99 



according to tlie decision of the Tribunal, tlic question of gain or 

 advantage to the United States, as a Government, resulting from the 

 preservation of seal life. 



The modus vivcndi, established for three consecutive sealing seasons 

 took the highest possible governmental authority over the fur-seals in 

 Bering Sea, and during those seasons prohibited all pelagic sealing in 

 those waters. This is a virtual declaration that fur-seals, while swim- 

 ming freely in the ocean, are capable of being treated as property and 

 are subject to the care of the two Governments. 



The last of these agreements is incorporated with and made a part 

 of the treaty of February 29, 1892. 



(4) The true attitude of the question we are now to consider is 

 simply this, to use the language of the treaty: "The arbitrators shall 

 then determine what concurrent regulations outside the Jurisdictional 

 limits of the respective governments are necessary, and over what 

 waters such regulations should extend," "for the i^roper protection ami 

 preservation of the fur-seals in or habitually resorting to the Bering 

 Sea." 



It is not possible that the power to determine regulations to operate 

 outside the jurisdiction of tlie two Governments, which can oidy include 

 pelagic sealing in the waters of the Pacific Oceaii and Bering Sea 

 outside the territorial limits, can be so stretched, without a bold usurpa- 

 tion, as to include the killing of seals on the land. 



It is quite as impossible to suppose that either government intended 

 that by concurrent regulations this Tribunal could provide laws for 

 either Government that should operate as laws within the actual bound- 

 aries of the other. 



When the power is given only to determine "over what waters such 

 regulations should extend," it is not i)ossible to conceive that the Tri- 

 bunal has the power to determine over what lands 'or islands they 

 shall extend. This power is so clearly withheld from this Tribunal by 

 the treaty that its exercise would be ultra vires, in any form or for any 

 conceivable purpose. 



So that we have in the body of this treaty the statement and a(;tual 

 enforcement of the power of the British Government to dismiss from 

 consideration the personal rights of its subjects, under international 

 law, in respect to pelagic hunting, and the assnm[)ti()n by that Govern- 

 ment of supreme and absolute control over them and their rights. All 

 this was done for the purpose of making the matter of concurrent »eg- 



