8 



ability to point out the powers of tliis tribunal to regulate pelngic fur- 

 sealing in tlie North Pacific Ocean and in Bering Sea. No motion 

 was made or intimated on the bearing tliat this tribunal should refuse to 

 admit such evidence on the ground that it had no jurisdiction to make 

 regulations to protect and preserve the fur-seals in the North Pacific 

 Ocean. 



After all this, is it a reasonable expectation that the United States 

 will accept an award that ignores the greater part of its case? Can 

 we assume that the United States has consented to a treaty, and made 

 this earnest effort to present its rights in accordance with it, and 

 will be content that this tribunal shall find that it has no power even 

 to consider those rights? 



Moreover, we are called upon to decide that the powers of the tri- 

 bunal to regulate pelagic sealing are confined to the area of Bering 

 Sea; and to base that finding on the alleged fact that this is "the only 

 area in dis])ute." To find this alleged fact we are invited to quit the 

 text of the Treaty and to go into the diplomatic correspondence that 

 led to its adoption for our authority so to construe that instrument. 

 That process of construction might be adopted by this tribunal as a 

 means of clearing up an ambiguous expression in the Treaty, under 

 which a right is claimed in favor of either party, but no such proceed- 

 ing can be res(n-ted to in order to limit or enlarge our powers as a 

 Tribunal of Arbitration. That would be to make a treaty by con- 

 struction, and then to proceed to administer rights under it. 



Much less can this tribunal create its powers by merely declaring 

 them. Our powers are to be found in the clear meaning of the text of 

 the treaty, or they do not exist. If we find them in the treaty we can 

 not refuse to exercise them. 



1 will not now present an argument in support of the existence of 

 the powers stated in the motion of Mr. Justice Harlan further than to 

 make some quotations from the text of the treaty, premising that I 

 understand it to be fully admitted on all hands that a great and lead- 

 ing purpose of both governments in making this treaty is to protect 

 and preserve the fur-seals in, or that habitually resort to, Bering Sea. 



The fur-seals to whicli this treaty relates comprise a family or herd 

 of animals that are in Bering Sea, or habitually resort to those waters 

 and the islands in that sea. As the protection and preservation of 

 these animals is the real result sought to be accomplished by the 

 treaty, the only accurate method of defining the scope of the powers 



