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 



