question whether the right and duty ot protecting seal life would rest 

 exclusively with the United States, or would require to be accom- 

 plished through the concurrent action of both Governments. 



No power was conferred on this tribunal to protect the seal herd, 

 the xDreservatiou of which is the great leading jiurpose of the arbitra- 

 tion, while the proceedings are in xJrogress. The result is that unre- 

 strained pelagic fur-sealing is now being carried ou in the North 

 Pacific Ocean, and if the experiences of the years 1891 and 1892 are 

 repeated in 1893, the destruction of the species is now progressing 

 with fatal rapidity. 



In view of these facts, it is of vital importance that the humane and 

 wise i)urpose of both Governments to preserve and protect these fur- 

 seals should not be defeated by any objection to the jnrisdiction of this 

 tribunal that is based on technical grounds, and is held back by the 

 objector to meet the views of counsel, or others, upon a question of the 

 order of our proceedings. Especially is this true when one of the 

 Governments is solemnly denying to this tribunal the right to consider 

 a vital feature of the subject submitted to the tribunal, which the 

 other government, with equal force and firmness, asserts to be clearly 

 within their competency. Under such conditioiis no one can foretell 

 with certainty whether the award that this tribunal shall make will 

 result in protecting and preserving seal life, or will only invite, here- 

 after, a wider and more determined controversy between the two Gov- 

 ernments. 



For my part I regard the present situation as being dangerous and 

 deplorable, and I most earnestly desire that this tribunal shall, in the 

 outset, determine its responsibilities and meet them in whatever way 

 it may think its duties require. 



To relieve this embarrassing situation Mr. Justice Harlan has offered 



the following motion: 



Mr. Justice Harlan moved that the tribunal, before entering upon the 

 matters submitted by the treaty, determine its competency so far as it 

 may be involved in the following questions: 



1. Is it competent, under the treaty, for this tribunal to prescribe 

 regulations ai)plicable to such parts of the North PavaHc Ocean, out- 

 side the jurisdictional limits of the two Governments, as are traversed 

 by the seals frequenting the Pribilof Islands, if, upon the facts, regu- 

 lations of that character are necessary " for the proper protection and 

 preservation of the fur-seal in, or habitually resorting to, Behriug 

 Sea." 



2. Is it competent, under the treaty, for the tribunal to prescribe 

 reguUiticms for a " closed season " covering such waters of both Behring 

 Sea and the North Pacific Ocean, outside the jurisdictional limits of 



