32 ARGUMENTS ON PRELIMINARY MOTIONS. 



Mr. Phelps. — Well, Sir, that is not for me to say, but no doubt some 

 time may be usefully spent on that point. What I was about to remark 

 in regard to Section 7 is this — that it was originally proposed by the 

 United States in very different language. In the first volume of the 

 Appendix to the United States Case, at page 28G, the Tribunal will find 

 the first draft of article 6, which is very difierent from the langnage that 

 appears in the Treaty. I need not stop to read it. It is enough to 

 remark, as it is in print before you, that it is a totally different Article 

 from the one that is now in the Treaty. It was objected to by Great 

 Britain, and upon what ground? Solely upon the gronnd tliat Her 

 Majescy's Government was sedulously anxious (you will find that in 

 the letter of Lord Salisbury to Sir Julian Pauncefote of February the 

 2P*, 1891, which is in the same volume at page 294) in framing this 

 Treaty, to separate the question of Kegulations from the claim of right. 



The position of Her Majesty's Government was, that to regulations — 

 which are not a matter of right — but are for the discretion of the Tribu- 

 nal — the concurrence of Great Britain is necessary, and though the 

 Tribunal has i^ower to prescribe that the concurrence shall take place, 

 yet at this hearing the question of right on the part of the Government 

 to make its own liegulations, and the regulations to be prescribed by 

 arbitration, if it has no such right, should not be considered together. 

 It was in reply to that, as the correspondence shows, if you will turn to 

 that, the letter at page 310 of the same volume from Mr. Wharton to Sir 

 Julian Pauncefote of the 25th of June, 1891, was written. He quotes 

 Loid Salisbury's objection to the letter to which I have previously 

 referred in these words: "In the note of Lord Salisbury of the 21st of 

 February last," — the letter I last referred to, "he states his objection 

 to the sixth pro])osition, as presented in the letter of Mr. Blaine of 

 December 17th, 1890, in the following words. 



"The sixth question, which deals with the issues that will arise in case 

 the controversy should be decided in favour of Great Britain, would, per- 

 haps, more fitly form the substance of a separate reference". That letter 

 I may observe, was the first and last allusion in all this protracted cor- 

 respondence to the idea of making the question of Regulations a sepa- 

 rate reference. " Her Majesty's Government have no objection to refer- 

 ring the general question ", he proceeds to say — "to referring the general 

 question of a closed time to arbitration, or to ascertain by that means 

 how far the enactment of such a provision is necessary for the f>reser- 

 vation of the seal species ; but such reference ought not to contain words 

 appearing to attribute sjiecial and abnormal rights in the matter to the 

 United States". And the previous draft that I have referred you to on 

 page 286 was open to that objection. It was so drawn that it appeared 

 to confer upon the Tribunal the power to prescribe Regulations which 

 presupposed rights of jurisdiction on the part of the United States. 

 So that if Regulations had been so prescribed by the Arbitration, it 

 might not have been clear whether they proceeded on the ground that 

 they were Regulations which the United States had a right themselves 

 to prescribe in the exercise of an existing jurisdiction, or whether in the 

 absence of any such jurisdiction they were regulations such as the Tri- 

 bunal thought, by the concurrence of the I^Tations, ought to be adopted. 



Senator Morgan. — Do you mean jurisdiction within Behring Sea? 



Mr. Phelp.s. — I do not remember at this moment the api)lication of 

 the language to that suggestion, whether it was to Behring Sea alone, 

 or to the North Pacific, but we shall claim, when we come to the discus- 

 sion of that subject, that the Arbitration refers to all the waters which 

 the seals frequenting Behring Sea habitually resorted to. 



