378 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 



Mr, CouDERT. — I understand we got the best we could in the modus 

 Vivendi. 



Mr. Phelps. — Yes; it was the subject of a great deal of controversy. 



Mr. Justice Harlan. — Perhaps I may refer to the fact that Presi- 

 dent Harrison, (or rather Mr. Wharton in a letter written by direction 

 of the President before the modus vivendi was signed), recognized the 

 fact that regulations were required for the preservation of these fur- 

 seals in Behriug Sea, and also in portions of the Xortli Pacific. 



Mr. OouDERT. — Yes, and that is shewn by the Treaty itself, which 

 speaks of the seals at Pribilof Islands and resorting thereto wherever 

 they may come from. Those that resort to the Pribilof Islands are the 

 ones that we claim inotection over, and those in the North Pacific 

 belonging to the herd are conceded to be Pribilof Island seals, and to 

 come there and nowhere else, Now, if we were unable to obtain by 

 diplomatic arrangements all that we thought right, I do not think, with 

 all resi)ect Mr. President, that ought to be imputed as a waiver or 

 abandonment of our claim. 



The President. — I do not impute it as a waiver; I merely ask the 

 fact whether you urged upon that question diplomatically before the 

 modus Vivendi was signed at all. If you did not ask for it, of course, it 

 would not be conceded. It is no reproach from me. 



Senator Morgan. — I do not know why it would not be conceded, if 

 it was the purpose of both Governments to preserve the seal herd. 



The President. — That is why I enquired whether you had not urged 

 it at the moment? 



Senator Morgan. — We were not asking anything, I take it, from 

 Great Britain. 



Mr. CouDERT. — I think this question can be settled by the corre- 

 spondence, and I am glad it has been suggested, because I can read a 

 few lines from the corres])ondence, although it is g,etting away from my 

 subject; but this may be important. I will read from the Appendix to 

 the Case of the United Htates, volume first, page 315, a letter written 

 by Sir Julian Pauncefote to Mr. Wharton, dated Washington, June 

 11th, 1891, which is before the signiiig of the agreement for a modus 

 Vivendi four days before. Sir Julian Pauncefote says: 



NevertlK'less, in view of the urgency of the case, iiis lordshii) is disposed to author- 

 ize me to sign the agTeciuent in tlie precise terms formulated in your note of June 9, 

 ])rovided the question of a joint Commission be not left in doubt, and that your Gov- 

 ernment will give an assurance in some form that they will concur in a reference to 

 ujoint commission to ascertain whtit 2}ermanent measures are necessary for the preserva- 

 tion of the fur-seal species in the Northern Pacific Ocean. 



I have the honour, therefore, to enquire whether the President is prepared to give 

 that assurance, and, if so, I shall, on receipt of it, lose no time in communicating it 

 by telegraph to Lord Salisbury and iii applying to his lordship for authority to sign 

 the proposed agreement. 



Here is the proposition of Sir Julian Pauncefote to Mr. Wharton. 



Now this is the answer of the President of the United States, and 

 the Tribunal will see that no time was lost, for it is dated on the same 

 day. 



Sir, I have the honour to acknowledge the receipt of your note of to day's date, 

 and in reply am directed by the President to say that the Government of the United 

 States recognising the fact that full and adequate measures for the protection of 

 seal life should embrace the whole of liehring sea and j^ortions of the No7-th Pacific Ocean 

 will have no hesitancy in agreeing, in connection with Her Majesty's Government, 

 to the appointment of a joint commission to ascertain what permanent measures are 

 necessary for the preservation of the seal species in the waters referred to 



