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 



