had for all purposes of self-defence, and for the
regulation of coast fisheries.
The exercise of such rights over adjacent waters would not necessarily be limited
to a 3-mile belt, but would undoubtedly be sanctioned as far as reasonably necessary
to secure the practical beueiits of their possession. If self-defence or regulation of
fisheries should reasonably require assumjition of control to a greater distance than
3 miles, it would undoubtedly be acquiesced in by other nations.
The ..uirine league distance has acquired prominence merely because of its adoption
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 135
as a bonudary in certain agreements and treaties, and from its freqnent mention in
textbooks, but has never been established in law as a fixed bonudary.
These rights belonged to England as a member of the family of nations, and did
not constitute her the possessor of a proprietary title in any part of the high seas
nor add any portion of these waters to her realm. In their nature they were rights
of dominion and sovereignty rather than of property.
Mr. Justice Blatchford, in delivering the opinion of the court, says: "We think
it must be regarded as established that, as between nations, the minimum limit of
the territorial jurisdiction of a nation over tide-waters is a marine league from its
coast; that bays wholly within its territory, not exceeding two marine leagues in
width at the mouth, are within this limit ; and that included in this territorial juris-
diction is the right of control over fisheries, whether the lisli be migratory, free-
swimming fish, or free-moving fish, or fish attached to or embedded in the soil. The
open sea within this limit is, of course, subject to the common right of navigation,
and all governments, for the purpose of self protection in time of war or for the
prevention of frauds on its revenue, exercise an authority beyond these limits.
i^ow, Sir, by these various authorities, at the risk of being tedious
upon a point that, if it had uot beeu coiitroverted on the other side, I
should have thought was elementary, I have endeavored to sustain the
proposition I advanced in respect to the two different theories, applica-
ble to dill'erent cases, arisinj]^ under the same rule, in which the statutes
or regulations, or action without statutes or regulations, of a nation in
its own defence do take effect, and are recognized by the established
principles of international law as effectual, outside of any arbitrary
line of three mile distance or cannon shot.
They show that, in the first place, for all purposes of self-defence —
defence of revenue, of fishery, of industries and of everything that is
worth defence, the effect of these statutes goes out beyond any arbitrary
line, goes out as far as is necessary in the case where it is necessary.
We have shown likewise — and I have not attempted to separate them
because they are not easily separable — that without any special statute,
wherever the protection of an interest, if it is only an interest of com-
merce or industry, requires it, the strong arm of the nation may be
extended, as in the cases in question in these decisions in the Supreme
Court, upon the high seas; that a vessel may be pursued and arrested,
or may be arrpsfpd when caught in the actual occupation of infringing
one of these regulations.
Now a word or two about the three mile line so often spoken of. It
is often recognized in treaties; it is sometimes referred to in statutes;
it has come to pass that it is quite generally recognized, and therefore
with that class of superficial minds that have occasion, (or think they
have), to talk about this subject, it is regarded as an arbitrary and fixed
distance which limits the authority of a Government; that it is an
annexation of three miles to the territory within which a nation can do
anything, without which it can do nothing. The moment that point is
examined, and it is examined with the very highest ability and fairness
in the case of The Queen v. Keyii^ 2 Exchequer, not only by the Lord Chief
Justice Cockburn but by all the judges of England — I think everyone
of them delivered an opinion in that case and there is no one of these
opinions that may not be usefully perused — it is shown that the whole
idea of the three mile jurisdiction, instead of being the limit of a nation's
power of self defence is, itself, only an incident of the general power of
self defence.
Mr. Justice Harlan. — Justice Blatchford used the word " minimum".
Mr. Phelps. — Yes. The suggestion is as pertinent as the language —
which is very pertinent. That is given as the distance which is ordi-
narily necessary. Up to that point, no question will be made but that
the necessity of self defence will extend to it, and yet as I remarked
136 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
this morning it is bnt a qualified jiirisfliction within the three miles,
because as the judges in that case i)oint out, innocent navigation of
vessels within three miles can not be excluded. It is only for the puri)ose
of self defence; and the whole theory of the three mile line is but an
incident of the right of self defence for which it is given, so far as it
goes, but which does not limit the right itself. It is the off-spring of
the necessity and does not limit the principle from which it springs.
Senator Morgan. — In this Treaty, Mr. Phelps, in the only instance
in whi(;h it is mentioned, it is called the "oi'dinary" three mile limit.
Mr. Phelps. — Yes. That language is often used and it is correct,
because it is ordinary; but the word "ordinary" is a very different
word from "exclusive".
Now, Sir, you will perhaps pardon me — (because I can really make
this clearer by using the language of great judges than in any words of
my own) for reading a little from Lord Chief Justice Cockburn's opinion
in the case of the Queen v. Keyn. The Lord Chief Justice, after review-
ing with great fulness and learning the whole subject of the three mile
limit, from end to end, and referring probably to every respectable
authority which at that time existed on the subject, in a long opinion
and a very voluminous one, sums it up in this way.
From the review of these authorities we arrive at the following results: There
can be no donbt that the suggestion of Bynkershoek that the sen surrounding the
coast to the extent of cannon range should be treated as belonging to the state owning
the coast, has, with bnt very few exceptions, been accepted and adopted by the
puldicists who have followed him during the last two centuries. But it is equally
clear in the practical application of the rule in the respect of the particular of dis-
tance, as also in the still more essential particular of the character of sovereignty
and dominion to be exercised, great differences of opinion have prevailed and still
continue to exist. As regards distance, while the majority of autiiors have adiiered
to the three-mile zone, others, like Mr. Ortolan and M. Halleck, applying with greater
consistency the principle on which the whole doctrine rests, insist on extending the
distance to the modern range of cannon — in other words, doubling it. This differ-
ence of opinion may be of little practical importance in the present circumstances,
inasmuch as the place at which the offence occurred was within the lesser distance:
but it is nevertheless not immaterial as showing how unsettled this doctrine still is.
The question of sovereignty, on the other hand, is all important and here we have
every shade of opinion. . .
Then omitting a passage and reading lower down, he says :
Looking at this we may properly ask those who contend for the application of the
existing law to the littoral sea, independently of legislation, to tell us the extent to
which we are to go in applying it. Are we to limit it to three miles, or to extend it
to six? Are we to treat the whole body of the criminal law as applicable to it, or
only so much as relates to police and safety? Or are we to limit it, as one of tliese
authors proposes, to the protection of tisheries and customs, the exacting of harbour
aii'l like dues, and the protection of our coasts in time of war? Which of these
writers are we to follow ?
The Lord Chief Justice, in that opinion, points out the great differ-
ence between the authors, some of whom have assumed this distance to
be to the horizon line — some as far as one can see — some 200 miles —
one 100 miles — another 60 miles and so on; but he says that the major-
ity of publicists have rather settled down on the ordinary line of three
miles; but later in the opinion, on the question of what a nation may do
within the three mile limit, on the i)oint whether they can exclude
foreign ships from innocent passage, he says it is a "doctrine too
monstrous to be admited". And again he says:
No nation has arrogated to itself the right of excluding foreign vessels from tho
use of the external littoral waters for the purpose of navigation.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 137
And Sir Robert Pliilliinore, in his opinion in that case (which is
quoted in the note to page 14G of our Argument), uses this language:
The sound conclnsions wliicL result from the iuvestioation of the autlioritios which
have been referred to appear to me to be these: The consensus of civilized inde-
pendent states has reco<;uized a maritime extension of frontier to the distance of
three miles from low water nnirk, because such a frontier or belt of water is neces-
sary for the defence and security of the adjacent state.
It is for the attainment of these particular objects that a dominion has been
granted over these portions of the high ^eas.
This proposition is materially diti'erent I'rom the proposition contended for, viz:
that it is competent to a state to exercise within these waters the same rights of
jurisdiction and property which appertain to it ia respect to its lands and its ports.
There is one obvious test by which the two sovereignties may be distinguished.
According to modern international law it is certainly a right incident to each state
to refuse a passage to foreigners over its territory by land, whether in time of peace
or war. But it does not appear to have the same right Mith respect to preventing
the passage of foreign slups over this portion of the high seas.
In the ibrnier case there is no jus Iransitus ; in the latter case there is.
The reason of the thing is that the defence and security of the state does not
require or warrant the exclusion of peaceable foreign vessels from passing over these
waters, and the custom and usage of nations has not sanctioned it.
Nor is there any author that I know of, that has ever chiimed any
such riglit of a nation of jurisdictiou over the three mile limit itself.
The President. — Would not it be perhaps that it would be more
against the right of the comity of nations than against the right of the
sovereign nation, as a matter of theory?
Mr. Phelps. — With much deference you will find it to be put in all
these cases by the English, American and Continental publicists, upon
the ground of right. That word is used over and over again — it is a part
of the right of the nation. The three mile line is a measure of defence.
So long as defence can be adequately and sufficiently couducted within
it, there is no apology for a nation going outside it. The necessity
fails. When necessity passes the limit, the right of defence is co-exten-
sive with it, and goes as far as that goes.
I propose, on the next occasion — I should not have time to enter
upon it to-day intelligently — to show the extent to which this right of
defence may be exercised upon the sea — all the authorities that I have
cited thus far refer to the sea — what may be done outside of the three
mile, or "cannon-shot" line. I shall purpose to show that the same
right extends and is exercised and is justified and sustained by
eminent statesmen and diplomatists — not only asserted on the one
side but conceded on the other, even to go into foreign territory if it is
necessary. It must bean extreme case,Iam sure, that justifies a nation —
that is to say, that makes it necessary for a nation, in time of peace,
to trespass on the territory of another nation in order to exert its right
of self defence — a case of rare occurrence — and yet a case that does
occur, and when it occurs I do not think anybody has ever questioned
that the right to go on to such territory exists. It has been exerted by
various nations, by Great Britain, by the United States, in various
instances, it has been exerted by the one against the other, and by
both against other nations; and the only question that could be raised
in any of these cases would be upon the facts of the particular case.
The right is always conceded. The dispute arises in respect of the
particular necessity, and that, of course, is always a grave question.
But when you have established the necessity — when it is necessary for
Great Britain to enter the territory of the tlnited States to exert its
just and pro])er right of self defence in time of peace, then it has not
been denied by either nation, and it cannot be denied, that the right
exists; and I shall propose when I have the honour to address you fur-
ther, to point out instances of a larger and wider nature, so as to show
138 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
that there is absolutely no limit to the thing which may be defended —
the property right — the industry — the possession; and there is no limit
to the place where it niay be exerted, and there is no limit to the man-
ner in which it may be exerted, subject all the time to the primary
condition that what is undertaken to be done is necessary to be done,
and, the way in which it is undertaken to be done is reasonable and
just.
The President.— The Tribunal will adjourn to Monday next at half
past 11 instead of to morrow.
[The Tribunal adjourned accordingly to Monday the 3rd July 1893,
at 11.30 a. m.]
FORTY-EIGHTH DAY, JULY 3^^^^, 1893.
Mr. Phelps. — In order, Sir, to recall the line of ar,i;umeiit I was pur-
suing before it was interrupted by the recess of the Tribunal, I may
perhaps in a very few words recapitulate the propositions I had
endeavoured to su])port, setting out with the proposition that it was for
those who claimed the right to inflict upon the United States, not to
say the world, the injury wiiich we claim results from this business of
pelagic sealing, to establish its justification; that in support of the
attemi)ted justification they had rested their argument on two principal
pro})ositions; first, that these animals are /era' naturcv in the legal sense
of that term and, therefore, open to pursuit in any place where the pur-
suer has a right to be; and, in the next place, that the sea is free, and
that a pursuit of this sort is incident to the freedom of the sea and is,
therefore, a part of the common rights of mankind.
In respect to the first proposition, I had contended at some length
that these animals are not ferce iiaturce in the legal acceptation of that
term, but that they were in the place, under the circumstances, in con-
nection with the industry that has been established there upon the
United States' territory, the property within the legal meaning of that
term of the United States, I had nearly concluded all that 1 desired to
say upon that particular branch of the case. In the effort, however, to
explain the legal operation of the numerous statutes which were cited
last week, which afford protection to similar property in many countries
and under many circumstances, I was drawn, somewhat out of tlie log-
ical line of my argument, to consider the subject of the right of self-
defence, to which I shall have to recur again in its more appropriate
connection, without, of course, repeating what I have already said.
Only two topics connected with the subject of property, 1 had desired
to observe upon before taking leave of it; and one of those, on account
of a mistake as to some references I desire to consult, I must pass this
morning in its regular order; that is a subject that has been discussed
on both sides of to the Newfoundland Fisheries as the rights were
claimed by Great Britain and the United States to exist at tlie time of
the Treaty of 1783, following the American Kevolution, and the Treaty
of 1818 which followed the war of 1812 between those Countries. Only
one other topic in that connection I desire to refer to, and that is what
has been called the right of the Indians to pursue the taking of the
seals in the water. You will bear in mind that in the Eegulations, a
draft of which was submitted on our side, there was an exception made
in favour of the Indians to a certain extent.
It is said by my learned friends on the other side that if we concede
the right to the Indian to take the seals, we concede the whole case —
that the right of the Indian is no greater than the right of the white
man — that the right to take at all, involves the right to take to any
extent which is profitable and desirable to the pursuer, and that there
is an inconsistency therefore — an irremediable inconsistency in the
judgm'ent of my learned friends, between the position of the United
139
140 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
States tbat this right of fishery does not exist, and the concession to
the Indians. It does not seem to me that the suggestion has given or
will be likely to give the Tribunal much trouble. What is conceded to
the Indian is not a right — it is a toleration — it is a charity — it is a pro-
vision which the nations are bound to make for their wards. That is
all. If we come to the question of strict right, an Indian has no more
right to pursue this business than a white man. He has as much ; he
has no more.
They are a people who stand by themselves, and will not stand very
long. They are a relic of a race that belongs to that Continent. Its
original denizens, its original proprietors, who have almost entirely
passed away and will soon be gone. They must be provided for by the
nation who under the necessities of civilization has taken from them
their homes, their means of subsistence. They must be provided for
in their own way, because civilization is to them a curse. If they are
to live at all, they must be permitted to live, as far as possible in the
changed condition of human affairs, in their own way, and to get their
subsistence from the table of the Almighty, and not from any of the
conventional arrangements of civilization. They are the gleaners
that follow the harvest, not upon a legal right, but upon a toleration
that all the world approves of. They are like the recipients of your
charity who, if they undertake to demand it, become highwaymen
and are dealt with accordingly. Again, nothing that these Indians
have ever done in their aboriginal condition as Indians, before they
become the instruments, the paid employes of others who are entered
upon a very different business — nothing they ever did for their own
subsistence — their food, their clothing — perhaps the simple barter to
provide them with other necessities, ever worked the least appre-
ciable harm to this- herd. The great fact on which the case of the
United States depends, that the right which is asserted against them
is, as I have said, the right of extermination, does not api)ly as against
these Indians. Ko possible scrutiny would ever discover in the diminu-
tion of this herd the consequence of any inroad upon them which they
have made, and the reason why we have put into the regulations this
exception in favor of the Indian, is in order to enable them to continue
harmlessly that simple pursuit which is necessary to their subsistence,
which, if it were withdrawn, must be supplied by the Government with
some new means — some new and, to them, unnatural means — of pro-
vision. That, Sir, concludes, with the exception I have stated, to
which I shall have to ask your indulgence to refer, perhaps to-morrow, a
little out of its order, what I desired to say upon the principal question
of how far these animals are to be regarded as ferce naturae. Here comes
in. Sir, in my apprehension, with propriety, as corroborating and sus-
taining the proposition we have advanced on this subject of property,
the questions that are submitted in this Treaty regarding the former
Eussian occupation of the islands, and the extent to which we, the
United States, derive any claim from it.
I said in the opening that those questions were necessarily subordi-
date, not because they were made so by one side or the other, but because
they must be so; because they are of no sort of consequence except so
far as they may help to throw light upon the claims of the one side or
the other; because as you will readily see, Sir, if you are to answer
those questions, all of them, in favor of the contention of the United
States, and yet decide that we have no right to protect ourselves against
this business, we have gained nothing by that decision. On the other
hand, if you should decide them all in favor of the contention of Great
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 141
Britain, and yet decide that we possess tlie right we contend for, Her
Majesty's Government has gained nothing- by such a decision. This
will be seen u])on a moment's reflection. But, as I said, they are not
without their importance. In the first place, they are propounded in
the Treaty, and a specific answer is requested, a request that it will
be, of course, the desire of the Tribunal to comply with, if they find
themselves able to determine the questions.
Lord Hannen. — It is more than a question. It is required.
Mr. Phelps. — I think that is correct, my Lord. I used the word
because I supposed all that was desired of this Tribunal was expressed
in that sense. Although the request comes from a nation, it is but a
request, at any rate to those members of the Tribunal who owe no
allegiance or service to either of the contending nations. Ordinary
diplomatic courtesy would require that the invitation to decide these
questions addressed to eminent gentlemen not belonging to either of
the two contending countries, should be put in the form of a request.
Lord Hannen. — I was only referring to the words of the Treaty—
''shall". Itis difference between "may" and "must". If you discharge
your duties you must answer these questions.
Mr. Phelps. — I am quite aware of that my Lord, and in using the
word "request" I used it in the sense your Lordship gives, which under
other circumstances might have been called "requires." They must be
answered, and not only that, but whether they are to be answered or
not specifically, even if the Tribunal can construe this Treaty to admit
of their passing them over in silence, nevertheless they need to be
considered, because in our estimation, and as we shall contend, the
answer to them, or the facts upon which the answer depends, strongly
corroborate and confirm the American title.
As I have said before, our learned friends were extremely dissatisfied
that we did not rest our whole claim on the right to shut up Behring
Sea, and then rest our right to shut up Behring Sea upon the former
usage of Kussia. We have declined both these propositions. We do
not claim, as you have long since perceived, to shut up Behring Sea.
We do not claim that Russia ever claimed the right to shut up Behring
Sea; nevertheless. Sir, in respect to what Russia did claim, I shall,
briefly I hope, invite your attention this morning.
There is no human right of property, I respectfully suggest, direct or
indirect, — which is not influenced, controlled and ultimately determined
by what is called prescription, occupation and the flight of time. How
far that applies between nations I shall consider presently. I state now
the general principles of municipal law, and a principle which finds its
analogy, as far as it is possible to find it in international law. It has
been eloquently said by a countryman of my learned friend the Attor-
ney General, whose countrymen have said so many eloquent things,
that in the policy of the law the hour-glass which Time is represented
as holding in his left hand, takes the place of the memorials and the
evidence that the scythe which he carries in his right sweeps away.
It is a figurative, still it is an exact statement, iu my apprehension, of
the foundation and the result of this policy of the law; and, there-
fore, although in this instance we have expressly disclaimed reposing
the title of the United States on the former occupation and claims of
Russia, although we have preferred to rest it upon the stronger, the
more equitable, the clearer grounds that, as it seems to us, it stands
upon in their own right, and not in any derivative right, it is neverthe-
less true that the position they take derives the strongest coiToboration,
confirmation and support from the previous history of this subject, and
142 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
the occiipntion of this property and this industry by our i)redeceRsor
whose title we have derived. That is the ])lace that, in our estimation,
these questions take; that is the purpose for whicli a decision of them
was desired — required, if you please — from this Tribunal, and the only
purpose.
I need not say in completing the statement of this general principle,
what all lawyers understand, that while the effect of prescription, of
possession, of occupation is in due time to create titles, to ripen into
titles, so that the greater part of the property of this world to-day
undoubtedly reposes in its last resort upon that princiide — yet the pos-
session short of that, if it has been of any considerable duration, if it
has been under the i^roper circumstances and the proper claim, is
regarded in all Courts of Justice as strengthening, and contirming titles.
We have the familiar principle of Courts of Equity in respect to the
operation of time short of any Statute of Limitations, short of any abso-
lute prescription which makes a title — the lapse of time, the acquies-
cence, the omission to assert claims — as turning the scale upon doubtful
questions of fact. Many a case which, upon the elements of its precise
right as between the parties as it stands, might be questionable and
doubtful, is set at rest by the consideration of the passage of time, long
enough not to form an absolute legal bar, but to characterize the claim
to such an extent as to turn the scale. Now as to these questions there
are four in the Treaty which I shall refer to briefly. The first is :
What exclusive jurisdiction in the sea now known as the Beliring's Sea, and what
exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and
up to the time of the cession of Alaska to the United States?
Now I need not say, that the only sense and purport of that question
in its place on this subject is in reference to the seal fishery. Tlie
question is not made here of the right of exclusive jurisdiction over
the sea, but the main purport of the question is, what exclusive
rights in the seal fishery did Russia assert and exercise? And that
will be made plain enough by supposing for the moment, that Eussia
did not assume for herself an exclusive right over the seal fishery,
but did assert certain exclusive rights in the sea, not comprehending
tlie fishery; it would be manifest that would have no eflect at all
ujion the determination of this case. And on the other hand, suppose
it is found by the Tribunal, as it seems to me it must be found, that
exclusive rights to this seal fishery were asserted and maintained from
the original occujiation of the Islands down to the cession to the United
States in 1807, then of what consequence does it become to the decision
of this case, what rights Russia did or did not assert as to the wliale
fishery, or to any other interest or right in the Behring Sea? It is
plain, therefore, that this question is to be read under the contention of
this case, in as much as there is no contention of the right of mare
clavsvnij what exclusive right in the seal fishery did Russia assert and
exercise down to this time, and it is only in that connexion that I shall
consider it.
The President. — I believe what you have Just stated is quite con-
firmed by the leading phrase of Article VI:
"In deciding the matters submitted to the Arbitrators", we are not
to construe the five following questions in any other purport than that
which is a matter submitted to us.
Mr. Phelps. — That is a very pertinent suggestion. Sir, and it makes
clear what I was contending for, that these questions are submitted to
the Arbitrators only for the i)urpose of determining the principal ques-
tions in the case.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 143
Question 2 is in other words this question.
How far were the claims of Russia affected by the Treaties of 1824 and 1825?
That is the second question, because Great Britain and the United
States recognized the chiinis of Eussia just as far as they were included
in that Treaty, and no further. Just so far as the original claims of
Eussia were taken back, diminished, modified, altered by the Treaties
of 1824 and 1825, so far those countries declined to recognize what
Eussia had previously asserted. Just so far, on the other hand as by
the provisions of those Treaties the original pretensions of Eussia were
left undisturbed, just so far both those countries recognized and acceded
to it. Nothing can be plainer than that. So that the actual reading
of Question JST" 2 is what I have stated — how far were the original
claims of Eussia in res])ect to these seal fisheries withdrawn or modi-
fied by the Treaties of 1824 and 1825?
Then the third question — and I go through with these in order to
make clear what I desire to say, that all these four questions resolve
themselves into a very simple enquiry, as far as the purpose of this
case is concerned, which is, whether the body of water now known as
Behring Sea was included in the phrase "Pacific Ocean" as used in
the Treaty of 1825. That is the same question that I just stated, over
again, in a different form and having reference to some of the actual
contentions in the negotiation. Question 3 states over again Question 2.
How far were the pretensions of Eussia withdrawn, or modified, and
how far were they acceded to? The controlling enquiry, putting it in
otlier words, and coming to the actual terms of the negotiation, is, was
Behring Sea included or was it not? If it was included, then it is not
to be denied that Eussia's original pretensions were more or less con-
siderably modified. If it was not included, then it is plain that any
original assertion of Eussia on the subject of this seal fishery never
was affected at all by anything that took place between the countries,
and I respectfully submit that this conclusion will be found to be inevi-
table.
The fourth question, as to whether the rights of Eussia as to jurisdic-
tion passed to the United States, is no question, because both parties
concur that, whatever rights Eussia had, passed to us by the Cession.
That would be very i)lain without admission; but it has been admitted
by Lord Salisbury, and has been admitted by my learned friends. We
are not at issue about the fourth question, but the question is " What
rights did Eussia possess!" and that depends first on the claims she
had asserted originally and maintained by her possession, secondly,
upon the question how far, if at all, were those claims affected by the
remonstrances of Great Britian and the United States and the modifi-
cation, if there is a modification, that is contained in the Treaties of
1824 and 1825.
Then you see, if I am correct in what appears to me very plain, when
we come to analyse those questions and to deal with them in the light
of the controversy in this case and the great question that has to be
decided, you must state these questions again in another form, and
still they remain the same in effect. Did or did not Eussia throw open
to Great Britain and to the United States, by the operation of these
Treaties, the right to this seal industry and pursuit which she had
formerly possessed? Because it is not open to question that these
Islands were discovered by Eussia, a discovery, as you will remember,
u}X)n a voyage that was undertaken, or rather the last of a succession
of yoyages tiiat were undertaken for the purpose of discovering the
144 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
home of tlie seals. It was observed by navigators and by those who
had given some attention to it that there must be somewhere in that
region of the world a breeding ground wliencethe seals came; and you
will remember from the correspondence that has been read, that it is in
consequence of that idea that the voyage was undertaken, which
resulted in the discovery of the Pribilof Islands. Then it will be borne
in mind that from that time, or soon after, before or about the beginning
of the present century the business of taking the seals was i)ursued by
Eussia through the Eussian American Company, which was first char-
tered in 1799 with very large powers, excluding foreigners, excluding
all Eussian subjects except the grantees or lessees, whatever you choose
to call them, of the Eussian Government. It was x>ursued not intelli-
gently, because the subject was then unstudied; but still it was i)ur-
sued, and we shall see in another connection with what results, from the
time of the original discovery down to about the year 1847, when the
present method by designation and killing only the young males was
entered upon.
The Ukase of 1821 was the very first occasion on which any ques-
tion arose, either by any attempt by private individuals to go there and
participate in this business, or by any assertion on the part of any nation
of any right in Behring Sea. Down to the Ukase of 1821 the possession
of Eussia had been absolutely unbroken; a jiossession under a claim of
exclusive right, a possession enforced by its laws, its Government, its
authority; a possession with which nobody in the world undertook to
interfere.
The case is therefore very plain till you come down to the Ukase of
1821, because there is no conflicting evidence. Then the Ukase of 1821
was put forth, which was ill-advised in its phraseology, beyo'nd (lues-
tion. The Emperor was made to assert what he did not mean to assert,
and it is beyond question that the document in its legal and actual
effect, when it was applied to the region to which it had reference, did
have an effect by its terms much beyond what it was either the neces-
sity of Eussia or its intention to assert. That brought out a remon-
strance from both countries, and that remonstrance resulted in a nego-
tiation in which the subject gradually grew less and less clear, as is
very apt to be the case in diplomatic correspondence. What seems to
us, in the light in which we look back upon this, as a very simple
proj)osition, gradually became more and more obscure as these formal
letters passed between the parties; but, at last, we have an exit out of
all this, because the parties ultimately came together; they came to a
conclusion that was satisfactory to the three parties, and has remained
undisturbed ever since, without any question that we hear of between
either of these three nations down to the time when pelagic sealing was
begun by the Canadians. The settlement of the matter that is tbuud
in those Treaties was, therefore, not only satisfactory then, but it has
remained satisfactory ever since, till it is brought into consideration in
this present connection.
I need not detain you by referring to those passages which have
already been read, illustrating what I have said about the claims of
Eussia. You will remember the terras of the Ukase of 1799, under
which the Eussian American Company was chartered. Perhaps a few
words will illustrate better what I say, and recall to your minds what I
mean. The first, second, third, fourth and tenth Articles in the Char-
ter of 1799, which will be found in the first volume of the American
Appendix, pages 14 and 15, are those to which I refer; and it will be
seen by reading them that the right asserted by Eussia then, in the origin
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 145
of this business, to this industry and to all industries there, was an exclu-
sive right, and tliat in the strongest terms tlie right was conveyed to the
Kussian American Conii)any to the exclusion of all others, and very
large and stringent powers were conferred upon thorn for the purpose
of enabling them to maintain it. The language of the Ukase has like-
wise become familiar to the Tribunal. In 18Ui the exclusive claim is
there re-asserted, and it is in terms said that the Itussian American
Company have these industries, or opportunities and facilities of hunt-
ing" and tishing, to the exclusion of all others. So that there cannot be
a question that down to and including the Ukase of ISlil in the first
place the right asserted was an exclusive right; in the second place,
that right was neither challenged nor interfered with by anybody in
the world, either nation or individual.
Now, pausing there, in illustration of what I have said about the lan-
guage of the Ukase of 1821, I refer to a letter from Mr. Middleton, I
believe it was, or it might have been from the British Minister at 8t.
Petersburg (in which he speaks of this Ukase of 1821, and says the same
thing), — 1 do not quote his very words, but he says this was probably
surrepiitioushi obtained from the Emperor; and that the language car-
ried an assertion which it was not the intention of the Government
really to make: that it was drawn up (that is what he intimates by the
word ''surreptitiously") ami the signature obtained to it, without it
being perceived by the Emperor or his immediate advisers to go much
further than the language went, than it had any occasion to go, or
than he could maintain himself against the other nations of the world
in going.
Let us suppose that the Ukase of 1821 had been simply a claim to
the exclusive use of the seals in Behring Sea. Suppose instead of say-
ing that no ship will be permitted to come within 100 Italian miles of
the coast, which if literally construed shuts up the Sea altogether
because no ship could get in or being in could get out again, — instead
of using language which when it came to be applied to the very imper-
fectly known country at that time really amounted to a shutting of it
up at the north and at the south, the Ukase had simply asserted the
right of E-ussia to the exclusive property in the seals on the Pribiloff"
Islands, had, in other words, asserted just what we assert today for the
United States; would that have been challenged by Great Britain or
by the United States'? Go back to the corresi)ondence which has been
before you, and see what were the objects of the United States, and see
what were the objects of Great Britain; and see what were the inter-
ests, the claims, the supposed rights of those countries; and in the
light of all that was said on this subject as well as in the still more
striking and conclusive light of the Treaties themselves, enquire whether
if liussia in the Ukase 1821 had simply put forth in regard to the seals
in Behring Sea what we claim to day, the property right which entitles
us to protect them against extermination by foreigners, it would have
been challenged on either side.
There is nothing in the whole case that is more plain than that; and
the more carefully the diplomatic correspondence of the three nations is
scrutinized, the more clearly it comes out that, if that had been all,
nobody would have objected. In the first place, they had no wish
and no interest to object; and, in the second i)lace, it would not have
occurred to them, if we may judge from anything they said, that they
had a right to dispute a claim of that charac^ter.
When Jtussia put forth this, she claimed down to the 51st degree of
north latitude, almost the entire part of what is now British America,
B s, PT XV 10
146 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
and then on do^vn to 4.5° 50' on the Asiatic side, still lower. But this was
not only a claim virtually to shut up Bebring- Sea, tliat is in its results,
(though the Kussiaus themselves said they did not claim any such thinj^
as that,) but it was a claim which included down to a point which the
British Government could not concede without giving away their terri-
tory, and which the United States Government as it then claimed the
line, could not give away, because you will remember that until in 1846
the line between Great Britain and the United States was adjusted
where it is now, the American claim was considerably further to the
north than it was ultimately settled, by a wise and friendly compromise
between the two nations.
The only importance of it now is as bearing on the quarrel of ISlil.
When Russia made this assertion it not only took what the British
claimed as their territory, but would have included what the United
States then claimed as their territory, not as it is now adjusted by the
boundary line, but as was then claimed. Therefore you see— and that is
the only importance of it, on both these grounds a challenge by these
two nations to the language of the Ukase of 18-Jl and to the boundary
which it extended was inevitable, and immediately took place; and
the only consequence now is whether it went far enough to cover the
fur-seal industry which we are concerned with. If it did,t]ien it has a
material bearing; if it did not, it left undisturbed the rights which, as
I pointed out, liussia had held without disjjute down to that time.
Then the question comes to this — whether or not by those Treaties
was surrendered to these Governments or either of them by llussia any
part of her claim to the fur-seal business, or tishery as it was called. If
she did, then she modified this claim of exclusive possession that down
to that time she had maintained. If she did not, then that claim
remained undisturbed down to the time of the cession in 18G7. In the
first place, what is that which it is now proposed to be inferred Eussia
surrendered'? What is it that it is now claimed she virtually gave up
without being asked — because you will see from the correspondence
that no such claim was set up either on the part of Great Britain or the
United States — what is it that she gave away under this Treaty which
she had held, I repeat, without dispute down to that time 'i? Pressed
with that enquiry, and seeing at the threshold that it is a very grave
proposal to establish that she gave away all this industry, my learned
friends have remarked that it was not regarded as of any substantial
value; that down to the time of the purchase, the fur-sealing business
was not thought much of.
That it was not thought anything of by Great Britain and the United
States will be plain enough when you refer to the correspondence.
But what was it to Russia? Up to the date of the negotiation of those
Treaties over 3,000,000 skins of the fur seal had been taken by Russia
out of the Behring Sea from the herd that frequent the Pribilof Islands,
more than has been taken ever since by the United States. In the
speech of Mr. Sumner in 18G7, which has been introduced into the Brit-
ish Case with high commendations of its authority, vol. 1, page 79, you
will find it stated that from 1787, the year after the Islands were dis-
covered till 1817, which was seven years before the first Treaty and
eight before the second, 2,500,000 seal skins had been taken, besides
700,000 thrown into the sea because they were badly cured and did not
pay to send to market. Therefore the statement of 3,000,00 is under
rather than above, because adding the 700,000 to the 2,500,000 taken
down to 1817, there were over 3,000,000 down to 1817 and then there
were seven years afterwards. In the United States Case, vol. 1, page
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 147
201, these facts are confirmed by Mr. Byrue and by Veiiiannnofif, and by
Lutjeiis, and by other autliorities, and that is at pages I'JG and 104.
The profits of the Enssian-American Company up to 1821, when the
Ukase was issued, had been 30 per cent on its capital, and in the sec-
ond period of its lease following 1821, it was 55 per cent. You will find
those figures in the United States Case, vol. 1, page 200, and at the
time of the negotiation of these Treaties, the sea otter had almost
entirely disappeared and the fur-seal product was the chief source of
its industry.
It is that business which we are asked to infer was conceded — thrown
open to the world, or to these countries, which constituted the world so
far as that subject was then concerned — it is that business and that
property which we are invited to believe was given away by Eussia,
when, as you perceive by the correspondence, no such demand was
made, and the subject of the fur-seal does not appear in the entire lim-
its of the correspondence.
Senator Morgan. — Are those facts disputed about the number of
seals taken by Eussia in that period?
Mr. Phelps. — I do not understand them to be disputed, because we
have given in our case — in the Appendix — the reference I have just
made. But they are the evidence on the side of Great Britain, and I
am aware of no evidence to the contrary. That is the condition of
things in which we approach the question of the construction of the
Treaties that followed the Ukase of 1821.
Now referring to this correspondence — some confusion in my judgment
has been thrown upon this branch of the case, by trying to consider the
negotiation between Great Britain and Eussia, and the negotiation
between America and Eussia at the same time; — they were entirely sep-
arate as you will remember.
The American negotiation was first; it resulted in the Treaty of 1824.
The British negotiation was subsequent — not subsequent to 1824, but
subsequent to the American negotiation — and related to the Treaty of
1825. To understand what the parties did we must take it in the order
of time and consider these negotiations separately. Let us find out in
the first place what Eussia and America did, and then we shall be a
long way towards determining what Great Britain and Eussia did. I
confine myself, therefore, in the first place to the negotiation between
the United States and Eussia, and leave Great Britain quite out of the
enquiry for the present moment. What did Mr. Adams object to in the
first place in his very first letter to Mr. de Poletica, the Eussian Minis-
ter, when the language of the Ukase of 1821 was brought to his atten-
tion. On page 132 of the 1st. United States Appendix you will see
this first letter dated F(ibruary 25th 1822:
I am directed by the President of the United States to inform you that he ha^seen
■with surprise in this edict the assertion of a territorial claim on the part of Russia,
extending to the fifty first degree of north latitude on this continent, and a regula-
tion interdicting to all commercial vessels other than Russian, upon tlie penalty of
seizures and confiscation the approach upon the high seas within 100 Italian miles of
the shores to which that claim is nuide to apply. The relations of the United States
with his Imperial Majesty have always been of the most friendly character; and it is
the earnest desire of this Government to preserve them in that state.
It was expected, before any act which should define the boundary between the ter-
ritories of the United States and Russia on this continent, that the same would have
been arranged by treaty between the parties. To exclude the vessels of our citizens
from the shore, beyond the ordinary distance to which the territorial jurisdiction
extends, has excited still greater surprise.
This ordinance afiects so deeply the rights of the United States and of their citi-
zens tliat I am instructed to in(|uirc whether you are autliorized to give ex])lanation8
of the grounds of right upon princi])ies generally recognized by the laws and usages
of nations which can warrant the claims and regulations contaiuid in it.
148 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Now, Sir, there is stated, in tlie first place, in the very clear laTi.£fuaffe
of Mr. Adams, the Minister of the United States, exactly what it was
that the United States complained of in the Ukase of 1821 ; and pardon
me for pointing this out on the map with a little particularity, because
it is the statement of the controversy which you do not lind modified;
you find it talked about, discussed and rediscussed, and as I said made
perhaps more obscure in the course of the diplomatic correspondence.
He says Russia by the Ukase has claimed down to the 51st degree of
north latitude, thus fixing arbitrarily a boundary between lUissia and
the United States which had never been agreed upon by treaty, in this
new and comparatively undiscovered country that was princii)ally unoc-
cupied. He says: Yon have asserted without any agreement, as a
boundary, that which we cannot agree to; and then what? You have
excluded the Government of the United States and its citizens from
resorting to the shores afl'ected within 100 miles, and therefore you have
interfered with our rights.
Now is it not clear in this case that at that time no United States
vessel had ever gone into the Behring Sea or gone up there [Indicating
on the plan] ? They had no settlements ; they had no trade, but they had
a trade that had begun to be important as you will remember from the
evidence along this shore [Indicating on the map]. What did Mr.
Adams mean when he said that the rights of the United States were
affected by exclusion from the shores, in the language I have just read?
Did he mean that they were excluding the United States from taking
fur-seals in the Pribilof Islands, or in Behring Sea? There is no sug-
gestion of such a thing.
What is the reply of Mr. de Poletica to that. It will be found in the
following passage:
I shall be more succinct, Sir, in the exposition of the motives which determined
the Imperial Government to prohibit foreign vessels from approaching the northwest
coast of America belonging to Russia within the distance of at least 100 Italian miles.
This measure, however severe it may at first appear, is, after all, but a measure of
prevention. It is exclusively directed against the culpable enterprises of foreign
adventurers, who, not content with exercising upon the coast above mentioned an
illicit trade very prejudicial to the rignts reserved entirely to the Russian-American
Company, take upon them besides to furnish arms and ammunition to the natives in
the Russian possessions in America, exciting them likewise in every manner to resist
and revolt against the authorities there established.
The American Government doubtless recollects the irregular conduct of these
adventurers, the majority of whom was composed of American citizens.
Has been the object of the most pressing remonstrances on the part of Russia to
the Federal Government from the time tliat Diplomatic Missions were organized
between the countries.
Is it pretended there was ever a remonstrance from Eussia to the
interference of the United States vessels in Behring Sea?
Then the letter continues :
«
These remonstrances, repeated at different times, remain constantly without effect.
Then it says:
The Imperial Government saw itself under the necessity of having recourse to the
means of coercion, and of measuring the rigor according to the inveterate character
of the evil to which it wished to put a stop.
In other words, this is what the Russian Minister says, if you inter
pret it by the language that is put into his mouth now: "The object of
this provision in the Ukase of 1821 is to put a stop to depredations in
Behring Sea which have become injurious, although nobody has ever
attempted to enter the sea at all." He would contradict himself, in the
language that he utters, if you attribute that language to the interior
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 149
of Bebriii<;- Sea, rather than to the real North-west coast. He says he
must request the Secretary to consider that the ordiiuiry conditions of
a shut sea attend the case, and that the Eussiau Government might well
have claimed it, but he says:
But it preferred only asserting its essential rights without taking any advantage of
localities.
Now what is JNIr. Adams' reply to that*? It will be found on page 134.
Of course, I do not read it all.
This pretension.
having recited what I have just quoted from M. Poletica.
Is to be considered not only with reft'rence to the question of territorial right,
but also to that prohibition to the vessels of other nations, including those of tlie
United States, to approach within 100 Italian miles of the coasts. From the period
of the existence of the United States, as an independent nation, their vessels have
freely navigated those seas, and the right to navigate them is a part of that inde-
pendence.
Then further down he says:
The right of the citizens of the L^nited States to hold commerce with the aborig-
inal Natives of the north west coast of America without the territorial jurisdiction
of other nations even in arms and munitions of war, is as clear and indisputable as
that of navigating the seas. That right has never been exercised in a spirit unfriendly
to Russia; and although general complaints have occasionally been made on the
subject of this commerce by your predecessors nospecitio ground of charge has ever
been alleged by them of any transaction in it which the United States were, by the
ordinary laws and usages of nations, bound either to restrain or to punish.
Now is it possible to doubt what those gentlemen were talking about
in such language as thaf? What locality did they refer to. Did they
refer to a locality which \he United States vessels had never invaded,
where they had no trade, and no business — where no remonstrance ever
could have been made, or did they refer to the shore to which alone such
language had any sensible application?
Then comes M. de Poletica's reply, and this is the last letter in this
connection that I have occasion to read. He says:
As to the right claimed for the citizens of the United States of trading with the
natives of the country of the north-west coast of America, without the limits of the
jurisdiction belonging to Russia, the Imperial Government will not certainly think
of limiting it, anil still less of attacking it there. But I cannot dissemble. Sir, that
this same trade beyond the 5l8t degree will meet with difficulties and inconven-
iences, for which the American owners will only have to accuse their own imprudence
after the publicity which has been given to the measures taken.
Now what I derive from this. Sir, is that in the origin of this contro-
versy between America and Great Britain when the language of the
Ukase of 1821 was first challenged, the claim of the United States by
language which cannot be mistaken because it was only one subject that
it had application to was, first: "You have extended your boundary
without authority to a limit that we do not agree to." Secondly: "You
have undertaken to put a stop to the business which the United States
vessels have long been carrying on in trading with natives on their coast
and to exclude us from coming within 100 miles of that coast, and that
assertion we altogether deny''.
Now I repeat, Sir, what I said a little while ago: suppose all there
liad been in the Ukase of 1821 was: "we assert the exclusive right to
fur seals in Behring Sea", is there any reason to suppose that Avhat Mr.
Adams said or what he ever said or what any American has ever said
who corresponded on tliis subject — either that the Government had any
desire to controvert that or any personal interest in converting it, or
that such an assertion of right would have been for a moment chal-
150 ORAL ARGUMENT OF HON. EDWARD J. rilELPS.
]en£>ed? Yon will observe, Sir — you have not failed to observe I am
sure in what has been derived from this correspondence — that the
inclusion of the Bchring Sea in the result of this correspondence is
altogetlier by inference; and — I am speaking now of the American
negetiation — with respect to the American negotiation the controversy
was entirely in regard to what is called "the lun-th-western coast" in
this controversy, as it would seem to be, in contradistinction to what I
have called the " north-eastern coast". The controversy was altog^ether
in regard to tlie actual rights and occupation of the United States on
the north western coast, and the boundary line; and we only bring
Behring Sea into that controversy by assuming that the general lan-
guage which is employed speaking of the the northwest coast wovld
include it — not that it did include it in the estinnition of the parties,
because the use they were making of the language shewed that it was
not included at all.
This runs through the correspondence. I could cite much more, if I
cared to read over again, what has been read; but my eye now falls
upon the passage I alluded to a little while ago. It is in Mr. Middle-
ton's letter at page 136 of the first volume of tlie United States Apj^en-
dix, where Mr. Middletou writes to Mr. Adams how this strong
language of the Ukase of 1821 came to be emj^loyed. He says:
For some time past I began to perceive that the provisions of the Ukase would
not be persisted in. It appears to have been signed by tlie Emperor without suffi-
cient exaiiiiuation, and may be fairly considered as having l)e('n surreptitiously
obtained. There can be no doubt therefore that with a little patience and man-
agement it will be moulded into a less objectionable shape.
You see then. Sir, in approaching this subject, first how little prob-
able it was that Eussia would have readily given away this valuable
industry; secondly, that it was not intending to give it away; that
the United States never had sought to interfere with it in any way, but
confined its remonstrance to other points; so that when you come to
read the article of the Treaty which was very readily agreed on, the
longer this correspondence proceeded the plainer it became that it
was a controversy over words and not over rights — that Russia never
intended the full meaning of the words of the Ukase of 1821 — it dis-
claimed it from the outset; it was only bringing the parties together,
and if it had been done, as I have said, directly, instead of through the
convolutions of a long correspondence, with the embarrassments that
always attend such correspondence that must be made public, it would
have been done even still more readily than it was; and when you
come to the actual concurrence between Eussia and the United States
there really was no difficulty at all, and all the discussion that had
taken place was as to the claims which were made in terms, and not
intended to be made or to be insisted upon in reality.
Then comes this Treaty. You, Sir, I am sure (whose diplomatic
experience has suggested to you the extreme difficulty that attends
even the reducing to form of a Treaty which has substantially been
agreed upon), will have been surprised to see how easily this negoti-
ation between Eussia and the United States resulted in the Treaty of
1824 — how neither party gave away anything that it had insisted upon
in reality — how Mr. Adams, having stated his objection, was met at
once by the explanation from Eussia — "Well, but we never meant
that: we did not mean to insist upon that; what we meant was so and
so." "Well, so and so", rejoins Mr. Adams, "we have no quarrel
about: we have made no point about. This is what we claim — the
adjustment of the boundary, and that our legitimate trade on the coast
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 151
shall not be interfered with." "That, we never intended to interfere
with", says Enssia, and the Treaty of 1824 results, without the least
compromise. Russia gives away nothing, except, as Mr. Middleton
points out, the unfortunate phraseology which went a great deal too
far. Mr, Adams obtained all he claimed. I should modify that obser-
vation by saying- that the only thing in this Treaty which was any-
thing else than an explanation, was the provision that for 10 years the
shijjs of neither party should be interfered with in certain trading
rights which are not material to this i)oint.
Now the Treaty of 1824 proceeds thus :
It is agreed that in any part of the Great Ocean, commonly called the Pacific
Ocean, or South iSea, the respective citizens or subjects of the W\'^h Contracting
Powers shall be neither disturbed nor restrained, either in navigation or in tishiug,
or in the power of resortiug to the coasts, upon points which may not already have
l)een occupied, for the purpose of trading with the natives, saving always the
restrictions and conditions determined by the following Articles".
Senator Morgan.— That is the 4th Article?
Mr. Phelps. — No, that is the 1st Article. The 4tli Article is this:
It is nevertheless understood that during a term of 10 years, counting from the
signature of the present convention, the ships of both Powers, or which belong to
their citizens or subjects respectively, may reciprocally frequent, without any liiu-
drance whatever, the interior seas, gulfs, harbors, and creeks, upon the coast men-
tioned in the jireceding article, for the purpose of fishing, and tradiug with the
natives of the country.
Senator Morgan. — Why did they limit the right of fishing and trad-
ing with the natives for a period of 10 years, and make it reciprocal, if
those rights were surrendered by Russia into the hands of the other
two Governments?
Mr. Phelps. — Because the provisions of Article 10 refer to a liberty
that the respective nations should have, to go to the shores of each
other and Article 1 undertakes to define what those shores are.
Senator Morgan. — And it seems to relate also to the right of fishing
as well as resorting to the shore.
Mr. Phelps. — Certainly it does. Article I provides that both shall
have the right — that is to say that neither shall be distuibed, or
restrain the other — neither in ten years nor in any other time. That
is only a difference of phraseology from saying both sides sliall have
the right "in that part of the Great Ocean."
Whether that includes Behring Sea is the question I am coming
to. Then it says that for 10 years neither party shall be restrained
from visiting the interior seas. That is article 4. Of course, I should
refer to article 3 which gives the boundary line, and that makes the
two intelligible. I read the 1st article first, and then article 4, with-
out reading article 3. Article 3 says this:
It is moreover agreed that, hereafter, there shall not be formed by the citizens
of the United States, or under the authority of the said states, any establishment
upon the north west coast of America, nor in any of the islands adjacent, to the
north of fifty-four degrees and forty minutes of north latitude; and that, in the
same manner, there shall be none formed by Russian subjects, or under authority of
Russia, south of the same parallel.
Senator Morgan. — The difficulty in ray mind is this. If the rights
in article I and Article IV are identical, why should these two Govern-
ments first agree that they should be surrendered absolutely and for-
ever, and then afterwards agree that a limit of ten years should be put
on them.
Sir Charles Russell. — Article IV applies to territorial waters —
"interior seas, gulfs, harbors, creeks, and so on."
152 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. PiiELPS. — I suppose this is tlie reading of the Treaty in plaii)
words, as I construe it — of course it will be for the better consideration
of this Tribunal. Like many Treaties it is not very plainly expressed,
among- which might be included the one that has constituted this Tri-
bunal. The parties are so aliaid of giving something away that it
results in obscurity; but I understand this to be the meaning of the
Treaty, bearing in mind that it was largely an unoccu])ied and partly
undiscovered country at that time: Russia shall have the exclusive
riglit to make settlements down to 54° 40' — in other words, that shall
be considered the territory of Russia, and you shall not come above
that: lielow that, as far as Russia and the United States are concerned
at any rate, (because the rights of Great Britain do not come in here)
it shall be considered the territory of the United States, and Russia
will not go below 54° 40'. Now you have a boundary line. This hav-
ing been determined, for 10 years the ships of the two countries may
enter each other's territorial waters and the islands in the interior seas
and gulfs for the purposes of certain trade and subject to certain
restrictions. That is the meaning of the Treaty.
Senator Morgan. — And after that, they may enter Russian waters
permanently for the same purpose?
Mr. Phelps. — Oh no. Articles I and III draw the territorial line.
Then Article IV provides that that territorial line may be invaded by
both sides by mutual consent for certain purposes. That is the way I
read the Treaty; and all that we have to do with it here for the pur-
pose of elucidating the question we are charged with, is to find out
whether J>ehring Sea was or was not iucluded within the terms of this
Treaty; and the difference that makes is this; if Behring Sea was
included within the meaning of the term in the 1st Article of this
Treaty, then it is open to be argued by implication, and not directly,
that Russia did throw open to the United States a right of fishing and
so forth, in the Behring Sea which might be argued to affect the exclu-
sive right to this fur seal fishery, though it does not say so. On the
other hand, if Behring Sea is not included within the terminology of
this Article of the Treaty then the Treaty has nothing to do with the
case whatever.
Lord Hannen. — Nothing to do with Behring Sea. It would have to
do with the question of fisliing in whatever is the proper meaning of
the words "Pacific Ocean".
Mr. Phelps. — Yes; not with Behring Sea.
Lord Hannen. — Yes, that is what I say.
Mr. Phelps. — That is what I mean; it has nothing to do with this
case so far as Behring Sea is concerned. That is what I meant to say.
I will repeat that, in order tliat we may start in what 1 am imi)erfectly
trying to say with a perfectly clear conception of what I am contend-
ing for: That Russia had had exclusive occupation and exclusive claim
to the fur-seal fishery at least, probably to more than that, down to 1821,
is not disputed. It cannot be disputed because there is no evidence to
dispute it upon. Now if Russia ever gave away her claim on that sub-
ject she gave it away when she signed this Treaty with the United
States and afterward with Great Britain. If she gave it away then
directly, or by implication to any extent, then the Treaty touches the
question of Behring Sea in this case. If she did not, that possession
continued unbroken down to 1807 when she conveyed it to the United
States. It all turns then — all these questions that are submitted to
you except so far as the facts are undisputed because the possession is
undisputed, — it all turns upon the question whether in the treaties of
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 153
1824 and 1825 Russia did throw open to tliese countries the only right
tliat she had previously asserted to be exclusively in herself? If she
did, that is one thiug-. 11.' she did not, then those Treaties so far as the
Behring- Sea is concerned disappear out of this case.
Senator Morgan. — I understand your contention to be, that in order
to throw open, as you say those rights, there would have to be a distinct
and affirnuitive expression in the Treaty?
Mr. Phelps. — Yes, Sir, or else a toleration of an invasion of it. It
may be expressed or implied. It is expressed when the nation puts it
into a Treaty or a convention: it is implied when she jiermits the world
to come there and interfere with, and participate in, the fisheries. As
I pointed out, there is no evidence of actual interruption down to 1867,
and therefore if Eussia has done anything to weaken her claim she did
it by the j^rovision of a Treaty, which, as we shall see, never was acted
upon in that sense by either of the parties to it. These two questions
then : What is meant by the " North West Coast", and whether Behring
Sea is included in the term "Pacific Ocean" and " Great South Sea"
are the same question. You are again stating the same thiug in differ-
ent words. If Behring Sea is inclnded, then you may say the North
West Coast runs up and attaches the Western Coast of Behring Sea —
what is now Alaska. If Behring Sea was not included, then the North
West Coast was limited as we say it was limited. The two inquiries
are the same.
The President. — You are of opinion, at any rate, that the Treaty of
1824 has nothing to do with the eastern coast, with the Siberian Coast.
Mr. Phelps. — I think it has nothing to do with the Siberian Coast.
The President. — Then Article I would not apply to the Coast of
Kamschatka?
Mr. Phelps. — Certainly nobody claims, I suppose, that it would
have that effect. That was one consideration that I was intending to
advert to on the question of the construction of this — that if you gave
the construction that my friends contend for, you include this whole
Siberian Coast [indicating on the map] that nobody ever laid any claim
to or had any business with, and which Eussia would certainly not
have volunteered to surrender. That is one consideration that bears
on the meaning.
Now we come to the meaning of the words in the first Article in the
Treaty.
Auy part of the Great Ocean, commonly called Pacific Ocean, or South Sea.
What is the question?
It is whether " Behiing Sea" in the common speech and understand-
ing of men at that time was designated as the "Pacific Ocean", or
whether it was not?
Commonly called — not sometimes called — that is a very different
expression. Was it then commonly called and designated as part of
the Pacific Ocean? If it was, then this Treaty includes it: if it was
not, the Treaty does not include it. If that question is too doubtful to
be determined, then we should have to resort to other principles of con-
struction to find out what the Treaty meant. If Behring Sea is included
in the ])hrase "Pacific Ocean", it must be upon one of two grounds —
either that the language of the Treaty includes it, that is to say,
the descrii)tiou "commonly called Pacific Ocean" includes it. If it
does, that is an end of it. If it does not, and the language is found to
be ambiguous, then it must be incorporated into the Treaty by the
understanding which it is proved the parties had of the definition of an
154 ORAL ARGUMENT OP HON. EDWARD J. PHELPS.
ambiguous term. I suppose it is quite fundamental in the construction
of all contracts, Treaties and everything else — the first resort is to the
language of the Treaty — of the contract. Both parties are bound by
that. They are not to be heard against their own words in the absence
of a consideration that cannot apply to a Treaty between nations —
namely fraud. If therefore these words do include Behring Sea in the
"Pacific Ocean", then the United States are bound by it and Eussia is
bound by it.
If on the other hand the term "commonly called", excludes that,
then they are not bound by it. Then in the third contingency: If the
Tribunal finds itself in the situation of being obliged to say: "These
words are so far ambiguous that we cannot say that they do necessarily
include Behring Sea in " the Pacific Ocean ", and we cannot say that
they necessarily exclude it, then you have to find out what the parties
meant by the use of language which is susceptible of two very different
meanings. Which way did they understand if? Both sides set forth
very large lists of maps. The moment you go to the meaning of the
phrase "commonly called the Pacific Ocean", you have recourse to the
maps. There are 105 in Mr. Blaine's list; there are more than that in
the British Case or Counter Case. My friend Sir Richard Webster was
mistaken in saying that most of these in Mr. Blaine's list were included
in theirs — there are only about ten. He will find, when he compares
the lists that there are only about 10 of Mr. Blaine's maps that are to
be found in the British Collection.
Sir Charles Russell. — Before my friend goes to the maps might I
ask him to read M. de Poletica's description of what he understood by
the "Pacific Ocean". It is in the despatch my friend has passed over.
Mr. Phelps. — I have passed over them all.
Sir Charles Russell. — The date of it is the 28th February 1822.
Mr. Phelps. — If you will kindly give it me, I will refer to it.
Sir Charles Russell. — It is only this passage.
I ought, in the last place, to request you to consider, Sir, that the Russian posses-
sions in the Pacific Ocean extend, on the north-west coast of America, from Behring
Strait to the 51st degree of north latitude, and on the opposite side of Asia and the
islands adjacent, from the same strait to the 45th degree.
Mr. Justice Harlan. — Mr. Adams' reply to that shews that he under-
stood that the part of the Pacific Ocean there referred to, was south of
the Aleutian Islands, because he speaks of the distance being 4,000
miles.
Sir Charles Russell. — With great deference not so. Mr. Adams
in reply points out that the description would cover an extent of ocean
which, at one part, south of the Aleutians, would measure 4,000 miles.
Mr. Phelps. — That has been read before, and does not touch the
point of my argument in the least degree. If you are going to examine
the witnesses, and find out whether, every time that a man when talking
about another point uses the phrase "Pacific Ocean" as including this
sea or uses it as excluding it, you never would come to an end. Nothing
is more indeterminate on such an inquiry, than the language which is
used when the particular point of where the boundary line is, is not in
mind and is not in controversy. If I were to ransack history, litera-
ture, and travels for the purpose of accumulating instances in which
the "Pacific Ocean" is spoken of as not including Behring Sea, why
what a mass of material I should bring together. And what does it
prove? Nothing at all. Because when the parties were using that
general expression their minds were not on the particular point we are
now discussing.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 155
So, on the other hand, if you cull this correspondence you will find
plenty of instances in which casual exi)ressioiis are used which would
look oneway or the other — (I attribute no iinpoitance to them on either
side); but when you j»o to maps of geographers from whom wc get all
our ideas of geography, atlases, charts, maps and so forth conveying
and embodying all the knowledge there is — when you come to find out
where they drew the line, then you are approaching the answer to the
question; what is commonly called the Pacific Ocean?
Then in the consideration of maps there is a turther discrimination to
be made, and that will reconcile, in a striking degree, what is, on the
threshold, to a superficial observer, the conflict between these sets of
maps. A person who has not taken the trouble to analyse them will
snppose that there is a great conflict in this evidence — that there is
really an enormous conflict: a great manymai^s say one thing — a great
many say another. When you come to analyse, you look at the maps
and consider what the map is dealing with, what it is undertaking to
show — discriminating those that are authoritative — that are made upon
authority, that are made deliberately, from little maps that are attached
to hooks of travel, or to elucidate something which does not require
this distinction to be made.
Now my friend's tactics (if it is not disrespectful to apply a military
term to the conduct of a controversy), all through this case, are what may
be known as the "battalion system" of witnesses. As I shall have
occasion to i)oint out iu a great many instances, he has a battalion.
They are all in formation. The efi'ect of them is tremendous. We have
100 to 150 witnesses swearing to the fact. Are you going to doubt that
fact? It is not until you calltbe roll of this battalion and let each man
stand out by himself that you find a large share of them swear directly
the other way, — another large share do not swear at all — that those
who really su]>port the point as to which they are called, become so
insignificant that the battalion shrinks into a corporal's guard.
It is exactly so with these maps. I was appalled (supposing that 1
had some idea of what the merits of this question was), when I found
there were some 136 maps that apparently on the face of this case defined
this boundary diflerently from what I had supposed. It is not until
you analyse the 13G that you find what the result is. To begin with,
and to find' out what these men meant in 1824 by "commonly called",
we may dismiss subsequent maps. They were talking about the geog-
raphy of the world as it was understood then. Geography and geo-
graphical terms change as everything else does. We should, few of us,
recognize maps by which we began the study of geography, as apidy-
ing to the world at the present time, though th^ world is very much the
same as it was then. I discard the subsequent maps, and address myself
to the consideration of the majjs that were then considered authorative —
that you may assume in the absence of evidence, guided the views of
intelligent people as to these geographical distinctions. So let us con-
sider the maps between 1800 and 1823, the American Treaty being
in 1824. Then let us remember that these two countries naturally — not
to the exclusion of other maps — look at their own; the first resort of a
country intelligent enough to have scientific maps and publications is
to its own maps. Take the Eussian maps for instance and I shall
dispose of what there is to say about that before the recess. There are
eleven Russian maps cited.
Mr. Justice Haiilan. — On both sides.
156 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — On both sides. Four in JMr. Blaine's list, and seven
in the British list. All bntoueof them give a separate name to Behring
Sea. It was called at this early date as you know, the Sea of Kam-
schatka or "Bassiu du Nord" — to some extent the "Beaver Sea." All
those eleven maps but one give a separate designation to this sea, and
the question is what a Knssian, in making an agreement of that sort,
commonly understood? The map that fails to give it is a map by Lisi-
anky, which illustrates his book of travels. It is not a geographical
map or chart — it is a map annexed to a book illustrating his travels;
he did not go into the Behring Sea, and the consequence is in his map
no special designation is given to Behring Sea. It is left without a
name, but in all the others every one of them — and some of them quite
authoritative, you find a separate name given.
Mr. Justice Harlan. — Mr. Phelps, I would like to ask you there, do
you know what some of those Eussiau words on the map of 1802 mean?
Perhaps Sir Charles Eussell may be able to say? I see on that map of
1802, there are certain words marked on what we call Behring Sea in
Russian; and below that, certain other words. Do you know what
those Russian words mean?
Sir Charles Russell. — "Beaver Sea", I believe it is called.
Mr. Justice Harlan. — What is the English of the Russian words
below the Aleutian islands in large letters?
Mr. Phelps. — "Southern Sea, or still Sea", I think. Sir.
Sir Charles Russell. — There is apparently an alternative reading.
The reading of the words to theright is " Pacilic Seaor Pacific Ocean";
The words to the left I do not exactly know the meaning of. You will
find the explanation Judge, of this particular map, on page 95 of the
1st volume of the Appendix to the British Counter Case. It fs the map
of 1802, and apparently the words below are " Southern Ocean or Still
Sea".
Mr. Phelps. — Yes, that is what they mean.
Sir Charles Russell. — That is No. 24 on that page. You will find
the exijlanation of all of them. Thereis also the name " Kamschatkha
Sea" running parallel to Kamschatka. It is marked on the same plan.
Mr. Phelps. — Now as to these maps — if you will indulge me Sir with
another word before luncheon, I shall be able to dismiss them. I have
said that ten of these maps gave a separate designation -to Behiing
Sea. This map has the importance of being in the first place the
Official map of the Russian Government, published by its Quarter Mas-
ter (jeueral's Department. The others are the work of private Geogra-
phers. This is the Official map. In the next place the case shows that
this map was actually used in this uegociation because a copy of it
with manuscript notes of his own is sent by Sir Charles Bagot in his
Despatch to his Government on the 17th November 1821; so that it is
not only official but it was actually used at St. Petersburg between the
British Minister and the British Government and transmitted by
the representative of the British Government to his own country.
Now I ask if you have to give a meaning on the part of Russia to
this term " commonly called the Pacific Ocean " are you going to give
the meaning that is opposed to ten maps, out of eleven, opposed to the
official map of the Government, opposed to the map that was used in
the negotiation?
I shall now, Sir, with your permission consider some other maps in
the case.
[The Tribunal here adjourned for a short time.]
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 157
Sir Charles Kussell. — T liave asked my learned frieiul's permission
before be resumes, to ])oiiit out in reference to tbe map before Mr. Jus-
tice Harlan that there are some other woids that had better be
explained.
The President. — If you please, Sir Charles.
Sir Charles Eussell. — You will observe just north of Behring
Strait a number of words stretching- away to the right and going down
in the direction of the 50th degree, — ending Just above tlieOOth degree.
The translation of those words beginning from Behring Strait and
going down between 55° and 50° is " Part of the northwest Coast of
America ". I do not, of course, argue upon it; I merely wish to trans-
late it. The fact is referred to at page 62 of the British Case.
Mr. Phelps. — Now, Sir, the ({uestion we are upon is, whether or not
by this designation of what is commoidy called the Pacific Ocean or
South Sea, Behring Sea is included? I say that is a question that can
only be decided at this day by the authoritative maps then in existence,
and which these parties may be presumed to have been informed of, or
which we know they had before them. This official and important map
of 180L* lays that down in such a way that it is ])erfectly inconceivable,
I respectfully submit, that any negotiators drawing a Treaty intending
to include Behring Sea should have left it with any vsuch words as these,
with the maj) before them showing as it does that it is not included,
but is designated by a different name; — that if they desired to include
it they Avould not have used language that would have included it.
Before we have done with this discussion, I shall show that it was pro-
posed to introduce just such language, and Bussia refused.
Before leaving the Eussian maps, however, let me call attention to a
map of 1817, which is named in the British list and which is likewise
so far an official map, called the Eussian War Topograi)hical Depot
Map; likewise an official and public map published by the Eussian Gov-
ernment much later, being the then latest Eussian map at the time of
these negotiations; that is to say, being 5 or 6 years old. In that,
Behring Sea is named in the same way as Okhotsh Sea is, and Pacific
Ocean is named. So that if the Eussian Government had reference to
or was informed by its own latest official map, it states still more
strongly and clearly than the map, if possible, of 1802.
Let me now refer to the American maps. If the Eussian maps, which
they must be presumed to have been instructed by and which they did
have before them, designate this water as a separate sea, let us see
what the Americans, if they referred to their own maps, had in the way
of information before them. Of the 10 maps published iu America and
cited, all but two give a separate name to Behring Sea. You have
there exactly what you find on the other side of the Atlantic, in Eus-
sia. What about those two? One of them is a map which is in an
atlas published by Fielding Lucas, in 1812, and the map in that atlas
immediately preceding it and the ma]> immediately following it give
the separate name of the Sea of Kamschatka to this Behring Sea. The
l)articular map which my learned friends set out from Lucas' Atlas,
does not give a separate name to Behring Sea, but when you turn
over the page and look at the one that precedes it and when you
turn over the page the other way, and look at the one that succeeds it,
you will find the publisher of that map did understand this to be a sep-
arate water, and omitted that in this particular map because it was a
map of the World; the one ])reccding it is the map of the western
hemisphere, and the one following it I do not know the name of; but
in the map of the World, wliich, of course, would render this very much
158 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
smaller, the words are omitted which he gives in the previous map. The
other map in which it is not given a separate name, is one published by
Carej^ & Son, Philadelphia 18L'3; the map is map 3 in the atlas, and the
subject is not given, though the eastern i)art of Behring Sea is shown
and it has not a separate name.
Why is only one of those maps cited? We have not the other maps,
and they are not in the case, and I cannot answer the question. I infer
that if map No. 2 and map No. 4 had been produced, you would have
found just what you did in Lucas' Atlas; that in the other maps the
sei)arate Avords, "The Behring Sea", are given. AVith that exception,
those are all the American maps. Then, what is it that you are asked
by my learned friends to find? It is that, in giving a definition to the
words " commonly called the Pacific Ocean", you are to accept a defini-
tion which is o])posed by 10 out of 11 maps in Eussia and by 8 out of
10 mai)s in the United States with the exi)lanation that I have given,
which show that the omissions in those three maps, one in Eussia and
2 in America, are totally inconsequential.
Let us go a little further. I need not say that France at that day
was largely the headquarters of the best geographical science, and the
best scientific knowledge in the world; and it was so prominent in
diplomacy, that the French language became the language of diplo-
macy, and remains so to the present day, notwithstanding the vast
increase in the region over which the English language is spoken.
France contained geographers so celebrated that their names are known
to everybody — the names of Brue, Lapie and Malte-Brun even men of
such small geographical attainments as I have are familiar with, and
it is not to be supposed that educated persons. Diplomatists and Gov-
ernments were ignorant of the great contributions that had been made
by France to the Science of the Geography of the World. There are 15
French maps made between 1818 and 1823, and all give the sei)arate
names of "Mer de Behring" and "Bassin du ]S'ord"to this Sea. Then,
to bring it within their definition that the Pacific Ocean does include
Behring Sea, you wipe out at once the results of the work of these men,
who were then the greatest geographers in the world beyond doubt.
Whether they are so now, may be another question ; but those names
were then superior to any others, and France was taking the lead among
nations on the subject of diplomacy.
Now, let us go to the English Maps, not because England was engaged
in the negotiations that I am now dealing with; but because we in
America, deriving our literature and language from the mother-country,
are, of course, supposed to be, and it is fairly to be inferred that we were,
acquainted at that day with the English maps and with other English
literature and science; and, while perhaps in the estimation of the
world they were not as high at that time as those of France, still they
were of a very respectable character, — more so, even in the estimation
of the world than those of America, which were not as widely known.
When I speak of the maps that are referred to on both sides, the Tri-
bunal will, of course, understand that I mean maps published between
1818 and 1823. I shall refer briefly at last to those maps that would
not come within that definition ; and when I say so many are cited on
one side and so many are cited on the other, I mean so many published
between those dates are cited on one side and the other. When you
go to the British maps there is more diversity. A great many are
cited, some that are of authority, and some that are less so. There are
five charts, single sheet charts, and general maps; and by the term
"general" I mean a map that assumes to give both the laud and water
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 159
divisions, not a map that gives tlie land nor a map that gives the water
exclusively, but a map that is large enough and intended to give the
whole. There are five of them and everyone of them called Behriug
Sea " the Sea of Kamsehatka."
Then there is another division that you may call maps, in atlases con-
taining quite a number of maps in the same j)ublication, and 20 of those
are what I call general maps, and 15 of those are land divisions. Of
those -0, 10 give a separate designation to Behring Sea. It is called
theseaof Kamschatka iu 16 out of the 20 English maps; and the other
4 which do not give it a separate name are a map of the world in Ostell's
atlas, in 1810, a map of the world in Goldsmith's Atlas in 1813, a Mer-
cator's map of the world in Goldsmith's Atlas, and a map of the globe
in Bradley's Atlas in 1813. None of those are of special authority.
They are, I should infer, school-book atlases. They are not official.
They are not from any author celebrated as a geographer, and they are
all, you see maps of the world. When you are restricted to the size of
a quarto sheet, which atlases usually are, and undertake to give a map
of the whole world, you have not room for the separate designations on
land or water such as are always given when you give a map of a part
of the world, having room to explain the divisions. Take the United
States for instance; iu a map of the world you find the United States
laid out on it, but you do not find any division of states.
There are some German maps cited, that may be worth a moment's
consideration. Germany was not a country concerned in the negotia-
tions, or a country then, as far as I am aware, particularly celebrated
for its geographical knowledge. At the same time, as they are cited
they should be attended to. There are 16 German maps iu this case on
one side and the other; three of them are translations of maps that I
have dealt with before. Another is a reproduction of one of Lapie's.
Of course that adds nothing; but there are 12 that are original in
Germany by different cartographers, among them several geograi)hers
of respectability and reputation. In all these except two, the Sea of
Kamschatka has a sei)arate name, so that out of 12, 10 German maps
give a different desigiuition. The two exceptions are in an atlas — both
in the same — published in Weimar in 1816, which is probably a compi-
lation, because in the same atlas another ma<p gives this sea the name
of Behring Sea.
I should have spoken in connection with the English maps before
leaving that subject, of the Arrowsmith maps, which are the leading
and best British maps of that iieriod, and of which you have several,
and they are worthy of a brief separate reference. Of these Arrow-
smith maps the first one is dated in 1790, ten years earlier than the
period to which I have thus far limited myself It is called
Chart of the world exhibiting all the new discoveries to the present time with the
tracts of the most distinguished navigatoi's from the year 1700 chiefly collected from
the best charts maps voyages etc., extant, by A Arrowsmith, Geograjiher, as the "Act
directs. London 1790".
In that Chart Behring Sea is termed the sea of Kamtchaska.
Sir Charles Eussell. — What is the reference to that '?
Mr. Phelps. — This is in Mr. Blaine's list in the Appendix to the
United States Case, Volume I, page 288.
Senator Morgan. — What is meant by "as the Act directs"?
Mr. Phelps. — I su])pose it refers to some Act of Parliament.
Lord Hannen. — I think you will find that refers to its being regis-
tered at Stationers Hall, or something of that sort.
160 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — It may be — I really do not know, and Lord Hannen
of course would know better. The second map of Arrowsmith is dated
1794, and is probably a second edition of the same map and contains
the same desi^iuition of Behring tSea.
Senator Morgan. — Is there the same reference to the Act?
Mr. Phelps. — I do not know. I have no memorandum of that.
Lord Hannen. — All I meant to say is that it relates to the mode of
publication. It has nothing to do with the map itself. It is the publi-
cation of it.
Mr. Phelps. — Then you come to the map of 1802 which is given in
the list of the British Counter Case. It is called
Chart of the Strait between Asia and America with the coast of Kamschatka.
And it appears in an account of a geogra])hical and astronomical
expedition to the northern part of Kussia, and in that Behring Sea has
no distinctive name. There is an Arrowsmith map in which it is not
given separately, but Billing's Explorntion, while it carried him across,
was not directed to those waters. This is really little better than a
route map, and the Pacific Ocean shown as far south as 47° is not
named at all. Showing that this is intended as an illustration of that
route or as a Chart.
In the fourth map (1804) the eastern part of Behring Sea is included
as far west as Behring Island without a se])arate name, and the Ocean
is called the North Pacific Ocean. This is a land mapof the Continents
of North and South America. It is not a general map as including
water divisions.
Sir Charles Eussell. — There is a map of America of the same year
1804.
Mr. Phelps. — Yes, I am about to mention that. That is a fifth map
called "a map of America". The same remarks apply. In that map
there is no specific name for Behring Sea. These are probably included
in Arrowsmith's General Atlas of 1804 mentioned in Mr. Blaine's list,
and very likely it may have appeared there.
Now in 1810 there is an Arrowsmith map in 9 sheets, with corrections
to 1818; includes Behring Sea, but shows it as a large, blank, unnamed
space, and there is not a separate name. A large part of Behring Sea
is not included. It cuts oft about latitude 02°. He does not include
in the Pacific Ocean the Sea of Kamschatka, otherwise he would have
given the whole sea, and not limited his chart to latitude 02°. He
included the portion he did, because he found it necessary to take in
that part of the Pacific Ocean now known as the Gulf of Alaska.
The 8th map, 1811, in the British Counter Case, a hydrographical
chart of the world by Arrowsmith, has Behring Sea named the Sea of
Kamschatka, and the North Pacific Ocean is given as a separate body
of water. This marks all the waters of the globe, and is not confined
to one sea.
The 9th map in Mr. Blaine's list is an ArroAvsmith map of 1811, and
Behring Sea is there named the Sea of Kamschatka.
The 10th map is 1818, of Arrowsmith, and Behring Sea is there
named the Sea of Kamschatka, and the North Pacific Ocean is sepa-
rately specified.
There is another map of 1818, a map of Asia by Arrowsmith of the
same year, and Behring Sea is not named, though a considerable part
of the western side of it is included. The difference with the same
geographer is that one is a map of Asia, and the other a hydrograph-
ical map, or the countries round the north pole.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 161
The 12th map by Arrovrsmith iiichules the greater part of Behring
Sea. Tliat is the map of 18-Jl* and it is stated in the British list as 18'22,
but it shows additions to 1823, and it cannot have been published till
1823. There is sometliing very curious about that map. If it can be
sujjposed to have been before the parties in that negotiation, and there
is no evidence that it was — my learned friend, Sir llichard Webster,
infers it was not, and I infer it was uot.
Mr. Jnstice Harlan. — You have references about that; for in Sir
Charles Bagot's letter to Mr. Canning of October the 17th, 1823, he
speaks of a certain locality as laid down in Arrowsmith's last map.
Sir Charles Russell. — We are uot sure of the exact date of that.
We have no means of ascertaining the particular edition; but the Bus-
sian ma]), the Quartermaster-General's map, and Arrowsmith's map
were in tlie hands of the negotiators.
Mr. Phelps. — I was going to call attention to those letters. It can-
not have been both those. It could hardly have been those in the
American negotiation, I agree with SirEichard Webster, because that
negotiation took ])la('e in 1823 and this map was so recent it is hardly to
be presumed that with no couununication and no particular reason for
it, it had found its way there. 1 1 is not produced by my learned friends.
If it is because they concur with us that it probably was not used, then
its omission to be ])resented is of no consequeuite; but if they are at all
of the idea that this map was oue that was referred to or was before
them, — that by it is meant Arrowsmith's last map, then it should have
been produced.
Lord Hannen. — I thought there had been an explanation, or
attempted ex])]anation, that an enquiry was made in London, and it
could not be found.
Sir Charles Bussell. — Yes; I could refer to the page about that.
Mr. Phelps. — We have made every enquiry; and, of course, we
should not have the access to the British publications and documents
that my learned friends have on the other side. We have made every
effort that we could to find that map, but Vvithout success. It has dis-
appeared, and we cannot find it even in the British Museum, or in the
Libraries, or anywhere else. From that I should infer it was not very-
celebrated.
Senator Morgan, — I think you have spoken of the Arrowsmith.
maps as hydrographic maps'?
Mr. Phelps. — One of those that I passed over is a hydrographic
map.
Senator Morgan. — Is that intended to indicate they are made
under the authority of the Hydrographic Office?
Mr. Phelps. — I do not so understand it. They are only intended as
hydrograi)hic maps by the Author.
Sir Charles Russell. — But he was, in fact, the Hydrographer.
Lord Hannen. — That is now a separate Government Dei)artment.
Sir Charles Russell. — And I think he was then called " Hydrog-
rapher to His Majesty."
Senator Morgan. — Did he have a Commission"?
Sir Charles Russell. — Well, whether it was by Patent or not, I
do not know.
Senator Morgan. — He must have had some authority to be called,
"Hydrogra])her to His Majesty."
Mr. Phklps. — Whether he had or not, I am utterly unable to say;
and I do uot feel authorized to say that he had an otficial authority. I
do uot know what he had.
B s, PT iv 11
162 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Sir Charles Eussell. — In one of the maps of 1822, he describes
himself as "A. Arrowsmith, Hycliogia]>her to His Majesty."
Mr. Phelps. — Whetlier that means anything more than it does when
a Milliner annonnces herself as "^Milliner to Ller Koyal Highness, the
Prim ess of Wales," I really do not know, and do not claim anything
from it. If he had an ofticial anthority, it adds to the antliority of the
map; if he had not, then it is the best conclusion of Mr. Arrowsmith
who, at that time, was the principal Geographer and Designer of Maps.
Senator Morgan. — It all seems to have been done in pursuance of
some Act of Parliament.
Mr. Phelps. — Lord Hannen explains that Act as being an Act
having reference to the ])ublication and not to the authority. This is
a question also upon which 1 have no knowledge.
Mr. Justice Harlan. — Sir Charles, in the memorandum there in
the British Case of that map of 1818, it is there stated with additions
to 1823.
Mr. Phelps. — I think not. I think the map in which that is con-
tained is 1822 "with additions to 1823," — there may have been subse-
quent additions to that.
Mr. Justice Harlan.— "1822, with additions to 1823". When that
memorandum was prepared, by whoever made it, he must have had the
map of 1822 before him. Is that map in the case; or can it be got,
Mr. Phelps. — No, that is the map that cannot be found; it is not in
the case. Those words are taken from the title, and the title is obtained
from I do not know where.
The President. — No copy is to be found?
Mr. Phelps. — We have not been able to find any, and my learned
friends say the same thing.
The President. — Neither Sir Charles Bagot's copy, — no copy in
the world?
Mr. Phelps. — No. How they got the title I do not know. I infer,
from finding the map referred to in some book of geograi)hy, or some-
thing of that sort.
Mr. Justice Harlan. — The value of it must depend on whether it
was taken from something else.
Lord Hannen. — It would come with the fresh edition with additions.
Sir Charles Russell. — I understand by referring to N" 98 in the
Apiiendix to the Counter Case, volume I, that explains it; and what I
understand is, this was in fact at the British Museum, and it purports
on the face of it to be a map i)ublished originally in 1822, but also on
the face of it appear to be fresh additions to 1823, that is the only map,
and it did not involve seeing separately the map of 1822 at all. It was
the map of 1822 with further additions to 1823 upon it.
Mr. Justice Harlan. — It was, then, a map of 1823?
Sir Charles Russell. — It was a map of 1823.
Mr. Justice Harlan. — That is not in the case?
Sir Charles Russell. — That is referred to in N" 98.
Mr. Justice Harlan. — But the map is not here?
Sir Charles Eussell. — No, it is in the British Museum.
Mr. Phelps. — The objection to that is, we are assured by the British
Museum people that it is not there.
Sir Charles Russell. — Not the map of 1823?
Mr. Phelps. — No, With regard to this map of 1822 or 1823, it was
said, iu response to the enquiry of our agent whom we sent there, by
the custodian of that branch of the British Museum that there was no
such.inax> there.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 163
It is really of no importance. We p;ive this subject more time than
it deserves. I agree with my learned friend, Sir Kicliard Webster, that
this map could not have been before these ne<i,otiators. The reference to
Arrowsmith's last map is the last map that was pi-obably then in hand.
That might be either one of those — the hydro.<ira])liic ma|) I have
referred to, or the map of 1818 of the countries round the jSTorth Pole
— possibly that of 1811, two of which appear in the case. I now speak
of the American negotiations; it is ])lain that when the Treaty of 1824
was negotiated between Great Britain and the United States, this map
could not have been before them, and there is no evidence to show that
it was. I will consider later on whether it came too late and figured in
the negotiations of the Treaty of 182.">, which is a very different ques-
tion; it is enough for my ]>urpose, that there is no i)retence that it was
before Mr. Adams or M. de Poletica or the Russian Foreign Office — no
])retence on the exidence that there was a reference to it, and from its
date there could not have been, especially as comnuinications at that
time of the world were much slower in getting to foreign countries
than they are now, and especially when there was no possible object
or inducement in either country to lefer to it.
There are some other earlier English maps — Cook's Voj'^ages — Lieut.
Roberts' chart of 18(18 published in London, in which Behring Sea
appears as the Sea of Kamschatka — the various maps of Cook's dis-
coveries earlier than that, before the century commenced; all of them
vary, and of course are merely maps to accompany particular discov-
eries, not geographical maps or charts.
Now let me put this question with some degree of confidence. Sup-
pose it were necessary ujion the evidence in this case, that is to say
ui)on the maps, for there is no other — the authors of this negotiation
have long passed away and have left behind them no evidence of what
was in their minds or of what was said in these negotiations except
these letters — suppose it were now necessary to decide this question of
whether Behring Sea was or was not included in the term Pacific
Ocean in that Treaty by the maps, that is all the evidence that there is.
Lord Hannen. — You say that is all the evidence. You have not
referred — ]u^obably you are going to — to the treatises.
Mr. Phelps. — I was not intending to refer to gazeteers. They are
principally of a later date. There are a few cited of a previous date,
but they are very inferior to the map for the purpose of laying down
the divisions and subdivisions.
It is not, as I tried to exi)lain this morning, the observation of a
writer or a speaker when his mind is not upon the point which is in
dispute.
But when a geogra])her of acknowledged authority undertakes to
lay down a ma]) for publication, possibly officially, certainly with all
the prestige he has, and o]ieu to the criticism of the world as to its
accuracy, then it shows what he thought. It may be worth little,
or worth much; still it shows what he understood. Men may write
books, because to the making of books there is, unhappily, no end;
they may use general phraseology which amounts to nothing either
way. I conhl not r<dy for a moment on casual expressions that might
be accumulated on our side of the contention, and I pay no regard to
the few that have been brought together on the other side of the con-
tention. AVe have not attemjjted to do that. But when a map is made
and published to the world and intended to be accurate — it is there
you have to look, if you value it, to ascertain either the authoritative
speech of men, or the common understanding of men. Because I need
164 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
not repeat that we all, wLo arc not the sources of jieoorapliieal knowl-
edjfe, get our ideas on that subject from the maps Avith which we are
familiar.
Now I repeat, was or was not that sea "commonly called" part of
the Pacific Ocean? And the answer to that is almost unanimous — all
the authorities of the maps are that way.
The President. — Do you think it would be easy to solve the ques-
tion if it was put for to-day and not in 1824 or 182.5, whether two
diplomatists using the word Pacific Ocean, and making an analogous
Treaty to that you are speaking of, intended to include Behring Sea
in the term Pacific Ocean?
Mr. Phelps. — I by no means assert that it would.
The President. — I do not know whether to-day we consider Behring
Sea as being part or not part of the Pacific Ocean, and I believe most
of my fellow diplomatists would say the same.
Senator Morgan. — If you say "a right vested in the ocean com-
monly called the Pacific Ocean", it would take a very astute mind to
figure out the proposition that you did mean Behring Sea.
The President. — Or that you did not mean it,
Mr. Phelps. — I have not particularly examined the later author-
ities. I have confined myself to the period of time wheu this language
was used, but I readily conceive, if the question were to be taken now
it might be oi)en to the same uncertainty. But, Sir, what is the result
of that? If when accomplished and experienced diplomatists, in bring-
ing a long negotiation to an end, were attaching importance to the
inclusion of Behring Sea as a part of the Pacific Ocean is it conceiv-
able that they would not have said so?
It is because, as I shall be able to point out upon something better
than my suggestion, it was totally inconsequential to those countries,
that Behring Sea should be included, that they omitted to use the
language which was necessary to include it; and it is not for my
learned friends, now, after the dust of 70 years has fallen on the trans-
action, to say, "Though we did not say so, we understood Behring Sea
to be included; though it was important that it should be included, we
did not include it in terms; but now we argue that it can be strained
inside of the words 'Commonly called the Pacific Ocean', though at
that time it was not commonly so called."
It is for the party that seeks to include within a grant a particular
territory to make it out. He has the affirmative of the proposition.
When 1 have bought whiteacre by description and claim that it in-
cludes blackacre, which the grantor denies, it is for me to make out
that in saying one thing he meant another — that in saying whiteacre
he intended to give the description "including blackacre" or "black-
acre also"; that under the circumstances it was in some way included.
What does the language of the Treaty say? What does the descrip-
tion in its fair construction, dealing fairly with language mean? AVhat
was the common definition of the Pacific Ocean and did it include
Behring Sea. I say that on the threshold of the subject it is utterly
imi)ossible to bring the description within the language. You may say
if you please that it is ambiguous — that I admit; but you cannot say
that the language included Behring Sea, 1 respectfully submit, because
the vast majority of the evidence is the other way. And the only
escape from the conclusion that Behring Sea was excluded from what
is commonly called Pacific Ocean is to say there were maps and state-
ments the other way, and therefore pei'haps it is not quite conclusive
that it was excluded. But if you have to give a meaning to the ^vords
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 165
"commonly called", the only question is wlietber you shall go with the
evidence or against it. Wliether you should assume that which is com-
monly called the Pacific Ocean in nine-tenths of the maps, including
all the authoritative ones, is the common acceptation, or whether you
shall say tlie common accejitation is that which is rejected by those
maps and by all the evidence which bears upon the subject.
We shall tind out presently, as we pass along, why that language was
not used. Ifis no imputation on the very eminent men engaged in these
negotiations; they were not children in the business of diplomacy, or in
the management of Affairs of State. There were probably no better
men on earth at that date to conduct an affair of that kind than Mr.
John Quincy Adams, Mr. Stratford Canning and Mr. George Canning.
Senator Morgan. — Or since that day.
Mr. Phelps. — I accept it. Sir. The day of great diplomatists has
well nigh gone; the telegraph and the newspaper have nearly put an
end to that science. The names of the great Diplomatists are written,
and written for the most part on the tomb.
These were not men struggling with a subject they were incapable of
dealing with; and you find not only in the American negotiations, but
in subsequent British negotiations that three words would have settled
this question forever, on what is now said to be the important part of
it, which were omitted to be used.
Then let us suppose for the sake of the argument, that I am wrong in
my conclusion as to the balance of the evidence on the point of what
nmy be said to be " commonly called" Pacific Ocean ; then, what follows?
It is perfectly plain that the evidence does not establish the converse,
that Behring Sea was commonly called the Pacific Ocean. If it does
not establish that it was not, then what happens? Why, the parties
have employed language which is so ambiguous that upon the face of
the instrument you cannot assign a meaning to it at all. They have
employed language from which you cannot find out, looking at the
language alone, whether this body of water was included or was not.
Then, what is the result, under the fundamental principles in the con-
struction of a contract. When the ambiguity is on the face of the
instrument, or when it is raised by extrinsic evidence and language
becomes ambiguous that appeared to be plain, — and let me say in pass-
ing none of these astute gentlemen could have possibly supposed they
had used plain language when they said ''commonly called the Pacific
Ocean"; if theymeantto extend it beyond that undoubted bo.dyof water
that everybody always called the Pacific Ocean; — but sux^poseit results
in an ambiguity, then you have to ascertain the intention of the parties
in the language they used. If it is found that the language they used
is consistent with either meaning, that it may include Behring Sea in
the Pacific or it may not, then you have to get at the conclusion how
the parties understood it. The familiar rules of construction applicable
to such a question need not be repeated. You look at the subject mat-
ter of the contract, at the object in view in making it, at the situation
of the parties, and, where time enough has ela])sed, to the subsequent
practical construction Avhich the parties themselves have given to their
own language. Those are the sources from which, as all lawyers under-
stand, you are to derive the meaning and intention of the parties as te
the meaning of ambiguous phraseology in a contract.
The fur seal business was not the matter in disi)ute. It was, as I
have pointed out, first boundary, and secondly the attempt to interfere
with that occupation of the North West coast which the United States
people were beginning profitably to have, and Mr. Adams complains as
1G6 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
I have pointed out on those two points; — the fur-seal is not named, and
Behring Sea is not named between Enssia and the United States.
Then wlien the Treaty is drawn up, and while it is before the Senate
for ratification, the linssian American Oom])any taking fright at the
language employed, which they perceived was vague and might receive
different constructions — made a representation to the IJussian Govern-
ment; " you are giving away and throwing open to the United States
of America our fur and other industries in Behring -Sea". That
awakened the attention of Eussia to the fact that the language em
ployed in this Treaty might at some time be claimed to be broader
than was meant — a second case of using language unadvisedly. Baron
de Tuyll, the Eussian minister, was instructed by the Eussian Govern-
ment to do what? To go and recall that Treaty? It was not too late.
It was before the Senate. It was not ratified. If the Senate passed it,
it was still for Eussia to decline the ratification, if it found it was going
to receive a construction it did not expect. Did they recall it ? jSTo.
They go to Mr. Adams, and point out the ambiguity that might be sup-
posed to attach to this language.
Is there any doubt ihat he and his government were acting in perfect
good faith in doing that? Was he not there on a perfectly sincere and
proper errand to say to Mr. Adams, "of course you do not claim a con-
struction that neither of us expected?"
IIow is he met? How was he bound to be met if the United States
claimed any such thing? Did ]\Lr. Adams say to him, "Sir, I am sur-
l)rised to hear that having entered into a Treaty, the language of which
is plain, you are here now to infonn us that the Eussian Government
does not mean what it says, and that, on signing a Treaty witli us that
says one thiTig, you notify us you are going to claim that it means
another"? Did Mr. Adams meet him by saying, " Sir, you propose to
take back one of the very important points on which we are insisting
in this discussion. Xow that we have the Treaty you propose to rob us
of one of the principal fruits of the Treaty ". That is what Mr. Adams
would have said, and he was bound to say it, unless he and his Gov-
ernment were attempting to entangle a nation with whom they were in
friendly relations, and just about to sign a Treaty, in an agreement
which they did not understand they were making. That is not to be
attributed to any Government. It is not to be attiibuted to any states-
man. iSTeither party is open to such a charge as that: only upon con-
clusive evidence would any person permit himself to make such a charge
as that against any sovereign power, or against any representative of a
sovereign power.
Mr. Adams meets that by saying, in effect : " There is no necessity for
saying a word about it. We never had any idea of 'going up there.
Why do you suggest to our people a thought that comes for the first
time from you." That is the language of a gentleman who, we are told
by my learned friend, had been carefully negotiating to get the very
access to these industries to which Baron de Tuyll objects and which
he rei)udiates, and he says to Baron de Tuyll: "If you raise these
questions you will affect the ratification of this Treaty. You know a
Treaty has to be ratified by two thirds of the Senate of the United
States." Baron de Tuyll sees the sense of that. He accepts it and
permits the Treaty to be ratified, and then, upon Mr. Adams' sug-
gestion, he files this docirment which shows the understanding of the
language which Eussia had, and it is accepted by the United States
Government without reply.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 167
ISToAv can there be anything: that is more completely conchisive on
that point? Imajiine two individuals makino- a contract. I am making
a contract with my friend on some important matter. Unhickily there
has crept into the contract some lan^iuage that may be ambiguous.
My friend comes to me and says, " Of course, you know our under-
standing-. You do not mean to^ attribute such and such meaning to
this term in the contract". What am I bound to say to that! If I do
insist upon it, 1 am bound to say so. I am bound to say, " Sir, 1 do
not agree with you. I do not agree to your interpretation of these
ambiguous words. I will tell you what I understand." But sai)pose
I say, "Why my dear friend, there is no occasion to mention that, I
never claimed any such thing. Do not interrupt the execution of this
contract by any such cavil. If you want to send me, after the contract
is executed, a paper showing exactly what you understand by it, do
so." — "Very well," he says, and so in perfect good faith he signs the
contract and immediately sends me such a p;vper saying, in effect,
"You understand. Sir, of course, in the doubtful language embraced
in this contract, that it means so and so", and I accept it and file it
away. I should like to know, if after that I were ca])able of going into
a Court of justice and claiming against him in opjjosition to that paper
and in opposition to the interview, how I should be received.
I should be re(!eived by being informed that I was engaged in the
perpetration of a fraud. I should be received by being reminded if
there was an ambiguity in this language, even one that might have
admitted of my construction, that when my friend came to me and con-
fronted me with the question, I gave him to understand that I shouhl
not make any such claim, and did understand the contract as he
did, and advised him if he tlumght there was any doubt about it that
might be raised after he and I were passed away, that he should send
me a paper which I would attach to the contract, and he did so, and I
received it without reply, that I was bound by the construction so
adopted. I should like to know how I, or those who might succeed me
75 years afterwards and after there had been unbroken possession in
pursuance of the contract as he understood it, would fare in under-
taking to set up a construction that I had tlius formally abandoned
and repudiated, and on the strength of which repudiation they had
executed the contract and gone on with it all this time. The same
rules ap])ly to the execution of a Treaty. You must impute at least
ordinary propriety to these Governments, and this leads you inevitably
to the conclusion that in the negotiations between the United States
and Russia, it was not intended, it was not understood, that ]iussia was
throwing open to the United States this vahiable and important indus-
try which the United States had not even claimed or asked for; but
that the United States was content with obtaining from Russia what it
did obtain, everything that it contended for, subject only to the one
provision by which the parties seem to have celebrated and marked
the friendly conclusion to which they had brought the whole matter
after they had settled their mutual rights, by saying, on each side, for
10 years we open these disputed territories to each other.
Now, I come to the British Treaty.
The President. — Before we leave this Treaty, Mr. Phelps, will you
allow me to ask you it being your construction that Article I and Article
11 are not applicable to Behring Sea? wiiat do you say to Article V?
See the Treaty of 1884, page 3(5, of your first Appendix. Do you think
this is not applicable to Beliring Sea?
1G8 ORAL ARGUMENT OF KON. EDWARD J. PHELPS.
Mr. PiiELPS. — I see no language in article V that extends the appli-
cation of the Treaty.
The President. — Might not the Treaty be construed in such a way
that Article III and Article IV are the only Articles that refer to the
American "tSTorth-west Coast, and the other Articjles of the Treaty
applied to Behring Sea as well, and 1 might say even to tlie coast of
Siberia^
Mr. Phelps. — If you refer to Article V I do not know that there is
anything in the language of that Article to extend it, neither would
it be material, as it seems to me, to tlie present controversy whether it
was extended or not. The first Article, which is the dominant one
as to territory, raises this very question whether the Behring Sea is
included in the Pacific Ocean. If it is, the Treaty refers to it; if it
is not, the Treaty does not refer to it.
The President. — I would not say Article I refers to territory,
Article III refers to territory.
Mr. Phelps. — I do not think Article I refers to territory.
The President. — May I beg your attention to the very general
purport of the introduction of this Treaty.
The President of the United States of America and His Majesty the Emperor of
all the Russias wishing to cement the bonds of amity which unite them and to
secure between them the invariable maintenance of a perfect concord.
These words as you are well aware are generally employed for Trea-
ties of a very general application, for Treaties M'hicli relate to all the
possible connections and relations between two different nations or two
different States.
If this Treaty, and of course, I do not express my view, I put the
point as it migiit be argued against you, applies only to a question of
boundary and navigation and fishing, and so forth along the coast, or
in front of the coast, then do you tliink they would use such a general
expression as this, "Wishing to cement the bonds of amity which unite
them, and to secure between them the invariable maintenance of a per-
fect concord" '? That is a very general expression for merely a bound-
ary Treaty.
Mr. Phelps. — It is. The expression shows that the Treaty is one
of a general character.
The President. — I should think so.
Mr. Phelps. — But I respectfully submit that those words do not
enlarge the specific provisions of the Treaty. It will be observed that
the condition of things then was very difi'erent from what it is now.
This was Eussia [pointing on the map] as well as tJiis. Alaska was
then Eussia. All this territory and coast, and a good deal more was
claimed or had been claimed by Eussia up to that time, but in the very
settlement that they made this was Eussia down on the one side until
we get to near Japan, and this also was Eussia, so that international
relations did not begin between these two countries till you get down
to 54° 40', or whatever may be the disputed line.
Now the Treaty was a good deal more than to settle that line. That
was one object of it; and I quite agree that such words might or might
not be used. It depends a good deal on the fertility of those who were
writing. If the whole country was new, and the right of other coun-
tries to make settlements, and discovery and occui)ation was still open
to dispute, Eussia's claims to come down as far as it did, were, as Mr.
Adams pointed out, only supported by some settlements — some very
few, sparse settlements — I believe there was one at Archangel, which
was the same as Sitka. Mr. Adams points out, that it no longer had the
ORAL ARGUMENT OF HON. EDWARD J. FHELPS. 169
exclusive right of occupation aiuT discovery whicli miolit have been
open at that time to considerable dispute, on the strenglli of one little
settlement at Archangel. And you will perceive that IVIr. Adams takes
occasion to deny, whether he meant to insist on it or not, but as a part
of his argument, and to show Eussia that their claims were not so well
established, — he says in effect, "If you choose to get into a debate on
the subject of how far Eussia has the exclusive dominion over all this
territory, by right of possession and occupation, there are two sides to
that question, and we may have something to say upon it". Now, all
that is settled. There is, as I said, a grant on each side for 10 years,
of the right to visit and trade with tlie settlements of the other, and it
must be plain that these general words of friendship cannot control the
terms which lix the boundary.
Senator JMorgan. — This was the first Treaty between the United
States and Eussia of any kind?
Mr. Phelps. — Yes.
Senator Morgan. — It was natural that there should have been an
expression to each other of a cordial state of feeling.
The President. — Yes. I quite admit that.
Mr. Phelps. — This general language does not help you in determin-
ing the meaning of Article I whether Behring Sea was or was not
included in the term Pacific Ocean. You get no light from the pream-
ble, because it is equally ai)plicable and proper in either cnse. It does
not help us to exclude Behring Sea; it does not help us to include it,
and when you come to Article V you will notice that it is a limitation
on Article IV, which grants this 10 j^ears mutual right. It says all
spirituous liquors, firearms, other arms, powder, munitions of war of
every kind are always excei)ted from this same commerce x)ermitted by
the preceding Article, that is Article lY.
jSTow, Sir, as I have reached the point of considering the British
negotiations, perhaps you will think it better to adjourn before that is
taken up.
The President. — Yes.
[The Tribunal there adjourned until Tuesday, the 4th July, at 11.30.]
FORTY-NINTH DAY, JULY 4™, 1893.
Mr. PnELrs. — I neod lianlly say, Sir, that I find it quite as difficult
to speak iu weather which is so oppressive, as the Tribunal must to
listen; and if you perceive, Sir, as 1 do, that I am taking twice the
necessary time to make my propositions half as clear as they ought to
be made, I beg you will remember that it is in some measure my mis-
fortune and uot altogether my fault.
The President. — We never perceive that you do not make your
propositions quite clear, Mr. Phelps.
Mr. Phelps. — Yesterday, Sir, I was engaged in discussing this much
discussed question of the assertion and occupation of Eussia from the
time of the discovery of the Islands down to the time of the cession of
them to the United States in 1807, and especially relating to the period
of time embraced between the promulgation by Russia of the Ukase of
1821 and the conclusion between the three Governments respectively of
the Treaties of 1824 and 1825; and I had endeavored to point out that,
so far as this case is concerned, the whole enquiry embraced in two or
three questions in the Treaty results after all in determining whether
in the language of those Treaties, and the language it will be remem-
bered is the same in both Treaties, that Behviug Sea was gr was not
included under the term "Pacific Ocean"; because as I tried to point
out, there is no interruption whatever to the exclusive assertion and
occupation of Pussia so far as the fur-seal business is concerned, from
the time of the first discovery down to the time of the cession, unless
such an interruption is found in the language;, though as it will be
seen not in the results — of the Treaties of 1824 and 1825, by which it
could be made out that the access to Behring Sea for general purposes
was thrown open to these two Governments. I had said that, of course,
in determining that question which really determines all there is in
disi)ute, the first resort is to the language of the Treaty; what is meant
by the term, '' commonly called Pacific Ocean"; and, in reviewing the
maps, which are the only sensible resort for the purpose of giving a
definition to those words, I had gone through with the consideration of
the maps in discussing the American Treaty which i)receded by a year,
as you will remember, the conclusion of the British Treaty; and I have
one single observation to make in parting with that topic and in
approaching the consideration of the British Treaty. Suppose, Sir,
that all the distinguished geograi)hers who were then hving had been
called at that time as witnesses in a Court of Justice on the question of
whether the]5ehringSea was com])rised within what is commonly called
the Pacific Ocean, — in other words, sui)pose this controversy had taken
place immediately after the conclusion of those Treaties and some Tri-
bunal had been charged with determining the very question that is sub
mitted here to-day; and sui)pose all those ennnent geographers, then
living, whose opinions would have been regarded as entitled to general,
and international respect, had been called as witnesses before the Tri-
bunal and the question had been put to them as experts in the science
170
ORAL ARGUMKMT OF HON. EDWARD .T. PHELPS. 171
of geograpliy, '' What do you uiulerstand by the words that are here
used"? what woukl have been the answer? You will find the answer
in the maps that those men had published and did publish, where it
became necessary to put down the answer to that question on the face
of the map. Is there any doubt that everj^ one of these witnesses would
have given to this lanouage the construction that we contend for?
Now taking leave of the American Treaty, having seen, 1 think very
clearly, that whatever the term "Commonly called Pacific Ocean"
means, it was understood by Russia and understood by America as
excluding Behring Sea and those industries or trades or whatever
there was there, how stands the case of the British Treaty? It is of
course conceivable that Russia and the United States had understood
this one way and Great Britain had understood it in another way, and
although, as I shall contend, that could not make any material differ-
ence in the discussion of this question, still it is worth attending to as we
pass along, to see if there was a different understanding by one nation
in respect of the same language from that which was entertained by
both the others.
In the first place this American treaty was adopted by the British
Government, not merely by the employing of identical language; it
was adopted ui)on an agreement that Great Britain would accept just
what had been conceded to America; — not merely the language, but
the provisions that had been conceded to America. I must ask your
attention on that point to the 2nd volume of the Appendix to the
British case page 74. It is a letter from Mr. George Canning of instruc-
tions to Mr. Stratford Canning:
Perhaps tbe simplest course after all will be to substitute, for all that part of the
j)rojet aud couuter-projet which relates to maritime rights ami to navigation, the
first two Articles of the Convention already concluded by the Court of St. Peters-
burg with the United States of America, in the order in which they stand in that
Convention.
Russia cannot mean to give to the United States of America what she withholds
from us; nor to withhold from us anything that she has consented to give to the
United States.
The uniformity of stipulations in pari maieria gives clearness and force to both
arrangements, and will establish that footing of equality between the several con-
tracting parties which it is most desirable should exist between three Powers whose
interests come so nearly in contact with each other in a part of the globe in which
no other power is concerned.
This therefore is what I am to instruct you to propose at once to the Russian
Minister as cutting short an otherwise inconvenient discussion.
Subsequent correspondence shows that Mr. Stratford Canning in
pursuance of the instructions did exactly what he was instructed to do,
that is to say he proposed to the Russian Government to cut short
a discussion that I shall refer to in a moment, by adopting between
Russia and Great Britain what had been adopted by the United States,
and Great Britain.
Now if that is the case, in adopting these provisions they adopted
them as they were understood and intended by the parties. In adopt-
ing the language they adopt the construction, and if it is found — I
observe that Lord Hannen appears to dissent from that proposition —
Lord Hannen. — Well, to put it very clearly, I will not assume that
it is so, but suppose it were clear that the Russian Government had
led the English Government to think that they put the same construc-
tion on the language of the first clause of the Treaty as the English
now contend for, you would not then be able to say they were bound
by the construction that was understood by the United States.
172 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — No, Sir, that would state an entirely dilferent case,
but I tliiuk I siiall be able to point out presently from the correspond-
ence, that, so far from Eussia settiu,c^ up to Great J]ritain a different
construction of tliis languajje from what had obtained between llussia
and the United States, it was exactly the other way, and that Great
Britain did nnderstand distinctly that the construction of that lan-
guage did not include Behring Sea. When 1 stated the proposition
that in adopting by agreement not merely the language that had been
employed by the two other countries they adopted the construction,
that is to say they adopted what the agreement meant between the
parties, of course, that is in the absence of specilic proof to rebut that
by showing the contrary. Any presumption of that sort or any
inference of that sort is open to be rebutted, but in the absence of
rebutting facts I understand that it would not be possible to contend
that where a contract has been made between two parties and a thiid
party agrees with one of those contracting parties, " I will take exactly
the contract that you have given to the other man;" that he docs not
adopt it upon the construction which the law would give it as between
those two parties; and if that construction turned out to depend not
so much on the language as on the understanding, why then he has
a(lo])ted the nnderstanding. But there is a correspondence on this
subject that seems to me to make this i)erfectly clear. In the progress
of this negotiation between Great Britain and Russia, Mr. Canning the
Foreign Minister, sent to Sir Charles Bagot who was then the Ambassa-
dor at St. Petersburg, a proposed draft of this Treaty, and it will be
found on page 03 of the second Volume of the Appendix to the British
Case; and I invite your attention particularly to this language.
Mr. Justice Harlan. — Sent by whom?
Mr. Phelps.— By Mr. George Canning, Secretary of State for For-
eign Affairs, to His Majesty's Minister at St. Petersburg, Sir Charles
Bagot. He enclosed this as Great Britain's proposal, and the first
Article reads in this way.
It is agreed between the high contracting Parties that their respective subjects
shall en joy the right of free navigation along the ■whole extent of the Pacific Ocean,
comprehending the sea within Behring's Straits.
There are the words which put this ambiguity out of the question.
There are the words that, as I remarked yesterday, it is inconceivable
should n(-L have been insertedif it was intended by the parties to include
Behring Sea, and not leave the whole Treaty npon language so ambig-
uous and doubtful, to say the least, as they employed. That shows
that the attention of the Foreign Minister and of the negotiators on the
part of Great Britain was drawn to this point, and that it occurred to
them that more words were necessary. Then "comprehending the sea
within Behring's Straits," was proposed to Eussia as if it was iptended
to make this clear.
From Russia in reply we get what you will find in page G8, a counter-
draft. They cannot accept Great Britain's proi)osal er.tirely, and they
sent on their own side a projiosal, and you will see that Article 1st in
the British proi)osal becomes Article V in the Russian pro])osal, and it
will be found at the bottom of page 69 in the original French. It is
not translated in this copy:
The High Contracting Parties stipulate on behalf of their respective subjects that
free navigation over all.
Lord Hannen. — "Throughout the whole extent".
ORAL ARGLMENT OF HON. EDWARD J. PHELPS. 173
Mr. PnELPS. — •' Tbrou.aLout the whole extent, as well north as
south", and so on, and the words "comprehending Behriug Sea" or
any similar words are omitted.
Sir Chaeles Eussell. — "And that they will enjoy the right of
fishing in the high sea".
Mr. Phelps. — "And that they will enjoy the right of fishing in the
high sea", and so forth. But I speak of the omissiou in that statement
of the words contained in the British proposal. That would have set
this question at rest. In other words. Article V is substantially the
same as Article lof the British contention.
Sir Charles Kussell. — Would you read Article VI — of the right
to navigate Behring Straits.
Mr. Phelps. — I will read that.
The President. — How do you construe these words, Mr. Phelps —
"as well in the north as iu the south"? Where do you ])nt the north
and south as of interest between Russia and England'?
Mr. Phelps. — That is only introducing another ambiguity. They
introduce words there that are more ambiguous than the terms
employed before; they relieve an ambiguity by a worse ambiguity; but
they decline to put in the plain and simple words that would have set-
tled the point.
The President. — Perhaps the Eussian policy had particular views
about that at the time.
Mr. Phelps. — Exactly, Sir; that is the very reason.
Sir Charles Eussell. — My learned friend w ill surely be glad to be
assisted on this. The words in the Frojet are not " Behring Sea" but
" comprehending the sea within Behring Straits". And that is
treated by Count Lieven in the memorandum on page 65 as being a
claim to navigate the seas in the Arctic Ocean, which he says is a new
proposition. It is not a question of Behring Sea.
Mr. Phelps. — I quite understand that and will come to it in a
moment. I have not overlooked any word in this correspondence, and
I shall not^fail to allude to it. What I am upon now is — and I think I
shall be able to make myself understood, that on this single and only
question with which we are concerned, whether or not Behring Sr-a
was intended by these parties and understood to be comprised within -
the term "Pacific Ocean" — the British negociators, I repeat, put into
their draft words which would have settled that question and deter-
mined it. The Eussians declined to accept it, and left them out, and
the British executed the treaty without them. That is the point.
Lord Hannen. — But Sir Charles' suggestion, Mr. Phelps, is that the
words are eiiuivalent. You will have to deal with that.
Mr. Phelps. — We will consider that ])resently. Why, if Eussia
meant to include Behring Sea, did she strike them out? What reason
can be given for striking out from the draft of the Treaty those plain
words Avhich, ui)ou the theory of my learned friend, both parties under-
stood to be there? Why emi^loy equivalent words unless you can
employ better ones? Why sui)ply the ])lace of those plain words with
the ambiguous words to which the President just now alluded — "north
and south". The Eussians did not supi^ose, as we learn from the Baron
de Tuyll's communication to Mr. Adams that they were throwing opeu
the fur seal i)ursuits of Behring Sea to countries that did not ask for
them. We see plainly that Eussia did not so understand it, and we see
why it was they struck out these plain words and substituted words
which are not equivalent to them, because they do not add anything to
174 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
wliat was tliere before. To add to the term "commouly called Pacific
Ocean" "as well north as south" adds nothing as far as touches this
point.
Senator Morgan. — Is it shown anywhere, Mr. Phelps, which was
first submitted f
Mr. Phelps. — Certainly, Sir; the British was first submitted, and
the Russian you will remember was the contreprojet.
Xow, the attention of the British was called to this; and you will
perceive that it was criticised subseriuently in one of these letters
which will be found on page 72 of December the 8th from George Can-
ning to Stratford Canning. He criticises this contre-jyrqjet, and he
complains that Article I in his projet is made Article lYin the Kussiau
contreprojet; and he says in regard to that:
You will observe in the first jilace that it is proposed by the Russian Plenipo-
tentiaries entirely to change that order, and to transfer to the latter part of the
instrument the Article which has hitherto stood first in the projet.
To that trans])osition we cannot agree, lor the very reason which Count Nessel-
rode alleges in favour of it, namely, that the economie or arrangement of the Treaty
ought to have reference to the history of negotiation.
The whole negotiation grows out of the Ukase of 1821.
So entirely and absolutely true is this proposition that the settlement of the
limits of the respective possessions of Great Britain and Russia on the north-west
coast of America was proposed by us only as a mode of facilitating the adjustment
of the difl'erence arising from the Ukase by enabling the Court of Russia, under
cover of the more comprehensive arrangement, to withdraw with less appearance
of concession, the offensive pretensions of that edict;
and he continues to the same eflect.
Sir Charles Russell. — I should be glad if you will read the next
passage.
Mr. Phelps. — I will certainly.
It is comparatively indifferent to us whether we hasten or postpone all questions
respecting the limits of territorial possession on the Ct)ntinent of America, but the
pretensions of the Russian Ukase of 1821 to exclusive dominion over the Pacific
could not continue longer unrepealed Avithoiit comjjelling us to take some measure
of public and eft'ectiial remonstrance against it.
You will therefore take care, in the first instance, to repress any attempt to give
this change to the character of the negotiation, and will declare without reserve
that the i)oint to which alone the solicitude of the British Government and the
jealousy of the British nation attach any great importance is the doing away (in a
manner as little disagreeable to Russia as possible) of the efi'ect of the Ukase of 1821.
That this Ukase is not acted upon, and that instructions have been long ago sent
by the Russian Government to their cruisers in the Pacific to suspend the execution
of its provisions, is true ; but a private disavowal of a published claim is no security
against the revival of that claim. The suspension of the execution of a principle
may be perfectly compatible with the continued maintenance of the principle itself,
and when Ave have seen in the course of this negotiation that the Russian claim to
the possession of the coast of America down to latitude 59 rests in fact on no other
ground than the presumed acquiescence of the nations of Europe in the provisions
of an Ukase published by the Emperor Paul in the year 1800, against which it is
affirmed that no jniblic remonstrance was made, it becomes us to be exceedingly
careful that we do not, by a similar neglect on the present occasion, allow a sim-
ilar presumption to he raised as to an acquiescence in the Ukase of 1821.
The right of the subjects of His Majesty to navigate freely in the Pacific cannot
be held as matter of indulgence from any Power. Having once been publicly ques-
tioned, it must be publicly acknowledged.
The President. — How would you construe iu the meaning of Mr.
George Canning these words; — "The right of the subjects of His
Majesty to navigate freely in the Pacific?" How do you believe
Mr. Canning understood the word "Pacific"?
Mr. Phelps. — I understand the word "Pacific" there means just
what it means in the Treaty.
The President. — Not Behring Sea 1
ORAL ARGUMENT OF HOX. EDWARD J. PHELPS. 175
Mr. Phelps. — Belirino- Sea for a certain purpose, which I shall point
out directly, was made of inqiortance in subseciuent negotiations, — the
right to navigate through Behring Sea unquestionably, because that
is specially spoken of in the correspondence that if vessels cannot
pass through Behring Straits no further discoveries in the Korth could
be made. The gate is shut to the whole world, and the right to pass
through Behring Straits is spoken of; and it is immediately met by an
assurance on tbe i)art of Bussia that they had no intention whatever
of closing up Behring Straits.
Lord Hannen. — That had been already the subject of negotiation,
because you see the allusion in the passage is this :
For reasons of the same nature we cannot consent that the liberty of navigation
tlarongh Behring's Straits should be stated in the Treaty as a boon from Russia.
Mr. Phelps. — Yes, I see.
It cannot be doubted that the Americans consider themselves as secured in the
right of navigating iiehring's Straits and the sea beyond tliem.
I am obliged to your Lordship for calling attention to it. That was
unquestionably understood.
Lord Hannen. — But under what words was it stipulated or agreed
in any way that the Americans should have the right of navigating
Behring Straits and the sea beyond!
Mr. Phelps. — You will see it in Mr. Stratford Canning's letter, on
page 80.
Lord Hannen. — But I mean what words of the Treaty carry if?
Mr. Phelps. — It will come in under the Article we have been dis-
cussing in the American Treaty, Article I.
Lord Hannen. — That is, under the term "Pacific Ocean".
Mr. Phelps.— Under the term "Pacific Ocean".
Sir Charles Eussell. — Fishing and navigation.
Mr. Phelps. — But as controlled by the other language. It is one
thing to concede the right of navigating and, if you please, fishing
through the Behring Sea and through the Behring Straits which was
never in dispute between the parties; it is another thing to throw
open to them, according to the language of this first Article of the
Treaty, the right to pursue these various industries.
In this letter that I was about to refer to, you will see that that was
never disputed. Mr. Stratford Canning writes, on page 50, in his letter
of the 17th of February, 1825:
With respect to Behring's Straits, I am hap]\v to have it in my power to assure
you, on the joint authority of the Russian Plenipotentiaries, that the Emperor of
Russia has no intention wliatever of maintaining any exclusive claim to the navi-
gation of those straits or of the seas to the north of them.
It cannot be necessary, ander these circumstances, to trouble you with a more
particular account of tlie several conferences which I have held with the Russian
Ph-niixitentiaries; and it is but justice to state that I have found them disposed,
throughout this latter state of the negotiation, to treat the matters under discus-
sion with fairness and liberality.
There is another letter somewhere in which this is referred to; and
in reply to a letter which you will remember was written by one of the
British Negotiators, Russia replies that they had no idea whatever, just
as Mr. Canning says was repeated to him, of interrupting the naviga-
tion through Behring Straits.
Lord Hannen. — Tliey had at one time an idea of doing so, and said
it was a new proposal, they did at one time think of disputing it.
Mr. Phelps. — Well, they subsequently withdrew from that, because
t;hey said they never had any intention of disputing it.
176 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Now, tbe diilference between the riglit under the terms of this first
Article, in reply to the question that you put just now, the dillerence
between conciMliiiji: what was never denied, tlie ri.i;lit ol' free navigation
through Behring !Sea, which could not be denied unless they intended
to make it 'a closed sea, and conceding all that is given under the first
Article is very plain, because it is the difference as to the effect of that
particular Article on the iudustry or business with which we are now
charged.
Lord Hannen. — The passage I was referriug to will be found at page
66, where it is said:
"As to tlie clause of the same projet" (that is a letter from Count Lieven) "hav-
ing; or its object to ensure to Eiij^lish vessels tbe free entry into tlie Icy Sea by the
Straits of liehrin.u, it seems, in the first i>lace, that that condition, which is entirely
Bew, is by its nature foreign to the special object of the negotiation".
They did not in the first place yield that, but yielded it in conse-
quence of further negotiations; and then the question is, ou what terms
did they yield it, and what was the effect of the terms on which they
yielded it?
Mr. Phelps. — Still, the force of the observation that I have made
does not api)ear to me, I respectfully submit, to be at all diminished. It
is plain that the right to navigate through the Behring Straits was
DOt in dispute. If it was in the first place, as suggested by his Lord-
ship, that was speedily abandoned by Eiissia, who took the ground
that they had never intended to deny it, and they did not deny it; and
Mr. Stratford Canning writes he is happy to be assured by all of them
that there is no question on that point.
Then on the question whether the fishing in Behring Sea was included,
the British, I repeat, j^roposed words that would have set that at rest.
If Kussia meant to assent to that, why strike out the words. She gave
no reasou whatever. None can be conjectured. There cannot be an
objection to using the words that Mr. Canninghad put in this first j9ro-
jet, unless it is that they did not mean to concede so much as that.
Then you see that the British Government, after those words are
stricken out, and the ambiguous language of the present Treaty
employed, were laying stress upon the very ])osition in the Treaty which
this assumes, and callirig attention to the fact that its importance and
prominence is dimini.-lied by being at the end of the Treaty instead of
at the beginning; and while Bussia accedes to that suggestion, and
restores the article to its position in the Treaty which Great Britain
desired it to occu])y, and conceded its inqiortance, nevertheless they
declined to insert the words that would have ]uit tliis beyond dispute
and Great Britain acquiesced in a draft of the Treaty that did not con-
tain them.
How came they to do so, because the point that they were labouring
upon, the right of free navigation as the i)rimary question and the
boundary line as the secondary question, were equally conceded by the
language of Eussia and is explained by what is said by Mr. Canning.
Then in Mr. Addington's letter which will be found on page 66 of the
same book as late as August 2nd 1824.
"A convention concluded between this Government" — that is writ-
ten from Washington and the words "this Government" means the
United States —
A convention concluded between this Government and that of Russia for the set-
tlement of the respective claims of the two nations to the intercourse with the
north-western coast of America reached the Department of State a few days since.
The Jiiain ]>oiiits determined by this instrument are, as far as I can ci)lUict from
the American Secretary of State, (1) the enjoyment of a free and unrestricted inter-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 177
course by eaoli nation with all the settlements of the other on the north-west coast
of America and (2) a stipulation that no new settlements shall l)e formed by Russia,
south, or by the United States, north, of latitude 54° 40'.
Tluit is the summary of this Treaty as derived by Mr. Addiiigton
from Mr. Adams.
The question of the mare clniifium, the sovereijjnty over wliicl'. was asserted by the
Emperor of Russia in his celebrated Ukase of 1821, but virtually, if not expressly,
renounced by a subsequent declaration of that Sovereig^n, has, Mr. Adams assures
me, not been touched upon in the above-mentioned Treaty.
Not been touched upon. That is precisely what I say.
This assertion which they read, and the language authorized them to
read, as an attempt to exercise an exclusive sovereignty over Behriug
Sea, to shut it up and preclude navigation, and therefore to shut up
the Behring Straits, was completely abandoned; was so withdrawn,
was so explained away as sonietliing not intended to be ast^rted, and
certainly not intended to be enforced, that the parties were content to
let the matter drop, and, as in the letters I read you yesterday, Mr,
Canning instructs the Minister at St. Petersburg as follows:
We do not want to insist upon anything that humiliates Russia by calling upon
her in a Treaty to formally renounce what she has asserted. All that we want is to
get rid of any such claim as that. That answers our purpose, and tiierefore when
that is assured, the main object that we have in this negotiation is disposed of. The
territorial line is altogether a secondary consideration.
That is the reason why language is adopted in the Treaty that does
not in terms refer to the right of navigating there — does not refer to
Behring Sea at all, but only to the right of navigating the Pacific. But
we are here concerned with the question whether anything more than
that was needed, in order to meet the requirements of the case. My
learned friends have to contend that Behring Sea, including the seal
fisheries that centred at Pribilof Islands, and I believe also on the
Commander Islands was thrown open to the world, and not merely the
right to navigate. I will read the last clause which I am reminded I
have omitted to do.
Mr. Adams seemed to consider any formal stipulation regarding that renunciation
as unnecessary and supererogatory.
The President.— Might I ask you what you think Mr. Adams and
Mr. Addington alluded to when he quoted this subsequent declaration
of renouncement by Bussia? What is this declaration:
The question of the mare clausum, tlie sovereignty over which was asserted by the
Emperor of Russia in his celebrated Ukase of 182i, but virtually, if not expressly
renounced by a subsequent declaration of that sovereign. —
Mr. Phelps. — It is the <leclaration made by M. de Poletica, and the
declaration made to the British Plenipotentiaries. I have read the
declaration by the Bepresentatives that they never intended to submit
such a claim or to maintain it. That is the declaration he refers to, not
the provisions in the Treaty, because he says it is omitted.
The President. — You mean the despatch in which M. de Poletica
said that Bussia might assert Behring Sea was a inare clausiim, but did
not intend asserting it just then.
Mr. Phelps. — That is one, ;iiid throughout that correspondence it
will be found that Russia continued to occupy more distinctly that atti-
tude, and you will find, as I read just now, the assurance given to the
British negotiators on the part of Russia, which Mr. Stratford Canning
communicates to his Government, that there was no intention of assert-
ing an exclusive claim — perhaj^s I had better refer again to that. One
of these passages is the one I have read at page 80.
B s, PT xv 12
178 ' ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Tlie President. — That was later.
Mr. Phelps:
I ain happy to have it in my power to assure you, on the joint authority of the
Russian Plenipotentiaries, that the Emperor of Russia has no intention whatever of
niaiiitaiuiuji; any exclusive claim to the navigation of those straits, or of the seas to
tlie north of them.
]\rr. Justice Harlan. — That is not tlie declaration referred to in Mr.
Addin^toii's letter.
Mr. Phelps. — ISTo; I was saying that this transpires all the way-
through. I have not the reference at tlie moment to the particular one ;
but you will not have failed to observe from perusing this correspon-
dence from the very beginning, Eussia disclaimed, both to the fluited
States and Great Britain, the right to shut up this Sea and make it a
mare daumim; — that was disclaimed from the very beginning and all
the way Hirongh on all occasions, and never asserted; and, therefore,
you find both on the Ameri(;an side and the British side in these nego-
tiations, they were content to rest on tlie construction that had thus
formally and explicitly been given to tlie Ukase of 1821 by the Plen-
ipotentiaries; and then they make the Treaty.
The President. — I would not lilce to throw any disrepute upon
Diplomacy; that would not behove me at all, speaking to you, Mr.
Phelps, in particular, but as you made an obituary of diplomacy yes-
terday, perhaps we may sjieak of ancient diplomatists, if not of those
of to-day. Do not you think it sometimes happened that two nations
living on very friendly terms as Russia and Great Britain undoubtedly
did at that time, if you remember the historic state of the features of
Europe between 1820 and 1830, — there was great friendship you will
remember in 1822, 1823 and 1824 between Russia and England,— do not
you believe it may be that when a difficulty arises, or a point which is
difficult to interpret, or give an interpretation to, between diplomatists,
that they are often satisfied, each maintaining his own point of view,
to adopt an ambiguous phraseology leaving to the future to solve the
difficulty; and, indeed, very often the future solves many difficulties
which diplomatists at the then present time cannot solve? Might not
this be one of those cases where Russia and England each had their
view and did not wish to concede a point of principle consistent with
their policy, and yet did not care to put their respective principles in
opposition to one another?
Mr. Phelps. — I shall be quite willing to adopt that view. Sir.
The President. — I should not call it bad faith; but it is perhaps
procrastination.
Mr. Phelps. — It is a suggestion. Sir, that I am quite willing to adopt;
and it is one that I was going to make presently, when we had reached
the point. I was not going to omit to discuss it, because it is not for me
to anticipate what the conclusion of the Tribunal will be. — When we
have reached the point that language is employed here which can be
understood oneway by one party and the other way by the other party,
then we have reached a conclusion which is inevitable; that it is for
neither party to assert that his construction was the one adopted.
Lord Hannen. —And then there would be no contract.
Mr. Phelps. — And then there would be no contract.
Lord Hannen. — Then we should have to consider it on general prin-
ciples.
The President. — Yes. We might say, as Mr. Adams did to Baron
deTuyll, the Treaty would stand for itself.
Mr. Phelps. — Yes; it stands for itself, but subject to the legal rules
of construction. A party cannot fortify himself on the one side any
ORAL AKGUME2^T OP HON. EDWARD J. PHELPS. 179
more than on the other by adopting- language that is confessedly am-
biguous. It leaves the Treaty just where it would Iiavo been lett if tliey
had said in terms in it, " We refrain from settling this point," or " We
leave this point open."
Senator Morgan. — Might I ask you a question, Mr. Phelps ? I under-
stand that the fringe of sea round the border of a country to the extent
of the 3-mile limit is mare clausmn at the option of that country; but
has it ever been held that withiu that limit the right of innocent or free
navigation wonld be or could be under international law denied to any
ship or vessel of any foreign country unless the country to whom that
border of sea belonged should prohibit it.
Mr. Phelps. — No, Sir; neither do I understand that the country to
which that territory or littoral sea belongs can prohibit merely innocent
navigation.
The President. — No, you said so yesterday.
Senator Morgan. — And the right of free navigation stands above
every other right in international law; and that is the view that these
nations had of free navigation when they were making these Treaties.
Mr. Phelps. — That is true. There is no power in any nation that I
know of to prevent harmless and innocent navigation in a littoral sea,
or within the three miles or cannon-shot distance. The only restrictions
are those necessary to the accomplishment of some interest or some good
purpose, of which the nation is larg-ely its own judge; but Lord Chief
Justice Cockburn, asyou will remember, uses very strong language about
that, and he says the proposition to exclude innocent navigation even
in the three-mile limit is not to bethought of, and I think all authorities
concur on that point.
Now, the questions of the President and of Lord Hannen have drawn
me somewhat into hypothetical instances. I do not, for a moment,
concede that Great Britain stood in a position where it could have any
reservation on the construction of this Ti-eaty, because the understand-
ing that took place between Russia and America as to the effect of the
American Treaty was comnumicated to the British Government more
than a year, or almost a year, before. That is found in the Addington
letter that I have referred to, and I go back to it to call attention to its
date, August the 2nd 1824. It is on page 6(3 of the same book that I
have been reading from. That Treaty was signed the 28th of February
the next year. In that document the British Kepresentative communi-
cates to his Government from the highest authority, that is the American
Secretary of State, what the understanding of tlie construction of that
Treaty was, so that six months after, they adopted it v/ ith the knowledge
that the construction i)ut upon it by those parties was such as is here
exjjressed. How can any party to a contract, whether it is a nation 6v
an individual, reserve the riglit in accepting a contract with tiie knowl-
edge of the understanding that the other party has of it, to repudiate
that understanding where the language is ambiguous.
Lord Hannen. — I do not see where you get from Mr. Addington's
letter a knowledge of the construction put ui>on the words by the United
States?
Mr. Phelps. — Only generally, when he says in the language I have
read.
The question of the mare clausnnt, the sovereignty over which was asserted by the
Emperor of Russia in his celebrated Ukase of 1821, but virtually, if not expressly,
renounced by a subsequent declaration of that Sovereij^n, has, Mr. Adams assures
me, not been touched upon in tlie above-mentioned Treaty.
And that is in reply to the enquiry of the learned President to me;
but, under what language, and iu what way did Great Britain obtain the
180 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
rijilit to navigate liere through Behriiig Straits? She obtained it
because she liad never lost it. Slie refused to aceept it as a boou from
Ivussia; she refused to say, "We will aceept as a graut, a giltfrom Russia,
a right to navigate this Sea; we insist upon having the pretensions to
interfere with that right withdrawn. We do not care that they should
be withdrawn formally if that should be humiliating to our friend and
ally; but we want to be satisfied that it is out of the way." The Kepre-
sentatives irere satisfied that it was yut of the way, and they were
apprised that the Treaty of 1824 between Great Britain and Eussia did
not touch that question at all. As my associate suggests to me, the
United States had accepted these renunciations, when they went forward
with the negotiation ; they had acce[)ted these renunciations of any such
construction of the Ukase of 1821 as they had taken alarm at. They
made the Treaty; and wlien Great Britain adopts the language of that
Treaty, she is apprised distinctly tliat the United States had accepted
those renunciations, and that the Treaty they had then executed was not
understood as containing the reference to this subject which is now
here insisted upon.
The Pei:sident. — Mr. Phelps, I am sorry to interrupt yon so often.
Mr. Phelps. — I assure you, Sir, it is not the least interruption. I
am only too happy to be asked a question.
Tbe President. — I suppose this subsequent declaration of virtual,
if not expressed renoaiicement would be in the allusion to the circular
■of Count I^esselrode of October 21, which is ])rinted at page 3, and
which has been sent to all the Governnients; and being a circular, it
had the authority of the general declaiation of the liussian Govern-
ment. I suppose that in your opinion, the Governments both of the
United States and (jreat Britain nuxy have construed this circular as
admitting of their right of navigating freely through Behring Straits,
and conseijuently through Behring Sea.
Mr. Phelps. — Yes.
The President. — And consequently would not imply the right of
fishing on the way.
Mr. Phelps. — Yes, fishing is one thing.
The President. — Well, sealing on the way.
Mr. Phelps. — That is another thing.
The President. — Or whaling on the way.
Mr. Phelps. — Yes, whaling may be regarded as fishing, I do not go
into that. It is not in disi)ute.
The President. — No, it is an analogy.
Mr. Phelps. — It is an anah)gy, but we have never insisted upon our
having the right to preclude fishing generally at a distance from laud.
We saw what the law was regarded to be, in respect to the Newfound-
land fisheries, at that time. Whether it Mould be the law at this time
is a different question, and dei)ending on different considerations. If
it was important to go into the question whether the right of naviga-
tion may carry with it the right of what is called fishing-, that is to say,
capturing those fish which are the denizens of the open sea, that are
attached to no territory, and are in no sense the subject of property
that nuxy be well enough conceded ; we have not controverted that here,
and if there is no distinction between the case of the seals and the case
of the fish in the open sea, then there is very little in the claim to a
pro]»erty or a right of protection in the open sea.
The President. — What I wish to ascertain is this: that your c(ni-
struclion is that both Governments, the United States and the Great
Britain, fully understood and admitted that the concession by llussia
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 181
of their riglit of iiavi.a'atino:, perliai)S including; fishing and whaling,
l)erha])s not, at any rate did not include sealing?
Mr. Phelps. — Yes.
The President. — And that they fully understood that at the time?
Mr. Phelps. — Yes; that is our position.
Senator Morgan. — That is shown by the Ukase of 1799. It takes a
l)lain distinction between hunting and fishing.
Mv. Phelps. — And you will observe, Sir, that they require no recall
of this provision in the Ukase of 100 miles of demarcation from the
sliore — nothing. This subject is not touched upon — it is not alluded
to. The only figure that P>ehring Sea cuts in this whole matter, is on
the question of free navigation so as to pass through the straits, with
the addition, perhaps, to the word "navigation," of the words, "navi-
gation and deep sea fishing," which go together unquestionably. The
right of navigation carries the right of fishing, because fishing belongs
to navigation in the open sea.
Mr. Justice Harlan. — The treaty mentions clearly both navigation
and fishing.
Mr. Phelps. — Yes they are mentioned together. What Eussia with-
drew from the Ukase of ISlil, as you will see, was nothing but a con-
struction which that language justified, and at which these two Powers
had taken alarm and its explanation was : "We meant this only as a {)ro-
tective measure — we did not mean to shut the sea^ — we did not mean to
exclude you from navigation; we shall assert no such right — we are
willing to say so in the most formal manner — we intended it as a pro-
tective regulation "
The President.— Do you mean to say that the 100 miles exclusion
was maintained alter the treaty?
^Ir. Phelps. — It was left unt<niched in this treaty, and it was not
only maintained but these industries were never interfered with in the
whole of the sea either within 100 miles or without it, until after 1867.
Senator Morgan. — But it was negatived as I understand by the
right of free navigation to that extent?
Mr. Phelps. — Xot negatived, Sir, if you will permit me — only an
explanation that it was never intended.
Lord Hannen, — Is it your theory that the 100 mile limit did not
come into existence in Behring Sea?
Mr. Phelps. — So far as the protective measure, jt did my Lord, and
of course, consistently with the right of navigation. When you look
on the map and lay out 100 miles, it ])asses through the Aleutian chain,
and passes through Behring Straits. If you maintain the 100 mile
limit you do shut up the sea, and therefore I do not mean to say that
it was literally maintained, but that the protective character — the pro-
tective force of the Ukase of 18lil, was retained; and as I said yester-
day the whole discussion turned out to be, as very frequently is the
case, nothing but a misunderstanding. Say Great Britain and America:
"You are closing the sea to navigation which is the right of mankind."
Says Kussia: "Certainly not; we are protecting our industry." Say
Great Britain and America: "We have no wish to interfere with your
industries." As I said before if the TTkase had been confined to that
in terms, there never would have been any discussion. Then wlien
with that construction — that explanation — that renunciation, if you
choose to call it so, of the right to interfere with the navigation and to
pass through Behring Straits, is coru;eded, the protective force of the
ukase of 1821 to protect these industries was allowed to be maintained.
The best evidence of that is that as before they had never been inter-
182 ORAL ARGT^MENT OF HON. EDWARD J. rRELPS.
fered with, so afterwards they never were interfered with — not a Biitish
ship nor an American ship ever entered that sea to iiiterfeie with the
trade, with the settlement, with the fur-seal industry, or the far bearing
industry, which then extended beyond the fur-seal.
In the Treaty of Great Britain with Spain in 1790 (which will be
found at i^age 33 of the first American Appendix) there is a similar
provision by Great Britain,
Lord Hannen. — That is the origin (as pointed out in your case) of
this Treaty.
Mr. Phelps. — Article 4 of the Treaty between Great Britain and
Spain says this.
His Britannic Majesty engages to take tbe most effectnal measures to prevent the
navigation and tiBlusry of liis subjects in the Pacitic Ocean or in tbe 8outh sens,
from being made a pretext for illicit trade with tbe Spanish settlements;- and, with
this view, it is nn)reover expressly ;jtipulated that British subjects shall not navi-
gate, or carry on their fishery in tbe said seas, within tbe space of ten sea leagues
from any part of the coasts already occupied by Spain.
That is an illustration of what I am trying to say in regard to the
effect of this Ukase of 1821.
Lord Hannen. — I'hat Avas a Treaty.
Mr. Phelps. — That was a Treaty — yes; and we say that this Ukase,
as left by the Treaty, had a similar effect — not that it was specifically
provided that they should not approach within a certain nnmber of
miles, but they obtnined the right of free navigation without obtaining
the right to disturb the industries, settlements, and trade, of Russia.
That was at the time when restrictions of trade were common.
The President. — Mr. Phelps, in the letter of Mr. Canning which
you have just read, upon page 73, it is difficult to put those together so
as to make what you have just read concordant with the words of Mr.
Canning. He says:
But tbe pretensions of tbe Russian Ukase of 1821 to exclusive dominion over the
Pacific could not continue longer unrepealed without compelling us to take some
mensure of public and efiectual remonstrance against it.
You will therefore take care in tbe first instance to repress any attempt to give
this change to the character of tbe negotiation, and will declare without reserve
that tbe points to which alone the solicitude of the British Government, and the
jealousy of the British nation attach any great importance is the doing away (in a
manner as little disagreeable to Russia as possible) of the effect of the Ukase of
1821.
Mr. Phelps. — Yes, Sir, it has an effect upon navigation, but you will
find that there is not asserted, from beginning to end, any pretence on
the part of either of these countries to interfere with these rights.
The President. — You mean to say that England understood that
sealing was excluded, and did not care for it; she only cared to main-
tain the right of navigation?
Mr. Phelps. — Yes — the sealing and all their industries — not sealing
specifically more than anything else — the fur industry, their settle-
ments, their trade — whatever there was: that the result of this Ukase,
as modified by the Treaty, was to leave the right of navigation free,
but not to open to the world these valuable industries.
The President, — Are there any documents, besides the Ukase of
1821, from which you might infer that this question of sealing was
specifically raised?
Mr. Phelps. — Ko Sir, not specifically raised.
The President. — 1 do not see that the English documents make any
allusion to the right of sealing, either to except or include it.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 183
Mr. PHELrs, — They do not. That supports my contention — that
when tliis Ukase of isiil oarae out, to the extent the Ixussians exphiined
it — to the extent that they relied upon it — no question was ever raised.
Nobody, on the part of the United States or Great Britain r(^se up and
said: ''You are exchuling us from taking the fur beariug animals".
They never had taken a fur bearing aniuiah
Lord Hannen. — They did not say so as to the whole.
Mr. Phelps.— No.
Lord Hannen. — You do not deny that they had the right to go up
there and fish for whales?
Mr. Phelps. — They said only "fishing" — there is nothing about
whales and nothing about seals.
The President. — Do you not think the British diplomatists, in their
eagerness to come to an agreement with Russia, would naturally, express
something agreeable to Kussia — an acknowledgement of the exclusive
right of liussia to take the seals in the Behriug Sea. I think any diplo-
matist would be very eager to state that as a concession.
Mr. Phelps. — Undoubtedly, if the special point had been raised ; but
the question under discussion was how far the Ukase of 1821 should be
modified. The Ukase of 1821 covered that and a great deal more. It
was what it purported to cover beyond that that v^as in dispute; and
when that was renounced and the right of navigation re-afiirmed so to
speak, that was the end of the controversy and the confusion, if you
will allow me to say so, sir, that attends this subject.
The President. — Then both Governments, the United States and
England accepted the maintenance of the Ukase of 1821.
Mr. Phelps. — Yes, subject to the explanation that they did not
intend it to intercept navigation.
The President. — At any rate your meaning is very clear.
Mr. Phelps. — Yes. I was about to say, Sir, that the confusion
arises, at this late period, in trying to bring this subject to bear upon
a discussion with which it has really nothing to do and mingling
together the consideration of two very different topics. Now let me
go back to the application of this to our present discussion. What we
claim and all that we claim is this: That from the discovery of these
islands down to the cession of tliem to the United States by Russia,
this fur-sealing industry as maintained and carried on and created by
Russia and preserved, never was interfered with. No nation — no
individual — claimed a right to do what the Canadians claim the right
to do in this case; and we claim that as a povvciful confirmation, a cor-
roboration, of the title we assert now, and which Russia might have
asserted, of course, if it had been challenged at the beginning of this
century in 1800. We claim it as a powerful corroboratioii that during
almost a century, if not quite, the right that we stand upon was enjoyed
by Russia, and never was interfered with or challenged or questioned.
Now to meet that — to break the force of that contention — which is
all we care for — they say: "Why there was a Ukase of 1821 which
asserted this and a great deal more, and that was withdrawn and mod-
ified, and the modification of that is to be taken, not as a direct con-
cession (because the subject is not mentioned), but as an inferential
concession by Russia that she had not this right over the fur-breeding
aniuuils." Well, the moment you perceive that that question was not
involved — that neither Great Britain nor America in that negotiation
or correspondence any where claimed such a right — that no citizen of
that country ever claimed such a right — and that the whole discussion
was upon the subject of the right of navigation in the sea and through
184 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
the sea into Beliring Straits, why yon ])erceive, if that view of it is
correct, that it does not militate a,y'ainst our proposition that the pos-
session and occu])ation of Itussia has been absolutely unbroken; and
to make it bear upon that you must endeavor to put a construction
u])on ambijjuous language which will make it read as the parties did
I'ot understand or intend that it should read (because they were not
disputing upon that point), in such a way as to say: "You may come
in here and- take the fur-seal in Behring Sea". If it does not say that,
it says nothing that is pertinent to this case — it does not touch this
case. If the Treaties of 1824 and 1825 do not say in their legal effect:
"It shall be lawlul for the citizens of the United States and Great
Britain to come into Behring Sea and destroy the fur-bearing ani-
mals,"— if it does not say that, it does not touch this case at all, and it
is no matter then what it doi^s say, for our purpose.
It is therefore the question: Can you put into the language of that
Treaty those words, — that is to say by linding general terms in the
Treaty that mean that — that express that: Can you find an acknowl-
edgment in that Treaty that the pursuit of these fur-bearing animals
was open to the citizens of these two countries or open to any one
without liussian permission?
If you can, then yon find that our uninterrupted possession of a
century, in our grantors, is broken to that extent. If you cannot, then
the Ukase of 1§21 and the Treaties of 1824 and 1825 disappear out of
this case, and have no relation whatever to this controversy. Well,
now, if you can import into this Treaty language that has the legal
effect of conceding that right, it is only, at the utmost, by finding tliat
Behring Sea for all general purposes that are covered by the first
Article of this Treaty, is included within the "Pacific Ocean".
When you come to look at the language of the Treaty, you find that
the language does not justify it. If the parties choose to use language
and take their risk as to what that meant, that risk is determined when
you find out what it did mean. If you go further than that and say:
"The language is ambiguous and therefore we must find out from other
evidence, proper to be considered, what the parties meant by it", then
you find out in the first place what America and Russia agreed that
they meant by it. You find that that construction was conveyed to the
British Government six months before their Treaty, so that in adopting,
in terms, as they did, the provisions of the American Treaty, they
adopted the construction which the parties had put upon it; and the
suggestion of his Lordship to me that the rule would not apply if Great
Britain and Russia had a different construction, or if Russia made
Great Britain understand that the construction was different, does not
arise, because it is exactly the other way. — Instead of Great Britain
being made to understand, or left to understand, that Russia put a dif-
ferent construction from tliat which it had with America, the contrary
is conveyed; and they adopt the American Treaty with a knowledge
of the construction it contained.
I respectfully submit that this long discussion and this interminable
correspondence, comes down to that, and it is all that it has to do with
this case. With other purposes, and for other i)urposes it had its
place — its importance — which has long passed away, and is now only
historical. The question is whether it touches the case we have now
before us? It does touch this case somewhat— not very fatally — if you
can say that it interrupts the uniform i^ossession of Russia of this seal
industrj^ from the discovery down to the cession.
ORAL ARGU:\rENT OF HON. EDWAED J. PHELPS. 185
In order to do tlmt you inust therefore find either that the words of
the Treaty necessitate such a construction which phiinly tliey do not —
or-eise that the parties so understood it; and you tind that America
and Kussia understood it in one way, and Great Britain accepts that
with the knowledge of the construction tluit is put upon it, and the
reason why she did accept it, and ought to have accepted it, was because
that touched a point that she was not contending for.
If she had been contending- for the right to go in and take fur-seals,
as she is now, she never would have signed that Treaty without explicit
language to that effect and she would have insisted on the words which
she proposed in the projet she sulunitted; because if she did not get
that, she did not get the nuitcrial thing, or one of the material things
in dispute. She abandoned that readily; and if she had insisted upon
it she would not have got it, because that Eussia would have thrown
open to the world this valuable industry is not to be supposed; it
would have broken oif the Treaty altogether.
The Presideist. — Could you say that neither the United States
nor England had any actual interest in the sealing — they did no care
about it f
Mr. Phelps. — Exactly, and that is the reason they did not insist
upon it.
The President. — Is there any evidence in the case as to the date
when the fur industry began — that there was a connection between the
sealing in the Behring Sea and the far industry in London, — when the
consignments from Behring Sea to London began — when England began
to take any sort of interest in it?
Mr. Phelps. — I have not the date in my mind. The seal skins first
went to China, and the exact date when they began to come to England
we will ascertain.
The President. — Yery likely later than all these.
Mr. Phelps. — It is not in my mind at the moment.
The President. — It is not to be supposed that even London furriers
were interested then in the Behring Sea fur industry.
Mr. Phelps. — ]\Ir. Foster suggests to me that it was a little before
the concession to the United States that the market was transferred to
London for these fnrs.
General Foster. — The correspondence of the Company shows that
between 1850 and 18G0 they began to send to London.
The President. — It seems very likely that it had no sort of effectual
interest for the Americans or Englisli to raise the question. That would
account for it not having been raised at all.
Lord Hannen. — What they were claiming was the general right of
navigation in the high sea, with all that it carried with it.
]\Ir. Phelps. — Exactly.
The President. — That refers us back to the question of general
]>rinci[)ie.
Mv. Phelps. — Exactly. They never denied and they never inter-
Icred practically — their vessels did not go there, either from the United
States or Great Britain. They did not at all interrupt the position on
whicii we si and.
Now, Sir, let me for a single moment — (I have been drawn into say-
ing more about this than I intended this morning) — consider the aspect
of the case from the point of view of the question that the President
suggested a little while ago, and suppose there was a misunderstanding.
Sui)p()se the case — not uncommon in the history of contracts — where a
contract is signed with language that is ambiguous, that is to say, that
186 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
might admit of either of two constructions. One party honestly nnder-
stands it one Avay, the otlier understands it the other way. What is
the result? That provision of the contract fails. Whether that would
carry with it, in the estimation of a Court of Justice, the setting aside
of the whole coutractj doi)en(ls altogether on the place and importance
of that feature in it. It might or might not; but to that extent there
is not a contract.
Lord Hannen. — Upon that hypothesis, our answer to the question
ought to be, " We do not understand."
Mr. Phelps. — By no means, my Lord. The answer must be in
the negative, because if the language does not include it, it does not
include it.
The President. — The question is, whether the language includes it
or excludes it.
Mr. Phelps. — I quite agree. Kow on another branch of the case, I
quite agree, as I have endeavoured to point out, that the language
includes Behring Sea. I further insist that, whether the language does
or not, the parties to it understood or intended the language. But I
am now on the extreme hypothesis that, if neither the terms of the
Treaty, nor any understanding or intention of the parties that was con-
current, make it operative, then, we are left where you would be left in
a private contract.
Lord Hannen. — I cannot forbear from saying that you have not
referred to sbsequent passages in the Counter projet in which in effect
it distinctly says that Behring Straits and the Pacific Ocean extends
up to the Behring Straits.
Mr. Phelps. — I have not read those passages.
Lord Hannen. — I have called your attention to it before, or Mr. Car-
ter's. It appears to me — I may be taking a mistaken view of it — that
it is conclusive. It distinctly draws a disthiction between the Pacitic
Ocean and the Frozen Ocean — I mean as co terminous.
Mr. Phelps. — But still you do not avoid the difficulty that half a
dozen plain English words that would have settled that question were
I)roposed on the one side and refused on the other.
Lord Hannen. — That is begging the question. If there were words
that carried that meaning it was not necessary to insist on it, if the
Kussians by what they said plainly intimated that they understood
that the Pacific Ocean extended up to Behring Straits.
Mr. Phelps. — Yes, but we still do not get over the point that not-
withstanding this subsequent provision which was in the original projet
as well — notwithstanding that they thought it material (as it seems to
me that anybody who cared about that feature must think it material)
to put in the very words that determine this question. And it was
thought material on the other side to refuse. Now it would neither
liave been demanded or refused if the Treaty, in its other terms, had
contained language to the same effect. If it had been declined it would
have been said : " We have already said so ; we need not say it again ".
You find the one Government insisting on that language; you find the
other Government declining to adopt it; and you find my friends now
insisting that the Treaty should read as if those words were put in,
which were refused to be put in.
Senator Morgan. — But which is the Frozen Ocean?
Mr. Phelps. — It is the Arctic Ocean — Behring Straits.
Senator Morgan. — Have they said so. Who is giving that defini-
tion to it?
Mr. Phelps. — I suppose it is a general definition.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 187
Senator Morgan. — You Lave taken it for granted that the " Frozen
Ocean" means the Arctic Ocean, and forgotten that Beliring Sea is
frozen for more than half the year?
Mr, Phelps. — I have assumed that to be a definition ; I do not vouch
for its accuracy of coarse.
The President. — It has not been contended as yet thafcBehring Sea
was part of the Frozen Ocean — I have never seen that.
Sir Charles Russell. — No.
Senator Morgan. — I do not know anything about contentions. I was
trying to get some information about it. The term is used tliere; I do
not know who has the right to define it.
Mr. Phelps. — I had rather assumed that meaning, but without any
authority of course to ascribe it.
The President. — You would not include Behring Sea in the Frozen
Ocean ?
Mr. Phelps. — That had not been my construction of it, but of course
it was not a point to which I had given special consideration.
Senator Morgan. — There are only two oceans there — one is the
Frozen Ocean, and tfie other is the Pacific Ocean, and the line of demar-
cation between those two Oceans might jnst as naturally run through
Behring Sea as it would south of the Aleutian range.
Mr. Phelps. — It might be so undoubtedly; but you are asked to read
this Treaty as if the words had been in that were proposed to be put in,
and were left out, and there is not any escape from that, and there is
no ingenious reading of the other provisions of the Treaty that will
escape it. You may add a new ambiguity and you may argue with
ever so much ingenuity that the ambiguity is to have a i)articnlar con-
struction, but you cannot escape the conclusive fact that the few words
that would have settled the question were proposed on one side and
rejected on the other. May I ask, Lord Hanuen, to what provisions in
the subsequent draft or treaty he refers to as determining this.
Lord Hannen. — In the Sixth Article of the Kussian Counter projet
(at page 70 of the 2nd British Api)endix) the Emperor of Russia con-
sents that the liberty of navigation mentioned in the preceding Arti-
cle— that is the navigation throughout the whole extent of the Pacific
Ocean which j^ou refer to. Ue consents that the liberty of navigation
extends under the same conditions to Behring Straits and to the seas
situated to the north of that strait. And then it goes on — " all Russian
and British vessels navigating the Pacific Ocean and the sea above
mentioned", which is the Sea beyond Behring Strait — if they are forced
by tempest shall have the right of refuge. Now if the Pacific 0(;ean
does not include Behring Sea, then the provision is that they shall have
the right of refuge down below the Aleutians, and in what 1 have called
the Frozen Ocean; but that there is no provision for their having any
right of refuge in Behring Sea.
Mr. Justice Harlan. — Before you answer Lord Hannen, let me ask
you a question in that connection so as not to interrupt you. I have
not the English translation of this Treaty here and that is the reason
I ask you. 1 notice in Article VI, there is the word "navigation".
Can you tell me whether, in the previous Article of this Russian i)r<)jet
there is any allusion (in addition to navigation) to tisliingand trading?
Lord Hannen. — Yes, there is a good deal about trading.
Mr. Justice Harlan. — What I want to get at is: Do you lay any
stress, and how much, on the fact that whereas some previous Articles
refer to fishing and trading, besides navigation, Article VI that Lord
Hannen just read seems to refer to navigation only?
188 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — The first Article, Sir, of this Counter draft, as yoa
will observe (atthelastliiie of paije 6S) says: — On tlie north-west coast
of America, as \vell as dilfereut points relative to commerce, uavigation,
and to the fisheries of their subjects in the Pacific Ocean?
Sir Charles Kussell. — Commerce, navigation, and fisheries.
Mr. Phelps. — That is the preamble to the counter draft which gives
character to these various provisions. Perhaps the same occurs in other
Articles; but it is to be observed in respect of Article VI, as I was
about to say, that if the previous article —
Sir Charles Russell. — Article III refers to it.
Mr. Phelps. — 1 was about to observe that in my aijprehension, with
much respect. Article VI is conclusive in this draft to show that the
language in Article V was not understood as embracing Behring Sea,
because if it was, Article VI becomes superfluous.
Sir Cfiarles Russell. — No.
The President, — Article VI applies to the Straits merely and to
the sea beyond the straits — to the iSForthern Sea — to the Arctic Ocean,
Mr. Phi^lps. — There was no dispute between tlj^ese parties as to the
right to navigate the Frozen Ocean or the Arctic Sea ; and Behring Sea
of course (comprehended the right to go out of Behring Straits. Now
if imder the provisions of Article V the right was confirmed to go
through that sea and tlirough Behring straits, what do you want with
Article VI in which it is said that the right of navigation shall extend
through the Straits,
Tiie President, — That is why England objected to this Article — she
did not want to take that as a boon.
Mr. Phelps, — Exactly; but we are now upon the construction of the
meaning of the Article if you had accepted Article VI as an addition
which tlie language of Article V requires.
The President. — Well, it might be said, Mr. Phelps, fairly, that
"the Pacific Ocean", in Article V, means anything else but the Straits
and the aSTorthern Sea.
Mr. P HELPS. — Of course it does not mean the Northern Sea — but
that had never been in question at all.
The President. — If "the Pacific Ocean" means all the sea south-
wards of the Straits and all the Northern Sea, the words "Pacific
Ocean" in Article V may be construed virtually, in such a way as to
mean the sea soulli of the Straits.
]Mr, Phelps, — Yes.
The President. — The Straits come in Article VI. It is all the sea
that is not provided for in Article VI, In Article VI it provides merely
for the Frozen Ocean; consequently Article V provides for all the
remainder — Behring Sea, and the Pacific Ocean
Mr. Phelps. — It is impossible. Either the language of Article V
does include Behring Sea, or it docs not.
Sir Charles Russell, — It does.
The President. — That is what it seems to do.
Mr. Phelps. — If it does, you do not need Article VI.
Sir Charles Russell. — Yes.
Mr. Phelps. — Because there never was any dispute about the right
of navigating the Frozen Ocean.
The President. — Russia pretended to concede that — that is why
England did not want to have it conceded as a grant but as a right.
That was the despatch of Mr. Canning.
Mr, Phelps. — It is a dilfereut question from the question of the con-
struction of the language. Lord Hannen's suggestion was that Article
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 189
VI established tbe meaning- of the huiffnti ge in Article V. The question
whether England was willing to accept that navigation as a boon from
anybody is another question, and stands quite by itself.
Lord Hannen. — What I meant was, here we have almost contempo-
raneous documents — one lending to the Treaty; and what I was saying
was, it strikes me — (and I confess you have not removed the impression
from my mind yet) — that it can be ascertained from that, with certainty,
that liussia when she spoke of the Pacific Ocean intended to include
the Behring Sea.
Mr. Phelps. — And the concluding clause of this very Article V whicli
limits the right to the distance of two marine leagues from the posses-
sions of both sides, shows that the protective quality of the Ukase so
far as might be necessary, was not intended to be withdrawn.
Lord Hannen. — It shrunk from loO miles to two leagues.
Mr. Phelps. — Yes, it shrunk from 100 miles to two leagues.
Senator Morgan. — But still it did not shrink within the three mile
limit?
Mr. Phelps. — But still it did not shrink within the three mile limit —
it was two leagues.
Senator Morgan. — Now, Mr. Phelps, if you will allow me to sug-
gest this far — I do not wish to disturb the line of your argument.
Mr. Phelps. — It does not in the least interrupt me. Sir.
Senator Morgan. — The proposition of Great Britain, as I under-
stand it, was to concede to llussia the right to prohibit all ships within
two leagues of the coast — that was a moditication of the 100 mile limit.
The 100 mile limit, and the proposition of Great Britain were both for
the same purpose — for the protection of the industry, their commerce,
and fur-seal hunting within Behring Sea as I understand it. Now the
100 mile limit was adopted by Eussia in the Ukase of 1831 in conse-
quence of facts set forth in the British Case. What are they*? At page
22 of the British Case, they say:
Bancroft sums up the situation about 1791 and 1792 in the following words:
Affairs were assuming a serious aspect. Not only were the fehelikof men excluded
from the greater part of the inlet [Cook Inlet], but they were opposed in their
advance round Prince William Sound, which was also claimed by the Lebedef fac-
tion, though the Oiekhof and other Comjiauies were hunting there. . .
Thus the history of Cook Inlet during the last decade of the eighteenth century is
re])lete with romantic incidents — midnight raids, ambuscades, and open warfare —
resembling the doings of mediieval raubrittvrs, rather than the exjiloits of peaceable
traders. . .
Robbery and brutal outrages continued to be the order of the day, though now
committed chiefly for the purpose of obtaining sole control of the inlet, to the neglect
of legitimate pursuits.
Again, in another place, the same anthor writes, with regard especially to the
position of Baranoff, Governor of Sitka, when he took charge of the Shelikof Colony
of Kadiak:
Thus, on every side, rival establishments and traders were draining the country of
the valuable staple upon which rested the very existence of the scheme of coloniza-
tion. To the east and north there were Riiseians, but to the south-east the ships of
Englishmen, Americans, and Frenchmen were already traversing the tortuous chan-
nels of the Alexander Archipelago, rea]>iug rich harvests of sea-otter skins, in the
very region where Baranoff had decided to extend Russian dominion in connection
with Company sway.
Then on page 29 of the same Volume it says :
In 1801, there were at least thirteen United States vessels on the north-west coast.
Tiiese vessels exchanged with tiie natives of the coast for fins, parts of their cargoes,
and, proceeding to China, returned to their respective countries with cargoes of
teas, etc. Upwards of 18,000 sea-otter skins, besides other furs, were in 1801 col-
lected by United States traders alone for the China market.
In 1802, the Russian EstrtiilislinnMit at Sitka was destroyed, and nearly all the
Russians there were massacred by the natives. According to Lisiausky, the natives
190 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
were assisted by three deserters from a United States vessel, the "Jenny", which
had called at Sitka not long before. Shortly afterwards, an English vessel, the
"Unicorn," Captain Barber, arrived at Sitka, and two other vessels, reported by
the Russian survivors as English, but one of these Bancroft believes to have been the
United States vessel "Alert."
Hantin.ii" therefore, wliich was conducted with fire arms necessarily,
was sonictliiiiff that I suppose Russia for the peace of herself and the
safety of the lives of her subjects desired to repress, hence their inter-
position of the 100 mile limit which Great Britain recognizing as being
too large, was willing to reduce to two marine leagues.
That is ray view of the progress of the matter, and that is my view
of the reason why in the Treaties of 1824 and 1825 no mention was
made of the 100 mile limit in the general settlement of it, but it was
left to stand for the protection of the lives of Russian settlers against
the raids of these Traders.
The President. — Do you mean to say, Mr. Senator, it meant to
stand along the north-west coast! All you have been reading relates
to the north-west coast. You do not mean to say that the 100 mile
limit was applicable to the north-west coast, or to the Treaty?
Senator Morgan. — Applicable to the 100 mile limit — applicable to
the north-west coast, — by which 1 suppose the learned president means
that portion of the Country that is occupied now chiefly by the British
American ijossessions?
Sir Charles Kussell. — Oh no, no.
Senator Morgan. — Whether it applies to that alone, or whether it
applies to that and Behring Sea, the purpose is the same.
The President. — Yes.
Senator Morgan. — That was, to keep ships — to keep these Trad-
ers— from going there supplying fire-arms, ammunition and whiskey to
the settlers whereby they would probably keep down these massacres
and raids.
Marquis Venosta. — So many questions have been put to you, Mr.
Phelps, that I hardly like to ask you another.
Mr. Phelps. — I am most happy to hear them. Sir.
Marquis Venosta. — I should like to ask you this: you have said that
the British Government accepted the American interpretation of the
treaty of 1824.
Mr. Phelps. — Yes.
Marquis Venosta. — I remember there being some question between
the United States and Russia concerning the sea of Okhote and the
Behring Sea many years after the treaty and after the treaty of cession,
namely, a questicm concerning the proclamation of the Russian consul
in Japan and the question concerning the seizure of a vessel called the
"Eliza".
Mr. Phelps.— Yes — the "Loriot".
Marquis Venosta. — Uo you not think that those questions had some
bearing on your contention — that the inference is that there was an
interpretation of the American Government accepting the interpreta-
tion proi)osed by Baron de Tuyll, and binding in some way the British
Government?
Mr. Phelps. — I was intending to allude to the case of the "Loriot",
and after luncheon I shall be happy to endeavor to answer the question
of the Marquis.
Marquis Venosta. — If you please.
The President. — Then if you please, Mr. Phelps, you will be good
enough to answer the question after luncheon.
[The Tribunal here adjourned for a short time.]
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 191
Mr. Phelps. — In reply to the question put by the Marquis Venosta
before the adjournment, I read fiom tlie United States Counter Case,
page 22 and folIo\ying. It will be renieud)ered that the Treaty of 1824,
that we have been discussing, conferred upon the subjects of both
Governments mutual rights for 10 years of trading with the settlements
of the other. After that 10 years limitation expired, that is after 1834,
the United States Government made an effort with Russia to get an
extension of it, and that effort failed; and very soon after the exi)ira-
tion of the time, this American ship, the "Loriot", was arrested by the
Russian Government, and I will ask Mr. Foster to be good enough to
point out on the map where it was taken.
General Foster [Pointing it out]. — It was about 54<^ 55'.
Mr. Phelps. — It was on Russian territory, and it was seized by the
Russian Government; the United States protested and asked for com-
pensation; and Mr. Dallas claimed, in the correspondence which is
referred to on a subsequent page of the Counter Case, that the right
to do what the vessel engaged in was a general right, and did not
depend upon the consent of Russia. In other words, Mr. Dallas's claim
was substantially that the United States had the same rights there
without the concession of the Treaty of 1824 that it had with them. It
is not surprising that that claim of the United States failed entirely.
It was rejected by the Russian Government, which, in the correspond-
ence that ensued, pointed out what the objection was; and it was aban-
doned and dropped by the United States. No compensation was made
for the vessel. The vessel was not given up. The right of the United
States to go there and trade was not conceded, and an extension of the
terms of the Treaty of 1824 was not made. Why? The nations were,
as they always have been, x)erfectly friendly, and the same reasons
existed for extending the treaty provisions 10 years longer that could
have existed for making them in the tirst place. The reason was the
mischief to the industries of Russia, which, as they claimed, inevitably
followed the exercise of it. So they not only refused to extend them,
but they seized and confiscated the vessel. It would not be useful for
me to take up the time to read it, but a review of the correspondence
(because it exactly expresses the views on one side and the other) will
be found at pages 180 to 184 of the Counter Case of the United States,
a summary, not the whole of it, and extracts from the correspondence.
Marquis Venosta. — I asked you for an elucidation of the question
coucerning not the "Loriot" case but the "Eliza" case. You will find
that at pages 20, 21 and 22 of the Appendix to the British Case, vol-
ume 2.
Mr. Phelps. — Yes; I did not quite understand your question, Sir.
I thought it was restricted to the "Loriot" case.
The case of the "Eliza" was a vessel that w^as seized by the Rus-
sian Government in 1887; and it was seized for the breach of an order
or regulation which took effect at the beginning of 1882. I Avill read
from Mr. Lothrop's letter to Mr. Bayard, the Secretary of State. Mr.
Lothrop was our Minister.
The Russian Government claims that she was seized and condemned nnder the
provisions of an Order, or Regulation, which took cflect at the beginninp; of 1882,
and which absolutely prohibited every kind of trading, hunting and fishing on the
Russian Paciiic coast without a special licence from the Governor-General.
It is not claimed that the " Eliza" was engaged in seal fishing.
Marquis Venosta. — It is on that word that I asked for some expla-
nation; because General Vlangaly wrote to the United States Minister,
that the shii) was confiscated not on tlie ground of seal-fishing in the
192 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
open sea, but on tlie grouncl of a violation of a territorial regulation in
territorial waters.
JNIr. Phelps. — I perceive, Sir; I see the point, and I will read a little
further to see what the fa(;ts were, and then I will consider that.
But that she was found actually engaged in trading with the natives with the con-
traband articles of arms and strong liquors.
She was coudenmed by a Conuiiission sitting on the Imperial corvette " Ras-
Itoiuik", composed of the officers thereof. In this respect the case is ])reciscly like
that of the " Henrietta", mentioned on my last preceding despatch No. !•">, and of
this date.
It will be noticed that Mr. Spooner, the owner of the "Eliza", in his statement of
his claim, declares that the " lUiza" was " on a trading voyage, engaged in barter-
ing with the natives, and cntching walrus, and as such did not come under the
Notice of the Russian Governmi-ut, which was directed against the capture of seals
on Copper, Robbins, and Behring Islands.
It will be seen that Mr. Spooner either refers to an Order of the Russian Govern-
ment dift'erent from the one mentioned by the Imperial Foreign Otfice, or he under-
stood the latter in a very different sense.
Sir Charles Russell. — Will you kindly read the next sentence of
that letter which begins "I may add", and so on.
Mr. Phelps. — Yes; but I have read it before:
I may add that the Russian Code of Prize Law of 1869, Article 21, and now in
force, limits the jurisdictional waters of Russia to 3 miles from the shore.
And the next letter following, enclosed by Mr. Lothrop in that letter
is one from the Government of Eussia, — General Vlangaly to Mr.
Lothrop, and he says, reading from the second i)aragraph of the letter:
This information is in snbstnnce to the effect that the "Eliza" was confiscated
not for the fact of seal-lninting, but by virtue of an Administrative Regulation pro-
hibiting, from the beginning of the year 1882, every kind of commercial act, of
hunting, and of fishing on our coasts of the Pacific, without a. special authorization
from tiie Governor-General, and carrying with it, against those disregarding it, the
penalty of the seizure of the ship as well as of the cargo.
The order referred to is the one issued by the Russian Consul at
Yokohama, and is to be found on page 17 of the same book:
At the request of the local authorities of Behring and other islands, the under-
signed hereby notifies that the Russian Imperial Government publishes, for general
knowledge the following.
(1) Without a special permit or license from the Governor-General of Eastern
Siberia, foreign vessels are not allowed to carry on trading, hunting, fishing, etc.,
on the Russian coast or islands in the Okhotsk and Behring Sea, or on the north-
eastern coast of Asia, or within their sea-boundary line.
(2) For such permits or licenses, foreign vessels should apply to Vladivostok,
exclusively.
(3) In the i)ort of Petropaulovsk, through being the only port of entry in Kam-
schatka, sucli permits or licenses shall not be issued.
(4) No ])ermits or licenses whatever shall be issued for hunting, fishing, or
trading at or on the Commodore and Robben Islands.
(5) Foreign vess(ds tbund trading, lishing, hunting, etc., in Russian waters, with-
out ■<i license or permit from the (iovcrnor-General, and also those possessing a
license or permit who may infringe the existing bye-laws on hunting, shall be con-
fiscated, both vessels and cargoes, for the benefit of the Government. This enact-
ment shall be enforced henceforth, commencing with A. D. 1882.
(6) The enforcement of the above will be intrusted to Russian men-of-war, and
also to Russian merchant-vessels, which, for that purpose, will carry military
detachments and be provided with proper instructions.
IS'ow, under the force of that Regulation, three American vessels
were successively seized and confiscated, and that confiscation was
adopted by the Russian Government, and no satisfaction ever was made
for it. For the first two, a letter of enquiry was addressed by the
United States' Government, and on the facts being stated as given in
]Mr. Lothroi)'s letter, just now read, that claim of the United States was
dropped or abandoned.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 193
It does appear, however, that Mr. Dallas, as I have said before,
made a claim in respect of the "Loriot", and that claim, though made
the subject of correspondence, was subseciuently abandoned.
Marifuis Venosta. — The case of the "Loriot" has not very much to
do with this.
Mr. Phelps. — ISTo, it has not. It is only in the same line.
Now what does all this prove. Jt proves what is the last thing I
desire to say about this much vexed subject, and what is the only
important thing, in my judgment, to the present enquiry, that the
practical construction phaced upon the Treaties of 1824 and 1825 by the
parties to them, from the day of their date down to the time of the
cession, and down to the present time, is exactly in accordance with
what we say the true reading of the Treaty is, and the true understand-
ing of the parties was. How can it be that if the Treaty of 1824 was
understood as conveying to the United States these rights of trading,
and of fishing, that in 1882 Eussia should put forth such an order as I
have just read, and how can it be that the United States would submit
to it and permit their vessels to be captured; because if the Treaty of
1824 gives the rights which are claimed to the United States, then the
issue of the order of 1882 was a gross infringement of the Treaty, and
of the rights of the United States under the Treaty. It is not to be
presumed that Eussia would have attempted it, and still less is it to be
presumed that the United States would have submitted to it; and that
bears upon this great leading fact that from the time of the discovery
of these islands down to 1807, when they were ceded to the United
States, the possession and occupation by Eussia of the seal and fur
industry business was not only asserted, but was actually maintained;
and not a seal, as far as we learn in the exhaustive examination of this
case, was ever killed in those waters except by the permission and under
the regulations of the Eussian Government. So that the question
which Mr. Blaine puts in this correspondence, in letters that have been
read, is one that has not received an answer from my learned friends,
and, I respectfully insist, cannot be answered. How comes it to pass
that the Canadian vessels at this late i^eriod have acquired a right as
against the interest of the United States, in that seal herd, which never
was asserted or claimed by anybody so long as the Eussian Government
remained. "You will remember. Sir, without wearying you with more
reading on this tiresome branch of the case, that about 1840 a question
arose. The Eussian American Company addressed its Government on
the subject of whaling vessels that came in there, and asked the Gov-
ernment to interfere; and something is cited from Bancroft, by the
other side, to the effect that the spirit of the Treaty of 1825, between
Great Britain and America, might be against it. It does not touch the
fur animals, but when you inirsue the author they cite, Bancroft, you
will find this:
The Government at length referred the matter to a committee composed of offi-
cials of the navy department, who reported that the cost of fitting out a cnnser
for the protection of Behring Sea against foreign whalors would be 200,000 roubles
in silver and the cost of maintaining such a craft 85,000 roubles a year. To this a
recommendation was added that, if the company were willing to assume the expendi-
ture, a cruiser should at once be placed at their disi)Osal.
So that the failure, according to Bancroft, to protect Bchring Sea,
even against wlialer-s, which is totally different Irom the question we
are upon, was put upon the ground that the interest of the Comi)any
in it did not justify the expense that would be put upon them of fitting
out the cruiser for the purpose.
BS, PT XV 13
194 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Sir Charles Kussell. — In view of that statement Sir, I must ask
leave to intervene.
Mr. Phelps. — Certainly.
Sir Charles Russell. — There is a distinct statement by the Eus-
sian Foreign Office that they have no right to exclude foreign ships
from that part of the great ocean which separates the eastern sliore and
Siberia from the western shore of America, or to make the payment of
a sum of money a condition of allowing them to take whales.
Mr. Phelps. — That is cited from Bancroft, I presume.
Sir Charles Russell. — No, from the official papers.
Mr. Phelps. — I understand that Bancroft the historian gives the
additional facts as you will find in the Counter Case, page 25. It is
part of the same declaration as that which my learned friend has
alluded to. I should think myself that it was a very grave question,
at least, whether the right of the whaler in navigating Behring Sea
might not have been within what was conceded. I do not care to dis-
cuss that, because we have nothing to do with it. It may be so, or
may not be so; I only meant by this allusion to show that on that
extreme point — and it certainly would be extreme — the Russian Gov-
ernment had communications with the Russian American Company to
which I have alluded.
Marquis Venosta. — Do you consider the book Teckmanieff a relia-
ble document ?
Mr. Phelps. — That is a question that I am not able to answer.
From the use that is made of it, I should think not, and from its
exceeding facility for mistranslation, I should think not; but I really
am not qualified and not sufficiently acquainted with the author or
any other Russian literature to express an opinion on the subject. I
notice that Professor Elliott refers frequently to him, and that the pas-
sages on which he depends generally turn out to have been mistrans-
lated, and those are usually the circumstances under which the author
makes his ai)pearance in this case.
Marquis Venosta. — The book of Teckmanieff" is an historical book,
a printed book, but is not an official document and for that reason I
have asked your opinion.
Mr. Phelps. — That is an opinion I am not competent to express.
The particular historian I was last alluding to is one cited on the other
side — Bancroft, an American writer. There are two of those Russian
writers — Teckmanieff', and Veniaminoff, and possibly I have con-
founded them in the observations I have made. If so, it arises from
my own ignorance on that subject.
Mr. Justice Harlan. — Teckmanieff" is the man who wrote about the
Russian American Company.
Mr. Phelps. — Then this is what we claim and all we claim, and I
have been drawn into saying more than I should have said on this sub-
ject in view of its relative importance to this case. We have attempted
to establish — whether successfully or not — that the property interest
which the United States Government has in this herd, which entitles
it to protect it, derives a confirmation or a corroboration and a strength
from a possession and an assertion on the part of Russia that was abso-
lutely unbroken, so far as this seal industry was concerned, from the
earliest discovery down to the present time.
Therefore, if you will permit me to read again what we have
expressed in the United States Argument, at page 40, as the answers
which we should respectfully submit should be made to the questions
in the Treaty on this subject, I shall trouble you no further in respect
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 195
to it, except merely to commend to your recollection what is said on
this subject of possession in the United States Counter Case, from
page 24 where I was reading, and for several pages further:
The first four questions submitted to the Tribunal by the Treaty should, in the
opinion of the undersigned, be answered as follows.
First. Russia never at any time prior to the cession of Alaska to the United
States claimed any exclusive jurisdiction in the sea now known as Behring Sea,
beyond what are commonly termed territorial waters. She did, at all times since
the year 1821,
(and it might have been said a period earlier than that),
Assert and enforce an exclusive right in the "seal fisheries" in said sea, and also
asserted and enforced the right to protect her industries in said "fisheries" and her
exclusive interests in other industries established and maintained by her Ujion the
islands and shores of said sea, as well as her exclusive enjoyment of her trade with
her colonial establishments upon said islands and shores, by establishing prohibitive
regulations interdicting all foreign vessels, except in certain 8j>ecilied instances,
from ap])roaching said islands and shores nearer than 100 miles.
Second. The claims of Russia above mentioned as to the "seal fisheries" in Beh-
ring Sea were at all times, from the first assertion thereof by Russia down to the
time of the cession to the United States, recognized and acquiesced in by Great
Britain.
Third. "The body of water now known as Behring Sea was not included in the
phrase 'Pacific Ocean', as used in the treaty of 182.5, between Great Britain and
Russia"; and after that treaty Russia continued to hold and to exercise exclusively
a property right in the fur-seals resorting to the Pribilof Islands, and to the fur-
sealing and other industries established by her on the shores and islands above
mentioned, and to all trade with her colonial establishments on said shores and
islands, with the further right of protecting, by the exercise of necessary and
reasonable force over Behring Sea, the said seals, industries, and colonial trade
from any invasion by citizens of other nations tending to the destruction or injury
thereof.
That is what we claim as the fair result of the whole evidence in this
case in respect to the only part of the old historic claim of Russia that
has anything whatever to do with this conference. And unless you.
Sir, or some member of the Tribunal have any further suggestion to
make about the topics I have discussed to-day, I shall leave that sub-
ject here and finally. I shall be most happy, 1 need not say, to attempt
to reply to any suggestions that may be made.
The President. — I think we shall be pleased if you will go on.
Mr. Phelps. — Now, Sir, having considered the title, and the con-
firmation of the title, so far as it is to be derived from previous occu-
pation, I come to the second yirincipal proposition that is set forth on
the part of Great Britain. The first that I have tried to discuss was
that these animals are feroe, naturce, the second being, that the killing
of the seals is an incident of the freedom of the sea. It has, as I have
had occasion to observe, been very emphatically put forth by all my
learned friends, and repeatedly, that this subject involved a question
of the freedom of the sea, and that in conceding any right of property,
or any right of protection against this destruction you are in danger
of invading the freedom of the sea. My learned friends have been
good enough to caution members of the Tribunal against taking any
step that could possibly be regarded as having an effect upon a right
which they seem to regard as better than other rights, and that is the
freedom of the sea.
Kow nobody at this day contests that general proposition, least of
all a maritime nation of the interests and extent of the United States
Government; but the question is, what is the freedom of the sea?
Does the conduct that we seek to protect ourselves against come
within it; or is it excluded from it? Of course it must be said as must
196 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
be said of all freedom and of all liberty, it has limits. As Mr. Blaine
lias sai<l, freedom of the sea is not lawlessness; it is not everything
that can be done there: it stops somewhere, as all freedom stops. The
liberty that is under the law is all the liberty that has ever proved
beneficial to the human race, — whether all the liberty that is under the
law has proved a blessing or not may be another question. What then
is its history? Whence comes this idea of the freedom of the sea?
When and where did it begin, how far did it ever extend, and where
does it stop? Those are the questions that are involved in this discus-
sion, very directly and immediately. I need not remind any person
conversant with the history of maritime law, that the time is not very
distant, historically speaking, when the idea of the freedom of the sea,
first promulgated by Grotius, found its way into the law of the world.
Before that, the doctrine was that of onare clausum^ that is to say, just
as far as the interests of any maritime nation appeared to require
that it should assume dominion and sovereignty over the sea, it did
assume it and all the world acquiesced.
If it were 100 years back, the claim of Eussia that was so modestly
suggested by M. de Poletica in 182H, that all the conditions that attend
a closed sea existed on the part of Behring Sea, so that Russia might,
as he said, have advanced that claim, although she did not intend to
do it — if we had been 100 years further back it would not have been too
late, as international law then stood, for Eussia to have asserted that
claim. In 1824, a distinguished author, Mr. Chitty, published a book
on that subject in which he maintained the doctrine of mare clausum.
Senator Morgan. — That is the doctrine now as to the Dardanelles
and the Bosphorus.
Mr. Phelps. — Yes; it may have its exceptions.
Sir Charles Eussell. — What book of Mr. Chitty's is that?
Mr. Phelps. — I will give yoM the reference. It is Chitty's Commer-
cial Law, and it was published in 1824.
Sir Charles Eussell. It was the Quatuor Maria, I think.
Mr. Phelps. I do not refer to it, because I do not propose to main-
tain that in 1824 this was the settled law of the world at all. Grotius
was earlier than that, and the doctrine mare Jiberum had made consid-
erable advances; but it was not too late in 1824 for a very respectable
writer to put forth his book in which he maintained the doctrine of
mare clausum, that wherever the interests of the nation, and, as he
argued, the interests of the world required, sovereignty should be
extended over it. I refer to that as an illustration.
Lord Hannen. — Can you give the page of Chitty?
Mr. Phelps. — No, I cannot here, because the whole book is devoted,
or at least a large share of the book, to the maintenance of that doctrine
in contradistinction to the views put forth by Grotius. I refer to it only
as an illustration, not with the view of taking up the contention of
Mr. Chitty one way or the other.
Senator Morgan. — Is not that the doctrine to-day, as announced
here with reference to the Fjords of Norway, and the Chesapeake Bay,
and the mouth of the Delaware.
Mr. Phelps. — I am coming to those illustrations when I consider
what are the remnants left in the world. That is one of them. I want
to see how far that old doctrine of mare clausum prevailed without dis-
pute in the world till Grotius attacked it.
The President. — I think the word "dispute" is going rather far.
Mr. Phelps. — Well, perhaps, the word "dispute" is a little too
strong. It might have been questioned, but I think till Grotius'
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 197
Treatise was put forward it certainly could not have been said to have
beeu overthrown. Sir Henry Maine in liis lecture on International
Law at pages 75 and 77, cited in the United States Argument, page
141, considers this subject historically, and perhaps I may be excused
for reading a very few words.
The first branch of our enquiry brings ns to what, at the birth of international
law, was one of tlie most bitterly disimted of all questions, the question of mare
clansnm and mare libenim — sea under the dominion of a particular power, or sea open
to all — names ideutiliod with the great reputations of (irotius and Selden. In all
probability the question would not have arisen but for the dictum of the iustitutional
Roman writers that the sea was by nature common projjcrty. Aud the moot point
was whether there was anything in nature, whatever that word might have meant,
which either pointed to the community of sea or of rivers: and also what did history
show to have been the actual practice of mankind, and whether it pointed in any
definite way to a general sense of mankind on the subject. We do not know exactly
what was in the mind of a Roman lawyer when he spoke of nature. Nor is it easy for
us to form even a speculative opinion as to what can have been the actual condition
of the sea in those ])rimitive ages, somehow associated with the conception of nature.
The slender evidence before us seems to suggest that the sea at first was common
only in the sense of being universally open to depredation.
Whatever jurisdiction may have been asserted, probably did not spring from any-
thing which may be called nature, but was perhaps a security against piracy. At
all events, this is certain, that the earliest development of maritime law seems to
have consisted in a movement from mare libenim, whatever that may have meant,
to viare clausum — from navigation in waters over which nobody claimed authority,
to waters xmder the control of a separate sovereign. The, closing of seas meant
delivery from violent depredation at the cost or by the exertion of some power or
powers stronger than the rest. No doubt sovereignty over water began as a benefit
to all navigators, and it ended in taking the form of protection.
And he cites, as you will find in a note on the same page, from Mr.
Hall in his Treatise on International Law, which was an English trea-
tise to a similar effect.
Sir Henry points out there that fnare clausum wufi not the beginning
of what may be called the law of the sea, if you dignify it with tliat
name. It was preceded by mare Ubcrum; it was preceded, before inter-
national law could be said to have had its birth, by a freedom of the sea,
which is just what is contended for in this case, — a freedom for univer-
sal depredation; a freedom that had no limit; a freedom from which
property was not safe and life was not safe. That was the early idea
of the freedom of the sea; the doctrine of mare clausum, as these
authors point out, very clearly came from the necessity of protection;
and the world acquiesced in the adjacent maritime nation stretching
its hand out over the waters of the sea and assuming a sovereignty
over the sea as it did over the shore, because it was necessary to human
protection. That is where the original doctrine of mare clausum comes
from. It comes from necessity of j)rotection against a form of freedom
of the sea which was lawlessness.
When civilisation and commerce and the rudiments of international
law had so far advanced that the assumption of such a sovereignty by a
maritimenation wasno longer necessary, and, could nolongerbejustitied;
when it was no longer necessary for Great Britain to assert a sover-
eignty over the Channel for the protection either of itself or of the
world; or for Italy to extend a sovereignty over the Adriatic, or Den-
mark over the Baltic, then the new theory comes in; that is, the doc-
trine set forth by Grotius of a free sea, and that gradually came to be
accomplished; and what is material, as I have said, is to find how far
the nations then surrendered their sovereignty over the sea. They did
surrender it to a large extent, un(|uestionably ; they <lid give way to
the advancing idea of the ireedom of the sea. How far did they go?
i98 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Did they throw the sea open to consequences that were detrimental to
themselves; or did they retain, have tliey always retained, and is the
whole law of the sea based upon the principle of retaining in the mari-
time nation, all that is necessary to the protection of its rights!
Senator Morgan. — Now, Mr. Phelps, if you will allow me, I wish to
ask your opinion about this; whether, in throwing open a sea (as you
have just described), it was thrown open to individuals operating upon
their private account and without the authority of the flag, or the
license of anv nation; or was it thrown open to the sovereign nations
of the world?
Mr. Phelps. — That is a point I shall try to address myself to, Sir.
Now, let me state the proposition that I venture respectfully to assert
with some confidence, as being the result of the whole law of the sea as
it exists to day, and of all the application to luinian aifairs it ever has
had: — That the nations that formerly controlled the sea never surren-
dered the right of self-protection which extended to all their interests
that were valuable enough to be protected, whether in peace or in war,
whether industry, or commerce, or trade, and that the time never has
been when an individual (which may perhaps meet the point of your
question which you have just put) — the time has never been and the
illu.stration is not to be found in any rule of law, when an individual
could engage in any j)ursuit, for the purpose of gain on the high seas,
that worked a serious injury to the interests of a maritime nation, even
though the pursuit in itself and of itself, if it had not had such conse-
quences, might have been unobjectionable; even if it is the pursuit of
something on the sea from which a gain is to be realised, and which in and
of itself does no harm. If the consequence of that is the serious injury
or affection of a national interest, that nation never has surrendered
the right to i)rotect itself against that consequence, and for that busi-
ness the sea is not free.
Then I go further; I have spoken of innocent occupation. If the
thing that is sought to be done upon the sea is in itself wrong; inhu-
man, barbarous, immoral; if it violates those general principles of law
that are enforced in all civilization; if its tendency is not merely to
injure the interests of the nation, but to injure the interests of mankind,
as in this case, by the extermination from the earth of a valuable
animal; then that of itself renders such conduct unjustifiable, and any
nation who is affected by it may resist it. No nation can constitute
itself the censor of the morals of the world. No nation can go out
upon the high seas upon the errand of enforcing the general laws of
humanity, because it is not invested with that paramount authority
over other nations; but the moment that conduct touches the interest
of the nation — the moment it becomes, so to speak, the business of that
nation to resist it; at such moment it can resist it. I shall try to make
myself clear on this initial point, and I shall not have to refer to it
again, that the proposition I venture to suggest in respect to the limit
of the freedom of the sea rests upon two branches, each of which,
standing alone would be sufficient, and both of which in this case
concur. I say in the first place that a pursuit that is innocent of
itself, but does have destructive or gravely injurious effects upon the
interests of a maritime nation, may be prevented. I s<iy, in the next
place that instead of being innocent and unobjectionable, and some-
thing that nobody but the nation affected could object to — if it goes
beyond that, and is indefensible in its moral character, in its humanity,
and is destructive of the interests of the world, as well as of the interests
of the nation, and violates those principles which aU nations, as far as
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 199
their municipal jurisductioii extends, have adopted, it may be protested
against and be defended.
JSTow, having given some reflection to this subject, and having tried
to instruct myself by a reference to everything I could And of au author-
itative character ou the subject of international law, I venture to say
that there is not a maritime right, there is not a single feature in what
we may call the law of the sea, that does not come back and refer itself,
and be seen to be fouiuled upon this proposition. And that this loose
talk that has prevailed — and, of course, 1 am not alluding to my learned
friends in this observation — the loose talk that you find pervading the
deliverances of a very different and much less instructed class of men,
"who begin to enlighten the world before they have found out the
necessity of enliglitening themselves, — this loose talk about the freedom
of the sea that has been generated in newspapers, and in such sources of
knowledge, the idea that the moment you get upon the sea you are
exem})t from all human law, except in some few special particulars that
have become the subjects of special adjustment, and that unless you
run against some such arbitrary rule which may have good grounds to
stand on, or may not, but has become established, the freedom of the
sea is a universal and unlimited thing, is utterly mistaken and destitute
of foundation.
I say, on the other hand, the freedom of the sea — to state the con-
verse of my proposition is to say the same thing over again in different
words — is the right to do upon it every thing that is inoffensive and
right in itself, and which works no injury to any maritime nation; no
injury to anybody else; that it stops there, and that all these cases
which my learned friends were struggling with, all the supposed cases
to which we invited their consideration, of whether this may be done,
or whether that may be done, or whether the other may be done, and
in which they were struggling to find some particular answer to each
case, or to find some escape from the necessity of answering the ques-
tion by saying, "that question is not likely to arise", or "that might be
settled by agreement ", all of them are immediately answered when you
bring them to that plain test: Is the conduct inoffensive, or is it injuri-
ous? May I be pardoned for alluding quite briefly, I hope, because I
shall only read enough to state the point, to the judgment of judges, and
writings of men whose authority is not questioned. Mr. Justice Story
says in the case of the Marianna Flora, in the 11th Wheatou, Supreme
Court Eeports :
Every ship sails there
that is, in the open sea: the context shows what he meant
with the uiiquestiouable right of i^ursuing her own lawful business without inter-
ruptiou, but whatever may be that business, she is bound to pursue it in such a
manner as not to violate the rights of others. The general maxim in such cases is
sic utere tuo ut alienum non Icedas.
Then Chancellor Kent says on page 27 of the Ist. Volume of his
Commentaries.
Every vessel in time of peace has a right to consult its own safety and conven-
ience, and to pursue its own course and business without being disturbed, when it
does not violate the rights of others.
Mr. Justice Amphlett says in the case of the Queen v. Keyn in the
2nd Exchequer which has been so often referred to in the course of this
discussion :
The freedom of the high seas for the inoffensive navigation of all nations is firmly
KslablibheJ,
200 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Kendiiij; from the note on paj?e 142 there is a passage cited from
Grotius, the great authoiity ou the freedom of the sea.
It is certain that lie who would take possession of the sea by occupation cotiUI not
preveut a peaceful and innocent navigation, since sucli a transit cannot be iutei'dicted
even ou land, though ordinarily it would be less necessary and more dangerous.
Then the note at the bottom of page 142; Mr. Twiss iu section 172
and 185 of his International Law says:
But this is not the case with the open aea upon which all persons may navigate
without the least prejudice to any nation whatever, and without exposing any nation
thereby to danger. It would thus seem that there is no natural warrant for any
nation to seek to take possession of the open sea, or even to restrict the innocent
use of it by other nations. * * * The right of lishing in the open sea or main
ocean is common to all nations on the same principle which sanctions a common
right of navigation, viz, that he who fishes in the open sea does no injury to any one, and
the products of the sea are, in this respect, inexhauslible and sufficient for all.
The right of self defence and the right of jurisdiction have been
referred to — they have no connection with each other — almost no rela-
tion with each other. Jurisdiction is sovereignty and is confined to
territory — Self defence is not confined except by the necessity and
propriety of the case, and has nothing at all to do with jurisdiction.
Then to meet the exact point that Senator Morgan has just suggested.
Besides the three-mile limit there is another extent of jurisdiction such
as he referred to in the Fjords of Norway, the large bays where the
headlands were more than 10 miles apart and embrace more water than
the three mile limit or cannon-shot limit from the shore would cover,
there tlie same principle has extended further and Chancellor Kent
expresses it so well that I will read a few words from page 147 of the
Argument which are quoted from pages 30 and 31 of his first Commen-
taries.
Considering, he says, the great extent of the line of the American Coasts we
have a right to claim for fiscal and defensive regulations a liberal extension of
maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume,
for domestic purposes connected with our safety and welfare, the control of the
waters on our coasts though included within lines stretching from quite distant
headlands as for instance from Cape Ann to Cape Cod, and from Nantucket to Mon-
tauk Point and from that point to the capes of the Delaware and from the south
cape of Florida to the Mississippi.
That is the poiut. That is an extent of jurisdiction beyond the can-
non-shot line, beyond the three-mile line, and it results from exactly
the same necessity. Chancellor Kent says that the necessity of exer-
cising a control over waters to that extent is a general necessity; so
that, instead of going out when the occasion requires to do the thing
that the occasion requires, you extend the general jurisdiction.
The President. — Does the Government of the United States claim
to extend the jurisdiction as propounded by Chancellor Kent?
Mr. Phelps.— Yes.
Lord Hannen. — In what way has it been claimed excejit otherwise
than on the very high authority of Chancellor Kent?
Mr. Phelps. — Practically.
Senator Morgan. — It has never been disputed by any nation that
I know of.
Mr. Phelps. — I do not know of any question having arisen. The
Bay of Fundy, I think, stands on the same ground.
Lord Hannen. — But there it was not allowed. That question came
before a tribunal before which I acted as advocate as you are doing
now, and there it was decided against us by the umpire.
Mr. Phelps. — I quite defer to your Lordship's better information,
but I had the impression arising out of what had transpired in these
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 201
Fishery disputes tliat the right of Great Britain to exteiul jurisdiction
over the Bay of Fundy as coming within its headhmds had been
asserted. 1 uuiy be wrong.
Lord Hannen. — It was asserted by Great Britain but overruled.
Senator Morgan. — I understood it was overruled upon the ground
that there was au American island in that Bay.
Mr. Phelps. — I presume, if your Lordship had been umpire instead
of Counsel, it would not have been overruled.
Lord Hansen. — That is a left handed compliment.
Mr. Phelps. — It is by no means so intended, my Lord. I mean only
to say, if the Tribunal had had the advantage of your Lordship's judg
ment on that point they would have come to a different conclusion.
This is aside: it is a mere illustration of what I was saying.
Sir Henry Maine speaks of the English rule, and he states it more
perspicuously than 1 do. In the note at page 147 of the American
argument will be found a quotation from Sir Henry Maine. He is
speaking of these survivals. The whole chapter is on this subject. It is
the last book our lamented friend ever wrote — he says on page 80 :
Another survival of larger pretensions
that is to say, another survival of the old mare clausum idea which he
is discussing,
is tlie English claim to exclusive authority over what were called the King's Cham-
bers. These are portions of the sea cut off by lines drawn from one promontory of
our coast to another as from Lands End to Milford Haven. The claim has been
followed in America, and a jurisdiction of the like kiud is asserted by the United
States over Delaware Bay and other estuaries which enter into portions of their
territory.
If all this was wrong and the jurisdiction did not survive, that does
not affect my argument. I only use it as an illustration. Now to
pursue the observation that I made before, this idea will be found to
enter into the whole of the law of the sea wherever you touch it. It
is the basis of every general restriction that is settled, and laid up
among the maxims of international law.
Take, for instance, the subject of piracy. My learned friend, Sir
Eichard Webster, fell into the error, and unintentionally did me the
injustice of supposing that my allusion to that subject was with a view
of drawing a parallel between killing the seals and piracy. The par-
allel that exists between them every man may draw for himself; that
was not my purpose. I allude to that principle in the law of nations
which finds exi)ression in giving jurisdiction to any nation to try a
pirate and execute him. Kow a man accused of a crime, even of iiiracy,
has his well known rights. He is not guilty till he is found to be guilty.
He is presumed innocent. And every man accused of a crime, where
the common law ])revails at least, has certain rights as well. He has
a right to be tried in the district where the crime was committed, or it
committed on a ship on the high seas to be tried in the country to which
that shi]) belongs; so that if a man is charged with committinga murder
on the high seas, which is all that can be said of him until he is con-
victed, he has a right to be tried in the jurisdiction of the country to
which tliat sliip appertains and forms a part, just as when committed
on the shore he has the common law right to be tried in the district
where the crime was committed, and nowhere else.
Why is that taken away in the case of i)ir!>cy? In the case of mur-
der, of robbery at sea, wiiicli is what i)iracy really is, — why may a man
be taken into any port if the country chooses to exercise the jurisdic-
tion, and be tried and condemned and executed? Simply because the
202 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
protection of nations requires it; simply because iu the days when
])iracy was more frequent than it ever can be again owing to the
improvements in navigation, it was necessary to the protection of the
world and of maritime nations, whose ships were atioat upon the sea,
that they should not be required to wait for the slow and possibly the
reluctant process of the nation from whom the pirate came, to proceed
and enforce it.
The same rule prevails about carrying a flag. What is the reason,
pray, why I may not put to sea iu a vessel of my own u[)on some honest
and innocent pursuit without carrying the flag of my country or any
other?
Senator Morgan. — May you not?
Mr. Phelps. — No ; I may not. I understand it to be settled law that
a vessel may be overhauled by the armed vessel of another nation unless
it carries some known flag.
Senator Morgan. — Overhauled by the armed vessel of any nation ?
Mr. Phelps. — Yes, unless it carries some known flag and hails from
some known port.
, Mr. Justice Harlan. — Will you state the proposition again?
Mr. Phelps. — That a vessel is required, or may be required, on the
high sea, to sail under the flag of some nation which she is authorized
to carry.
The President. — If there is a proper flag. It must be under the
flag of its nation.
Mr. Phelps. — Yes — so that she "hails", as the seamen say, from
somewhere.
Lord Hannen. — I think the Senator's doubt was one that passed
across my mind — whether it was obligatory literally to carry a flag,
which means a flag of some nation.
Mr. Phelps. — I used the word "flag" figuratively. I mean to say it
must be registered — legally set forth. When I say "carry" a flag, of
coarse I do not mean that she would never be found at sea without a
flag flying.
Senator Morgan. — It must have a license.
Mr. Phelps. — It must have a license — it must have a home — it must
have papers.
The President. — Covered by the flag of the nation.
Mr. Phelps. — Yes, having a nationality.
Senator Morgan. — That is very different from the right of a man to
go on the King's highway even in a foreign country.
Mr. Phelps. — Then there is the other idea we have encountered
before, which I only allude to now : A vessel may be pursued on the
high sea for breaking a municipal regulation. That has become settled
by many judicial decisions. It must be undoubtedly /Ves/i pursuit, but
a vessel that goes into the jurisdiction of a municipal regulation, and
infringes it and takes to flight, may be pursued and arrested on the
high sea. Those are specimens of what I may call the general restric-
tions of this 3 mile limit, the jurisdiction exercised over estuaries, bays,
fjords and waters of that sort — the requirements of registering and
nationality — the laws that apply to pirates. — Every one of the general
restrictions that, irrespective of the requirements of a particular nation
or a particular case, vessels are subject to on the high seas, are traceable
to that. They come back to that. Those are some of the limits to the
freedom of the sea, which have never been surrendered.
Then when we come to special laws, like those that have been indi
cated before — the Hovering laws of Great Britain and of the United
ORAL ARGUMENT OF HON, EDWARD J. PHELPS. 203
States by which vessels may be arrested outside of the three mile line
iTiider certain circnmstances — the French laws to the same efi'ect —
the quarantine laws — all that class of cases in which you find a statute
stretching out beyond even the three-mile line and reaching a vessel on
the open sea, where the sovereignty of the nation cannot reach, where
even the qualitied sovereignty that attends ou the littoral sea cannot
reach, come back to the same thing, the necessity of the special pro-
vision, the anticipatory provision in the particular case. Without now
coming at all to the question of the special individual case, I am
speaking of special restrictions which some nations enforce over some
part of the high sea for certain purposes. AH this class of enactments
is perfectly reconcilable when attributed to the proper source; and the
apparent puzzle that is sometimes set forth is answered: "How can
you extend a statute to a distance of 12 miles from the French Coast
or from the British Coast or from the United States Coast?" You can
do it because a reasonable necessity of a certain class of cases — quaran-
tine, revenue or whatever it may be — requires it; and the moment that
takes place the assertion is made, and is accepted and acquiesced in
everywhere. We find no contradiction of it.
Take the time of war. Belligerent rights mean nothing except the
rights a nation has in time of war. With its enemy law is suspended;
but with neutral nations not engaged in the war it acquires no addi-
tional rights of self-defence. It may acquire additional necessities; it
does acquire certain necessities that do not exist in time of peace.
Therefore a set of Eegulations has grown up, and come to be settled
so that they are no longer open to dispute, on the subject of the rights
of a nation which happens to be at war, as against neutrals.
Take the familiar illustration about which there is no question: The
breach of blockades. A nation blockades the port of its enemy. The
citizens of another country are engaged in a legitimate trade with that
port. To break up that trade may ruin the parties engaged in it, —
parties whose all may be embarked in it.
What is the propriety of ruining that neutral in an innocent business
the war finds him engaged in? It is exactly this idea, and it has been
so stated by the writers on the subject — it has been placed on that very
ground — that the right of the individual, although the thing that he is
doing is proper enough in itself, must give way when it comes into col-
lision with the interest of the nation which is carrying on war of which
the blockade is one of the means. Perhaps before we adjourn. Sir, I
may refer on that, and the analogous Eegulations, to the reasons that
are given by writers of authority, for such law as that. Mr. Manning
(on page 162 of the American Argument and 252 of his book), states
this principle :
Tlie greatest liberty which law should allow iu civil government, is the power of
doino- everything that doe.s not injure any other person, and the greatest liberty
which justice among nations demands, is that every state may do anything that does
not injure another state with which it is at amity. The freedom of commerce and
the rights of war, both undoubted as long as no injustice results from them, become
questionable as soon as their exorcise is grievously injurious to any independent
state, but the great difference of the interest concerned makes the trivial nature of
the restriction that can justly be placed upon neutrals appear inconsiderable, when
balanced against the magnitude of the national enterprises which unrestricted
neutral trade might compromise. That some interference is justifiable will be
obvious on the consideration that if a neutral had the power of unrestricted com-
merce, he might carry to a port blockaded and on the point of surrendering, provi-
sions which should enable it to hold out and so change the whole issue of a war;
and thus the vital interests of a nation might be sacrificed to augment the riches of
a single individual.
204 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Grotins, referring to tlie same right to trading iu articles not usually
contraband, says:
For, if I cannot defend myself without seizing articles of this nature which are
beinji: sent to my enemy, necessity gives me the right to seize them, as we have
already explained elsewhere, under the obligation of restoring them unless there be
some other reason supervening to prevent me.
That is while engaged in a trade which is proper enough in itself
except that it supplies an enemy.
Mr. Wheaton, commenting upon this opinion of Grotins, points out that it is
placed by that author entirely upon the ground of the right of self-defense, under
the necessities of a particular case; that Grotius does not claim that the traiisjior-
tation of such property is illegal in itself, or exposes the vessel carrying it to capture ;
but that necessity nevertheless justifies in the case in which it actually arises, the
seizure of the vessel as a measure of self-defense. And he shows by further refer-
ence that it was the opinion of Grotius that a necessity of that sort exemi)ts a case
from all general rules.
Mr. Manning, the author I cited before, at page 263 of his book, thus
defines the rights of belligerents as against neutral commerce.
It consists merely in preventing vessels from interfering with the rights of bel-
ligerents, and seeking their own emolument at the direct expeuse of one party iu
the contest.
And Azuni (I am reading from the same page, p. 163 of the Ameri-
can Argument, where the reference to the page is given), says:
The truth of this theory (right of neutral trade) does not, however, deprive bel-
ligerents of the right of stopping the commerce of neutrals with the enemy wheu
they deem it necessary for their own defense.
All those cases — the right to prohibit a vessel entering a port — the
right to prohibit a vessel carrying what is called contraband of war —
although that may be the subject of a pre-existing, regular, established,
and proper trade — the right to ijrohibit vessels from carrying j^fissen-
gers if they are connected with the forces of belligerent, or carrying
des])atches — all that interference on the sea, in cases of war rights,
with the plain and obvious rights of individuals, is reposed upon the
idea that the riglit of the individual must give way, although what he
is doing is not otherwise objectionable, when the consequence of it is
to work an injury to the important interest of a maritime nation, that
is, a nation able to protect itself upon the sea. These rights stand
upon nothing else, and as I have said, while these illustrations apply
to the time of war, (and I shall cite others that api)ly to the time of
peace) it is only the difference in the necessity which the war creates,
because the neutrals not parties to the war are in no way concerned
with its relations.
Perhaps, Sir, you will permit me to cite the other illustrations to-
morrow morning.
The Presidknt. — If you please.
[The tribunal adjourned accordingly till Wednesday the 5th July,
at 11.30.J
FIFTIETH DAY, JULY 5™, 1893.
Mr. Phelps. — I was discussing yesterday, Sir, as yon will remember,
the general question of the extent of the freedom of the sea. I was
endeavouring to point out that, in the progress of this subject from the
days when mare clausum was the law of nations, to the time Avhen the
opposite doctrine prevails, restrictions had been made and preserved
and universally recognized on that freedom which constitute its present
limits; that it has limits, that it must have limits, will be universally
conceded; the question is what are they and whence are they derived?
I had stated this proposition, not as necessary to this case, because,
as I shall proceed to show in the application of the law to the facts of
this case, it is not necessary to go to any such length, I had stated it,
because it a[»pears to me to be the foundation of the true rule on the
subject. That is, that the exact converse of the rule that obtains in
municipal law is applicable in international concerns to questions
between individuals and nations, — not between the individuals of one
nation and the individuals of another, but between individuals and
nations.
It is a familiar rule, that if a man is in the exercise of a legal right,
no matter what he is doing, the consequences of his conduct to any
other persons constitute no legal objection to the exercise of his right.
The consequence may be destructive to others, but they have no legal
right to complain, whatever moral grounds they may have for remon-
strance. I claim the law to be the other way when tiie question arises
between the individual pursuing on the high seas some object of his own,
for gain, when the consequence becomes gravely injurious, not to say
destructive, to some important national interest of a nation bordering
upon the sea. That is the proposition. I have endeavoured to illus-
trate it as lying at the bottom of all these well-ascertained rules that
apply in peace and in war, — one set that apply to the rights of belliger-
ents, which do not, of course, arise in time of peace; another set which
apply to cases that occur in times of peace; and to point out how many
forms it seems to take in the reservation of territorial seas, in the opera-
tion of general statutes that apply all along the coast, in the operation
of special statutes that apply to special cases, coming down to those
occasions of the exercise of actual force which becomes necessary on
the spur of the moment, and are not preceded by any previous exigencj^
I have alluded to most of the belligerent rights tliat I care to refer to.
But there is one which has been made the subject of so nuu;h observation
on the other side, that while it has nothing to do with this case, except
as an illustration of the argument, I want to refer to it very briefly,
and that is, the right of search.
In this case we have nothing whatever to do with the right to search.
If it was exercised in the case of these cruisers, it was exercised years
ago, ami that is a subject that may reaiaiii to be discussed between the
two nations, but is not referred here. That is one of the belligerent
205
206 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
riglits, and it is said, and said upon excellent autliority frequently, that
tlie right of search is conliued to a time of war. It is remarked by
Mr. Justice Story in one of the cases that have been referred to; it is
remarked by other writers and judges which have been cited in the
course of this discussion that the right of search is a war right.
The President. — Except where it is conceded by special conven-
tion.
Mr. Phelps. — Yes, where it is exercised as a right independent of
Treaty. Why is it a war right? Is the right of self-defence against
neutrals any greater iu time of war than in time of peace 1 Nobody
could claim that. It is a war right because the necessity for it priu-
ci]\ally arises in time of war, because the cases are very rare indeed
when in time of peace it can be regarded as necessary or reasonable to
overhaul the vessel of a friendly nation and subject it to a search.
But suppose it became necessary, is there any ]>rinciple upon which it
can be denied in time of peace if you establish the necessity? In point
of fact it has been affirmed and has been conceded by very high authority
in time of peace but under another name. In a remarkable instance that
is referred to in the United States Argument, where the discussion arose
between Lord Aberdeen, who was then Minister of Foreign Alfairs, and
Mr. Webster, who was the Secretary of State of the United States — a
certain right of visitation was assertedby Great Britain in time of peace,
enough to answer the necessity of the case, and it was objected to by the
United States. "Why", says Lord Aberdeen, "this is not the right of
search. We are not claiming the right of search. We are claiming the
right of visitation." If he was defining the term according to its techni-
cal meaning, as recognized by Courts of Justice in maritime cases, he
was right. The right of search goes further. He pointed out that it
was only the right Avhich was made necessary in time of peace, and did
not amount to the right of search. Mr. Webster, on the other hand was
obliged to concede — he was the last man that could successfully argue
the wrong side of a question, and one of the last men that had any dis-
l)osition to do it — he was compelled to concede to Lord Aberdeen that
to that extent the right existed, but he says it is after all the right of
search; and in that he also was right. You are only modifying, redu-
cing, the extent of the exercise of this right, because the extent of it is so
much less in time of peace than in time of war. I read from page 162
of our Argument where the extracts are; the whole of it is here. This
is taken from Mr. Webster's works. My friends, I believe, have referred
to the same correspondence from the British of&cial sources. Lord
Aberdeen says:
That it—
(that is the British Government)
still maintains, and would exercise when necessary its own risht to ascertain the
genuineness of any Hag which a suspected vessel mi<i;bt bear: that if in the exercise
of this right, eitlier from involuntary error or in spite of every precaution, loss or
injury should be sustained, a prompt reparation would he afforded, but that it should
entertain for a single instant the notion of abandoning the right itself would be
C{int<i impossible.
That is the position of Great Britain in regard to the right of visita-
tion iu time of peace — enough, at least, to ascertain the truenatioiiality
of the vessel.
Mr. Webster denies that right in that case upon the ground that it is
not necessary, but what does he say about the general rule?
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 207
That there is no right to visit in time of peace except in the execution of revenue
laws or other municipal regulations, in which cases the right is usually exercised
near the coast or within the marine league, or where the vessel is justly suspected
of violating the law of natious by piratical aggression; but wherever exercised, it
is a right of search.
And that is where the question was left. That is the kernel of that
whole discussion, extracted from despatches that are voluminous and
will be interesting to be read by anybody wh§ desires to pursue this
subject further than it is at all necessary for me to pursue it. Lord
Aberdeen says: We do not claim the right of search in time of peace,
but we do claim the right of visitation and going on board and search-
ing for the necessary facts. In other words, we only claim in time of
peace the right of going as far as is necessary. Mr. Webster replies:
While you have not that right in this case, I admit that m time of peace,
you may visit when it is necessary, when there is a revenue law or any
aggression of regulations; that is generally exercised near the shore;
but it is a right of search wherever it is exercised.
He was far too clear in his legal principles not to see that the moment
you set foot ujjon the vessel of the other nation in the exercise of a
claim of right that was a right of search, and that the definition of the
term was not to be limited by the enquiry whether you search the deck,
or the cabin, or the hold; that to board it at all for the purpose of
ascertaining facts was a right of search — a limited right, of course, but
limited by the necessity of the case.
The case of the Trent has been alluded to in this connexion, and I
pass rapidly over these illustrations. There was a discussion between
Great Britain and the United States arising out of the taking by a
naval vessel of the United States of the ambassadors of the Confed-
erate States who were on their way to a European country out of a
British vessel. That vessel was overhauled, and they were taken out.
Great Britain demanded that they should be released ; and a discussion
took place. How did that come out*? I have no time to wade through
it; it is not useful. The precedent arises from what was conceded, not
from what was claimed on one side or the other. Mr. Seward gave up
those men, upon the ground that if the United States had a right to
intercept them at all, it must, according to the established usage of
nations, have captured the vessel. That if the vessel was engaged in
such conveyance of contraband of war as the United States had a right
to object to, the rule on that subject had become settled and estab-
lished in international law, and the onlj' way was to capture the ves-
sel. Of course, if the occasion was not one that the United States had
a right to object to, then she could not interfere at all, and on that
ground you will find, if you pursue that somewhat interesting corre-
spondence, the men were given up. But a point that was mad and dis-
cussed then remains unsettled. It was asserted on the one side and
denied on the other, and there was no concession, and there was no
settlement, and that was whether ambassadors come within the rule
that excludes a neutral vessel from conveying the military and naval
oflBcers of one belligerent. It is quite well settled that a vessel exposes
itself to capture if it is made the means of transporting military or
naval officers for any State. Now it was said on the part of the United
States, this is equally witliin the spirit of the rule. Those ambassa-
dors, though not oflicers, either military or naval, were on their Avay
across the sea to negotiate an alliance or a recognition of the war.
Their business was directly in aid of the rebellion, and, if it succeeded,
208 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
mig^ht turn the scale and make the rebellion succeed. That was Mr.
Seward's argument. It was said on the otlier hand, that the rule has
never been extended to civilians; that it stops at military and naval
officers, and if you go away from that, you get into such secondary and
indirect consequences that there is no possible limit to the cases that
can be cited where a vessel is carrying passengers that are really in aid
of the war. But the coetroversy came to an end when Mr. Seward con-
ceded that if he was right in classing ambassadors with military and
naval oflicers and bringing them within the oi)eration of established
rules, then he should have seized the vessel. Therefore, in no event,
could he board the vessel and take certain persons out of it.
The President. — It must be judged and go to a Prize Court.
Mr. Phelps. — Yes: if he seizes the vessel and brings it in, then the
parties have a right to be heard and they are to be heard upon the
truth of the assertion. They may show if they please, that the men
were not ambassadors, but ordinary passengers, or whatever the fact
was, but if you board the vessel and take the men out there is no judi-
cial proceeding. And that is the point on which the Sui)reme Court of
the United States divided in the case of Rose v. Himely, where a capture
was made by a French cruiser of a vessel she was entitled to capture,
but it was not carried into port. The majority of the Court thought
the capture could not be sustained, but Justice Johnson thought other-
wise. The case of the United States as x>resented by Mr. Seward comes
still further within the principles of the objection to the capture in the
case of Rose v. Hhnely. That is all there was in the " Trent" case.
We have stated many other instances in the argument: I need not
go over them: I am sure the Tribunal have read what we have under-
taken to say on that subject; and if they have, they do not- require it
to be repeated. Take the case of St. Helena, where Great Britain pro-
hibited vessels from coming within 12 leagues; quite outside the terri-
torial waters — virtually excluded them from coming there at all. Sup-
pose a neutral vessel, not a French or a British vessel, but an American
vessel, engaged in the transportation of passengers on the high seas,
no war then existing, because the war was over with the final surrender
of Napoleon. What is to hinder a vessel on the high seas, away from
territorial waters, from carrying a passenger for hire ? It is a per-
fectly legitimate and lawful business. Why was it prohibited? Now
into the necessity of that prohibition, or the propriety of it upon the
facts, I do not enter. That is a question that it is unnecessary to
revive at this date. Whether the Emperor should have been impris-
oned, or whether he should have been retained there, or whether any
of these measures were necessary and proper on the facts of the case,
are questions of fact; but supposing that we concede the premises
which the British Government asserted — suppose it was true that the
necessity of their self-defence required this measure, then what is to be
said of it as matter of law? Can anybody challenge it? I could go
on referring to cases of that sort, and referring to sui)posed cases; an
eminent writer has well remarked, in a passage cited here, that where
cases maybe supi)osed, there cases may exist; that which may be i'airly
and reasonably supposed may come to pass. I resi)ect fully invite any
lawyer, any publicist, who desires to occupy his mind with the consid-
eration of this question, to set his imagination at work, and see if he
can state any case, in which the pursuit, for profit or gain by an indi-
vidual, of some purpose or business, upon the high sea, .comes in con-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 209
tact to a gravely injurious extent with an important national interest,
in which that nation has not the right to protect itself; whether there
is any ease in whicli the right of the individual, which wouhl otherwise
be inoffensive and unobjectionable, must not give way; whether it is
in time of peace or in time of war; whether it applies to one national
interest or another; whether it is an industry, a commerce or a trade;
wherever it is any interest that can be dignitied with the name of a
national interest important to be maintained, and which is injuriously
assailed.
What was the history of all the warfare between England and the
continental countries which figures so prominently in the diplomatic
and general history of the world of those days, the early years of
this century"? When this was incidentally alluded to, the President
remarked that it did not begin ou the side of France or Napoleon ; it
began with Prussia. It was Prussia, in the first place, in the year 1806,
that put forth a decree closing ports of that country on the North Sea
and the rivers to English shipping, a nation with which they were at
peace. I do not discuss the necessity or the propriety of that at all ;
I should be inclined to conclude at this day that there was no justifica-
tion for it. By way of retaliation, the British Government gave notice
tliat they established a sort of paper blockade from the Elbe to Brest,
where they had no force, with certain restrictions that I need not go
into. That was their response. Then Napoleon came out with his
Berlin Decree, and declared the British Islands to be under blockade
and commerce with them as well.
Mr. Justice Harlan. — Where do you refer to for that?
Mr. Phelps. — I was referring to Woolsey's International Law for
the convenience of the dates, at page 352. There is a very clear state-
ment of the history. Then in 1807 came the Orders in Council from
Great Britain declaring that no vessel should be permitted to sail from
one port to another (I am now quoting from the Order) both of which
ports should belong to, or be in the possession of France or her Allies
or be so far under their control that British vessels might not trade.
A second Order in Council declared that all the ports of France, her
Allies and Colonies, and also States at peace with Great Britain, and
yet excluding her flag, sliould be under the same restriction as to peace
and commerce as if blockaded by British forces. It was an assertion
by those nations of the right to extend the j)rinciple of blockade far
beyond any limit it had ever reached before. Instead of confining it,
as established rules confine it, to those ports which are blockaded by
the presence of an effectual force, they assumed the right to declare a
bl( ckade on paper as against neutrals. What was done against their
adversaries, has nothing to do with these questions; they are simply acts
of war. As against neutrals, they excluded from ports not blockaded
honest, legitimate commerce. Here, again, I shall not occu})y myself
at all with the discussion of the necessity of those things on the part
of any of those countries, — on the part of Prussia, in the first place,
on the part of England in the second place, on the part of France in
the third place, and, finally, of the United States who were drawn into
it by the embargo they established, and the bitterness that came from
that was only quenched in the War of 1812. The principle was, and
that great lawyer. Lord Stowell, affirms it in the clearest manner, that
all those things, extreme as they were, were within the right of the
nation, if the vecessity of the case required it. We have cited some of
these cases. It is always agreeable to refer to the language of so great
a lawyer as Lord Stowell on any subject, and, granting him his
B S, PT XV 14
210 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
premises of fact, the law that he laid down is not to be doubted and
never has been doubted. There is not a case to be found that I know
of, there is not a writer to be found, with whose writings I am familiar,
that ever undertook to say that Lord Stowell was wrong. Many have
been found to say tliat the facts did not give rise to the necessity that
was claimed; many have been found to criticise the action of these
nations, but upon what ground? That they were wrong in their law?
]^o; that they were wrong in their facts. This judgment of Lord
Stowell, was on the condemnation of a vessel ; it was not an abstract
or obiter opinion ; it was when a vessel of a neutral Power was cap-
tured on the high seas by British cruisers for attempting to carry on
a legitimate and proper commerce with ports, where there was no
blockading force, in violation of the paper blockade, that the question
came up for Lord Stowell's decision. He says in the case of the "Suc-
cess " in the 1st Dodsons' Rej)ort at page 133 :
The blockade thus imposed is certainly of a new and extended kind, but has
arisen necessarily ont of the extraordinary de -rees issued by the ruler of France
against the commerce of this country, and subsists, therefore, in the apprehension
of the court at least, in perfect justice.
He did not say it was an act of war; it could not be an act of war;
it was the seizing of a vessel of a nation with whom they were not at
war — a neutral vessel.
In the case of "The Fox", in the 1st Edwards' Eeports, page 314, he
says:
When the state, in consequence of gross outrages upon the laws of nations com-
mitted by its adversary, was compelled by a necessity which it laments, to resort to
measures which it otherwise condemns, it pledged itself to the revocation of those
measures as soon as the necessity ceases?
stating in the clearest manner the principle upon which they rest.
In the case of " The Snipe ", which is also in Edward's Reports, he
says, referring to these measures :
In that character they have been justly, in my apprehension, deemed reconcilable
with those rules of natural justice by which the international communication of
indei)endent states is usually governed.
That Judge had not made the discovery, for which we are indebted
to my learned triend, that justice did not make international law in
new cases between nations, but that you must find the previous sanc-
tion of the established usage of the world before you can execute the
justice that lies plainly in your way. He proceeds upon the ground
that in that absolutely new case, when the idea of blockade rights as
against neutrals was carried far beyond any assertion that ever had
been made before, if the necessity was such that the rules of natural
justice made it right and made it applicable, then, it was within the
principles of that international law, on which alone there could be a
judgment of condemnation against neutral vessels not engaged in car-
rying contraband of war, but simply engaged in legitimate commerce
with ports that w^ere not blockaded.
Now, suppose a set of cases to which the attention of my learned
friends has been invited; and the failure of the attempt ol lawyers of
the first rank from whom everything is to be expected that their side
of the question admits of, to give an intelligent answer to these enquiries
is a stronger argument in favour of the propositions we advanced than
we can make. If they could be answered, surely no men in the world
are better qualified to do it than my three learned friends who have
addressed the Court.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 211
I am sure the Tribunal could not have failed to observe, as we passed
along tlirougli some of tbese historic instances, the various suj)posed
cases that were made. We will go ba(;k to Mr. Blaine's illustration put
forth in the correspondence. Here are the Il^ewfoundland Fisheries
belonging to Great Britain or its province, the source of a valuable
industry, a great means of subsistence to its people, carried on for a
very long time, and i)roteeted by the laws of tliat province. That they
have any property in the lish, which does not attach to the shore, out-
side of the 3 mile line, they do not claim. None of the conditions upon
which we have claimed the property in the seals attach to them.
Now suppose vessels go there, keeping outside the territorial waters,
and proceed to destroy those fish by dynamite or other explosive pro-
cesses b}^ which they can be brought to the surface and availed of
wholesale, and out of which a iirotit can be made, the necessary result
of which is the destruction of tlie fishery, and extermination of the fish.
We put the question: Is Great Britain remediless? Have they to
submit to that destrnction at the instance of a few fishermen from Cape
Cod who can make a profit for a year or two in that way before the last
fish disappears? What does my learned friend say to that? He says
that would be malicious. He ai)i)arently feels that he touches bottom
there. There is an element of malice. Well, let us see; I do not sup-
pose the case where an expedition is fitted out to go there for the mere
purpose of destroying the fishery. I suppose the case where the
Nantucket fishermen can make a satisf\ictory profit out of the business
for a year or two, and that is what they go there for. If, then, malice
is the express intent to work an injury to a person for the sake of
working an injury, it does not apply to that case. These men are there
to nuike money, regardless of tiie destruction they are working.
Now, I agree with my learned friend that it would be malicious in
the true definition of that term; not malicious because it is pure malice,
but malicious because wanton, reckless destruction is always malicious,
and it is not to be redeemed by the fact that a man can make a profit
out of doing it. If I fire my gun out of the window into the street
without taking any particular aim and destroy somebody's life, I am
not to be heard to say, "I did not mean to kill that man; I had no
quarrel with him." " Why then did you fire that gun out of the window ?"
" Because somebody told me he would give me £5 if I would. That is
what 1 did it for. I had no wish to injure anybody. I could make a
profit out of it. " Does that exonerate me from that malice which to a
certain extent must always exist to make a man criminally liable? It
may not be murder, it may be modified to the degree of manslaughter,
but that I should be criminally responsible for the act in some degree
of the law of homicide is plain enough; it is not in the least modified
by the gain.
Now in that case, my learned friends do not undertake to say that
Great Britain has no right, that all she could do would be to go and
invite the United States to enter into a treaty by wliich she would keep
her people at home. They may not be subject to the jurisdiction of the
United States. Tliey may be wanderers of the sea, subject to no par-
ticular jurisdiction, like some of the bands of renegades tliat were broken
up by President Monroe and another President in the cases we have
cited. It is not piracy. As my learned friends well argue, it does not
come within the definition of piracy, to destroy fish by dynamite. Is
there tlien any right of defence or protection, or must tlie Government
sit down and permit the fishery to be destroyed? Apply that to the
business of quarantine. Quarantine laws are in force within the terri-
212 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
torial limits, and territorial limits are usually sutlicieut for the purjiose.
There is usually no necessity to go out on the high sea to intercept a
vessel to enforce quarantine regulations. But suppose it became neces-
sary: suppose a vessel coming from some plague-stricken port, laden
with contagion which would ravage a whole continent, cannot be met
effectually within the three-mile limit, and it is necessary to intercei)t
her outside, is there any right to do it? Great Britain has asserted
that right by statutes that are on her Statute Book yet, and which are
mentioned with api)robation by writers and Judges. Suppose the case
of the cable to which my learned friend's attention was invited. Sup-
pose two nations established a cable and there is a party who, by
oyster-dredging or some industry at the bottoui of the sea, that is well
enough in itself, if it did not interrupt the operations of the cable, is
interrupting its operations and is threatening its destruction, and the
man says, " I am on the high seas; I am fishing. Fishing is a right on
the high seas. If it interrupts your cable, I cannot help that. You
must take care of yourself." Is there any remedy? My learned friend
says, "Yes, you have a treat3^ We have a treaty to prevent that
vei'y thing, showing that my illustration is not very far fetched. We
anticipate that by a treaty". With whom? All the nations of the
earth? No, that is practically impossible; if one nation is left out of
the treaty, that one may go and engage in the verj'^ operations that
endanger this cable. There is no obligation on the part of any nation
to euter into any treaty unless she pleases. Suppose any country is
invited by the United States to join in a convention for the protection
of a cable between Newfoundland and Ireland, which is a Government
work; the nation says, just as some of the countries replied to Mr.
Bayard's invitation to join in a convention for the preservation of the
seals, " There is no objection to it, but it does not interest us. We do
not care to go into it". The only nations that responded to Mr. Bayard
favorably were Kussia, Japan, and Great Britain. All the rest said it
did not matter, and put it aside; was a thing they had no interest in.
Now suppose that nation refuses to enter into a convention, or suppose
what is inevitable, that it is found impossible to extend it to every
sea-going nation on the face of the earth, or suppose in this case, as I
have supposed iu the case of the dynamite, the parties engaged in the
fishing are not under the special control of any nation, or are a parcel
of renegades from various nations. The question is, has the Govern-
ment a right to protect that valuable and important industry, or at
the instance of this gang of adventurers, must it submit to have it
destroyed. My learned friends have no answer to that, except to say,
there is a treaty. Lt does not meet the point. Tlie treaty does not
show that there would be no rights if there were no treaty.
Suppose we have a light house out in the sea, more than three miles,
and somebody engages in an industry, or pursuit that endangers the
lighthouse, or perhaps entirely or largely obscures the light, so that
the vessels of the country that established it are deprived of the benefit
of the light, — what is my learned friend's answer to that? He says
the lighthouse is a part of the territory of the country. But on what
principle is a lighthouse part of the territory of the country 10 miles
out at sea? Upon what principle has a nation a right, if they are cor-
rect iu these theories, to put a light house out there and say, " It is
part of our territory?" Why none whatever. And even granting it
is a part of the territory, suppose you say, " This structure we have
erected at our own instance in a part of the sea which is the highwa;v
of nations and common to all the world is part of our territory" —
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 213
''Very well; we do not interfere witli your territory; we carry on a
legitimate industry" — "But you are obscuring tlie liglit and rendering-
the liglitliouse in a great measure valueless." They reply; "We cannot
help tliat; we are in the exercise of our right." And there is. not one
of these cases tliat my learned friend can answer, because each case, as
it stares you in the face, shows the impossibility of establishing any
princi])le of law that justities a class of outrages of that description;
much less can you cite any case in the history of the world in which
anything of that nature ever was submitted to.
Now I have discussed, as I said in my opening observations this
morning, this proposition of law ou the basis of tlie theory that the
objectionable business or industry was innocent in itself, — was fishing,
was doing anything which in and of itself^ if you could look at it aside
from its consequences, could not be objected to upon moral, legal, or
any grounds; and 1 have tried to show, and the more this proposition
is reflected ui)on, the clearer it becomes to any mind I think that is
capable of clear thought, that even there, where the question is between
the indiv idual and the nation, he must forego the small gain that he
would make by the destruction of an important national interest.
But wliat is this case? It is a case where the pursuit, which is
claimed as of right, exterminates the race of animals, as well as destroys
the industry. So far as it destroys the industry, so far as that conse-
quence alone is concerned, it would come within the proposition 1 liave
been dealing with. It might destroy the industry, but still be in other
respects an innocent pursuit in itself. Then would come the question,
whether the rule I have cited, is the true rule? But this case is noth-
ing of the sort. It is the extermination ofi" the world of a valuable
race of animals, the last of their species; and it is doing that in a man-
ner, in the first phice, that violates all the law that is administered
everywhere for the protection of such animals. In the second place,
it is so inhuman and barbarous that it would be indictable in any coun-
try under the head of cruelty to animals if it brought no extermination.
There are things that the owners of animals may not do. You may
slaughter your domestic animals if you please; that is an incident to
the right of property, and is (me of the uses to which they are put:
You may put them to death because they are no longer serviceable, or
for the purpose of making use of their flesh or their skins; but there
are methods of putting them to death that the law of no civilised
nation will allow. There are ways of disposing of your ox and your
ass that would subject you to indictment, althougli it is your own and
on your own premises, under the law of any country that I know any-
thing about or desire to know anything about. Barbarism and inhu-
manity to the humbler creation of the Almighty is as much prohibited
by the ]nw as the infringement of property rights.
There is a class of people who seem to think, if you may judge by
what they say, that gain is the only foundation of right in regard to
anything which can be called property; that dollars and cents are all
there is of it; that the principal function of men on this earth is to
trade and to vote, and when those are answered, the function of law
is at an end. I do not so regard it. I say that this business, — I assume
now for the purpose of my argument what I expect to demonstrate
from this evidence, — I say that the conduct which is claimed here to be
a part of the freedom of the sea, instead of being something which, if
it had no particular consequence, would be innocent and lawful and
inoffensive as well as profitable — I say that it has a double curse upon
it: first, that it is exterminating from the world the race of animals, in
214 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
which we alone are not concerned; in which all civilization is con-
cerned; in which Great Britain is concerned, in respect of its particular
industries, as much as M^e are; in which France is concerned and other
nations, and in which all civilization, I repeat, is concerned to a greater
or less extent; — I say, in the second place, that if it were not extermi-
nating the race, this conduct offends the moral sense in its manner, is
so barbarous, so inhuman, so shocking — too shocking to be talked
about here or to have the evidence read in its revolting details — and
that by such conduct in such a manner, these people are destroying
this industry of the United States Government, not its only resource
by a great many, but in respect of which, as I reminded you so long
ago that it may well have been forgotten, the law would have been the
same if this poor province of Alaska had been an independent State,
and this fur-sealing industry was every resource it had for the subsist-
ence of the people or for deriving its national expenses. There is not
one law for the large State and another for the small one, unless it is
the law of the strong hand.
That is the question with which this Tribunal is concerned, and which
would have induced me, if I had pursued my own individual judgment,
to have argued this case, so far as I had anything to say about it, in
two hours; because I deny — I respectfully deny — that after this con-
crete case which is to be determined by the Tribunal, is stripped of its
adjuncts, its superfluities, its connections, and its unnecessary analy-
sis,— when it is brought down to its elements, it presents that proposi-
tion and that is enough to determine it. Many others that we have
tried to discuss, with more or less success, may legitimately be pre-
sented.
The title of the United States Government to this territory is not
questioned. The industry which they built up there is not controverted.
Its value and importance are not doubted. That it is the means of such
civilization as is being successfully introduced there in the place of the
savage condition that prevailed is not questioned. That the operations
of these euphemistically termed pelagic sealers are of the character
that I have described and have the consequence that I have described,
will not be doubted, (if it is doubted now), before we have done with
this case; and the question is: Is a Government obliged to sit down
and sufl'er conduct at this expense, and for the benefit of my learned
friend Mr. Robinson's particular clients, or have they the right of pro-
tection in themselves, and for the world, against if? It is unnecessary
to carry this case in my humble judgment a single step beyond that
enquiry. They stand upon the freedom of the sea. Very well. You
have the right to stand upon the freedom of the sea so far as it goes,
and till you get to the limit of it. Is this within the freedom of the
sea! If it is, why then there are no limits. Then the sea becomes not
merely the highway of nations — not merely the element upon which
all nations are equal — it becomes the only element on the face of the
earth in which conduct which is universally repressed by criminal law
can be perpetrated with impunity, as against the nation that is gravely
injured by the consequences of it. Of course, in order for a nation to
assert itself against such conduct, it must be brought into such relation
to it that arises from sustaining a serious injury. In that respect, it
differs from the law of piracy. The title of the United States to inter-
fere rises out of the right and the necessity of self defence.
Now, Sir, a few words more, and but a few words on this point. I
remarked that I accepted my friend's suggestion that the destruction
of the Newfoundland fish by dynamite would be malicious. Extermi-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 215
Dating cruelty, barbarity, constitutes all the malice that is necessary.
There is express malice, and there is implied malice. Like many other
terms it has a broad acceptation, and the legal accei)tation is not
necessarily always the po]jular acceptation. I care not to add this
element of malice — it is not my argument — it is not the ground that I
have put this case upon. I say, if that is malicious, this is; and in the
sense that is, undoubtedly this is. Now take the suggestion made in
the course of this argument by Senator Morgan. Suppose instead of
cruising about the sea generally, giving these animals what they i)lease
to call a "sporting chance" — suppose these sealers were to establish a
cordon of vessels just outside of the 3 mile line, and take every seal
that came out in the very first season, and bring the whole business to
an end: Is that malicious? If this pursuit is not malicious, is that?
Why, if in that case, not in this?
They say: "We have no malice toward the United States people.
W^e are after the skins of the seals, and we are making this profitable";
and they would be making it profitable. There is, no doubt at all that
any fleet that would go and surround these islands so closely, if the
fleet was all owned by one party — I mean by one sealers' association —
as to get all the seals the very first year, old and young, male and
female, it would be profitable. Is that malicious? It is no more mali-
cious than the killing of the seals, as now. It is no more extermination
than it is if they kill them in the way they are doing now. Extermina-
tion is extermination, w^hether you exterminate them all at once, or
whether you exterminate them in a period that runs over three or four
years. We shall see, from the history of all the resorts that these seals
ever had, how long the process of extermination takes. Now, I enquire
is it any less exteimination, because it is spread over three or four
years than if it was spread over three or four months? Is it any more
malicious when it is done for gain in three or four months than when it
is done for gain in three or four years?
When you come to look at the cases that have existed before, we find
they are every one met by the prompt exercise, by the Government
affected, of this right of self defence; and we know perfectly well that
there is not a country in this world, that has any of this marine or
semi-marine property which is the foundation of an industry upon its
shores — except the United States, that would permit foreigners to go
there and participate in it unless under the Eegulations which are
established for it. But is there another country that would permit
this extermination, even though not accompanied by circumstances of
particular inhumanity or barbarity?
We have cited. Sir, quite a number of cases in the argument, which
at this late stage I shall take no time to remark upon — I merely advert
to them in support of a corollary of this general proposition, as I have
confined what I have said on the right of self defence to the high
seas.
We have assembled instances enough, and cases enough, to show
that the right of defence extends likewise to the territory of friendly
nations if it is a necessit3^ Take the case of the "Caroline" in which
Great Britain came to the Niagara River, entered a port of the United
States (a nation with whom they were at peace, and where the law was
in full efl'ect), took a vessel out, burnt it, and ran it over the Falls.
There again the question of the necessity became the debatable ques-
tion. It is not easy for me to see that it was necessary — any more
necessary than it is always necessary for a nation that is at war, or has
a rebellion, to pursue its enemy into foreign ports. But the debate
216 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
that ensued between Mr. Webster and the English Government on that
subject is set forth, and there again the law that the British Govern-
ment invoked was conceded if the act was necessary to their defence in
what I could hardly call war — it was a little insignificant rebellion
that came to nothing — that might almost have been put down by the
police. But whatever you call it, if it was necessary to do this act,
their right to invade even the friendly territory of the United States
was conceded. The same in regard to these Mexican cases — the Amelia
Island case — several of those cases cited in our printed argument —
where the Government of the United States asserted a right to go over
into foreign territory and break up nests of criminals — of marauders —
which the country had failed to do either because it was not strong
enough, or probably because it was not active enough. In the diplo-
matic correspondence that ensued the right to do that was not only
asserted, but -was conceded, and no satisfaction ever was made or
demanded. I might say on that subject of the "Caroline" case before
leaving it, that the only outcome was the indictment of the British cap-
tain. Captain McLeod, who commanded that expedition, went into the
American port and cut out the vessel, and in doing so a person was
killed on American soil. He was arrested and brought to trial in the
United States Circuit Court, and he was acquitted. He was tried before
a very able Judge, and 1 have never heard the propriety of that acquittal
doubted. Of course he had commanded an expedition that had killed
a man, and there was no war between his country and that to which
this person belonged or where the oflence was committed; but he was
acting under the orders of his Government, and the Government was
acting under the justification of what they claimed to be a necessity;
and if that necessity did not exist, that was a matter that must be dis-
cussed between the nations, and for which this officer could not be
made responsible; and therefore his acquittal not only took place, but,
so far as I know, it has always been agreed it was a proper acquittal.
I am well warranted in saying that if the jury had been so far carried
away by popular excitement as to have convicted that man under the
circumstances, and if the learned Court before whom he was arraigned
had approved the conviction and affirmed it, the United States Govern-
ment would have interposed and pardoned him upon the grounds I
have stated.
I do not refer speciallj'^ to what my learned friends have said about
these various cases, because they do not touch the only point upon
which they stand, the exercise of self defence. 1 take leave of the
general proi)ositiou in support of which this evidence is advanced, as
well as for its uses upon other branches and topics of th^ case, by
repeating that it presents to my mind the crucial, the final, the deter-
minative enquiry on this subject of the freedom of the sea: whetlier or
not conduct of that character, and with those consequences, is conduct
to which a nation must submit at the instance of individuals, or against
which it has a right of reasonable protection I The means by which
that protection is to be enforced is a question not addressed to this
Tribunal at all. You are not asked to say by what means any right
which the United States Government have here, shall be enforced. If
regulations, which stand upon no right — which are the result of the
concurrent agreement of the nations — if those are adopted, then, of
course, means must be adopted as a part of the regulations by which
they can be carried into effect; because if the regulations are not a
matter of right, then the enforcement of tliem would not be a matter
of right, except so far as the agreement on which they were founded gave
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 217
the right. In other words, the right to enforce them wouhl stand npon
the agreement, as the agreement would stand upon the award; but if
the judgment of the Tribunal should be that this right of prote(;tiou of
its property, of its interest, of all that it has there, resides in the United
States, my friend lias well said, there is no question about the enforce-
ment of that right. In the first place, because the question is not sub-
mitted to the Tribunal. In the second place, because Great Britain
has agreed in this Treaty to abide by and enforce the award; and it is
not to be assumed for a moment that that country would fail to observe
its agreement in that respect. Furthermore, suppose it did not — if I
am at liberty to state a supposition, the very statement of which might
otherwise be regarded as injurious, the right being declared it is sup-
posed and presumed either that, if it is not acceded to, the nation which
possesses the right knows how (in accordance with the usuage of
nations), to enforce it; and if, in attempting to enforce it should over-
step the limit of necessity and propriety, the country that is injured, on
the other hand, by that excess would know how to obtain redress.
That whole subject about which my learned friends have had so many
alarming prognostications, about the right of search, the right of this,
and the right of that, raises questions, which 1 respectfully say, as far
as regards this claim of right, the Tribunal has nothing at all to do
with.
Now to come. Sir, as fast as I can to the particular facts that belong
to the application of this obvious and universal rule to this case. I
have assumed what I have said to be true. I have asserted those con-
ditions in trying to ascertain what the rule of law was — I have asserted
the conditions that are necessary to make the rule applicable. It is
one thing to establish a rule as an abstract one upon a hyi)othetical
case; it is quite another thing to apply that rule to the particnlar case
by proving that the conditions on which the rule rests are germain and
belong to the case under consideration.
Let me clear away two or three points that are brief. In the first place
this is a national interest— an interest that belongs to the Government
of the United States as a government, and not to its people, except so
far as some of its citizens may enter into a contract with the Govern-
ment to engage in it. The islands were purchased from Kussia. By
an Act of Congress they are set apart for the home of this herd of
seals. They are neither sold as the Government lands are generally
sold, nor are they made open to entry of settlers, as lands have been
largely opened in the United States, under certain conditions. They
are reserved. Acts of Congress have been passed which my friend took
the trouble to go through and to point out to the Tribunal — a series of
Acts of Congress for the protection of the industry; for allowing Super-
intendents and officers appointed by the Government and paid by the
Government to reside there; making the killing of female seals crinu-
nal, or the killing of any seals by fire-arms; restricting the number
which the lessees of the Government might take; empowering the
Secretary of the Treasury from time to time to reduce that number as
far as the interests of the preservation of the herd might require: fix-
ing a Revenue for tlie (Government derived out of the i^roceeds of the
industry, directly or indirectly, which is quite large. The Revenue
derived by the Government under the normal condition of things under
the present leases and present arrangements, is a nnllion and a quarter
dollars. What the lessees make out of it is made by i)rosecuting the
industry as other employes do; and what the i)oor Indians make out
of it, is a better subsistence than they have had bel()re.
218 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
And now it is vSaicT, in the vast variety of things not material that
have been said, that this does not amount to much. It amounts to all
that there is of this case. It is the case which the Treaty submits,
whether it is great or small. It has the importance that I have stated.
It is quite of as much importance to the United States, to which it is a
prominent industry, as it can be to these sealers, to whom it is a very
temporary and speculative industry.
It is said " the United States did not regard the seals particularly in
the purchase of the islands: They had their eye upon sometliing else,
and the seal industry was unimportant". What else did they have
their eyes on? They have owned it now for 26 years.
The capacity of the American people to find out what profit there
is in any i)art of their possessions, and to pursue it, is not a quality
that is open to mucli doubt. What have they made out of Alaska yet?
If I had time to entertain the Tribunal, I should refer to a report of a
Governor who was sent there to govern Alaska, and who came out with
a report (which I have no doubt he was quite at leisure to write, for
he did not have much else to do), in which he undertook to demonstrate
the great resources of Alaska. And if one goes through it, it might be
imagined to have been written as a burlesque — he so comi)letely fails
to make out, that, within sight of anybody that is now born, there is
anything there in particular except the fur-seal industry, that nothing
could add to the clearness of it. It is all there is, except a quarrel
with Great Britain — I hope it may never be a quarrel — but a dispute
with Great Britain about the boundary line.
I want to refer to a little evidence (and I shall not be long upon the
point) to shew that at the time of its purchase, while some rose-colored
views were entertained by Mr. Sumner which have never been realized
about its other resources — the things that may be discovered there — it is
very plain from Mr. Sumner's speech, as well as from other references,
not only that the fur-seal business was all that was then tangible, but
that the purchase of Alaska itself was originally set on foot and brought
about and came to pass for the purpose of realizing the profits of this
business. It is not merely that it was considered and estimated in the
purchase — it was absolutely the foundation of the purchase.
Mr. Sumner, in his speech from which my friends quote, and which is
quite long, cites statistics on page 79 of the 1st volume of the Appendix
to the British Case. They are those I referred to yesterday. He then
says on page 81 :
The seal, amphibious, polygamous, and intelligent as the beaver, has always sup-
plied the largest multitude of furs to the Russian Company —
who, as we see, had the monopoly of it under Russia. It is stated in the
Case what the revenue of that Company was.
I read from Mr. Blaine's letter in page 200 of the first American
Appendix showing what the value of this had been to the Eussiau
American Company. Mr. Blaine says:
Its affairs were kept secret for a long time, but are now accurately known. The
money advanced for the capital stock of the Company at its opening in 1799 amounted
to 1,238,746 roubles.
The gross sales of furs and skins by the Company at Kodiak and Canton from that
date up to 1820 amounted to 20,024,698 roubles. The net prolit was 7,685,000 roubles
for the 21 years — over 620 per cent for the whole period, or nearly 30 per cent per
annum.
Reviewing these facts, l?ancroft, in his History of Alaska, a standard work of
exhaustive research, says: We find this powerful monopolti firmly established in the
favour of the Imperial Government, many nobles of high rank and several members
of the Royal Family being among the stockholders.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 219
He cites those figures for a different purpose — a purpose for which I
referred to some of them yesterday — as shewing the extreme improba-
bility that Eussia would have thrown ojjen to the world that monopoly
without being- invited. That is down to 1820. But 47 years more
elapsed before the country was purchased by the Government of the
United States? From 1821 to 1841 the gross revenue was 01 millions
of roubles, of which the net profits were 8,500,000 roubles. From 1842
to 1802, five years before the cession, the gross revenue was 75,770,000
roubles, and the net profits were 10,210,000 roubles. It thus appears
that the profits were not only enormous, the dividends enormous, but
that it appreciated all the way through down to a time within five years
of the purchase; under the first lease the stockholders made 30 per cent
per annum profit, under the second lease 55 per cent per annum; under
the third lease 45 per cent per annum. I was incorrect in saying it
ajjpreciated all the time.
The President. — Was that gross profit, or net?
Mr. Phelps. — iS"et profit.
The President. — After having paid the Government dues?
Mr. Phelps, — Yes. That is the business we purchased; and as I
said when you contrast it with everything else we have ever done there
since, with all the resources and ingenuity and enterprise of American
people, there is nothing at all,
1 have said (and this is all I desire to call attention to; I cannot
dwell too long upon this), the way that it came to pass that the Ameri-
can Government bought this, was by an enterprise set on foot by certain
Americans to have the Government acquire it for the sake of getting
an interest in this important business. Perhaps, Sir, as the last words
before the adjournment, and as I shall not read much, 1 may read this
from the 1st volume of the Appendix to the British case, page 49.
Shortly afterwards
speaking of a memorial to the President which was referred to the
Secretary of State, by whom it was communicated to M, de Stoeckl,
with remarks on the subject:
Shortly afterwards another iufluence was felt. Mr. Cole, who had been recently
elected to the Senate from California, acting in behalf of certain persons in that
State, sought to obtain from the Russian Government a license or franchise to gather
furs in a portion of its American possessions.
Mr. Cole evidently was not aware that he had taken aU these furs
without any license.
The Charter of the Russian-American Company was about to expire. This Com-
pany had already underlet to the Hudson Bay Company all its franrhise on the
mainland between 54° 40' and Mount-St-PUias; and now it was proposed that an
American Company, holding direct from the Russian Government, should be substi-
tuted for the latter. The mighty Hudson i5ay Company, with its head-quarters iu
London, was to give way to an American Company, with its head quarters in Califor-
nia. Among the letters on this subject addressed to i\Ir. Cole, and now before me,
is one dated at San-Francisco, the 10th April, 1866, in which this scheme is developed
as follows.
There is at the present time a good chance to organize a Fur Trading Company to
trade between ihe United States and the Russian possessions in America, and as the
Charter formerly granted to the Hudson Bay Company has expired this would bo the
opportune moment to start in.
I should think that by a little management this Charter could be obtained from
the Russian Government for ourselves, as I do not think they are very willing to
renew the Charter of the Hudson Bay Company, and I think they would give the
preference to an American Company, especially if the Company should pay to the
Russian Government 5 per cent, on the gross proceeds of their transactions, and also
220 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
aid in civilizingandainelioratiujijtlie condition of the Lidians by employing mission-
aries, if reqiiirod by tlie Jiussian (lovernment. For the laitliful performance of the
above we ask a Charter for the term of twenty-tive years.
Senator Morgan. — What is the date of that?
Mr. PnELPS. — That is dated in ISOO.
The President. — It is from Mr. Sumner's speech I understand.
Mr. Phelps. — It is taken from Mr, Sumner's speech; but the letter
that I referred to was the 10th April, 180G, and is cited by Mr. Sumner.
Then a little farther down there is this :
Another correspondent of Mr. Cole, under date of San Francisco, the 17th Sep-
tember, 186G, wrote as follows:
I have tallied with a man who has been on the coast and in the trade for ten years
past, and he pays it is much more valuable than I have supposed, and I think it
very important to obtain it if possible.
The Russian Minister at Washington, whom Mr. Cole saw repeatedly upon this
subject, was not authorized to act, and the lattcu-, after conference with the Depart-
ment of State, was induced to address Mr. Clay, Minister of the United States at
St.-Petersburgh, who laid the application before the Russian Government. This
was an important step. A letter from Mr. Clay, dated at St-Petersburgh as late as
the 1st February, 1867, makes the following revelation :
"The Russian Government has already ceded away its rights in Russian America
for a term of years, and the Riisso-American Company has also ceded the same to
the Hudson Bay Company. This lease expires in June next, and the President of
the Russo-American Company tells me that they have been in correspondence with
the Hudson Bay Comjiany about a renewal of the lease for another term of twenty-
five or thirty years. Until he receives a definite answer he cannot enter into nego-
tiations with you or your California Company. My opinion is that if he can get off
with the Hudson Bay Company he will do so, when we can make some arrangements
with the Russo-American Company."
Some time had elapsed since the original attempt of Mr. Gwin, also a Senator
from California, and it is probable that the Russian Government had obtained infor-
mation which enabled it to see its way more clearly.
He then i>roceeds to give, following^ on the same page, p. 50, the
history of that. It is not very long and I will read it:
It will be remembered that Prince Gortschakow had ])romised an inquiry, and
it is known that in 1801 Captain-Lieutenant Golowin, of the Russian Navy, made a
detailed Report on these possessions. Mr. Cole had the advantage of his prede-
cessor. There is reason to believe, also, that the administration of the Fur Com-
pany had not been entirely satisfactory, so that there were well-founded hesitations
witii regard to the renewal of its franchise. Meanwhile, in October 1866, M. de
Sto'ckl, who had long been the Russian Minister at Washington, and eujoj^ed in a
high degree the confidence of our Government, returned home on a leave of absence,
promising his best exertions to promote good relations between the two countries.
As is suggested to me, he is the one to whom Mr. Cole first applied.
While he was in St-Petersburgh the ajiplications from the United States were
under consideration; but the Russian Government was disinclined to any miuor
arrangement of the character proposed.
That is to execute a lease to the American parties who wanted it.
Obviously something like a crisis was at hand with regard to these possessions.
The existing government was not adecjuate. The franchises granted there were
about to terminate. Something must be done. As Mr. de Stoeckl was leaving in
February to return to his post, the Archduke Constautine, the brother and chief
adviser of the Emi)eror, handed him a map with the lines in our Treaty marked
upon it, and told him he might treat for this cession. The Minister arrived in
Washington early in March. A negociation was opened at once with our (ilovern-
ment. Final instructions were received by the Atlantic cable from St-Petersburgh
on the 29th March, and at 4 o'clock on the morning of the 30th March this important
Treaty was signed by Mr Seward on the part of the United States, and by M. de
Stoeckl on the part of Russia.
In the Treaty, as you will remember, the United States gave 7,200,000
dollars; and the returns which they have received since that from their
purchase, are very much beyond, as you will see from the statement I
ORAL ARGUMENT OF HON. EDWARD J. PHELPS, 221
made a little while ago, the original purchase price; this means that
the whole idea, and the whole negotiation which subsequently resulted
in the transfer of these islands to the United States, was started in
California by the party of Americans who first set out to get a contract
or charter or lease or something of that kind from the Kussian Com-
l)any to enable tliem to take the profits of this industry; and pressing
that home to the Russian Company, it finally ripened into a proi)ositiou
to cede the whole country to the United States, which was carried into
eiiect. Therefore the fur-seal industry was not only all that gave fcliat
province any value then, or has given it any value since — it was the
main inducement and the real origin of the entire purchase.
[The Tribunal here adjcuirned for a short time.]
Mr. Phelps. — I cannot help saying, sir, although it does no good to
say it that I know of, that 1 feel very sensibly how wearisome and
fatiguing the prolongation of this discussion must be to gentlemen who
have been so long absorbed with it, who have listened to so much, and
who may well be supposed to be as tired of this business as I am, and
it is imi)ossible that they could be more so. Still, there are facts in
this case that I am not at liberty to pass over; I should be glad to
consult the feelings of the Tribunal, and I should be glad to consult
my own: but I must deal with them to some extent, because they have
been the subject of several weeks animadversion on the other side, and
we do not feel that we are justified in leaving them without observation
and reply.
My learned friend desires me to say, sir, or suggested to me that I
should say that, in the figures which I addressed to you this morning
just before the adjournment showing the value of this business to the
Russian American Company, the fur business there included all the
fur-bearing animals as well as fur-seals. That is quite true and I
cheerfully make the qualification, but it should be added that there
was certainly of late years very little of the furbearing industry except
the fur-seal, though at a very early period there were a good many
other animals.
iSTow, I want very briefly, having pointed out what this industry is
and who it belongs to, on the part of the United States Government
to notice who are the parties with whom we are contending"? Who
are the pelagic sealers? Like so many other questions in this case, it
is easy to say that it is of no consequence, and i:)erhaj)S it is a minor
point, but it has been of sufficient importance to be j)resented with
considerable force and effect by my learned friend, Mr. Robinson.
We call this an International Arbitration; and it is an International
Arbitration so far as the parties to it are concerned'? What is it in its
object and its effect? Are we contending with Great Britain? Not at
all. We should have settled this in the very outset with Great Britain;
and the business interests of Great Britain concerned in the x)reserva-
tion of this seal herd. There are 10,000 people there tliat are engaged
in the manufacture of these furs. It is the head quarters for the sale
of the furs all over the world; the commerce of the country is largely
engaged in it. You have heard the remonstrances against the destruc-
tion of the seal addressed by leading men engaged in this business
before this controversy arose — before the United States approached
it. Then what is our dispute with Great Britain? When you come to
Canada, what quarrel have we with Canada, that great and abounding
Province, — perhaps the largest territory in the world under one (Jov-
ernment, if you take its dimensions? What have we in dis])ute really
with our neighbour, — the Province of Canada, with whom it is not only
222 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
our interest to be at peace, but the interest of mankind that we should
be at peace? VVliy, it is one place; one little town, Victoria, that is
concerned in tliis business. I do not see that the rest of Canada has
any interest in it. Here is a little knot of people in Victoria who have
gone into tliis business, — a casual, a speculative, a tem])orary business,
in which the investment is small, the business is small, the profits are
precarious, sometimes large but still precarious, as all such pursuits
must be, and which is inevitably, if we are right about its being destruc-
tive, temporary.
In the American case, page 284, there are a few words I wish to
read because the authority for them is given there:
Cousal Myers, in a report to the State Department, gives the occupation of
seventy-one owners of sealing vessels hailing from the port of Victoria. Of these
only fourteen may be said to be dependent on sealing, and twelve others who are
employed in maritime enterprises. The remainder are composed of individuals
engaged in various pursuits. Among the list may be found several public officials,
seven grocers, a druggist, an auctioneer, a farmer, three saloon keepers, a plasterer,
an insurance agent, two iron founders, three real estate agents, a carriage manufac-
turer, a tanner, two women, a machinist, and others of different pursuits.
That is the statement, and I refer the Tribunal to peruse, what I
cannot take time to peruse, the authority itself for this statement.
Lord Hannen. — I suppose those are the shareholders of the ships.
That is just the same thing which would happen in England.
Mr. Phelps. — I was not aware that it was incor]iorated.
Lord Hannen. — No, not at all, but they are the shareholders in the
ships.
Mr. Phelps. — Well, call them shareholders or what you please.
They are the owners of this investment. They are the persons who
either under the name of shareholders or something else are prose-
cuting what my learned friends call this industry. I say it is per-
fectly speculative. It is not a legitimate industry — it is speculative,
in which various persons take a hand as they would buy stock in a
railroad or a steamboat company, or buy a lottery ticket. In the liglit
of what I said this morning, of the principles that cover this subject,
I ask attention to the ])ersons that are engaged in it.
Then the amount of the investment is gone into there. That is
shown in the same book. It is said in the Case — and nothing is said
for which authority is not cited:
It is very questionable, however, whether there is any real investment in Canada
in pelagic sealing. The vessels are all common vessels, the guns common guns, and
the boats common boats, which can all be used in some other industry, excepting,
perhaps, the old and unseaworthy vessels.
But admitting the validity of the investment, it can be questioned whether those
embarking therein as a rule pay the expenses incurred out of the sum realized on
the catch. An examination of the table of sealing vessels and their respective
catches, as given by the Canadian Fishery Reports, shows that the number of seals
taken by a vessel varies to a great extent. Thus in 1889 several vessels took less
than three hundred seals each; one schooner, with a crew of twenty-nine men, took
but one hundred and sixty -four seals, while another, with a crew of twenty-two
men, took over three thousand. In 1890 the same variation may be seen. In 1889
the average selling price of skins in Victoria was $7.65. On the catch of one hun-
dred and sixty-four seals, therefore, the total received would be $1,254.60, of which
at least $400 would liave to be paid to the hunters.
This is pursued through several pages further and I do not take up
your time to read it. I just ask attention to it.
Now, another thing appears and I cannot pass it without referring
to it; and that is the extent, which would have come l)efore you on the
claim of damages that was originally submitted in the British Case if
it was not withdrawn, to which these vessels are owned in whole and
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 223
in part, by tlie persons I have stated, — and the extent to which they
are owned by Americans, who coukl not pursue this business lawfully,
so far as Behriug Sea is concerned, at any rate, without being crimi-
nally liable and having, therefore, to get vessels registered in the
names of British subjects so that they can engage in this business.
This evidence was brought together in the United States Counter
Case in answer to the claim for damages. That was gone into, in order
to show that of the vessels for which the British Government demanded
comx^ensation, a considerable share were owned by Americans and the
facts that are brought out in that I will briefly refer to.
The vessels that I refer to are the "Hornton", the "Grace", the
"Anna Beck", and the "Dolphin", which are steam schooners; the
"Sayward",the "Caroline", the "Path Finder", the "Alfred Adams",
the "Black Diamond", and the "Lily". Those were in whole or in
part — you will find this referred to at page 130 of the Counter Case of
the United States — tlie property of citizens of the United States.
The steam schooners Thornion, Grace, Anna Beck, and Dolphin and oue-lialf of the
schooner Sayivard were owned by one Joseph Boscowitz, a citizen of the United
States; that James Douglas Warren, in whose name the claim is made as to the
steam schooner Thornton, had no real interest therein, but that the same was
mortgaged to her full value to Joseph Boscowitz, who was in fact the real owner :
and that Thomas H. Cooper, in whose name the claims growing out of the seizures
of the schooner TF.-P. Sayward and of the steam schooners Grace, Dolphin, and Anna
Beck are made, had in fact no interest therein and has in no respect been demnilied
or sustained loss by the seizures thereof, either as owner of these schooners and
steam schooners, their outfits, or their catches, the same being mortgaged to their
full value to Joseph Boscowitz, above referred to, and having been conveyed to
Thomas H. Cooper, without consideration, for the sole purpose of giving them a
registry as British vessels.
It is also insisted by the United States that the schooners Caroline and Pathfinder
were in fact at the time of the time of their seizure owned by one A. -J. Bechtel,
then a citizen of the United States, and that William Munsie and Frederick Carne
in whose names the claims for damages growing out of the seizures of these schooners
are made, had in fact no interest in the schooners or their outfits and catches; that
the schooners Alfred Adams, Black Diamond, and Lily, for the seizures of which
claims are made in the schedule, wore in fact, at the time they were seized, owned
by one A. Frank, who was tlien a citizen of the United States; that Gutman, in
whose name the schooner ''Alfred Adams" was registered, was not the actual owner
of the schooner, her outfit —
The President. — You argue that only as a moral consideration. It
does not change the legal point of view.
Mr. Phelps. — It does not change the legal point of view as to the
general propositions that have been advanced, but it does, I respect-
fully submit, enter into the general character of this act, when it is
weighed, as a part of the freedom of the sea.
Senator Morgan. — Suppose the Government of Great Britain ex-
pressly authorized these things to be done by American citizens under
their law, would that be a moral consideration or legal consideration.
The President. — Here is no question of special authorization. It
is the natural oi)eration of laws.
Senator Morgan. — It might weU be a case of special consideration,
or special authorization, as to be justified under the general law or
general relations between the two Governments.
Mr. Phelps. — These only relate to the seized vessels. We have
had no opportunity or occasion to enter into the details of those not
seized. The evidence in support of what I have read, which I do not
take time to refer to, is cited at the pages I have read, and is all con-
tained in the Appendix, and it completely supports what is said about
those vessels. It has been asked by my learned friend why the United
States have not prohibited the taking of these female seals or sealing
224 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
at the improper time of tlie year in the North Pacific as well as in
Bolniiio- Sea. The roasou is because it is impossible to go into a
j)arliamentary, or (Congressional Assembly and pro^^ose the ])assage of
a law that should exclude American citizens from the profits of pelagic
sealing so long as it was thrown open to the rest of the world. Thj^t
is the reason. ISio Government could propose such a measure as that '
with the expectation that it would be carried. Who would vote for
that "? If by voting for it you can preserve the seal from extermination
it is worth while, but to say that the seal shall be exterminated and
nobody shall participate in the profit except a foreigner would be futile.
The President. — Is this a criticism in Parliamentary Government?
Mr. Phelps. — Well it is better than some criticisms; it is true. It
would be idle to propose it and it would be equally unjust. But Con-
gress, as soon as there was a prosi)ect of the preservation of the seal
herd, passed a statute in 1892, an Act intitled an Act to extend to the
North Pacific Ocean the provisions of the Statute for the protection of
the fur seals and other fur-bearing animals.
Senator MorGtAN. — I hope you will put it on record. I have not a
copy of that.
Mr. Phelps. — It is very recent — ;iust as we were coming here it was
passed through Congress. And now in order to seal in the North
Pacific as well as in the Behring Sea it will be necessary for that class
of American citizens who want to go into that business to get their
vessels registered in Canada, or sail under another flag.
Senator Morgan. — I suppose it would be as well to say that Con-
gress was not aware until a recent period that citizens of the United
States were obstructing the policy of their own country bj putting
their money under the British flag in order to seal on this herd.
Mr. Phelps. — The investigations that have been made in this case.
Sir, have thrown more light upon every branch and portion of this
subject than ever had been known before.
Now what is the consequence of all this? I have done with the
parties to it. We say it is extermination. What do they say on the
other side? What is the ground they take in respect to this great
underlying fact that what they call pelagic sealing is necessarily and
at no distant date a complete extermination.
That is our assertion.
What is theirs? No Member of this Tribunal can undertake to state ;
it is not denied, but it is not conceded. It is talked about. They say
there are other reasons why the herd is being exterminated — that it is
the fault of the management of the Islands, all of which 1 shall come
to in due time if I go on with the discussion of this case. Aside from
any conduct good or bad, anything that may be expected from an
intelligent nation in the struggle to preserve this industry that belongs
to it — aside from all that, what do they say is the consequence of
pelagic sealing in and of itself?
I repeat, no Member of this Tribunal can undertake to formulate the
proposition of the other side. They admit killing in the water to be
indiscriminate, and it must be — for nobody killing seals in the sea can
undertake to discriminate about sex or age. Unless they are very
young animals and very small there can be no discrimination. Well,
then, what follows? If this trade were in its normal condition, half of
the seals to be found in the sea would be females — more than half prob-
ably, because, while everybody concedes that of those born into tlie
world half are male and half are female, it is not the normal condition
of any herd of polygamous animals that as many males survive as
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 225
females. If tliey did, the coustaiit war would prevent the increase of
the herd at all, aud therefore, if it were possible to take the ceusus of
this herd as it was when Eussia discovered the Pribilof Islands where
from the time ot the creation there had been no human interference
with sex, it would not have been found there were as many males as
females. Suppose there were in the sea as many females as males, so
that, indiscriminately shootinj>-, 50 i3er cent of all that were killed
were females, I should like to know, in the light of common sense and
common experience and the knowledge that is derived from the prop-
agation of all animals of this class, what the result of that would be.
It is a mere question of speed. In the business of extermination, the
fewer females they kill, the longer tliey retard the result, but that it
comes is just as certain from a slaughter of half of the females, as it
would if they killed a greater number. But we do not stop there.
We do not concede that to be the case. We say that the evidence in
this case completely demonstrates that the proportion of all the seals
that are taken in pelagic sealing from one year to another is at least
85 per cent. It is taken at 75 per cent as a minimum, and it is stated
at 95 per cent and even higher than that in the specific evidence I will
call attention to, because this is a fact so important that it needs to be
exactly understood. The evidence that converges from various differ-
ent points, that are independent of each other, completely establishes
that of all this pelagic sealing, at least 65 i)er cent are females.
In the first place I want to call attention to what the American
Commissioners say. I have only one word to say about that report,
and any one who has read it through will not require that word to be
said, because it will have occurred to him. It is the work of a couple
of men whose authority aud reputation as naturalists is not questioned.
We have no persons in America more competent to speak on this subject,
if they speak honestly, than they. A ijerusal of the report will show
whether it is or is not a partizan document, on one side of the case,
made for a purpose, or whether it is or is not a perfectly fair, candid,
truthful, and scientific treatment of the subject. It would not make it
so if it were not so, for me to assert that it was. It does not deprive
it of that quality to assert that it is not. I respectfully commend that
report, every word of it, to the perusal of the Tribunal, if it has not
already engaged their careful perusal, in view of the question whether
it is to be taken as fair and just, and I leave it without any eulogy or
observations of my own to that candid scrutiny. They give a table
which contains the approximate result of pelagic sealing and the note
states where they get their information from, which is the best they
could get. Then they say :
It cannot be denied that in pelagic sealing there can be no selective killing, as
far as individual seals are concerned, and only in a limited degree by restricting it
as to place and time. It necessarily follows that female seals junst be killed and
seals whose skins owing to age and condition are much less desirable. As a matter
of fact, there is sufficient evidence to convince us that by far the greater part of
the seals taken at sea are females; indeed, we have yet to meet with any evidence
to the contrary. The statements of those who have had occasion to examine the
catch of pelagic sealers might be quoted to almost any extent to the oftect that at
least eighty per cent of the seals thus taken are females. On one occasion we
.examined a pile of skins picked out at random, and which we have every reason to
believe was a part of a pelagic catch, and found them nearly all females. When the
sealers themselves are not influenced by the feeling that they are testifying against
.their own interests they give similar testimony. The master of the sealing schooner
".J. G. Swan" declared that in the catch of 1890, when he secured several hundred
seals, the proportion of females to males was about four to one, aud on one occasion
iu a lot of sixty seals, as a matter of curiosity ho couiitecl the uuiiibor of females
with young, tiudiug forty-seveu.
^ S, PT XV— 15
226 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
They pursue that subject, aud I do not read by any means all they
say. 'How far that is undertaken to be contradicted on the specific
point what the proportion of the female seals killed is, by the British
Commissioners, I refer you to their Eeport to ascertain, in order to
see what they say on that subject, and to see which of these Eeports
is sustained and confirmed by the evidence in the Case.
(Mr. Phelps here reviewed all the evidence in the case on both sides
bearing upon the question of the slaughter of pregnant females on
their way to the islands.
On the first point he claimed that the evidence from all sources and
from many independent sources proved that of the seals killed on the
way to the islands from 85 to 90 i^er cent were females, a large propor-
tion of which were pregnant and about to be delivered immediately on
their arrival. In support of this he considered —
{a) The common understanding of naturalists and all concerned in
or familiar with the seal life, or who were led to investigate it before
this controversy arose in 1880, and referred to a letter to the British
Government written by Lamx)son & Co., the leading house in the fur
trade in London.
A despatch of Admiral Hotham of the British Navy to his Govern-
ment when commanding the Pacific Squadron.
Eeports of the British Columbia Inspector of Fisheries in 1886 and
1888.
Another letter from Messrs. Lampson to the British Government in
1888.
Mr. Bayard's letter to the American minister in 1888, laid before the
British Government, going fully into the facts and citing evidence.
A Eeview of the Fur-Seal Fisheries of the World, by Mr. Clark.
A memorandum from the Eussian minister to the British Govern-
ment in 1888.
A report of the Committee on Fisheries to the United States House
of Eepresentatives after an exhaustive investigation, in which a great
amount of evidence was taken.
A report of the Secretary of the Treasury of the United States in
1889 made to Congress.
A letter from Sir George Baden-Powell, afterwards one of the Brit-
ish Commissioners, Avritten in 1889, published in the London Times.
A letter from Prof F. Damon, the eminent English naturalist, i)u1b-
lished in the London Times of December 3, 1889.
And other documents and i)ublications to the same effect.
All which state the facts in regard to this question as they are
claimed by the United States, and enlarge upon their importance and
inevitable consequences.
And Mr. Phelps pointed out that until the creation of this arbitra-
tion these facts had never been questioned or denied.
(&) The testimony of British, French, and American dealers in and
manufacturers of fur-seal skins. Of these there were examined on
the part of the United States, thirty-one. Eight British, doing busi-
ness in London ; two French, trading in Paris ; nineteen American, resi-
dent in New York, in Albany, and in San Francisco. Among these
are the oldest and largest dealers in the world, and through their hands
pass all the seal skins taken from the Alaskan herd, and from that on
the Commander Islands. In the trade these skins are divided into
three classes: "Alaskan," embracing those taken on the Pribyloff
Islands; " Eussian," being those taken on the Commander Islands, and
" Northwest," which are tliose taken in the sea by what is known as^
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 227
"pelagic sealing." Tliey uniformly testify tli at the male and female
skins are easily distinguisliable; that the "Northwest" skins are in
large proportion females, and command consequently a lower price.
And the diflerent witnesses state this proportion all the way from sev-
enty-live per cent, >a hich is the lowest, to ninety i)er cent. Some of
them without giving a percentage in figures, say " mostly " or "mainly "
or "almost exclusively" females.
Several of the London witnesses have been reexamined on the part
of (heat Britain, but do not modify their original statement on this
l)oint.
Nor is any other dealer or manufacturer of seal skins produced by
Great Britain to testify to the contrary.
(c) The evidence derived from an examination of all the sealing ves-
sels that have been seized, or were otherwise in a situation to have
their cargoes examined, after being engaged in pelagic seaUng. This
evidence relates to the contents of twenty different vessels examined
at different times and places, and a large number of skins taken from
other seized sealers, not named, but examined at the Commander
Islands by the Eussiau authorities. And the average result of all
these examinations was that the slain were eighty-eight per cent
females.
{(l) The testimony of hunters and seamen actually engaged in pelagic
sealing.
Of these witnesses there are one hundred and thirty-six who testify
on behalf of the United States, made up as follows:
Of masters and mates of vessels, twenty-nine — five British and
twenty-four American ; officers of the United States Navy or Kevenue
Marine, four; officers resident on the islands, two; seamen and hunters
able to write, forty-eight — nine British and thirty-nine American; sea-
men and hunters illiterate, five British and nine American; Indian
hunters, thirty-one. These witnesses state the proportion of females
taken in pelagic sealing at various figures from seventy-five to ninety-
five per cent. Some of them who give no figures say "nearly all,"
"mostly," "a large proportion," "the great majority," "principally"
females, or use other words of similar import.
The average of the proportion given by all the evidence of the
United States is: Of the British fur dealers, eighty-two per cent; of
the American, eighty-five and a half per cent; of the contents of
vessels examined, eighty-eight per cent; of the sealers and officials,
eighty- three per cent. All the American evidence on this point was
printed as a part of the original Case of the United States, and was
therefore fully open to reply by British evidence.
The only testimony offered on the subject on the part of Great
Britain was the testimony of men engaged in the business of pelagic
sealing, brought forward in the Counter Case, so that no opportunity
to reply to it was afforded to the United States.
The witnesses thus produced number one hundred and twenty-two.
Of these fourteen fully supported the contention of the United States,
using such expressions as these to indicate the proportion of females in
the pelagic catch : "Four-fifths," "two-thirds," "three-fifths," "sixty-
five per cent," "eighty per cent," "chietly female." One Matness, Capt.
Lavender, states it thus : " Over one-third females ; nearest the islands,
mostly females."
Twenty-two other witnesses, including five captains of Canadian ves-
sels, state the percentage of females as "more than half," without say-
ing how much more. They were not pressed to be more specific by the
228 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
agents of Great Britain, though the examination was ex parte, and it is
therefore fair to presume that if pressed farther the replies would not
have been favorable to that side. Three Indians also testify in the
same terras, "more than half," and were not enquired of more specific-
ally. Forty-five other witnesses in stating the proportion say : "Half,"
"about half," "a little more than half."
The remaining thirty-eight witnesses testify that the large propor-
tion, or the larger proportion, of the pelagic catch consists ot niale seals.)
[The Tribunal thereuiwn adjourned till Thursday the Gth July lSt)o
at 11.30 a. ni.j
FIFTY-FIRST DAY, JULY 6^", 1893.
Mr. Phelps. — Near the close of the argument yesterday, Mr. Presi-
dent, you put to me a question in respect to the point I was discussing
in bringing forward the evidence to show the very great percentage of
females that were embraced in the pelagic catch, — whether or not that
might be attributed to the fact that there were so few, comparatively,
of young males; in other words, whether this great preponderance was
a preponderance of the females or a scarcity of the males,
I propose to answer that question this morning very briefly, and I
think very efiectively by referring to certain testimony in the case,
which shows that this great preponderance of females in the pelagic
catch was just as noticeable years ago when pelagic sealing first began
as it is at the present day after the effects of it, and the effects of any-
thing else in the management of the Islands, have transpired. In the
year of 1SG8, when pelagic giealing first began, Mr. Fraser, of the firm
of Lampson and Company in London, in his deposition which is in the
2nd Volume of the United States Appendix, page 557, from which this
is an extract, says:
This fact, tliat the north west skins are so largely the skins of females, is further
evidenced by the fact that in many of the early sales of such skins they are classi-
fied in Deponent's books as the skins of females.
It was SO noticeable in 1868 and afterwards, according to his deposi-
tion, that the whole catch was put down in the book as females. Mr.
Mclntyre, the special Agent of the United States, whose evidence is
prominently in the case on many points in his Official Report to the
Government in 18G9 and which will be found in the United States
Counter Case, page 84, uses this language in support of this supposi-
tion—
That nearly all the 5,000 seals annually caught on the British Columbian coast
are pregnant females taken in the waters about the 1st of June, while apparently
proceeding northward to the Pribilof Group.
Then Captain Bryant, a witness on whose testimony they rely on the
other side on several points, as we rely upon it, is also quoted in the
United States Counter Case at page 84, when writing of the year 1870
says ;
Formerly in March and April the natives of Puget Sound took large numbers of
pregnant females.
In August 1886, flear-Admiral Culme Seymour of the British iSJ^avy,
addressing the Admiralty — tliis will be found in the Appendix to Great
Britain's Case, vol. 3, United States, No. 2, 1800, page 1 — says :
The British Colutuhian seal schooners seized [by] United States Revenue cruizer
Corwin, Behriug Straits, seaward 70 miles from oli" the land [?in the execution of]
killing female seals, and using tire-arms to do it, which they have done for thret3
years without interference, although in company with Corwiu.
229
230 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
The same year Mr. Mowat, the Inspector of the Fisheries of Canada,
British Columbia — and this is taken from the 3rd volume of the Appen-
dix to the British Case, page 173, — reports:
There were killed this year so far from 40,000 to 50,000 fur-seals which have been
tivken by schooners from Sau Francisco and Victoria. The greater number were
killed in Behring yea, and were nearly all cows or female seals.
In 1892, Captain Shepard of the United States Revenue Marine —
and this is taken from the 2nd volume of tlie United States Appendix,
page 180 — says in liis depositions :
I examined skins from the sealing vessels seized in 1887 and 1889, over 12,000 skins,
and of these at least two thirds or three-fourths were the skins of females.
This is selected evidence out of much more to the same efi'ect. It
comes from men of the highest standing and position, in the majority of
cases British, and in tlie majority of cases official; and if this is true, it
becomes apparent tliat the proportion of females taken in the pelagic
catch in these years before any of the causes that are suggested by my
learned friends for the diminution in the number of males had at all
taken effect. These observations are in reply to your very pertinent
and proper question which I was very glad to have put. They form
my reply, and when I come to deal with that i)art of the case, we shall
utterly and completely refute upon the evidence in the Case the sug-
gestion that any such consequence came from any mismanagement of
the Islands. We shall show to begin with that it depends on nothing
that is reliable, and shall show, in the next place that it is over-whelm-
ingly contradicted by the evidence.
But still dealing for a moment longer with the President's enquiry,
the pelagic sealing near the Eussian Islands is a new business. The
Islands never have been harrassed by pelagic sealing before. How
new it is will be ai^parent at a future stage of this case, when we come
to consider how much the Russians have made out of the zone they
have exacted from Great Britain where the seals are taken now. I
only say now that this was sealing where no pretence had ever arisen
of a scarcity of males, or of any cause which could produce a scarcity
of males, and yet, on these vessels, the average of females taken in
the pelagic catch by these schooners comes fully up to this.
The President. — Is there not an explanation to be made as to sea-
sons and places of the catches in connexion with the sexes?
Mr. Phelps. — No, I shall show you, when we come to Regulations,
where the seals are taken.
The President. — But we are told that the females went in a herd
together separate from the bulls and even from the young ones, and
passed through certain places at certain seasons, and consequently
were not at other i^laces in the same seasons or not at those places at
other seasons.
Mr. Phelps. — For this reason, if we confined our evidence to par-
ticular times or particular ships, it would be open to the inference that
possibly those ships were to some extent exceptional. Our evidence
goes to the entire pelagic sealing — all that takes place at any period
when the weather allows, and goes to show that the percentage of female
seals principally pregnant, while the herd are on their way to the Island,
is the same percentage of nursing females after they get to Behring Sea.
The evidence covers the whole business, every month in the year in
which it takes place; it covers all vessels engaged iii it, as far as we
can reach them, and all i)laces in which seals are taken in the sea in the
whole year.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 231
I cannot stop to ciilicise the British evidence particulary, or to go
through the evidence of each of these witnesses to show the explana-
tion that might be found in the testimony consistent witli truth. They
are sealers, of course, swearing on behalf of their own craft. Their
testimony is necessarily ex parie^ as all the evidence is. It is taken in
such a way that Ave cannot reply to it, or explain it in any way. But
let it stand without any criticism at all as the testimony of 38 hunters
and sealers who come here and tell you the greater iiroi)ortion of pelagic
sealing is males, if tluit is the real purport of their evidence, — it will be
seen in many cases they are referring to particular voyages and par-
ticular ships, — these 38 men constitute all the evidence there is in this
case, giving them their utmost effect, as against the mass of evidence
from all sources that we have brought to bear, from these numerous
British witnesses Avho swear the other way, the British subjects
examined by ns who swear the other way, and the array of officers,
officials, hunters and seamen, four times as many, in addition to the con-
clusive evidence of the furriers, and the equally conclusive evidence
afforded by the vessels that were searched.
Here is a question of fact that must be decided upon the evidence.
There is no other way to decide it. Members of the Tribunal know
nothing about it except what they derive from the evidence. I have
fairly laid before you, for I have had my own calculations carefully
revised, and 1 speak with conlidence about their accuracy, the result
of the evidence on this point. To lind against the contention of the
United States, you must take this scattered array of witnesses I have
alhuled to, and which is open to all sorts of criticism, if I had time to
make it, as showing to Avhat period and occasion their evidence alludes,
and balance that against the whole mass of the testimony.
One remark more. The least reflection will show that our calculation
must be true. They are killing seals at sea, where they cannot dis-
criminate and do not attempt to. In the normal condition of the herd
there would be at least as many females as males, as I remarked yester-
day, probably more. Ever since 1847, when the system of discriminat-
ing killing was introduced by liussia on these islands, they have been
making this considerable draft of young males on the islands. What
must then be the greater proportion of seals in the sea in these later
years after all that period. We have some tables that, in another con-
nection, where they more properly belong, I shall lay before you, in
which we have made the general ol)servation that I have just made the
basis of an actual calculation. I dismiss that subject for the present.
Now to come to another point which I propose to treat in the same
way and to get over as rapidly as possible. 1 have spoken of the pro-
j)ortion of females. Now what proportion of the females in the Spring
catch, in the Pacific Ocean catch — not now referring to Behring Sea —
what proportion of them are actually pregnant when they are taken.
This is not a very important question for this reason. The destruc-
tion of a female affects the herd not so much by the young she is about
to produce that year — that can only be one — it is the future production
of the animal going on in a geometrical progression that is so destruc-
tive. It is of no consequence to say that the female that was killed this
year was not pregnant. What if she was not*? Is she not going to be
pregnant in all the successive years of her available life hereafter.
Mr. Justice Haelan. — And that is increased if the pup that is killed
is a female also.
Mr. Phelps. — Yes, I have made that the subject of calculation. I
have said that it is a question of geometrical progression; if a female
232 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
is killed wlio would liave had 8 or 10 pups, or wliatever the number may
be, according to lier age, half of those would be females, and of that
half that are females the same ratio of progression would go on if
they survived to become productive tliemselves. As 1 suggest, it is a
great deal worse for the herd, not speaking of humanity, to kill a young
female that is not pregnant than it is to kill an old female that is actu-
ally pregnant. They destroy more young ones in one case than in the
other. It is only the inhumanity that distinguishes it. They may kill
a pregnant female that never would have another pup, or more than
one or two, or they may kill a young female with her whole life before
her, that would have 10, 12, or 14. But still this point is made, and I
do not mean to pass over any issue of fact that has been made, because
one thing I claim to be perfectly clear, whatever the decision of the
Tribunal jnay be in respect of this case in any of its points or in any
of its results, that there is not an allegation of fact which the Govern-
ment of the United States have put forward in their case — not one —
that is not perfectly demonstrated to be true by the evidence.
Now, on the subject of pregnant females, it is conceded that the period
of gestation is 11 to 12 months, undoubtedly 12 lunar months; because
that is the analogy with other such animals. The witnesses speak
of it as being 11 to 12 months; and I sui)pose that it is; and also that
the young are all born in June. The testimony agrees about that with
a very few exceptions, — some witnesses say in the very early July ; they
are born at the latest in June and the early July. There is no proof
of any young coming into the world on these Islands, and certainly not
anywhere else later than that. I am reminded that is the British Com-
missioners' figure, — from the 15th of June to the 15th of July, but, really,
there is no divergence of testimony on that subject.
Then, all the pregnant females that are in the herd are necessarily
on their way, through the sea; and they are exposed, how much
exposed we shall point out. Of course, without any evidence you
would see that there must be a large number pregnant. Of course also,
the projier proportion of the females who are 2 years of age only, or-
yearlings, and are not pregnant, as they do not produce young until the
third year, — in the loose statements that some witnesses have made
about barren females, are included; but the evidence on this subj(K;t is
this; and from general considerations we show, before you look art the
evidence, what the evidence must be if it is true. The LTnited States,
have examined Revenue OtHcers, sea captains and fur-dealers, and I:
mean by that fur-dealers who are there and know the facts i^ersonally..
This does not come from the examination of the London fnr-dealers,,
but from fur dealers on the Pacific Coast who know the business..
Aside from that, we have examined 7 Captains, Captain Cantwell,,
Captain Shephard, Captain Scammon, Captain Douglass, Captain!
Hays, Liebs, the fur-dealer, and a Missionary of the name of Duncan..
These witnesses say "75 percent;" " 95 jier cent ; " "a ma;jorityof all;"'
"nearly all of catch;" 95 per cent of all;" "nearly all of catch;"
"nearly all of catch;" are pregnant females. We have examined of
Sealing Captains, Mates and Owners, following the same qualifijcation,
and putting those by themselves who can write as somewhat superior
to the common men, 25; 4 of these are British subjects and 21 Amer-
ican. The testimony of these 25 men is this; "the greater number;"
"90 percent:" "99 percent;" "75 per cent of all;" "the majority;"
"most;" "all;" "85 per cent;" "nearl vail of catch;" "75 to 80 of all:"
"all of catch;" "four-fifths of the cows;" "nearly all;" "mostly all,"—
a repetition of those words or of exactly the same significance, stating
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 233
it from the lowest "75" np to several witnesses wlio say "all," wliicli
is probably ratlier a strong, tliougli perbaj)s natural statement of wit-
nesses who do not atteni]>t to be particularly critical.
Then we have examined hunters and seamen, not officers of vessels,
t)2:21 of them are British subjects, and 41 American subjects, and the
languageof those witnesses is just the same. It would be a repetition for
me to read down these two or three columns. The lowest that is stated,
I believe — I think some few of these witnesses say — is 60 per cent.
They are very few. Most of them use these expressions that I have
read: "IMost"; "a large majoiity": "mostly all"; "two-thirds";
•'nearly all"; "almost exclusively"; "most of the females"; "the
majority " ; and to the same effect. I think there is not a witness, except
two or three that speak of 75 per cent, who ftills short of that. That,
you see, shows how it came to pass that Mr. Lampson in keeping his
books classitled these as female skins, because the exceptions were too
small to take account of. Then we have examined Indian hunters and
Indians, but not the less trutliful on that account. They have not
accpiired yet all the virtues of civilization, and their testimony is to the
same effect. There are of these witnesses 74, and I have given here
the names and pages on which their testimony is found, and the point
or substance of their testimony. It is an exact repetition of what I
have already said. There are a few of these witnesses that say "about
a half", and they do not go as far as the others. "About a half"; " fully
a half"; "one half". There are a small number who say that, and the
great majority nse the stronger language that I have given. I find a
more specific reca|)itulation than that. 28 of these witnesses say " one
half"; " about a half"; " nearly a half"; " a little over a half". Two
say "less than half"; and one of them says "a third"; and one says
"three out of ten"; which, of course, would be less than a third. All
the others say what they do say in the language I have referred to.
Now what is the British evidence on this point? They have exam-
ined apparently a large body of men — I should say really a large body
of men. There are 25 of their witnesses who sustain the United States
Case, Avho use the same language that our v.itnessesdo; — "the greater
number", "most of the females", "about two-thirds", "most of the
females", "three out of five", "about two thirds", "females for the
most part ", " cows for the most part ". Then one says : " 75 per cent",
"four out of six", "two out of three". One says he did not get any
this year that had no pups. "I do not remember having got an old
cow that had no milk: one hunter says, 1 never saw an old cow along
ooast without i)ups ", and so on. I do not read it all. There are thus
25 British witnesses that cannot be distinguislied in their testimony
from ours. Then there is another class of 14 of their witnesses who
are called to contradict our evidence, and they do not contradict it.
They do not specifically sustain it, but they do not contradict it.
'They say, the proportion of pregnant females is " about half", " fully
half", "or not more than half". There are three more who use these
■expressions — "many of the cows", "a good many", "quite a number".
Then here are six witnesses in all of this array of evidence on the
British side who testify affirmatively, that the number and pro])ortion
of pregnant cows in this catch was small — and they say " about 25 per
cent", " about a quarter ", " in a total catch of 119 only ."')() ", in a catch
of 202 only 05". These refer to particular catches. "Half I got this
year females, mostly young cows, only four or five". Then another
witness says, "out of 300 not more than 100". That was in one catch.
Then one witness — an Indian, I judge, says "lots of them are old cows
234 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
without pups". Then there are two others who decline to express an
opinion. One of them, a witness named Shatter, says, he cannot say
what i)ro])ortioi), and I find one added at the bottom to those 25 I gave
before on the British side who support the American Case. There you
see where this evidence conies out. There is another class of witnesses
however, it is only rig'lit to say, in attempting- to deal with the whole
of this evidence, in wliich this is i)ut in another way, not how many,
not what proportion of the cows are pregnant, but what proportion of
barren females are found in the catch. As I have explained, that
means all who are not in a condition of pregnancy, who are not gravid.
Of these British witnesses, 8 testify to finding very few barren
females; they say, "2 out of DO"; "not noticeable"; "not any"; "not
seen any"; have only seen few"; "they are generally two years old,
and travel with young seals"; and one witness gives the explanation
that he has seen a few older females that were barren, — "got a few
barren females this year"; " 2 out of 90 seals"; " a few barren females":
and another witness says, "We cannot tell in the sea whether the cow
is barren or not"; and another "we always find a few barren females ".
Then there are 10 who testify to finding a great many barren females.
Ten of these sealers testify strongly the other way. In 64 seals " 20 or
25". Another says, " quite a number". " By barren females, I mean
one that has no young". Then by another witness, "a good many
barren females this year"; "a great many"; "almost half barren; the
other half cows and pups". Then, "Less than half, about a quarter".
That is the evidence on this subject.
I next enquire what proportion of the females taken in Beliring Sea
are nursing mothers, who have young upon the islands.
(Upon this point Mr. Phelps reviewed all the evidence upon both
sides. He pointed out that on the part of the United States had been
examined four officers and Government officials, eight captains, owners,
and mates of vessels engaged in the sealing business, thirty-six hunt-
ers and seamen, white men, and nine Indian hunters engaged in the
same pursuit, fifty-nine witnesses iu all. That the statement of those
among this number who attempted to give a numerical proportion of
nursing females killed, fixed it variously at from seventy-five to eighty
per cent of the whole Behring Sea catch. That the other witnesses
testified the nursing females formed " the large proportion," " nearly
all," " the greater part" of the catch, and other equivalent expressions,
except that three of them gave no opinion upon this point, but only
stated the distances from the islands at which nursing seals were found.
He showed that the British Commissioners in their report stated that
no nursing females were killed in the early part of the season, and but
few later in the summer, but remarked that in this, as in every other
disputed fact in the case, without exception, the statement of the British
Commissioners was overwhelmingly refuted by the evidence.
He pointed out that upon this question there had been examined on
the part of Great Britain twelve captains of vessels, twenty-three hunt-
ers and sealers, and ten Indian hunters — forty-five witnesses in all;
that of these nineteen sustained the American contention that the
greater part of the Behring Sea catch were nursing females, using the
same language, as to the proportion, employed by the witnesses on the
American side; that fourteen of the others did not contradict the Amer-
ican witnesses, expressing no o])inion upon the point and not being
pressed to express any, although their means of knowledge were ample;
and only eleven witnesses supported the British contention, stating that
the nursing mothers killed in the Behring Sea were "few," "very few,"
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 235
or "none." So that irrespective of the American evidence, the great
weight of the British testimony went to establisli the fact claimed by
the United States to be true and stated by the American Commis-
sioners.
He further remarked that from the nature of the case, upon the undis-
puted account of the habits of the seals, it could not be otherwise than
that the greater part of the seals taken in the Behring Sea must be
nvTrsing mothers, since, at the time when the catch iu that sea was in
progress, very few other seals left the islands, and the mothers of the
pups just born were compelled to go out and did go out, sometimes to
long distances, for sustenance.)
Mr. Phelps proceeded: 1 pass on to another subject, the effect on
the young on the Islands of the death of these nursing mothers. We
have had the extraordinary suggestion made that the young may be
left without nourishment, and are going to live somehow or other, and
that the destruction of the mothers does not make any difference. — Per-
haps some other mother will nurse them — that is one theory. Another
is, that they do not need any nursing — that they come down to the
shore and forage on the sea-wrack, and so forth. But what is the evi-
dence'? In the first place, the evidence on that subject of the great
number of dead pups that are found on the rookeries is not denied and
cannot be denied. I need not refer you again to it, because that is not
in dispute; but other reasons are given or attempted to be given for
the mortality.
It is said by my learned friends that there were no dead pups seen
on the rookery in any great numbers up to 1891, and they say if pelagic
sealing was destroying the nursing females in the previous years, how
comes it to pass that young were not found dead on the rookery till
1891? Then they say the mortality in 1891 was confined to St. Paul's
Island, one of the Pribiloffs, and did not extend to the other; and to two
rookeries on that Island. Then they say that the mortality appeared
again in 1892 upon the same rookeries, although, under the modus
Vivendi, there was no sealing in Behring Sea to destroy the nursing-
mothers; and they say that no unusual number of dead pups was seen
on the Commander Islands in 1892, notwithstanding that pelagic seal-
ing had begun there.
Now, all these propositions, if true, would constitute a complete and
conclusive answer to the charge that the pups starved to death by the
destruction of their mothers during the suckling period. In wliat
extraordinary manner Providence provided for their surviving would
still be left a matter of astonishment; but it would dispose of the fact
that death was owing to the destruction of mothers.
The difficulty with those propositions is that there is not one of them
that is true. They are assumptions not supported by evidence, and are
utterly disproved.
In the first place, as to the proposition that there were no dead pups
prior to 1891 seen on the rookery in any great numbers. That is their
proposition — there is no evidence to show it.
I will call attention to the testimony on this subject as rapidly as I
can; not all of it — there is a great deal more. It will be found between
pages 4()(> and 481 of the A])pendix to the American Argument — the
Collated Testimony. The full depositions are in all cases referred to in
the margin, so that by turning to the 2nd United States Appendix —
another book — you see the whole of the statements. Tliere is a great
deal more testimony as I say between the pages I have mentioned.
236 ORAL ARGUMENT OF HON. EDWARD J, PHELPS.
Mr. Clark, who was four years on St. George, from 1884 to 1880, says:
Dead "pup'' seals, wliicli seem to have starved to death, grew very numerous on
the rookeries these hitter years; and I noticed when driving the bachelor seals for
killing, as we starti'd them up from the beach, that many small "pnps", half starved,
apparently motherless, liad Avandered away from the breeding grounds and became
mixed with the killable seals. The natives called my attention to these waifs, say-
ing that it did not use to be so, and that the mothers were dead, otherwise they
woultl be upon the breeding grounds.
Mr. Hausson, a sealer, was five years on St. Paul island — from 1886
to 1891: I do not stop to give the page of these particular ones, — it is
all between the pages I have given, and I must save all the time I can.
Mr. Hansson says:
There were a good many dead pups on the rookeries every year I was on the island,
and they seemed to grow more numerous from year to year. There may not in fact,
liave been more of them because rookeries were all the time growing smaller, and
tlie dead pups in the latter years were more numerous in proportion to the live ones.
Mr. Mclntyre, whose name has beco7iie quite familiar to yon, was on
tlie Islands fiom 1870 to 1882, and from 188(5 to 1889. He says:
The seals were apparently subject to no diseases; the pups were always fat and
healthy, and dead oues very rarely seen on or about the rookeries jirior to 1884.
Upon my return to the islands, in 1886, I was told by my assistants and the natives
that a very largo number of paps had perished the preceding season, a part of them
dying upon the islands, and otlieis being washed ashore all seeming to have starved
to death; the same thing occurred in 1886, and in each of the following years, to
■and including 1889. Even before I left the islands in August 1886, 1887 and 1888, I
saw hundreds of half starved, bleating emaciated pups, wanflering aimlessly about
in search of their dams, and jireseuting a most pitiable appearance.
Mr. Morgan, who, was 13 years on St. George as the Agent of the
lessees from 1874 to 1887, says:
But facts came under my observation that soon led me to what I believe to be the
true cause of destruction.
For instance, during the jieriod of my residence on St. George Island down to the
period of 1884, there were always ii number of dead pups, the number of which I
cannot give exactly, as it varied from year to year, and was dependent upon acci-
dents or the destructiveness of storms. Young seals do not know how to swim from
birth, nor do they learn how for six weeks or two months after birth, and therefore
are at the mercy of the waves during stormy weather. But from the year 1884 down
to the period when I left St. George Island (1887) there was a marked increase in
the number of dead pup seals, amounting perhaps to a trebling of the number
oliserved in former years, so that I would estimate the number of dead pups in the
year 1887 at about hve or seven thousand as a maximum. I also noticed during my
last two or three years among the number of dead pups an increase of at least 70
per cent, of those which were emaciated and poor, aud in my judgment they died
from want of nourishment, their mothers having been killed while away from the
island feeding, because it is a fact that pujis drowned or killed by accidents were
almost invariably fat.
Mr. Loud, Government Agent from 1885 to 1889, states the same
tiling. He says:
I am unable to make a statement as to the number of dead pups on the rookeries
in that year,
That is 1885 :
but in 1886 I saw a largo number of dead pups lying about. These pups were
very much emaciated and evidently had been starved to death. . . In 1887 the
number of dead ]jups was much larger than iu 1886. In 1888 there was a less number
than in 1887 or in 1889, owing, as 1 believe, to a decrease of seals killed in Behring
, Sea that year, but in 1889 the increase again showed itself. I believe the number of
dead pups increased in about the same ratio as the number of seals taken in Behring
Sea by pelagic sealers.
Mr. Goif, who was Treasury Agent from 1889 to 3890, testifies in this
manner :
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 237
Auotber fact I have gained from reliable sources is that the great majority of the
seals taken in the open sea are pregnant females or females in milk. It is an unques-
tionable fact that the killing of these females destroys the pnjis they are carrying or
nursing. The result is that this destruction of pups takes about eijualJy from tlio
male and female increase of the herd, and when so many nuile puits are killed iu
this manner, besides the 1(^0,000 taken on the islands, it UBcessarily aftects the
number of killable seals. In 1889 this drain upon uuile life showed itself on the
islaiuls, and this in my opinion accounts for the necessity of the lessees taking so
many young seals that year to fill out their quota.
Mr. Palmer is a witness iiitrodiued by tlie British Government. He
went witli Mr. Lond. He is an ornithologist — a man employed in the
Smithsonian Institute to stufl" birds. He says:
The greater number of the seals captured iu the waters of Behring Sea are females
which are on their way to or have left their young on the rookeries while they are
seeking food. As it is a well-known fact that a mother seal will only suckle its own
young, and that the young seal is unable until it is several months old to procure
its own food, it necessarily obtains that the death of the pup follows that of its
mother in a short time. The numbers of dead pups about the shores of St. Paul's
begau to attract my attention about the middle of July last year.
That was 1890:
Ou Aug. 2 I stood on Zoltoi Beach and counted 17 dead pups within ten feet of
me, and a line of lliem stretched the whole length of the beach. Many of them starve
to death on tlie rookeries, but by far the greater number sink iu the deep water
alouir the mariiin of the rookeries.
Now in 1888 — (I have nearly done with this but I want to be done
with it efiectually) — an examination, as you have learned was made by
a Congressional Committee at Washington, and the Keport has been
put into this case; and from the testimony there given before that
Committee — (not for the purposes of this case) — we extract two or three
witnesses.
D"" Mclntyre, whose testimony I have read before in this case, said:
And I would say further that if cows are killed late in the season, say in August
after the pups are born, the latter are left upon the islands deprived of the mother's
care, and of course perish. The eft'ect is the same whether the cows are killed
before or after the pups are dropped. The young perish iu either case.
Mr. Mclntyre's great familiarity with the subject, and the candid
manner in which he has testified, and his large experience, are already
known to you.
At page 255 of that Eeport, Mr. Moulton, the United States Treas-
ury Agent at the islands from 1877 to 1885 testifies as follows. He is
asked :
Q. When a female is nursing her young and goes out for food aud is killed or
wounded, that results also in the death of her young? — A. Yes, sir. As her young
does not go into the water, it does not do anything for some time, aud cannot swim
and has to be taught.
Mr. Tupper, my friend on the other side, knew that as early as 1888
the United States claimed that the pups died when the mother was
killed; because on page 443 of volume III of the Appendix to the
British case, referring to the testimony just quoted, he says:
The opinions of the gentlemen given before the Congressional Committee in 1888
for the most part, though sometimes contradictory, are in favour of the undermen-
tioned theories.
1. That the female seals while nursing their young go great distances in search of
food;
2. When out a great distance, female seals are shot, and the pups on shore are
lost for want of their mothers' care.
I shall read no more. Tlie subject can be pursued upon the refer-
ence that I have given to the Cuilated Testimony, and the fuU testi-
238 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
mony, of wlii(;1i there is a great deal more. Now is there any testimony
to the contrary? Is there any witness brought here to say: "I knew
those ishmds ])rior to 1891; in all those years there were no dead pups
there"? Not a witness! What brought my friends into the error of
saying, as they have said in the course of the argument, that this first
appearance of starved pups was in the year 1891?
Then they say, the mortality in 1891 Avas confined to St. Paul Island,
and to two of the rookeries on that island, namely Tolstoi {-.nd Pola-
vina. That when you come to 1891 instead of its being diffused all
.over those islands, as the mothers from both were equally killed, it
is confined to two rookeries on one island. That again would be
extremely important, if it were true. The difficulty of that proposition
is that it is not supported by evidence and is overthrown by evidence.
I will allude, as briefly as I possibly can, to a few witnesses on that
■ point. Mr. Stanley Brown testifies in the United States Appendix,
Yolume II, page 19 :
From a careful examination of everii roolcery upon the two islands made by me iu
August and September (1891) I place the minimum estimate of the dead pups to be
15,000, and that some number between that and 30,000 would represent more nearly
a true statement of the facts.
Lieutenant Cantwell, of the United States Eevenue Marine, at page
408 of the same book, says :
During the month of September of that year (1891) in company with Mr. J. Stanley
Brown, I visited the Starry Arteel and Eastern rookeries on St. George Islan^
— that is the island where they say the mortality did not reach-
and saw more than the average number of dead pups, and a great many dying pups,
evidently in very poor condition.
Captain Coulson of the Eevenue Marine, on duty there, at page 415
of the same book, says:
No mention was ever made of any unusual dead pups upon the rookeries having
been noticed at any time prior to'^my visit in 1870, but when I again visited the
islands iu 1890, I found it a subject of much solicitude by those interested in the per-
petuation (of the seals), and in 1891 it had assumed such proportions as to cause
serious alarm. The natives making the drives lirst discovered this troubh^, then
special agents took note, and later on I think almost every one who was allowed to
visit the rookeries could not close their eyes or nostrils to the great number of dead
pups to be seen on all sides.
Now thisi is the particular point:
In company with special Agent Murray, Captain Hooper, and engineer Brerton of
the Corwin, I visited the Reef and Garbo'tch rookeries, St. Paul Islands, in August 1891,
Lord Hannen. — On St. Paul Islands?
Mr. Phelps.— Yes.
Lord Hannen. — I thought the object of yoar observation was to
show that i)ups were also dead on St. George's Island.
Mr. Phelps. — Yes, but it was said on that Island it was confined to
two rookeries, and this witness testifies to visiting other rookeries on
that island — to visiting the Eeef and the Garbotch rookeries which are
different.
Mr. Carter. — Tolstoi and Polavina are said to be the ones.
Mr. Phelps. — Their proposition is that this is confined to Tolstoi
and Polavina. This witness whilst on the same island visited 2 other
rookeries. He continues thus :
and saw one of the most pitiable sights that I have ever witnessed.. Thousands of
dead and dying i)ups wore scattered over the rookeries while the shores were liued
with hungry, emaciated little fellows with their eyes turned towards the sea utter-
ing plaintive cries for their mothers which were destined never to return.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 239
Dr. Akerly Avas a resident j^liysician on St. Paul in 1891, and at page
95 will be found his testimony. It is so long bearing on this point,
although it is interesting and very much to the point, that 1 will only
read a line or two here and there. But it is just touching this par-
ticular point, without going over his evidence in support of the general
fact that is not denied. He says :
During my stay on the island I made frequent visits to the different seal rookeries.
That is on St. Paul. Then he says :
One thinjij Avhich attracted my attention was the immense number of dead young
seals; another was the presence of quite a number of young seals on all the rookeries
in an emaciated and apparently very weak condition. I was requested by the Gov-
ernment Agent to examine some of the carcasses for the i)ur))ose of determining the
cause or causes of tlieir death. / risifed and walked over all the rookeries. On all
dead seals were to be found in immense numbers. Their number was more apparent
on those rookeries, the water sides of which were on smooth ground, and the eye
could glance over patches of ground, hundreds of feet in extent, which were thickly
strewn with carcasses. Where the water side of the rookeries, as at Northeast
Point and the Reef (south of the village) were on rocky ground, the immense number
of dead was not so apparent, but a closer examination showed that the dead were
there in equally great numbers, scattered among tlie rocks. In some localities, the
ground was so thickly strewn with the dead tha,t one had to pick his way carefully
in order to avoid stepping on the carcasses. The great mass of dead in all cases was
within a short distance of the Avater's edge. The patches of dead would commence
at the water's edge, and stretch in a wide swarth up into the rookery. Amongst
the immense masses of dead were seldom to be found the carcasses of full grown
seals, but the carcasses were those of pups or young seals born that year. I can
give no idea of the exact number of dead, but I believe that they could only be
numbered by the thousands on each rookery. Along the water's edge, and scattered
amongst the dead, were quite a number of live pups Avhich were in an emaciated
condition.
and so forth. His whole testimony should be read.
The last Witness I shall refer to from page 152, is Mr. J.-O. Eedpath,
who says :
Excepting a few pups killed by the surf occasionally, it has been demonstrated
that all the pups found dead are poor and starved, and when examined, their
stomachs are found to be without a sign of food of any sort. In 1891, the rookeries
on St. Paul Island were covered, in places, with dead pups, all of which had every
symptom of having died of hunger, and on opening several of them, the stomachs
were found to be empty.
The British Commissioners themselves have not denied that there
were pups on other rookeries than Tolstoi and Polavina, because in
section 355 of their Keport they say:
The mortality was at first entirely local, and though later a certain number of
dead pups were found on various rookeries examined, uothiug of a character com-
parable with fiiat on Tolstoi rookery was discovered.
They were there for 12 days, and Di" Akerly has explained the dif-
ference.
Now, Sir, that is my answer to this proposition. What is the war-
rant for the claim that the mortality of these i)ups was confined to
special rookeries on one Island ?
Then it is said by my learned friend that the mortality appeared
again in 1892 on the same rookeries when ])elagic sealing was repressed
by the modus vivendi in Behring Sea? How far it was repressed is a
matter of conjecture; but that it was intended to be repressed is
undoubted. Of course, of sealing that evaded the modus, we have no
account here.
The President. — Have you any reason to suppose that Behring Sea
was not quite closed to sealing'^
240 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — I have no reason to sup])ose it, fouuded upon any
evidence or infonnatioii ; I am not to be understood as saying so. The
modus Vivendi closed that sea. That it was attempted to be enibrced
by both Governments in good faith is unquestionable — there is no doubt
about that.
Mr. Justice Harlan. — It was stated in the argument that some got
into Behring Sea, before they got notice of the modus vivendi.
Mr. Phelps. — Yes there is some evidence of that kind.
The President.— In 1891?
Mr. Justice Harlan. — 1891,
Sir Charles Russell.— The figures (that I did not know were dis-
puted) show that the entire number taken the year 1892 was 500.
Mr. Phelps. — I am making no statement on that subject because
I shall make no statement that is not founded upon evidence; and
therefore I do not say that any sealer got in, or that any seal was killed
in Behring Sea; I only say that is like the raids on the Island, and to
what extent in that foggy, tempestuous region the modus vivendi was
evaded, I do not know and I do not undertake to say. My friend may bo
quite right in the figures of the number of skins he gives, for aught I
know. In that year 1892 the niunber of dead pups declined rapidly
and there were none seen excej^t on these two rookeries of Tolstoi and
Polavina. Mr. Macoun in the British Counter Case, and Mr. Stanley
Brown in the United States Counter Case, and Mr. Lavender and Mr.
Murray, all show that the mortality of 1892 was confined to those rook-
eries, and that evidence undoubtedly may have misled my friends, and
they have carried the conclusion that was applicable to that time to an
anterior period. Now what does that show "? It shows that the mor-
tality of 1891 and of the previous year everywhere else except on those
rookeries, must have been due to i)e]agic sealing, unless you ascribe it
to some cause that no ingenuity has been able to suggest, much less to
prove.
The evidence is not agreed as to whether the mortality in those two
rookeries was or was not as great as that which was noticed in the
same rookeries in 1891 ; but the evidence that we rely upon — the evi-
dence of Mr. Murray, the assistant Treasury agent, and the evidence of
Mr. Brown in the United States Caseareboth very explicit to the point
that the mortality on those rookeries in 1892 was much less than on the
same rookeries in 1891. Colonel Murray says:
I went over the rookeries carefully, looking for dead pups. The largest number
on any rookery occurred on Tolstoi, but here, as on the rookeries generally, but few
of thein were to be seen as compaaed with last year.
In his deposition in the case he testifies to having seen about 3,000
dead pups in 1891. Then he goes on to say:
This was the first time in my four seasons residence on the islands, that the num-
ber of dead pups was not greater than could be accounted for by natural causes.
Then Mr. Stanley Brown says at page 388 of the United States Coun-
ter Case:
Dead pups were as conspicuous by their infreqnency in 1892 as by their numerous-
ness in 1891. In no instance was there to be noted an unusual number of dead pups,
except on the breeding gi'ounds of Tolstoi, the position, character and size of which
gave prominence to the carcasses. Plere the mortality, while in no way approaching
that of the previous season, was still beyond the normal, as indicated by the deaths
upon the other breeding grounds.
The evidence on the other side is solely, as far as I know, that of the
observation of Mr. Macoun, as stated in his Report, and an affidavit by
Mr. Maynard wkich is referred to by Mr. Macouu. Now Mr, Macouu,
ORAL ARGUMENT OF HON. EDWARD J. PllELPS. 241
speaking- of Polaviua rookery, does not Tiimself state there were as
mauy dead pups on Polavina in 1892 as in 1891, because it does not
appear that he was on Polavina in 1891 at all, and he could not make
any comparison ; but he takes a native with him to the rookery, and he
quotes the native if he jDroperly understood him (or, rather, if the
native properly understood Mr. Macouu), to the effect that there
never had been before so many dead ])U])s in the rookeries. As to
Tolstoi rookery, Mr. IMacoun is the only witness who saw a greater
number of dead on Tolstoi in 1892 than there were in 1891. He was
on Tolstoi in the previous year, and he took a native along with him to
corroborate his opinion of 1892 and he quotes from the hitter's state-
ment. The photographer was asked to verify a statement of the native,
and the language of the ])hotographer, whatever was meant, is:
"When asked" — that is when the native was asked — "When asked
whether there were as many seals (not dead pups) in 1892 as in 1891, he
replied "more; more than ever I saw before". Mr. Macoun undoubt-
edly misunderstood him, because he gives it as supporting the claim
that there were more dead pups in 1892 than in 189 L; but the language
that is given would seem to indicate that the native did not so under-
stand the statement that he was making. It would be very plain that
the native says no such thing if it were not that Mr. Macoun cites him,
evidently understanding that that was what he meant to say. Mr.
Maynard says in the course of his affidavit:
We walked to that part of Tolstoi rookery on -which dead pnps were lying in great
numbers, and while we were standing within a few yards of tlie limit of the ground
on which these dead pups were. Mr. Macoun asked Antou Melovedoli" —
that is the native —
whether he thought there were as mauy of them as there were last year, to which he
replied, "More; more than I ever saw before".
I make that observation upon the evidence for what it is worth. It
is not conclusive by any means. It is an observation that is fair to
make upon the language of the witness.
It is only fair, as I am dealing with the whole of this evidence, to read
something from Mr. Ma conn's report.
Mr. Macoun, at page 14G of his Keport, which is in the 1st volume of
the Appendix to the British Counter Case says:
Dead pups were first noticed by me on Tolstoi rookery the lOtli of August, though
photographs taken by Mr. Maynard on the 8th of August while I was on St. George
Island, show that at that date there were nearly, if not quite as many of them on
this rookery as there were ten days later. At the time I lirst noticed the dead pups
I counted over four thousand (4,000). . . The pups, when I first saw tliem, appeared
to have been dead not more than two weeks, and nearly all seem to have died about
the same time. . . This rookery was revisited ou the 21st of August. At tiiis time an
estimate was again made of the number of dead pups. A large band of holluschickio
on their way from the water to the hauling ground at the back of Tolstoi rookery,
liad stopped to rest on the gionnd on which the ])ups were lying, and hid a part of
them; so that on this occasion a low less than 3,800 were counted. . . My last visit
to Tolsloi rookery was made on tlie 11th of September. No living seals were to l)e
seen on tbat part of the rookery ground on which the dead jiups were, and it was
now apparent tliat they extended further to the left than is shown iji the photo-
graphs taken of them.
Sir Charles Eussell. — You are not reading Mr. Macoun's Eeport
continuously?
Mr. Phelps. — No ; I skip a passage, — I am reading an extract given
me. He goes on :
That is to say, a part of the ground on which seals are taken in these photographs
Ifiad dead pups on it, which at that time could not be seen; this would add several
? s, PT xy IG
242 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
hnndred to my former estimate of their number. No pnps thiit had died recently
wore to be seen anywhere. It seems reasonably certain that all the dead pups seen
on this part of Tolstoi rookery died at about the same time. . .
Of course, I do uot read the whole of Mr. Macoun's observations, — 1
do not propose to. That shows, however, that wheu Mr. Stanley Brown
left the Island, tlie mortality on the Tolstoi rookery was over, so that his
testimony, which I have before read, on this subject, was made with full
knowledge and observation of all the facts there were.
Just cne other observation on this subject of dead pups. Of course,
it is not to be denied that in 1892 while the modus vivendi prevailed,
and while the number of nursing mothers that were killed must in all
probability have been small, there was a mortality on two rookeries of
the Islands greater or less — Mr. Macoun states it a good deal higher
than Mr. Murray and Staidey Brown state it. They are all witnesses
entitled to attention. Their testimony differs only to that extent; but
the decisive point has already been alluded to, that it was only on those
rookeries that any mortality of dead pups that was noticeable was to be
seen in 1892. Our witnesses testify that, as compared with former
years, it was very small. Mr. Macoun's testimony is different.
Now then, the decisive point is, what was the cause of the death?
The evidence completely makes out, I think I am authorized in saying,
that in all the previous years the death of these i)ups was due to
starvation, because I do uot understand that there is any contradiction
of the numerous statements that have been made before, that the pups
were in an emaciated condition, and that in numerous instances when
they were dissected, and their stomachs opened, they were found to be
without any nourishment. In 1892 the dead pups were generally in
good condition, and not indicating death by starvation, aiid the testi-
mony of Mr. Macoun himself establishes that. He says this in his report
at page 1 47 of the same Appendix :
That their deaths were not caused by starvation was very evident, as they were,
with few exceptions, lar<re and well developed, not small and emaciated, as is almost
invariably the case witli those that are known to have wandered away from the
breeding grounds and died of starvation.
Now, Sir, by the testimony of Mr. Macoun himself, who very fairly
gives his observation on that point, it is plain that tlie seals that died
on these rookeries in 1892, did uot die of starvation. It is not attribu-
table to pelagic sealing. It is equally ])laln upon the evidence of
many witnesses, which is not contradicted, that in previous years on all
the islands and all the rookeries they did die of starvation. Now what
these pups died of on these two rookeries in 1892, it is quite out of my
power to tell — the evidence does not inform me.
I leave that subject and I leave it with the observation that with the
exception of the difference which I have tried to state fairly between
Mr. Stanley Brown and Mr. Murray, on the one hand, and Mr. Macoun
on the other, as to the relative proportion of the dead pups in these two
rookeries, there is no contradiction. Their evidence must speak for
itself and I cannot assist the Tribunal to reconcile it. And as I am now
coming to a new topic, although it is a few minutes before the adjouru-
uient, perhaps you will allow me. Sir, to stop here for the moment.
[The Tribunal then adjourned for a short time.]
INIr. Phelps. — I thought I had done. Sir, with the subject of dead
pups; but there is one other suggestion from the other side that I want
to answer brieffy, if you will permit me to recur to it. The suggestion
is that on the Commander Islands no dead pups were seen in 1892,
which is the year when the pelagic sealing went over to the vicinity of
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 243
those Islands in consequence of the modus vivendi. That, aj^ain, is
inaccurate. Mr. Maconu savs, in his statement in the British Counter
Case at page 148.
Special iiKiiiiry was made by mo at tlie roiumaiider Island duriuiij the first week
iu September as to whether young seals had been t'ouud dead in 18'J-! in larger num-
bers than usual, and several of the eldest natives were questioned by me on this
point. I was told by them that none had been seeu there but a few that had been
killed by the surf or had wandered away from the rookery ground.
This is not Mr. Macoun's observation, but what he learned from some of
the natives, and is in direct opposition to the testimony of a very much
higher character than that of the natives. Either the natives misun-
derstood him, or he misunderstood them, or he enquired of men who
did not understand what they were talking about.
Mr. Grebnitzki, whom, you will remember, was the Governor for 15
years, in the United States Counter Case at page 300, says:
There are always a few dead pups to be found on the rookeries whose death is uot
due to that of their mother's, but duriug the last year or two a greater number of
dead pups have been actually noticed than heretofore, and have attracted the atten-
tion of all persons ou the ishxnds who are at all familiar with seal life. It cannot
be successfully contended that they all died of natural causes. There is no disease
among the Commander Island seals; aiul while a certain number of young pups are
always exposed to the danger of being crushed to death. . . or of being drowned by
the surf, yet these causes of death will not account for the greater mortality of
pups which took place during the past summer. liesides the bodies of the dead
pu^is I refer to are those of starved aninuils, being greatly emaciated.
Mr. Malowansky says under oath, in regard to this subject in the
United States Counter Case, page 374, — he is the Superintendent of
the Eussian Government on those islands:
After the pups have learned to swim a uuuibor of dead pups have been reported
killed along the shore by the surf, but the number was always inconsiderable.
These pups were always grey pups, their bodies were always near the water's edge,
and never back on the rookeries. Within the last two years, the natives noticed
however, another class of dead pups on the islands. These were always black pups
which were too small to have learned to swim, and were found on the breeding
grounds two hundred yards Irom the water. Such dead pups have been observed
since the sealing vessels began to take seals about the island. This year (1892), the
numbers became so great tliat the latter was connnonly talked about on the islands,
and the natives made complaint to the Governor. It was my o])iuion and the
universal opinion of all on the islands that these deaths were caused by starvation,
which resulted from the mothers having been killed by the sealing schooners while
out feeding. This was also the opinion of the natives and others on the islands
during all of last season (1891). The matter was discussed with the British Behring
Sea Commissioners, who were at Behring Island for about a day and a half iu Sep-
tember of that year. Snigorott' told theni about it, and I acted as the interpreter at
the time. The grey pups heretofore mentioned as iuiving Ijeen killed were al\\ays
plump and in good condition, while these black pups were iu all cases very thin and
emaciated, showing evident signs of starvation.
And you will remember, to conclude, the passage that I read a day
or two ago from the letter of Mr. Chichkine, the Eussian Foreign
Minister, in the correspondence with the British Government, about
their seizing vessels, where, in stating his case, and the reasons for his
seizure, he stated these facts, including the fact that the i)ups died on
the islands on account of the loss of their mothers.
Kow I come to another question. What is the consequence of all
this? We say the conse(}uence is the inevitable extermination of the
animal. We say that the reduction in the numbers of the seal herd,
whicli the Commissioners, actingjointly, agreed had taken i^lace — it was
the only point upon whicli they did agree — and that it was attributable
to the act of man, is owing to this indiscriminate killing; and we say
the necessary and inevitable consequence of it will be the extermination
244 OKAL ARGUMENT OF HON. EDWAED J. PHELPS.
of the seal herd. On that point perhaps you will bear with me while
I at first, consider very briefly, if General Foster will be so kind as to
aj?sisc me by pointing" out, what has taken i^lace elsewhere. The islands
marked in red, on the map now before the Tribunal, were islands
Avhich the testimony says were once poj^ulous; where the seals were as
numerous as they are on the Pribilof Islands, and were obtained in
great numbers. What has become of them! Except I believe on the
Lobos Islands where some measures have been taken to prevent indis-
criminate killing some years ago, where there are a few left, though
hardly enough to be commercially important, they are gone from every
one of them; so that with the small exception of what there are on
the Lobos Islands, there are no seals in the world — fur-seals, I mean.
Except on the Pribilof Islands, and the Commander Islands, in Behr-
ing kSea, they are all gone. When the sealers first visited the Island
of Mas-a-Fuero, off the coast of Chili, in 1797, there were estimated to
be 2,000,000 or 3,000,000 on the islaiuls. More than 3,000,000 were
killed, and the skins carried to Canton in seven years thereaiter. hi
1807 they were almost exterminated, and in 1891 Captain Gaffney
visited the islands and saw 300 or 400, killing a few. All this is froiu
the evidence in the Case.
Juan Fernandez is a few miles eastward of Mas-a-Fuero. Dampier,
who visited tliis island in 1083, says that seals swarm as thick about
the island of Juan Fernandez, as if they had no other place in the
w^orld to live in. There is not a bay or rock that one can get ashore
on but is full of them. There the unrestrained taking of the seals on
the land began in 1797, and in the year 1800 there were no seals to be
found on any ])art of it. In 1891, the island was visited, and a few fur
seals were seen, but very few.
The coast of Chili has the same history. I need not read the story
over again. The sanje about Cape Horn and the Falkland Islands.
There they are not quite gone, because the British since 1881 have pub
an Ordinance in force which was presented to the Tribunal in another
connexion, and they are gradually increasing, but as yet assume no
commercial importance. On the South Georgia Islands and Sandwich
Land 300 miles enat of Cape Horn, when first discovered, fur-seals
existed in very great numbers. In 1800 a single vessel took 57,000
skins. 1(3 vessels visited South Georgia that year, and in a few years
not less than 1,500,000 were taken from the Islands. In 1822, they
were reported as almost extinct. In 1874, after many years' rest, the
Islands were visited, and 1,450 skins were taken. In 1875, five vessels
secured 000, and in 1870, four vessels could only obtain 110.
In 1892 Captain Budington found the seals in that region practically
extinct, only a few straggling ones being seen.
The South Shetland Islands is another place. The first sealing ves-
sels in 1819 readily obtained cargoes of very tine skins. The news of
the discovery was quickly spread and by the end of the next year a fleet
of 30 vessels reached the region to gather the valuable pelts. Captain
Weddell gives this account:
The quantity of seals taken off these Islantls by A'essels from tliiferent parts during
the years 1821 and 1822 may be computed at 320,000 and tlie quantity of sea-elephimt
oil at 1)60 tons. This valualde aniuuil, the fur-seal, nui;ht, by ai law similar to that
which restrains fishermen in the size of the nu^sh of their nets, have been spared to
render annually 100,000 fur-seals i'or uuiuy years to come. This would have followed
from not killing the mothers until the young were able to take the water and e'^en
then only those which appeared to be old together with a ])roportion of the males
thereby diminishing their total number but in slow progression. This system is
pr;i! Used at the River la Plata. The Island of Lobos at the mouth of that river
contains a quantity of seals.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 245
And lie refers to that where there is a similar ordinance or provision.
He says:
The system of extprmination was practised, however, at the South Shetlands; for
wlieiiover a seal reached the beach, of whatever deiioiuiiiatioii, he Avas immetliately
killed and his skill taken, and by this means at tlio end of the second year the
animals became nearlj^ extinct. The young, havino- lost tlieir mothers wlien only
three or four days old, of course died, \yhich at the lowest calculation exceeded
100,000.
Mr. Williams, in a Report to a Committee of the Congress of the
United States, speaking of the Shetland Islands says:
In 1872, fifty years after the slaughter at the Shetland Islands, the localities before
mentioned were all revisited by another generation of hunters, and in the sixteen
years that have elapsed they have searched every beach and gleaned every rock
known to their predecessors and found a few secluded and inh(js]ntable places before
unknown; and tiie nett result of all their toil and daring for these years scarcely
am.onnted to 45,000 skins; and now not e\'en a remnant remains save on the rocks off
the pitch of Cape Horn. The Inst vessel at South Shetland this yeur of 1888, after
hunting all the group, found only 35 skins, and the last, at Kerguelan Land, only 61,
including jmps.
The Island of Tristan d'Aciinha and Gongh Islands, midway betwisen
Capes Horn and Good Hope, were formerly abnndaiitly occupied, and
in 1887 Captain Comer, on a sealing voyage, left six men on Gongh
Island, where they remained nine months, taking only about 50 skins.
On the west coast of South Africa, the same history is true. The
immense number of seals in this locality, on the islands and along the
coast, were vigorously hunted, beginning about 1790, and large quanti-
ties were taken by sealing vessels at intervals up to 1830, when, owing
to the diminished number, sealing became unprofitable.
The Islands southeast of the Cape of Good Hope was another place
once covered with a multitude of seals; so that Captain Cox, who visited
there in 1789, says :
On first landing, we found the shore covered with such multitude of seals, that we
were obliged to disperse them before we got out of the boat.
But, on all these Islands, only a few straggling seals are found, in
numbers so small as to make their pursuit unprolitable.
In Australia and New Zealand at the beginning of the present cen-
tury, fur-seals in considerable numbers were found along the south-
west coast of Australia and in the vicinity of Tasmania. Stimulated
by these reports, the adventurous sealers discovered an apparently
inexhaustible supply of these animals on the numerous small islands
south of New Zealand. In 1803 a single vessel took away from the
island of Antipodes 60,000 prime fur-seal skins. Macquarie Island
was discovered in 1811 by a sealer, who procured a cargo of 80,000
skins. Sealing on these islands was at its height from 1810 to 1820.
In two years 300,000 skins were obtained, one vessel carrying away
100,000. Now Morrell, who visited those regions in 1830, reported that
the sealers had made such complete destruction "as scarcely to leave
a breed, not one fur-seal" being found by him. A few, however, sur-
vived the general slaughter, and, in recent years, under the protection
of the Government of New Zealand, a small annual catch of from one
to two thousand fur-seals is now taken.
There is the histcny of the whole of the Avorld, as far as these animals
are known to exist in it. My learned friend says these animals were
not killed in the sea; they were killed on the islands. That is true
undoubtedly. They were killed on land and water. It is not the kill-
ing of a seal in the water that exterminates the race. The same seal
may be killed in the water as well as on land without affecting the
246 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
duration of the race. Tlie only difference would be tliat in killing- in
the water, they do not save so many of those you kill. But that is not
the point. It is the indiscriminate killing by which the females are
destroyed and breeding stojiped.
That is what destroys tlie race. If we were engaged on the part of
the United States in killing the female seals on the Islands, and the
pelagic sealers were engaged in killing the male seals at sea, this case
would be exactly reversed. I mean killing the same seals. If they
were doing on the sea what we are doing on the Islands, or if we were
doing on the Islands what they were doing at sea, then the preserva-
tion of the fur-seal race would, of course, require the cessation on the
Islands and not at sea. It is the indiscriminate killing by which the
stock is destroyed.
I want to refer — I hope not tediously — to Vol. 1 of the United States
Appendix, at page 411. We have collected there letters from many of
the most distinguished and leading naturalists in the world, from many
countries on this subject. I cannot afford the time to read to you
aloud, what I should be so glad to read, all these letters, but I may
just advert to some ])assages in some of tliem, and I will respectfully
ask, if these letters have not already engaged the attention of the
Members of the Tribunal, — and, of course, in this vast mass of mate-
rial, I cannot tell what has been read and what not — I would respect-
fully ask the perusal of these pages after page 411. Tlie hrst statement
is by Professor Huxley, and this is not in response to any enquiiy —
some of the other letters are. He says, at the bottom of page 411. —
In the case of tlie fnr-seal fisheries, the destructive aoeucyof man is prepotent on
the Pribilof Islands. It is obvious that the seals niifjht be destroyed and driven
away completely in two or three seasons. Moreover, as the nnmbei~of bachelors,
in any given season is easily ascertained, it is possible to keep down the take to
such a percentage as shall do no harm to the stock. The condition for efiicient reg-
ulations are here quite ideal. But in IJehring Sea and on the north-west coast the
case is totally altered. In order to get rid of all complications, let it be supposed
that western North America, from Behring Straits to Califoruia is in the possession
of one Power, and that we have only to consider the question of regulations which
that Power should make and enforce in order to preserve the fur-seal fisheries.
Suppose, farther, that the authority of that Power extended over Behring Sea, and
over all the north-west Pacific, east of a line drawn from the Shumagin Islands to
California.
Under snch conditions I should say (looting at nothing but the preservation of
the seals) that the best conise would be to prohibit the taking of the fur-seals, anj*-
where except on the Pribilof Islands, and to limit tlie take to such percentage as
experience jiroved to be consistent with the preservation of a good average stock.
The furs would be in the best order, the waste of life would be least, and if the
system were honestly worked, there could be no danger of over-fishing.
Sir Charles Eussell. — Would you read the next passage.
Mr. Phelps. — I really have not the time or I should be glad to oblige
my learned friend. He proceeds to point out what he conceives to be
the legal clifliculties in the way.
Sir Charles Kussell. — He says what he calls the ideal arrange-
ment is impracticable.
Mr. Phelps. — He says it is impracticable because he assumes there
are legal objections — not that it is impracticable in fact: finally, he
says, and I will read his conclusion. (As I have said in reading any
passage of these letters, I do it in the hope that the whole context will
be read.)
Finally, I venture to remark that there are only two alternative courses worth
pursuing.
One is to let the fur-seals be extir]iated. Mankind will not suffer much if the
ladies are obliged to do without seal skin jackets.
ORAL ARGUMENT OF HON. EDWARD J. RHELPS. 247
That is one.
The other course is to tread down all merely personal and trade interest in pnr-
snit of an arrangement tliat will work and be fair all ronnd; and to sink all the
stupidities of national vanity and political self-seeking along with them.
Sir Charles Russell. — Tliat refers to a sciieme for making the
Pribilof Islands an international concern.
Mr. Phelps. — No.
Sir Charles Russell. — I assnre you, yes.
Mr. Phelps. — Now I cannot read all these letters, but in every one
of them that I shall notice I hope the context will be read, and it will
be of no avail for me to select ])assages.
Dr. Sclater, Secretary of the Zoological Society of London, has given
an affidavit in whicli he says:
1. Unless proper measures are taken to restrict the indiscriminate capture of the
fur-seal in the North Pacific he is of opinion that the extermination of this species
will take place in a few years as it has already done in the case of other species of
the same group in other parts of the world.
2. It seems to him that the proper way of proceeding would be to stop the killing
of females and young of the fur-seal altogether, or as far ds possible, and to restrict
the killing of the males to a certain number in each year.
3. The only way he can imagine by which these rules could be carried out is by
killing the seals only in the islands at the breeding time (at which time it appears
that the young moles keep apart from the females and old males), and by prevent-
ing altogether as far as possible, the destruction of the fur-seals at all other times
and in other places.
I commend to the attention of the Tribunal an article which tins
gentleman, of his own motion, jHiblished in "The Nineteenth Century"
magazine, of London, since this argument commenced. It is in the
June number, entitled "A Naturalist's View of the Fur- Seal Question,"
in which he says he has read this evidence, and he comes out with his
views. It is not in the Case, and I have not time to read it, but I quite
commend that to the attention of the Tribunal, as I did venture, on a
question of law, to commend an article by Mr. Tracy, in "The North
American Review," who is a very eminent lawyer in the United States.
Mr. Merriam addressed a circular letter of enquiry to various distin-
guished naturalists in ditferent parts of the world, in which he gave
them, as a foundation, certain statements in regard to the nature and
habits of the fur-seal, and the conditions of pelagic sealing.
These occupy several pages, and in order fairly to understand the
answer of these naturalists it would be but fair to be tirst acquainted
with the facts that were presented in the letter of enquiry, because if
those facts have misled these gentlemen, then their opinion would be
good for nothing. I nmst not stop to read that, but I submit, with great
confidence, it will be found to be a correct statement of facts. On
page 419, there is a letter in French, and a translation of Mr. Milne
Edwards, of Paris. He is the director of the museum of natural his-
tory. This is but an extract and he refers to the extermination that
has taken place everywhere, and he goes on and says,
It will soon be thus with the callorhimis ursinus in the North Pacific Ocean, and it
is time to ensure to these animals a security which may allow them regular repro-
duction. I have followed with much attention the investigations which haA'e been
made by the Government of the United States on this subject. The reports of the
Commissioners sent to the Pribilof Islands have made known to naturalists a A'^ery
large number of facts of great scientilic interest, and have demonstrated that a regu-
lated system of killing may be safely applied in the case of these herds of seals Avhen
there is a superfluity of males. What might be called a tax on celibacy was applied
in this way in the most satisfactory manner, and the indefinite preservation of the
species would have been assured if the emigrants on their way back to their breeding
places had not been attacked and pursued in every way.
248 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Dr. Blierino- of Berlin, Professor of Zoology in the Royal Agricultural
College, writes a letter wliicli will be found at the bottom of page 420;
and reading only an extract here, he says:
I am, like yourself, of the opinion that the remarkable decrease of fnr-aeals on the
rookeries of the Pribilof Islands, wliich has of late years become more and more
evident, is to be attributed mainly or p(!rhaps exclusively to the unreasonable
destruction caused by the sealers who ply their avocation in the open sea. 'J'he only
rational method of takin<j the fur-seal and tlie only one tliat is not likely to result
in the extermination of this valuable animal is the one which has hitherto been
employed on the Pribilof Islands under the su])ervision of the Government. Any
other method of takinjj; the northern fur-seal slionld, in my opinion, be prohibited by
international asjreement. I should, at furthest, ajyprove a local pursuit of the fur-
seal where it as destructive of the fisheries in its southern winter quarters. I regard
pelagic fur-s(!a]ing as very unwise; it must soon lead to a decrease, bordering on
extermination of the fur-seal.
Professor Collett, of the University of Christiania, in Norway, says:
It would be a very easy reply to your highly interesting treatise of the fur-seal,
■which you have been kind enough to send us, when I only answered you that I agree
with you entirely in all points. No doubt it would be the greatest value for the
rookeries on the Pribilof Islands, as well as for the preservation of the existence of
the seal, if it would be possible to stop the sealing at sea at all. Put that will no
doubt be very difficult, when so many nations partake in the sealing and how that
is to go about I cannot know. My own countrymen are killing every year many
thousands of seals and cystoplwrw on the ice Itarrier between Spitzbergen and Green-
land, but never females with young; either the old ones caught, or, and that is the
greatest number, the young seals. Put there is a close time, accepted by the difter-
ent nations, just to prohibit the killing of the females with young. Perhaps a
similar close-time could be accepted in the Behring Sea.
Dr. Hartlaub writes a letter, and you will notice that the original as
well as the translation, from which I read, is printed. He says:
I am far from attributing to myself a competent judgment regarding this matter,
but considering all facts which you have so clearly and convincingly combined and
expressed, it seems to me that the measures you propose in order to prohibit the
threatening decay of the northern fur-seal are the only correct ones promising an effect-
ive result.
Professor Salvadori, from Turin, gives a letter.
Dr. I/eopold von iSchreuck, of the Imperial Academy of Science, St.
Petersburg, gives another letter.
Then I take Dr. Giglioli, the Director of the Zoological Museum,
Eoyal Superior Institute in Florence. That is a long and full letter.
I wish I could read it all, but I will read from the bottom of page 424.
Having conclusively shown that the lamented decrease in the herd of fnr-seals
resorting to the Pribilof Islands can in no way be accounted for by the selective
killing of non-breeding males for commercial purposes, which takes place on those
islands under special rules and active surveillance, we must look elsewhere for its
cause; and I can see it nowhere but in the indiscriminate slaughter, princijially prac-
tised on breeding or pregnant females, as most clearly shown in your condensed
Report, by pelagic sealers.
In any case, all who are competent in the matter will admit that no method of
capture could be more uselessly destructive in the case of Pinnipedia than that called
"pelagic sealing," not only any kind of selection of the victims is impossible, but it
is admitting much to assert that out of three destroyed one is secured and utilized,
and this for obvious and well-known reasons. In the case of the North Pacific Fur
Seal, this mode of capture and destruction is doubly to be condemned, because the
destruction falls nearly exclusively on those, the nursing or pregnant females, which
ought on no account to be killed. It is greatly to be deplored that any civilized
nation possessing fishery laws and regulations should allow such indiscriminate
waste and destruction. The statistical data you give are pain fully eloquent, and when
we come to the conclusion that the fi2,500 skins secured by pelagic sealing in 1891
represent at a minimum one-sixth of the Fur seals destroyed, namely 375,000, — that
is, calculating one in three secured and each of the throe suckling a pup or big with
young, — we most undoubtedly need not look elsewhere to account for the rapid
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 249
decrense in the rookeries on the Pribiloff Islands; and I (}nite agree with you in
retaining that nnlcss the malpractice of pelagic sealing he prevented or greatly
checked, both in the North Pacific and in the Behring Sea, the economic extermina-
tion of Callorhinus ursinus is merely the matter of a few years.
The rest of the letter is equally interesting:.
The next letter is from Dr. lv;i])hael Blancliard of Paris, Professor of
the Faculty of JNIcdicine and General Secretary of the Zoological
Society of France. It is to the same efilect, and I only call attention
to it.
Then the letter from Dr. William Lilljoborg', of TJpsala, Sweden, and
Professor Nordonskiold, of the Academy of Sciences, Stockholm, is a.
joint letter; and I will read an extract from that:
We do not, therefore, hesitate to declare that the facts about the life aaid habitrs
of the Fur Seal, stated by you in your said letter under 1-20, should servo as a base
for the regulations necessary to preserve this gregarious animal from its threatened
extinction in a comparatively short time.
These regulations may be divided into two categories, namely, firstly, Regulations
for the killing, etc., of the Fur Seals on the rookeries in order to prevent the gradual:
diminution of the stock; Secondly, Regulations for the Pelagic Scaling or for the >
hunting of the Seals swimming in the ocean in large herds to and from the rookeries, ,
or around the rookeries during the time when the females are suckling the pups on.'.
land.
Then the last paragraph :
As to the Pelagic Sealing, it is evident that a systematic hunting of the Seals iin
the open sea on the way to and from or around the rookeries, will very soon cause
the complete extinction of this valuable, and from a scientific point of view, sO'
extremely interesting and important animal, especially as a great number of the
animals killed in this manner are pregnant "cows," or "cows" temporarily sepa-
rated from their pnps while seeking food in tlie vicinity of the roolcery. Every one^
having some experience in Seal-hunting can also attest that only a relatiA'cly small
part of the Seals killed or seriously wounded in the open sea can in this manner b<y
caught. We are, tlierefore, persuaded that a prohibition of Pelagic Sealing is a>
necessary condition for the prevention of the total extermination of the Fur-Seal.
There are other letters, with which I must not detain you, from gen-
tlemen of eminence in various countries of scientific position and high
repute.
Now this is scientific testimony; these are not seal-hunters or super-
intendents. This is the scientific branch of the case ; on the other hand
we have a great mass of testimony that I cannot stop to review. There
is a vast amount of evidence in the case from i)ractical men. In the
Collated Testimony appended to the American Argument from pages
300 to 312 you will find the testimony of 174 practical sealers; 25 of
them are masters of vessels, 30 are seamen, 86 are Indian hunters, 8
others are intelligent observers from those resident on the Islands. I
shall not read a word of their testimony. I refer you to it. It is all
concurrent.
It is nothing but a repetition of the statement that in their judg-
ment the decrease that has taken jilace is owing to this destruction of
females and young, and that the extermination of the seal will be the
consequence. They come to the exact conclusion from their practical
point of view that the scientific men do from theirs. These witnesses
are no more scientific men than those scientific men are practical seal-
ers, and the concurrence of their judgment is extraordinary.
What is there on the other side? Among all the scientific men of
eminence in this world, even including those in England like Professor
Sclater, Professor Huxley and Professor Flower, whose letter was read
the other day, where is the man who comes to contradict the testimony
of these gentlemen and to express any different view? Where is the
practical evidence to the contrary "? What is it that my learned friends.
250 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
say about this! Do tliey say tliat you can go on killinp,- females in
these increasin*;- proportions, for you have not failed to observe that the
business of pelaiiic sealin*;- has grown in respect tothenuniber of vessels
with great rapidity — do they assert that? jSTo. They attempt to parry
it only by saying, "Well, you exaggerate if. You might as well say
we exaggerate mathematics. That we exaggerate a demonstration of
geometry. It is a resnlt that comes mathematically; — certainly, by
natural laws from certain premises. 'Kobody can exaggerate it. It
does not need any exaggeration.
They undertake, however, to say this is not the only factor in
extermination. This is not all there is, they say ; you are responsible for
some of it; there is a decrease that is alarming and x^ortentous, butit
is not all our fault. It is partially yours. Now, I x)ropose to examine
that question; not because it is really material, but because, so far as
time allows, I do not propose to leave any suggestion that my learned
friends thinlc imi)ortant euongh to make, and to rely upon, to be disre-
garded. We will meet them on their own ground on all these points.
Let me first, however, call your attention to the conclusive mathemat-
ics that result from this evidence. I said a little while ago, in opening
the question of the proi)ortion of females, that reflection would show,
without any figures, that this business of killing the males ever since
1847 and s])aring the females, till ])elagic sealing prevented them, must
result in a preponderance. My learned associates have prepared for
my use a statemeut. It is in reply to the calculation that my learned
friend Sir Charles Russell presented, based on the diagrams bf the
American Commissioners which are given in connection with their
Eeport; and he arrives at a conclusion which certainly leads me to think
that he is not so much my superior in mathematics as he is in everything
else. He arrives at the conclusion that the diminution caused by pelagic
sealing on the statistics in this case is inconsiderable; or figuring it out
it is not large enough ever to exterminate the herd. How does he
reach that conclusion'? Simply by leaving out the most important fac-
tor in his sum. He treats these females as individuals, and takes no
account of their productive faculty. He does not take into account the
geometrical progression from year to year. If the same mathematics
were true in the increase of the human race we should not be here.
We should long ago have perished oft' the earth. It is the reproductive
power of the female sex which has kept the human race in its rapid
progression in number, even though the ratio of increase in humanity
is, of course, from many and obvious reasons, very much slower than the
progression of many animals of a lower grade.
In reply to this suggestiou my learned friends on our side have pre-
pared some tables, which are nothing new. They are simply figures
which we make upon the evidence, in reply to his figures; but I cannot
make them understood without you have the kindness to glance at the
Report, They introduce, as I say, nothing new. They are only figures
based on the evidence in the case, and I shall be able to i^oint out what
there is of them, very briefly. They can be compared in their results
with the result that my learned friend has arrived at with his figures.
The assumption of these tables should be first stated, in order that
they may be understood. We assume tlmt the seals born in any year
decrease annually at the several rates indicated in the diagrams of the
United States Commissioners.
(See the United States Case, page 353.) That js from natural
causes, of course; that they decrease aside from anything that men
do; and it struck me that the ratio allotted by the Commissioners of
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 251
decrease from natural causes was too large; but my opinion on tliat
question is worthless; and there is no evidence by whicli it can be
ascertained. They evidently undertook to make a very liberal allow-
ance for the death of the young by natural causes; and they work
out, I believe, that half of all that are born perish the lirst year; and
then in a proportionate ratio they continue to perish from merely
natural causes, even if they were left alone. Then we assume that
each breeding female has a breeding life of 18 years. That is the
result of the best evidence there is in this case: that each breeding
female gives birth annually, from and including her third year, to one
pup, and that half of these pups are females. That, I believe, is
conceded. Of course, these are assura])tions, but they are the best
assumi)tions that the evideiu-e warrants as to the breeding age of the
seals, the number of pups that they produce. Then a calculation is
made in this way; and we will take Table A.. We take 1,000 females.
By way of hypothesis we divide them into 4 classes: 3 years old, 4
years old, 5 years old, G years old, which are all breeding ages. Then
if you refer to the first column of Table A, the left-hand column, the
figures at the top give the numbers of the years from one to 18. In
column one, the 4 lower figures of 250 each represent these 1,000 fur-
seals of 3, 4, 5 and 6 years of age. Now those seals will produce that
year 500 female pups, upon the assumption that, if they produce 1,000
young, 500 will be ienuiles. You add, therefore, to that 1,000, the first
year, 500; and j^ou have now 1,500 females of whom the 500 are just
born.
Now go to the second year, and the 500 females, that were born the
year before, shriidv, by natural causes, to 250 who attained their second
year, and that 250 is the second figure in the column. Then the 1,000
breeding seals, with which you begin, shrink, the one class to 208, the
next to 225, the next to 23G, and the last to 220. Those are the figures
resulting from the ratio of decrease given by the Commissioners. That
number of seals, thus shrunk from the former year, produces that year
444 females, which you will find is the figure at the head of the column,
and the number of female seals has increased that year, the net
increase, to 1,583. Now if you follow that table down, noticing that
the corresponding figure in each column is one step lower down, you
find what becomes of that original 1,000 that you started with. In the
sixteenth year they are all gone; tliat is to say, if not dead they are
past the breeding time, and that 1,000 with which you started has
gradually disappeared from the herd, and is gone.
You will see what the successive birth in each successive year is
after they get to be old enough for the seals that are born in each suc-
cessive year to breed, and you will see at the head of the column under
each successive year the females that will be born during that year.
They are carried forward with their increase after they get to be three
years old, and I think with this explanation I can add nothing that
renders the tables any clearer. They are quite clear as they staiul
and you see the result in the 18 years; at the end of that time 1,000
females have become 2,117, as a net result after deducting all that
have died from natural causes either by being killed in earlier years or
from outliving their usefulness and so disapi^earing.
Unless some question should be suggested about these tables I will
turn to Table B though I should be happy to try to answer any ques-
tion that may be put.
Table B shows the number of females that would have been alive in
1882 except for ])e]agic sealing and which would have appeared on the
breeding grounds in 1884, calculating from Table B.
252 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
This table bc,^ins with the year 1872 and ends with the year 1882.
That covers 11 years therefore. It assumes the theoretical calculation
of the last table. It gives the catch for each year as derived from
actual figures in the evidence the tables given by the American Com-
missioners of the pelagic catch, and it figures out upon that basis the
net loss to the herd by the destruction of the number of females which
the table shows were actually taken.
That requires a word of explanation before leaving it. We have
assumed that for the purpose of this table, all the seals shown to have
l>een taken by pelagic sealing are females. Of course, that mig'ht at
the threshold be challenged. We do it for this reason : In the first
place 85 per cent are proved to be females. Then it is shown by a
^reat body of evidence what common sense indicates sufficiently with-
•out any evidence, that a great many more seals are necessarily
destroyed by shooting in the water than can possibly be saved, and
that of the proportion of seals that are lost, the same proportion are
females as among those that are saved, so that if 85 per cent of the
seals saved are females, 85 of those lost are females, and when you add
a very small percentage to what the evidence shows is the actual loss,
it is a very moderate assumption that the number of seals destroyed,
wasted and lost is equal to the entire number of seals saved, male and
female. Therefore we have felt it right — and the figures sustain us —
in treating the pelagic product that is saved as all of them being females.
JSTow what is the result? The result is that the number of females
killed in those ten years, because although 11 years are covered, in one
year, namely, that of 1873, the catch is not given — the number of
females lost to the herd aside from those perishing from natural conse-
quences is 137,024. That is the actual result; that is at the end of
1882. Now if you Vvill kindly turn over the leaf to table C, this is car-
ried forward, so as to show the number of females which would have
been alive in 1880 except for pelagic sealing, and which would have
appeared on the breeding grounds in 1891, three years later. It is a
carrying forward of the same figures with the addition of the catch in
the years subsequent to 1882— from 1882 to 1889; and on the same
basis of calculation yon find as the result of these figures, that the
female seals on the breeding grounds in the year 1891, in consequence
of the ascertained pelagic catch, would be 483,420, in round numbers,
.500,000 of fen uile breeding seals destroyed by the pelagic catch, and by
jiothing else: I respectfully invite attention to those figures.
Lord Hannen. — You have invited a question upon this table, I
believe.
JNIr. Phelps, — Certainly, my Lord.
Lord Hannen. — Does that take account of any female born to replace
those supposed to be used?
Mr. Phelps. — Yes.
Lord Hannen. — It does take that into account.
Mr. Phelps. — Yes, it takes an account of the perpetual birth-rate
as well as the decrease. In the first table that is made very plain by
iidding every year the increment and deducting the loss from natural
causes. Those are figures that are applied to the pelagic catch, and
the consequence of the figures is, that the loss from the pelagic catch
to the herd is in round numbers 500,000 breeding females — not quite
that. Mr. Carter has suggested a correction, that naturally enough
escaped me, that this 483,420 is subject to one deduction that is not
made in the table. It is a little too large. It is subject to the deduc-
tion of those who would have died between 1889 and 1891, from natural
,*auses.
ORAL ARGUME]XT OF HON. EDWARD J. PHELPS. 253
Mr. Cautee. — It is not too large for ISSl).
Mr. Phelps. — No. The table is right as it is headed. It shows the
loss in 1889, but when you come to carry that forward, 3 years longer,
to 1891, you must take into account the deaths from natural causes of
these young seals maturing during that period. That ligure has not
been nmde, but it would not change the result.
On the other hand the killings of 1890 and 1891 are not included,
which would more than balance, because if they are not included then
the number of fenuiles would be increased rather than diminished.
]S^ow this is Table U, the last one, which shows the loss in the number
of female seals which would be effected by 10 years of pelagic sealing-
based on the supposition that 20,000 breeding females were killed
annually during that period.
This is a hypothetical table not founded on actual catch, showing
what would be lost if 20,000 breeding females are killed by pelagic
sealing each year: you will see readily from the table how that is fig-
ured out, and the total loss in 10 years of female seals would be 301,840.
The diftereuce between this table and the last is that the last is at-
temi)ted to be founded on the actual destruction as reported. This is
based on a hypothetical destruction of 20,000 female seals in each year.
I am talking exclusively of fenuxle seals in these tables. They take no
account of anything else. It is the loss of breeding females. I should
have remarked that there is a total loss of females, and a loss of breed-
ing females, the difference being of course that females are not breeding
females till they are three years old, and the loss of breeding lieniales
is 220,820, and the total loss of females at the end of the period is
361,840.
The American Commissioners do not assume to number the herd^ but
they give a hypothetical herd in which there is supposed to be 1,500,000
females, of which 800,000 are capable of breeding. That i^ a total herd
of 3,000,000. It is seen, therefore, assuming the Pribiloff herd to cor-
respond in numbers to the Commissioners' hypothesis, that in 10 years
of pelagic sealing which destroyed 20,000 breeding females a year, the
number of I'emales in the herd would be reduced by 361,840, or over 24
per cent of the whole number of females, while the breeding females
would be reduced by 220,820. If you take it at 3,0U0,000 as its nor-
mal condition, and assume half of those are females, and that of the
1,500,000 females, 800,000 are ca])able of breeding, the figures tell the
consequence, that 27 per cent of the breeding cows are gone in 10 years.
Of course, it may be said these figures are upon the hypothesis of the
Commissioners, because an exact census cannot be taken, but it is the
best hypothesis that the case admits of. I do not think that examin-
ing this tftble, in connection with the evidence in the case, it will occur
to members of the Tribunal that the premises are in any respect erro-
neous, that the hypotheses are not the most just and reasonable that
the materials of the Case enable us to make; and from this source as
well as from all the others we arrive at a conclusion that I confess, to
my mind, would be just as apparent before I heard a word on the sub-
ject from scientific, or practical men, from tables, from exi)erience else-
where, as it is now. Anyone who will give a moment's attention to
the geometrical progression of aninuil life — aniinals of this class I
mean, or animals that are analogous to those with which we are con-
cerned— must see, if he is no more of a nuithematiciah than I am, what
result takes x)lace.
Cast your eyes back for one moment to the growth of the population
of this world. The conditions of increase are nothing like those w©
254 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
assume here. The human race is not polygamous. The number of
children that are ])roduce(l under ordinary circumstances is far less.
The time that elapses before the productive ])erio(l arises is much
greater. oSTow let a person reflect ibr a moment how long it is since the
continent of America was discovered. The Indians that then inhabited
it are substantially gone. A remnant alone remains in the Far West
that are tV.st disappearing. Now look at the (iO,00(>,OOU or 70,00(),000 of
l)eople on that Continent, leaving Indians out. AVhere do they come
from? Emigration considerably, of course. All from emigration in
the first place — all the descendants of emigrants. But what country
has lost population in that period from whence they came? One or
two — perhaps one, might be named; under unhappy circumstances in
a more recent period, its iiopulation has diminished, but not during
that entire period. In every country in the world that 400 years ago
began to contribute to the i)opulation of the Western Hemisphere its
own population has largely increased.
Now suppose a herd of animals of this kind is not touched by man
at all. The increase would not be indefinite: it would reach a point
which would be called, by naturalists its maximum. The laws of nature
provide for those things. Ko race of animals could ever over-populate
the earth or reach a point where the laws by which the increase of ])op-
ulation regulates itself.
The President. — Malthusianism.
Mr. Phelps. — Yes, the natural Malthusianism. The natural opera-
tion of that theoiy undoubtedly; but in order for that, causes have to
intervene, provided by Providence, by which these animals are kept at
their maximum. It was enquired by the President, in the early stages
of this discussion, how it came to pass, if the males were not reduced
by artificial killing, that the females would become most numerous.
That is a question that is for naturalists to ansAver, or for observers;
but I suppose the answer to be in the theory of the survival of the
fittest. I suppose when the number of males becomes too large in such
a herd of wild animals, when they are not artificially restrained as in
the propagation of domestic animals, there is a mutual destruction by
fighting, of which these islands are the consi)icuous theatre, with regard
to this race of animals, and it results not in the survival of all the males,
but only a part of them. However, that is theoretical, and I do not
care to pursue it.
Now, Sir, this is the point to which all my observations have tended
to day, and, part of them, yesterday: are we, or are we not as a matter
of fact, established by the evidence in this case, drawn from many con-
verging and indejjendent sources, entitled to say, that the continuance
of pelagic sealing just as it has taken place, especially in view of the
increase of it, which we have shown also to be steady, and which will
only find its check when the destruction of the animals ceases to render
it profitable, results necessarily at no very distant period in the exter-
mination of this race of animals here as it has everywhere else.
Now returning to what has been said by my friends on the other side
— that is to say, that the management on the islands has not been good,
and therefore that the pelagic sealer is not responsible for all the
decrease that has taken place in this herd.
Before I look into the facts upon which I shall claim that to be a
proposition absolutely unw^arranted — that will no more bear examina-
tion in the liglit of the whole evidence in the case than any of the other
propositions that I have been able to demonstrate to be inaccurate and
unfounded — suppose it to be true? Suppose that in the prosecution of
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 255
this indiislry by a great nation not wanting in intelligence, anxious to
preserve this herd, largely interested in preserving it — that in this
industry as in every other pursuit that man ever set his hand to, exj^eri-
ence has shown, as it advanced and grew, that earlier methods were in
some respects deficient — that the first ideas were uot always the best —
that time has developed uot only the necessity, but the means of
improvement. Is there an industry to which that does not apply?
Can there be? Can any man undertake to say that the time will ever
come when the oldest handicraft will have reached a point at which
improvement is impossible? 1 fancy that no man who has a common
acquaintance with the history of his race will venture to assert such a
conclusion. Suppose it is true that the number it was estimated might
be taken from the seal herd without harming it, had proved too great —
suppose it was true that in the manner of taking them the best pos-
sible manner is shown by experience not to have been observed and
'that improvements are needed, is there any doubt that they will be
adopted? May not the interest and intelligence of the nation which,
with such sedulous care, has managed this industry during the short
period since 18G9 when they began, make it certain that tlie improve-
ments will take place? Are the difficulties that are suggested difficul-
ties that cannot be overcome? Is it like the killing of the female seal
in the water, — something that cannot be helped if you are to kill seals
there at all? Very far from it. Therefore, I might well dismiss this
suggestion of the accountability of the management on the Islands for
a part of the decrease with the single remark : — Granted that experience
has taught us better intelligence, and that some things must be cor-
rected which are easy of correction, what has that to do with the
certain and inevitable means of extermination with which we are deal-
ing in this case? It almost needs an apology for carrying this enquiry
any further; and it is only because I am not wdling to leave anything
that I conceive to be wrong — without allusion.
Now, what are the points in the managenient on the Islands which
are claimed by my learned friends to have been mischievous in the
past? They are two. They say, we have killed too many male seals.
The draft that we set out with of 100,000 is too great. You will remem-
ber that the Statute authorises the Secretary of the Treasury at any
time to restrict it, if it is found that they are taking too many. You will
remember that under the Orders of the Secretary in 181)0, the number
was restricted to 22,000; and, tlierefore^ it is perfectly plain that, if
any restriction is necessary for the preservation of this race, it will be
made. The United States here is not struggling for the privilege of
prior extermination, because that would be quite in their power without
any license at all.
The second objection is that in the manner of driving the seals, at
times I will allude to presently, they have been injured; those that are
not killed have been so injured as to affect the reproductive power of
the race, and so to diminish the birth rate by affecting the opposite sex
from that which is exposed to pelagic sealing.
If that were true it does not touch the question of extermination at
all. It simply shows that we have somewhat hastened it by ill-advised
conduct which it is to be presumed will certainly be checked and be
corrected if the race can be preserved. But there is no just foundation
for that assertion. It stands principally upon the statements of a gen-
tleman about whom more has been said than would have been said if
he were here present to be (examined orally, who has been i:>romoted in
this case by my friends to the office of Professor, — a gentleman who has
■256 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
givon considornble attention to this subject, wlio has written much and
said more, and who undoubtedly knows a good deal about the subject
and has been regarded as an authority.
IJut before I come to consider tlie only point on which we have any
criticism to nmke upon Mr. Elliott's deliverances upon this subject,
which are all in favor of our contention, except on this one topic, let
me say that we can well afford to accept this gentleman at the estimate
put upon him by my learned friends on every point but tliis; we do not
need his corroboration, but we have it very emphatically, for all it is
worth, on every point almost, connected with seal life which we are
contending for, except this.
Now, as to the number, my friends have endeavored to show that the
American average on the Pribilof Islands, of 1()0,()()0, was a great deal
larger than the Eussian authorities had deemed safe. To begin with,
what if it was ? What constitutes the Kussians a particular authority 1
The reference to the average which Eussia, in the early period, before
they began to discriminate, when they were killing in an exterminating
way, that is to say killing without any reference to whether they were
males or females — does not prove anything. It was not until 1847, as
the British Commissioners admit, that the present system of discrimi-
nation was begun. It has been followed ever since.
After that, between 1850 and 18G7, it will be found from the evidence
that the number of skins they took, depended on the markets of the
world. Of course they could not overstock the market without depre-
ciating the returns, instead of increasing them. Bancroft, the historian
that is referred to in the British Case so frequently, — I read from the
footnote to the United States Counter Case page 73 — says :
In 1851, 30,000 could be killed annually at St. Paul Island alone, and in 1861 as
imany as 70,000, without fear of exhausting the supply.
The figures from 1800 to 1807, given in the British Case, are shewn
fin the United States Counter Case at pages 71 to 73, to be incorrect.
What are they? They say lor 1801, 1802,^803, 1801, 1805, 1800, 1807,—
so many; the last five being estimates — round numbers, and as to 4
of them an interrogation mark is put against them by the Commission-
ers, which indicates that they are open to question — they are rather
suggested. Then in Sections 777 to 779 of the British Commissioners
Report, you see how these figures are reached. To get those of 1801,
they took Elliott's totals for the years 1812 to 1802 and subtracted
Bancroft's totals from 1842 to 1801, and the difference they call the
figures of 1801. But what does Elliott himself say about those totals
of his? At page 105 of the Census Keport he says:
I now append a brief but significant extract from Tochnineniov — significant sim-
ply because it demonstrates that all Russian testimony, other than A'eniaminov's,
is uderli/ self conlradiotorii in regard to the number of seals taken from the Pribylof
Islands. Techmneniov first gives a series of tables which he declares are a true
transcript and exhibit of the skins sold out of Alaska by the Russian-American
Company. The latest table presented, and up to the date of his writing, 1862, shows
that 372J894 fur-seal skins were taken from the Pribilof Islands, via Sitka, to the
Russian markets of the world, in the years 1812-1862, inclusive; or giving an average
catch of 18,644 per annum (p. 221). Then further on as he writes (nearly one hun-
dred pages), he stultifies his record above quoted by using the language and figures aa
follows: " In earlier times more were taken than in the later; at present (1862) there
are taken from the island of St. Paul 70,000 annually without diminishing the num-
ber for future killing". Further connneut is unnecessary upon this author, who
thus writes a history of the doings of the Russian-American Company.
The bottom, therefore, of the British Commissioners computation
derived from Mr. Elliott, falls out upon the testimony of Mr. Elliott,
who says that it is not in the least reliable, TUo United States sho\5C
ORAL ARGUxMENT OF HON. EDWARD J. PHELPS. 257
that the number of seals kiUod in that year, 1801, was 47,940, and iu
proof of this they have i^ublished a letter from the Chief Manager of
the Russian American Colonies to the Eussian American Company,
written at Sitka, October 14, 1801, containing a Keport upon the oper-
ations of the Company for that year. The reference for that is the
United States Counter Case, page 105. One would suppose that was
satisfactory evidence of the number killed by the Company. He says —
this is an extract of course :
Iu the course of tliis year —
that is 1861 5 the date of the letter is October 14th
In the course of this year 47,940 seal skius hav-e been taken from the islands of
St. Paul and St. Geoi-<;e, of wliieh nuuiher 24,943 salted, 3,000 bachelors, dried, and
2,500 greys have to be sent to New York; and 12,000 dried skins will now be sent by
the ship C~aritza to Cronstadt.
The British Commissioners, in this extraordinary method of commi-
tation, make the figures for that year 20,009. The Manager of the
Company informs us that it is 47,040.
Sir Charles Russell. — One is shipped from the island, and the
other may be killed on the island. The two figures are not inconsistent.
Mr. Phelps. — Why not? He describes what had become of all
these — where they are all sent. Tliey are all sent to market.
Sir Charles Russell. — You have been speaking yourself of not
glutting the market.
Mr. Phelps. — They are all sent to market. They are not only killed,
but sent to market; and they only shew the fallacy of figures that are
arrived at by taking one unreliable and unproved sum, and subtracting
it from another unreliable and unproved sum and taking the dilference
as the basis.
At Section 779 of the British CommiSvsioners Report is the authority
for the years 1862 to 1807. That is their figures. Most of them they
have marked with an interrogation point, as I said before. They by no
means undertake to vouch them; — I am not to be inferred as say in g
that they misrepresent this, becanse they say themselves that these
figures both inclusive, have been filled hyijothetically by Elliott. They
say:
The figures for the years are therefore iar from satisfactory.
Those figures of course disappear, because in the first place the Com-
missioners say themselves that they are unsatisfactory: they appear,
in the next place, to be based upon a hypothesis, and the man who
invents the hypothesis, Elliott, says they are unreliable. They disap-
pear into the air.
We have put translations and facsimiles of the official Correspond-
ence of the American Company consisting of Reports from the wit-
nesses, and orders to the managers, in the Counter Case at pages 105
to 100, and at page 420.
I will read the I'eport for 1802 — Ave have seen what 1801 was. This
is an extract. It is the Reportof the Chief Manager at Sitka. He says :
In spite of the great slaughter of seals on St. Paul and St. George they are every
year occupying more space with their rookeries; and I therefore penult ted the man-
ager to take 75,000 skins on the former island, instead of 50,000; and on the latter
5,000, an increase of 2,000. Seeing now, however, that the demand for sealskiua
for New York does not go beyond 20,000, I will alter this arrangement, and instruct
him to pre])are 25,000 salted sealskins and 20,000 dried on St. Paul and not to take
more than 3,000 on St. George, as heretot'ore. The soalskiua romaiuing over cuunot
epoik as they are thoroughly saltctj.
B S, PT XV 17
258 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
What becomes, I should like to know, of the suj^gestion that in these
years the liussians found it necessary to take fewer seals than the
United States took afterwards? This is l.Sdl and 18tL'. AVhat are the
records for the following- years? In 18(53 it was 70,000. I refer to the
United Stales Counter Case pages 195, 19(1, 197 and 199. They are
taken from the original letters of the managers of these Companies
which are there given. I read in this abbreviated way to save time,
and to present results instead of wading through language. You will
find the letters there.
1863 : 70,000 ( U. S. Counter Case, p. 195)
1864: 70,000 ( — — — p. 196)
1865: 53,000 (— — — p. 197)
1866: 53,000 (— — — p. 197)
1867 : 75,000 ( — — — p. 199)
The British Commissiouers suggest that the Russians were honest
enough, as they were about to cede the business to the United States,
to take a large number of seals the last year notwithstanding it might
be a detriment to ^he islands. That is not a very respectful suggestion
concerning a Government like Eussia, and certainly is not warranted
by any evidence; but in the United States Counter Case page 199,
N" 15, that such is iu)t the cause of the increase, is shewn. Then the
Eussian average in the late years of their control, (after they began to
discriminate so that the herd was in a normal condition), reached
70,000 skins that were taken ; and it ap])ears that more could have
been, and would have been taken, except that they were kept down by
the exigencies of the market, the want of demand.
In 18(!8, in the chaos that took place in the absence of law, there
were 240,000 seals killed. That is shewn by Mr. Morgan's testimony
in the United States Case, Appendix Volume II, page 03. And in
1869, the following year, after the government had gotten hold of their
property and began to control it the amount was 85,000. The number
of seals killed on the Pribilof Islands from 1870 to 1889 for all pur-
poses, (including those pups killed for natives' food and the few seals
that died during the drives) is given in the United States Counter
Case, pages 425 to 428; and the total number is 1,977,337, being an
annual average of 98,857, That is what we took from the island before
the take was restricted by orders of the Secretary of State or under
the operation of the successive arrangements of the onodus vivencU.
There is what the evidence shews upon this point.
Then it is said that there were warnings to the United States Govern-
ment that the killing of 100,000 seals annually was too great — that our
officials, some of them, made known to the (jovernment that too many
male seals were being killed; and they quote JJaniel Webster, an excel-
lent witness, properly relied on by both sides, who says that formerly
there would be an average of 38 cows to 1 bull — now they will not aver-
age 15.
Let us see from Mr. Webster's affidavit — his observation was very
large — what he does say about it. You may take a casual expression
or a line without its context and get a very erroneous imi)ressioii. The
reference to this is page 179 of the 2nd United States Appendix.
What I am reading is a quotation. He says:
There was never while I have been upon the islands any scarcity of vigorous bulls,
there always bein.i'- Ruffi<'ient number to fertilize all the cows coming to the islands.
It was always borne in mind l>y those on the islands tliat a sufticient number of males
■must be preserved for breeding purposes. . . The season of 1891 showed that male
seals had certainly been in sufticient number the year belore, because the pui)s on
the rookeries were as many as should be for tho number of cows landing. . , ^'hen,
too, there tvas a 8arj)lus of vigorous hulls in 1801 who could obtain no cows.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 259
That is Mr. Webster's evidence.
Then tliey cite Captain Bryant. The British Commissioners qnote
Captain Bryant. It is very remarkable how full the British Commis-
sioners lleport is, of references to what is said, ofteu, by uukiiown men;
to letters, often, the writer of which is not given ; to letters or to persons
as in this case wliere the author is given, but the substance only is
stated as understood by the Commissioners, without any context; the
Reiiort is full of tiiat sort of evidence, which every one who has ever
Lad any dealing with evidence knows is tlie most likely, of any in the
world, to be mistaken. It is hearsay, excluded as evidence, under the
Common Law. Why? Simply because human experience shews that
you cannot get hearsay correctly. You can get what is said to be
hearsay, but the moment you undertake to resort to hearsay evidence,
yon are utterly at sea. Mr. Foster suggests that I am wrong in respect
to this quotation, and I am very happy to make the correction. In this
instance this is quoted from Ca])tain Bryant's statement, — I was wrong
as far as this is concerned. The context, however, shews that when
you get at the context that is not what Captain Bryant means — that is
not wliat he says.
Sir Charles Hussell. — Would you kindly give the reference?
Mr. Phelps. — It is our House Executive Document, No. 83, Mth Con-
gress, page 178.
Sir Charles Kussell. — Where is it cited?
Mr. Phelps. — At page 09 of the Counter Case. This is not referred
to by the British Commissioners. Captain Bryant recommends, in
October 1875, that tor two years only the killing be reduced to 85,000.
This is omitted from the British Commissioners Keport. Then in his
sworn testimony before a Congressional Committee in the year 1870,
his views on this subject are brought out, and this is cited in the United
States Counter Case page 71. This is what he says:
In the season of 1868, before tlie pvoliihitory law was passed and enforced, nnmer-
OU8 parties healed on the Islands at will and took abotit two hundred and lifty
thousand seals. They killed mostly all the product of lS6()-'67. In makiug our
calculations for breeding seals we did not take that loss into consideration, so
that iu 1872-'73, when the cro]) of lS(iG-'()7 would have matured, we were a little
short. These seals had beeu killed. P'or that reason, to render tlie matter doubly
sure, I recommeufled to the Secretary a diminution of 15,000 seals for the two years
ensuing. I do not, however, wish to be understood as saying that the seals are all
decreasing — that the projjortionate number of male seals of the proper age to take
is decreasing.
Q. The females are increasing?
A. Yes, Sir; and conse(iuently the number of pups produced annually.
Q. It looks, then, as if the males ought also to increase?
A. I think that number of 100,000 was a little more than ought to have been begun
with. I think if we had begun at 8.3,000 there w^ould have been no necessity lor
diminishing. On the other hand, I think that within two years from now it could
be increased.
Now it appears timt all that Mr. Bryant meant (and this is his expla-
nation to the Committee, not hi^ evidence in the case), was this — he
meant to say that the year 1808 when 240,000 had been killed had so
reduced the herd that he thinks it would have been safer to have begun
at 85,000 instead of to begin at 100,0U(>; but that in two years after it
could have gone to the larger ligure. And in section 818 of the British
Commissioners Report, quoting, they say :
liryant states that this year (1877) there was evident increase in the number of
breeding males. He estimates that there were about 1,000,000 breeding seals on the
islands, as against 1,300,000 iu 1869.
Mr. lilliott, who was on the Ishiuds from 1872 to 1870 makes no refer-
ence to the gai) iu certain classes of males, which Captain Bryant alone
2 GO ORAL ARGUMENT OF HON. EDWARD J, PHELPS.
a])i)oars to have noticed. The British Commissioners in para,2;raph 822
of their liei)ort say that Elliott in the same Report — that is the Census
Eeport of 1881 — says that the breeding rookeries have been gradually
increasing since 1 857
Sir Charles Eussell. — What year is that in*?
Mr. Phelps.— Elliott's Census Keport of 1881.
Sir Charles Russell. — You are passing 1872, 1873 and 1874?
Mr. Phelps. — Yes.
Sir Charles Russell. — Very well.
General Foster. — And 187G.
Mr. Phelps. — I have to pursue this subject a little further, Sir, before
I have done M'ith this topic. I shall not be long upon it, but I am so
much fatigued, and the hour of adjournment has arrived, that I shall
ask to be allowed to defer my further observations till to-morrow. I
may say I am very confident that I shall finish all the observations I
have to trouble you with, to-morrow.
[The Tribunal thereupon adjourned till Friday, the 7th of July 1893,
at 11.30 a. m.]
FIFTY-SECOND DAY, JULY f'\ 1893.
Sir CnARLES Russell. — Before my learned friend resumes his argu-
ment, Sir, I want to make a correction in point of fact. You Mill recol-
lect a discussion that occurred some days a.uo (I think it was also referred
to during the argument of my learned friend) about the map No. 08 in the
schedule of maps and described as the "Map of 18132 with additions to
1823", — that was stated by someone on our side originally, and I believe
I repeated the statement, that it came from the I>ritish Museum. Well,
that turns out to be inaccurate. It is a map in the ])ossession of the For-
eign Oftice in London and is here now, and I produce it to my learned
friends. It is a matter of no importance; but we wish to be correct iu
our statements.
The President, — It is the Arrowsinith map?
Sir Charles Kussell.t— Yes; it is described here as, "by Arrow-
smith, Hydrographer to His Majesty, 1822", and iu print underneath,
"Additions to 1823". There the matter ends.
The President. — They are printed or engraved editions'?
Sir Charles Eussell. — Yes ; printed or engraved additions. There-
fore, showing that though published originally in 1822, there was a second
edition in 1823.
The President. — We shall be pleased to see the map.
Sir Charles Russell. — Certainly. This is one side of it, but it is the
important side. You will see "Behring Sea" is not marked.
Now, you will recollect that yesterday ray learned friend produced
and dwelt for some time upon a certain Table of figures, working out or
professing to work out certain mathematical results. You will recollect
that Table of figures which was handed in. I ought to tell the Tribunal
that my learned friends did not furnish us with copies of that document
beforehand; and my reason for mentioning that fact is that, if they had,
we should have been prepared by this time to offer certain criticisms to
which we think it is open. It has been examined by persons who are
more competent than I profess to be, because I do not, any more than my
learned friend, profess to be a mathematician; we conceive it is based
on false assumptions; but even on those assumptions, it is not worked
out correctly. And, therefore, we claim the right respectfully to put in
black and white, as my learned friends have done, a criticism on this
Table. The Tribunal will then judge what weight is to be attached to
the origiiuil document, as well as to the criticisms upon it.
The President. — You mean the calculation. This was no new docu-
ment, but only a cahmlation.
Sir Charles Russell. — And a calculation, as we say, which is
inaccurate.
The President. — That is simply a matter of arithmetic.
Senator Morgan. — And it oidy refers to matters that are iu the Case
and Counter Case.
Sir Charles Russell. — We deal with the document that they have
handed in and point out, Sir, the errors that we conceive are to be
found in it.
261
262 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
The President. — Tbere can be uo objection to any error being rec-
tified, I slioulcl think.
Sir Charles Ktssell. — Of course, we* should propose to hand to
my learned IViends a copy of whatever figures or criticisms we put
down before handin<>' it in to you.
Now, only one other thino-; my learned friend said yesterday that I
had, in my criticism which 1 addressed upon the figures, lost sight of
the gexunctrical progression that would apply to the consideration of
thisquestion. I am not much concerned to defend myself; but I want
to point out that I was dealing with the question of whether pelagic
sealing could have occasioned the great decrease said to have been
manifested in 1884; and, for that purpose, it was not necesary to con-
sider the question of geometrical increase, because these animals do not
begin bearing until tliey are three years of age. That is all I meant,
and before the 3 years, before 1884, the amount of pelagic sealing was
almost nil.
The President. — There is no question of the propriety of bringing
in the geometrical i)rogression as Mr. Phelps did.
Sir Charles Russell. — There are two sides of that account, Sir —
that is a criticism — only one of which has been looked at by my learned
friend — there is a debit and a credit side.
The President. — As to the paper you propose to hand in after you
have been in comnuinication with yonr friends on the other side we
will take it and see what it is and reserve to ourselves the right of
determining what use is to be made of it.
Sir Charles Kussell. — Certainly.
The President. — Now, Mr. Phelps, will you please to resume your
argument and continue after your own plan, and we shall be pleased to
hear you.
Mr. Phelps. — In respect of the map which my learned friend has
properly produced, since it has come into their possession, I have only
to repeat the observation I made before, and which was substantially
made by Sir Richard Webster, that this map, from its date, could not
have been in the possession of thgi negotiators of the American Treaty
and that it is extremely improbaljle that it should have been in the
liossession of the British negotiators.
With regard to the table of figures submitted yesterday to which
my learned friend refers, I have nothing further to say. The document
will vindicate itself upon examination. If it does not vindicate itself,
it would be quite impossible to set it up, and I have no fear of any
criticism that it will be in the power of any one upon the facts of this
case to make.
As to the other point my learned friend refers to.
I do not know that I quite comprehend what he means to say. If he
only means that if the females that were killed in the water were unpro-
ductive females who never could have any young, I quite concur with
him that the ravages of pelagic sealing would then become slow and
that would be a question which this case has not i)resented. But the
objection to it on economical grounds, aside from any question of
humanity is that every female that is killed is not only the probable
immediate mother of young, but the future mother of young to an
extent only bounded by the age of the animal.
Now I return. Sir, to the subject I was considering yesterday at the
time of the adjournment, and to which I am afraid I am giving more
time than it justifies, because I think it is all sufliciently answered by
the suggestion I have already made, that even if it were found to be true
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 263
that to some extent on tlie islands there had been a miscalculation, an
overdriving, or anything else which experience shows was not advisa-
ble, it is to be presumed, and it is perfectly certain that would be cor-
rected, as it is quite in the power of the Government to correct it, and
that it does not at all enter one way or the other into the question of
the consequences of pelagic sealing, which are quite independent. It
simply suggests if it is true, though we have taken the pains to show
it is not true, that the conduct of the American authorities has helped
towards the decrease that now exists, and is conceded to exist. I had
considered yesterday the first proposition that is made that too many
seals have been killed, and I was passing over the evidence as fast as
I could on the subject of the decrease, and of the warnings that are
said to have been given to the American Government by its own
agents on this subject. Eesuming that, I referred to Captain Bryant,
the first witness called on the other side. Dr. Me Intyre is another
witness relied upon, and when you examine his testimony you find in
respect to this, that it shows no such thing. Dr. Mc Intyre is cited by
the British Commissioners. He was the superintendent upon the
Islands, and he says the number of seals have decreased since 1882.
He did not mean from 1882. All the evidence in the Case is to the
contrary of that. It was very much later. It was as late as 1889. In
1881 and 1885 there was a slight decrease, but the significant decrease
I am talking of, that would attract attention, was much later than that.
In support of that, passages are cited from his Congressional Eeport
in 1889, entitled "Fur-seal fisheries" and the moment the language
is read it will be seen that Dr. Mc Intyre does not mean any such
thing as is ascribed to him. He is referred to at section 830 of the
British Commissioners' Report, and he says at page IIG of the Con-
gressional Keport of 1889.
From 1870 to 1882 there was a constantly increasing number before the beginning
of the annual marauding, and the increase was apparent each year. The bounda-
ries of the rookeries were being constantly extended. The lanes through the rook-
eries were in many cases completely closed before 1882. There was no question at that
time as to the increase, but since 1882 the lanes through the rookeries have again
opened and grown wider Irom year to year. Diiring the last two years bachelor
seals pass through these lanes as they did not formerly.
He was absent from the Island, as is shown in the United States
Case Appendix, 1883, 1884 and 1885. He knew nothing about it and
could have known nothing about it and does not profess to have known
anything about it. When he says since 1882, he does not mean to say
beginnirifj tcith 1882. He is writing in 1889. Another quotation from
Dr. Mclntyre's testimony is found in the Appendix to the United
States Argument page 293:
I was, therefore, always alert to see that a due proportion of breeding males of
sei'viceable age was allowed to return to the rookeries. This was a comparatively
easy task prior to 1882 1)ut it became from year to year nu)ro difficult as the seals
decreased. No very explicit orders were given on this point till 1888.
There is the same observation.
In the affidavit of Dr. Mclntyre in the 2nd volume of the United
States A])pendix, page 45, he uses this language, and this is really his
judgment on the subject:
That from the year 1880 there was an expansion of the areas of the breeding
grounds and that in the year 1882 they were as large as at any time during my
acquaintance with them; that during the three years following 1882, namely, 1883,
1884, 188.5, 1 was not upon the Ishuuls; that upon my return to this Islands in 1886,
I noticed a shrinkage in the breeding areas but am unable to indicate the year of
the period of my absence in which the decrease of the breeding seals began.
2G4 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
These are the only witnesses on the Island before 1889 who are relied
ii])on by the British Government to sustain the assertion that too many
seals were killed on the Island.
The Presideni'. — Is that the same witness, Dr. Mclutyre, you were
reading' from in the British Commissioners Eeports.
Mr. Phelps. — Yes, a witness of unquestionable authority. All I
desire to find out is, what he means to say. In 1890, the Treasury
Agents on these Islands were Mr. Golf, Mr. JSTettleton, Mr. Lavender,
and Mr. Murray. They were new men, none of them having been
there before 1889, and it was at that time Mr. Elliott appears on the
scene. Passing Mr. Elliott i'or the moment, see what the others say.
Mr. Murray, in his Official Ke]>ort cited in the British Appendix, Vol.
3, page 19, expresses the opinion that the seals were diminishing.
That is in 1890, because of the killing off of male seals whereby none
were left for use on the breeding grounds. In the same Ile])ort, he
expresses the further opinion that the seals had been steadily decreas-
ing since 1880. Of course, this could not be based on any personal
knowledge at all; but in 189li, Mith larger experience, Mr. Murray tes-
tifies under oath in these words:
During my observations in 1890 I was led to believe that the decrease was partly
due to the lack of bulls on the breeding rookeries, and I so reported to Agent Goff.
We shall see pretty soon how he was led to believe and by whom :
But after thoroughly investigating tlie subject the next year by daily visits to the
breeding grounds of the several rookeries, where I saw nearly every cow with a pup
by lier side and hundreds of vigorous bulls without aiiy cows, I came to tlie conclu-
sion that there was no truth in the theory, and tliat it was the cow that was scarce
and steadily decreasing.
It was Mr. Elliott, who came there with the prestige of being an
authority on that subject; who was sent there by the Government;
who had formerly visited the Islands and written on the subject, that
put it into the head temporarily of Mr. Murray and one or two others
that this theory he set up (and we shall see why pretty soon) was true.
And I may remark in passing, that there is abundant proof of the
inaccuracy of Mr. Elliott's observations, because Mr. Murray found on
the breeding-grounds the offspring of the various animals that Mr.
Elliott laments with much rhetoric v/ere wanting. Mr. JSTettleton vis-
ited the Islands for the first time in 1889, and his rei)ort for 1890 appears
in the British Case; and he confirms the remark 1 made just now. "I
do not feel called upon to go into details with regard to this," he says,
"in view of the forthcoming lieport of Professor H. W. Elliott," but in
July, 1892, after he had been there long enough to have an opinion of
his own and after he had probably come to be better acquainted with
Mr. Elliott. (It is in the United States Case and Appendix, Volume
II, page 75:)
During my stay on the islands I have never seen a time during the breeding sea-
son wlien tliere has not been a number of large, vigorous bulls, young bulls hanging
about the borders of the rookeries watching for an ojiportunity to get a position
of their own.
Then Mr. Lavender is referred to, another of the recent Agents; and
he undoubtedly was under the influence of Mr. Elliott's activity. He
says:
The writer was surprised when he first visited the rookeries to find no young bull
seals upon tlieni ; — this looked strange to him, and he began to look up the cause,
and it occurred to him that the constant driving of young males and the killing of
all the 2, 3, 4, and 5 years old.
— what he means by that you can judge as well as I can ; that is to say,
you cannot judge at all. Mr. Goli" we shall see afterwards.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 265
I have not yet mentioned Mr. Elliott; and except so far as JMr. Elli-
ott's Keport is to be relied ui)oii, there is absolutely no evidence (and
we shall cite .a great deal of evidence to the contrary) that there was a
diminution of the sort he undertakes to desciibe on those Islands whicb
could have had to do with the decrease of the birth-rate.
Now, let me come to this matter of driving; and I have still to post-
pone the consideration of the only witness that really supports it, Mr.
Elliott. His theory is absolutely invented by himsell', — nobody ever
lieard of it before. He cites no authority for it, except a passage from
one of tlie liussian writers, which, as I shall show, is mistranslated and
reads exactly the other way. There are two passages in Mr, Elliott's
Eeport translated from the Kussian, and in both of them it appears not
merely that they are erroneously translated, but that the sense of the
passage translated is exactly the opposite of that which is given as his
translation. The hauling grounds are situated, as api)ears, at a dis-
tance of 1^ to 2^ miles; the average distance is about 1^ miles; the
llookery Charts in the United States map show this. Before pelagic
sealing obtained any dimensions, the killable seals were on the hauling
grounds, that is to say males from 2 to 5 years of age, — those males
that Mr. Lavender appears, by his statement, to have thought should
not have been killed. He does not tell us what you could kill if you
do not kill those, if you killed any, and the evidence shows that less
than an average of 20 ])er cent of these driven up were turned back.
Mr. Elliott's theory is that numbers were injured by this re-driving and
being allowed to go back. That is the i^oint I now come to.
Up to 1890 there was no re driving, and there is not a word of evi-
dence to show that there was. None but a small percentage in the
drives, when a superabundance of seals would go up, and some might
come back again, but not in sufiticient number to be appreciable. It
is said they were turned back, and taking the largest construction
of this evidence, as I desire to do, and not to minimise it, you may
argue or infer that perhaps if some few went back from the drives they
might be driven over again, but whether they were not all ultimately
killed is of course quite a dilferent question.
Till 1890, the seals were sufhciently abundant not to require this sec-
ond driving, and the driving which Mr, Elliott complains of never took
place till 1890, and that the evidence is conclusive to show. Now sup-
pose that by the driving in 1890 — and that is another conjecture that
is utterly without foundation — suppose that some of these re-driven
seals were injured by that process in 1890, when would that make its
appearance in the herd? They could not begin to be productive till
they were 5 or 6 years old — none could get on to the rookery and it is
not i)retended that they could. If then these driven seals could begin
to be productive when 5 or 6 years old, it would be, of course, still
another year after that, if not 2 or 3, before the results of any failure
in re-productive capacity would make itself appreciable. It is per-
fectly evident, therefore, that this decrease, which everybody agrees
was to be seen there in 1890 and 1891, could not have come from any
abuse in the driving in the year 1890. The very earliest time and sea-
son, that if any such facts were true, they could manifest themselves
on the Island would be some years later. In 1890 the catch was stopped
on the 20th July by Mr. Goff, the United States Treasury Agent,
because he perceived they could not get the requisite number which
their contract allowed, and less than 22,000 skins were taken that year.
It is undoubtedly true that, in order to get 22,000 skins in the year 1890
there was more or less excessive driving, or re-driving — a method of
266 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
driving that probably could not be carried on as a permanent tiling
from year to year without miscliievoiis results, but it had never taken
place before, and the reason was, because there was no occasion for it.
It was the result of the scarcity that had been brought about by this
pelagic sealing and for which no other reason is suggested.
Mr. Justice IIarlan. — What year is that?
Mr. PiiLLrs. — 1890. I say no v(Mson is suggested. T should ])erhaps
say that no reason is proved. There is a general talk by my leaiiied
friends about the consequences of driving; but when you look into the
evidence to see when it took place, 1890 was the first time, and then it
stoi)ped.
The President. — What was the allowance made by the Government
for that year 1890?
Mr. Phelps. — I believe it was G0,00() — I believe that was the first
year it was changed. Tliere was always a provision, you will remem-
ber in these leases, that the number allowed on the face of the contract
could be diminished by the Treasury Agent, and it was reduced, Gen-
eral Poster remiiuls me, to 00,0(10 by order of the Secretary of the
Treasury, and they were only able to get less than 22,000, so that less
than 22,000 was actually taken, though the Secretary's order would have
permitted them to take 00,000.
The witnesses that are relied upon on this subject of redriving, every
one of them, refer only to the year 1890, when the fact is not in dispute,
but when, as I have said, it could have produced no possible effect.
This is what Mr. Goff said, who stopped this, and 1 read from Volume
III of the British Api)endix, part 111, page 10:
We opened the season by a drive from the Reef Rookery, and turned away 83 1/2
per cent, when we should have turned away 15 per cent of the seals driven, and we
closed the season l)y turniuj;- away 86 per cent, a fact which ])roves to every iui])artial
mind that we were redriving tlie yearliiij;s. . . and that we were merely torturing
the young seals, injuring the future life and vitality of the breeding rookeries, to
the detriment of the lessees, natives and the Government.
In 1890 that was true; that is what Mr. Goff reported to his Govern-
ment.
In his affidavit, Mr. Goff says, in the United States Case, Volume
II, page 113:
A few seals are injured by redriving (often confounded with overdriving and
sometimes so called), but the number so injured is inconsiderable and could have no
appreciable etl'ect upon seal life through destroying the vitality of the male. The
decrease, caused by pelagic sealing, compelled whatever injurious redriving haa
taken ]»lace on the islands, as it was often necessary to drive every two or three
days from the same hauling grounds, which caused nniiiy seals let go in a former
"drive" to be driven over again before thoroughly rested. If a "drive" was made
once a week i'rom a certain hauling ground, as had been the case before pelagic seal-
ing grew to such enormous proportions, and depleted the rookeries, there would be
no damage at all resulting from redriving.
• Mr. Nettleton, another Treasury Agent, concurs in those views,
because in his deposition, United States Case, Volume II, page 76
he says:
The result of my observations of the methods of driving the seals from the haul-
ing grounds to the killing grounds is that a very small i'raction of one percent of
the seals die from being overdriven or from being overheated in driving.
Something is said about Mr. Pabuer, who had no knowledge of this
subject. He was there with Mr. Elliott, and partakes of the views of
Mr.' Elliott that I shall examine later.
Qn the Russian Islands, as the iJritish Commissioners themselves
said, the driving was a great deal harder for the seals than on the
American.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 267
On Conper Island.
say tlie British Commissioners in section 700 —
on tlie contrary, the drives generally extend acr(;.ss the ishmd, niid are from three
to four miles long, very rtmuli, and crossiuj;' one oi' more intcrvciiinsj;' steep ridi;<>s.
These drives must be mucli more trying- to the seals than any now made upon the
Pribilolf Islands.
We never heard from tliere or any quarter in this case that any
diminution bad ever been noticed till the year 1892, when the pelagic
sealing commenced.
The statement of Mr. J. K. Monlton in the United States Case, page
72, volume II, is:
I am positive the reproductive organs of every one of the hundreds of thousands
of seals I have seen driven were uninjured by their movements on land, and I am
further convinced tliis must be so from tiie fact that a seal wlien movint:^ on land
raises himself slightly on the hind llippers, so that his rejiroductivo organs are clear
of the ground.
In 1S91 and 1S02 the number of seals killed on tlie ground was
13,()()() and 7,riO() respectively. In neither of those years were year-
lings killed. All yearlings tlriven up were allowed to return to the
water. Mr. IVIacoun's evidence or statement in tlie report is gone into.
He witnessed i)art of one drive, which is all he claims to have known
anything about. And if you take the trouble to read it, I do not care
to spend much time upon it, you will see the consequences.
Now let me refer to some few of the witnesses as rapidly as I can
out of the many witnesses on this subject of driving to be found in the
United States Case.
We have examined 44 witnesses on this point, who are men on
the Islands, employed there in one capacity or another, and knowing the
manner in which this takes place, in a business you will recollect, the
method or theory of which, is described by the Commissioners them-
selves as an ideal method. The only objection that is attempted to be
stated to it is the nutnner in which it was carried into effect. Mr.
Bryant says — and this is in the Appendix to the Argument, page 235:
The driving and killing of the bachelor seals was always carried on in the most
careful manner and during my stay upon the islands, there was practically no injury
caused to seal life by overdriving, and after 1873, when horses and mules were
introduced by the lessees to transport the skins, the seals were not driven as far,
killing grounds being estabiislied near the hauling grounds, and the loss by over-
driving was reduced to the fraction of 1 per cent.
Mr. Falconer, who was on the Islands from 1870 to 1875, says in his
testimony. — I cannot read it all :
The greatest care wa.s always taken not to overheat the seals in driving them, and
when a seal was by accident smothered, the skin was removed and counted in the
number allowed to be taken by the lessees. There were not, to the best of my recol-
lection, twenty-live seals killed during any one season on St. (ieorge by overdriving.
Whenever tlie sun came out while a. "drive" was in progress tlio driving at once
ceased, so great was the care taken not to overheat the seals. . .
I never saw or heard of a case where a male seal was seriously injured by driving
or redriving.
Certainly the reproductive powers were never in the slightest degree impaired by
these means. AVhen we consider that the bulls, while battling on the rookeries to
maintain their positions, cut great gashes in the llesh of their ihm ks and bodies, are
covered with gajiing wounds, lose great quantities of blood, fast on the islands for
tliree or four months, and then le.ave the islands lean and covered with scars, to
return the following season fat, healthy, and full of vigor, to go tlirongh again the
same mutilation, and re])cating this year after year, the idea that driving or redriv-
ing, which can not possibly be as severe as their exertions during a combat, can affect
such unequal vigor and virility, is utterly preposterous and ridiculous.
Senator Morgan. — Has ;iny witness ever stated that, from his obser-
vation, there was any loss of virility in male seals "i
268 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
]Mr. Phelps. — No, I am coming to that. I want to get in the testi-
mony of some of tliese witnesses, and then I will observe upon that in
connection with Mr. Elliott:
To show the wonderful vitality of the male seal, I will give one instance;
I do not care to follow that np.
Mr. (Hidden who was on the Island from 1SS2 to 1885 — yon will see
these Agents give different periods — in the Appendix to the Argument
at page 237, says :
The driving from the haniing gronnds to the hilling gronnds was always con-
dncted with the greatest care; was done at night or very early in the inorniug
slowly and with freqnent rests, so tliat the seals miglit not become overlieated.
During the killing the merchantable seals were always carefully selected. No
females were liilled, exce]>t, i)erhaps, one or two a season by accident, and the
remainder of the herd wore allowed to return to the water or hauling grounds.
Very few seals were killed in a "drive ", and tlie skins of these were, in nearly every
case, retained and counted in the (]Uota- allowed to be taken by the lessees. The
number of seals killed in this waj' could mtt possibly have alfected seal life on the
island. I never saw or heard of a case where a male seal was seriously injured by
driving or redriving; and I do not believe that the virility of males driven was
destroyed by climbing over the rocks or affected in any way by driving. Certainly
the reproductive powers of male life on the islands were never decreased or impaired
by these methods.
D"" Hereford the resident physician was there from ISSO to 1801,
covering the whole time in which the overdriving or re driv-ing must
have taken place, if it ^yas to produce any effect that is yet noticeable,
and he says:
The methods employed in handling the drives are the same identiciilly as of twenty
years ago. The same methods were observed when I lirst went to the Islands, and
Avere in vogue <luring the period that I referred to as an actual increase in stnil life,
and have Iteen continued up to the ])resout times. There is nothing ditferent. except
the enormous increase of vessels and hunters engaged in pelagic sealing in Behriug
Sea.
Mr. Kimmel was the Government Agent on St. George Island in 1882
and 1883; and he describes the manner in which these seals were driven
and states (pausing to read it) substantially what those witnesses whose
testimony I have referred to say.
Krnkoff, an Aleut resident on St. Paul Island ever since 18G9, one of
the employes, says :
The driving is all done by our own people under direction of the chiefs and we
never drive faster than about half a mile in one hour. We very seldom drive twice
from one rookery in one week. . .
I never saw a seal killed by overdriving or by overheating; odd ones do die on the
drives by smothering, but their skins are taken by the company and are counted iu
with the others.
Mr. Loud was the Agent from 1884 to 1889, and he says:
While I was on the islands I attended nearly every "drive" of the bachelor seals
from the hauling grounds to the killing grounds, —
— as it was his duty to do, —
And these "drives" were conducted by the natives with great care, and no seals
were killed by overdriving, jilcnty of time being always given them to rest and cool
off. A few were smothered by the seals climbing ovei' each other when wet, but the
number was very inconsiderable,
and so on.
D"- Mclntyre was on the Islands from 1870 to 1882, and from 1885 to
1880; and he testifies fuithcr to the same ]nu'port with his testimony
that I read before, and I will omit reading it now.
T>^ Noyes was a resident physician on the Islands from 1880 to 1803;
and his testimony is to the same effect.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 269
Mr. Eedi>;itli was the Ascjit from 1875 to 1893.
Mr. AVardimiu from 1881 to 1885, and Mr. Webster from 1870 to 1893,
and still there. It would ouly be a wearisome repetition to read over
again the testimony of these witnesses, using- slightly different language,
but conveying exactly the same ideas and stating the same iacts.
What then does this whole charge of over-driving come to, aside from
Mr. Elliott, on all the evidence in this case on both sides'? On the one
hand, there is not a word of testimony to sustain it, but there is on the
other hand a vast body of testimony to the confrary. We have exam-
ined every agent and employe on the Island, and every official who was
there in a i)osition to know, and there is no evidem-e that there was any-
thing objectionable in the nnnnier of driving- down to 1890, but it is all
to the contrary. Then how came it to pass that in 1890, an excejttion
arose as to the method of re-driving* and frequent drivings that had
never obtained before 1 Sim})ly because from the ravages of pelagic
sealing-, the aniuuils were not to be obtained in any other way. So
that what is set up in answer to our complaint of the devastation
that this business has wrought is only the actual conseituence of the
devastation itself.
Now take Mr, Elliott's theory. A few words on that, still conscious
that I have unduly dignified this branch of the case by the time I have
spent upon it; a few words may be usefully said about Mr. Elliott, who
has cut a ligure iu this case from tlie beginning- that is altogether
disproportionate to any consideration be is entitled to.
I have nothing to say against him. You will remember, when we
began this hearing long ago, there was an a|)plication for Mr. Elliott's
Eeport. Had there been any attempt to snppress it? We had given it
to the British Commissioners when at Washington, and they had it as
long as they wanted it. That shows there was no disi)osition to con-
ceal it. Why was not it printed? Not one iis five of these IJei)orts —
nay, not one in ten — are printed. If we could put in the letter that
accompanied this from the Secretary to tlie Treasury, you would find
out why it was not ])rinted. I cannot tell you and I cannot state the
reason without putting myself iu a position I should quite decline to
occupy, by attempting to make a statement not warranted by any evi-
dence in the case, because there is no evidence. If the lieport had
come in and become evidence in the case,* so that we could reply to it,
all this would have been shown.
Mr. Elliott, whose knowledge on this subject I do not depreciate, is
far less of a man than my learned friends seem to have supposed.
They attach great importance to his having been a])pointed by the
Government, but of all the agents who have testified here, everyone
was ai)pointed under an Act of Congress. He was not specially
appointed any more than anybody else. One of the advantages of a
rei)ublican form of Government, is that men of moderate qualities are
not excluded from public offices. On the contrary, that is one of the
advantages we enjoy. Some Governments are deprived of the valuable
services of that class of men. We are not.
The eminent jurist, Judge Swan, who throws some light upon the
subject, and Proiessor Elliott came into violent collision. Judge Swan
I)roceeds to reiute all Elliott's science, depreciate his ability, and
denounce liis motives; and if you take Swan's judicial estinmte of the
man, he would disapi)ear from the case at once. But as undoubtedly
Mr. Elliott would Imve something- to say in reply to Judge Swan, 1 do
not consider the Judge's opinion concdusive. What was the trouble?
Mr. Elliott had been connected, as Judge Swau said — and I think he
270 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
told the truth probably — it would uot be respectful to assume of any
man Avith the title of Judge that he would say anythiui;; else — that
Mr. Elliott h;id been connected with the old Coini)any. There was a
violent competition at Washington about the renewal of the lease, and
the new Coini)aiiyg'ot it from the old, and IMr. T^lliott's side was defeated,
and then immediately after — that is to say, within two or three months,
he nuide his api)earance on the Islands.
Then what took place? For the first time he makes the discovery
that the virility of the herd was being destroyed by the business of
overdriving. He does not say it took place before 1890 ;' he had not
been there for many years, and his Keport shows, that when he was
there last, he could not speak in too high terms of the manner in which
the driving was carried on; but he sei/es on this condition of thing in
1890, and makes it the basis of a violent attack.
Senator MoRGrAN. — Does his name appear in the Act of Ai)propriatiou
that authorized him to go out there?
Mr. Phelps. — I do not know, Sir, General Foster says that it was
an Act authorizing the appointment of an Agent. He was not partic-
nlarly named. You would know better as to what the usual usage with
regard to a thing of that sort is tlian I should.
Mr. Justice Harlan. — He was appointed by the Secretary of the
Treasury.
Sir Charles Eussell. — Yes ; he was not named.
Mr. Phelps. — Well, this discovery of Mr. Elliott was an attack on
the adnjinistration of the new Company that had got in.
You see what it is; a violent rhetorical attack upon the business that
the Company was carrying on. It is due to Mr. Elliott to say, in treat-
ing- him fairly, that the method of driving that he saw tliere in 1890
was objectionable, as I have already admitted, and to that extent that
the Treasury Agent had to put a stop to it. But if that is all he had
said, he would have said only what we say now; but he starts the
theory of its effect upon the virility of the herd. Now I answer Sena-
tor Morgan's question, if he will excuse me for having ))ostponed it
until I could make it intelligibly. There is not another witness that 1
knoAv of, and I say that subject to correction, that ever pretended to
have made any such discovery. In order to give apparent currency to
it, Mr. Elliott cites this passage from the Ilussian writer Veuiaminot,
at page 203 of his Report; and this is the way his translation reads.
Nearly all the old men think and assert that tbe seals which are spared every year,
i. e., these which liave not l»een killed for several years, are trnly of little use ibr
breeding, lying about as if they were outLUsts or disfraiiehised.
What was the true translation ? We have an ofifi<iial translation here,
if anyone desires to see it, by the Fren(;h Foreign Oftice.
Sir Charles Russell. — Is the original here''
Mr. Phelps. — Yes, certified by the French Foreign OfiQce. This is
the correct translation.
Nearly all the old travellers think and assert that sparing the seals for some years,
i. e. not killing them for some years, does uot contribute in the least to their increase
and only amounts to losing them forever.
Veniaminof makes no reference wiiatever to driving, and does not
say one word about any supposed effects of driving upon the repro-
ductive powers of the seal.
Sir Charles Russell. — Have you the original, — the text of
Veniaminof?
Mr. Justice Harlan. — Is it in Russian or French?
Mr. Phelps. — Russian, I believe.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 271
General Foster. — We have not tlie orioinal here.
Lord Hannen. — Is not it that the etiect of driving is such that it is
no use sparing their lives, — is not that the eUcct of itl?
Mr. I^HELPS. — iS^o, I will read it again.
Lord Hannen. — If you please.
Mr. Phelps —
Nearly all tlie old travellers think and assert that sparinj^ the s'^alsfor some years,
i. e. not killing- tliein for some years, does not contiibiite in the least to their increase
and only amounts to losing them forever.
What does he mean by that? What I was saying yesterday; by the
natural conditions of this herd you cannot keep up the number of
males; — nature does not keep up the equal luimber of males aiul
fenuiles, though beyond doubt an equal number are born into the
world. Tliat was a question that was early suggested by the Presi-.
dent, and which I endeavoured to answer yesterday.
If in polygamous animals there are as numy females as males in the
world, how comes it to pass, in a state of nature when nobody inter-
feres with them there are not as many females as males? That is the
question we are discussing. He was discussing tlie question of what
sort of policy it would be to stop killing and let them all grow, — let all
these males alone for a period of years. Let them all (,'ome to the
peiiod of puberty.
The President. — He does not speak of the driven seals?
Mr. Phelps. — Xo, not in the least. He says, what observation
shows as to all, that you will not get any more males by that. It will
be the fittest that survive, and you will have the same condition of
things that you had before; in other words, you have lost those seals
that you might have taken without detriment to your herd. General
Foster reminds me this is to be found in the Counter Case, the full
translation.
If I had nothing to do to-day but to review Mr. Elliott's Eeport I
think I could nuike it a little entertaining. If you read his field-notes
(I will give you a specimen at pages 23(5 and L*37) they will be found to
contain an ounce of observation to a pound of rhetoric. A scientific
observer would make field-notes out of doors, and put them down as a
basis for subsequent collation and analysis,— as statistics; but his
statistics are all rhetoric. For instance, and this is only a sample, on
June the 10th, 1800, of his field notes, at page 230.
This nnnatural action of the cows, or rather unwonted movement, has caused the
pnps already to form small pods everywhere, even where the cows are most a])nn<lant,
which shadows to mo the trutli of the lact that in five days or a week from date, the
scattering completely of the rookery organization will bo thoroughly done.
Sir Charles Russell. — He goes on to say that it did not take place
until the 20th to the 25th of July, 1872.
Mr. Phelps. — I do not read all this:
It is impossible not to consider the question which this scene every moment
prompts — "what proportion of these old males whicli we see here now, overdone
and scant in number — what ratio of their number will live to return next year? —
and if they do all live to return, Avhat manner of good will 11i(\v be? — in many
cases will they be potent at all i" And again, not a single young bull to be seen oil
tlie breeding grounds or at the breeding margins! Where are they coming from?
They, so conspicuous by their numbers and aggressiveness in 1870-71! Where is
the new blood whicii must take the ])lace of tlie old and enfeebled sires before us?
already failing to meet the demands of tiie hour on every side and ahead of ns!
"Where is it?
The only answer which my study of this season gives me is there is no >icw hluod.
.A'yf nature ^noutjh left.
272 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Then lower down :
The poaclier at sea lias lent his aid since 1885 to this destruction. —
Sir Charles Russell. — I think you ouglit to read the next; he
does refer to driving.
Mr. PnELPS. — Yes, I am willing;; it was only to save time, and I
hope the Arbitrators will treat themselves to the very little entertain-
ment there is in this case of the anuising kind, by i)erusing some of
these field-notes. What my learned friend wants me to read is:
The club and effects of drivhig has destroyed it, slowly at first, but surely through-
out the last eight years!
He had not been there !
Sir Charles Kussell. — "And ra)>idly during the last three of this
period."
Mr. Phelps. — Yes.
And rapidly during the last three of this period — especially rapid last year and at
the present hour.
He had not been there, and not a living man had told him so.
Every man who was there swears to the eontrary.
I could spend half a day reading this if it v\'ere material to show the
character of the man. He started on his theory, and like some orators,
gains in strength as he goes on; as he warms up to the subject he
becomes not only more eloquent but more tremendous in the reach and
force of his statement.
Sir Charles Eussell. — I beg my learned friend's pardon, but he
made what I consider a very grave insinuation about Mr. Elliott,
namely, that he was attacking the new company because.of his inter-
ests in the old Com})any.
The reason why I want that last passage read is this, the lease to
the new Company was in 181)0 and in a i^assage I have read he does
not confine his complaint of mismanagment to the period of the new
Company at all because he says :
The club and effects of driving has destroyed it slowly at first, but surely through-
out the last 8 years.
Therefore going back to 7 years of the old Company.
And gradually during the last three of this period — especially rapid last year aud
at the present hour.
I am rather surprised at that insiunation because my learned friend
Sir Kichard Webster distinctly stated in page 1G23 of the report that
Mr. Phelps had undertaken that no comment was to be made on Mr.
Elliott's conduct attributing to him motives, or any comment except
what the report furnished.
Mr. Phelps. — 1 am not now saying anything but what Judge Swan
said who was the other witness, and I leave it to my learned friends to
settle between Judge Swan and Mr. Elliott, if it is of any importance
at all. It is altogether probable on the face of this report that Mr.
Elliott was willing at least that the Government should cut down the
profits of this Company by abridging the number of seals they might
take. But I do not care about it. We have not the least necessity to
discredit Mr. Elliott, because in every dis])uted point in the case but
this, he sustains the United States contention as completely as all our
other witnesses do, so that in nine-tenths of this case Mr. Elliott
becomes our witness. We do not need him and do not call him, but
we accept his statements when put in by the other side. And, there-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 273
fore, it is only on this point in which Mr. Elliott is completely answered,
when we [)()int out tliat the reclrivin"; that he objects to never took
place before 1890; and while he seems to assume in some of these
rhetorical passages that it has, he does not say so, and could not say
so without saying" that which is nuLrue. Neither does he cite any
authority.
If my learned friend does not like Judge Swan I will refer him to
what Mr. Tui)per says about him.
Sir Charles Eussell. — I did not say that I disliked Mr. Justice
Swan.
Mr. Phelps. — T do not mean to say tliat you did, but Mr. Tupper
in a letter in the Jiritish Case page 3, has the following critk-ism made
upon Mr. Elliott by Mr. W. L. Morris. It is not Mr. Tupper's, but he
cites it. He says Mr. Morris says :
This man seems to be the natural foe of Ahiska, prosecuting and persecuting her
with the brush and the pen of an expert, whenever and wlierever ho can get an audi-
ence, and I attribute the present forlorn condition of the territory more to his
ignorance and misrepresentation than to all other causes combined. . .
And Mr. Tupper then goes on to say.
His evidence in 1888 is open advocacy of the United States contention. His
■writings and reports prior to the dispute will be referred to and it will be submitted
that his statements and experiences before 1888 hardly support his later theories.
That is what we say; and Dr. Dawson, one of the British Commis-
sioners, estimates Professor Elliott like this. Judge Swan — see the
United States Counter Case, page 414, quotes Dr. Dawson as follows.
Elliott's work on seals is amusing. 1 have no hesitation in saying that there is
no important point that he takes up in his l)ook tliat he does not contradict some-
where else in the same covers. . . His work is superficial in the extreme.
This is really trilling, and it is of no importance at all. On this
subject he constructs a theory, and it is but a theory. How could
anybody come to a conclusion about the effect upon an animal of this
kind, wliich he seeks to attribute to it. There is only one way, and
that is to wait the result of experience. Time will tell. Notliing else
will tell, unless indeed it were something that is not pretended to exist
in this case, some such special exterior injury as would show for itself
what its consequences must be.
I pass over much more that I could say on this point, pointing out
the errors of his reasoning and his mistakes in point of fact upon this;
but T do not think the case requires it.
But n(nv, that we are upon Mr. Elliott I want to verify what I said
just now in reference to his support of the contention of the United
States; and I will just name the points on which you will find he does
support the contention of the United States. I read from i>age GO of his
Report. These are detached passages, but you have the lieiJort and
the context is all before you :
The polygamous habit of this animal is such that, by its own volition, I do not
think that more than one male annually out of fifteen born is needed on the breeding-
grounds in the future:
Then, on page 118.
In this admirably perfect method of nature are those seals which can be properly
killed without injury to the rookeries, selected and held aside by their own voli-
tion, so tliat the natives can visit and take them witiiont distuibing, in the least
degree, the entire ([uiet l)reeding-ground, where the stock is perpetuated,
B S, PT XV 18
274 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Then, on page 139.
When the hoUuschickie are up on laud: —
Sir Charles Russell. — You really mast read the next line:
Such was the uuinber and method of the young male seals in 1872-1874.
Mr. Phelps. — Well, really, I have not time to read much of this.
Sir Charles Eussell. — Yes, I will not interpose.
Mr. Phelps. — If I make a reference, it is by no means my purpose
to give any unfair deduction from Mr. l<]lliott. You will see by reference
to pages 71 and 71, he regards the methods ado])ted on the Pribilof
Islands as excellent; and he describes the drives in the parts quoted
from his Report of 1871 on pages 122 and 128.
Now on page 209 of his present report he says:
I should remark that the driving of the seals has been very carefully doue, no
extra rushing and smothering of the herd, as it was frequently done in 1872.
Mr. Gott' began with a sharp admonition and it has been scrupulously observed,
thus far, by the natives.
Then on page 283, he says :
Yesterday afternoon I went back to Tolstoi over the seal road on which the drive
above tallied was made in the night aud morning of the 7th inst. ; the number of
road "faints" or skins was not large, which shows that the natives had takeu
great care in driving these seals; this they have uniformly done thus far.
Mr. Justice Harlan. — What year Avas he speaking of there — 1800.
Mr. Phelps. — 1800 — when he was on tiie Island. He had not been
there since 1870. You will find what he says about killing females on
l^age 74.
We do not touch or disturb those females as they grow up and live; aud we never
will if the law aud present management is continued.
Then on page 213 he says:
In 1835 for the tirst time in the history of this industry on these islands was the
vital principle of not killing female seals, recognized.
He says again that according to his observations of 1872 to 1874 and
1870, the herd could safely support a draft far larger than 100,000, pro-
bably as hi'-ge as 180,000 annually. That will be found on page 00.
He was there in the three years 1872 to 1874; he was there again in
1870 and he does not intimate in the report of 1890 that the condition of
1870 was not as good as that of the previous years 1872, 1873 and 1874.
Now what does he say about pelagic sealing. This is on page IX.
I could figure out from the known number of skins which these hunters had placed
on the market, a statement of the loss and damage to the rookeiies — to the females
and young born aud unborn, for that is the class from which the poacher secures at
least 85 p. c. of his catch.
And on page 13 he says :
The young male seals have been directly between the drive, club and poacher since
1882, while the females have had but one direct attack outside of natural causes,
they have been, however, the chief quarry of the i)olagic sealer during the last live
years.
Then if you will turn to page 214 you will see what he says on another
point that I have not observed upon — perhaps shall not — that is the
loss through wounding and sinking of seals. It says:
Four thousand female seals heavy with their unborn young are killed in order to
§ecure every one thousand skius takeu. (See also page 85 foot note.)
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 275
Then if you will turu to page 214 I will read another quotation. He
reconmieiuls there:
That all pelagic sealhig in the uuilers of liehriug Sea he prohibited and suppressed
throiif/hout tlic hrccditu/ sca/^nn, no matter how, so that it is done, and done qnickhi.
This step is equally iiaiiorative; the immorality of that (Iciiuiiul made by tbo open
water sealer to ruin within a lew short years and destroy forever these fur bearing
interests on the Pribilof Islands, the immorality of this demand cannot be glossed
over by any sophistry; the idea of permitting sucli a chase to continue where five
thousand female seals heavy with their unborn young are killed in order to secure
every one thousand skins taken is repugnant to the sense of decency and the simplest
instincts of true manhood.
I cannot refrain from expressing my firm belief that if the truth is known, made
plain to responsible heads of the civilized powers of the world, that not one of these
governments will hesitate to unite with ours in closing Behring !Sea and its passes
of the Aleutian chain, to any and all pelagic fur sealing, during the breeding season
of that animal.
You will find on pai^e 297 what lie says on another iioint which has
been mooted liere — whether a female seal suckles any young- but her
own.
It has been said by some peopk^, in order to break the effect of this
murder of nursing mothers, that, after all, the other nursing mothers,
that are not killed may suckle other pups. The absurdity of the state-
ment that a fraction of the mothers could supply all the pups with sus-
tenance, is all the contradiction that should require. Mr. Elliott says
at page 290, speaking of the killing of these nursing mothers:
That means death or permanent disability, even if the cows are driven but once —
death to both cow and her pup left behind, since that pup will not be permitted to
suckle any other.
With resjoect to the pups learning to swim upon which there has
been some criticism, Mr. Elliott says at page 255 :
In the beginning of August a large majority of them are wholly unused to water.
And he says that a number of them do not get into the water before
September the 1st.
He speaks also of the gentle disposition of the seals. On page 123
he says. "Docility of fur-seals when driven" — is his title —
I was also impressed by the singular docility and amiability of these animals when
driven along the road ; they never show fight any more than a Hock of sheep would do.
Then on page 98 on the "Gentleness of the seals" he says: —
"Descend with me from tbis sand dune elevation of Tolstoi, and walk into the
drove of holluschickie" below us; we can do it; you do not notice much confusion
or dismay as we go in among them; they simply ojien out before us and close in
behind our tracks, stirring, crowding to the right and left as we go, twenty feet
away from us on each side. Look at this small flock of yearlings, some one, others
two, and even three years old, which are coughing and spitting around us now,
staring up at our faces in amazement as we walk ahead, they struggle a few rods out
of our reach, and then come together again behind us, showing no further sign of
notice of ourselves. You could not walk into a drove of hogs at Chicago without
exciting as much confusion and arousing an infinitely more disagreeable tumult; and
as for sheep on the plains they would stampede far quicker. Wild animals indeed;
you can now readily understand how easy it is for two or three men, early in the
morning, to come where wo are, turn aside from this vast herd in front of us and
around us two or three thousand of the best examples, and drive them back, up and
over to the village.
This may be usefully considered in connection with the point that we
discussed some time ago as to the condition of the seals as a matter of
property. He says further on page IS, in respect to the young females
going back to the islands, which has been made a subject of discussion:
It must l)e borne in mind, that ))erliap8 10 percent of the entire number of females
were y(>arlings last season, and came up on to these breeding grounds as virgins for
the first time during this season — as two year old cows, they of course bear no young.
276 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
And on the same page he says this:
This snrplna area of the males is also more than balanced and equalized by the
15,000 or 20,000 vir<;iu females which come on to this rookery lor the tirst time to
meet the males. They come, rest a few days or a week, and retire, leaving no young
to show their presence on the ground.
And on page 139 he says :
Next year these yearling females, which are now trooping out with the youthful
males on the liauling-grouiids, will rei)air to the rookeries, while their male com-
panions will be obliged to come again to this same spot.
I may aUude briefly to the condemnation by Mr. Elliott of various
points that have been suggested rather than i^roved on the other side.
On page 83 yon will lind-=-I do not quote his language — that coition
does not take place in the sea.
On pages 57 and i)S he contradicts the assertion that the efiect of
raids on the Islands had been considerable as tending towards this
decrease; and 1 nmy say here once for all, for I cannot dwell any longer
upon it — it wonld take two or three days more if 1 were to go through
the evidence on all these minor points — let me say here now in respect
of this business of raids on the Islands, that I am entirely indifferent
which way the fact is found. If there are any raids on the Islands (and
they have taken place undoubtedly in some instances) they come from
these pelagic sealers. It is the very presence in the water of these
schooners that produces all the raids that have taken place on the
Islands, whether they are many or few; and in the condition of the
weather there it is perhaps true that they cannot alwaj^s be prevented.
That is one of the very mischiefs we are trying to protect ourselves
against; not merely that they are slaughtering the seals in the water,
but whenever fog or night or any accident enables them "to do it, they
go upon the Islands and trespass there. He says on page 53 and on
two or three other pages, that the seals have great power of locomotion
on the land.
There is another theory that has been thrown out here — that there is
a congregation of young seals that do not come back to the Islands. I
shall have a few words to say about that independently of Mr. Elliott;
but on page 103 you will find he says this:
By the 14th-20th June, they (the holluschickie) appear in their finest form and
number for the season, being joined now by the great bulk of the 2-year olds,
and (jnitc a number of yearling males. By the lOtli of .July their numbers are begin-
ning to largely iu(!re;ise, owing to the influx now at this time of that great body of
the last year's jjups or yearlings; by the 20th of July, the yearlings have put in their
appearance for the season in full force. Very few yearling females make their
appearance until the 15th of July, but by the 20th they literally swarmed out, in
1872-74, and mixed up completely with the young and older males and females as
the rookeries relax their discipline and "pod" or scatter out.
On page 253, he speaks again of the yearlings there. He says:
A great many yearling females are halting down at landings in and among the
scattered harems, aimlessly paddling about.
On page 298 he says :
I observed a very large proportion of yearling cows scattered all over the breeding
ground from end to end near the sea margin, while the yearlings of both sexes are
completely mixed upon the outskirts of the rookery, here and everywhere else
commingled with the adult cows and their young pups.
There is another point that has been suggested here by my learned
friends, that these seals consume the food-tisiies, or that they may do so
at some time or other. What that has to do with this case I do not
know. Tlic question as to the right of the United States does not
depend upon it. The question of regulations does not depend upon
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 277
it because the Governments liave i)roponnded these questions to the
Arbitration in the Treaty. But Mr. Elliott shows that the true enemy
of the tishery is the dog-lish, and that the seal is the devourer of the
dog-tish. You will see on page 307 —
Suppose for aronmcnt that we conld and did kill all the seals, we would at ouce
give the deadly do<j-lish (Squalno-aucarthias) which fairly swarms in these waters,
an immense nnixtns to its present extensive work of destruction of untold millions
of young food fishes such as herrinj;', cod, and salmon.
A dog lish can and does destroy every day of its existence hundreds and thdusands
of young cod, salmon, and other food iishes — destroys at least douldc and tiuadriiple
as 'much as a seal; what is the most jiotcnt factor to the destruction of the dog-lish
first, he will he doing positive injury to the very cause he preten<ls to champion, if
he is permitted to disturb this equilibrium of miture and destroy the seal.
Now 1 have said more than I ought about Mr Elliott; and what is
the conclusion of the whole? It will be seen that we have neither
desired to suppress tliis Eejiort, nor had we the least inclination to do
so. If you strike it out of this case, you strike out nine parts of the
evidence that are in our i'avour, in order to get the one — the only one
that is against us, so f-ir as it goes; and that is destroyed, and the mis-
taken theory of Mr. Elliott on that subject is exi)osed when we find his
conclusion is one that is not warranted by any evidence; — that the kind
of driving he objects to had never taken place till 18!)0, and that
only in several years afterwards could it be ascertained whether his
preposterous idea, as we think it is, of an injury to the vitality of the
seals is made by causes so slight.
Let me say one word on the subject, however of the waste and de-
struction by killing and by the sinking of seals that are killed — the fatal
wounding of seals that escape. There is a great deal of evidence on
that point. It is evidence on both sides, and it would take a long time
to go through and estimate it. The evidence on the part of Great
Britain is from the sealers, not only swearing- in their own behalf, but
swearing to their own marksmanship and success in killing seals. That
it has been universally understood, until that testiuu)ny was brought
forward in this case, that the result was a vast waste, we have seen
from everybody's statement who has made any statement earlier than
this.
It never was doubted before that it must be so; and it will be trans-
parent to any person who will reflect on the circumstances. It will be
n)ore transparent to anyone who has ever had anything to do with the
business of shooting at all, and above all of shooting game or animals
in the water. No man who has had any such experience will be per-
suaded otherwise than that a very large number of animals under the
best circumstances must be lost — always are lost. No man who has
shot a deer in the water, or who has shot at ducks in the water and not
upon the wing — at animals that frequent the water — does not under-
stand how large a percentage necessarily must be lost. And you will
bear in mind that this Scaling Association agreement among each otlier
requires that only a certain number of "old hands" in the business
shall be employed on each vessel, whatever the reason of that is; and
that even many of the witnesses that attempt to make out that a very
large proportion of seals are saved out of those that are killed, make
this qualitication — ''the c/reen hands lose." They need not say that.
We know that green hands lose the seals. It is a very expert marks-
man indeed that would not lose a great many; — the green hands lose
on their own showing. But I pass over this lightly for the reason that
this, like so many points that have been discussed, really does not bear
on the issue. If they are to destroy the animals, tliey are not any more
destroyed because they sink to the bottom of the sea, and their skins
278 ORAL ARGUMENT ON HON. EDWARD J. PHELPS.
are lost. They .nre lost to ns just as iiiu(;h. Their effect upon the herd
is the same. It is only the question whether those who kill them get
the profit of the skins; and yet at the same time it is most uatural to
observe that you tind agreed all through this case, by those who have
commented ui)oii it, that the waste and destruction alone of this method
of sealing condemns it, if you are to look at nil at the interests of man-
kind in the preservation of this herd, or to the interests of commerce
in having the yearly product. If those considerations enter at all into
the question, then it is a. material consideration, tiiat, as we say, a very
large proportion variously stated by the witnesses (I will not undertake
to say what, for I have made no estimate of the result of the testimony)
are lost.
Then you have unquestionably noticed another thing — that of all the
skins that go into the London market from what is called the "North
West Catch" — that is the pelagic catch — the uniform price is consider-
ably less than the skins of the same animals taken on the island, and
the reason is that they are lull of shot holes; — that is the only differ-
ence— except that they are largely the skins of females. That may
have something to do with it, but generally the reason given by the
witnesses is that they are lull of shot holes, .'^o that of the skins that are
saved, commerce is deprived of the real value of many of them. But
I pass over many of these points, rather than to weary you with what,
perhaps, is not very material.
I want to say a word further on the subject in respect of which I read
from Mr. Elliott — the return ot these seals to the islands. There is a
theory — it is nothing but a theory — that there may be young seals that
do not go back till the instinct of nature takes them back for the pur-
poses of reproduction. What evidence does that rest upon? Who
knows, who can know, who pretends to know, that these seals do not
return? The evidence is just to the same effect as what I have read
from Mr. Elliott. iSTumbers of witnesses testify that young seals are
back there. This very business of driving that we have been discuss-
ing shows that. What is the trouble witli the driving in 1890 — what
is the objection to if? They drive up seals and let them go: what do
they let them go for? They cannot get the desired number of skins;
they can get but little more than one-fifth: they have not the number
which the contract entitles them to take: why do tliey let them turn
back*? Because they are too young. All this theory of Elliott's is
based on the presence of those young males on the islands.
As to the young females, the evidence of their presence on the islands
is voluminous.
Then there is another thing. The necessities of the change — the
shedding of the fur brings these animals back — which takes place every
year. I read from Mr. Grebnitzky's evidence, the Governor of the
islands whose exi)erience'is so long and who has no interest in this
case. It is to be found in the United States Counter Case page 3G3.
He says :
I believe that at sometime dnrins tlie year every seal comes ashore. There is no
reason to believe that a certain numhor of any class rcmnin swiiinninjy about in the
neigbbonrhood of the islands all the summer without landin<ij, although there is con-
siderable difference in the time at "which different classes arrive.
Writing about Mr. Grebnitzky, the British Commissioners say, at
section 202 that he, Grebnitzky,
Believes the main reason of the hinding, at later dates, of the seals not actually
engaged in breeding, is tliat during tlie " shedding" or "stagey " season, their pelage
becomes too thin to afford a suitable jjrotection from the water.
OHAL ARGUMENT OF HON. EDWARD J. PHELPS. 279
Captain Bryant's testimony cited on both sides is quoted by the Brit-
ish Commissioners, at Sections 718 and 719. They say in Section 718.
Referring particularly to his experience in 18()9, Captain Bryant writes: "At tlio
close of this period the great body of yearling seals arrive. Tiiese, mixing with the
yonnger class of males, spread over the nplands and greatly increase the ])roporti(in
of prime skins, bnt also greatly increase the ditHcnlty of killing projierly. Up to
this time, there having been no females with the seals driven np for killing, it was
only necessary to distiugnish ages ; this the dilTerence in size enables them to do very
easily. Now, however, nearly one-half are females, and the slight ditfereuce between
these and the yoimger males renders it necessary for the head man to see every seal
killed, and only a strong interest in the preservation of the stock can insnre the
proper care.
The meaning of these remarks and their bearing on the possibility of restricting
the killing on the islands to males, becomes clear when it is remembered that the
external genital organs of the male do not become distinctly obvions till about the
third year of its age, \> and particularly so when it is remembered that even as long
agoa8"l872-74 the "major portion of the catch" consisted of two- and three-year-old
seals, II while at other times even yearlings have been "killed.
This hist hingiiage is the hmgnage of the Commissioners. The first,
was their quotation from Captain Bryant.
Mr. Gofit" says (this is quoted in the British Counter Case p. 2G5).
Now, in o])ening the season, it is customary to secure all the 2-year-olds and
upwards possible before the yearlings begin to till up the hauling-grounds aud mix
with the killable seals.
And, again, he says, as they quote him.
And we closed the season by turning away 86 per cent, a fact that proves to every
impartial mind that we were redriving the yearlings.
I will refer to another piece of evidence because this can be made
perfectly clear. An examination of a Table, (one published at pages
255 and 25(1 of Volume II of the Ap]iendix to British Counter case),
shows that during the whole term of tlie lease of the Alaska Commer-
cial Company, more than half the catches consisted of "Middling
pups", and under. A "JMiddling pup" is two years old. There is also
the evidence of IVlr. Mclntyre and Mr. Morgan and others.
There is no evidence — there can be no evidence — to the contrary —
because it cannot be told in the sea, what a seal is, where it has come
from, or where it is going except from its being in the migration route,
how long he has been at sea, and whether he is going back again; and
the evidence of all these persons whose particular knowledge of seals,
and whose character for truth are beyond question, shows that the
yearlings and the two year-olds, male and female, do come back every
year in very large numbers. If they do, what possible warrant is there
for the suggestion that there is some unknown fragment of them that
remain out at sea; especially in view of the necessity of their getting
on shore for the annual shedding of their fur.
I am reminded, while I remarked that Mr. Elliott had given us two
erroneous translations, that I have only produced one; and, while it is
not of great consequence, yet having referred to it, I should like to
produce the other.
The British Commissioners Eeport, Section 420, quotes from Elliott's
United States Census Keport at page 141, and no doubt they quote
him correctly. They say :
429. On this point, speaking of an early date in the history of the islands, Veni-
aminof writes; "This opinion is founded on the fact that never (except in one year,
1832) have an excessive number of females been seen without young; that cows not
pregnant scarcely ever come to the Pribilof Islands; that such females cannot be
seen every year."
Mr. Justice Harlan. — That is not Elliott's.
280 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Piii'^LPS. — Yes, it from Elliott's Census Report.
Mr. Justice HaPvLAN. — No.
Mr. Phelps. — It is Elliott's quotation from Veniaminof.
Mr. Justice Uarlan. — Yes.
Mr. PiiELPS. — That is what I mean. It is a quotation from Veniami-
nof which he has translated, in the United States Census Kepoi-t at
paj^e 141, cited by the British Coimnissioners in Section 429. This is
the correct translation, as certilied, of that i)assage.
This opinion is founded on the fact that (except in one year, 1832) no very great
number of seals lias ever lieen seen wilhont ])nps; hutiteannot be said that iiupreg-
nantcows never visit the Pribilof Islands, because such are seen every year.
What the author says is exactly the oijposite of Mr. Elliott's trans-
lation.
There is the evidence, if you call that the evidence, upon which this
extraordinary theory is based that is in the face of all the other evi-
dence in the case. I could read evidence from now to the end of the day,
to show that the yearlings go back to the islands every year.
Now what is the upshot of this wliole business? If the time that I
have taken has not caused the Tribunal to lose sight of the thread of
the argument I have been endeavoring to pursue for the last two days,
the point with which I set out was this; to prove from the evidence
what 1 say is not merely i)roved — 'it is demonstrated— that the business
of pelagic sealing leads necessarily to the extermination of the seal.
In j)roof of that, we have shown that 85 jier cent of its slaughter is
females; that a very large proportion, 75 to 85 per cent of the females
in the North Pacific Ocean, are pregnant and about to be delivered;
that in the Behring Sea an equally large proportion, are those who have
survived the onslaught made u[)on them in the North Pacific Ocean,
have been delivered of their young, and are out at sea in pursuit of
food, and they are there destroyed: that the consequence of that is the
death of a great number of pups on the Islands; that the suggestion
that the pups are destroyed by any other cause is not only un sustained
by evidence — it is not even sustained by a reasonable suggestion of
what the cause might be; and it is demonstrated and shown to be
untrue, because except as to the two Pookeries in one year 1892, the
death of the pups always coincided and concurred with pelagic sealing.
Then I have endeavoured to show in this hasty and cursory way, — it
is more cursory, I beg you will remember, than if I felt at liberty to
take more of your time, — that the suggestion of the present decrease,
which is only a circumstance in respect of the ultimate result of pelagic
sealing, is due to any other cause than this, is totally without founda-
tion : that Avhat is said about the taking of too many males never tran-
spired until it was brought about by the result of pelagic sealing itself.
That all authorities agree that the herd would stand as it always used
to stand, when it was needed, a draft of 100,000 a year — but as they
could not know the diminution of the birth rate that was being grad-
ually but certainly brought on by pelagic sealing the time came when,
in 1890, it was quite true that they could not take that number of seals.
Then the other suggestion, that aside from the number the virility of
the herd has been injured by the manner of driving, turns out, on
investigation, to be absolutely unsupported exce])t by this theory of
Mr. Elliott's, and to be contradicted overwhelmingly by all the other
evidence in the Case.
I need not refer to the other theory that there are sea]s abroad that
do not come home. That is unproved and contradicted by all the wit-
nesses. What is the result of it all? Why it comes down to a demon-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 281
stratioTi, as I respectfully claim, of the proposition I set out with, and
which is the great underlying proposition in my argument in this case:
that the right which is contentled for on the i)art of these individual
and si)eeulative Canadians and renegade Americans and which they
claim as their justitication is the right of extermination.
There is no other view to take of it. It is not the right to share with
us, — that right would be open to discussion if the United States have
no property interest, — it is the right of extermination, as a feature of
the freedom of the sea. My learned friends say that the right of the
ITnited States cannot be maintained without infringing tlie freedom of
the sea; they talk about the right of search, wlii(;li has nothing to do
with this case; the right of seizure, which is not before this Tribunal;"
but which if it is to be resorted to in self-deience is exactly the right
and the only right that has been administered ever since there was a
law of the sea in protection of every interest that a nation has to pro-
tect. There is nothing else that can be done except the resort to
measures which are more stringent and more severe, and which the
usage of nations does not warrant. The right of extermination is then
the question in this case. I have assumed it to be so in what I have
said on the law points, I have proved it to be so, I respectfully suggest,
upon the facts.
[The Tribunal then adjourned for a short time.]
Mr. Phelps. — I come now, Sir, to the oidy remaining topic upon
which I shall address the Tribunal, the subject of Kegulations, in case
the decision should be such as to require its consideration by the Tri-
bunal. I alluded in the beginning of my argument, to the extraordi-
nary position, as it seems to me, that Great Britain occupies upon this
subject. I pointed out, by reading from letters in the correspondence
that preceded the creation of this Tribunal and the making of this
Treaty, the position that Great Britain took. I showed, in the first
place, that at the very outset of the negotiations, in the first interview
that ever took place between Lord Salisbury, the British minister of
Foreign Affairs, and the United States representative, a convention
was agreed upou substantially, the terms of which you will remember.
I do not know that 1 can give now the latitude and longitude, but
you will remember that its limits were designated on the map — how'
large they were to the South into the sea, and how large they were east
and west. That fell through upon the remonstrance of Canada. It was
never withdrawn by the British Government. It was never recalled,
but it drifted along through correspondence (that I shall not allude to
again) until the United States became satisfied and the event showed
they were right, that it would not be carried into effect. It was sug-
gested that the Convention thus agreed to by Lord Salisbury — the close
time being from the 15tii April to tlie 1st ISTovember, subsequently modi-
fied to the loth October — was made because Lord Salisbury did not
understand the subject. Quite apart from the consideration that he
would not have acted and never did act — upon a subject he does not
understand, after he had heard from Canada officially, and more than
once as the correspondence shows, and after tlie light that was thrown
upon it, not only by the American Government, but by the subsequent
communications from British cruisers, Lord Salisbury never took the
ground that he would have taken as a frank and honourable man, if
it had been true that he had been drawn into an agreement in igno-
rance of material facts. He never put himself on that ground. The
last communication from Lord Salisbury on that subject to the Ameri-
can Government and to the American Minister, both orally and in
282 ORAL ARGUiMENT OP HON. EDWARD J. PHELPS.
writing, was this: — "We Lope to carry the couventioii into efifect. It
will take time, but we hope to do it." Then I jioiiited out further,
aud you will excuse me for alludiuii' to this, as a fouiulatioii of what I
am going to say without reading again in sui)port of it, that from that
time forward in all the negotiations under President Harrison's Adniin-
istradon, when Mr. Blaine was Secretary of State, the language of the
British Government was uniforndy " We are ready to do anything that
is necessary for the preservation of the fur-seal. We deny your right
to protect yourself. We think that infringes on our rights, but wlieu
you come to a Convention for the preservation of the seal, we will do
anything that is necessary,"
I pointed out further, that with the exception of a very guarded pas-
sage in one letter in which Lord Salisbury suggested, in regard to the
statement of these points by Mr. Blaine, that there might be two sides
to the question, that there was evidence on the other side, and that it
was not agreed to by Canada, — some verj^ guarded statement that did
not commit him or his Government, — with that exception he never chal-
lenged anything that Mr. Bayard said in that communication sent to the
British Government outlining the Convention that was ne(;essary, and
which was, as I have before informed you, reprinted and spread abroad,
in which all these assertions that we make now as to the character and
consequence of pelagic sealing were set forth. He never undertook to
defend it, or to deny its consequences or results, except only in the one
guarded passage that I formerly read. So that the record of the Brit-
ish Government is ])erfectly clear up to the time of this hearing, and
the record is perfectly clear now, because what has been said here is no
part of the diplomatic record of the country or the Foreign Ofllce. Up
to the commencement of this hearing. Great Britain, in every word that
was said, has been at one with us on the subject of the ])reservation of
this race, and is the author of this Commission by whicli the nuMisures
necessary for the jjreservation of the fur-seal were to be ascertained;
and in one i)assage as you will remember, the language used was, " witli-
out reference to the interests of anybody." 1 sliould say further, that
when they sent out these Commissioners, my learned friends have relied
as an evidence of the good faith of their Government in respect to the
"object in view, upon these instructions to the Commissioners.
The main object of your inquiry will be to ascertain, ''What international arrange-
ments, if any, are necessary between Great Britain and the United .States, and Russia
or any other Power, for the purpose of jireserving the fur-seal race in Behring Seii
from extermination?"
As to the appointment of that Commission, let me refer, as I have
but very little to read on this branch of the case, 1 hoj^e, from corre-
spoTidence, to Mr. Blaine's letter of February Kitli, 1892.
It is in the first American Appendix, page 348, to Sir Julian Paunce-
fote, after the Commissioners had been appointed on both sides.
Sir, I am in receipt of your note of this date, in which you giv^e mo the official
notification of the appointment of Sir George Baden-Powell and Professor Dawson,
as Commissioners on the part of the British Government on the joint Commission
created in view of the proposed fur-seal Arbitration.
In acknowledging your note I deem it important to direct your attention to the
fact that the goxernment of the United States, in nominating the Commissioners on
its part, selected gentlemen who were especially fitted by their scientific attainments,
aud who were in nowise disqualified for an impartial investigation and determina-
tion of the questions to be submitted to them by a public declaration of opinion
previous or subsequent to their selection. It is to be regretted that a similar course
does not seem to have been adojjted by the Britisli Governnu^it. It appears from a
document which you transmitted to me, under date of March 9, 1890 (inclosure 1),
that one of the gentlemen selected by your government to act as Commissioners on
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 283
its i)ai't has fully committoil himself in advauco on all the questions which are to be
sulniiitted to liiiii for iii\ esti.i;atiou and det'isiou.
I am further informed that the other gentleman named in your note had previons
to this selection made puhlic his views on the subject, and that very recently ho has
announcetl in an address to his Parliamentary constituents that the result of the
iuvestijiatiou of this Commission and the proposed Arbitration would be in favor of
his (Toverument.
I trust, however, that these circumstances will not impair the candid and impar-
tial investigation and determination which was the object had in view in the crea-
tion of the Commission, and that the result of its labors may greatly promote an
equitable and mutually satisfactory adjustment of the questions at issue.
Now there is the first point in which Great Britain swerv^ed away
from what before iiad been its nniforni and honourable and most proper
and appropriate langnaoe in respect of the regulation of this matter, if
it was to be reuulate(i by convention, and ]nitting aside as was proposed
by Mr. Bayard and M\\ Blaine the discussion of any question of right —
the first thing' they did was to select gentlemen — gentlemen of high
respectability, competent, no doubt, in (•\ ery respect to be selected, but
men — one of whom, at least, and the other to a considerable extent were
comi)letely committed beforehand. I want to refer — because we cannot
consider this question of Kegulations intelligently, unless Ave ignore
altogether the work of the Commissioners that were ap])ointed under
the Treaty for the very purpose of helping the Tribunal on this sub-
ject— we cannot discuss this question without considering the position
in which these gentlemen stood. This is a note by one of these Commis-
sioners, Mr. George Dawson, Assistant Director of the geological sur-
vey of Canada, and it is to be found in the 3rd volume of the British
Appendix on page 450.
I cannot read all that because there are three full ])ages of this large
volume and it is dated March 5th 1890 — before their ai)pointment. It is
from beginning to end a strong, ingenious and very earnest argument
in favour of pelagic sealing and against any kind of Regulations that
should not provide for and protect it. Some of the passages are very
strong. Take this instance; and the Tribunal will understand I am
only reading detached passages.
If, indeed, the whole sweep of the Pacific Ocean north of the Equator was domi-
nated and effectively controlled by the United States, something might be said in
favour of some such mode of ju'oteetion from a commercial point of view, but in the
actual circumstances the results would be so entirely in favour of the United States,
and so completely opposed to the iiiterests and natural rights of citizens of all otlier
countries, that it is preposterous to suppose that such a mode of protection of these
animals can be maintained.
Tie argues the property question at considerable length and has strong
opinions upon that subject. Then at page 452 he goes on to say:
The protection of fur-seals from extermination has from time to time been spe-
ciously advanced as a sufficient reason for extraordinary dejiartures from the respect
usually ])aid to private property and to international rights; l)ut any protection
based on the lease of the breeding-ground of these animals as y)laces of slaughter,
and an attemj)t to preserve the seals when at large and spread over the ocean, as
they are during the greater part of each year, is unfair in its operation, unsound in
principle, and impracticable in enforcement.
Then he discusses lower down the impracticability of killing seals in
the open sea and goes on to propose that the killing should be largely
limited on the Islands and that in<leed if it could be done the i)roper
way would be to stop all the killing on the Islands. He says:
The circumstances that the females fur-seal becomes pregnant within a few days
after the birth ot its young, and that the ))eriod of gestation is nearly twelve months,
with the fact that the skins are at all times lit for marlvet (thougii for a few weeks,
extending from the middle of August to the end of Se^jtember, during the progress
284 ORAL ARGUMENT OF HON, EDWARD J. PHELPS.
of tlio sliod'linrr and renewal of the longer hair, they are of less value) show that
there is no natural basis for a close season geiier.illy applicable. Tlius, should any
close season be advocated, its length aiirl the time of year during which it shall
occur can only be determined as a matter of convenience and be of the nature of a
compromise between the various interests involved.
I only read that to show the ]iosition of this gentleman.
I do not blame him for his oi)inions — he is entitled to his opinions
and is entitled to advocate them. I shonld as soon think of taking"
issne with my learned friends because they have delivered able argu-
ments in su])port of their side of the case. i>ut if the proposal was to
create a Tribunal in the place of the gentlemen I am addressing to
determine this case, I should very seriously' object to having my three
learned friends who, under other circumstances, would be most compe-
tent and appropriate to fill such a place, a])pointed as Members of the
Tribunal ; and I need not say they would not for a single momeht accept
such a ]H)sition, if it was tendered to them.
The dii'ficulty is that this Commission, as yon will see all the way
through, is quasi judicial. It is to some extent the same as your own,
and there is the same objection to i)iitting tlie man who has formed
strong and inveterate ox)ini()ns and views, and expressed them and
become the champion of that side quite as much as either of my learned
friends who are here in the capacity of Counsel during their argument —
on a Commission designed to be a Joint Commission to prescribe these
Kegulations, and to ascertain, not what is necessary for the interest of
the sealers, not what is for the interest of pelagic sealing, but what is
necessary to preserve the seals; — the objection to ])utting such men on
this Commission is very great, and the result is what might be naturally
anticipated. I never doubted for one moment that if gentlemen who
were selected as I believe the United States Commissioners to have
been, who had never expressed opinions that I know of, and who had
no interest and no feeling, had, on the other side been met by two gen-
tlemen who had sat down as the Members of this Tribunal sat down,
to enquire, in view of all the evidence what is to be done, a scheme
would have been propounded which, whether satisfiictory to both sides
or not, would have been adopted by the Governments. I never doubted
another thing, though you will only take this as my suggestion — that
this was what Lord Salisbury desired, finding himself between two
fires; — in the first place confronted by the facts pressed upon him by
the United States, Avhicth he could not controvert, and pressed by the
industry — and a very important one, of Great Britain, and on the
other hand met by the determined opposition of Canada, — he took this
ground — a perfectly fair ground on the face of it, and perfectly sincere —
that he would agree to anything necessary to preserve the seals, and
that what was necessary should be reported by the Commissioners.
Now what have we here on this hearing! This whole case, from
beginning to end, now happily so near, has been a struggle on the part
of niy learned friends for the protection of the business of pelagic
sealitjg; and if their recommendations were adopted, after the Tribunal
shoidd have decided that the United States have no right to protect
itself, they would proceed to establish regulations that would not aftbrd
the slightest protection.
What are the claims of my learned friends on the other side. They
say: "Limit these regulations to Behring Sea". Do you claim that
would preserve the seal? No, we agree it would not. It is plain it
would not. That cannot be desiicd. Why, then, limit them to Behring
Sea? Upon some technical construction of the plain language of this
Treaty, derived from the antecedent corres])ondence, something that
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 285
Mr. Wharton said, when dealing' with the modus vivendi which conhl
not extend beyond Behriiig- Sea, because there Avas no statute of tlie
United States then, enforcing regulatiousontlieir citizens in the North
Pacitic. Limit Them to Uehriiig Sea. But if you close Behring Sea
fiom January to December, what woukl be the result on the preserva-
tion of the seal? My learned friends admit it would be ineffectual.
Sir Richard Webster said you nuist, in order to save the seal, prevent
the killing of the gravid females on their way to grounds where they
are delivered; and yet they would limit it so as not to interfere with
such killing at all, which is all done in the North Pacific.
What time is proposed by these British regulations? To shut ui>
Behring Sea from the loth September round to the first July; and I
shall show you from the evidence in this case that no British sealer
ever went into the Behring Sea earlier than the 1st July, except in
some rare exceptions in the last days of June, and they are all out
before the loth September. The proposed closed time, therefore, for
the protection of the seal would leave all the sealing that has ever
taken place in Behring Sea open, aiul would make a close time as to
those parts of the year when they would not be there even if there was
no close time-
Is that all ? They say they want these Eegulations temporary. That
is, for some term of years. What is the result of that? You will
remember that you have decided, before you arrive at these Regula-
tions, that we have no rights. We have submitted that (piestion, and
have agreed to abide by the result, and we must abide by it, and we
shall abide by it, of course, whatever it may be. You have decided
before you reach this part of the case, therefore, that we have no rights.
Then yon say " We will give you Regulations for 5 or 10 years". At
the end of that time, where are we? We cannot defend ourselves at
all; Ave have agreed that we are to be bound by the award of the Tribu-
nal, we cannot make further Regulations without the agreement of
Great Britain, and we cannot get any Regulations except what they
agree to. No Regulations would be agreed upon, and where should we
be? We should be absolutely defenceless, and the seals would have
to perish. It is a hundred times better to establish no Regulations at
all than that.
Then what else? They want them made non-enforcible; that is to
say Regulations on paper, so that if there is transgression by the
sealers, we alone having to suffer, we skould have to enter into a diplo-
matic correspondance with Great Britain on the subject. We have
tried that remedy before, and the result is that we are here. Where
should we be if we cannot enforce the Regulations? We can open a
diplomatic corres])ondauce with a country across the sea which stands
between us and this Province, with regard to v/hom we are at arms
length.
Sir ("iiARLES Ruf^SELL. — Tliis language of my learned friend betrays
so very grave a misapprehension of our position that I am bound to
interi)Ose, Sir. We never said that the Regulations were not to be
enforcible; on the contrary, we pointed out that legislation in each
country would be necessary to give ettect to tlie Regulations to bind
the nationals of each country; and speaking for the Government of
Great Britain, I said that that country would be bound to pass the
necessary enactment to enforce it; and that, of course, it would.
The President. — I think we understood the language of Mr. Phelps
to have the meaning that you have expressed.
286 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps, — If I am mistaken in the position of my learned friends,
I cheerfully take back anything' that 1 have said.
The President. — What you mean is, that it is not to be enforced by
one party? •
Mr. Phelps. — Yes. I mean, that they propose, with regard to these
ships, if they transgress the Kegulations and are destroying the seals,
tliat we shall have no right to capture a vessel or to do anything except
to appeal to Great Britain and remonstrate with them.
Sir Charles Kussell. — That is not so.
Mr. Phelps. — To remonstrate with them for not enforcing the Legis-
lation which, if they undertake to enact a measure, they would enact.
If I misunderstand my learned friend, I cheerfully take back all I have
said; but what I understood their position to be is this; that there
should be no such provision as that put into the draft of our Eegula-
tions whereby the United States Cruisers could cai)ture a vessel that
Avas transgressing your Eegulations; that is to say, suppose we had a
zone and a vessel is found sealing inside, then we must not capture it;
but we must go to Washington and open a correspondence there with
the Gov^ernment stating that the schooner "Sally Jones" has trans-
gressed the Eegulations. Then, what is the Government to do? Of
course, to send to Canada for information; where they will probably
ascertain that the Ca]>tain of the Schooner " Sally Jones " denies every-
thing. To anybody who knows anything about diplomatic corresi)ond-
ence with a country acting for a Province, it is apparent that it has no
information except what it derives from the Province — wliat would
come from that; and this is only material to show the ground on which
they put themselves.
The President. — That is your own appreciation, of course, M.Phelps
and we have our own appreciation of it.
Sir Charles Eiissell. — I am sorry there should be this difference of
opinion because my learned friend Sir Eirchard Webster re-echoing what
1 think I had previously said made use of this expression.
I only contend for that which the United States itself nuiversally contended for
up to tins point and which Russia, Great Britaii, France, and as far as I li:now, every
otlicr civilized Country has always contended for successfully that if a ship is found
infringing the Treaty — tliat if a ship is found infringing the convention by tLie
nationals of another country it shall be handed over for justice to tbe courts of its
own Hag.
That is according to the terms of the Eussian Convention.
The President. — We remember that perfectly.
Mr. Phelps. — That is another thing and if my learned friends did
not go so far as I understood them to go, then I misunderstood them
and I do not care to press the question any further.
Is it not apjiarent, that the first thing the Tiibunal has to do if they
approach this question of E'^gulations, is to determine which of two
theories will be adopted. Whether the theory which is laid down in
the language of the treaty, which is transparent iu every step of the
correspondence, which api)ears in the instructions written by the Brit-
ish Government to their Commissioners, wiilch is repeated over and
over again all the way through, to do whatev^er is necessary for the
preservation of the fur seal — not necessarily what the United States
says is necessary but what is found to be necessary, or on the other
hand whether you are going to adopt Eegulations that do not go so far
as is necessary to preserve the seal, but go in that direction as far as
you can consistently with the preservation of the ])elagic sealing which
as I have pi'oved to you is itself necessarily extermination. In other
words you will go so far in adopting Eegulations for the preservation
ORXL argument of HON. EDWARD J. PHELPS. 287
of the fur seal as you can go consistently with the preservation of their
extermination. If the one theory is to be adopted that is one thing'.
Then we are to incpiire really what is fairly and reasonably necessary
to preserve this race. That is the inquiry. If the other theory is
adopted, what can you do to retard its extermination consistently with
preserving the right of exterminatiou'? lu the one case you preserve
the far seal; in the other case you are postponing by a few years its
destruction.
In what I hav^e said, perhaps at the risk of being thought to have
said too nuich about tliis antecedent i)oint, I have desired to bring out
clearly what the Governments proj^osed to each other, and what they
did. There is no ambiguity here. If there is any ambiguity in the
previous correspondence it is cleared up when you come to the Treaty
itself. Let me remind you of this ofteu read language.
If the determination of the foregoing questions as to tlie exclnsive jurisdiction of
the United States shall leave the subject in such a position that the concurrence of
Great Britain is necessary to the establishment of regulations for the proper protec-
tion and preservation of the fur-seals in or habitually resorting to Behring Sea, the
Arbitrators shall then determine what concurrent regulations outside the jurisdic-
tional limits of the respective Governments are necessary.
Necessary for what? The i)revious language shows:
The proper protection and preservation of the fur-seal in or habitually resorting
to the Behring Sea.
But if I were to stop here and review all this correspondence again,
it would tuin out, as I have said, to be carried on the face of the pro-
ceedings— all through, "we are willing to do all that is necessary. We
do not desire to injure the United States ; we are willing to join and send
a (Jommission to hud out and aid in determining what is necessary." To
avoid the discussion of the projjosal of Mr. Bayard in which he laid
down his outline, and To avoid the discussion of the propriety of the
very convention Ave entered into, and which, on the iace of it, as the
thing then stood, and the knowledge of the subject then existed met.
the requirements completely of the necessary preservation of the fur-
seal, if it is found now, broad as those limits were, that they are not
broad enough, because the investigations since have enlarged the
knowledge of the subject, and have made it apparent that the parties
were not doing what they thought they were doing in that Convention,
we will agree to what is showu to be uecessary to effect the common
object.
But now the point that my learned frieiul, Mr. Eobiuson, particularly
insisted upon is that you cannot go as far as is necessary to preserve
the seal; that yon may regulate the ])rovisions for destroying him, but
you must not prohibit it; that was his answer to a question of one of
the arbitrators, and a very pertinent question it was. While he was
discussing it Mv. Justice Harlan said, "Do you mean, Mr. Bobinson,
that if it is necessary to ijrohibit pelagic sealing, in order to preserve
the seals, that we are not to do it, that we have not the power to do
itf "Certainly'', said my learned friend, "you may regulate but not
])r()hibit." Begulate what"^ Begulate Avliat you have found to be the
destruction; because if it is not the destruction, you do not want to
])rohibit it. There is no propriety in prohibiting it unless it is destruc-
tion, but when you get thus far and are able to say, Why the ])rohibi-
tion of this sealing is necessary, — because it is destruction — now says
Mr. Eobiuson you may regulate the destruction, but you cannot stop
it by the terms of this Treaty. Wliy it stultifies the Tribunal. It ])uts
the Tribunal under a commission that nominally, at least, invests them
288 OEAL ARGUMENT OF HON. EDWARD J. PHELPS.
with important i;)owers, and yet places them under the necessity of
sayin*;-, "We are asked to protect the fur-seal; the nations have agreed
that it should be protected; we have found out what is necessary to
jirotcct it, but cannot do the very thing and the only tiling for which
this Tribunal was constituted, in the event it should conic to the con-
clusion that any regulations M^ere necessary in the case, because the
country could not protect itself."
Then they speak — and I do not know how far they mean to press
this point — about conditions annexed to the Kegulations; they talk
about their being conditional, upon our stopping the killing on the
Islands. Is the Tribunal invested with any ])(>\ver to enter on theUnited
States territory and prescribe what they shall do on their own soil?
Certainly not. Is there any necessity for if? Certainly not. They are
engaged as earnestly as they can be in preserving the seal. If th^y
have made any mistakes, they will correct them of course, when it
transpires that they need correction ; but they say, though you cannot
make Regulations to bind the United States in the administration of
their own property in their own jurisdiction, where there is no question
of their right, where the concurrence of Great Britain is not necessary,
and it is only when the concurrence of Great Britain is necessary, that
the Tribunal is to provide Regulations, you may make it a condition
that killing must be restricted on the islands; thus doing indirectly
what you cannot do directly. What a proposition that is to a Tribunal
of the distinction and character of this. What a proposition it is to
any Tribunal, however humble and inferior it might l)e, if charged with
dealing with this subject at all, to invite it to do by indirection what it
conceives it cannot do directly.
A few words, and but a few words on the question of whether the
authority of the Tribunal extends to promulgating Regulations that shall
take effect outside the Behring Sea. I do not think that is seriously
denied by the other side. I understand my learned friend. Sir Richard
Webster to have not only agreed, but to liave proposed a Regulation
which he thought would be adequate to protect in the Xorth Pacific
Ocean pregnant females on their way there. I do not think I am justi-
fied in saying that he really contended that the authority of the Tri-
bunal is limited to the Behring Sea itself, but a reference, again to
the language of the Treaty makes that very clear, because the language
is : " The Arbitrators shall then determine what concurrent Regulations
outside the jurisdictional limitsof the respective Governments are neces-
sary and over what waters such Regulations should extend." If there
could be any doubt, a reference to some of the many declarations on
this subject in the previous correspondence would set it (piite at rest.
When this sixth section was first i)rojected or when the Treaty
began to take form as early as December, 1890, the sixth (^^uestion was
proposed in this way.
Mr. Justice Haklan. — It is at page 280 of Volume I of the United
States Case.
Mr. Phelps. — Yes.
If the cleterminatiou of the foregoing questions shall leave the subject in such
a i)o.sition that the foncunence of (Jioat Britain is necessary in prescribing Ecgnhi-
tions for the Ivilling of the fur-seal in any part of tlie waters of l?chring Sea, tlicn ib
sliall be furtlier deterniiued: (1) How lar, if at all, outside tlie ordinary Territorial
limits it is necessary that the United States sliould exercise an exclusive jurisdiction
in order to protect the seal for the time living u]ion the islands of the United States
and feeding therefrom? (2) Wiiethcr a (dosed season (during which the. killing of
seals in the waters of Behring's Sea outside the ordinary territorial limits shall bo
prohibited) is necessary to save the seal fishing industry, so valuable and important
OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 289
to mankind, from deterioration or destruction? And, if so. (3) What months or
parts of mouths should be included in such season, and over what waters it should
extend?
On June the 22nd, 1891, which was after the modus vivendiof that
year had been signed, and the instructions to the British 'Commis-
sioner were " for the purpose of enquiring into the conditions of seal-
life and tlie precautions necessary for preventing the destruction of the
fur-seal species in Behring Sea and other parts of the North Pacific
Ocean." And the President of the United States, in appointing the
Commissioners on our side, instructed them "to proceed to the Pribilof
Islands and make investigation of the facts relative to seal life, with
a view to ascertaining what permanent measures are necessary for the
preservation of the fur-seal in Behriug Sea and the North Pacific
Ocean." There are the instructions issued on both sides to their respec-
tive Commissioners, and that appears again througli this correspond-
ence to an extent which would be only wearisome to reiterate.
At page 315 of the 1st United States Appendix, Sir Julian Paunce-
fote writes a letter to Mr. Wharton of June the 11th 1801, and he says:
Nevertheless, in view of the urgency of the case, his Lordship is disposed to
authorize me to sign the Agreement in the precise terms formulated in your note of
the 9th June, provided the questiou of a .)oiut Commission be not left in doubt, and
that your Government will give an assurance in some form that they will concur in
a reference to a Joint Commission to ascertain what permanent measures are neces-
sary for the preservation of the fur-seal species in the Northern Pacific Ocean.
Mr. Wharton, in reply to tliat letter, recognises the fact, and he says :
I am directed by the President to say that the Government of the United States,
recognizing the fact that full and ade([uate measures !br the protection of seal life
sliould embrace the whole of Behring's Sea and portiims of the North Pacific Ocean,
will have no hesitancy in agreeing, in connection with lier Majesty's Government.
So that you have the specific agreement that these measures were to
embrace parts of the North Pacific Ocean, and instructions were given to
the Commissioners on both sides how far into the North Pacific Ocean
it was necessary to go; and in the next place you have the definite lan-
guage of the Treaty, free from ambiguity, which gives the jurisdiction to
the Tribunal to go to that extent; and then, you have it conceded by
ray learned friends that if you do not go into the North Pacific Ocean
you do not answer the purpose that the Government had in view, and
cannot fulfil the only duty with which the Tribunal is charged.
Now what have we to say generally, about these regulations, before
coming to compare the two drafts. It is that they cannot be temporary.
The theory of the Treaty, and the necessity of the case, is that they
should be permanent; that they cannot be confined to Behriug Sea, but
they must extend as far as is necessary; that they cannot be made con-
ditional upon the management upon the island, for the reason that that
authority is not entrusted to the Tribunal.
Now we come to the proposition made on the British side as a partial
result of the British Commission, though they do not go nearly as far
i'.s that Commission juoijoses, and what is it that they pro]iosel Really,
what is the final outcome. We have reached the point where the
Tribunal is engaged in finding out what is necessary for the preserva-
tion of the seal. They pro]»osc some little, paltry regulations which do
not need the judgment of this Tribunal, because the British Govern-
ment is at liberty t(» adopt them if it pleases, within its own jurisdic-
tion, and this Tribunal could not prevent it. They say let us have
the vessels licensed. That is an affair of their own. We do not care
B S. PT XV 19
290 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
whether tliey are licensed or not. Then they say, let it carry a partic-
ular tia^. We do not care about that. Tiiat does not concern us at
all. They could carry any fla"" they liked, subject to the laws of their
own country. Tlien they say, let them keep a log. What is that worth.
Only this, that when Ave charge a vessel with having transgressed any
regnlations the log would show they had not. You would not find
a sealer coming into Court with a log showing he had broken the
regulations.
They are paltry, I say, these Eegulations, and if they attach any
importance to them, they are quite at liberty to adopt them, because
they are Eegulations we never objected to or asked for; they can do us
no harm, nor can they do us any good; therefore they may be dis-
dismissed from consideration.
But what are the Regulations as put forth theoretically to save the
seals. They are two: — a zone of 20 miles round the Pribilof Islands,
and a close season extending from the 15th of ^^eptember, after every
seal is out of the sea round to the 1st July, which is the earliest date
at which they come back again. Those are the two provisions that are
really set forth by ray learned friends as an answer to the enquiry sug-
gested to the Tribunal by these two nations, what is necessary to be
done for the protection of the seal.
Let us see exactly where those two will come out; I examine theirs
first, to show the utter futility of them, that they are not worth the
paper on which they were written, that we do not ask for any such thing
as that, and that they would be but a mockery — keeping the word of
promise to the ear and breaking it to the heart.
They say in language and in one of these Regulations — at least, Sir
Richard Webster says in his argument, you must keep the vessels at
home and not permit them to set out till the 1st May. Why? Because
he argues and supposes — I am bound to presume so, especially if he has
not looked into the sort of evidence I am going to call your attention
to — If you keep the vessels at their ports till the 1st May, they will not
catch the migration of the seals in time to destroy the pregnant females,
except perhaps in the case of steam vessels which could more rapidly
overtake the migration of the herd. They would be safe from its pur-
suit if they do not set out till May, and setting out in May, they will
have the pleasure of chasing across the sea a flight of animals that is
so far ahead of them they cannot possibly overtake them. Then what
are they going to do with themselves if they cannot enter the Behring
Sea till the 1st July wliich is as early as is any use. How are they
going to spend the months of May and June, being at sea in jmrsuit of
a body of seals that they cannot catch, and excluded from Behring Sea
till the 1st July. It is no use to go there, unless they could intercept
the pregnant females between the Aleutian Chain and the Islands.
What is the sense of the sealers doing that, we do not learn from my
learned friend.
Now I will ask General Foster to be kind enough to jjoint out this on
the nmp.
Let us see what time they arrive at the Pribilof Islands.
The testimony does not differ and the Commissioners do not differ.
The United States Commissioners say that the old breeding males begin
to arrive on the Islands the last week in April, and by June the 2(>th
they are all located. The British Commissioners say the same thing.
The United States Commissioners say the bachelor seals begin to arii\e
early in May and large numbers are on the hauling ground by the end
of ]\Iay or first week in June. Tlie British Commissioners say with the
main body of the full grown bulls, a large i)rox)ortion of the bachelors
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 291
or younger males also appear. In fnrtlier proof npon this point an
examination of the table of killiiii;-s from 1880 to 1889, shows that the
killing season opened every year in May, and for the greater number
of years on or before May the 20th and by June the 15th large numbers
of bachelors had already been taken.
The United States Commissioners say the cows begin to arrive early
in June, but in immense numbers between the middle and end of the
month, and the harems are complete early in July.
The British Commissioners say a few gravid females usually land as
early as the 1st June but it is under normal circumstances between the
middle of June and the middle of July that the great body of the females
come ashore.
All the difi'erence is that the American Commissioners say the harems
are completed early in July, and the l>ritish Commissioners say between
that and the middle of July ; the difference is very slight.
There is a good deal of testimony also about the seals swimming more
rapidly than any hsh, and that they usually travel I'OO miles in one day.
Tliis is confiimed by the Canadian Fisheries Eeports.
The British Commissioners state that in the latter part of June or
about July 1st, the female seals in pup which have entered Beliring Sea
are found making their way rapidly and directly to the breeding Islands,
li^ow before alluding to a good deal of testimony on these points I want
to point out on the map what is very striking.
In the British Counter Case we have the logs of 19 Canadian vessels
engaged in pelagic sealing in 1892, duly authenticated by the aflidavits
of the master or other officers of the vessels. These logs show the
period of time occupied by each vessel in sealing, the locality of the
vessel on each day when seals a^ ere taken, and the number of each
day's catch. That is found in the 2nd A^olume of the British Counter
Case from ])ages 187 to 212. We have plotted on the map
Mr. Justice Harlan. — Is that a map made from these logs'?
Mr. Phelps. — Yes. 1 will descril)e it.
We have put on to the map the location where each of these vessels
was on the 1st day of May; their exact course through the months of
May and June, the points at which their catches were made, and, in the
case of most of them, not all, the number of the catch. Now, as to
those 19 vessels, of which we have an exact record, I will ask the atten-
tion of the Tribunal while General Foster points them out.
The Umhrina, No. 1, was off Sitka on the 4th day of May.
Sir Charles Eussell. — The latitude and longitude were given in
the log. Has that been verified f
Mr. Phelps. — Yes : this has been verified exactly. We have followed
the latitude and longitude and the course, to know where they started
from and where they went. The Umbriva started on the 4th February;
on the 4th of May, she was off Sitka; on the 30th of May, she was south-
west of Middleton Island; and, on the lOth of June, she was east, off
the centre of Kadiak Island. There is the course of that vessel from
February to April.
General Foster. — She went out in February, and sealed throughout
the season.
Mr. Phelps. — That is the way she came. From February to April,
she took 296 seals.
General Foster. — As her log shows.
Mr. Phelps. — In May and June, a;");") seals. So that out of a catch
of 851, 555 were taken between the localities which have been j^ointed
out, Sitka and Kadiak.
292 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. JMsti(,'e Harlan. — Where is the second point/?
General Foster. — There. [Pointing it out.\ The pUice where the ex-
change was made in 181)2 was Port Etches, which is there. [Indicatinr/ it.\
Mr. Phelps. — I take No. 2, the W. P. Hall. On the 1st June she was
south oil" Sitka Bay. On the 13th June she was off Yakutat Bay. I do
not find the amount of her catch here.
General Foster. — We only tabulate the catch of those engaged dur-
ing the whole season, beginning in January or February.
Mr. Phelps. — Now take the Maud S. On the 1st May she was off
Sitka; on the 31st May she was south-west of Yakutat Bay; on the 13th
June, she was south-east of Marmot Island.
From February to April, as shown by her log she took 319 seals. In
May and June she took 640.
Sir Charles Eussell. — Where do you get the figures from?
Mr. Phelps. — From the log of the vessel.
General Foster. — The figures represent each day's capture of seals.
Mr. Phelps.— Take No. 4, the Agnes McDonald, on the 1st May off'
Queen Charlotte Sound, on the 3()tli May off" Yakutat Bay, on the 15th
June off" Cape Clear. There is where that vessel spent May and half
of June. The catch is not given.
General Foster. — She was not engaged in the early part of the season.
Mr. Phelps. — The entire catch is given, but we cannot tell which was
taken before May and after June.
The President. — There was a good deal in July and August; is that
in Behring Sea?
General Fosteu. — Yes.
Sir Charles Eussell. — This was the year of modus vivendi.
Mr. Phelps. — No. 5 the Arietis on the 17th of May was'off' Icy Bay;
on the 30th May off' Cape Clear; on June 13th oft" Shumagin Island —
that was her course.
No. 0, the Beatrice^ on the 1st May was off' south part of Queen Char-
lotte Island; on the 30th May off Cape St. Elias. On the 15th June
she was off' Cape Clear. That vessel took from January to April inclu-
sive 249 seals. In the months of May and June she took 454.
N" 7 is the SajypMre. May 1 off Prince of Wales Island.
May 30, off S. W. Cape St. Elms.
June 11, off Middlcton Island.
N" 8 is the E. B. Marvin. May 1, S. W. Sitka.
May 30, S. W. Yakutat Bay.
June 9, S. W. Middleton Island,
That vessel from January to A^jril took 611 seals. In the months of
Mav and June she took 1,012.
N° 9 is the Viva. May 1, off S. W. Yakutat Bay.
May 30, off Cayie St. Elias.
June 20, off Middleton Island.
That vessel from February to April inclcusive took 881 seals. In
May and June she took 985.
N" 10 is the A. E. Faint. May 1, off S. Queen Charlotte Island.
May 30, off' Yakutat Bay.
June 17, off Cape Clear S. W.
That vessel took from February to April inclusive 239 seals and the
months of ]\Iay and June 325 seals.
NMl is tlie A. G. Moore. May 1, off Cape Muzen, P. Wales Island.
:vlay29, off Middleton Island.
June 8, off Portlock Bank, S. W. Cape
Clear.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 293
N" 12 is the Faicn. May 1, off Forester Islands (Pr. Wales) Cape
JMuzoii.
May 30, off Yakutat Bay.
June 28, off S. E. Portlock Bank.
N° 13 is tlie Anioliti. May 6, off centre Queen Charlotte Island.
May 30, off' icy Bay.
June 17, off E. of Cape Elizabeth.
That vessel took from February to April inclusive, 57 seals; and in
the months of May and June G13 seals.
The 14th is the Mermaid. May 1, off' Dixon Entrance.
May 26, off Cape St. Elias.
And that is all the course that is given of her.
The 13th is the Triumph. j\Iay 27, off Middleton Island.
May 31, off" E. of Portlock ISank.
June 10, off' !N". of Portlock Bank.
The 10th is the Thistle. May 1, off' S. Clayquot Sound.
There she was on the 1st of ^lay. She started, very nearly, from
Victoria.
May 30, off S. W. of Yakutat Bay.
June 27, 200 miles S. Middleton Island.
That vessel took from February to April inclusive 118 seals j and iu
the months of Mav and June 293, makino- 141 seals.
The 17th is the 6'. H. Tupper. May 1, off Sitka.
May 31, off Middleton Island.
June 16, off Cape Elizabeth.
Slie took, from February to April 484 seals; and in the montlis of
May and June 789 seals.
The 18th is the 0. D. Band. May 6, off Milbank Sound, S. of Q. Ch.
Isd.
May 30, off Yakutat Bay, W.
June 15, off' Portlock Bank, E.
She took from February to April 42 seals; and in the months of May
and June 538 seals.
The 19th, and the last is the Vancouver Belle. May 1, off' Christian
Sound.
May 30, S. Portlock
Bank.
June 3, oft' S. E.
Cape Elisabeth.
That vessel took from February to April Q% seals; and in the months
of May and June 279. That is ail.
Mr. Justice Harlan. — Do those figures, Mr. Phelps, embrace any
catch in the spring or in June of the year by vessels that were not
British vessels?
Mr. Phelps. — Those are all Canadian Vessels.
Mr. Justice Harlan. — 1 know. Were there any catches by other
vessels'?
Mr. Phelps. — I am coming to that; these are only 19 vessels. The
reason why they are given is because we happen to have the logs. But
I want to point out one more thing. You will see the net-work made
by the courses of those vessels, I will ask General Foster to kindly
point out that red mark.
General Foster. — [Pointing on the map.] The black line indicates
the course of the vessel in May. The red line (as far as it can be dis-
tinguished from the black) indicates the course of each vessel iu June.
The coloring is not very clearly brought out.
294 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — I will ask General Foster to point out tlie red baud
circle there.
[(ieneral Foster did so.]
Mr. Phelps. — That indicates a radius of 20 miles — 10 miles encli
way. It is said in the evidence they are accustomed to send their little
boats out that far.
If at every point that General Foster has indicated where seals were
taken you sup])osed a radius of 30 miles, you will see, if we laid that
down on the ma]), we should paint it all over with red so that it would
not be distinguishable, — having regard to every change of course, if
w^e indicated the area covered by the little boats in this way, — 10 miles
in every direction. You have to bear in mind that these are but a
small part of the sealing fleet. The entire number of the vessels is
given as 117. This represents 19 vessels.
Mr. Carter. — We have the logs only of these 19 vessels.
Mr. Phelps. — Yes; that is all we have the logs of. Now, suppose,
Sir, that we had the logs and were to take the pains of adding the
courses and localities of the balance of these IIG vessels, that is to say
97 more; we have given 19, — suppose we marked that map ott" with the
courses of the 97 more, it is plain and perfectly apparent that the whole
sea would be covered with such a network that it would be indistin-
guishable.
You would require a magnifying glass even ui^on such a large map
as that to follow the line of vessels; and when you add to that the area
covered by the small boats of the vessel, the entire sea is covered; and
I should like to know what chance the female seals would have of
escaping? That they have escaped in past years to some extent is
because there were fewer vessels. With the whole IIG, and as many
more as may be engaged in this hereafter, you would have the map,
showing the courses, so blotted and covered as to be indistinguishable.
You see what the destruction in the mouths of May and June is in the
North Pacific Ocean; and you see so far from my friend Sir Eichard
Webster being correct in what he undoubtedly supposed or he would
not have said so— what he undoubtedly supposed was a sufficient ])ro-
tection of the gravid females — that these vessels would be all the time
behind the herd and only engaged in picking up such holluschickies as
were behind the female seals, when you come to look at the evidence
on both sides as to the arrival of the holluschickies you will find they
are very little behind the others. When you come to look, as we did
yesterday, at the amount of the catch, you will find they are 85 per
cent females at least. So that these vessels could have no object in
being there in the month of June to pursue that little remnant of the
holluschickies which would give them just about 15 per cent of what
they hitherto made, and those, small and young seals and less valuable
skins.
\ou see from the necessary result, if we did not go any further, — if
this was all the evidence in the case, that from the necessities of the
case you cannot protect these gravid females by any such provision as
my learned friend Sir Richard Webster suggests — that is, to keej) your
vessels back till the 1st May. They are not inside the Aleutian Islands
until late in June or in the course of June. As it is, they are there
from very nearly the end of June or the 1st July and they pass very
rai)idly, and up to that time they are, of course exposed to the depre-
dations of the sealers and to the same capture that has always taken
I)lace.
ORAL ARGUMENT OF HON. EDWARD J, PHELPS. 295
The President. — Do these lofs; books for the year 1892 show thnt
the sealers sailed along' iu front of the north-west coast any time later
than the end of June?
Mr. Phelps. — They do not.
General Foster. — 13 of them closed their sealing season on or before
the 16th June; 3 on the 17th June; 2 on the lOth June and 3 between
the 20th and 3()th.
The President. — Their sealing season along the north-west coast
you mean*?
Mr. Phelps. — Yes.
The President. — They went on further. You admit they went on
to the Commander Islands"?
Mr. Phelps, — I was about to state that they went up to the Port of
Etches, that you see at the top, to unload aiul i^erhaps to get supplies.
A vessel that went n^ to meet them in the latter part of June was
seized by the United Snites and that virtually broke up the voyages of
these sealers, because they could not unload or obtain the sui)i)lies they
wanted, so they had to close their sealing season.
The President. — Those go further — to July, August, and Septem-
ber.
Mr. Phelps. — Yes.
The President. — Where were they?
Mr. Phelps. — In another map it is shown where they were. They
went to the Asiatic side of Behring Sea. The modus vivendi kept them
out of the American side.
The President. — Of Behring Sea.
Mr. Phelps. — They went over there, and made a later sealing.
The President. — It was after June that they went over there?
Mr. Phelps. — Yes.
The President. — Was it in the latter part of June?
Mr. Phelps. — Yes.
General Foster. — After they made the exchange of the skins and
got supplies, they went over to the Asiatic side.
Senator Morgan. — Would you point out on that map where you first
get the entrance to the Pribilof Island of these herds that are going
over there.
General Foster. — TJnimakPass is one of the favorite passes, accord-
ing to the testimony — the principal one. The testimony is that they
go out as far as latitude 172.
Senator Morgan. — I want you to point out the first one.
General Foster. — That is the principal one, [indicating on the map].
Mr. Justice Harlan. — Are there some passes not easy to make the
passage through ?
General Foster. — There is one called False Pass at high tide. It is
not used by the seals, I understand.
Senator Morgan. — These seals that Mr. Pheljis has been speaking
of had accomplished about two-thirds of the distance between Van-
couver and that pass to the Pribilof Islands at the time you mention?
Mr. Phelps. — You see from the map where they were when taken.
General Foster. — We will show later on what the character of that
catch is.
The President. — Do not they go after the seals along Unalaska —
along the promontory?
Mr. Phelps. — They are travelling there. I do not know how close
they pursue fc.
The President. — But you have no evidence about that.
296 ORAL AUGUMENT OF HON. EDWARD J. PHELPS.
Mr. Phelps. — I do not know. I am not proceeding on that point for
the moment.
The President. — From Unalaska — fiom Kadiak!
Mr. Phelps. — Of course, all we know about the presence of the seals
in this connexion is what the logs of the vessels show. We show where
the vessels were and we show in most cases how many they caught —
not in all — and the course of the vessels, and we have taken what ves-
sels got them there and where they went.
Lord Hannen. — As far as these vessels are concerned, you seem to
suggest there is some reason why they could not be traced further.
You say they went up into the corner of Unalaska to unload and get
supplies.
General Foster. — That is one ro ison. The other reason is they take
a straight course over to the Asiatic side. As you see, this map is on
a very large scale and we could not represent the Asiatic side. We
have another map showing where some of the vessels were.
Mr. Phelps. — V/e have another map to show where some of them
were — at the Commander Islands. We cannot trace them all of course.
To consider the question from another i)oint of view. From the Brit-
ish Commissioners Eeport I take some extracts to show this. In Sec-
tion 177 they say.
Abreast of, or somewhat further north than, the Queen Charlotte Islands (Lat.
53°), a considerable body of seals is often mot Avith at sea by the pelagic sealers in
May or June. These seals are then moving north ward. . . .
About the first of April the Tshimsiaus resort to Zayas Island (Lat. 55°) for the
same purpose (hunting of seals from shore). The hunting, as at present practised,
extends over Aiuil and the greater part of May; off Banilla Island it is continued
through the greater part of June, but this difference is due rather to the option of
the Indians than to any diversity in dates in the arrival and departure of the seals
in the two places. Seals of both sexes and all ages are killed during the hunting
season, and a few full-grown bulls are seen, but are seldom taken. There is, in this
region, no interval between the arrival of seals from the north in the early winter
and their departure for the north, which occurs in the main about the end of May.
Sec. 178. Outside Cape Calvert (Lat. 52°) seals are most abundant in March, but
a few remain until the latter part of June. The seals coming first are chiefly females,
but alter the 1st of June they are nearly all young males. Fully matured large
males are found in small numbers.
Sec. 182. About Barclay Sound (49°) the seal are first reported in December. . .
The greater numljer leave before the end of April, when they begin to travel north,
but a few are killed, further out at sea, sometimes as late as the 15th June.
Sec. 181. Captain John Devereux, who has been for twenty-seven years on the coast
of British Columbia., .informs us, in reply to questions addressed to him, that
from the latter part of November, or early in December, to the beginning of .June,
the fur-seal is found off the coast of the entire length of Vancouver Island (18^ 30' to
51°), but that in the early winter the weather is altogether too rough for hunting.
See. 187. In the vicinity of Sitka (58°) some seals appear near the coast as early as
the middle of April, but tliey become abundant during May, and some are still seen
in the early part of June.
On the Fairweather ground, in the Gulf of Alaska, (58° 30') seals are most numer-
ous from the 1st to 15th of June. About the 25th June, in 1891, they were found in
abundance by the sealing-schooners on the Portlock banks, to the east of Kadiak
Island.
About Kadiak (57° to 58°) they are generally found from the 25th of May to the
end of June, being most abundant in the average of years about the 10th ,)une.
They are seldom seen in July, and very rarely even stragglers are noticed after the
middle of that month.
That is the British Commissioners statement about where the seals
are.
We have the testimony of a good many witnesses on this point.
There is the testimony of a great number of Indians, Captain Light-
house, for instance — I cannot read them all in the time I have — says.
The fi'-st seal appear in the Straits (San Juan de Fuca) and on the coast about the
last of Dexjember, and feed along the coast, and. seem to be working slowly to the
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 297
aorth until about the middle of June, at which time the cows are pretty much all
gone, but the smaller seals remain until about the middle of July. . . 01" all the
seals captured by me about one-half of them, I think, were cows with pup in them,
and it is very seldom that I have ever caught a full grown cow that was barren or
did not have a pup in her. (U. S. Case, Vol. II, pp. 389, 390.)
There are 14 other witnesses at Neah Bay to substantiate that. The
Indians near Queen Charlotte and Prince of Wales Islands depose as
follows.
George Skultka says :
We commence hunting when the geese begin to fly, and hunt for a month and a
half. The geese commence to fly about the last of April. . . I think about three
females with pup out of every ten killed. I kill lots of yearling seals but never
examine them as to sex. (U. S. Case, Vol. II, p. 290.)
Dan Kathlan ; 25 years old says :
Have hunted seals since I was a boy. This is the first year I ever hunted on a
schooner. I am now on the schooner Adventure. When I was a boy I hunted seals
in Dixon's Entrance and off' Queen Charlotte Island. Always hunted during April
and May. In June the seals all leave going north. . . About one-half of the seal I
have taken were females with pup. Have taken a very few yearlings. (U. S. Case,
Vol. II, p. 286.)
Ntkla-ah another Indian says :
I was born at Howkan ; I am very old, about 60 years old. I have been a hunter
all my life. Have hunted fur-seals every season since I was old enough in a canoe.
The seals always come before the birds begin to sing very much, and they are all
gone when the salmon berries get ripe, which I think is between the months of
March and July. I tliink about half the seals taken by me are females with pup.
(U. S. Case, Vol. II, p. 288.)
Another witness, Smith Natch (United States Case, Volume II, page
298), says:
Always hunted fur-seals between March and June. They make their appearance
in March in Dixon's Entrance, but at that time of the year the weather is so bad we
cannot hunt them. May is the best time to hunt them because the weather is always
good. They all disappear in June and go north up the coast, I think to have their
pups. . .
Thomas Skowl, Chief of the Kas-aan Indians (United States Case,
Volume II, i>age 300), says:
I always hunt seal in Dixon's Entrance and off Prince of Wales Island, and hunted
them each year from March to June. The seals all leave about June 1st to go north
and have their pups, I think. . . Most of the seals taken by me are females with
pup. Never killed but one old bull in my life.
There is the testimony of a large number of these witnesses — (I do
not like to read what is but repetition) — which will be found in the
United States Case, Volume II, pp. 276 to 303.
There is a body of evidence that speaks of the course from Sitka to
Yakutak, Latitude 57° to 59° 30'. Adam Ayonkee (at page 255 of the
United States Case, Volume II), says:
Seals are first seen and taken by me each year off Sitka Sound, about the middle
of April. Have followed them as far north as Cape Edward, where they disappear
about June 30th. They are constantly on the advance up the coast. . . Most all seal
that I have killed have been pregnant cows.
Thomas Gondoweu, from the same locality, says:
Have hunted seals between Sitka and Cross Sound. They first appear about the
middle of this month (April), and disappear about the last of June. . . Most of the
seals killed are cows with ])U]). A few males are killed averaging from one to four
years old. (U. S. Case, Vol. II, p. 259.)
Percy Kahik I Day, who has hunted seals since a small boy, says:
The seals first make their appearance about the middle of April off Sitka sound
and disappear about July 1st. They are on their way up the coast. . . Most of the
298 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
seal 1 La\ (■ tiikeii have been presiiaut cows. ^Vllen the females nre w ith pup they
sleep more, are less ac^tive in the water, and more easily approached than the male
seals. But very few youug male seals are taken by me alonjj the coast. (U. 8. Case,
Vol. II, p. 261.)
Peter Church, who has been sealing four years (at page 256 of the
United States Case, Volume 11) says:
Have first taken seal off Sitka the middle of April. Followed the seal up the
coast as far as Yakntak. where they disappeared the last of June. . . Most of the
seals taken by me have been females with j^ouug.
There are witnesses from Prince William Sound, latitude 00°. —
Nicola Gregreoft" and thirteen other Indians. Xicola Gregreotf says:
In the latter part of March a few fur-seals usually first make their appearance in
Prince William's Sound and are more j)lentitul iu tlic latter part of April. They are
mostly large males, very few females being taken, and those only toward the close
of the season in the latter part of May. Very few females taken iu this region but
are pregnant. (U. S. Case, Vol. II, p. 234.)
Olaf Kvan says:
The lirst seals appear in Prince William's Souud about the first of May and were
form'^rly very plentiful, while now they are becoming constantly scarcer. I do not
know the cause of this decrease. All the seals which I have seen killed were females,
and the majority of these were pregnant cows. (U. S. Case, Vol II, p. 236.)
Nicolas Andersen says :
Seals are first seen at Prince William Sound about May Ist. (U. S. Case, Vol. II,
p. 223.)
The last locality I will refer to is Cook's Inlet. Metry Monin and 12
other Indians testify that:
The fur-seals usually appear about Cook's Inlet early in the month of May. They
were formerly found in this region in great numbers, but of late ye_ars they have
been constantly diminishing owing to the number of sealing vessels engaged in kill-
ing them. They do not enter Cooks Inlet. (U. S. Ca.se, Vol. II, p. 326.)
Another witness Alexander Shyha says :
The fur-seals usually appear off this part of the coast about the month of May,
but they do not enter Cook's Inlet. (U. S. Case, Vol. II, p. 226.)
There is another class of evidence as to where pelagic sealing is car-
ried on along the coast, and the character of that catch before the seal
herd enters through the passes. The Marquis Venosta, when this was
going on, put a question in the course of the argument on this point.
He enquired whether by the month of June the female seals are prac-
tically in Behring Sea, and whether at that time a considerable num-
ber of gravid females were not found along the Alaskan Peninsula..
Sir Richard Webster said that by the 1st of May they would be so far
advanced that vessels sailing from Victoria on the 1st of May would
not be able to overtake them. 1 projjose to refer to a little ot the vast
amouut of testimony on the subject of the duration of Pelagic sealing
on the coast.
The United States Commissioners, at page 305 of the United States
Case, say:
Pelagic Sealing is now carried on in the North Pacific Ocean from .January until
late in June.
The British Commissioners at Section 649 of their Report say;
Behring Sea is now usually entered by the pelagic sealers between the 20th June
and the 1st July.
The British Commissioners at Sections 132, 212 and 282, say:
In pelagic sealing, the weather is usually such as to induce a few vessels to go out
in Jauuary, but the catches made in this month are as a rule small. In February,
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 299
Marcli, and April the conditions ai-e iLsnally better, and larger catches are made. lu
May and June the seals are found further to the north, and these are good sealing
months; while in July, August and part of September sealing is conducted in Beh-
ring Sea.
Mr. Justice Harlan. — What Section is that?
Mr. Phelps. — I refer to sections 132, 212, and 282. The one I have
read, is, I believe Section 132.
Captain Claussen testifies as follows :
Q. When does sealing commence in the Pacific, aud when does it end? A. Sealing
couimences in the Pacific about the 1st of January and ends about the 1st of July. . .
Q. What percentage of the skins you have taken were cows? A. About80 percent.
Q. What percentage of the cows you have taken were with pup? A. About 70 per
cent. (U. S. Ca8e,"Vol. II, pp. 411-12.)
Sir Eichard Webster says they can go ahead of the cruisers that leave
port on the 1st of May. They cannot go ahead. 1 have shown that all
the seals that are taken in the ISTorth Pacific Ocean by pelagic sealers
are 85 per cent females; and of that 85 per cent, the greater proportion
are pregnant.
Now the only point that remains is to show the duration of the time
of this pelagic sealing in the North Pacific; that is to say that it goes
on from the period of the year when it begin.s — when the weather allows
it to begin — in January and February, down to the 1st of July.
Senator Mgrgan. — Now in January and February, if I understand,
they commence 200 or 300 miles down the coast — below at Cape Flat-
tery?
Mr. Phelps. — There is a good deal of evidence of that sort — that
they go into Behring Sea about the 1st of July. In very rare instances,
as 1 have stated before, the Tables show that a vessel got in the last
days of June; but the season continues, in the North Pacific, down to
the 1st of July.
On that point I refer to a number of these witnesses out of a great
many that 1 could read.
Captain Kiernau (at page 450 of the United States Case, Volume II),
says:
I usually commence the voyage near the coast of California in the early part of
January and continue along up the coast, following the herd to its breeding ground
until the latter part of June, hunting all the way and entering Behring Sea about
the Ist of July. . .
Captain Lutjens at page 458 of the United States Case, Volume II,
says:
Q. When does sealing commence in the Pacific and when does it end? A. It
commences about the 1st of January and ends about the last of June.
He speaks of four-fifths being females, as they all do.
Captain Carthcut, master mariner, at page 400 of the United States
Case, Volume II, says:
I usually left San Francisco in February or March of each year, and sailed along
the coast, following the herd north on their way to the breeding grounds on the
Pribilof Islands in the Behring Sea. I usually entered the sea.
that is Behring Sea.
About the first of July and came out in September.
Captain McLean, vouched for by the Canadian Inspector of Fisheries
as an expert sealer, at pages 436-7 of the United States Case, Volume
II, says:
To my knowledge they (the seals) go into Bering Sea after the 20th of .June. You
may take it all the way from April, May aud June; from April all the female seals
that you kill are with pup, up to about July 1st.
300 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Aud other wituesses, a good inauy of them examiued by the British
Government, say the same thing.
Captain Warren of Victoria, who owns a hirge number of these vessels,
(at page 99 of the British Counter Case Appendix, Volume II), says:
The sealing season is divided into two parts, the coast season and the Behring Sea
season. The coast season terminates about the end of June, but vessels intending
to go to Helning Sea generally leave the coast lishing during the month of May
sealing as they go north w^ard, and reaching Behring Sea the end of June or beginning
of July.
Captain Herman R. Smith, a British witness (at page 61 of the same
2nd Ai)pendix to the British Counter Case), says:
On the Vancouver coast in the early part of the season, about one-half of the seals
got are females, about one-half of which are with pup. As the season grows fewer
females are got, and of those got a small proportion are in pup. By the second week
in June, all females in pup have left the coast, as far north as Queen Charlotte
Island,
Frank Moreau, examined by the United States (at page 4G8 of the
2nd Appendix to the United States Counter Case) says :
Sealing commences about the 1st of January and ends about the last of June.
There is no contradiction to this. There are a great many more
witnesses that state the same thing; and we make out our point there-
fore from all these various directions, that the coast sealing — the coast
catch — does last clear up to the 1st of July. By that time the seals are
through the pass, and as they travel with great rapidity it does not
probably take them more than a day to go through the pass to the
islands. They are through the pass and the vessels follow in just about
the 1st of July — very rarely before.
Mr. Justice Harlan, — I would like to ask you this. Your tables
in the case describe the different catches — speaking of the '' S[)ring
catch", the "Coast catch", and tlie "Behring Sea Catch". What is
the dividing line, if there be one, between the "Spring catch" and the
"coast catch", or is there a dividing line?
Mr. Phelps. — I do not know that I can give a specific answer to that
question. I think that the "Spring catch" is perhaps lower down —
opposite the parts of the sea from which they start; and the "Coast
Catch" is along this coast round further north. General Foster will
show it you on the map.
General Foster. — It says they were accustomed to go into Victoria
or Clayoquet Sound in the Spring — April possibly — or the latter part
of March to unload the Spring Catch; and the coast catch is taken up
here [indiciating on the map], which is generally exchanged by a vessel
being sent up to take the skins and furnish the vessels with su])plies.
That is called the "coast catch"; the whole altogether being the
" northwest coast catch."
Mr. Justice Harlan. — The reason for my asking the question is that
I have a table before my eye. On page 211 of the British Commission-
ers' Eeport there is a table showing the catch of the British Colund)ian
vessels for 1889. I take the vessel "Annie C. Moore". Spring catch
313, coast catch 489, Behring Sea catch 1318. Total 2120.
Mr. Phelps. — I see the distinction and I will try to answer it
to-morrow.
Mr. Justice Harlan. — I suppose the "spring" and "coast" catches
together constitute what is called the "North West Coast catch".
Mr. Phelps. — I will enquire about it. Sir.
Sir Charles Russell. — As I understand the contention we under-
Btand the spring catch extends from the earlier months from January
ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
301
to April. Then at the eud of that time they are suppovsed to go in for
supplies.
Mr. Phelps. — There is a large mass of testimony as to the character
of the catch taken, that I have gone throngli; but I want to call atten-
tion now to a table that we have prepared, giving the logs of these 19
vessels.
Sir Charles Eussell. — This is something new.
Mr. Phelps. — There is a good deal of evidence (I went over it by
classes yesterday), that has been before referred to, about the character
of the catch; it is coniposed of females that are pregnant, to a large
extent. It comes from the Captains, Masters and Seamen of some of
these very vessels that we have been talking about ; but we have a table
of these 19 vessels (in addition to the diagram on the map), taken from
the logs in all cases, showing their total catch.
Sir Charles Eussell. — Can I see this, as I have not yet seen it.
Mr. Phelps. — Certainly. You shall have a copy of it.
Sir Charles Eussell. — I wish I had seen it in time to examine it.
j\Ir. Phelps. — The '-Umbrina", for instance, setting out in January,
took 115 seals in February, lOG in March, 73 in April, 517 in May, 38
in June, and then G22 on the Asiatic Coast; making a total of 1,473.
The "W. P. Hall" took 50 seals in June, and 366 on the Asiatic
Coast; making a total of 416.
Tlie "Maud S." took 82 seals in February, 103 in March, 134 in April,
627 in May, 13 in June, and 748 on the Asiatic Coast; making a total
of 1,707.
This shows without reading this Table all through — (we can furnish
copies of it) — that of these vessels, the greatest bulk of their sealing
in the Pacilic (aside from the Asiatic Sealing), was in the month of May.
The whole catches of these vessels figure up like this: 28 seals in Jan-
uary, 835 in February, 994 in March, 1,938 in April, 8,360 in IVlay ; 1,438
in June. Then there is the Asiatic catch which is not material for my
purpose.
The following is the Table referred to.
Name of vessel.
Jan-
uary.
Febr.
Mar.
April.
May.
June.
Asiatic.
Total.
Umbrina.--. - -
115 106
75
517
38
50
13
65
147
44
38
54
254
58
24
137
110
622
366
748
374
675
543
""421'
1,473
416
1,707
964
1,149
1,246
983
1,023 .
1,8^8
985
527
480
750
187
262
441
1, 273
580
041
"W. P. Hull
Maud ri
82 ; 103
134
85
027
440
327
410
824
958
713
267
342
310
583
187
157
209
713
414
262
Beatrice
22
35 1 53
1
139
121
280
665
87
33'
33
SaT»T)hire -
E. li. Marvin .-
6
iSl
75
49
144
141
103
101
Viva
Annie E. Paint. . .
Annie C.Moore.-- ..
Fa'wii
Ainoko
24
Triumph
105
84
76
124
17
"""296"
Thistle .
41
210
7
16
38
99
21
22
09
175
14
28
C. H. Tap per. --.-----
C. D. Eaud
Vancouver Belle
Total
28
835 901
1,938
8,260
1,438
4,045
17, 535
ISTow it will be seen from this Table that the total coast catch in 1892
I mean all round until they enter Behring Sea — of these 19 vessels,
from January to April inclusive was 3,792; and in the months of May
and June, 9,698, making a total of 13,490; in other words, 28 per cent
302 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
of the coast catch was taken he/ore the 1st May, and 72 per cent during
the months of iMay and June. Now if you a|>]>ly those hjiures to the
total catch of the Canadian fleet for 1892 wliicli was 30,553 — if you
ap])ly the same ratio to the other vessels that their logs shows to be
applicable to this, we have, from January to A ])ril inclusive, 8,555 seals;
and in the months of May and June, 21,998. If you were to apply
that to the four years, why, you get just about the same hgares.
This, Sir, I am afraid, is as far as I can go to-day. I am sorry that
I have not been able to fulfil my promise to get through to-day: but I
am not through, and I have to ask the indulgence of the Tribunal for
a little while to-morrow, if it would suit the convenience of the Arbi-
trators; I hope not to l)e very long; I should rather finish this week,
and I presume you would, but I am, of course, in the hands of the
Arbitrators in every respect.
I was about to remark that the ui)shot of all these figures and dia-
grams and this multitude of evidence is to show, first, that the months
of jMay and June are the principal, the largest, months for the catch
on the coast to the extent of almost 75 ]>er cent — 72 per cent at
any rate; and tliat the vessels do not enter the Behring Sea until the
1st of July, the very time when the close time that is proposed by my
learned friends on the other side would allow them to enter; so that
the proposed close time would not keep them out at all. Of cours»j, it
does not interfere with the catch ou the coast, and it does not interfere
Avith the catch in Behring Sea.
I want to consider the subject a little further (and especially the
question of zone), to-morrow, and some few other iioints in respect to
the sealing in Behring Sea. I have very little, if anything, more to say
on the subject of the catch in the Pacific Ocean; and I think it will
become very ai)i>arent when we get through, what area must be
covered by the Keguhttions if you are going to save the seal — what
area must be covered and what time must be covered to answer the
purpose.
The Pkesiden'I'. — Mr. IMielps, we do not want to preclude you from
finishing this week, as you have just told us it is your wish; so, we
intend sitting to-morrow, but we would sit only tomorrow afternoon.
Mr. Phelps. — That will be quite enough for my purpose.
The President. — If it agrees with your arrangements, Mr. Phelps,
we would meet to-morrow at 2 o'clock.
Mr. Phelps. — Yes. Tht- Tribunal, of course, will understand I am
quite in their hands in respect of the time. All rimes will be agree-
able to me, that are convenient to the Tribunal; and if 2 o'clock
to-morrow afternoon would be convenient, it would suit me.
" The President. — We are somewhat in your hands also.
Mr. Phelps. — I beg you will not consider it so, Sir; I only regret
that I have been so long.
The President. — I mean to say, it would be useless to meet
to morrow and to have this extra and shorter meeting, if you did not
think you could conveniently say all you wanted to say tomorrow.
Mr. Phelps. — I shall finish tomorrow, Sir.
The President. — Then, if you please, we will adjourn till to-morrow
afternoon at 2 o'clock; we cannot sit before that time.
[The Tribunal thereupon adjourned until Saturday afternoon, the
Sth of July, at 2 o'clock.]
FIFTY-THIRD DAY, JULY 8^", 1893.
Mr. Phelps. — I had nearly finished yesterday, Sir, what I desired to
say in reoard to sealing in the North Pacific, in su])port of our propo-
sition that the principal sealing — tlie largest months, the result of which
is far beyond that of any of tlie others, takes plnce in May and June,
and occurs in the localities indi(;ated by the logs of the 19 vessels
whose logs we happen to have; and I entertain no doubt, because it is
open to no doubt, for all the general evidence in the case proves it,
tliat all the vessels that are engaged in that season of the year follow
just about that course; so that if we had all the logs, they would be
very nearly coincident or substantially coincident with these.
I wish, however, before (piite leaving that point, to eni])hasize the
fact that the very large proportion of seals taken in those months and
in those localities not merely by these but by all sealers, are females in
pregnant condition.
I will only add one reference, in a very few Avords, to what I gave
yesterday on this point by reading one section from the British Com-
missioners Eeport. It is section 132 at page 21 and after that distinct
admission of the fact we need not support it by any further marshal-
ling of testimony.
With further reference to the effect of proposed time limits or close seasons on the
shore and sea-sealiui;' res])ectively, and in order to prove that snch an apparently
siiiiiile method of rennlation is not equally applicable to both industries, it may be
sliown tbat geuerally tbis effect would be not only inequitable, bat often diametric-
ally opposite in the two cases.
Now this part of the section is what I cite this for:
In pelagic sealinjj, the weather is usually such as to induce a few vessels to go out
ill January, but the catches made in this month are as a rule small. In February,
March, and April the conditions are usually better, and larger catches are made, tu
May and .June the seiils are found further to the north, and these are good sealing
months; while in July, August, and part of September sealing is conducted in
Behring Sea, and good catches are often made till such time as the weather becomes
so uncertain and rough as to practically close the season.
There can be no question therefore that, accepting my learned friends
suggestion that to do anything towards ])reserving these animals you
must put a stop to the slaughter of gravid females, he is entirely mis-
taken in his idea that you would effect that by keeping your vessels back
till the 1st May on the theory that before they overtook the migration
of the held the female seals would have reached the I'ribilof Islands.
Because all the evidence demonstrates that they do not pass through
303
304 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
the Aleutian Islands till June, perhaps well on into June, and all the
evidence concurs as to the time at wliich thej' arrive on the iskmds,
bearing in mind, Sir, a suggestion that I believe fell from you, or at all
events from one of the Arbitrators, that it is true that the different
ages and sexes of the seals do not travel together. There is a great
deal of testimony to that efl'ect, and a great deal of testimony other-
wise, which I do not care to go into; but while the bulls precede the
cows, the difference in time and in space is not sufficient to enable a
discrimination to be made. It is impossible to say that there is any
time for a vessel to go out, so that its catch would be confined to the
old bulls, even if the destruction at that time would not be particularly
injurious; but assuming that their jdace would be tilled from the hol-
luschickie if they were destroyed, it would be simply reducing the
number of holluschickie. The time and locality is not enough to dis-
criminate between the females and the holhischickie. The evidence is
that they travel along substantially together. There is some evidence
that the females precede them. Perliaps they do, and perhaps they do
not. I do not stop a moment to weigh the evidence on this subject,
because it is plain, as I said before, tiiat there is not any discrimination
practicable. It is not possible to say that a vessel can go in those
months, or into that locality, with the expectation of failing to take
female seals.
The President. — Practically there does not seem to be evidence that
in pelagic sealing many of those old bulls are killed — I do not believe
there is any evidence on that.
Mr. Phelps. — I agree with you, Sir; the testimony is that very few
of them are taken. I suppose they are a little in advance of the ves-
sels, or are more successful in keeping out of the way than the poor
females are.
The President. — They might be better marks as they are bigger.
Mr. Phelps. — Yes, and also they winter in the north, and do not follow
the migration of the herd, and do not come down south as far as (Jali-
fornia, and have not so far to go; but whatever the reason is, which we
need not stop to speculate on, the fact is conceded on all hands.
I want to call attention to one other mass of testimony as to the time
these pelagic sealers go into Behring Sea in point of fact, and this
indicates something that is worthy of notice. We have examined 79
witnesses, that is to say, of the many witnesses we have examined,
79 fix a date as to the time they enter Behring Sea, and their testimony
is — I should say that 79 testify — that they enter the Sea after June the
20th, and 68 of them between July 1st and July 15th. Of course,
those two classes of evidence comprise a good many of the same wit-
nesses, because there are but 79 all told, but out of the 79, I repeat, 68
say they entered the Sea after the 1st July.
Kow, of the 316 Depositions taken by Great Britain and printed of
the pelagic sealers of all classes, Captains, Mates, hunters, Indians and
everybody, the question is only put to 5 of them as to the time at which
they go into the Behring Sea; and those five testify precisely as these
American Witnesses I have cited do. One says the latter part of June ;
two say early in June, and the other two July the 20th. Why was not
that question put to the other witnesses in this great mass of eviden(;e?
I think I can give the reason. It is jtroposed by these Commissioners to
make the close time as to Behring Sea terminate on the 1st of July,
OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 305
that is to say, terminate just when the pehxgic sealing be<?ins, when it
would not have any sort of effect at all and would not cut off a
single vessel except a very few of the laggards that have gone in on
the last day of June. It would have retarded them, I suppose, perhaps
a week; one vessel in ten or twenty, as the case may be, would have
been retarded,
iS^ow, let me ask you, what would have been the effect if this close
time that is now propovsed for Behring Sea had been enforced during
the last ten years and had been religiously observed.
In the light of this evidence — in the light of their utter failure to
contradict it and careful avoidance of a question which could be an-
swered in but one way — in the light of the admission I have read from
the British Commissioners that the coast catch terminates on the last
of June, and the Behring Sea begins on the first of July, what if this
Kegulatiou which has been submitted to you to be adopted for the pre-
servation of the fur seal had been enforced for the last 10 years. It
would not have saved the life of one single seal — not one — it would
simply have imposed upon these few that are earlier than the first of
July the necessity to wait a few days before they entered upon the
harvest.
What more can be said, about this close time? Not a single word
usefully. I leave it to the consideration of the Tribunal. The other
end of the close time you will remember is proposed to be the 1'ith
September. All the evidence is that every seal is out of the sea before
the 15th S'eptember. It is no use at the other end, it is no use at the
beginning, and no use at the close. Now I come to the question of
zone.
The President. — Is it the case that there is no sealing after Sep-
tember at all either in or out of Behring Sea?
Mr. Phelps. — Inside of Behring Sea to which this alone applies,
there is substantially none after the 15th — I would not undertake to
say that after a very exceptional season some vessels might linger
longer; but nothing to any extent.
Sir Charles Eussell. — There can be no sealing after the 15th
September jiractically — the weather prevents it.
The President. — The sealing ships do not follow the herds of seals
out of Behring Sea?
Sir Charles Kussell. — The weather prevents sealing.
The President. — Even in the North Pacific'?
Sir Charles Eussell. — So I understand.
Mr. Phelps. — Seals begin to leave along in September, and their
migration is determined undoubtedly by the weather. Some times in
a very mild season some seals renuxin. The great bulk of them migrate,
and the exact period of migration, as with all migratory animals that
I know anything about, is affected to a greater or lesser extent by the
weather and the season. Certainly so with migratory birds.
Now in respect to this zone, this 20 mile zone — around the islands
in Behring Sea. We have seen that the close time is of no avail at all.
How much will be the avail of the 20 mile zone? I will show you in a
fewminntes a ludicrous pi(;ture of what Eussia has made out for itself,
by insisting upon this 30-mile zone which is 10 miles larger than they
proposed for us. We shall follow some of the vessels that we had in
hand before, through their very successful voyages around the Com-
mander Islands, and I shall show by their logs — all that we could get — •
how much this 30-mile zone amounts to; that is to say, it amounts to
almost nothing.
B S, PT XV 20
306 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
In tlio first place, who is going to measure siicli a zone and who is
going to patrol it in seas that are aflfected by fogs and rain and rough
weatlier more than any other part of the world. In fact, as you will
remember, as has been i)ointe(l out, it is those qualities tliat are essential
to tbe life of the seals; that is why they make their home there, that
is the difficulty of finding any other home, and those constituents are
necessary. You will remember that the testimony is that in a drive, it
the sun comes out clear, it is necessary to suspend the driving and
wait, because if the seals are i)ushed along in the sun, it is very inju-
rious. Wlio is to patrol this? and what sort of a dispute is likely to
arise on the question whether you are within or without 20 miles in
such a sea as that — a solitude except for the sealers — not like the har-
bours of cities where there are light-houses and landmarks and land-
surveys and water- surveys, and all manner of craft. Who is to fix the
line, and how are you to prove it? It is, of course, vagne and indefinite;
but that objection is a small one, though not small by itself, — it is small
in comparison. Now, I should like to compare that proposal of the
British (Government with Lord Salisbury's Agreement that has been so
often referred to as to this close time and its dimensions.
Sir Charles Kussell. — Lord Salisbury has denied there was any
agreement wliatever.
Mr. Phelps. — I beg your pardon; he has most distinctly admitted
that he made it, and we have proved that he made it by the letters of
the British Government over and over again.
Mr. Justice Harlan. — His language was that they had decided
"l^rovisionally."
Lord Hannen. — "Provisionally."
Mr. Phelps. — Yes. I know his words. I will come to that later.
The President. — At any rate, it has had no conclusion except as a
draft.
Mr. Phelps. — That is all. It was reported as agreed to by the
American Minister, — by the American Charge and it is admitted by
Lord Salisbury to have been made just as far as we ever asserted it to
be made — not that it was reduced to a Convention, but that it was
agreed upon as he says, "i)rovisionally", whatever that means; that is
to say, it was understood it was to be carried out, and we have shown
that it would have been carried out, except for the remonstrance of
Canada.
Lord Salisbury's language is: "At this preliminary discussion it was
decided provisionally in order to furnish a basis for negotiations; and
without definitely pledging our Governments that the space to be
covered by the i)roposed convention should be the sea between ATnerica
and Hussia, north of the 47th degi-ee of latitude; that the close time
should extend from the loth of April to the 1st of November," and so
forth. And that is the best that Lord Salisbury can say.
Sir Charles Russell. — In the same letter he says:
My recollection remains nnciiancjefl, that I never intended to assent and never did
assent to the detailed proposals which were put forward on behalf of the United
States, reservinj^ my opinion on them for fuller consideration; hut that I expressed
the fullest concurrence on the part of Her Majesty's Government in the general prin-
ciple on which those proposals proceeded, namely, the establishment of such close
time as should be necessary to preserve the species of fur-seals from extermination.
Mr. Phelps. — I shall not exhaust the small time that remains to me
in going over that subject again. 1 have read to tins Tribunal (and if
the references are forgotten I can furnish tlicm again)j all the letters
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 307
that were written on tliis subject, from tlie first letter from the American
Minister stating- this agvcenient — the successive letters of the Ameri-
can charge stating it — the successive letters of Lord Salisbury and
Officials stating it again. Theie is the best, and the most, when he is
XJressed by Mr. Blaine with tlie recession of England from what was as
plain and comi)lete an agreement as ever was made between nations,
short of reduction to an absolute Treaty, that he can say, I leave it on
that; — not because it is the strongest evidence on our side of what that
agreement was — it is the strongest evidence on his. I pass on now, I
need not occupy your time or my own further upon that point. The
close time agreed on between the American Minister and Lord Salis-
bury was from tlie 15th of April to the 1st Novr, from the American
coast on the east to the Eussian Coast on tlie west, and all north of the
47th parallel of latitude.
Did Lord Salisbury ever take that back"? Did he ever say to the
American Government: "I went too far; I am now advised, having
heard from Canada that it is unnecessary — that a similar area or a
shorter time would do*?" Yes, he did to this extent — he says to Mr.
White in one of the later interviews (when IMr. White was charge tem-
porarily):— "The 1st of November is later than is necessary, and I
should think the 1st October is late enough." That was the amendment
he j)roposed alter the time when communications had been received from
Canada — after the subject had been before not only the Foreign Office,
but the Colonial Office. That was the amendment he proposed to Mr.
Bayard — "You have made it on the whole a month too late;" to whi(;h.
Mr. Bayard responded in substance, "I do not think so, but let us call
it the lotli October." Call ittlien the 1st October, if you please, which
is Lord Salisbury's own suggestion, and tlien it is late enough as far as
Behring bea is concerned, indeed as far as all seas are coucerm d — the
difference is not worth talking about.
I have said the 20 mile zone would be ineffectual. I mean inef-
fectual to patrol and to mark it out; but suppose it could be marked
out in such a manner as to be completely observed so that no seal ever
could be killed within 20 njiles of the island.
What then *? What effect does it have on the sealing in Behring Sea?
W^hat j)roportion of the nursing females that are out from the shore
would be protected! A small portioii certainly, — I do not mean to say
that there are no seals within 20 miles, — a proportion so small that it
would be no good tow^ards preserving the race. If you do not limit the
slaughter of these mothers and their young more than that, do not be
at the trouble, and expose these Governments to the expense and diffi-
culty, of limif:ing it at all. "The game would cease to be worth the
candle." It is agreed on all hands, that the cows arrive between the
early June and the middle of July, and they remain on the Islands.
The young are born, and propagation takes place; and they go out in
search of food at times that are stated generally as, "a few weeks;"
"sometimes a few days." It cannot be made j)erfectly definite, but the
general concurrence of the testimony is that it is a few days to a few
weeks after they land. Their young are usually born immediately
upon landing; and different witnesses state dift'erent times. But it is,
of course, like all such facts, a general one that it is impossible to
bring to an exact point. Now where are these seals found when they
do go out? That enormous numbers of them are taken is shown. That
of those the greatest proportion are nursing mothers is shown. Now
where are they taken in the Beiiring Sea? That has not been quite
308 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
shown in the argument. I have not particularly addressed myself to
that question. 1 have dealt only with the tact that they were taken in
the Sea, and when they were taken, and what their condition was, and
what proportion of them were in that condition, and pointed out how
the JJritish evidence concurs with that of the American in its great
weight.
In the Appendix to the United States Case, Volume 2, we have from
a number of sealers a statement of the distances.
On page 400 Adair speaks of the distance — the distance I mean
within which they took the seals— as being from 30 to 150 miles.
Then Bendt on page 404 gives the distance as I'rom 10 to 150 miles.
The President. — Is this from the islands.
Mr. Phelps. — From the islands. On page 405 Benson gives the dis-
tance as 05 miles.
On page 315 Bonde says 10 to 100 miles off St. George Island.
On page 413 Collins says a distance of 100 miles or more.
On page 328 Jacobson says, a distance of 200 miles.
On page 448 Kean says a distance over 150 miles.
On page 435 Laysing a witness who is also examined on the British
side says from 50 to 150 miles.
On page 4()4 Maroney says, a distance of 40 to 200 miles.
These are all the witnesses I believe — it is intended to be all the wit-
nesses— who give precise distances.
Captain Shepard of the United States Pevenue Marine made 18 seiz-
ures of sealing vessels, and states that the skins were two-thirds to
three-fourths those of females. He says that of the females taken at
Behring Sea nearly all are in milk; and he has seen the milk on the
decksof sealing vessels that were more tliau 100 miles from the Pribilof
Islands. And these seizures were not confined to any particular sum-
mer. They range along from July 30tli to August 15.
If you will have the kindness to turn to map Ko. 5 in the portfolio of
maps annexed to the United States case, you will see how it is marked.
The President. — The seizures niai).
Mr. Phelps. — Yes it is map No. 5 called "seizures". On that map
are laid down the places where the vessels there named engaged in seal-
ing were seized, by Captain Slie])ard of the Revenue Marine, whose
testimony is given, and upon whose log and upon whose testimony this
Chart is compiled.
Mr. Justice Harlan. — What do those dates on the right below the
line mean"? Is that the date of seizure?
Mr. Phelps. — Tlie date of seizure; and it will be found that those
dates cover from June 30th to August 18th— they are all within that
period. The map speaks for itself The great majority, as the scale of
the map will show, of these seizures were 60 miles or more than 00
miles, and a considerable number of them a great deal more than 00
miles, clear down to the passes through the Aleutian chain. ISIot a
word can be added to that map as showing where sealers a'.e found.
Now of the vessels so seized, we have plotted the logs of four — all
that we have — showing where they had been. This map shows where
they had been seized. Where had they been sealing? If you will take
the first volume of the United States Appendix, and open it at page
525 (and in three subsequent pages 531, 543, and 574), you will find
plotted the courses taken by four of these vessels that were then seized.
The first one is the "Ellen", page 525. She entered Behring Sea on
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 309
thelOtli July. The log- ends on the 30tli July; and perceiving where
the Pribylof Islands are — on the left hand lower corner of that map,
the map shows, at a glance, Avheieabouts this vessel had been sealing.
Turning over to page 531 you find the log of the "Annie", which entered
the sea on June -3 — a week earlier, — and the log ends August the 15th.
You see where the vessel was — at least 00 miles from the nearest i)oint
to the island that it reached; and almost all its cruise was a distance
round these Islands, 100 — 170 miles off. 1 am reminded by General Fos-
ter, that the island of Unalasi^a is 190 miles away; and you see from
the maj) that with the exception of one excursion that this vessel made
up and back again, her sealing was all from 100 to 170 miles from the
islands.
The "Alfred Adams" map which will be found opposite to page 543,
shews where that vessel was taken. It approached somewhat nearer
the islands, but the great body of the seals were taken over 100 miles
away. That log begins with entering the sea on the 9th of July, and
ends on the 0th of August.
Then the log of the "Ada", — the only other vessel we have — is found
opposite to page 574; and its nearest approach to the island was 46
miles distant. In the area that is marked within the dotted line along
on the 50 parallel or just below — between the 50th and the 55th parallel
of latitude — there are 550 seals taken in 18 days, an average of 30 a
day. Then down near Unimak and Unalaska, you will see a large
number of seals and a good deal of sealing done at that long distance.
The President. — Is it confirmed that those are seals on their way to
the islands, or on their way from the islands?
Mr. Phelps. — They must be from the islands by the routes I have
given, because while one vessel chooses to enter the sea as early as June
20th, all the rest are in it in July; so that the herd on the way to the
islands with their young must of course have reached the islands,
because they are all on the isl mds by that time.
The President. — As regards females, these were not seals with
young?
Mr. Phelps. — No, they are nursing females — females who have left
their young on the shore.
Sir Charles iiussELL. — We say some never were on the islands at
all.
Mr. Phelps. — One other observation on the cruise of the "Ada". In
the area that is indicated there which was nearest to the islands, the
average sealing was 30 seals a day. Down here at a distance of 175
miles or so the average of seals taken was 57.
Marquis Venosta. — During the month of July or the month of
August?
Mr. Phelps. — During the period between July the 14th and August
the 24th. This vessel entered the sea on the 14th July, and the log
that we have published and from which this is plotted, ends on the 24tli
of August.
General Foster. — The map shows seals taken each day. It shows
for instance on August PJtli, 123 seals.
Mr. Phelps. — In the British Commissioners Eeport we have followed
every trace that the evidence on either side enables us to furnish our-
selves with, where any sealing vessel was at any given time, as well as
to find out the proportions of catches. With tlieir Keport they submit
a number of Depositions which give distances from the islands at which
the deponents seal. I will just refer to that giving the page.
310 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
On page 2;52 of tlie British Coinmissioiiers Report or Appendix to it,
tbere is Andrew Laiug who testilies that he has never been closer than
30 miles — usnally 30 to 90 miles from the islands.
On pajie l23() Captain William Cox says that he has sealed nsually
from 100 to 140 miles, and the nearest he has been is 80 miles.
Captain Petit on page L'liO says he has usually sealed from 00 to 100
miles.
On page 221 Captain Baker says he has usually sealed from 30 to 90
miles.
On page 238 Captain Hacki'tt says he has usually sealed from 50 to
150 miles, and never nearer than 50.
In the British Counter Case, in the 2nd Volume of the Appendix,
you will find some more Depositions iu which these distances are
mentioned.
On page 47 Captain Sieward speaks of 120 miles.
On page 47 Captain Dillon says 90 miles.
On page 99 Captain Warren says a distance never nearer than 50
miles — generally 75 miles.
On page 100, Oai)tain Pinckney says a distance of 80 to 150 miles
west of !St. George's island.
On i)age 100, Mr. Hnghes says a distance of 100 miles west of St.
George's island.
On page 108 A. W. Roland says a distance of 50 to 125 miles.
On page 139 Frederick Crocker says a distance as far as 200 n)iles.
Mr. Carter. — All these speak of having taken nursinfj females.
Mr. PiiELPS. — Yes, every one; and in lact as I have already shown,
there is nothing else to be taken except a very small proportion of young
seals or of young females. The testimony 1 have gone over-shows that
the vast proportion were of this character, — by an enormous preponder-
ance of evidence, and lam endeavoring now only to locate the places.
I do not go back to the other question.
Now will you kindly look at the same chart ISTo. 5 of the United States
Case.
The President. — The purport of my question was this — that there
is a great difference between these catches after July in Behring Sea
and the catches along the north-west coast before the seals have gone
to Behring Sea. Are they all mothers or gravid females'?
Mr. Phelps. — Yes. Here they are gravid females.
The President. — They are nursing mothers'?
Mr. Phelps. — On the north-west coast you mean ?
The President. — Yes.
Mr. Phelps. — In the Behring Sea, these animals have all had their
young — those that are going to have any. — and numy are pregnant again.
The President. — The first sealing was much more detrimental to the
species than the second sort.
Mr. Phelps. — That is a matter of estimate.
The President. — Immediately I mean.
I do not want to interrupt your argument — I mean according to your
inference. It is your meaning I wanted to fix.
Mr. Phelps. — That depends on whether tlie yonng left on shore per-
ish. Young may i)erish after the death of the mother as well as before.
But it depends on another consideration which all the evidence shows,
that before these females leave the islands at all they are again impreg-
nated.
The President. — All these facts are before us.
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 311
Mr. Phelps. — Yes, I need not stop about that. On tliat chart you
■will also see localities where sealers were warned and seized in 1891
under the modus vivendi. Of the 03 vessels that were seized or warned,
48 were more than 20 miles from the Pribilof Islands. Of that number
more than half were more than 50 miles from the island; no vessel
was warned before the 5tli July, and there were until the middle of
August, warnings every day. Now suppose that all this time there had
been a 20 mile zone, and suppose it had been possible to patrol it, audit
Lad been patrolled so that it was not invaded — I should like to know,
in the light of these tacts, Avhat diminution would have taken ])lace?
Some of course. I do nf)t deny that seals are taken within 20 miles,
but a proportion so small that as I remarked a little while ago it is no
use at all to prevent it; you may as well let it go as to repress it to such
a line as that.
I will not deal with the attempt that is made to show that these cows
become immediately dry. The thing is preposterous. With no animal
of the mammal class is any such statement true. And more than
that, the nursing period of the young seals (in which they are help-
less), confirms that; and, more than that, this vast body oi^ testimony
that the day before yesterday I presented to you to show the actual con-
dition of the great proportion of these seals which were taken. The
suggestion does not bear a moment's investigation. It was started by
this man Ca})tain Warren who is proprietor, or part proprietor, of a
good many of these vessels, and he set up the suggestion that you may
immediately begin to kill seals as soon as they go to wsea, because while
they are nursing their young they dry up immediately in" a manner
unknown to any such animal — in a manner that would leave the young
to starve. That is the only attem])t to break the force of this tre-
mendous body of evidence to prove that the fact is not so.
I need hardly detain you, because it is a comparatively unimportant
question ; but I will briefly touch upon it to show that the catch in
Behring Sea is much larger than that on the coast, in point of numbers.
The only years in which we have any evidence on that point are three, —
1889, 1890 and 1891; and 1891 is only part of a year, because the
modus Vivendi, as you will remember, came into operation during that
year; and, therefore, that is but ])artial. But taking from the British
Commissioners' Table the catch, at pages 205, 211 and 212, we have
summarised what it shows. In 1889 there are shown 21 vessels with a
catch on the coast, that is in the North Pacific, of 12,371 seals. In 1890,
30 vessels, (you see they had increased one-half,) with a catch on the
coast of 21,390, pretty well approaching to double the catch of the year
before.
Mr. Justice HarI;AN. — You say "coast"; you mean "spring and
coast" added together.
Mr. Phelps. — I mean the North Pacific.
Sir Charles Kussell. — South of the Aleutians.
Mr. Phelps. — South of the Aleutians, before you enter the Behring
Sea. In 1891 these vessels had increased to 45, and the coast catch that
year was 20,727.
Mr. Justice Harlan. — What is the last reference, the one of 1891?
Mr. Phelps. —It is ])age 212.
The President. — No. It is 205, I think.
Mr. Phelps. — That is an average of 507 skins to all the vessels during
the whole three years
Now take the same years, and see what was done in Behring Sea.
In 1889 there were the vessels that we have an account of, and the catch
312 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Avas 15,497 in Behring Sea, considerably larger than 21 vessels took on
tlie coast. In 1890, 24 vessels in Bebiiug !Sea took 18,16/); in 1891, 46
vessels took 28,888.
Mr. Justice Harlan. — You say 46 vessels. 1 see the table says 50
vessels.
Mr. Phelps. — Some of them did not go into the sea. These calcula-
tions have been carefully made, and I am sure they are accurate. So
that, in 3 years, 86 vessels took inside the sea 62,550 seals. The time
of the Behring Sea operations is shorter. It is all comprised within
July and August. The coast catch begins as soon as the vessels can go
out and it certainly is shown here to have occujiied, more or less, Feb-
ruary, March, April, May and June, May and June being much the
largest months. This is an average of 727 skins a vessel in Behring
Sea.
Mr. Gram. — Is that only in the eastern coast of Behring Sea.
Mr. Phelps. — Yes.
Mr, Gram. — Kot in the Asiatic?
Mr. Phelps. — No the eastern side.
Mr. Gram. — I think the western side is included in that; do not you
think so?
Mr. Phelps. — It may be.
Mr. Gram. — You will find it in the Commissioners' Report, para-
graph 68.
The President. — That was the first year of the modus vivendi.
Mr. Phelps. — Yes that accounts for the size of the catch. It must
be so — the modus vivendi was in operation.
Sir Charles Eussell. — Mr. Gram is quite right.
Mr. Phelps. — General Foster says there is an estimate there of about
5,000 on the Asiatic side. If there is any uncertainty about those
figures, we will refer you to other figures that are sufficient for my pur-
pose. I think your suggestion is correct, Itcontains a certain amount
for the western catch. It does not affect the average. The aveiage,
you will see, of the vessels on the coast catch was 567 and the average
in the Sea is 727.
Mr. Justice Harlan. — Before you leave that, I want to ask as to this
table. On 205 there is a column there ''Date of Warning" does that
mean those vessels had got into Behring Sea without notice of the modus
vivendi of 1891 and were warned out?
Mr. Phelps. — Yes they got into the sea presumably without notice.
The modus did not come into eifect till June the 15th so that it is
quite probable the vessels got in without notice, but whether with or
without notice, they were there, and warned on those dates.
Sir Charles Eussell. — You will see in the ultimate column on the
right some never got in. The other represents those that got in. The
others were not in.
Mr. Phelps. — That is so, but the vessels I have been dealing with
are those that got into Behring Sea.
The President. — Have you made out a total proportion of catches
in Behring Sea and catches on the coast?
Mr. Phelps. — Yes, in this way, — that the average for the vessels in
the North Pacific on the coast is 567 skins. The average for vessels in
the Behring Sea is 727 and for half the time — the season in Behring
Sea being so much shorter.
Now I will ask your attention to a little more plotting we have done
for the benefit of the Eussian Government, as Avell as this Tribunal, to
inform them of the fruits of their diplomacy. We had yesterday 19
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 313
vessels OT) the Chart. This (yiiai t shows the course of 8 of those Cana-
dian sealers which we pointed out on the Chart yesterday, the only 8
tliat went over to the Eussiau Islands. There is no selection because
we i)l()tted every one that we could,
Mr. Justice Haklan. — Where are the logs of these vessels?
Mr. Phelps. — They are in the British Counter Case, Volume II,
Appendix, page 187.
You see where those 8 vessels started in the vicinity of Attn and
Agattu, belonging to the chain. You see the two Russian Islands, and
around them the red line indicates a 30 mile zone; the black lines show
the course of each vessel, so that it can be traced all the way where it
went. You will see, in the first place, how few of those vessels invaded
the 30 mile zone at all. — how few lines there are within the red circle
that indicates the 30-mile zone.
The President. — You do not show where the Eussians made the
seizures?
Mr. Phelps. — No; we show the logs.
Sir Charles Eussell. — That is a fact in dispute between the two
Governments at present; but their allegation is they were seized within
the 3-mile limit or in hot pursuit outside the 3-mile limit. As to some,
it is admitted they were seized outside the three mile limit.
Mr. Phelps. — We have plotted the logs of the vessels, and my
learned friend has correctly stated the contention. The contention is
that the boats had beeu within and were then found without; I do not
go into that. All we have is the statement that speaks for itself.
The Pkesident. — That shows the log was not quite accurate.
Mr. Phelps. — That is true. It is open to this criticism. We have
taken the logs of these vessels, not of the vessels seized.
The President. — None of these.
Mr. Phelps. — One I am told was, and the other seven were not.
We have taken the logs of these 8 vessels, and traced them on the
maps. If the logs are false or fictitious then, of course this amounts
to notliing, but assuming the logs were correct, because 7 of them were
not seized or complained of, you see where the sealing was done. Then
if you cast your eyes upon the black points indicated at the points of
the angles and courses outside, you will see where seals were taken
according to this log and the number where the catch is more than 50
in a day. Inside the 30 mile zone the catch is given, whatever it is,
whether more than 50 or not, and the actual number of seals shown to
have been taken by the log, within 30 miles, is shown on the map.
Outside of the 30-mile zone, only the daily catches were taken, that are
50 and upwards.
Mr. Justice Haplan.— On the right of the map you see 219 seals
taken in the 30-mile zone.
Mr. Phelps. — Yes, I am about to allude to that. The result is that
within the 30-mile zone, as shown by these logs there were 210 seals
taken; outside, 3,817. Now if the 30-mile zone had been then in force,
and had beeu observed and not violated, what proportion of the seals
taken by these eight vessels would have been saved? 219, or not
enough to warrant interference.
Mr. Justice Harlan. — Do you mean it appears from the logs that of
4,020 seals 3,817 were taken outside the 30-mile zone.
Mr. Phelps. — ^Yes, and 219 inside.
The President. — The purport is, you do not mean to encourage the
Eussiau Government to renew their arrangements with England.
314 ORAL ARGUMENT OP HON. EDWARD J. PHELPS.
j\Ir. Phelps. — I am fortunately not charged with the conduct of their
diplomacy.
iSir Charles Russell. — And my learned friend has already con-
demned or written the epitaph of diplomacy.
Mr. Phelps. — If the British Government had the infornjation on
which these charges are founded and the llussians had not, it is evident
that the Kussians have yet something to learn on the subject of pelagic
sealing; and in making those arrangements they will possibly verify
an old proverb, which does not belong to diplomacy, which is " the more
haste the less speed." What we have to do with it is to show the value
of this 30 mile zone. Now reduce the 30-mile zone to 20, and see of
these 219 seals how many would be left inside.
In leaving this — and 1 must not dwell on it, because a demonstration
in mathematics cannot be added to by being talked about — a paper has
been laid before you which 1 have shown my learned friends on the other
side, containing certain extracts froiii evidence — nothing more I believe,
as to a fact which has been spoken of in this case by some witnesses as
tending to show that the female seals did not go out to obtain food — the
condition of things on the rookeries — 1 will ask attention to the evidence
there copied. 1 shall not say anything about it; it is evidence in con-
tradiction of that suggestion.
Now, is it possible that Eegulations of this character, a 20-mile zone
round the Pribilof Islands, when nine-tenths of the seals are taken out-
side it, and a time limited between the 15th of September and the first
of the following July, when no sealing at all would be done in Behring
Sea if there were no time limit, is to be the result of the high-sounding
and constantly repeated statement on tlie part of Great Britain all
through this diplomatic correspondence, that they were ready to join
and to do everything that is necessary for the protection of the seals'?
Is that the result of the language of this Treaty in the Article that has
been so often read ? Is it a compliance with the language 1 Is it ottered
as a compliance with it? Is it at all in conformity with the instructions
which that Government as well as ours gave to the Commissioners who
ought to have settled the question and would have settled the ([uestion
if both sides had addressed themselves to it; and if it had not turned
out that one side was addressing itself to the question of what is
necessary, and the other side was addressing itself to the business
of l)reserving at all hazards, and in every possible way, and not only
preserving but increasing, the business of pelagic sealing?
A few words in respect to the Pegnlations that have been submitted
by the United States. If the prohibition of pelagic sealing is not
necessary to the preservation of the seal, then there would be no war-
rant for adopting such Eegulations. We do not, for one moment,
claim and have never claimed that anything should be done here to
imi^rove or benefit the business of the United States in this indus-
try, to give them a monopoly, or anything else. That is not necessary
for the preservation of the race. There is where the authority of this
Tribunal stops. There is where the reason of it stops, and we should
not for a moment be consciously guilty of asking for a regulation that
is not necessary for that purpose, even though it might be indirectly,
somehow or other beneficial to the profits of this industry, witli which
we have no more to do, in my judgment, than we have in preserving
the profits of pelagic sealing. Wliy, then, do we propose to prohibit
it? Because on this evidence it is demonstrated that it cannot exist,
to a degree that would induce anybody to engage in it, without exter-
minating the race. I do not say that you may take no females out of
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 315
the liurd without exterminatinf? the race. That would be an extreme
statement. You cannot take enough to make this business worth fol-
lowing upon the evidence in this case which I have shown before to be
so conclusive and so overwhelming, without destroying the race. I
respectfully submit this question to the Tribunal, to the consideration,
in view of the evidence, of every Member of it — how far can you stop
short of that, and preserve the seals? Take the month of January and
consider that, or take the month of February, because January is too
small to be noticed, if there is anything at all. Take the month of
February and then go on to March. Go on in this increasing ratio to
April, May and June, and then go into Behring Sea till the 15th Sep-
tember wiieu they are all goiie. Draw the line if you can, where it
is enough short of a prohibition, to accomplish the object for which you
are assembled here, in the event that it turns out that the United States
have not that property interest or right to protection which enables it
to defend itself. If we have gone too far — if in this Eegulation of
absolute prohibition you find we have gone further than is necessary, to
that extent you will curtail it of course — It would be your duty to cur-
tail the Eegulations we propose, bearing in mind that you cannot limit
the number taken. It is imi)OSsibleto limit sex or even age. Draw the
line for yourselves, I respectfully submit, and see how far short of a sub-
stantial prohibition you can stoj) and conscientiously say that you have
preserved the race of seals from extermination. With the answer to
that question which the Tribunal shall reach, we are bound to be satis-
tied and we shall be satisfied.
Then as to the extent of area we have named in our regulations. East
of 180, and i^orth of 35.
The President. — Does that comprise the whole of your limit with
Eussia?
Mr. Phelps. — It comprises the migration current, and to go further
than that, and take in the migration current through the Commander
Islands would be for the benefit of Eussia; which is what Lord Salis-
bury agreed to do at the instance of Eussia. That is not for our benefit,
and it is not for us to ask it here, nor is it within the power of the Tri-
bunal, as it is the preservation of the Pribilof Islands seals you are
charged with, because Eussia is not a i)arty here.
The President. — You are satisfied with 180.
Mr. Phelps. — Yes, that takes in the migration course. Outside of
that there are only a very few seals, which we do not take into account.
The President. — 35 degrees goes below San Francisco.
Mr. Phelps. — It goes below San Francisco, and tliat is 12 degrees
lower down than tlie line agreed upon with Lord Salisbury, which was
47. Here again that limit of latitude, you will bear in mind, at that
time was criticised, but there never was any objection stated to it, and
if you are to repress sealing in the Pacitic Ocean at all, 10 degrees
more or less do not amount to much; but we invite attention to that.
If it is too far, why, of course, you will limit it, bearing in mind that
we do not mean to claim anytliing more than is necessary.
These are the two propositions on the one side and on the other.
There is the Treaty that defines the dispute between these parties, the
object and pnr])ose of this Arbitration. If this part of the case is
reached, there is the duty to discharge which the Tribunal has been
kind enough to accept at the reciuest, and upon the instance of the
(lovernments. Tliere is the evidence that j)oints out the limits to which
the discharge of that duty nmst inevitably carry it; and when I say inevi-
tably, I do not mean to say that the line we have adopted of 35° is the
316 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
best one, tl)e jndieious one, the true one, or tliat the differenee bet^veen
40 and o.j is inevitable. We sinii)ly suj>gest that as a proi)er boundary,
as a just one, as a fair one, not meaning, of course, to say with the eon-
lidence with which I have said some things here, that it is absolutely
uecessary to go to that extent.
A few words, and but a few on another topic, connected with the
Eegulatious — namely, their enforcement. I misunderstood, owing to
not having had the advantage of leading my learned friend's remarks
yesterday, what he had proposed, and for that 1 should apologize. I
consider the case npon what 1 understand now that he does propose,
and that is, that a vessel seized for violation of any Regulations that
the Tribunal should imjwse and the conntry should adopt, should be
handed to the British authorities to be dealt with. The error I made
was that, instead of handing over the vessels, we were to make appli-
cation and complaint in respect of them. Our Kegulation, on the other
hand, provides for the seizing of such infringing vessel and taking her
into the ports of the United States to be proceeded with in Courts
invested with such jurisdiction by our Statutes on the principle of what
is known as prize law. All lawyers understand that the principles of
prize law do not exclude the nation to whose citizens the seized vessel
belongs. It condemns the vessel, but it does not exclude the nation
from asserting a claim based upon the charge that the vessel was improp-
erly condemned. If we seize a vessel and take her into the United
States the jurisdiction is in the Federal Courts, and the vesting of this
jurisdiction, as our Constitution does every jurisdiction which may atfect
international relations with another country, in the Federal Courts,
is a very wise one for the purpose of securing other nations against
being affected by the action of local Judges or Jurors or-the pressure
of local prejudice or sectional feeling.
It is proposed on the other hand, and this is all that we are at issue
about, that if we seize a vessel, instead of taking lier to our own port,
we shall take her to a British Port; that is the ditference.
That the Courts of other nations would proceed in good faith in the
judgment they would render is a matter of course. We do not assume
that the justice to be done by the Federal Courts would not be done by
the Courts of British Columbia, or whatever the province was, but the
same point arises that arose between Great Britain and Russia and was
set forth by Mr. Chichkine in which this was debated. You seize a
vessel in Behring Sea. You can do nothing but make a long voyage to
British Columbia. There is no port nearer than that. You have to
dispatch a vessel that ought to be on guard there, doing duty, to carry
that vessel through the sea a voyage of I do know how many thousand
miles. There is a practical difficulty in the way of that.
Sir Charles Eussell. — I am bound to point out to my learned
friend that that difficulty has been met, by the legislation of the two
countries concerned. It can only be effected by the legislation of the
two countries.
The modus vivendi between Russia and Great Britain has been given
effect to by legislation, which was only passed a few days ago, indeed
it was when I was in London the other day, and a substitute is pro-
vided under the act and if it is not convenient to hand over a British
vessel seized by Russian authority to a British authority, then the
papers or vessel may be transmitted and action taken on them by Brit-
ish authority.
Mr. Phelps. — In its jiractical result it comes exactly to what I
understood my learned friend as having proposed in the first instance.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS, 317
Yon do not seize the vessel, but yon send an application, accompanied
by i)apers which are good as far as they go, to the other side to proceed.
That is the point. If they do not proceed you have a diplomatic corre-
spondence.
Lord Hannen. — To whom are the papers to be transmitted?
Sir Charles Russell. — In the case of an English vessel seized by
Eussian authority — taken or copy taken by the Eussian authority and
transmitted to the English authority.
Lord Hannen. — That is to say within the English judicial authority.
Sir Charles Eussell. —Yes.
Lord Hannen. — And you proceed on the papers as if the vessel were
there.
Sir Charles Eussell. — Yes each Government undertakes to prose-
cute.
Mr. Phelps. — What becomes of the vessel? Here is a vessel that,
on the theory of the case, is violating the laws of both countries.
Sh- Charles Eussell. — It is charged with violating-.
Lord Hannen. — The vessel is detained till the result of the trial.
Mr. Phelps. — But it cannot be detained.
Sir Charles Eussell. — And I do not understand that from the
Act as it has been passed.
Lord Hannen. — Perhaps you can get a copy of the Act?
Sir Charles Eussell. — Yes.
Mr. Phelps. — A copy was sent to me very recently from the Ameri-
can Embassy, but I have not had time to read it; I only know that
there is such an Act.
Is^ow, stop a moment and reflect: here you are in the Behring Sea.
There is no American Port nearer than the United States, and no Brit-
ish port nearer than British Columbia. The United States cruiser
seizes a vessel caught red-handed in the act, — a criminal vessel, so to
speak, if that is a correct expression, and takes her i^apers and sends
them home. There is no mail from there. You have to keep them till
the United States cruiser reaches some American port, when, by some
American official, these papers can be forwarded to Canada. Where
is the vessel in the meantime? You are dealing, I say, with a vessel
that is out for the purpose of violating the law and Eegulations; you
are not dealing with a responsible ship.' You are dealing with a tramp
of the ocean. Is it going back to surrender itself at British Columbia
for the sake of being condemned? What interest is there in a country,
where all the sympathy is all the other way, in prosecuting this vessel?
The President. — They are registered vessels and covered by a flag.
Mr. Phelps. — Yes.
The President. — If they do harm in one year, they will not continue
to do it indefinitely.
Mr. Phelps. — If they are not condemned, they will not go home, —
no ship of that character. I do not deal now with a vessel on an
upright errand which, having a false charge brought against it would
go home and meet it at once.
The President. — But a ship cannot become a vagrant on the high
seas unless it is a pirate.
Mr. Phelps. — No, but it can go to some other port and shelter itself
under another flag. I pointed out the other day what we meant as to
these vessels having a different ownershij) from the place of registry.
You see the practical difiiculty of dealing with a class of vessels, that
are caught in this business. The best tliat can be done on my leaiiied
friends' suggestion, Ib to take the X)ai)ers and, when the United States
318 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
vessel ^ets home from its long cruise, then transmit them and depend
upon tlie Provincial Government to institute such an action and press
it in sucli way and with such evidence as will enable the Court to do
iustice. I do not assume for a numicnt, — 1 do not permit mj'self to
assume that the Court will not do justice; but I never knew a Court that
could do justice except at the instance of a plaintiff or prosecutor.
That is the lirst requisite; and evidence is the next; and until a ])ros-
ecutor takes up a case and presses it to prose(;ution, and furnishes the
Court with the requisite evidence, no Court in the world can execute
any justice in any case, civil or criminal.
Lord Hansen. — It seems to me there ought not to be any difficulty
about this. What you say is true, but you must remember the Ameri-
can Government would have Agents in the place where the trial would
take place, and probably would conduct the prosecution.
Sir John Thompson. — And the same question arose under themodns
Vivendi. The prosecutions there were in the British Columbian Courts.
They were taken by Her Majesty's Officers.
Mr. TuppER, — And condemnation followed.
Mr. Phelps. — Yes.
The President. — One of my Colleagues has justly pointed out to
me in all such international cases, in the case of the Convention for
Submarine Cables and the North Sea Fisheries, the mode of prosecu-
tion is i)rovided for in such a way as that the course of justice is sure
to have its way.
Sir Charles Eussell. — And in each case it is handed over to the
powers of the nationals it represents, as is provided in the modns vivendi.
Mr. Phelps. — There is a very great diifeience, allow me to observe,
between vessels seized in that part of the world where tp carry tlieni
into an immediate port is easy, and where escape is impossible. I deal,
not with a theoretical diflicnlty, but with a practical one. The difficulty
is in getting the vessel into the juiisdictiou and getting the case before
the courts. It is a practical ditticulty.
Mr. Justice Harlan. — According to your view then, the only differ-
ence in the vessel which is seized in Behring Sea, is whether you shall
take that vessel to the nearest American port, or the nearest British
port.
Mr. Phelps. — Yes, or nearest British or American vessel.
Mr. Justice Harlan. — 1 did not mean to say that that could be done
without, perhaps, some further legislation. That may or may not be.
Mr. Phelps. — No, I shall not take up much time in dealing with a
subject that does not depend upon evidence, and which the eminent
jurists and lawyers I am addressing are entirely masters of, and do not
need instruction from us upon. But I have an observation or two
further to make about this. As I have said, if a vessel is condemned
in the United States, by the operation of prize law, the judgment is
not conclusive; but if the vessel is taken into British Columbia and
is not condemned and is discharged, it is conclusive, as far as I can see,
practically; 1 do not see how the American Government practically
could deal with such a question.
Another question. We get these proceedings for the protection of
maritime rights arising in one way or another, so long as they are rights
under the usages of nations — we derive them by analogy.
Now in what case, I respectfully invite the Tribunal to consider, when
a vessel exposes itself to seizure by violation of any maritime right, no
matter what it is — in what case is it known that the vessel is not con-
demned in the country of the captor ^ If you choose, of course, in
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 319
making a Treaty, to make a different provision, that binds the parties;
bnt 1 Avonld respectfully snbmit to His Lordship, with his very large
experience in this particular branch of the law, more probably than has
fallen to the lot of either of the other members of the Tribunal, even
of Mr. Justice Harlan, — in what case, unless a Treaty provides for it,
is a vessel that is seized for a violation of a maritime right of a nation,
carried any where else?
Lord Hannen. — Will yon allow me to make an observation? I have
already indicated what I am about to say, that I do not recognize there
is any such thing as prize law, except in the case of war; and you are
asking ns by our regulations to give you the same right in peace as
there would be in war. It is nothing to the purpose. There are cer-
tain courts that have prize jurisdiction. Prize law properly speaking
only arises in case of war.
The President. — As admitted by other nations.
Mr. Phelps. — I quite concur in his Lordship's remark that prize law
is applicable to a belligerent state.
Senator Morgan. — That is a somewhat recent idea. Prize law origi-
nated not in a state of war, but originated in the right of reclamation
and in rejnisal.
Marquis Venosta. — I thiuk that by the convention for the protection
of the submarine cable, a public official has the right to ask for the
papers that make a record and to denounce the offender. That right
is admitted by the provisions of the Treaty.
Sir Charles Eussbll. — It is so, and I do not think my learned
friend has realized what is the effect of taking the ship's papers or
indorsing the ship's papers. The moment that is done, when the ship
makes for any port, she cannot get out of that port without clearing
and without the assent of the authorities, and if she has no papers, she
is in the jurisdiction of the Local Court, whatever it is, there, and may
be seized for the offence indorsed upon the pai)ers.
Mr. Phelps. — I was only going in conclusion to advert to the lan-
guage of the proposed Eegnlations, in reply to Lord Hannen's sugges-
tion that in case of any such capture the vessel may be taken into any
port of the nation to which the capturing vessel belongs, and condemned
by proceedings in any Court of competent jurisdiction, which proceed-
ings shall be conducted, as far as may be, in accordance with the
course and practice of Courts of Admiralty when sitting as prize Courts.
It is proposed that the jurisdiction should be given that is analogous
as far as may be necessary.
Of course, I do not suppose that in the strict technical language of
the law, a vessel of this sort would be regarded as prize — that is quite
unnecessary to discuss. It is taken under the provisions of the
Treaty; but. Sir, I do not care to pursue this subject.
Mr. Justice Harlan. — Before you leave that, I want to ask Sir
Charles Eussell whether he doubts the power of the Tribunal to put
into our Eegnlations, if we get to EegulatioMs, some such clause as is
in the modus vivendi of 1892. I do not understand you, Sir Charles,
to disjuite our power to do that, but to insist that that would be inef-
fective till supplemented by legislation.
Sir Charles Eussell. — You have understated our submission, Sir,
as explained by both myself and my learned friend. Sir Eichard Web-
ster. Our position is this, that when the Eegnlations are laid down by
this Tribunal each Power is bound to respect those Eegnlations and
bound to give effect to them by legislation of their own; but that is
not in the power ot this Tribunal, what legislation the particular
320 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
Power is to carry out, or the machinery, in other words. That is to be
left to the respective Powers, and that is what is done under the Jan
Mayen Convention. Mr. Gram is conversant with that subject, and I
referred — and I thinly; my learned friend Sir Richard Webster referred
to the Jan Mayen Convention as aftbrdin*:^ the example which we sug-
gest can be followed by this Tribunal. That is the view of the Treaty
which I and my learned friends respectfully contend for and submit
for the Tribunal's consideration.
Mr. Justice Harlan. — We could not then, in your view, provide that
the vessel seized should be turned over to either Government.
Sir Charles Russell. — Our submission is that that must be left
to the respective Powers, to give effect to it, as it cannot be doubted
each Power will.
The Prestdent. — Whatever provision we make will not have legis-
lative force till it is turned into legislation in each country; but we
have the right to propose the substance of the legislation that is to
intervene.
Sir Charles Russell. — I have never said anything with deference,
to admit the right of this Tribunal to say that a vessel seized belong-
ing to Great Britain should be taken by the Americans into an Ameri-
can port and there adjudged or vice versa. I have never said anything
intentionally to that effect, and if I have inadvertently done so, I should
deeply regret it. I have the passages before me where we discussed it.
The President. — Your opinion is that such Regulations ought not
to be made.
Sir Charles Russell. — And more than that, that this Tribunal
may lay down Regulations, but we submit to the court that the
enforcement of these Regulations must be left to the different countries.
Mr. Justice Harlan. — Yon deny that we can make a Regulation to
the effect that the ships of either Government may seize a vessel of the
opposite Government offending and take it even into the Courts of the
country to which the vessel belonged?
Sir Charles Russell. — To put it shortly we submit the Tribunal
has no power to suggest sanctions. They may make Regulations but
have no power to suggest sanctions for the enforcement of those Reg-
nlations.
The President. — The limit may be difficult to draw between enforce-
ment and Regulations and what is sanctions and what is merely
rules to be followed. Take "warnings," will you admit you have the
right to say that a ship of one nation may warn a sealing ship of
another nation.
Sir Charles Russell. — That may be.
The President. — That would be sanctions.
Sir Charles Russell. — I should think Iiardly so.
The President. — The limit is very difficult to conceive. I do not
understand how you could preclude this Tribunal from all the rights of
making such a com])romise between the two nations as they might
make if left to their own diplomacy.
Sir Charles Russell. — When once this Tribunal have said what
they judge is fair and equitable, it leaves the moral obligation on each
power adequately by legislation to give effect to the observance of
those Regulations.
Senator Morgan. — And only that.
Sir Charles Russell. — I do not know that any difficulty has
arisen up to this time in any of the Fishery Conventions.
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 321
The President. — If we leave the case in such a situation that the
two nations are left to do things which we know that they will not do,
which is opposed to their views, we shall have done nothing.
Sir Charles Russell. — We cannot realise that, Sir, as a result
at all.
The President. — Suppose we make a Regulation, and do not speak
of the manner in which it is to be enforced.
Sir Charles Russell. — We have the modus vivendl as a good illus-
tration.
The President. — The modus vivmdi has a Regulation.
Sir Charles Russell. — And it is enforced by British Regulations,
and I do not doubt similar British Legislation would follow on your
Regulations.
Mr. Justice Harlan. — Suppose that parts of the modus vivendiwere,
in substance, put in the Regulations, would you doubt the validity of
that without saying it would enforce itself.
Sir Charles Russell. — I have already said there is grave doubt
whether this Tribunal has power to express sanctions.
The President. — Such as are embodied in the modus vivendi ?
Sir Charles Russell. — Yes.
Mr. Gram. — We have an instance in the Congo Convention. It could
not be enforced without Legislation in each country.
Marquis Venosta. — There are many Treaties including the mode
of proceeding and mode of enforcing the Treaty, and there Legislation
is required. There is the Convention for the protection of tlie subma-
rine cable. There is a mode of proceeding for that; a Convention for
the Fisheries in the North Sea, and there is a mode of proceeding for
that. There are Articles in the Treaty, and those Treaties, of course,
require Legislation, but the mode of proceeding for the purpose of
enforcing the provisions of the Treaty —
Sir Charles Russell. — Was left to Legislation?
Marquis Venosta. — Yes, but is established by an Article of the
Treaty.
Sir Charles Russell. — Yes; in that case. In this present case,
the terms of Article VI, which, of course, would be in the minds of the
Tribunal, are that the Arbitrators shall then determine what concurrent
Regulations are necessary, nothing is said about what the sanction for
those Articles ought to be. I do not consider the question of any prac-
tical importance.
The President. — The Tribunal must reserve to itself to examine
that question, and we will see what we think about it.
Mr. Phelps. — Perhaps it turns out that I was not so much mistaken
yesterday with regard to the practical outcome of my learned friend's
proposal as he led me to think I was. It depends on which metliod
shall be resorted to, not to do the thing that is expected to be done, and
by what circuitous route you should reach the result of finding out how
not to do it. I do not propose to discuss that.
This very discussion, the discussion which springs up the moment
you attempt to deprive a nation of a right, upon some abstract theory
that it is not a right, although it is so necessary to be done that you
will compel another nation to help them to do it — the moment you enter
upon an inquiry of that kind you perceive the embarrassment. Then
why any Regulations at all ? If we have not the property right here —
the right of protecting ourselves that we claim, why go any further and
have any Regulations? what claim have we upon Great Britain to help
us carry on our business? Solely because upon the very face and
B s, pt XV 21
322 ORAL ARGUMENT OF HON, EDWARD J. PHELPS.
thresliold of this whole matter the thing that we claim is so comi)letely
ours, and it is so necessary to the interest of the world as well as of our
own that it should be ours, that when, by some ingenious argument
you deprive us of the right, then at once you set about to compel the
other nations to join and enforce the very thing that we have no riglit
to do against their will. If they had the common interest which should
induce them to come forward voluntarily as they did in their original
agreement and say, we share in this necessity and therefore are willing
to contribute to it, that would be different. But here they are struggling
to the last, if this comes to Eegalations, in every conceivable way to
make the Regulations worthless — to limit them in time, in space, in
manner of enforcement, in every way in the world; no ingenuity can
propose a suggestion that would emasculate such Eeguhitious of all
force, that you have not been entertained with. Can anything more
clearly illustrate the utterly preposterous theory — I say it very res])ect-
fully — preposterous in its result, on which this whole debate ])r()ceeds?
Either the seals are necessary and proper to be preserved on the ter-
ritory under the jurisdiction where they belong, under the circum-
stances where they are found, for the purpose for which you i)reserve
them, that is, to enable the United States to administer this industry —
or they are not. It is either so, or not so. If so, the right of the
United States results inevitably from that state of things. If not so,
upon what theory are you going to force another nation against its will
to ado])t regulations for our benefit?
The President. — I am afraid you put the case a little far, because
we cannot admit the English Government is not wishing to preserve
and protect properly the fur-seal, in or habitually resorting to lieluing
Sea, after the British Government has signed a Treaty to that effect in
virtue of which we here sit.
Mr. Phelps. — That depends. Sir, with much respect, upon whether
you read the Treaty or listen to my learned friends. I have endeav-
oured to point out the wide discrepancy "between the profession and
the practice; between the promise and the performance. TheTr<Mty
does go upon that stipulation; but what is the argument here? Why,
my learned friend, Mr. Robinson, perhai)s not noticing the force of his
observation, says. If you do so and so we should be worse off than if we
accorded the right to you. We should lose everything, and still be
charged with helping to mount guard over the interests we have been
dejmved of We should be worse off in the interests for which we have
been contending, Avhich he has been frankenoughto say is the business
of pelagic sealing. — If you take the Treaty, the correspondence and the
instructions, you find two nations met in a common purpose; and no
man can give a reason why they require any assistance in accomplish-
ing that common purpose, if they are at one with regard to it. — l>ut
when you come to take the proceedings before this Tribunal, you find
nothing is more ingeniously and earnestly opposed, from every possible
point of view, than the adoption of any regulation that would really
effect the very purpose for which in theory, and under the i)rovisioJis
of this Treaty, the Tribunal is assembled.
The President. — It means they do not agree as to means.
Mr. Phelps. — It is more than that. It turns out from their discus-
sion that we are so far disagreed with reference to the means that we
are disagreed with reference to the obje(!t. I submit that to your con-
sideration without further observation, which would not elucidate it
I had designed to mention, but at this late hour I shall not go back
to discuss, one tojuc that I had omitted in its order, because at its
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 323
Appropriate time the reference did not liappen to be in Court, and later
til an that the convenient time did not come. I allude to it only for a
single remark. It is the subject of the Newfoundland Fisheries, as they
were spoken of in the United States Argument, and to which my learned
friends made quite an elaborate reply, citing from Lyman's Diplomatic
Correspondence, and some debates in the British Parliament. I de-
signed to review that but time does not allow. I only wish it shall not
be understood that we have asserted anything in this argument that
we find it necessary to withdraw from. The statement, which will be
found supported by the quotations in the Appendix, is strictly accurate
in every resjiect. The Fisheries were granted to the Americans in the
Treaty of 1783 after the Revolutionary War, not because they were open
to the world, but because they were open to American and British sub-
jects; and it was conceded on both sides in that correspondence, except
for a single observation of Lord Bathurst in passing, who had nothing
to do with the negotiations, which is evidently a mistake on his part.
There is nothing to contradict that. It was conceded that these Fish-
eries, far out into the sea, at that time belonged to Great Britain, and
only as British subjects could the United States take part in them. It
was held so for a long time, and I think the rights of France now are
under a similar arrangement. Wliether they have since been thrown
open to the world, is another question into which I do not care to enquire.
I only allude to it for the purpose of asserting respectfully the strict
accuracy of the position taken on that subject in the United States
Argument, whether it has much or little to do with the questions we
have discussed.
This, Sir, is the case of the United States Government; how imper-
fectly presented, as far as I am concerned, no one here knows as well
or feels as sensil)ly as I do. It is a case, Sir, that no American need
blush for. Its broad propositions of law, its absolute trutli fulness of
fact, its honest and straightforward procedure, seeking no advantage
and taking none, are all before the Tribunal and before the world. We
stand upon the justice of this case. We have not found it necessary
to admonish you to beware of justice, of morality, of right, or to i-efrain
from doing the plain thing that on the face of this whole business ought
to be done, lest some far-sought and imaginary abstraction of theoretical
law might possibly be violated. That is not our position. We have
invoked justice. We have asserted that it is the only principle on
which international atfairs can proceed or ought to proceed; and it
will be a sad day for the world if it ever reaches a contrary conclusion.
The controversy that is involved here, like all human controversies,
is transitory. It will soon pass aivay. If this herd of animals is to be
exterminated, the world will learn to do without it, as it has learned to
do without many things that are gone; but the questions, the real
questions, to which the attention of the world will be directed, — what is
the rule of conduct that international law prescribes in cases of new
impression between nations; what is the freedom of the sea; what are
its limits; what does it justify; what does it excuse, — those are (jues-
tions that will remain. On the immediate issue of this controversy,
the decision of the Tribunal will be final. These great nations have
agreed to make it so; and what they have agreed to do, they will do.
On the larger question I have referred to, tlie decision of this Tribunal
is not final. From that there is an inevitable appeal to the general
sense of mankind. None will be more gratified, I am sure, than the
members of this Court, that it is so; that the opinion of jurists, of
lawyers, of publicists will follow with interest, and approve or disap
324 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
prove, and I cannot doubt approve, the conclusions you arrive at. It
will be a source of satisfaction to you that the still better appeal to the
ultimate judgment of civilised men will also follow and pass upon the
judgment of this Court. It is, Sir, with a confidence predicated upon
the justice of the American case, inspired by the high character of the
Tribunal these nations have been fortunate enough to bring togetlier,
and strengthened by the anxious solicitude every member of it lias
shown through this long and wearisome discussion to reach a right con-
clusion,— that the United States Government submits this case to your
consideration.
The President. — Mr. Phelps, the diflBcult part has been thrown u])on
you to speak the concluding words in this very eloquent debate alter
your friends on either side had striven to make the task more arduous
for you. It has been discharged in such a manner as fully to deserve
our admiration, blending the deep science of the lawyer with literary
refinement and diplomatic dignity. We appreciated the delicate, even
when pressing touch with which you have gone over matters put before
us in manifold form. I beg I may be allowed to consider the laurel you
have won at this cosmopolitan bar as a fair addition to the wreath of
honors which you conquered on different fields both In the New and in
the Ancient World.
Sir Charles Russell. — Mr. President, we have now so far as dis-
cussion is concerned arrived at an end of this anxious and protracted
proceeding. There is one word that I should like to be permitted to
say, a word that I am quite certain will receive full endorsement from
my learned friends. The word that I desire to say, Mr. President, is
for my colleagues and myself to express our deep gratitude for the
unvarying patience and courtesy with which we have been treated by
every Member of this Tribunal. I should like to be allowed to add
also how fully we recognize the manner in which your proceedings and
our labours have been assisted and rendered easy by the cooperation,
active and courteous, of the Secretaries and Assistant Secretaries of the
Commission itself. We ought also to recognise the courtesy which we
have received from the Secretaries of the individual members of the
Tribunal with whom we have necessarily been brought more or less in
contact.
Mr. President, we shall all of us have for many years to come a most
grateful recollection of the courtesy and kindness we have rectMved.
The President. — I thank you, Sir Charles, in our names for all of
us, and the other gentlemen, for your courteous words; and certainly,
as you say, the remembrance you will keep will be in the memories of
all of us as long as we are alive.
Mr. Phelps. — I may be allowed I hope, Sir, for my associates and
myself, as well as for my Government, to exi)ress my cordial concur-
rence in what has been so well said by my learned friend, the Attorney
General of England, every word of it.
I think the members of the Tribunal, other than yourself, Sir, may
be gratified if I venture to add one further word to what my learned
friend has said, and to express the sense that we all entertain, I am
sure, on their side of the table as well as ours, of the great ability, the
faultless courtesy, and the acute perception that has kept this discus-
sion within its proper boundaries, which has characterized your adminis-
tration. Sir, of the difficult ofiflce of President of this Tribunal. That
position was accorded to you, Sir, by your distinguished colleagues,
not merely on account of your personal fitness, a fitness which they
equally shared, but to a certain extent, uudoubtedly, in acknowledg-
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 325
ment of the more than generous hospitality we have had from your
Country.
And if I may intrude far enough to add a word for myself person-
ally, I feel that, perhaps more than any other of the counsel who Lave
been charged with the conduct of this case on either side, I have been
indebted to your own courtesy, and that of all the members of the
Tribunal, for your great consideration and kindness. I have no lan-
guage to express my appreciation of it.
The Presidp:nt. — We thank you again, Mr. Phelps, and for myself
I have tried my best to be impartial. That is the only thing.
As for my Country, France bas been honoured by the choice of your
two Governments in regard to Paris, her chief town, as the place where
this Tribunal was to meet, and what you are pleased to say of the
French hospitality is what we consider has been but your due.
Sir Charles Russell. — I have mentioned this matter to my friend,
Sir, and if that meets with the approval of the Tribunal, I would sug-
gest, if any requisition should be found necessary for the Tribunal for
further elucidation on any point, we might agree that the requisition
should be in writing, and that the answer to it on each side should also
be in writing. I do not know that we need suppose the possibility or
probability of such a question. If the question should arise, we should
suggest that such course should be taken.
The President. — The Tribunal will take heed of what you mention.
We cannot bind ourselves or preclude from ourselves the right and
proper duty conferred upon us by the Treaty to remain at liberty to ask
for any supplementary, either oral or written or printed, statement.
In case we do we will give notice, and at any rate, as much as possible,
we will abide by the requisition you have put upon us.
Mr. Phelps. — We quite concur on our side in the suggestion of my
learned friend, subject always to the approval of the Tribunal.
The President. — The Tribunal will now take the case into its
deliberation; and in case any new meeting is necessary, which we do
not anticii)ate as yet, we will give notice to the Agents of both Gov-
ernments, who will instruct Counsel in consequence.
Mr. TuppER. — I may say, Mr. President, and I think I can say it for
General Foster, if he will allow me, both he and I will be in attendance
upon the Arbitration, at all times ready to meet any calls that may be
made ujion us.
The President. — We thank you, and are happy to know that we can
rely upon it.
APPENDIX.
COITION IN THE WATER.
Aquatic coition is suggested by the British Commissioners.
See Sees. 246, 205-297 of their report.
But they do not claim ever to have seen it.
They refer:
{a) To '-four or five gentlemen".
Who and wliere are they? What have they said? What do they
know ? They do not appear in the evidence taken in the British Counter
Case. What has become of them?
(6) To "several intelligent and observant hunters".
Who are they? Where are they? What have they said? Such
matter is not evidence: it is not even hearsay.
(c) To Ca])tain Bryant.
Bead what he says in "Monogrfiph of North American Pinnipeds"',
pp. .'>85 and 405.
In his deposition (U. S. Case, App., Vol. II, p. 6) he says:
In watching the seals while swimming about the islands, I have seen cases where
they appeared to be f opnlatitig in the water, but I am certain, even if this was the
case, that the propagation of the species is not as a rule effected in this way, the
natural and usual manner of coition being upon land.
If Captain Bryant's statement in the Monograph be correct, most
ample proof of it should be forthcoming. But the evidence of those
most able to observe is directly to the contrary (see infra).
(d) Professor Dall.
The following evidence of this gentleman, published at page 350 of
the United States Counter Case, fully explains his former statement;
I learn that I have been quoted in the report of the British Behring Sea Commis-
Bioners for the purpose of proving that coition at sea is practiced by the seals. In
connection therewith I Lave to say that my statements as to copulation in the water
rest largely upon assumption. Young bachelor seals are seen to chase females leav-
ing the rookeries and to play with them in the water; pairs of seals are seen engaged
in a sort of struggle together and to remain caressing each other or apparently qui-
escent, sonu'tiiues lor as much as an hour. Kroui such facts, which I myself with
others observed and reported, it was considered not unlikely thitt these seals were of
opposite sexes, and that they were engaged in copulation, and, in the absence of
definite information to the contrary at that time, I so stated. . . But it would be
dangerous to rely upon these observations thus casually made, at a time when sc^al
life was not so well understood as now, to prove that coition in the water is prac-
ticed. I never had an opportunity to assure myself that the pairs of seals seen play-
ing were of opposite sexes, or, if they were, tiiat their play was of <i sexual nature,
or if it was, that the act was complete and eft'ective. There does imt seem to be any
way in which any one of these matters can be definitely proved. Kven if they were
shown to bt' possible and to occur at times, the general belief in it by casual observ-
ers at one time, myself among the number, was always, as far as I know, couple^
with the opinion that it was an exceptional aiid abnormal occurrence.
327
328 ORAL ARGUMENT OF HON. EDWAJID J. PHELPS.
Bryant therefore, remains, the only witness cited by the British Com-
missioners in support of aquatic coition.
On the other hand two great facts disprove the possibility of coition
in the water,
a) The harem system, which dominates the whole life and economy of
the animal.
b) The time of birth of the young.
Cows give birth on arrival (Report British Commrs., Sec. 30 j Eeport
American Commrs., U. S. Case, p. 326).
The period of gestation is about twelve months (British Commrs.,
Sec. 434; American Commrs., U. S. Case, p. 326).
Cows cannot be impregnated until after delivery.
Arrivals and delivery occur late in June and early in July with great
regularity. Impregnation must, therefore, take place within a week or
two after delivery of the pup, when the cows are on shore and guarded
in the harems (U. S. Counter Case, pp. 63-64), and especially so if the
British Commissioners are right in saying that the females do not leave
the rookeries for several weeks after the birtli of their young (Sec. 30).
That arrivals are not later now than formerly, see U. S. Case, p. 386,
table; U. S. Counter Case, p. 397, evidence of W. H. Williams; U. S.
Case, App. Vol. II, p. 13, evidence of J. Stanley-Brown.
If females not pregnant were imj)regiiated before arrival, births would
be earlier, which is not pretended to be the case.
The following evidence shows that aquatic coition is impossible:
J. Stanley-Brown (U. S. Case, App., Vol. II, p. 14) says:
Pelagic coition I believe to be impossible. Tlie process upon land by reason of the
formation of the genital organs is that of a mammal, is violent in character, and
consumes from five to eight minutes. The relative sizes of the male and female are
80 disproportionate that coition in the water would inevitably submerge the female
and require that she should remain under the water longer than would be possible
to Buch an amphibian.
Samuel Falkener {ibid., 165) says:
I am positive from my observation that copulation in the water cannot be efifectual,
and would be a most unnatural occurrence.
H. H. Mclntyre {ibid., p. 42), after seventeen years on the islands,
says :
It has been said that copulation also takes place in the water between these young
females and the so called breeding males, but with the closest scrutiny of the ani-
mals when both sexes were swimming and playing together under conditions the
most favorable in which they are ever found for observation, I have been unable to
Terify the truth of this assertion.
J. H. Morton {ibid., p. 67), says:
A firm foundation, for the support of the animals, which the ground supplies, and
the water does not, is indispeusablej to oppose the pushing motion and forceful
action of the posterior parte of the male which he exerts during coition.
S. R. Nettleton {ibid., p. 75), says:
Referring to the Question as to whether pelagic coition is possible, I have to say
that I have never seen it attempted, but from my observations I have come to the
conclusion that pelagic coition is an impossibility.
See also articles by Dr. Allen, IT. S. Case, App., Vol. 1, p. 407 and
deposition of N. A. Grebnitzki, TJ. S. Counter Case, p. 362.
The appearance of the act, not the reality, may perhaps have been seen :
J. Armstong (U. S. Case, App., Vol. II, p. 2), says:
I have seen seals in a position when it seemed to be attempted, but doubt whether
it is eflfectually accomplished. If it were, I think we should see pups born late and
out of Beason, but such is not the case.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 329
J. Stauley-Brown {ibid., p. 14), says:
I have sat upon the cliffs for hours and watched seals beneath nie at play in the
clear water. It is true that niauy of their antics mij;ht be mistaken for copulation
by a careless observer, and this may have given rise to the theory of jjelajjic coition.
I have never seen a case of the many observed upon which the facts could be so
properly construed.
Captain Bryant's views upon tliis matter have already been cited.
Such sport is very natural, and is to be seen among- many animals.
Mr. Macoun in his report (British Counter Case, App., Vol. I, page
139) cites the same authorities given by the British Commissioners.
Mr. Macoun's views are mere inference and hearsay, and he was, equally
with the British Commissioners, unable to witness a single instance of
pelagic coition either in 1891 or 1892.
The evidence submitted by the British Government (Brit. Counter
Case, App., Vol. II, pp. 43-121) consists of the affidavits of forty-six
sealers. These affidavits appeared for the first time in the British
Counter Case, so that the United States have had no opportunity to
reply.
The following seventeen of these sealers swear that they have never
seen the act throughout from two to nineteen years of experience:
McGrath, two years experience; Ryan, ten years; Fanning, four years;
McKean, seven years ;<Shields, seven years; Lorenz, three years ; Baker,
five years; Christian, two years; A. C. Folger, nineteen years; C.
Peters, five years; A. J. Bertram, six years; A. McGarva, five years;
G. E. Miner, six years; H. J. Lund, two years; P. Carlson, four years;
E. A. Lewis, three years.
Seventy-five practical white hunters and sealers examined by the
British Government on other points are not asked to give their views
as to pelagic coition. The same is true as to thirty-one Indian hunters
in Behring Sea.
Of those who swear that they have seen the act performed in the
water, the following speak of having only seen it once: A. S. Cami^bell,
three years experience; F. Campbell, five years; G. Robt^rts, four years;
W. O'Leary, six years; W. De Witt, four years; F. W. Strong, four
years; G. McDonald, six years; E. Cantilliou, four years.
Three of the afore mentioned witnesses have seen it twice: T. Garner,
three years experience; W. G. Goudie, five years; A. Billard, two years.
The following swear they have seen it, without saying how often : W.
Petitt; G. F.French; C.F.Dillon; C. J. Harris; R. S. Findley; H. B.
Jones; W. Heay; F. R. Warrington; T. Magiieson; A. Reppen; T. H.
Brown; G. Scott; G. Wester.
Two of these witnesses, however, swear to a manner of coition which
is on its face impossible to the animal: A. S. Cami^bell (Br. Counter
Case, Vol. II, p. 48) and W. Petit {ibid., p. 43).
Two others swear that this occurred in May, which is impossible: G.
F. French {ibid., p. 45) and L. McGrath {ibid., p. 46).
The true explanation of what the above-named witnesses saw is given
by those witnesses who state that they have seen movements of the
character here in question in the water, but could not tell and would
not swear that they amounted to coition. See H. E. Folger (Br.
Counter Case, Vol. II, p. 91); G. E. Miner (p. 97); E. Ramlose (p. 72);
W. Shields (p. 70); J. S. Fanning (p. 95). See also Dr. Dall, whose
statement is quoted supra.
Only three witnesses swear to having seen the act performed often
or more than twice: A. Douglass (Brit. Couuter Case, Vol. II, p. 52);
O. Scarf (p. 07); C. Le Blanc (p. 51).
330 ORAL ARGTTMENT OF HON. EDWARD J. PHELPS.
When could these men have seen the act? Not wheu Bryant saw it,
for they were not there. Not before arrival of the cows, or the birth
would be early. Not after, or the birth would be late.
The suggestion of pelagic coition is completely opposed to all the
dominating and well understood habits of the animal, and seems to
bave been virtually abandoned by the counsel for Great Britain. Very
wisely. Why was it ever brought forward? Only in the vain hope of
impinging in some small degree upon the powerful argument drawn
from the attachment of the seals to the American territory, by suggest-
ing that in some casual instances seals may have been at least begotten
outside of that territory.
Even if true, it would not affect the question in the smallest degree.
11.
TABLE SHOWING THE EFFECT OF THE KILLING OF
BREEDING FEMALE SEALS IN DIMINISHING THE
NUMBER OF THE BREEDING FEMALES IN THE
HERD. HANDED IN BY MR. PHELPS ON THE 6th
JULY. 1893.
These tables are made upon the following assumptions:
1. That the seals born in any year decrease annually at the several
rates indicated in the diagrams of the U. S. Commissioners (U. S. Case,
p. 353).
2. That each breeding female has a breeding life of eighteen years.
3. That each breeding female gives birth annually from and exclud-
ing her third year to one pup and that half of the pups are females.
4. For a basis upon which the eftect of all the pelagic sealing from
1872 to 1889, inclusive, may be determined, a calculation is made in
Table "A" of the number of female seals which 1000 female seals,
divided into 250 three years old, 250 four years old, 250 five years old
and 250 six years old, would produce and which would remain in
the herd at the end of each year for the period of eighteen years, after
allowing for all destruction proceeding from causes other than pelagic
TABLE
"A".
1"
2d
3d
4th
5th
6th
71I1
gih
gth
10th
nth
12"'
13">
14th
IS"
le'i-
17tt
18*
Pup
Tea
2 \
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
500
444
250
407
222
107
430
20-1
148
120
458
220
136
107
100
478
220
146
97
39
90
504
230
153
105
81
80
85
529
252
160
nil
88
73
75
75
555
265
108
115
92
79
69
67
70
578
278
176
121
96
82
75
61
62
68
594
289
1S5
127
101
86
78
65
57
60
65
602
297
193
133
106
91
81
69
61
55
58
63
598
301
198
139
111
95
86
72
64
59
53
56
61
566
299
201
142
116
100
90
76
67
62
57
51
54
60
546
283
199
144
118
104
94
79
71
66
60
54
49
53
58
537
273
189
144
120
107
98
"74
68
62
57
53
47
51
53
535
269
182
136
119
108
101
87
78
71
66
60
56
53
45
46
45
557
268
179
131
113
107
102
89
81
74
69
63
58
55
50
43
40
38
250
250
220
250
208
225
236
220
188
213
208
205
177
188
191
198
156
175
1:16
187 169
191 181
141
163
174
180
135
156
170
176
184
130
153
167
169
128
150
160
154
125
144
146
132
120
131
125
110
110
112
104
174
94
94
69
78
.63
57
1500 1583
1010
1668 1730 1800 1905 1999 2099,2189
1 i 1 1 1 1
2254 2205
1
2293
2298
2119
2073 2056 2117
1 1
sealing. This computation for 1000 is applied in Table "B " to the total
pelagic catch at the end of 1882, and in Table "C" to the whole pelagic
catch at the end of 1889.
The percentage of breeding female seals remaining in each year after
suffering all losses from natural causes, as taken from the United States
Commissioners tables, is as follows, beginning with 100 seals: —
1st year, 100; 2nd year, 50; 3rd year, 33^; 4th year, 24; 5th year,
20; 6th year, 18; 7th year, 17; 8th year, 15; 9th year, 14; 10th year,
13J; 11th year, 13; 12th year, 12^; 13th year, 12^; 15th year, H-i; 16th
year, 10^; 17th year, 9; 18th year, 7^; 19th year, 5; and 20th year, 0.
331
332
ORAL ARGUMENT OF HON. EDWARD J. PHELP>.
Note. The diagrams of tlie Uuited States Commissiouers are neces-
sarily framed upon conjectural assumptions, wbicli it is impossible to
verify. It is believed, however, that no change in these assumptions,
which the truth in respect to the loss of seals by their natural enemies
other than pelagic sealers, were it known, would require, would call
for any material modification of the conclusions to which these tables
lead.
TABLE "B"
Showing the number of females, which would have been alive in 1882 except for pelagic
sealing, and which would have appeared on the breeding grounds i7i 18S4 {calculating
from Table A).
Tears.
1872
1873
1874
1875
1876
1877
1878
1879
1880
1881
1882
Number of
vears to
1882.
Catch.i
Loss of
females.
11
1,029
2,319
10
9
4,949
10, 388
8
1,646
3, 289
7
2,042
3,890
6
5,700
10, 311
5
9,593
16, 596
4
12, 500
20, 850
3
13, 600
21, 896
2
13, 541
21,535
]
17, 700
26, 550
137, 624
■ Catch taken from American Commissioners' Report (TJ. S. Case, p. 366).
The American Commissioners give a hypothetical herd in which there
are supposed to be 1,500,000 females, of which 800,000 are capable of
breeding. It is seen, therefore, assuming the Pribilof herd to corre-
spond in numbers to the Commissioners' hypothesis, that in ten years,
of pelagic sealing, which destroyed 20,000 breeding females a year, the
number of females in the herd would be reduced by 361,840, or over 24
per cent of the whole number of females, while the breeding females
would be reduced, by 220,820, or 27| per cent of the 800,000 breeding
cows assumed by the Commissioners.
TABLE "C"
Showing the number of females, tvhich would have been alive in 1889 except for pelagic
sealing, and which ivould have appeared on the breeding grounds in 1891 {calculated
Jrom Table A).
Years.
1872
1873
1874
1875
1876
1877
1878
1879
1880
1881
1882
1883
1884
1885
1886
1887
1888
1889
Number of
years to
1889.
Catch.'
Loss of
females.
18
1,029
2,178
17
16
4,949
10, 259
15
1,646
3,488
14
2,042
4,693
13
5,700
13, 070
12
9,593
22, 018
11
12, 500
28, 175
10
13, 600
29, 770
9
13, 541
28, 423
8
17, 700
35, 382
7
9, 195
17,516
6
14, 000
25, 326
5
13, 000
22, 490
4
38, 907
64, 897
3
33, 800
54,418
2
37, 789
59, 820
1
40, 998
61, 497
483, 420
Catch taken from American Commissioners' Report (F. S. Case, p. 366).
ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
333
The normal numbers assumed by the United States Commissioners
are, of course, hypothetical ; but the hypothesis is consistent with the
evidence. Any change in the hypothesis which the evidence may be
supposed to admit of would not materially change the result.
TABLE "D"
Showi7ig Joss in the nrimber of female seals, which would be effected by ten years of pelagic
sealing, based on the supposition that 20,000 breeding females were killed annually dur-
ing that period; allowance from natural causes being made on the basis of Table A.
1st year.
2d
3d
4th
5th
6th
7th
8th
9th
10th
Total loss of females .
Number of
females
killed.
20, 000
20, 000
20, OdO
20, 000
20, 000
20, 000
20, 000
20, 000
20, 000
20, 000
200, 000
Loss of breed-
ing females
at the end of
the period.
Loss of
young fe-
males (under
2 year.s) at
the end of
the period.
26, 660
25, 580
24, 360
23, 240
22, 040
21, 040
20, 500
19, 620
17, 780
20, 000
220, 820
17, 120
16, 400
15, 620
14, 860
14,110
13, 560
12, 860
12, 580
13, 880
10, 000
Total loss of
females at
the end of
the period.
141, 020
43, 780
41, 980
39, 980
38, 100
36, 180
34, 600
33, 360
32, 200
31, 660
30, 000
61, 840
III.
OBSERVATIONS OF THE BRITISH COUNSEL
UPON THE TABLES HANDED IN BY MR.
PHELPS ON JULY 6^", 1893.
[Note. — In the following observations only those facts or figures asserted or given
by the United States have been dealt with. No new controversial matter has been
Introduced. The British government does not of course admit the truth of these
figures or assumptions, but seeks only to shew that if they are admitted and granted,
they establish conclusions the very opposite of those sought to be deduced from
them by the United States.]
I. The object with which Mr. Plielps' Tables are put for-
ward is to shew that the animal killing of a number of
female breeding seals will have a large effect in perma-
nently reducing the ''herd."
It is not of course denied that the killing of breeding
females or males to a very large extent might in time pro-
duce a diminution in the "herds", but it is contended that
the effects sought to be established by Mr. Phelps' Tables
are incorrect and exaggerated.
The estimate arrived at on page 5 of Mr. Phelps' Tables,
is that the annual killing by man of 20,000 breeding females
for 10 years, would reduce a "herd "of 1,500,000 female
seals (of which 800,000 are breeding females) by 361,810 or
24 per cent (see Table " D ").
But those who prei)ared this estimate, while they have
taken into account the loss due to killing by man, have
failed to give credit for the natural increase, which accord-
ing to table "A" would be going on during the same period
among those breeding females not so destroyed.
It would involve a tedious calculation to fix exactly what
this increase would be, but even supi)0sing that the whole
number (200,000) killed during the 10 years, were killed in
the first year, yet still this would leave over 600,000 breed-
ing females to produce the increase; and assuming that
this 600,000 increased during the 10 years in the same ratio
as that shown on Mr. Phelps' Table "A" (viz from 1,000 to
2,189) the 00(),0()0 would become 1,312,200. That is to say,
the female "lierd" would by natural increase have been
augmented by 712,200 females, an increase which might
fairly have been set oft" against the 361,810 killed, but of
which the compilers of the table have taken no notice, and
for which they have given no credit.
In fact, the natural increase of the "herd" would more
than fill the void created by the killing of the females by
man, provided such killing was not pushed too far.
Compare Brit- Thus Mr. Phclps' Table "A" shews that the seal does
si'ljuers "lieport! not differ from otiicr polygamous animal.s. such as deer, of
Paras. 371-376. ■^v^iijch a reasonable proportion of females are annually
killed in all carefully managed herds without injury.
334
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 335
The above natural increase has been taken at Mr. Phelps.'
valuation. Without endorsing tlie exact accuracy of that
valuation, it is clear that a large natural increase must
€xist which needs to be credited in any correct computation.
The argument that the killing of every breeding female
decreases the herd ^ro tanto, in a geometrical ratio, is obvi-
ously untenable, otherwise those ''indiscriminate" pelagic
sealers the killer-whales and the native Indians would
have long since destroyed the whole number of seals.
Inasmuch as the tables of Mr. Phelps are based on the
Diagrams of the United States Commissioners, it becomes
desirable to examine these Diagrams somewhat more
closely.
II. The two Diagrams (A) and (0) are given by the United states
United States Commissioners to show the effects of "prop- '^^^^' ^- ^^^'
€rly regulated" killing upon land. They relate to the male
l)ortion of a hypothetical "herd," which in its natural con-
dition would amount to 40,000 males and 40,000 feuiales, united states
but which if land killing took place would, according to fs*!^^' ^' ^^^' ^^°®
the United States Commissioners, be reduced to 23,568 Diagram (o, p.
males and 40,000 females. statercase''*'"^
The same conclusions would hold true whatever thessT.Saei!^*' ^'
whole number of seals was, it being only necessary to
increase the figures in due proportion.
These two Diagrams relate to male seals.
Explanation of the Diagrams.
1. Along the lowest horizontal lines are arranged a num-
ber of figures representing successively the ages of the
male seals. Opposite each of these figures is a vertical
line representing by its length the number of male seals
wiiich there are in the "herd," of the age represented by
the figure.
Diagram (A) represents the male "herd" of 40,000 seals United states
in its natural state, according to the opinion of the United ^^^^' ^■'^^^•
States Commissioners, and before any killiug by man has
taken place.
From the Diagram it is apparent that in this "herd"
there would at any given time be 10,000 male pups under
1 year old ; there would be 5,000 yearlings or males under
2 years, but over 1 year old; 3,'J0(» 2-year-()lds, or males
over 2 years of age but under 3 years old; 2,400 3 year-
olds; and so on. And it is quite evident that the total
number of male seals in the "herd" may be obtained by
adding together all the columns. In Table (a) annexed,
the figures have been extracted from the United States
Commissioner's Diagram (A), and added up. The total
comes to 40,025, and agrees with the total marked on the
United States Diagram (A).
If this "herd" in its luitural condition be in a state of. Compare Brit-
"pr-actical stability," as the United States Commissioners pp'.37r-"7o^ "''^*''
for their purpose assume (that is to say, if the "herd" as ca^e'p '^35^**3^
a whole be neither decreasing nor increasing), then, on thenne froin bottom
average, the yearly number of births will be equal to the °^ *'"* '"^^'*^'
yearly number of deaths. The "herd" will be increased (..^^"p^'^g^^*^*®!
each year by the birth of 10,000 pups, and decreased each to. ' '
336 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
year by 10,000 deaths from killer- whales and other natural
causes, and thus the balance will be maintained.
By comparing the various figures with one another, the
yearly mortality from natural causes of the seals of any
particular age can also be seeu. Thus, for instance, when
the "herd" leaves the Pribilof Islands, it consists of 10,000
male pups, 5,000 male yearlings, 3,200 male 2-year-olds, and
so on. But owing to the natural deaths in the ocean, wlieu
it comes back, the 10,000 male pups, which will now be
entering on their second year of life, that is, becoming
Ci^e'p^52*''3rd l-jcarolds, will have been reduced to 5,000. The 5,000
liiie from bottom, male ycarliugs which left the island in the previous season
will now have been reduced to 3,200; and so, in like man-
ner, every class of seal will come back older in age by a
year, but reduced in numbers, and on the whole, as has
been said, the male "herd" will be reduced by 10,000.
But as soon as the "herd" thus reduced arrives at the
islands, it is again increased by the birth of 10,000 male
pups, and so the equilibrium is maintained. (All this can
be seen from an inspection of Table (a.).
iTnitod States. Diagram (C) in the United States Case shows the state
uSted™™tit^es of thiugs produccd by what the United States Commis-
case, p. 355. sioucrs designate as '■'■properly regulated IdUing^'' of males,
case.^p^. 355, line or as they also express it " the male portion of the same herd.
22- when judiciously worked hy man^\
This "herd" would, as the United States Commissioners
United States explaiu, " &« greatly diminished, and the census of the whole
Case, p. 356, line ^^^^ correspondingly lessened, hut when once reached the
neic condition ivould he constant and self-sustaining;^^ and
they estimate this reduction as being "to nearly one-half
of what it would be in the undistured condition". On their
United states Diagram (C) they mark the new size of the "herd" as
ca8e,p.357,i.nei. 23^5^3 male scals.
A Table (c) has been prepared from the United States
Diagram (C) showing the various numbers of seals in the
reduced "herd" of various ages. When added up, the
total comes to 23,680 (a figure not very diiferent from that
giv«n by the United States Commissioners. For all prac-
tical purposes the difference is quite immaterial).
The yearly killing of males between 2 and 5 years on
the islands, which has caused this reduction, is estimated
by the United States Commissioners at 2,100,* and has
been marked by them on Diagram (C).
At a first glance, it may appear surprising that so small
a killing as 2,100 males per annum can reduce the "herd"
so largely as is shown on Diagram (C). But it must be
remembered that the killing all takes place among male
seals from 2 to 5 years of age. Thus, for instance, the male
3-year-olds, which under natural conditions would be 2,400
in number, are by land killing reduced to 1,900. That num-
ber 1,900 is next year by natural deaths reduced to about
1,587, and then by killing on land is further reduced to
1,000, and next year the 1,000 by death from natural causes
• See Note at end.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
337
and land killing is reduced to 300 male seals. Hence, while
in five years natural deaths would reduce 10,000 male pups
to 1,8-40, natural causes and land killing together would, in
the same period, reduce 10,000 male pups to 300. If the
killing of male seals took place ^jro rata among seals of all
ages, it would reduce the " herd" to a very much less extent,
for it is obvious (without entering upon abstruse calcula-
tions of the value of male life at various ages to the breed-
ing power of the herd) that the seals which will be most
valuable for breeding purposes are those which are just
entering on adult life, having escaped the heavy mortality
attendant upon extreme youth, and having a long prospec-
tive period of breeding before them. The United States
Commissioners' Diagrams make it very apparent that the
system of land" killing hitherto adopted takes exclusively
the young mature life of the herd, and when this is con-
sidered, the reduction in virile male life shown in the Dia-
grams becomes explicable.
The numbers of the various ages of female seals shown nnited states
in Diagram (B) are identical with those of the male seals linl?' ^' '
at corresponding periods of life, and may thus be seen from
Table {a). On adding them up, we find that the following
are the assumed numbers of female seals out of a "herd"
of 40,025, shown by Diagram (B) :
Young females, under 3 years 18,200
Breeding females 20,960
Decrepit 855
Total - 40,(125
If the figures in the various Tables be raised proportion-
ately from a natural " herd" of 80,030, which by the killing
of 2,100 annually is permanently reduced to 63,680, to a natu-
ral "herd" of 3,001,875, which by the killing of 78,750
;per annmn is permanently reduced to 2,388,937, we shall
have in the "herd":
Male pupa
Male yearlings
Males, from 2 to 5 years
Young bulls, from 5 to 7 years.
Breeding bulls
Decrepit
Total males
Female jinjis
Females, from 1 to 3 years .
Breeding females
Decrepit "
Total females.
Natural con-
dition.
375, 000
187, 500
285, 000
131, 250
510,750
11, 437
375, 000
307, 500
786, 000
32, 437
.1,500,937
.1,500,937
Reduced con-
dition.
375, 000
187, 500
228, 750
21, 000
74, 250
1,500
375, 000
307, 500
781), 000
32, 437
.888,000
.1,500,937
The above figures agree nearly with those given on pp.
357-358 of the United States Case, the latter of which are
obviously round numbers.
B S, PT XV-
-22
338 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. '
Observations.
On looking at Table (a) we find that according to the
estimate of the United States Commissioners tlie "lierd"
in its natural condition ought to contain 3,500 young males
or young bulls over 5 years of age and under 7 years of
age (shown on the United States Diagram (A) by the
smaller green area). And we also see that in the natural
condition the number of adult males or bulls over 7 years
of age, called by the Commissioners "breeding bulls," ought
to be 13,620 (shown in the same Diagram by the yellow
area).
In order to compare this state of things in the normal
healthy condition with the condition of things after "regu-
lated killing" is in continuous operation, we turn to Dia-
gram (C) and Table (c), when we find that the young bulls
are now reduced from 3,500 to 500, and that the breeding
bulls are reduced from 13,61*0 to 1,980. In other words, the
number of virile males available for the rookeries is less
than one sixth of 'what it was before. (This is irrespective
of the question whether some even of those which remain
have been injured by driving, or are for any other reason
unfit for service.)
On looking at the Diagrams and comparing them, it is
clear that this enormous diminution of the breeding bulls
(so out of proportion to the yearly number of males killed,
viz., 2,100) is really due to the excessive killing of young
male life. This is especially shown by the rapid drop of
the curve on Diagram (C).
It is asserted by the United States Commissioners that
the 1,980 bulls left, can fertilize the female cows as effec-
tively as 13,620. It seems hard to believe that, if this be
so. Nature should have created so many bulls to serve no
purpose, or that natural male life can be interfered with to
so large an extent without injuring the repi'oductive powers
of the "herd."
2, It is also seen that if, out of a natural " herd " of 40,000
males, man kills on land each year 2,100 (that is about one-
twentieth of their number), the male "herd" gradually
declines, until, when equilibiium has again been reached,
the male " herd" is only about one-half its original size.
The land killing of a certain number of seals every year
produces, therefore, far more than a pro tanto reduction in
the size of the " herd".
United states 3^ i^ jg stated ou the part of the United States that every
Argument p. 198. ,,,„,.i ', ,. ,, N
death oi a lemale encroaches pro tanto upon the normal
numbers of the "herd," and if ])rosecuted to any consider-
able extent will lead to extermination. This is not cor-
rect. By the ^ro tanto diminution of the " herd " is meant
its reduction in a geometrical proportion, thus leading
to extinction. The error of this theory may be seen as
already stated, by noting that if it were true, the killing of
even one female a year above the natural proportion (as by
the permanent increase of the killer- whales by one extra
whale), would thus l€iad to extinction. But such a result
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 339
is manifestly absurd. If in a natural condition each female
bore on an average only one female pup, the death of such
a pup before it had in its turn borne a female pup to replace
it, would of course produce such an eflect. But each cow,
according to the United States Commissioners, produces
fifteen pups, so that there is a large reserve to meet pos- /Tf*'"^^*?''*'5
sible causes of death without diminishing the " herd," even states c^se^ %.
if some are killed before they reach the breeding age at all. ^^^•
4. The Diagrams also show that when the seals are in a
natural condition, there is a yearly death from imtural
causes of 20,000 seals (10,000 male and 10,000 female). This
destruction arises from disease and killing by killer- whales
and other natural enemies. It is mostly effected at sea,
and is entirely indiscriminate as to sex. If, then, pelagic
killing, without distinction of sex, be so destructive as is
argued by the United States, it is difficult to see how, on the
pro tanto theory, the natural pelagic killing at sea, without
distinction of sex, of 20,000 seals annually out of a " herd"
of 80,000 of both sexes, should not long ago have extirpated
the "herd;" or, on the other hand, why, if so large a de-
struction has not extinguished the " herd,"acomparatively
small addition to that killing should be alleged to have
suddenly produced so destructive an effect.
5. In the above Tables and the Argument of the United
States' Commissioners it is assumed that every breeding
seal, male or female, lands at the islands every year.
0. The above-mentioned large reduction in the numbers
of breeding bulls, which is, according to the United States
Commissioners, produced by regulated killing, would lead
to an expectation that when land killing had been practised
for some time the size of the harems would be increased,
and the competition of the bulls for females diminished.
Of course the killing of females at sea would tend to pro-
duce a contrary effect.
7. If the killing of 2,100 males out of a "herd" of 80,000 g^Ye^'^^ssf^''**'
seals, or, what is the same thing, the killing of 78,750 males, *^^' ^*
or in round numbers 80,000 males, out of a " herd " of
2,380,000 seals of both sexes, is the most that can be
effected without depleting the "herd," it is evident, on the
United States Commissioners' showing, that the 100,000
males yearly killed on the islands has been too large a
number, unless the " herd " has, during the period in which
it was done, exceeded 3,000,000, The United States Com- united states
missioners assert thiit this has not been the case. On the^*^®' ^" ^^'^' ^'°®
contrary, they say that the " herd " has largely decreased
within six or seven years before 1891. They seem to esti- Page 337, line
mate this decrease as having reduced the "herd" to one-^^'
half its former quantity, but the estimates are conflicting.
The natives and Daniel Webster consider that the decline be-
gan in 1877-78. In any case itisquite clear that the killing
of 100,000 seals has l)e('n far too large according to the esti-
mates shown by the United States Commissioners' Dia-
grams, and would fully account for the diminution of the
4' herd " without reckoning the pelagic sealing.
340
ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
It is difficult to discover how tlie United States Commis-
sioners arrived at this figure, 2,100. It seems more correct
to place it at 1,707*. In which case the yearly killing of
males out of a "herd" of 2,380,000 ought not to exceed
64,012 acccording to their Diagrams.
Table (ft) showing the numier of male seals of various ages represented in
Diagram (A), of the U. S. Commissioners as making up the " herd" of
40,025 male seals.
-year-olds 5, 000
" 3,200
Pups 10,000
1
2
3
4
6
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
((
It
<i
«
W
(I
it
young bulls
(greeu).
13,620 breeding bulls
(yellow).
Total 40,025
•Note. — This figure (1,707) is arrived at by examining tbe succes-
Bive diminutions of particular classes of seals due to natural causes
and to land killing. An examination of Tables (a) and (c), shows
that natural causes reduce the 3-year-olds from 2,400 to 2,000 in a year,
or 16A^ per cent., and that the similar decrease of the 4-year-olds is
2,000 to 1,840, or 8 per cent. Now, from the Tables it is seen that in
one year 3,200 male 2-year olds are reduced by natural causes to 2,400,
and these 2,400 males are again reduced by land killing to 1,900, that
is to say, 500 are land-killed. These 1,900 are next year reduced from
natural causes by 16^ per cent., that is, to 1,587, and thus, in order to
bring them down to the 1,000 shown in the Table, 587 must be killed
on land. The 1,000 are again reduced by natural causes by Spercent.,
viz., to 920, of which if 620 are killed on land, we get the 300 5-year-
olds shown in the Table. The total annual killing on land would
thus be —
500 3-year-old8.
587 4 "
620 5 "
Total 1,707
ORAX, ARGUMENT OF HON. EDWARD J. PHELPS.
341
Table (c), shotving the numhe}- of viale seals of carious ages represented m
Diagram (C) as making up the herd of 23,680 male seals.
Pups
1-vear
2'
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
10,000
-olils 5,000
3,200)
1,<)00>
, G,100
1, 000 S
300 I 560
2(!0 S
205
202
201
199
198
195
180
160
150
120
100
70
40
0
young bulls
(greeu).
,1,980 breediug
(yellow).
bulls
Total 23,680
IV.
OBSERVATIONS OF THE UNITED STATES COUNSEL
UPON THE PAPER SUBMITTED BY THE COUNSEL
FOR GREAT BRITAIN TO THE ARBITRATOR SINCE
THE CLOSE OF THE HEARING.
The Agent of the United States has received notice from the Agent
of Great Britain of the submission of a new paper to the Arbitration.
The paper is entitled "Observations upon the Tables put in by Mr.
Phelps on July 6, 1893". The paper therefore purports to be confined
to observations upon certain tables which the counsel for Great Britain
had not had previous opportunity of examining. This is apparently
designed as a defence, or apology, for the action, certainly irregular,
of submitting an argumentative paper after the hearing, and without
leave. If the paper were confined to what purports to be the contents
of it, namely, observations upon the tables referred to, there might be
some excuse for it; but these observations occupy less than a page and
a half of the document. The remaining six pages consist of a wholly new
argument, designed to show that the annual taking of 100,000 males
when the herd is in a normal condition tends to destroy the virile life
of the herd.
The Counsel for the United States cannot help observing that the
submission of such a document is wholly irregular : but a failure to take
notice of it although quite justifiable, might be misinterpreted.
A careful examination by the Arbitrators of the contents of this paper,
should they choose to give it any examination, would suggest the
answer to it; but a few observations upon it, necessarily hasty, may be
of service.
1. It is said on page 1 of these observations: "It is not of course
denied thatthe killing of breeding females or males to a very large extent
might in time [)roduce a diminution in the herds, but it is contended that
the eifect sought to be established by Mr. Phelps' tables are incorrect
and exaggerated."
But if the killing of females " to a very large extent" tends to produce
a diminution in the herds, as every one can see that it must, and if,
indeed, as every one can see, the killing of females to a small extent
even must have such tendency, the material point is to ascertain to
what an extent such killing of females can be carried without causing
substantial diminution in the numbers; but this problem, the only
material one, the counsel for Great Britain neither in this paper nor in
the course of their argument make any effort to solve, unless by the
suggestion in these observations, that it appears from the tables that
the annual killing of 20,000 females would create no loss which would
not be counter-acted and supplied by the increase of the surviving
females.
The suggestion is that according to the rate of increase of each
female upon which the tables submitted by Mr. Phelps is based, if
342
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 343
200,000 females ont of a herd of 800,000 breeding females were killed
in one year, tlie loss would be more than made up by the progeny of the
remaining 000,000 at the end of ten years.
The error of this suggestion consists in this, that the diagrams of the
United States Commissioners upon which the table submitted by Mr.
Phelps was prepared assume the herd to be in its normal condition of
stability, where the deaths are equal to the births; that is to say, a
condition in wl)ich the herd will not increase in numbers; whereas the
calculation in the paper referred to of the British counsel makes the
herd increase, thus contradicting the assumption.
It may, indeed, be true that a hypothetical herd of females assumed
by the American Commissioners, and the ratio of diminution assumed
by their tables, may be too small or too large, one or both, for there is
no evidence upon which the correctness of such assumptions can be
determined. This is expressely stated by the Commissioners, and their
diagrams are framed only for the purpose of illustrating, on the one
hand, the effect upon the numbers of the herd produced by natural
causes which are not under the control of man, and, on the other hand,
the effect produced by those same causes in conjunction with another
cause, which is under the control of man, namely, the killing by the
hand of man.
It is stated in this paper that the 600,000 breeding females left in the
herd after the killing of 200,000 would become in the course of ten years
1,312,200. This may be true, but, at the same time, the 200,000 killed
would, on the same hypothesis, become at the end of ten years 437,800,
that is to say, would augment the herd by 237,800. Thus it is seen that
this killing of females would vastly diminish the increase of the herd.
If we assume, as the United States Commissioners assumed in framing
their diagrams, and as we have every reason to believe the fact was
when the hand of man was first interposed, that the herd had reached its
normal stationary condition, this diminution in the increase occasioned
by the killing of females immediately becomes a diminution below the
normal numbers of the herd.
If it were possible to ascertain what the exact numbers of the herd
were in its normal condition, and also what the ratio of decrease from
natural causes was, the diminution created by the slaughter of females
might be accurately represented in numbers; but, in the absence of
knowledge upon this point, we are compelled to resort to conjectural
assumptions, which, while they fail to afford us the means of stating the
diminution in accordance with the fact, nevertheless enable us to illus-
trate such diminution.
2. It is further said, on page 1 of this paper: "Thus Mr. Phelps'
Table A shows that the seal does not differ from other polygamous
animals, such as deer, of which a reasonable proportion of females are
annnally killed, in carefully managed i^reserves without injury".
This may be true in respect to a "carefully managed i)reserve", but
the implication is, and surely the fact must be, that such a course can-
not be taken anywhere else except in a "carefully managed preserve".
A preserve can only sujiport and accommodate a certain number, and if
the natural increase tends to exceed that number, it is proper, and may
indeed be necessary, to reduce the herd by the killing of females. If
the learned counsel for Great Britain had indicated by what rules,
regulations, limitations and restrictions this herd of seals, when on the
seas, could be treated as a "carefully managed preserve", their observa-
tions might be more instructive.
344 ORAL ARGUMENT OF HON. EDWARD J. PHELPS.
3. It is further observed, on pnf^e 2 of the paper: "The argnment
that the kilhii^of every breeding' female decreases tlie herd ^ro tanto
in a geometrical ratio, is obviously untenable, otherwise those "indis-
criminate pelagic sealers" the killer whales .and the native Indians,
would have long since destroyed the herd."
These observations indicate great misapprehension. There is an
enormous tendency to increase in all animal life; this tendency is mod-
erated and diminished by the various enemies to which such life is
subjected, and, in the case of seals, by such enemies as killer whales,
deficiency of food and the kilhng by native Indians pursued long
anterior to the discovery of the islands, and which is treated by the
United States Commissioners, as it properly should have been, as one
among the natural causes of diminution. Killing by the hand of man
in the sea and upon the land are additional causes brought to operate
ujion the herd after it Jiad reached its 7t,ormal condition of stability under
the operation of all other causes of diminution.
4. The residue of the paper seems designed to show that the annual
taking of 100,000 young males in the manner practiced by the United
States was too great a draft upon the herd, even in its condition before
pelagic sealing was practiced. If there is any force in this view, it must
be in the assertion, or suggestion, that the reduction in a hypothetical
herd (numbering of all sexes and ages, 80,000), from 13,620 breeding
bulls to 1980, brought about by a killing of young males in the manner
and to the extent practiced on the islands, is fatally excessive, as
impairing the virile power of the herd. It is enough to say, in answer
to this, that the reduced number of 1980 gives one breeding bull to ten
females, there being in this hypothetical herd 20,960 females. The
known capacity of each breeding bull ranges, as the evidence shows,
from 20 to 50 females.
5. It is observed in this paper (p. 5): "It is asserted by the United
States Commissioners that the 1980 bulls left can fertilize the cows as
effectively as 13,620. It seems hard to believe that, if this be so, Nature
should have created so many bulls to serve no purpose, or that natural
life can be interfered with to so large an extent without injuring the
reproductive powers of the herd."
Nature undoubtedly has many inscrutable mysteries, but this does
not seem to be among the number of them. Does not nature do the
same thing in the case of horses and cows and bovine cattle, and many
other animals? In all these instances the same number of males and
females are born, and yet one male suffices for a much larger number of
females than even in the case of the seals. The purpose seems to be plain
enough. At all events, we know what the consequence is, and it is fair
to presume that such was the intended purpose of nature. It easily
enables a husbandry to be carried on by taking the superfluous male
life which would otherwise be expended in internecine conflicts, and
devoting it to the purjjose of man. Whenever in the case of these
domestic animals the numbers are increased, as they easily may be, to
such an extent as to become unprofitable, economic laws furnish a
remedy, and the owners proceed by the killing of females to diminish
the herds which have become too abundant for profit. These are the
conditions and the only conditions under which it is ever permissible
to slaughter the females of useful animals. Such conditions can never
arise in the case of the seals. The annual demand for them far exceeds
the supply, and even if this demand should cease, the feeding of the
herd is no burden upon the resources of man.
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 345
G. The rather fanciful sug^srestion has been made that drafts upon
male life, caused by these internecine conflicts, involve tlie survival ot
the ''fittest", and that by making large drafts from the males these
conflicts are prevented. We have better means of knowing vrhether
the contests are still carried on among the males than a priori reason-
ing aftbrds. The fact is open to observation. It is overwhelmingly
proved, and without any dissent, except that of Elliott, that such con-
tests are still earnestly waged. But aside from this, is it reasonable to
suppose that males engaged in frequent contests, lasting for hours and
sometimes all day, and frequently resulting in death, are better fitted
for the office of reproduction than other males in a herd in which their
pro])ortion to that of females, and consequently the occasion for such
contests, was much less?
7. Finally, the question whether the annual draft of 100,000 which
has been j)racticed upon the island is excessive or not, is also suscepti-
ble of a conclusive answer, notafl'ected by the incertainties of a priori
reasoning. The experience of this herd for half a century leaves no
room for doubt upon this point. We know that the Eussians, whose
drafts were governed, not by the capacities of the herd, but by the
demand in the market, took during the later i)eriod of their occupation
from fifty to seventy thousand young males annually, and that, under
this draft, the herd not only maintained its numbers, but very largely
increased, and was, at the time of the transfer to tlie United States, in
a condition of abounding prosperity. We know that the United States,
thereafter, in the face of an excessive and somewhat indiscriminate
slaughter of 240,000 in the year 1868 regularly made the draft of 100,000
up to the year 1884, without effecting any diminution in the normal num-
bers of the herd. It is indeed probable that the effects of pelagic sealiiig
had then begun to make themselves manifest in a slight degree, and it
is certain that from that time they began to have a decisive influence.
The United States has never pretended that it could safely continue
to make the draft of 100,000 after the birth-rate became diminished by
the effects of pelagic sealing. Had the Government known, prior to
1800, the extent of the diminution thus effected, it would undoubtedly
have diminislied its drafts and pressed more earnestly for the suppres-
sion of this destructive pursuit.
But what is to be said of the consistency of those who, in the case
of a polygamous animal like the seal, insist that the annual taking of
100,000 young males is too large, and tends to a diminution of the herd,
and yet insist upon the continuance of a practice which, even when
restricted and regulated as proposed by them, would necessarily involve
the annual slaughter of 40,000 females, and i)robably many more?
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