31 



tlieir migration routes from and to the Pribilof Islands, and, if ap- 

 proved, v.'ould result in the prohibition practically of all hunting; and 

 taking of these seals outside of territorial waters. 



Much was said, in argument, as to the authority of the Tribunal to 

 prescribe regulations that would entirely prohibit pelagic sealing dur- 

 ing the months in each year when, by reason of the weather and tlie 

 condition of the seas, the hunting aud taking of seals is impracticable. 

 The British counsel contended that it is beyond the power of the Arbi- 

 trators to prescribe regulations of that charaeter. They argued that 

 the Tribuiuil could not do indirectly what they could not do dircc^tly; 

 that prohibition, in terms, or by the necessary operation of regulations, 

 is not regulation ; that the power to regulate is not a power to prohibit. 

 This view, it may be observed, would place it beyond the i^ower of this 

 Tribunal to prescribe such regulations as those decided upon, provi- 

 sionally, in 18SS, between the diplomatic representatives of Great 

 Britain, the United States, and Russia, as a basis of negotiation, 

 namely (to use the words of Lord Salisbury), "that thwe siiace to be 

 covered by the proposed convention should be the sea between America 

 and Eussia, north of the forty-seventh degree of latitude; that the 

 close time should extend from the 15th April to the 1st November; 

 that during that time the slaughter of all seals should be forbidden." 



When enforcing the view last stated, counsel asked us whether a 

 power given by the legislative department to a munici[)al corporation to 

 regulate, within its limits, the sale of ardent spirits would give to such 

 corporation authority to prohibit all sales of such spirits. Perhaps 

 not. But the case put does not meet the one belbre the Tribunal. A 

 legislative enactment of the kind referred to would show upon its face 

 an intention to permit some sales of ardent spirits, under regulations 

 to be prescribed by the municii)al corporation. It might well be that 

 a prohibition of all sales, by refusing all licenses to sell, would in the 

 case supposed, defeat the intention of the legislature. The rule of inter- 

 pretation which has been invoked has no application to the present case. 

 If the treaty empowered this Tribunal to regulate pelagic sealing it 

 could, not unreasonably, be contended that the two Governments had 

 no puri^ose to prohibit altogether and under all circumstances, the 

 hunting of fur seals in the open seas, but only to authorize the regula- 

 tion of that particular mode of taking these animals. The power given 

 is to prescribe such concurrent regulations "outside tlLe jurisdictional 

 limits of the resijective Governments" as may be necessary "for the 



