288 OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 



with important i;)owers, and yet places them under the necessity of 

 sayin*;-, "We are asked to protect the fur-seal; the nations have agreed 

 that it should be protected; we have found out what is necessary to 

 jirotcct it, but cannot do the very thing and the only tiling for which 

 this Tribunal was constituted, in the event it should conic to the con- 

 clusion that any regulations M^ere necessary in the case, because the 

 country could not protect itself." 



Then they speak — and I do not know how far they mean to press 

 this point — about conditions annexed to the Kegulations; they talk 

 about their being conditional, upon our stopping the killing on the 

 Islands. Is the Tribunal invested with any ])(>\ver to enter on theUnited 

 States territory and prescribe what they shall do on their own soil? 

 Certainly not. Is there any necessity for if? Certainly not. They are 

 engaged as earnestly as they can be in preserving the seal. If th^y 

 have made any mistakes, they will correct them of course, when it 

 transpires that they need correction ; but they say, though you cannot 

 make Regulations to bind the United States in the administration of 

 their own property in their own jurisdiction, where there is no question 

 of their right, where the concurrence of Great Britain is not necessary, 

 and it is only when the concurrence of Great Britain is necessary, that 

 the Tribunal is to provide Regulations, you may make it a condition 

 that killing must be restricted on the islands; thus doing indirectly 

 what you cannot do directly. What a proposition that is to a Tribunal 

 of the distinction and character of this. What a proposition it is to 

 any Tribunal, however humble and inferior it might l)e, if charged with 

 dealing with this subject at all, to invite it to do by indirection what it 

 conceives it cannot do directly. 



A few words, and but a few words on the question of whether the 

 authority of the Tribunal extends to promulgating Regulations that shall 

 take effect outside the Behring Sea. I do not think that is seriously 

 denied by the other side. I understand my learned friend. Sir Richard 

 Webster to have not only agreed, but to liave proposed a Regulation 

 which he thought would be adequate to protect in the Xorth Pacific 

 Ocean pregnant females on their way there. I do not think I am justi- 

 fied in saying that he really contended that the authority of the Tri- 

 bunal is limited to the Behring Sea itself, but a reference, again to 

 the language of the Treaty makes that very clear, because the language 

 is : " The Arbitrators shall then determine what concurrent Regulations 

 outside the jurisdictional limitsof the respective Governments are neces- 

 sary and over what waters such Regulations should extend." If there 

 could be any doubt, a reference to some of the many declarations on 

 this subject in the previous correspondence would set it (piite at rest. 



When this sixth section was first i)rojected or when the Treaty 

 began to take form as early as December, 1890, the sixth (^^uestion was 

 proposed in this way. 



Mr. Justice Haklan. — It is at page 280 of Volume I of the United 

 States Case. 



Mr. Phelps. — Yes. 



If the cleterminatiou of the foregoing questions shall leave the subject in such 

 a i)o.sition that the foncunence of (Jioat Britain is necessary in prescribing Ecgnhi- 

 tions for the Ivilling of the fur-seal in any part of tlie waters of l?chring Sea, tlicn ib 

 sliall be furtlier deterniiued: (1) How lar, if at all, outside tlie ordinary Territorial 

 limits it is necessary that the United States sliould exercise an exclusive jurisdiction 

 in order to protect the seal for the time living u]ion the islands of the United States 

 and feeding therefrom? (2) Wiiethcr a (dosed season (during which the. killing of 

 seals in the waters of Behring's Sea outside the ordinary territorial limits shall bo 

 prohibited) is necessary to save the seal fishing industry, so valuable and important 



