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. 



