ORXL argument of HON. EDWARD J. PHELPS. 287 



of the fur seal as you can go consistently with the preservation of their 

 extermination. If the one theory is to be adopted that is one thing'. 

 Then we are to incpiire really what is fairly and reasonably necessary 

 to preserve this race. That is the inquiry. If the other theory is 

 adopted, what can you do to retard its extermination consistently with 

 preserving the right of exterminatiou'? lu the one case you preserve 

 the far seal; in the other case you are postponing by a few years its 

 destruction. 



In what I hav^e said, perhaps at the risk of being thought to have 

 said too nuich about tliis antecedent i)oint, I have desired to bring out 

 clearly what the Governments proj^osed to each other, and what they 

 did. There is no ambiguity here. If there is any ambiguity in the 

 previous correspondence it is cleared up when you come to the Treaty 

 itself. Let me remind you of this ofteu read language. 



If the determination of the foregoing questions as to tlie exclnsive jurisdiction of 

 the United States shall leave the subject in such a position that the concurrence of 

 Great Britain is necessary to the establishment of regulations for the proper protec- 

 tion and preservation of the fur-seals in or habitually resorting to Behring Sea, the 

 Arbitrators shall then determine what concurrent regulations outside the jurisdic- 

 tional limits of the respective Governments are necessary. 



Necessary for what? The i)revious language shows: 



The proper protection and preservation of the fur-seal in or habitually resorting 

 to the Behring Sea. 



But if I were to stop here and review all this correspondence again, 

 it would tuin out, as I have said, to be carried on the face of the pro- 

 ceedings — all through, "we are willing to do all that is necessary. We 

 do not desire to injure the United States ; we are willing to join and send 

 a (Jommission to hud out and aid in determining what is necessary." To 

 avoid the discussion of the projjosal of Mr. Bayard in which he laid 

 down his outline, and To avoid the discussion of the propriety of the 

 very convention Ave entered into, and which, on the iace of it, as the 

 thing then stood, and the knowledge of the subject then existed met. 

 the requirements completely of the necessary preservation of the fur- 

 seal, if it is found now, broad as those limits were, that they are not 

 broad enough, because the investigations since have enlarged the 

 knowledge of the subject, and have made it apparent that the parties 

 were not doing what they thought they were doing in that Convention, 

 we will agree to what is showu to be uecessary to effect the common 

 object. 



But now the point that my learned frieiul, Mr. Eobiuson, particularly 

 insisted upon is that you cannot go as far as is necessary to preserve 

 the seal; that yon may regulate the ])rovisions for destroying him, but 

 you must not prohibit it; that was his answer to a question of one of 

 the arbitrators, and a very pertinent question it was. While he was 

 discussing it Mv. Justice Harlan said, "Do you mean, Mr. Bobinson, 

 that if it is necessary to ijrohibit pelagic sealing, in order to preserve 

 the seals, that we are not to do it, that we have not the power to do 

 itf "Certainly'', said my learned friend, "you may regulate but not 

 ])r()hibit." Begulate what"^ Begulate Avliat you have found to be the 

 destruction; because if it is not the destruction, you do not want to 

 ])rohibit it. There is no propriety in prohibiting it unless it is destruc- 

 tion, but when you get thus far and are able to say, Why the ])rohibi- 

 tion of this sealing is necessary, — because it is destruction — now says 

 Mr. Eobiuson you may regulate the destruction, but you cannot stop 

 it by the terms of this Treaty. Wliy it stultifies the Tribunal. It ])uts 

 the Tribunal under a commission that nominally, at least, invests them 



