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 



