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, 



