on. n, V

(Q ij t r on

FOR THE PEOPLE

FOR EDVCATION

FOR SCIENCE

LIBRARY

OF

THE AMERICAN MUSEUM

OF

NATURAL HISTORY

FUR SEAL ARBITRATION.

PROCEEDINGS

OF THE

Tribunal of Arbitration

CONVENED AT PARIS

UNDER THE

TREATY BETWEEN THE UNITED STATES OP AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 20, 1893,

FOR THE ■'"> ~1 <rl <^* i (D. i

^i^-vii^

DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV-
ERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES

IN THE

WATERS OF BERING SEA.

VOLUMK XIV.

WASHINGTON:

GOVERNMENT PRINTING OFFICE.
18 9 5.

/9- T^i'1^ J U11€ fi,4

FUR-SEAL ARBITRATION.

ORAL ARGUMENT

ON

E^BCB-TJL^^TIOISrS

BY

SlE CHARLES RUSSELL, Q. C, M. P.,

HEK BEITANNIC MAJESTY'S ATTORNEY-GENEKAL,

B S, PT XIV 1

THIRTY-FIFTH DAY, JUNE 8^", 1893.

Sir Charles Russell. — Mr. President, it is witli a sense of relief
tliat I liiid myself approaching the conchiding subject upon which it
will be uiy duty to address this TribunaL You, Sir, will have gathered
fi'om the arguments of my learned friends and myself that in our
apprehension of the questions with wliich the Tribunal has to deal,
this is the only one which deserves at tlie hands of this Tribunal seri-
ous consideration or which ought to give this Tribunal serious trouble.
I wish, at the outset, to explain the position which my argument takes
or proposes to take in the consideration of the general question. You,
Sir, will have observed that in presenting the Case upon what has been
called the questions of right, that I have had all along the most valu-
able and unstinted aid of my learned friend, Sir Richard Webster, and
my other learned friends who are with me, and with the assistance
which they were good enough to render to me, I took upon myself the
main burthen of presenting fully and at length the case on the part of
Great Britain relative to those questions of right. As regards the
question of Regulations, I propose only to address the Tribunal upon
some broad questions of xninciple which we submit ought to be borne
in mind by the Tribunal in considering the question of Regulations
and in deciding upon the plan which those Regulations should pursue.
In that view you will perceive, Mr. President, that it becomes neces-
sary at the very outset I should determine upon what hypothesis I am
to consider the question of Regulations.

Am I to consider that question of Regulations as if the question of
right were undetermined ? Am I to consider the question of Regula-
tions as if the United States were to be supposed to have legal rights
such as are intended to be presented under the five questions of Article
VI, or am I to approach the question of Regulations upon the supposi-
tion that those questions have been determined adversely to the con-
tention of the United States? I need not tell you. Sir, what is the only
hypothesis upon which we can argue, or pretend to argue, the ques-
tion of Regulations at all. It is upon the hypothesis clearly and dis-
tinctly that this Tribunal has arrived or shall have arrived at the
determination that, so far as legal right is concerned, the United States
has none. I therefore shall argue tlie question as I conceive Article 7
of the Treaty contemplated that the Treaty, should be argued, naaiely,
upon the assumption tliat the United States has no legal property in
the fur seal individually or collectively, and, in the next place upon the
hypothesis that no right of the United States in regard to those indus-
tries so called upon the Islands is invaded by the pursuit of pelagic
sealing. The 7th Article, as I conceive, suggests that that is the con-
tingency contemplated by the Treaty itself it says:

"If tlie determination of the fore.s^oing questions as to the exclusive jurisdic-
tion of the United States shall leave tlie subject in such position that the concur-
rence of Great Britain is necessary to the establishment of Eej^ulations for the
proper protection and preservation of the fur-seal in, or habitually resortinir to the
Behriu^ Sea, the Arbitrators shall then determine what concurrent Regulations",
and 80 forth, " are necessary."

4 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

That tlien, Sir, is tbe hypotliesis upon which I proceed to consider
the question of Kegulations.

I cannot better express myself in this regard than is expressed at
page 159 of the British Counter Case, and with the permission of the
Tribunal I will read some passages from that Counter Case. Itis neces-
sary it is there said in chapter 9.

in approaching: the consideration of the question of Regulations (if any are to be
made) to recall its relation to the five points raised by the Vlth Article of the Treaty,
bearing in mind that it is only in the event of those five questions having been so
determ'ined as to render the concurrence of Great Britain necessary that the author-
ity of the Arbitrators as to Regulations arises (Article VII).

What, then, does that determination involve? It involves the recognition of the
proposition that Behring Sea is to be regarded as a sea open to the connnerce and to
the fishermen of the world, and that the United States have no exclusive right of
protection or property in the fur-seals frequenting the islands of the United States
in Behring Sea when such seals are found outside the ordinary 3-mile limit.

It follows that the rights and interest of the United States in fur-seals frequent-
ing such islands do not diti'er from the rights and interests of any other portion of
mankind, except in so far as the territorial possession of those islands by the United
States gives to their nationals the exclusive right of capture in territorial waters,
and the advantages derived from the fact that the seals congregate in large numbers
on those islands, thereby giving the opportunity for their slaughter.

I stop there for a moment.

Therefore, to begin with, the question is to be approached and only
to be approached, as we conceive, upon this basis of fact that the only
peculiar or special right which the United States have is the right
which they possess ratione soli — the riglit that they possess by reason
of the possession of the islands which gives them facilities for the cap-
ture of these animals /ent? naturce, but gives them no other right of any
different character than that possessed by all mankiud. They have
the right to take them ratione soli exclusively on the Islands. They
have the right to exclude anybody else from trespassing on that domain.
They have the right to take them exclusively within the three mile
limit and to exclude others from that zone but outside that zone, and
on the high sea, the rights of all are equal and the Nationals or lessees
of the United States Islands have no other greater or different right
than that possessed by the nationals of any other Country on the face
of the globe whose opportunities and whose interests may suggest
them pursuing i)elagic sealing upon the open sea.

Now if that be so, and it is upon that basis and upon that basis alone,
that I and my learned friends will argue this question at all, two ques-
tions will arise, first what are the rules which you may make or which
you can make in other words what is the extent of your jurisdiction and
authority, and the next question is, what are the rules which in fair-
ness and equity you ought to make. As to each of those questions I
propose to say a few words.

The questions are, what is the extent of your jurisdiction as to rules,
and next to what extent, in what direction ought you to exercise that
jurisdiction. In other words, what can you do is the first question,
and what ought you to do is the second question.

Now it is obvious that the first question, namely, the extent of your
jurisdiction, depends on the Treaty. You can only exercise the juris-
diction that the parties have given you. The discharge of your duty,
which you have taken upon yourself, is confined to and defined by the
terms of that document under which or from which your authority
springs. I am only concerned, Mr. President, to deal with one point
upon the question of the extent of your jurisdiction, and that point is
this, I will convey it to your apprehension in a sentence, in a moment,

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 5

SO that you may more easily follow it, whether your jurisdiction, in
fact extends beyond what has been called the area of dispute between
the United States and Great Britain ; in other words, whether your
jurisdiction extends beyond Behring Sea. When I talk of the Behring
Sea you will understand that I deal with that part of the Behring Sea
east of the boundary line — the portion of that part of Behring Sea,
east of the boundary line, being claimed by the United States at one
time, and in one branch of their argument, as practically j)art of their
territory ceded to them by Eussia.

Senator Morgan. — You are not speaking of the North Pacific Ocean.

Sir Charles Kussell. — Well, Sir, I do not at this moment use the
phrase "part of the North Pacific," though Behring Sea is part of it.
I speak of it as meaning the Behring Sea itself.

Now I wish before I deal with this question, and having inade my
point I do not intend to dwell upon it for reasons which will be appar-
ent in a moment. I wish before I argue the point to meet the charge
which my learned friend Mr. Carter felt himself warranted in making
when dealing with the contention which is raised iu the Counter Case
and Argument on the part of Great Britain that the jurisdiction of this
Tribunal was in fact limited to Behring Sea. My learned friend said
(he did it with his usual courtesy, and he will understand that I am not
making it a matter of complaint) that to so argue on the part of Great
Britain was to convict Great Britain of insincerity in her desire to pre-
serve the fur-seal species. My learned friend went on to say that the
facts made it apparent that Regulations were needed outside Behr-
ing Sea and south of what has been called the Aleutian chain as much
if not more than inside the area of Behring Sea itself. I meet my learned
friend's charge of insincerity in the way in which it has been all along
met. We have been (as correspondence, which I will not refer to in
detail, has made apparent) from the first anxious so soon as the ques-
tion of right was settled and out of the way to deal comprehensively
with the question of Regulations in relation to the preservation of the
fur-seal without limit as to any particular seas or parts of particular
seas or islands. We were anxious to gain the co-operation of other
great Powers who had an interest in this question. We were anxious
that the scheme of Regulations should not be confined to the seas, but
should extend to the breeding places of these islands where Regulations
were at least as much needed as elsewhere, and given the conjunction
of the Powers who were interested, and given authority to a Tribunal
to deal comprehensively at sea and on land we have all along been
willing, and we are now willing, to give the fullest authority to any
Tribunal to deal with any question outside this Treaty. Tliis is no
new offer. It is to be trticed in the correspondence of Lord Salisbury
when he held the Office of Foreign Minister and from the consistent
tone which he evinced there has been no departure by any successor
in Office.

Senator Morgan. — You said to deal with any question outside this
Treaty. I suppose you meant outside the territorial limits — outside
Behring Sea.

Sir Charles Russell. — I did. Sir, I meant without any restriction
at all there as to sea or land. I therefore meet my learned friends
charge or suggestion of insincerity in this way, and indeed I might on
my own part — not that I care much for the argument known as the
argiimentum ad homineni — retort upon the United States and their
advisers, \ do not doubt the personal sincerity of my learned friends
at all, but if they were really representing the unselfish views which

6 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

tliose who instruct tliem profess in tliis matter, tliere would be, I take
leave to say uotliing; cleroj^atory to the i)osition of tlie United States —
nothing', at least, unworthy of its gTeat position and authority in sub-
nutting as part of a great scheme the qnestion of Regulations upon
the Islands as well as the question of Ivegulations at sea.

Great Britain has not thought it unbecoming, the United States has
not thought it unbecoming its importance and dignity to submit to
this Tribunal the regulation of important rights in the open sea; and
I could see, therefore, nothing derogatory to the United States in their
submitting also to an impartial Tribunal an adjustment of this ques-
tion which should embrace the Islands also. I admit, because I wnsh,
at least, that my argument should be clear, that there is no authority
under this Treaty in this Tribunal to enjoin, as authoritative relations,
any scliCme or system of management upon the Islands themselves as
what I may call a directly enforcible act of this Tribunal. I sliall
presently, however, have to submit in another connection, while tliey
have not that power directly, they have the power indirectly; and I
shall submit reasons why that indirect power should be exercised.

Senator Morgan. — I do not sup])ose that anybody contends that
there is any self-executing power submitted to this Tribunal for estab-
lishment or decision? It must be done by the assistance of some Gov-
ernment?

Sir Charles Eussell. — Quite so; no doubt, that is a consideration
I shall, of course, deal with when I come to the suggestion at a later
stage.

With that preliminary statement, I come back to the question; Is
the jurisdiction of this Tribunal as to Regulations restricted to the area
in dispute, namely the eastern part of Behring Sea?

Now, Mr. President, you will recollect that, in my former argument
upon the question of right, I respectfully insisted upon, in argument,
the meaning which I conceived was to be given or ought to be given to
Question 5 of Article VI. You will recollect that I then insisted that
that was not only, as Article VII showed it to be, a question of exclu-
sive jurisdiction claimed by the United States, but I endeavoured to
show that it was a question of exclusive jurisdiction of the same char-
acter as was put forward in the preceding four Questions, namely a
question of exclusive jurisdiction in the eastern waters of Behring Sea,
founded upon the contention that those eastern waters were part of the
territory ceded by Russia. I am not going to repeat that argument
because it would be but a mere repetition of the argument that I then
addressed, that would be equally apidicable to the subject-matter that
I am now speaking about; and I will content myself by asking the
Members of the Tribunal to take a note of the ftict that that argument
is to be f(mnd beginning on page 945 and between that page and page
i)o() of the Print of the argument. That is my oral argument.

Now, there is no doubt in the world that Lord Salisbury, as I have
already intimated, in some of his correspondance was contemplating
and was, I may add, recognising the advisability of the consideration
of Regulations outside Behring Sea; or, perhaps, to put it more cor-
rectly, not limited to the eastern waters of Beliring Sea. I am not
going, for the reasons I have given because I speak of the thing without
going into minute details, to refer the Tribunal to the correspondence;
that will be dwelt upon by minds coming freshly to the consideration
of this question, my learned friends, Sir Richard Webster and Mr.
Robinson. But I wish to say, though that is so, it will also be found
that that was in connection with the subject-matter to which I have

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 7

already referred; namely, the contemplation of a scheme to wliich not
only the United States and Great Britain should be parties, bat to
which, among others, Russia should be party, and to which it was hoped
that Japan might be a party; and it was in that view, and that view
only, that a comprehensive scheme embracing the whole subject-matter
of nationals of all Powers as to whom it could probably be predicated
they would or might embark in pelagic sealing, it was in that connec-
tion that that wider reference of his was made.

But, in justilicatiou of what I am submitting, there is one passage,
and one i)assage only, to which I must refer. It is a short passage, but
an imi)ortant one. I will not refer to the original source from which
the i)assage is taken, but I will read it from the place in which it
appears in my Argument addressed to this question. It is at page
9-A0-947; and it is the communication of Mr. Wharton. It is a letter
of the 4th of June, 1891, and is to be found at page 306 of the United
States Appendix, Volume I:

The fonrtli clause of the proposal of Her Ma.iesty's Government, limiting the
taking effect of the modus vireiidi npon the assent of Rnssia, presents what seems
to the President an insujierable difficulty, as adherence to that suggestion by Her
Majesty's Government will, in his opinion, prevent the conclusion of any agreement,
and will inevitably cause such a delay,

and then I observe that the object of Sir Julian Pauncefote was, by
including Russia, to have an extension of the modus vivendi so as to
proliibit the killing in other parts of the Behring Sea westward of the
line of demarcation; and this is the way that suggestion is met by Mr.
Wharton, and this is the passage in the letter :

I am also directed to remind you that the contention between the United States
and Great Britain has been limited to that part of Behring's Sea eastwar<l of the
line of demarcation described in our Convention with Russia, to which reference
has already been made, and that Rnssia has never asserted any rights in these
waters affecting the subject-matter of (his contention, and cannot, therefore, be a
necessary party to these negotiations, if they are not now improperly expanded.
Under the Statutes of the United States, the President is authorized to prohibit
sealing in the Behring's Sea within the limits described in our Convention with
Russia, and to restrict the killing of seals on the islands of the United States; but
no authority is conferred npon him to prohibit or make penal the taking of seals in
the waters of Behring's Sea westward of the line referred to or upon any of the
shores or islands thereof.

Now, I beg your respectful attention to this concluding passage:

It was never supposed by any one representing the Government of the United
States in this correspondence or by the President, that an agreement for a modus
viceiidi could be broader than the subject of contention stated in the correspondence
of the respective Governments.

I need not say that the subject of that correspondence was exclu-
sively the eastern waters of Behring Sea. There is another passage
in that letter, a little lower down, on the same page in the book in
which the letter is set out in extenso, which runs thus :

This he would very much regret,

(that is to say, regret that the matter should go off)

and he confidently hopes that a reconsideration will enable Lord Salisbury to waive

(I repeat the word waive)

the suggestion of Russia's participation in the Agreement, and the inclusion of
other waters than those to which the contention between the United States and
Great Britain relates.

Senator Morgan.— What is the date of that letter?
Sir Charles Russell.— June the 4th, 1891; the Treaty itself being
concluded in February, 1892, — the Treaty itself was signed on the 18th

8 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P

of December, 1891, and the ratification signed at Washington Febru-
ary, 1892; and ratifications exchanged on the 7th of May, 1892.

General Foster. — The Agreement was signed in December.

Sir Charles Russell. — I have just said so.

General Foster.— No ; you used the word "Treaty", I think.

Sir Charles Kussell. — You mean they were put together, and not
in one document before? That is quite right.

Now I seriously submit, Mr. President, that in view of that corre-
spondence in June 1891, from which I submit there has been no depar-
ture up to the time of the Treaty, that the actual area in dispute — the
only subject matter to which the contest and correspondence related,
were the eastern waters of Behring Sea and the eastern waters of
Behring Sea only. In the same argument to which I have already
given you the reference I also pointed out how the modus vivendi in
the Ai)ril of the following year, 1892, supports this contention. I
pointed out by article V the question of damage or claim for compen-
sation by the United States on the one hand if its rights should be
affirmed by Great Britain, and, on the other, if the United States
rights should not be affirmed, was confined to the abstaining from the
exercise of the right of taking seals in Behring Sea, and did not extend
beyond Behring Sea, and in view of this conjunction of circumstances, I
submit that up to this time — in the correspondence at least — it is demon-
strable that both parties to these negotiations were ad idem as to wliat
was the matter in contest between them, and that was Behring Sea
and Behring Sea only. Aiter this correspondence and when we get to
March 1892 — I think it is the only other reference that I shall have to
make — there is a letter from Mr. Wharton to Sir Julian Pauncefote at
page 350 of the first volume of the Appendix to the Case of the United
States, in which he says:

I am directed by the President to say in response to your two notes of February
29th, and March 2ud, that he notices with the deepest regret the indisposition of Her
Majesty's Government to agree upon an effective modus for tlie preservation of
the seals in the Behring Sea, pending the settlement of the respective rights of that
Government and of the Government of the United States in those waters and in the
fur-seal fisheries therein.

Then follows this very exiilicit passage :

The United States claims an exclusive right to take seals in a portion of the Beh-
ring Sea, while Her Majesty's Government claims a common right to pursue and take
the seals in those waters outside a three-mile limit. This serious and protracted
controversy it has now been happily agreed shall be submitted to the determination
of a Tribunal of Arbitration, and the Treaty only awaits the action of the American
Senate.

Now leaving this to my learned friends, approaching this matter as
they will do with completely fresh minds, because they have not dis-
cussed this as I did in discussing the true construction of question 5,
I pass on with one or two observations, which indeed become more
pointed now that we have heard the suggested scheme which I will
not at this moment characterise, gravely presented by the Agent of the
United States in the person of my friend General Foster, who proposed
forsooth a scheme without limit as to time, not for the regulation of
rights upon the high seas, but for the extinction of rights upon the
high seas and without qualification, or without reservation going down
as well as I followe<^l it, for I have not yet read it to the 35° of latitude.
So that the scheme is from the Arctic Ocean. My learned friend. Sir
Eichard Webster, will trace the line of demarcation.

[Sir Richard Webster did so]. So that while the area in dispute was
Behring Sea and the question whether we were there outside the ordi-

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 9

nary territorial zone of three miles, and deprived of tbe general right
of tishmg which we claimed as belonging to all mankind without reser-
vation — my learned friends upon the supposition that the concurrence
of Great Britain is necessary in Regulations, and that therefore Great
Britain has rights involved propose a scheme of Regulations which
practically mean very much worse for British interests or the interests
of Canadian sealers than if we had never entered into any contest or
treaty at all upon the question of right.

Let me point out and assume that Great Britain had chosen to say,
'< Well, we will not trouble to contest whether Russia did or did not
assert and exercise rights prior to the time of the cession of Alaska —
we will not trouble to discuss whether those rights were recognized or
conceded by Great Britain— we will not trouble to discuss whether the
phrase "Behring Sea" was included in the Pacific Ocean — we will not
trouble to discuss whether all the rights that Russia had did not pass
unimpaired to you— we will not trouble to discuss if you had rights giving
you property or protection in fur seals frequenting Behring Sea: let
the whole thing go by the board; can any body doubt what the result
would be! It would be simply and solely an assertion of the terri-
torial jurisdiction in Behring Sea, not exceeding one inch outside the
three-mile limit. Therefore the proposition is now advanced, as I
understand from my hasty hearing of it— it is one which puts Great
Britain and her colonists in an infinitely worse position than the one
they would have been in if the question of right had not been raised
at all.

Now, reserving to my learned friends the right to enforce by further
arguments this important point, I pass now, and I assume, contrary to
my submission which I hojje will be seriously and gravely canvassed
by the Members of the Tribunal— without admitting for the purpose of
what I am about to say that the Tribunal has — only for the purpose of
argument do I admit it — authority outside as well as inside Behring
Sea — upon that hypothesis the question will then arise, which is the
second question to which I adverted, what Regulations ought in fair-
ness to be made and to what extent and in what manner, with what
limitations, and on what conditions ought that jurisdiction of the Tri-
bunal to be exercised both inside and outside Behring Sea.

Again I say that this question is to be approached as I suggested I
was endeavoring to approach it upon the basis that except rights as
territorial owners of the Islands the United States or its lessees or its
nationals have no right differing in kind or degree from the rights of
the nationals of Great Britain, in other words the Canadian Colonists
or indeed the nationalists of any other Power. In that condition of
things simply the sense and spirit of equity in each member of the
Tribunal will go with me in saying that if that be the true and just
basis upon which to regulate, the rules to be laid down must be just
rules, marked by considerations of equity and must have regard to the
fact that there are rights equal in degree and of the same character —
rights of fishing in the open sea — possessed by the subjects of Great
Britain, just as they are possessed by Citizens of the United States.

Now, Mr. President, when I come a little closer to the consideration
of what the Regulations ought to be, I find myself under this difficulty.
I find that such a cloud of prejudice has been sought to be raised upon this
subject of pelagic sealing that it is very difficult for this Tribunal until
it is sought at least to dispel some ])ortion of that prejudice to approach
the consideration of the question of Regulations with unprejiidiced
and impartial minds, and indeed apart altogether from any prejudice

10 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q, C. M. P.

that miglit be engendered by the string of vituperative epithets that
has been hurled at the pelagic Sealers. It is important to arrive at
some definite conclusion, if one can, as to what is in truth the part
which pelagic sealing has played in what is called the depletion of the
seals in and resorting to Bi-hring Sea because of course until you have
to some extent realized with some approximation at least to accuracy
what is the true measure of any mischief to the race of fur-seals
caused by pehigic sealing you will be without at least some of the data
absolutely necessary to assist you in determining what rules regulating
sealing ought to issue from this Tribunal.

Senator Morgan. — As I understand, you insist that the Tribunal
has no right to establish Regulations to operate outside the Behring
Sea. It is scarcely worth while to argue a question of that kind.

Sir Charles Kussell. — If you, Mr. Senator, will tell rae that you
accept that view, I will proceed at once, but I cannot assume that you,
much less the otlier Members of the Tribunal will do so.

Senator Morgan. — Your insistence is that this Tribunal has no
jurisdiction to make any regulations for pelagic hunting outside Beh-
ring Sea.

Sir Charles Russell. — Yes, that is my first.

Senator Morgan. — That is the attitude of the British Government.

Sir Charles Russell. — That is my first proposition.

Senator Morgan. — Is that the attitude of the British Government.

Sir Charles Russell. — I do not quite know what that means, Sir.
That is the argument. I submit.

Senator Morgan. — As representing the Government.

Sir Charles Russell. — I am here in the character in which I have
all along appeared.

Senator Morgan. — If it is denied that this Tribunal has any juris-
diction to establish Regulations for pelagic hunting outside Behring
Sea, then another very important question would arise which, of course,
we have to determine upon our own responsibility, whether we can
enter u])on that question.

Sir Charles Russell. — Upon which question ?

Senator Morgan. — As to the power of this Tribunal to regulate
pelagic hunting outside Behring Sea.

Sir Charles Russell. — Y^'ou have to consider that undoubtedly;
you have to consider the extent of your authority, I submit one view
to you which you may not accept. I do not at all — far from it — mean
to suggest that the question is not free from very great difficulty.

Senator Morgan. — It is a debatable question.

Sir Charles Russell. — I do not suggest or mean to suggest the
contrary; but the difficulty does not arise in my mind from the tone of
the correspondence, but from the terms of the Treaty and the provi-
sions in Article VII, with reference to what waters they shall extend
over. I do not find any logical difficulty in reconciling the portions of
the water in the Behring Sea over which they shall extend, but I have
felt bound to argue the question on another branch of the case already,
on the assumption that the Tribunal may not agree with the view I am
submitting, because, of course, I only submit the view as Counsel to
thejudgmentof the Tribunal which has the responsibility of determin-
ing and authoritatively determining them; and I must, of course
approach the matter alternatively, and I was on the second branch of
it, api)roaching it on the alternative that my contention was wrong, and
not one that would be accepted by the Tribunal.

The (|uestion was, what regulalions, in and outside of Behring Sea,
they adjudged fit to make. That is the question to which I addressed

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 11

myself, and I was going to address myself first of all to the point that
it was necessary for the two-fold object of removing prejndice and also
of trying to get a measure, if 1 could, of the extent of mischief which
was properly and truly to be attributed to pelagic sealing, and to
examine brieily some of the leading facts in relation to that branch of
the question.

As 1 pointed out, it is not possible for the Tribunal, without examin-
ing these facts and coming to some conclusion upon them, to comply
with the condition set out in the Treaty, or to give effect to the provi-
sions of the Treaty itself.

Now, let me, at this stage before I proceed because it may save a
little time, proceed to some brief comments on the Treaty itself. The
preliminary recital on page 1 states that, the two Governments.

licing desirous to provide for au amicable settlement of the questions which have
arisen between their respective Governments concerning the jurisdutional rights of
the United States in the waters of Behring's Sea, and concerning also tlie preserva-
tion of the fnr-seal in or habitually resorting to the said sea, and the rights of the
citizens and subjects of either country as regards the taking of fur-seal in or habit-
ually resorting to the said waters.

Then comes the operative part of the Treaty which provides that:

The questions which have arisen between the Government of Her Britannic Majesty
and the Government of the United States concerning the jurisdictional rights of the
United States in the waters of Behring's Sea, and concerning also the preservation
of the fnr-seal in or habitually resorting to the said sea, and the rights of the citizens
and suljjects of either country as regards the taking of fur-seal in or habitually
resorting to the said waters, shall be submitted to a Tribunal of Arbitration.

Then in Article VI are the questions of right.

Then in Article VII is that which deals in the question of Regulations :

If the determination of the foregoing questions as to the exclusive jurisdiction of
the United States shall leave the subject in such position that the concurrence of
Great Britain is necessary to the establishment of Regulations for the proper protec-
tion and preservation of the fur-seal in, or habitually resorting to, the BehringSea,
the Arbitrators shall then

that is to say in that event

determine what concurrent Regnlations outside the jurisdictional limits of the
respective Governments are necessary, and over what waters such Regulations should
extend,

I need not read the rest of it.

Therefore, what the Tribunal have to consider, npon the hypothesis

which I am now presenting, is, what regulations what concurrent

regulations are necessary for the proper protection and preserva-
tion of the fur-seal?

It will be observed, therefore, and I might as well, as my attention
has been drawn to it, make the observations in this connection, although

I had intended to reserve them till a little later period it will be

observed, therefore, that it is not regulations for the protection of the
fur-seal in the interests of the United States it is not for the protec-
tion of the fur-seal so that the United States shall be entitled or in a
position to kill the greatest possible number upon their islands — it is
not even regulations that shall keep the fur seal up to the highest
normal condition of equilibrium which it might arrive at in a set of
natural conditions where there was no artificial interference by man.

It is not that — it is the preservation of the fur-seal, and it is the
preservation of the fur-seal for and in the interests of no one power,
the subjects of no one power, or the citizens of no one power — it is the
preservation of the fur-seal.

12 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

ITow wliat part has pelagic sealing, in fact, played in this matter?
The Tribunal will not have failed to observe that all through the writ-
ten arguments, and all through the oral arguments, of my friends, that
it is hardly an exaggeration to say that this has been their tone: not
only, as my friend Mr. Kobinson so clearly and pointedly mentioned
to-day, that pelagic sealing is a moral wrong, and claimed that pelagic
sealing is hostes humani generis, and the rest of it, but they have
assumed that every seal, or almost every seal, that a pelagic sealer
killed was a female seal; and they have assumed almost that every
female seal that they killed was either a seal carrying its young (which
it was about to deliver), or a female seal whiph had delivered its young
which it was then engaged at the time of its slaughter in nurturing.
It is hardly an exaggeration to describe that as the argument advanced
by my friends.

Now let me point out some broad considerations. I do not stop to
jiotice — for I have akeady in another connection referred to that — that
whatever else may be said against pelagic sealing it has not yet, in the
history of the world, been found guilty of extermination of the race of
fur seal in any part of the globe — that in no part of the globe where
fur-seals were found formerly in great numbers and where they have
now ceased to be, is there extinction attributable to pelagic sealing —
indeed it is clear that if pelagic sealing and pelagic sealing alone were
pursued, that there would be no need for Eegulations at all, for the
object of this Treaty, namely, the preservation of the fur-seal, because
the past history of pelagic sealing has shown that in that which is its
congenial element, the sea, nature has furnished the seal tribe with
facilities to escape capture — it has enabled them to resist the attacks
of man upon the high sea.

It is no exaggeration, to use the language of the British Commis-
sioners rather ridiculed by my friend, Mr. Coudert when I say — and I
adopt the language, for I think it is true — that pelagic sealing does
give the seal what they call a "sporting chance" for its life, whereas,
killing on the Island — knocking it on the head with a club, gives it no
chance whatever. Therefore, we start with this, that it is not pelagic
sealing that renders Eegulations necessary at all for the preservation
of the fur-seal. The fur-seal in the past has survived and in all human
probability, as far as one can judge, will continue to survive and with-
stand the attacks of the pelagic sealer carried on as pelagic sealing
necessarily is carried on in the native element or the more congenial
element, at least, of the fur-seal. I do not stop to point out also the
fact that it is admittedly the historical and most ancient form of the
pursuit of the fur seal. I do not stop to dwell on the distinction that
my friends seek to draw between what they call fur sealing where the
comparatively untutored Indian with canoe and spear pursued the fur-
seal, and compare it with the introduction of what my friend, Mr.
Carter called the destructive agency of civilization in the shape of
arms of precision and in the shape of schooners and appliances better
adapted for success in that class of enterprise.

Well then, if we are right that pelagic sealing is not that which
makes or calls for the necessity of Eegulations standing alone, what is
it that does call for the necessity of those Eegulations I It is the kill-
ing on sea plus the killing on land; and, therefore, it does become
important to consider what has been the relative effect of those two
means of pursuit at sea and on land, and which had the most dire
effect u])on what has been called the depletion of the fur-seals in and
frequenting Behring Sea?

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 13

Senator Mo'rgan. — That appears to be the question of indiscrimi-
nate killing", whether on land or sea.

Sir Charles Russell. — In another connection as I have shown,
and I shall have again to show, that although the United States claim
was for discrimiuately to kill upon land, that is not a well-founded
claim.

Senator Morgan. — I am not speaking of the claim of the United
States; I am speaking of the fact that it results in the destruction of
the seal species; and the point is indiscriminate slaughter.

Sir Charles Russell. — 1 do not care, Sir, whether it is indiscrimi-
nate or discriminate, — one need not dwell upon that. They are slaugh-
tered. AVhether you can call killing on the Islands discriminate or not,
it has led to the depletion.

Senator Morgan. — I am speaking of the killing of seals in the South-
ern Hemisi)here as well as in the Northern. Has not the destruction
of the seal species in the Southern Hemisphere resulted from indis-
criminate slaughter?

Sir Charles Russell. — On land, it has.

Senator Morgan. — Or on the sea either.

Sir Charles Russell. — No, on the contrary.

Senator Morgan. — No matter where.

Sir Charles Russell. — No. On the contrary there has been no
instance whatever of any killing which it is even alleged had affected
seal life in any of the southern portions of the globe or anywhere else,
so far as I know attributed to pelagic sealing. No, Sir.

Senator Morgan. — That may be the better method ; but the ques-
tion still recurs whether the loss of seal life in the Southern Hemi-
sphere and in the north is not due to indiscriminate killing, whether on
land or at sea.

Sir Charles Russell. — At present I am dealing with pelagic seal-
ing. I am endeavouring to see what are the crimes properly to be
attributed to pelagic sealing; and in this connection dealing with this
concrete case, what i)art pelagic sealing has played in the depletion of
the heard of the seals frequenting or habitually resorting to the Beh-
ring Sea.

Now my learned friend Mr. Carter in dealing with this matter put
forward this argument. It is to be found at page 81 of the United
States argument in print I think, and also I think in my learned
friend's argument — I have not the page at this moment — orally deliv-
ered. It was to this effect: a great part, said my learned friend — and
said truly — of the seals killed by pelagic sealers, are females and there-
upon he went on to say that being females that necessarily caused a
diminution of the stock and a lowering of the birth-rate of the stock
below the normal point which it would otherwise naturally reach. I
want to point out, with great respect to my learned friend, that that
is not correct; because it would assume that the female killed had pro-
duced no young at all, and would produce young if it had not been
killed. Let me remind the Tribunal and remind him that according
to the evidence it is stated that each female produces in the course of
its normal life, assuming that it escapes the great dangers to which
it is exposed from natural causes, from 11 to 14 pups. It is put as
high as 14.

Senator Morgan. — 12 is an average?

Sir Charles Russell. — Assume 12 to be an average by all means.
My learned friend will see at once that if the particular female that has
been killed is one that has produced even two pups, the killing of that

14 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

particular female does not reduce the stock at all, because she has more
than replaced herself by the production of her two pups; and if the
entire production in the course of her life is to be fixed, as you, Mr.
Senator Morgan, suggest, at an average of 12 pups, the probability is,
taking the same average, that when she meets her death at the hands
of the sealer she has produced six pups, and therefore much more than
replaces herself in the stock from which she is taken.

And indeed my learned friend will see that his own argument leads
to this — 1 will say it, but say ic respectfully to him, because it is the
word that occurs to me — leads to this hopelessly absurd result. The
killer whales who are one of the great agencies of destruction of the
fur-seal have been going on, a natural enemy of the fur seal ever since
the fur-seals were, sparing neither age nor sex, not descriminating
between female and male, killing therefore a large number of female
seals. According to my learned friend's argument, if that argument
were well founded, the killer whales must have long since exterminated
the whole tribe of seals altogether. My learned friend's argument would
only be good if he could establish that the females that were so killed
were females that had not done something to replace themselves in the
stock, to fill their own places in the stock, because it is only in that case
in which they would have had any permanent effect upon the stock at
all. Besides my learned friend loses sight of this fact which I think it
is important to bear in mind, that the evidence now establishes — that
after the breeding seals have got to the Pribilof Islands and after the
time when according to my learned friend's views, the great family of
the seals frequenting Behring Sea had got into the neighborhood of
that Sea there are observed large masses of seals that never ap])arently
go regularly to those islands if they go at all at long distances from the
islands, at distances west and north of the islands and at distances
south of the Aleutian chain and away from Behring Sea altogether,
that at the very time that, according to their theory, the great family of
seals were gathered around and upon the Pribilof Islands. What were
these composed of? Many of them, we do not doubt, were composed
of barren females who, not going to the islands, would go to waste — it
is no exaggeration to say — but for the pelagic sealer. That class
embraces others, for instance young males that are not led to go to the
islands by any sexual instincts such as attracts them at a later period;
females not attracted by any sexual instinct, which only affects them at
a later period; and old seals which are considered unworthy of notice
by those who kill the seals upon the islands because they have reached
a stage at which their skins are not the most marketable, the best for
the market being from three to foitr or five years of age. These are all
classes of seals which may be dealt with without interfering so as to
intiict any permanent injury upon the stock of the fur seal and which in
large part, at least, would probably go to waste and be of no use for any
human i)urpose whatever unless the pelagic sealer was allowed to deal
with them.

Senator Morgan.— Sir Charles, in that connection— I hope you will
pardon me for calling your attention to it — the statements of a good
many witnesses in this case would seem to indicate that every seal, a
year old or any other age, is impelled by its natural necessities to resort
to the land at some period of the summer during which its coat is
changed; and that that necessity is just as imperious as any instinct of
the animal in reference to its propagation. So that it is open to argu-
ment, to say the least of it, whether or not every seal does not every
year resort, under the necessity of an instinct that it cannot avoid, to
the land for the purpose of shedding its coat.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P 15

Sir Charles Eussell. — "Well, Sir, I beg most distinctly, but respect
fully to say there is no evidence which warrants any such conclusion;
and I submit on the contrary so far from there beinj; any evidence to
warrant that conclusion that the evidence is the other way; because
the evidence is that seals that do go to land become and are found stagey
at a certain jiortion of tlieir pelage in a certain period of the year, but
at the very same period of the year seals are being taken by pelagic
sealers, and on being taken pelagically are found not to be in that stagey
condition at all. But further, as that has been mentioned, may I ask
you, sir, to note — 1 did not intend even to give the reference — the evi-
dence as to the scattering of large numbers of seals during the breed-
ing season when, according to the contention of my friends, the whole
family are in and about the islands, as set out in the second volume of
the A])])endix to the British Counter Case, page 27. There is set out
there in summary a body of evidence of a great number of persons,
speaking to different times and to different parts of that whole vast
extent of ocean, showing that it is impossible to arrive at the conclusion
which you have been good enough to suggest as one to be discussed,
that the seals do go each year necessarily to land. Indeed, we have
the admissions in the evidence of Mr. Bryant, who was 1 think a Treas-
ury Agent on the Pribilof Islands, to the effect that when the female
pup leaves the island it does not return to the island in its first year;
that it comes to the island in the third year to deliver its first pup. As
the question has been challenged I should just like to refer you to the
passage where that appears.

In his Monograph of North American Pinnipeds, pages 401, 402,
after speaking of the pups Mr. Bryant says:

"At this stage the female pups leave the island for the winter, and very few
appear to return to the islauda until they are three years old."

There is other authority to the same effect; but I cite that as being
a witness called on the part of the United States.

But we have means of getting much closer to this matter and of deter-
mining what is the true measure of responsibility to be cast upon the
pelagic sealers what is the correct measure or the approximately correct
measure at least, of- the effect of pelagic sealers, u^jon the race of
fur-seals in these parts.

Now, Mr. President, there are three distinct dates given in various
places by witnesses called on the part of the United States as the date
at which decrease was first noticed on the Pribilof Islands. Those
three dates are 1887 — some of them giv^e — 1879 — but the United States
argument fixes 1884 as the first date when any significant decrease was
noticed ; and that is what is now suggested as the date upon which
they fix.

My learned friend, Mr. Coudert, on page 655 of the print of his oral
argument, takes the latter date and gives the go by to the statement
of some of the witnesses, to which I shall incidentally hereafter refer,
fixing the noticeable decrease as early as 1877 and 1879. On page 655
Mr. Coudert says this:

From 1870 to 1880 it was one of increase. Of course it is not ahsolntely and
mathciiiatically possible to establish when increase ceased and stagnation com-
menced and decrease took its place; bnt speaking of the question, with such infor-
mation as we can get from persons who are able to express an opinion, that is the
estiiiuite that we submit to tlie court increase to 1880; stagnation from IJSSO to about
lsi^'4 ; and subseiiueutly to that the decrease which it is conceded on all sides exists
and now threatens extermination.

I do not know that that last statement is to be taken as an admis-
sion ; b.ut so rey learned friend puts it.

16 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. 0. M. P.

We liave a means of assisting the Tribunal to what is the true meas-
ure of the injury done by pelagic sealing; and in order to explain it, I
will take the liberty of presenting, or asking the Tribunal to take, one
of these tables which has been prepared for the purpose of presenting
this. I would remind the Tribunal of this; there are certain tables
found in the United States volume, A, B, and 0, I think they are.
These three maps will be found at page 352 of the United States Case.
I am not going to trouble you, Sir, with a detailed examination of this;
but it is absolutely necessary that I should explain what it means. If
you will take " male Seals, diagram", facing page 352, you will see, Sir,
that that purports to set out what would be the natural condition and
distribution of a collection — I will use the word " herd" for brevity —
of male seals numbering 40,025; and you will observe that there are
different colors there to indicate the different divisions of these animals.

The first column, which is colored green, and which is framed upon
the basis of an annual number of ten thousand male pups being born.
You will see the figure "I" at the bottom of that column. There
is a series of figures, 1, 2, 3, 4, 5, 6, 7, 8. You see the numbers, Mr.
President?

The President. — Yes.

Sir Charles Russell. — Those figures at the bottom indicate the
ages which the seals have attained; and you will see, therefore, that
upon the assumption of 10,000 male pups born in one year, that of
those 10,000.

The President. — Pups, not male pups.

Sir Charles Russell. — This is entirely conversant with males, Sir.
There is another dealing with females. That of 10,000 male pui)S born
in the year, ouly 5,000 survive to the next year; because you get the
number which survive to the next year by following the column at the
base of which is the figure I until you find it crosses the line. You
will see, therefore, it goes up to the point of 5,000. If you have
appreciated what I have been endeavoring to describe, I will pass on.

What that shows, therefore, is this: assuming that their calculation
is correct — probably approximately it is correct — that from natural
causes one half of the pups born disappear, prey to accident, prey to
the killer whale, prey to epidemic, prey to any cause you like; but to
natural causes is to be attributed the fact that 60 per cent of the pups
born in any one year disappear during that year, and only 50 per cent
survive to be yearlings. That is the ouly fact I wish, in this connec-
tion, for the moment to beg you to carry in your mind.

That being so, we have prepared a table in which we have taken the
total number of seals pelagically killed from 1871 to 1878, and then
going on to 1879, 1880, 1881, 1882, 1883, 1884, 1885, and we have pro-
ceeded upon the principle which I am now about to explain to you.
We have assumed that every seal pelagically killed was a female
seal, was not a barren female seal, but was in fact a pregnant female
seal. Now, let us see how the figures work out, even on that violent
hypothesis; because it is admitted by my learned friends that a cer-
tain percentage of the pelagic catch are old seals, females that are
barren, females that are past bearing, and male seals whose skins are
of comparatively little value for market purposes if killed upon the
islands.

From 1871 to 1878 — although 1 do not seek to dwell upon that,
because it is going too far back — the number periodically killed was
2,000. The figures upon which I base these observations are to be
found set out in the report of the British Commissioners, figures

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 17

which my learned friends have themselves adopted as indeed being
more favorable to their contention than the figures set out in their
own volumes.

Mr. Carter. — We do not concede the accuracy of those figures,

Sir Charles Eussell. — No, no; I am not saying you do. But
you have referred to them, and you have recognized the fact, as it is
the fact, that they are figures which are larger than the figures that you
yourself put forward.

Mr. Carter. — Only in some particulars.

Sir Charles Kussell.— They will be found at page 207 of the
British Commissioners' Report. I quite admit — I wish not to be mis-
understood on this relation, or in any relation — I quite admit that all this
is subject to discount because until we come to comparatively recent
years the figures are not a very reliable guide. I quite admit also that
an addition, and a not inconsiderable addition, is to be made to these
figures by reason of what has been called the loss of seal life at sea,
namely, loss in respect to seals which are Khot at, which may be mor-
tally wounded, but which sink and which cannot be recovered. The
figures therefore are open to these criticisms. But in reference to
such criticism, I have to observe that there is a very wide divergence
between the views put forward by the witnesses on the part of the
United States and those i)ut forward by the persons actually practically
engaged in jielagic sealing, as to the amount of loss in that way occa-
sioned — so wide a margin of difference, indeed, between the two, that
one looked about for some explanation of it; and I think the explana-
tion is to be found in this: that the witnesses called on the part of the
United States appear to have assumed that when a charge of the gun
was fired at a particular seal, and that seal was not caught, that that
was to be treated as a seal that had been wounded and was lost. I
may call attention to the evidence cited in Professor Elliott's report, in
which he cites a great number of instances of that kind, for he is very
strong against pelagic sealing; and when you come to examine the
instances that he cites, he does not mention them as instances where
there is any reason to suppose the seal lost was a seal that had been
mortally wounded at all.

Now, taking these figures, Sir, and presenting them to you; taking a
later year than 1878, the amount pelagically killed in 1880 was 4,800; in
1881, 0,000; in 1882, 12,000; and I stop at 1882.

Mr. Foster. — It is about half of what the American Commissioners
report in their table.

Sir Charles Kussell. — I do not think that is ad rem to what I am
now ui)on.

Mr. Foster. — You say we adopted your figures.

Sir Charles Russell.— Will you give me the reference?

Mr. Foster. — Page 30G, just following the maps that you are using.

Sir Charles Russell. — Do they give any figures alter that?

Mr. Foster. — Oh yes; each year.

Sir Charles Russell. — I thought our figures were more favorable.

Mr. Foster.— On page 366 you will see that in 1870 it is 12,500.

Sir Charles Russell. — I will just look at this. Yes; I see some
of them are more favorable.

Mr. Foster. — Take, for instance, up to 1878.

Sir Charles Russell. — I will examine these later; but for the
present I will take the ones that I am upon. It will not materially
interfere with the point I am submitting. I think it will not be found
to materially interfere.

B S, PT XIV 2

18 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

What I was jjoiiig to sliow is this: I will take the year 1882, where
the figure given by the British Commissioners is 12,000; and I stop at
1882 for this reason: the pup born in 1882 would be a yearling in 1883,
would be a two-year-old in 1881 and would be a three-year-old in 1885.
Therefore, indeed, I ought properly to stop in 1881. That is to say, no
eflect of the killing of females in 1885 could be felt upon the number
of killable seals until the year 1884. That is to say, a pup in 1881 is a
yearling in 1882, a two year old in 1883, a three year-old in 1884, and is
kil]al)le, in his prime, from 3 to 5 years of age. Therefore the effect of
the killing of female seals could not tell uj^on the number of killable
males, or either sex, for that matter, until 1884, or the third year
afterwards.

I have assumed for this purpose the figure given in the case by the
British Commissioners. They put the figure in 1881 at 0,000. The
American Commissioners put it at double that. Therefore you may
take it either one way or the other. It will not, I think, materially aU'ect
the matter. If it is 0,000, there are 0,000 pups born, which is a very
violent assumption — 0,000 gravid females, which, if not killed, would
have born 0,000 pups, of which 3,000 alone, because tlie sexes are equal,
would have been males, and tberefore would, in the year 1884, if the
mother had not been killed, have come into the (tlass of killable males
in 1884, and would have been in the class of killable males from 1884,
when it was 3 years of age, up until it was 5, or later.

Now, of those 3,000 inale i)ups sup})osed to have been lost because
their mothers were killed in 1881, how nniny survived to reach two years
of age? According to the figures given by the United States in the
diagram to which I have referred, 900 only. How many would reach
three years of age? 720 only. Double, treble, quadruple the amount
of pelagic killing; and you get to a figure comparatively insigniticant
and wholly inadequate to account for or even go any substantial way
to account for the decrease which it is said was so noticeable in the year
1884, according to Mr. Coudert's argument, and following the printed
argument put forward on the part of the United States.

Therefore I say, take any set of figures you please, starting from 1881,
and taking their contention to be that the decrease was markedly
noticeable in 1884, that could not have been noticeable until the ])U])s
had got to the age when if they had been interfered with they would
have been in the killable class, beginning with 3, and rising up to 5, 6
and 7 years of age.

We have other ways also of testing this matter. One specific accu-
sation made against pelagic sealing is this; and they say that having
found this specific accusation to be capable of su])port, in one particu-
lar set of years, that it may be equally true, and a cause of the death
of the pups in previous years. That is to say, that in the year 1891
there was found to be upon the islands a large number of dead pups,
dead, as they say, from examination after death, because they were
starved, the starvation, as they allege, being attributable to the fact
that their mothers were killed in Behring Sea and so they were deprived
of their natural nutriment, causing the wholesale death of these pups,
which was manifest upon the island.

The first observation one has to make in relation to that is this: that
it will be found that the whole of those deaths of pups in any noticeable
degree in 1891, were found on St. Paul's Island alone, not on St. George.
I need not ])oint out that if the death of those pups was attributable to
the killing of their mothers by pelagic sealing, that you must have found
corresponding indications of death of pups equal or proportionately
upon both islands. I think that will not be disputed.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 19

But not only that, but the evidence further establishes the fact that
the death of pni)S was found to be confined to particular rookeries on
that particular island of St. Paul, again showing- that if the death of
the pups in 1891 had been attributed to the killing by pelegic pursuit
of the mother they would have been found to be distributed over both
the islands and upon the rookeries of each of the islands, where as it
was found confined to one island, and only to the rookeries on that
island. But in the next i)lace, and conclusively on this point, the
evidence establishes, and I will read it to-morrow morning that the same
thing was to be found existing and to the -same extent in the year 1892,
when there was no pelagic sealing at all in Behring Sea.

It follows from these facts which I have mentioned, and which I will
make good tomorrow morning, that this charge of this enormous death
which occurred in these two years to pup-life upon the Pribilof Islands,
was due to pelagic sealing, will be found to be entirely without support.

Lastly, there is this extraordinary comment; they now get a number
of witnesses, Aleuts and others, who make affidavits that they had
noticed deaths of pups in previous years which they connected with
pelagic sealing and with the killing of the mothers at sea, which they
say began to be serious in 1884, and went on increasing in 1884, 1885,
1880, 1887, 1888 and 1889. And yet, wonderful, to relate, in no official
Eeport is there any reference to that fact; and although Professor
Elliott was there in 1890 for the purpose of examining and reporting
upon the whole of the question, not one of the Witnesses upon the Island
ever drew attention to this question of the death of pups in any way
suggesting directly or indirectly that it had anything to do with pelagic
sealing at all. The result is, his Report is entirely silent on the question.

Senator JNIorgan. — You do not dispute the fact that the pups died?

Sir Charles Russell. — No; on the contrary, the British Commis-
sioners appear to have been the very first to call attention to the fact.
There was a large number of dead pups in the neighbourhood of the
Rookeries.

Senator Morgan. — How do they account for the death?

Sir Charles Russell. — I will read tomorrow morning what is said
about it.

The President. — If You please.

(The Tribunal then adjourned till to-morrow morning at 11,30 o'clock.)

THIRTY-SIXTH DAY, JUNE g^", 1893.

Sir Charles Eussell. — Mr. President, I was yesterday endeavour-
ing to make clear what a very insignificant part pelagic sealing bad
played in the depletion of the seal stock at the date at which the
United States have fixed, the year 1884, as the year when the marked
decreased was observable in the young males. The argument is still
stronger if one refers to the year 1879, or to the year 1877, at which
dates other witnesses speak of large noticeable decreases; because in
those earlier years pelagic sealing was less than in later years. For
my purpose 1884 is sufficiently strong.

I referred yesterday to the figures of the British Commissioners which
I was under the impression, as far as the number of seals killed, was
more favourable to the case of the United States than those of their
own Commissioners; but I find I was not correct in that. Mr. Foster
was good enough to point out to me at the time that in earlier years it
is not so; but for the purpose I was discussing the distinction is hardly
worth entering upon. What I had in my mind was that in earlier years
the number of vessels engaged in pelagic sealing was larger when given
by the British Commissioners than that given by the United States
Commissioners. That was the source of my error. I will not go into
elaborate calculations of figures; but I wish the Tribunal to grasp oue
or two fjicts which are put forward by the United States and which we
assume for the ])urpose of the illustration I am now upon.

According to the table of mortality to which I yesterday referred, it
will be apparent that the United States treat the mortality in the first
year of seal life as amounting to 50 per cent. That will not be disputed;
the tables show that. They also show what is the mortality between
the ages of one and two, and between two and three, and so on; and I
wish, therefore, in a sentence to show how those figures would work
out on the supposition that 1,000 male pups are born in one year. Of
that 1,000 male pups, 500 disappear from natural causes. If there was
no pelagic sealing at all, natural causes will occasion the disappearance
of 50 per cent., or 500 out of that 1,000. So that of 1,000 male pups
born on the Islands, 500 re appear as yearlings; 320 re-appear as two
years of age; and 240 only of three years.

Now bearing that fact in mind if ycui take the largest figure of the
pelagic catch suggested by the United States Commissioners although
those figures are (if I chose to stop to make it) subject to some dis-
count and criticism, yet it will be apparent that to occasion the marked
decrease which is said to have been manifest in 1884 — if you multiplied —
if you double or quadruple the pelagic sealing you cannot account for
the depletion which it is alleged was then observed. Now they have
sought to establish the gravity of the charge against pelagic sealing in
another way, and it was to that point I was adverting when the Tribu-
nal rose yesterday evening, namely, they say we are able to specifiy a
particular year in which there was an abnormal number of deaths ot
young pups, not by the killer whale, but by some causes which operated

^0

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 21

Upon them on the islands, because their dead bodies were found upon
the ishuids aiul trom that fact they then proceed to avgne and cite the
opinions of a number of persons upon the ishmds all I think without
exception Aleuts, or nearly all, and they say we attributed this enormous
death of pups, for it was a very large death indeed, there being no cause
to which to assign it, to the fact that the mothers of these pups were
killed at sea — that the pups were left without their natural sustenance
and so died.

Now it they could establish that it would undoubtedly be a very
grave and important fact. But do they?

I refer in this connection to the British Counter Case, page 213, where
the matter is gone into. On page 212 the fact is stated, and then there
is the reference to the British Commissioners' Report which deals with
this matter. It begins at the bottom of that page.

The Commissioners then show, by reference to dates in detail, that the excessive
mortality, when lirst oljserved, had occurred at a time Loo early in the snniiucr to
he explained by the killing of mothers at sea; and point out that, although further
deaths of young occurred at later dates, there appeared every reason to believe that
the whole resulted from some one cause, which had extended from the original
localities, and had become more general.

The Commissioners do not regard the available evidence as sufScieut to enable
them definitely to determine the cause of the mortality in 1891, but suggest the fol-
lowing as among probable causes:

a. Disturbances connected with the collection of "drives," in which nursing
females were included, which animals, though eventually spared, did not succeed in
rejoining their young.

b. Disease of an epidemic character.

c. Stampedes and overrunning of the young.

d. Raids upon the rookeries si^ecially atfected.

I shall have a word to say about the raids on the rookeries a little
later. Then they proceed to observe this which I submit is practically
conclusive agaiust the view suggested.

The circumstance that the mortality observed in 1891 was confined to St. Paul
Island, and was not found on tbe neighbouring Island of St. George, is in itself
sutlicient to indicate that it cannot be attributed to the killing of seals at sea. All
the witnesses cited in the United States Case in respect to the mortality in this year
speak of its occurrence on St. Paul Island only.

Now surely, if I rested here, that would be an answer to the sugges-
tion that it was caused by pelagic sealing, because it is impossible to
suggest with any show of reason or of probability that the seals cap-
tured by pelagic sealing only came from St. Paul's Island and that a
proportion of them did not also come from St. George's Island. But
not only that — they go on to show that it was contined to particular
rookeries even upon St. Paul's Island itself. So much for the year 1891.
But we have got still further, and subject to the better oi)inion and the
more dispassionate opinion of the members of the Tribunal, what I sub-
mit is a conclusive answer to the suggestion, namely, that in 1802, when
there was practically no pelagic sealing in Behring sea, where there
may have been 300 or 400 or 500, seals, killed at sea — when the modus
Vivendi was in full operation, we have the very same mortality occur-
ring and manifesting the same features. Now it does, therefore, with
great deference to my learned frietids and those who put forward this
argument, seem to me impossible to maintain that thesis in connexion
with the death of pups in 181)1 and 1892, That latter matter in 1892 is
dealt with in the first volume of the Appendix to the Briti.sh Counter
Case, pages 145 to 148, and if my learned friend would be good enough
to read it for me, I would ask him to do so.

22

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Sir EiciiAUD Webster. — The causes that led to the destruction of pups on the
bieedinj; islands are, so for as they have been noted by me —

(a.) The wandering away of the young seals from the vicinity of the breeding-
grounds, and subsequent failure to find female seals from whom they can obtain
milk. This seldom occurs where a harem is situated between a clifl' and the water,
or backed by rocky steeps, as at Lukannon rookery on St. Paul Island, and parts of
North rookery on St. George Island. Pups can most easily lose themselves when on
such rookeries as Polaviua, Reef, or Upper Zapadnie on St. Paul Island, and Zapad-
uie on St. George Island. At these places they frequently wander a short distiiuce
to the rear of the occupied rookery-ground, and are soon lost, especially if boulders
lie between them and the breeding-ground. A pup's confusion is naturally much
greater at such places as Sea Lion Point or at Reef rookery, where, on going but a
short distiince inland, cries of seals can be heard from both sides of the point. Two
or three pups so lost were seen l)y m'- every time I visited Reef rookery, and seldom
with strength enough to move more than a few yards, if at all. These pups of course
die, and are, with few if any exceptions, dragged away and eaten by foxes. While
scattered dead pups were always to be seen on the open ground between the rook-
eries on Reef Point, none that had been dead more than a few days were ever noted,
though partly-eaten carcasses were not infrequent, so that the number of carcasses
seen at any one time includes but a small part of the whole number that have died.

During the months of July and August a great many females were watched as they
came from the water, and although in a few cases they were seen to go to the extreme
back of the occupied rookery-ground, none were seen to go beyond it.

(b.) Many pujjs lose their lives when stampedes occur, and many others when bulls
dash among the breeding females and their young to prevent the escape of a female
from the harem.

The scattered dead pups that are to be seen on all rookeries have been destroyed
in either of these ways.

(c.) A few pups probably lose their lives in the surf, or by being dashed upon
rocks, but the number must, under ordinary circumstances, be very small. As
early as the 18th July, and on many occasions afterwards, pups were watched while
in the water close to the shore, and though they were often thrown with great force
against the rocks, no pup was ever seen to receive the slightest injury. These causes
of death to young seals were noted by me, but are obviously insufficient to account
for the great mortality among the pups on Polavinaaud Tolstoi rookeries.

While standing beside the camera at Polaviua rookery on the 22nd July I counted
143 dead pups; they were of the same size as the living pups near them, and exhib-
ited no sign of having died of hunger, nor did it appear that they had been crushed
to death in a stampede, as those that could be seen were at or near the limit of the
rookery-ground. No estimate could be made of the number of dead pups that were
lying on this rookery, as the seals lay so closely together on its southern and eastern
slopes that but a small part of the breeding-ground was visible. Professor Everman
(a naturaliston United States Fish Connuission steamer "Albatross"), who was with
me at this time, and who counted 129 dead pups, thought, with me, that if so many
were to be seen at the outer edge of the rookery-ground, the whole number must be
very great, and about a month later (2flth August) I had ample proof that this was
the case. I revisited Polavina rookery on this date with a native, Neh-an Mandri-
gan. This man speaks and understands English very well, and was at this time on
his way to Northeast Point to take charge of the guard-house there. A great nuiny
dead pups were lying at the south end of the rookery, nearly or quite as many as
were to be seen on Tolstoi rookery. They were lying on a sandy slope between the
water and the rocky ledge that separates the lower from the higher parts of this
rookery-ground, and were rather more grouped together than at Tolstoi, from 10 to
100 lying quite close together, with spaces from 5 to 10 yards square between the
groups. There were individual dead pups scattered everywhere over this rookery
sm on all others, but on that part of it referred to above the number was very great,
and the ground on which they were lying was quite deserted bj'^ living seals. They
extended as iar as could be seen along the rookery, but as only the front sloping to
the south could be seen, the number beyond the point to the northward could not be
estimated. It was at the south end of this rookery that the British Commissioners
report having seen a few hundred dead pups in 1891. Photograplis taken the 5th
August show this ground with the breeding seals still upon it, but many dead pups
may also be seen. The native Neh-an Mandrigan was asked how he accounted for so
many dead pups; he replied that bethought they had been killed when the old bulls
were fighting, but a few minutes later said that he was mistaken, that their mothers
must have been killed at sea, and the pups have died for want of food. He at this
time told me that he had never seen so nuuiy dead pujis on any rookery before. He
had seen those on Tolstoi rookery in 1891, but had not visited that place in 1892.

Dead pups were first noticed by mo on Tolstoi rookery the 19th August, though
photographs taken by Mr. Mayuard on the 8th August, while I was on St. George

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 23

Island, show that at that date there were nearly, if not quite, as many of them on
this rookery as there were ten days later.

At the time I first noticed tlie dead i»nps I counted over 4,000, but they lay so closely
together that it was impossible to Judge what proportion of the whole number was
seen. I was told by the Treasury Agents on the island, and have no reason lor dis-
lielieviug their statements, that when this rookery was carefully examined late in
1891 as many or more dead pups were found among the rocks or other parts of the
rookery as were on the open space, and seen and specially remarked upon by the
British Commissioners in 1891. This being so, it is reasonable to assume that such
would be the case again this year. The dead pups noticed by me were on the same
ground on which those seen last year were lying, but were scattered over a larger
area, and in much greater numbers.

I accompanied the British Commissioners when they inspected Tolstoi rookery in
1891, and the date of my visit to that rookery this year coincided with tbeir visit to
it last year. Depending upon my memory alone, I had no hesitation in deciding that
there was a greater number of dead pups at that place in August this year than at
the same date in 1891, and a comparison since my return from the islands of thepho-
tograjdis taken during the two seasons proves that this is undoubtedly the case.

The pups when I first saw them appeared to have been dead not more tban two
weeks, and nearly all seemed to have died about the same time. Very few were
noted that were in a more advanced state of decomposition than those about them,
ami the dozen or so that were seen were probably pups that had died at an earlier
date, and from some other cause than that to which this unusual mortality among
the young seal, is to be attributed.

The photographs taken on the 8th August show that at that time there were
several groups of seals hauled out on ground on which the dead pups lay, but on
the 19th August it was almost entirely deserted by the older seals. This rookery
was revisited on the 21st August, and at this time an estimate was again made of
the number of dead pups. A large band of holhischickie on their way from the
water to the hanling-gruund at the back of Tolstoi rookery had stopped to rest on
the ground on which the pups were lying and hid a part of them, so that on this
occasion a few less than 3,800 were counted. On the 23rd August I again visited
Tolstoi rookery in company with Assistant Treasury Agent Aiusworth, Mr. Maynaid,
the photographer, and Anton Melavedotf. who is the most intelligent native on St.
Paul Island, and has charge of all the boats and store-houses belonging to the Com-
pany. This native acted as boat-st<-erer at the time the British Commissioners
visited Tolstoi rookery in 1891, and that I might learn his o])luion regarding the
relative number of dead pu])s for the two years 1891-92, I asked him to accompany
me on the occasion referred to above. When asked whether there were as many
seals in 1892 as in 1891, he replied: "More; more than I ever saw before." I, at the
tiuie, asked Mr. Maynard to pay particular attention to what was said, and he has
since made an affidavit to the above eti'ect, which is appended to this Kei)ort.

Sir Charles Russell. — Let that be realised, and see wliat the force
of that is in 1892, when pehigic sealino^ was prohibited, when there was
no pelajjic sealing; and, in corroboration of the fact that tliere was very-
close vigilance, will you refer to the bottom of page 147 where Mr.
Macoun goes on to state this.

Whites and natives on the island were unanimous in saying that the mother of
the ]iups found dead on the rookeries had been killed at sea, and that their young
had then starved.

That is a strong opinicn against us they say that the mothers had
been killed at sea and thereupon the pujjs starved; but what is the
answer? Mr. Macoun goes on to say.

During the months of July, August, and September I had frequent opportunities
of conversing with the officers of nearly all the ships stationed in Behriug Sea, both
those of the United States and of Great Britain.

You understand that ships of both nations, Sir, were policing the sea
at that time.

And all agreed that it was not possible for a schooner to have been in and out of
Behriug Sea in 1892 without being captured (see statement in Appendix (C.) of
Captain Parr, the Senior British Naval Officer stationed at Behriug Sea).

Then Mr. Macoun proceeds.

The cruises of the various ships were carefully arranged by Captains Parr and
Evans, and so planned that no part of Behriug Sea to which sealing-vcssels were
likely to go was left unprotected. Her Majesty's Ships "Melpomene" and "Daphne",

24 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

ami United States Ships "Mohican", "Yorktown", ^'Adams", "Ranger", "Rnsh",
and " Cinwiu", wore engaged in this work. No skins worth taking into acconut
were found on the small vessels that were seized, and most of those they had on
board were donhtless taken ontside Behring Sea, so that to whatever cause the
excessive mortality among these young seals is to be attributed, sealing at sea can
have had nothing to do with it in 1892.

My learned friend reminds me that the United States number for
that year is 5(!0.

Tlie Phesident. — Do you exchide the effect of tlie catches out of
Reining Sea, because there were very great catches out of Beliring
Sea?

Sir Charles Russell. — Obviously one must because you recollect,
Sir, the argument is, and, we think the well founded argument, that
these pn])s are born on the Pribilof Islands. Their case is that during
the period of nursing the pups, the mothers go some distance no doubt
from the Pribilof Islands, as they suggest. We shall consider that at a
later stage in another connection; but I find no suggestion of nursing
mothers going outside Behring Sea. You will see that that is an
answer, Sir.

The President. — Yes, that is an answer.

Sir Charles Kussell. — Now, lastly, I have to dismiss the subject
with this observation; whether the decrease is stated to be in 1877, as
some say, or in 1879 as others say, or in 1881 as the United States now
say, I have to put this to the Tribunal; if this theory of mortality in
the pups being caused by the death of the mothers at sea is well-
founded, you would expect that opinion to have been expressed some-
where or other between 1879 and 1890, or 1891 or 1892 — you would
have expected to find that theory put forward somewhere or other by
some ofiicial or other. Now, I will call upon the United Stales, when
their time comes, through my learned friend, Mr. Phelps, to show any
report suggesting that as a cause till the later period when the matter
is ]iractically, so to say, in litigation between the parties.

Nay more, in 1890, when Mr. Elliott is sent to the island for the pur-
pose of reporting upon the whole condition of the islands, and of the
seal race, is it conceivable that if this had been in the minds of resp(m-
sible persons on the islands during his visit in 1890, that depletion was
largely caused by the death of pups, and the death of pups was caused
by pelagic sealing, that that would not have beeu stated to him, that
he would not have tried to find out the cause for himself, and yet we
have the fact that from the beginning to the end of this most careful
and elaborate report of his, there is not a suggestion of the kind. What
makes that the more remarkable is, it is not merely a kind of official
rei)ort, but he has appended to his report the observations which, from
day to day, and from place to place, he records in his diary, and repro-
duces that as an appendix to this report of his, yet there is an entire
absence of any suggestion as is now put forward. I submit, therefore,
without any hesitation, Mr. President, that it is demonstrable that
pelagic sealing could not have accounted for the sudden and great and
marked depletion of the seal race which is said to have existed.

Now what have we against all this argument? Absolutely nothing
except the affidavits or depositions or statements of certain Aleut wit-
nesses, natives on the islands and others, made in 1892, 1 think — either
1891 or 1892, but I think in 1892, and if the opinion had been present
to the minds of these persons at that time, it is inconceivable that they
would not have made those statements to some of the official represent-
atives of the company or of the United States. I am speaking of
witnesses on the spot. I am not shutting my eyes to the fact that

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 25

there are numerous statements of persons who express as a matter of
opinion that the deaths are caused in this way and that way, but these
are persons who simply find themselves unable to liud auy definite
cause for this marked mortality.

I therefore, come to the next point, if pelagic sealing is shown to be
utterly inadequate to account for this depletion for this attack upon the
sealeries we must look for the causes of that depletion and the results
of that attack in other directions. In what other direction? Well, I
say we find the case carelnlly and elaborately explained in the report
of Mr. Elliott. I do not forget that my learned friends have made
some etforts to discount the value of Mr. Elliott's testimony. I am
sure the Tribunal will ju<lge by the value of that report, by its intrinsic
merits, and by the view that they take of the contents of that report,
whether or not they are hasty opinions, or whether or not they are not
careful results of a conscientious man trying to accunuilate all the
information that he can on this subject. So far as that report is a
matter of Mr. Elliott's opinions let my learned friends criticise it as
they please; but they av ill not be heard, and they cannot be heard when
he is recording facts. They cannot suggest that their own ofldcial, a
highly trusted ofiicml, and ireqnently employed, is coming to invent
statements against the interests of the country to which he belongs
and against the United States Executive Government which employs
him. It is the case, as I said to-day, of a witness called for the plaiu-
titf, who turns out to be a most valnable witness in the suit for the
defendant. They are now saying to him as Balak said to Balaam,

I called thee to curse miue enemies, and thou hast altogether blessed them.

It is not correct to say lie has altogether blessed them, because it is
one of the facts which goes to show the bona fides of this gentleman
that he is as strong against pelagic sealing as anyone can be in the
interests of the United States, but having gone to the islands with the
preconceived idea that pelagic sealing was the root of the mischief, he
is met by circumstances and by facts which compel his judgment to
the coiu'lnsion that it is not pelagic sealing mainly or principally, but
that the causes have been the wasteful, improvident, uneconomic man-
ner in which the islands have been administered. I have told you who
Mr. Elliott was, and where he was employed already, and I find that
he is the author of a number of works upon this subject.

He may theu well be described, as he was described by Mr. Goff the
Treasury Agent, and by Mr. Blaine in effect. Mr. Golf whose testi-
mony is the more important, because he was with Mr. Elliott on the
islands in 1890, and he makes no report, and makes no afHdavit which
is forthcoming to countervail the report of Mr. Elliott. I find on page
148 of our printed argument, and I will not trouble you to do more
than take a note of it, a list of the works published on this subject by
Mr. Elliott. They are nearly all, or a great many of them, published
by the Washington Government.

N" 1. Report on the Prihilof group or Seal Islands of Alaska in 1873. (Washing-
ton Goveruuient Printing Office.)

N" 2. Report of the Secretary of the Treasury concerning the waste of seal oil,
and the "natives" of the Pribilof Isl.inds, and the brewing of quass. (H. R. 44th
Congress, first session. Ex: Doc: n" 83 pp. 103 and 104.)

N" 3. Kepnrt upon the condition of affairs in the Territory of Alaska. (Wash-
ington Government Printing Oltice, 1875.)

N" 4. Ten years' acquaintance with Alaska, 1867 to 1877. (New York. Harper
Brothers.)

26 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

N" 5. The Seal Islands of Alaska. (Washingtou Government Printing Oflice,

1881.)
N" 6. Report on the Seal Islands of Alaska. (Washington Government Printing

Office, 18X4.)
N° 7. Our Arctic Province.

This Gentleman has a right, I think, to be heard, and to be treated
witli respect when heard.

Now I have this volnme before me, and before I call attention in a
very cursory way to it, because I endeavour to follow the lines I have
laid down for myself at the beginning-, namely, to treat this question
in the broad outline, putting upon my learned friends the res])onsibility
of dealing with it, as it must be dealt with in detail — before I call atten-
tion to that report there are one or two dates in connection with it which
I think it is exceedingly important you should have in your minds.
You will recollect that Mr. Elliott was appointed by a Statute of Con-
gress for the purpose of making the report which is before you. He
makes tliat report in Washington on the 17th November, 1890. It lies
in the Government Office. It is not published. It is not printed. One
does not need to conjecture the reason.

The reason is obvious: it did not suit the purposes of the United
States in the contention in which they were engaged; but on the 4th of
]\lay 1891 there appeared an extract from this Keport in the Cleveland
Lender. It is so long ago since we had the discussion about the admis-
sibility of this Keport, that you. Sir, will no doubt have forgotten the.<e
fads though they were then mentioned, but the dates are very signiti-
cant. On the 4th May 1891 the extract appeared in the public press.
If it had not appeared in the public press, it would have lain perdue,
and we wouhl have known no more about it.

At that time a resjiectable gentleman, Mr. Stanley-Brown, was at
Washington, and on that very 4th of May Mr. Stanley Brown goes to
San Francisco and later in the month of May leaves for the Islands.
In fact he leaves for the Islands on the tilth May and arrives at
St. George's on the 9th June. He left on his return on the liTth
September 1891 and reached San Francisco on the 2nd October 1891.
I pause for a moment. We have him back safe and sound in San
Francisco on the 2nd October 1891. First of all is it an unfair assump-
tion that Mr. Stanley-Brown had Mr. Elliott's report, was told of it,
if not furnished with a copy of it, was told its pur]iort, was sent
out with the view if he honestly could of counteracting its effect,
and, if he honestly could, of arriving at different results from those
arrived at by Mr. Elliott. He gets bflck on the 2n(l O'^tober 1891,
but from that day to this we have no report from Mr. Stanley-Brown —
none whatever. We have indeed two affidavits, one dated the 28th
March 1892, and the second the lOth December 1892. I will not go
into those two affidavits, but I will ask you when my learned friend is
dealing with the precise definite clear statement of fact advanced by
Mr. Elliott to ask yourselves, if I may resi ectfully so suggest, as you
go along whether Mr. Stanley-Brown, as he indulges in a good deal, I
admit, of oi)inion which points in a direction different from that of Mr.
Elliott, — whether he challenges any of Mr. Elliott's facts, and gives any
circumstances or particulars to support him in contradiction to the
views of fact advanced by Mr. Elliott.

Now bearing in mind, Sir, that though we are now told there was a
marked decrease observed in 1884, some as I have said say earlier, in
1877 and 1879, yet that up till the year 1889, the reports from the islands
had been of the most glowing character. I will not stop to refer to
them. As late as 1889 there is a report of Mr. Tingle giving a most

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 27

glowing description of the way in wliich the seal race has flourished on
and iu the neighbourhood of the Pribilof Islands.

It is with these statements before him, and the further statement that
pelagic sealing is begininug to make a formidable play or show iu the
neighbourhood of Behring Sea, that Mr. Elliott goes to the Islands.
Now I have said I am not going to read this report, because it would
take me a long time to go through it, and to go through it thoroughly,
as it must be gone through thoroughly, but I will epitomize the points
to which he refers. He'recoguizes pelagic sealing as a contributory
cause of the mischief, but he does not stigmatize it as the main cause
of the mischief. He attributes the depletion which he observes to the
excessive killing of males, to the injurious system of driving, to the still
more dangerous system of redriving again and again the same seal, and
he arrives at the conclusion that the drives should be so managed that
the seals actually driven are killed. He points out that whereas under
the older state of things when he was visiting the islands in 1873 and
1874 it was not necessary ordinarily speaking to turn back as it was
called more than 10 to 15 per cent of the entire number sought to be
driven — that so reduced was the condition of things that they had to
be driven and driven again and redriven and turned away from these
drives as much on some occasions as 85 %of theentirenumber— I believe
I am understating it now — it was as much as 90 per cent as my learned
friend reminds me in some cases. He points out what the result of this
is. He points out that the result of that driving is to cause the death —
I think the expression is — " of countless thousands " — he points out the
further result is, as regards those surviving, that in consequence of the
cruelty to which tliey were subjected, so far as they were nudes, it was
pernjanently to injure if not destroy the use of those males for the pur-
pose of procreation.

iSTow these are the results at which he arrives, clear and distinct —
not vague opinions, but perfectly justitied, as I submit the Tribunal
will see wlien they come to examine his report by facts and circum-
stances which he vouches.

I wish to say a little more about this. The system pursued now and
which is claimed to be the only proper system is, as the Tribuiuil will
recollect, the killing of males only. We submit that that, as it has
been carried on, is not a sound principle and how my learned fi lends,
with that marked devotion which they profess for tlie law of nature,
could have found it in their hearts to justify it I do not understand.
This is an admitted fact that nature iu its arrangements produces an
equal number of males and females — that is the law of nature. Is
it to be said that that law exists for no purpose whatever. So is it to
be said that there was net some wise purpose in dealing with animals
ferw naturae in these balances of the two sexes— I speak of animals
ferw naturce only. — If you are dealing with animals domesticated or
tamed, so that you can make judicious selection of the best specimen
for the purpose of reproduction in dealing with such animals we are
able from long experience and observation to arrive at definite and
safe conclusions as to the productive capacity of the female or as to
the duration of the virile power of the male, and we may, by a system
of artificial rules, improve the breed, but where you are dealing with a
race admittedly /erce naturae incaiiable of improvement in the breed by
the art of man, dealing with a class where you cannot select the best
specimens of males and females for the puri)ose of reproduction, where
you are practically in ignorance, for that is one of the appalling facts
in this case — the amount of ignorance, and very little is known about

28 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

seal life even to-day — entire ignorance of even tlie length of the life of
a seal — entire ignorance, in any accurate way at least, of the length of
•reproductive power of the female — ignorance of how long the virile
[jower of the male for reproductive puri)oses will continue, yet they
have been going on disturbing that balance which nature had fixed
between these sexes and defending^ that as the only jjossible way in
which the seal race is to be dealt with.

Now in this connexion I wish to call attention again to those tables
very briefly. It is the only reference to diagrams which I shall trouble
you to make, but I must ask you to n^fer again to two of the diagrams
which are to be found at page 352 of the United States Case, which
will be found very useful, and if you will be good enough to favour me
by opening, so as to have them for easy reference table A and table 0,
those are the tables which relate to males. I may assume that each
member of the Tribunal appreciates these diagrams. I do not stop to
try to explain them. — I did yesterday try to explain them. This table
A is dealing with the normal conditions, apart from killing, of a herd
when it has got to a point of what I suppose may be called natural
equilibrium — that is to say, has got to the point which, looking to the
natural causes and natural enemies to which it is exposed, and the
supplies of food, and so on, is the point beyond which it would not
reach and to which it would not attain unless it were by the act of
man, or otherwise artificially interfered with. That is principle of the
diagram. They are in the coloured part and distributed as they would
be in such a herd. The green shows the yearlings to the left of the
first line. The green, so far as it is to the left of the figure 2, going up
the column, shows the two year olds; the pink to the left of the column
at the bottom of which is the figure 3, the three-year olds; then the four-
year olds, then the five-year olds; and the yellow, from 8 to 19 or 20
years of age; and each of those small squares represents 100; and the
sum total of the squares so coloured is 40,025 or say 40,000 odd.

Now you observe there that in the columns from 3 to 7 which repre-
sent the class of males which is to supply the future stock of bulls for
the purpose of reproduction, there is a very considerable number.
What the number is I will tell you, because it has been worked out very
carefully. Will you turn to diagram C? You will observe there that
the yearling and two-year-old columns, the green on the extreme left,
are the same as in diagram A. But in succeeding columns it shows the
condition of the same herd or stock of 40,000 under conditions described
as "properly regulated killing." And again, you will see the manner
in which the entire number is made up and how it is reduced. The
numbers are not shown on the face of that diagram, but the means of
computing the numbers are shown and it is easy to determine how many
seals are included under each class, or colour, of the diagram. Now
these figures have been worked out and they are very remarkable. In
the normal condition of natural equilibrium and apart from killing, there
would be, according to the figures there shown, 3,500 young bulls at any
one moment. — It is one of the assumptions in all these diagrams that
the seals have obtained their natural maximum number, no increase
being possible beyond this, and the same number dying each year that
is born in each year. — In the normal condition, therefore, we have 3,500
young bulls from 5 to 7 years of age, the breeding bulls in the same
normal condition 13,(520. That is the normal condition of things. Now
what is the condition of things under the system which is called normal
"under properly regulated killing!" Why it is this;

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. 0. M. P. 29

Instead of there being 3,500 young bulls to supply the place of those
that become incapable, there are 500 only and in the place of 13,020
breeding- bulls which the normal condition shows, there are 1,080 only.
There is a reduction therefore of the stock from which the future bulls
will come from 3,500 to 500, and a reduction of the breeding bulls them-
selves from 13,020 to 1,080. These are the figures upon the face of the
diagrams themselves. Can anybody doubt that that interference with
the natnral condition of things, that destruction of the young male
stock, that interfering with the proportion of the sexes, must have, as
Professor Elliott shows it nnist have had, a most serious and detrimental
effect. The consideration of how that is made out by him, would lead
me much wider and into more detail than I at all propose myself to go.
That my learned friends will deal with. Suffice it to say that, whereas
he insists that the proper condition is one in which the bulls, taking
their place upon the rookeries and awaiting the arrival of the cows,
have to fight for their harems, have to assert their rights by sheer force,
and so the principle of natural selection and survival of the fittest is
worked out: that in lateryears that state of things has entirely changed
and that the harems have grown proportionately to the bulls quite in
excess of what they ought to be — passage after passage and page after
page of this Report is filled with records to that effect.

1 have merely to contrast the state of things which he describes as
existing in 1874, and which other witnesses describe as well, where the
male seals were fighting and one endeavouring to assert its supremacy
over the other; and he describes the condition of things as entirely and
absolutely changed. This condition of things was one in which tlie bull
formed his harem, fought for his wives, and secured as many as he could
on the principle of natural selection. What is the condition of things
as it is now*?

I will read one passage, and one passage only because it is so expres-
sive, from one of the aftidavits of Mr. iStanley-Brown. It is the affidavit
set out in the American Counter Case, at i)age 385. I may observe
incidentally that, though Mr.Staidey-Browndoesnot say so, his affidavit
clearly shows he was fully aware of the conclusions that Mr. Elliott had
arrived at; because you will find that, though he does not put forward
his opinions as distinctly traversing the opinion of Mr. Elliott, he does
refer to them as statements made which he thinks are not well founded.
This is an illustration, the last statement but one on page 385.

Any statement to the effect that the occasional occurrence of large harems indicates
a decrease in the available iiaiiiber of virile males and hence deterioration of the
rookeries, should be received with great caution, if not entirely ignored.

That is a statement which Professor Elliott undoubtedly put forward.
This is reversing the order of nature as we generally understand it.

The bulls play only a secondary part in the formation of harems. It is the cow
which takes the initiative. She is in the water beyond the reach or control of the
male and can select her own point of landing. Her manner on coming ashore is
readily distinguished from that of the young males which continuously play along
the sea margin of the breeding grounds. She comes out of the water, carefully noses
or smells the rocks here or there like a dog, and then makes her way to the bull of
her own selecting.

^o"

It seems to be "Leap Year" all the year round on the Seal Islands!
And in the order of nature, that law which is so much respected by my
learned friends, the advances are supposed generally to come from the
males; but here is the ingeiiuousand i)erfectly honest Mr.Stanley-Brown
giving as a j)icture that which is the strongest corroboration of the
utterly demoralized and unnatural condition to which, under the man-

30 OEAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

agement of the United States lessees, because I do not suppose the
Executive of the United States knew very much about it, the Ishmds
had readied. It would be impossible, I submit, to select a stronger
passage in confirmation of the general results at which Mr. Elliott has
arrived than that passage which I have just read. My learned friend
is good enough in this connection to refer me to the monograph of Mr.
Allen, published in the Washington Government Printing Oflice in 1880,
where he gives the picture of things as he found it in 18(59 at page 385,
and what is the contrast between the two statements? You have heard
Mr. Stanley-Brown's ingenuous description, and this is what Mr. Allen
says.

General Foster. — I think you will find that is quoting Mr. Bryant.

Sir Charles Russell. — I am obliged ; I see it is in inverted commas.

General Foster. — Mr. Allen was never there.

Sir Charles Russell. — IS^o doubt, it was Mr. Bryant who was on
the Islands, I forget for how long.

General Foster. — For a good many years.

Sir Charles Russell. — Yes; and perhaps that makes it more val-
uable than the opinion of Mr. Allen, if Mr. Allen was not, as my friend
says, on the Island,

I begin at the bottom of page 382.

The male fur-seal attains its full growth and strength at the age of six or seven
years, when it weighs, at the time of lauding, from three hundred and fifty pounds
to four hundred; in exceptional cases a weight of four hundred and fifty pounds is
attained. The males acquire the power of procreation in the fourth year, and at five
years share largely in the duty of reproduction. The females bring forth young in
their Iburth year.

That difl'ers from the opinion of others, who say that it is in the third
year. Then he goes on to describe the arrival on page 384 at the bottom
of the page.

By the middle of June,

And this date is not unimportant with reference to another matter
which I shall have to describe, he says:

all the males, except the great body of the yearlings have arrived.

1 think I ought to read a little higher up, to explain how the bulls
proceed. At the top of page 384- he says this, which perhaps I ought
to read.

On their arrival at the island the full grown seals separate from the younger, the
former hauling up on the shore singly or in groups of two or three, separated by
quite wide intervals.

Then a little lower down he says :

It is only the " beachmasters", or breeding bulls, on the rookery that remain con-
tinuously in their places, for if they were to leave them tLey would be immediately
occu])ied by some other beachmaster, and they could regain possession only by a
victory over the trespasser. The struggle among the old bulls goes on until the
breeding grounds are fully occupied, averaging one old male to each square rod of
space, while the younger, meantime, find their way to the upland. During the lat-
ter portion of the lauding' time there is a large excess of old males that cannot find
room on the breeding places; these pass up with the younger seals and congregate
along the u])per edge of the rookery, and watch for a chance to charge down and
fill any vacancies that may occur. These, to distinguish them from the beachmas-
ters, are called the "reserves", while those younger than five years are denominated
by the natives " holluschucke ", a term denoting bachelors or unmarried seals. It is
from these latter that the seals are selected to kill for their skins.

By the middle of June all the nuvles, except the great body of the yearlings, have
arrived; the rookery is filled with the beachmasters; the reserves all occupy the
most advantageous position for seizing, upon any vacancies, and the bachelors spread
over the adjoining uplands. At this time the first females make their appearance.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 31

They are not observed in the water ia any numbers until they appear on the shore.
Iiuniediafel^ on landing they are taken possession of by the nearest males who
compel them to lie down in tlie si)aces they have reserved for their families. For a
few days the femnles arrive slowly, but by the 25th of the mouth thousands land
daily. As soon as the males in the, line nearest to the shore get each seven or eight
females in their possession, those higher up watch their opportunity and steal them
from them. This they accomidish by seiziug the females by the neck as a cat takes
her kitten. Those still higher up pursue the same method until the entire breeding
space is tilled.

And tlien he ffoes on to describe the fighting among them for the
possession. Will yoa contrast those two pictures?

Again, in 1874, Mr. Klliott, in his book which I have already referred
to on the seal Islands — the book published in 1881 at the Government
Press Printing Office says on page 35:

Between the 12th and 14th of June, the first of the cow-seals, as a rule, come up
from the sea; then the long agony of the waiting bulls is over, and they signalize
it by a period of universal, spasmodic, desperate lighting among themselves.
Though they have quarreled all the time from the moment they first landed, and
continue to'do so until the end of the season, in August, yet that lighting which
takes place at this date is the bloodiest and most vindictive known t() the seal. I
presume that the heaviest percentage of mutilation and death among the old males
from these brawls, occur iu this week of the earliest appearance of the females.

Then he, like Mr. Bryant, describes the organization of the seraglios?
at page 30. He says :

They are noticed and received
that is the females are —

by the males on the waterline stations with attention; they are alternately coaxed
and urged up on the rocks, as far as these beach-masters can do so, by chuckling,
whistling, and roaring, and then they are immediately under the most jealous super-
vision; but, owing to the covetous and ambitious nature of the bulls which occupy
these stations to the rear of the waterline and way back, the little cows have a rough-
and-tumble time of it when they begin to arrive in snnill numbers at hrst; for no
sooner is the pretty animal fairly established on the station of male number one,
who has welcomed her there, than he, perhaps, sees another one of her style in the
water from whence she has come, and, in obedience to his polygamous feeling,
devotes himself anew to coaxing the later arrival, by that same winning manner
so successful in the tirst case; then when bull number two, just back, observes bull
number one oft' guard, he reaches out with his long strong neck and picks up the
unhappy but passive cow by the scrutf of her's, just as a cat does a kitten, and
deposits her upon his seraglio ground; then bulls number three and four, and so on,
in the vicinity, seeing this high-handed operation, all assail one another, especially
number two, and for a moment have a tremendous fight —

and so forth.

If I were to enlarge upon this I should be led away from the line
which I have endeavoured so far to follow. One other cause, and not an
unimportant cause, Mr. Elliott mentions. But just see what is the
obvious result of this state of things which he describes — that unnatural
reduction of the young bull stock to one-seventh of its number in a nor-
mal condition — that unnatural reduction of the breeding bulls to some-
thitig like the same — between one-sixth and one-seventh of its normal
number in its natural condition. One expects to find the results which
are pointed out and which will be pointed out in detail, of the evidence
of useless bulls — bulls not having lost their sexual instinct, but, having
by driving and re driving lost their power of reproduction, liave become
incapaces res; and the increase which the evidence points to of the enor-
mous number of barren females, and so the birth-rate of the whole race
of seals is seriously injured.

Tlie other cause to which I was about to refer is raiding, but upon
that I oidy wish to say a word or two. With all their anxiety and their
care to cherish the seals, certainly if I am to rely upon the statement

32 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

of their own representatives and agents, the United States Government
has not afforded efficient protec':iou against raiding.

I will not stop to read these aathoritii'S, but I would ask the Tribunal
to take note of them. They are at pages 290 and 291 of the British
Counter Case. Mr. Taylor in 1881; Mr. Kimmel in 1882 — both agents
on the islands. Mr. Gliddeu from 1882 to 1885; Mr. Wardman in 188.');
Mr. Kyan from 1885 to 1887, and so forth. A note of their evidence is
to be found on the images I have already given. Then, Mr. President, I
submit I am now justified in saying that I have, so far, established two
things: That although 1 do not deny at all (and we never have denied)
that pelagic sealing has some operation — is a factor in the question of
reduction of seal life — that it is not the case with which we are dealing.
The main factor — the principal cause — is the mode in which the man-
agement has been carried on upon the islands, and the f;ict that regard-
less of warning the United States lessees have, over a series of years
gone on further and still further and yet further depleting the herd.
It is I think an expressive thing — a very significant thing — to look at
the figures of the killing upon the Pribilof Islands as they were pur-
sued under the Russian regime, with the system as x)nrsued under the
United States regime. Those figures are to be found in a convenient
tabular form, at i)age 132 of the Report of the British Commissioners;
and whereas during the Russian period beginning from 1817 down to
1867 the year of the cession — I have not got the numbers averaged —
anyhow the average is considerably less than 40.000. Considerably
less than 40,000 were killed when the Russian Government possessed
these Pribilof Islands. The highest year but one is the earliest year of
which we have actual record. In that year, 1817, it was G0,(>00 odd.
In 1807 it was 75,000, but in the intervening years the nund)er was
40,000; 150,000; 10,000; 6,000; 8,000; 10,000; 11,000; 26,000; 21,000;
34,000; 40,000; and so forth — an average far less than during the
American period.

Now let me pause here for one instant. It being clear that man can
do nothing to increase the breeding of the seals — nothing I mean in a
positive way. He can by leaving them undisturbed ; he can by abstain-
ing from killing them — but I mean except by negations he can i)osi-
tively do nothing to advance them. We admit therefore that when the
Russians had this management (and they had considerable ex])erience
in it), that they were taking as much on an average as they thought
right; but what is more noticeable in these figures is this — that they
have observed the necessity for varying the number taken, not treating
it on a uniform system as if you were calculating upon a crop of hay
which you mowed every year, and from which you expectt to get the
same result per acre — they regarded it as a period during whi(;h it
required absolute rest; so that you will find in the years 1835, is3fi,
1837, 1838, 1839, 1840, and 1841, the lowest number taken was (),000;
the highest 8,000. Again, in 1850, 1851, 1852, the highest number is
between 6,000 and 7,000; in 1855, 8,000, and so forth through the whole
period of their management. Then we come down to 1867, and in the
years succeeding the cession, we have that admitted serious attack
upon this race amounting to 242,000 in 1868.

In 1869 the killing amounted to 87,000; in 1870 to 23,000; in 1871 to
97,000; in 1872 to 101,000; in 1873 to 101,000; in 1874 to 107,000; in
1875 to 101,000; in 1876 to 89,000; in 1877 to 77,000; and so on, right
down to 1889, with the single exception of 1883, when 77,000 odd were
killed an excess over 100,000 per year. And let me observe this: that
whereas the Russian figures include the number of pups killed for the

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 33

purposes of the islanders during' the years from 1817 to 1837, tliat the
Uuited States figures exclude the number of pups killed upon the
island for the purposes of native food; and the average annual killing
of pups upon the island — I wish the Tribunal to realize this fact —
amounts to, as there stated, 4,()00 pups annually. It does seem to me
a curiously uneconomic condition of things if the seals were worth pre-
serving that the lessees were not made, as part of the conditions of
their bargain, to supply adetpiate food which would dispense with this
sacrifice of seal life which they profess to be so valuable.

Lord Hannen. — Does it appear what i)roi)ortion of the 1,G00 pups
are nuile, and what proportion are female, or is it indiscriminate"?

Sir Charles Russell. — They are iudiscrimiuate so ftir as we know
I think.

Sir Richard Webster. — They are male.

General Foster. — They are males of course — they are all young
males.

Sir Charles Russell. — That may be taken to be so.

General Foster. — I think Sir Charles is not aware of the fact that
we dispute this table of figures on this question.

Sir Charles Russell. — I think. General Foster, I may, quite
respectfully and courteously, say that I assume that everything that
tells against your argument, and your position, you do dispute; I am
not at all relying upon your assent to these figures.

Lord Hannen. — It is an addition, then, to the number of male pups.

Sir Charles Russell. — It is an addition to the number of male
puj)S killed. I thought they did not discriminate the pups. I take
the fact to be that the instructions and injunctions are that they shall
kill only male pups ; but whether those are accurately carried out, is
another matter, because we cannot lose sight of the iact that the
evidence of the fur dealers which has not been questioned as has been
apparent, shews, although it is against the ijolicy and orders of the
United States officials, that a considerable percentage of female seals
are killed on the Pribylof Islands.

General Foster. — The pup-skins never go to market.

Sir Charles Russell. — I am not, in this connection, talking of
pups at all — I am going to shew that even if the directions are given,
it does not follow that the directions are carried out, because as I said
from the Furriers evidence, which I read I am sorry to say a great
many days ago, it is shewn that of late years there was an appreciable
percentage — stated in tlie evidence of some of them I think to be from
10 to 15 per cent — I think one of them says 25 per cent — but up to 15
per cent at all events, of female skins in the Pribylofi" consignments.

ISTow, Mr. President, as my friend Mr. Foster has thought right to
inter[)ose to say that they dispute these figures, I must call attention
to the fact that from the year 1871 down to the year 1889, the figures
are taken from the document which I am now about to describe. On
page 134 the British Commissioners say this :

The figures for these years— that is 1871 to 1889— were taken from Correspoiideuce
relatiug to Bohriug Sea, Seal Fisheries, Farliameutary Paper [C. 0368], pp. 44-47,
and include all boals, otlier than ])U]>s. killed I'or any ])ur|iose. From 1870 to 1889
(both inclusive), 92,804 jiups were killed lor food, an average annual killing of 4,643.

There is the authority for it which Mr. Foster can examine for himself.

That, Sir, is at page 134 of the British Commissioners Report, so that
the authority for the statement is vouched. And if it be the fact that
the instructions have been literally carried out which enjoin the killing
of males, and the killing of males only, then this is an addition to the
annual depletion of the male life of the seals.
B S, PT XIV 3

34 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

I was proceeding, Mr. President to say that I have now got to a point
at which I am entitled to ask the Tribunal to say that pelagic sealing
is not — is shewn not to have been — the main canse of the injury which
the Commissioners both of the United States and Great Britain agree
has taken place in relation to seal life. The main causes are to be found
in the facts stated to which I have already briefly adverted, in that
Eeport of Mr. Elliott; and now I think that these circumstances ought
to have, as 1 am sure they will have, a very important influence on the
mind of the Tribunal in considering the Regulations which have, in
justice, in fairness, aad in equity, to be applied in the circumstances
which I have mentioned. I took the op])ortunity earlier, of saying that
the Treaty does not contemplate Regulations for the aggrandisement
either of the United States or of the lessees of the United States — that
is not the object of the Treaty. The object of the Treaty is declared
to be the preservation of the fur seal species. That is the object to
which the Regulations are to be addressed. To be preserved for whom ?
Here, Mr. President, I cannot but feel that the view which we urged on
this Tribunal at a very early part of this inquiry was one which, if the
Tribunal had seen its way to act upon it, would at all events have sim-
plified the discussion upon which we are now engaged. We thought,
and think, that the question of Regulations was not to be broached or
considered until the questions of right had been determined, and is
there anyone who has heard the course of this case and who having
heard this case — heard the proposition which my friend Mr. Foster, as
Agent of the United States, put forward on the subject of regulations,
who believes that if this question of right had been determined, as we
submit it must be determined — could any such suggestion as is to be
found in the precious paper read yesterday for one moment have been
put forward? We submit that thei'e is not a shred of a case left to the
United States on the questions of right at all. I am arguing. Sir, as you
know, upon the principle— upon the basis — that we have negatived,
and that your determination will negative the existence of any legal
right in the United States except the legal rights which they possess,
ratioyiesoU — as owners of the islands, and owners of the islands alone.

l^ow I wish to say a word or two (before I come a little more closely
to the question of Regulations) about the British Commissioners Report.
I adverted to this subject before. I do not intend to make any length-
ened reference to it now, but I will say this: that when my friend Mr.
Carter tliought it right to make an attack upon these Commissioners
and to make an attack even, in one or two passages, upon their good
faith, I think he had not read the mandate under which they were
acting, and I even doubt whether he had had leisure thoroughly to
master their Report itself. If he had read their mandate he would
have seen that they were called upon by that mandate to inquire into
any fact or circumstance touching seal life : that by their instruction
of June 1891 they were directed to ascertain :

1. The actual facts as regards the alleged serious diminution of seal life on the
Pribilof Islands, the date at which such diminution began, the rate of its progress,
and any previous instance of a similar occurrence.

2. The causes of such diminution ; whether, and to what extent, it is attributable.
{a.) To a migration of tlie seals to other rookeries.

{!).) To the method of killing pur-sued on the islands themselves,
(c.) To the increase of sealing upon the high seas, and the manner in which it is
pursued.

And, finally, in January of 1892 they are enjoined to consider in their
Report what Regulations may seem advisable, whether witltin the juris-
dictional limits of the United States and Canada, or outside those limits.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 35

I couteut myself with saying therefore, that as regards the area covered
by their Report they would have failed in tlieir duty if they had not
dealt with all the subjects tliataredealt with in their Keport, and when
an attack is made upon them because forsooth they do not " run-a-muck",
if I may use that vulgarism, against pelagic sealing — abused because
they suggest that a combined system of zone and close time and
licence will answer all reasonable purposes of protection of tlie seal
species — my friend forgets that Mr. Blaine thought that a 00 mile zone
round the islands without any close time would have been an ade(iuate
protection of the interests that were at stake; and that my friend Mr.
Phelps, whether intentionally or accidentally, I do not know, in his
printed argument states that the claim which the United States is
advancing is this. Having argued the question of protection, interest,
and property, at page 139 my friend says:

The inevitable concbisioa from tlieso facts is, that there is an absohite necessity
for the repression of killing seals in the water in the seas near the Pribilof Islands,
if the herd is to be preserved from extinction. No middle course is practicable con-
sistently with its preservation.

Therefore if no middle course is possible, the extreme course that my
learned friend suggests is that thei e is an absolute necessity to [u-event
the killing of seals in the waters near the Pribilof Islands if tlie herd
is to be preserved from extinction. I therefore think that the attack
upon the learned commissioners is not merited, not justified; and I can
say in relation to Mr. Elliott's report, that it is not possible to read
that report, as I have read it, and as I have read Mr. Elliott's — every
line of them — without seeing that there is a painfully conscientious
effort upon the part of Sir (Jeorge Baden-Powell, and Dr. Dawson to
put the j^ro.s' and conSj the considerations in favor of, and considerations
against ])articular views impartially and fully before the Tribunal by
whom it is to be used.

Now, I may have to come back to that again for one moment, but I
proceed to the consideration of the general conditions which I submit
ought to be observed in relation to regulations. Mr. President, I begin
by adniitting that according to the terms of the treaty there is no
authority in this Tribunal to enjoin rules to be observed upon the islands;
that is to say, this Tribunal has no legislative authority, if I may use
that word, to legislate directly for the islands; because I must admit
that the Article VII which deals with regulations, limits the question
of regulations for your arbitrament to regulations outside the territorial
limits of the respective governments. But while I admit that, I am as
far as possible from admitting that it thereby follows that you cannot
make regulations which shall be conditional upon the observance of
certain rules upon the islands, which is a very different thing; and I
hope to make it apparent that not only can you do so, but that you
would be failing in giving effect to the prime object of the treaty itself
if you did not do so.

Let me illustrate it at once. Mr. Elliott says in his report that a
period of absolute rest is necessary — not of pelagic sealing merely, but
a period of absolute rest on the islands. He says that witliout that rest
the seal race may not be saved from extermination. Your rules are to
be aimed at that preservation; and let me ask you — because it is an
absolute test of the soundness of the proposition I am advancing; I do
not say whether Prof. Elliott is right or wrong in that — but assuming
you should be of opinion that he is right, and that absolute ces;-^.ation of
killing on the islands is a condition of the preservation of the fur seal
species, am I to be told that you could make no condition in your regu-

36 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

latioiis as to pelagic sealing ? You are to make rules that are necessary.
A rule is uot necessary if it is utterly ineffective and utterly useless and
utterly insufficient; and therefore if the state of the case be — I know-
not what your opinion about it is — but if the state of the case in fact
be that if you proliibited pelagic sealing- tomorrow, but killing was to
go on on the islands, your pelagic sealing rules would not be worth the
paper they were written upon for the preservation of the seal species,
am I to be told that you have only the right to prohibit pelagic sealing"?
But we believe it is a necessary condition also for the preservation ot
the seal life that there shall be a cessation for a definite period of kill-
ing upon the islands too.

It seems to me it would put this Tribunal into a most ludicrous and
false position to suggest that that argument is not perfectly and abso-
lutely sound.

If, then, I have illustrated — and 1 do not know any answer to it — a
case in which it would be idle for you to make regulations which would
be ineffective and useless for the object in view without annexing con-
ditions, then I say it follows that you have the authority to annex those
conditions, and that if you believe, honestly and impartially and decide
as every one of you will, I doubt not, fairly between the conflcting
interests which are concerned, arrive at the conclusion that as a condi-
tion of any restriction upon the rights of the nationals of any country
upon the high seas, there ought to be an accompanying restriction with
a view^ to the i)reservation of seal life by definite regulations upon the
islands, that you have a perfect right to say, "our regulations are con-
ditional upon the observance of such regulations upon the islands".

There is a further question which 1 think ought to be considered,
namely, as to whether or not it is in your power, and if in your power
Avhether in the exercises of your discretion you ought, to make your
rules permanent or temi^orary. I do not dispute that you have the
power to lay down rules, inflexible as the laws of the Medes and Per-
sians. I do not dispute that you have the powder to do so.

Senator Morgan. — Still, Sir Charles, you would say, I suppose, after
this award had been made that the two Governments could dispense
with them if they chose to do so by agreement. We are not estab-
lishing a principle of international law, as I understand it.

Sir Charles I^ussell. — No, Sir; I quite agree with you.

Senator Morgan. — It is bound to be temporary in the sense that the
two Governments, by agreement hereafter, could dispense entirely with
them.

Sir Charles Russell. — I have no doubt they could. Sir, but one
can conceive a case in which the United States might take one view
and in which Great Britain might take a different view. I quite admit.
Sir, what you say, that of course the parties to an agreement, can, by
mutual consent, put an end to the agreement.

Senator Morgan. — But still these two governments could not abolish
any principle of international law by themselves.

Sir Charles Kussell. — No; Except as between themselves cer-
tainly not. We are not now upon principles of international law". Ot
course you understand we are now upon the question of expediency.

Senator Morgan. — I si>oke of that as an illustration, that is all.

Sir Charles Russell. — Oh yes; 1 know. I think this point is not
unimportant. Sir. I think it is very important, from whatever point of
view it is looked at. I do not think this question of whether the regu-
lations ought to be tenqiorary oi' permanent is a question which can be
said to be in the interest of the United States more than in the interest

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 37

of Great Britain, or vice versa. It is a serious thing to interfere with
the unrestricted freedom of the nationals of any power upon the hiij,h
sea. The tribunal will therefore be very slow, unless they are clearly
convinced of the necessity of doing it, of putting such restrictions and
if they think such restrictions should be put, they will naturally be
anxious to make these restrictions as light and as little harassing to
the nationals of other powers and to the commerce, I may say, of the
world, as they possibly can. And therefore, either way, it is not a
matter which can be said to be exclusively in the interest of Great
Britain or exclusively in the interest of the United States. The rules
may be found to be too stringent, and therefore require relaxation.
They may be found to be too lax, and therefore require further strin-
gency. But the point I was first upon is whether it is open to you to
make temporary rules. If the Tribunal was clear about it, of course I
should not proceed to argue it; but I do not know what views my
learned friends take upon thei>oint; and therefore I must submit very
briefly the views which we entertain. You are to make regulations
for the proper protection and preservation of the fur seal in or habitu-
ally resorting to the Behring Sea and you are to say over what waters
such regulations shall extend; and ttnally, the only other part of the
treaty which bears upon the matter is the provision which is to be
found in Article XIV, that

The High Contracting parties engage to consider the resnlt of the proceedings of
theTribnnal of Arbitration as a full, perfect and tinal settlement of all the questions
referred to the Arbitrators.

Lord Hannen. — Will you allow me to ask you a question? Ton
have said that there is general ignorance at the present time on this
subject. How could we fix upon any number of years which would be
sufficient? It is not for the preservation of the seals for say ten years
but generally for that preservation. Would it not be better that we
should make regulations under which information would be collected,
and which might form the basis of negotiations hereafter between the
two countries for the modification of any rules we may lay down?

Sir Charles Eussell. — I have a note of, and intend to make. Lord
Hannen, that suggestion in connection with the question of regulations.
I have a note to that purpose. I quite agree that that would be a most
important thing; but I was for the mouient, if you will allow me,
dwelling upon the question whether there was power to make tempo-
rary regulations. I will say a word about the expediency of making
them in a moment. I was meeting the argument which might be based
upon Article XIV, although I do not know that my learned friends
would feel themselves interested one way or the other upon this ques-
tion. I would only say — it is a short and a small point — that although
article XIV contemplateR that the result of the arbitration is to be a
full and final settlement of the questions, it does not at all follow that
temi)orary regulations would not completely answer that purpose.
Regulations even to five, ten, or what ever period of years should be
adjudged to be proper, would not be the less a final ending of the
present dispute, because that final ending is arrived at by the adoption
of a set of rules temporary in their organization, and not permanent in
their character.

That is really all I have to say about it. As regards the explanation
of it I quite agree with what Lord Hannen says; but it occurs to me,
with great deference, to submit to the gentlemen of this Tribunal that
that very ignorance that prevails, upon which I propose to say only a
word or two, points in the direction which can hardly be doubted, of

38 ORAL ARGUMENT OF SIR CHARLES EUSSELL, Q. C. M. P.

extreme caution in the imposition of rules, in view of the lack of defi-
nite information, the result of which it is inii)ossible to ])redict, with
anything approaching certainty by any person applying himself to the
consideration of this question. What do we find here"? A number of
questions in debate of the most elementary kind about these far-seals.
One is struck by the reading of this voluminous literature with the fact
that although fur-sealing pelagically and on land, has been carried on —
pelagically certainly probably from the earliest time — on land also for
more than a hundred years — that absolutely until the year 1891-92 no
one appears to have had any knowledge whatever as to what was the
migratory route of the seals. It a])pears to have been the result of
the discovery of the Commissioners from both countries sent out for
that purpose, Avho have traced in a rougli way, but not marked out
with that precision and that accuracy, which if it were possible
at all, could only be arrived at by prolonged, anxious and repeated
observations, extending over a great number of years.

Take another question. We have a general idea of the period of ges-
tation of the female — that it is between 11 and 12 months. Where are
the figures; where are the instances'? Still less have we any accurate
account of the breeding life of the female.

Again as to the bull — either as to'the duration of his life or as to the
duration of his powers. None.

Again we have the fact which in another connection 1 must refer to,
of the extraordinary abstention from food for long periods of time. It
is admitted that that does take place — admitted by my learned friends
and by us; it is common ground between us. It is admitted that the
bulls do not feed from the moment of their arriving upon the breeding-
grounds in May or June, until their breeding functions on the rookeries
are at an end, when in July or August they leave the islands — an amaz-
ing fact, a fact which also occurs in the case of other wild animals, the
walrus, the sea otter and I think some other species of the seal. But
how about the females in nourishing tlieir young? Upon this point,
which is in connection with a zone as to regulations, a very important
one, there the most flat contradiction between the views taken by those
arguing for the United States or supporting their contention and the
views taken by those who are representing the views or supporting
the views of the Government of Great Britain. When does the female
seal first take food, if it takes it at all; at what period in the life of the
pup? When is the imp self-sustaining? All these are questions as to
Avhich absolutely the Tribunal is in a state of comparative ignorance.

Mr. Gram. — Will you allow me. Is there anything which shows that
the number of male seals born each year is the same as the number of
female seals?

Sir Charles Russell. — Yes, Sir. I will refer you to that. The
evidence is that they are born in equal numbers, male and female —
taking an average, of course, of years.

The President. — That is not contradicted on either side?

Sir Charles Russell. — No Sir. It is common ground between us.

Mr. Carter. — It is assumed rather than proved.

Mr. Phelps. — We suppose it to be true.

Sir Charles Russell. — My friend Mr. Carter argued the case on
that basis and assumed it; and we have both assumed it, and there is
no evidence to the contrary.

Sir Richard Webster. — The United States counsel take that view.

The President. — Perhaps counsel on both sides will explain for us
a point in natural history, whether notoriously polygamous animals are
alsiO born in equal proi)ortions, male and female?

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 39

Sir Charles Eussell. — Deer for instance.

The President. — And yet we know they are polygamous.

Sir Charles Russell. — In every instance, so far as we know. In
answer to Mr. Gram I refer to page 451 Case of the United States, in
which the report of their Commissioners is set out. On that page they
say:

If a herd of seals be takou iu its natural condition, that is as not interfered with
by man, males and females will be found practii-ally equal in number, as the number
of births in a year of both sexes is the same, and we have no reason to believe there
is any great dift'erence iu the natural mortality of the sexes.

Mr. Foster. — That is a hypothetical case, in which you state the
fact.

Sir Charles Eussell. — It stands thus: that so far as I know— I
do not of course speak myself as an authority at all — but so far as we
know of the case of animals which may be said in any degree to be
analogous, or indeed in any class of wild animals, the proportions of
males and females are equal.

The President. — And yet there are a certain number of animals
which are notoriously polygamous aiul consequently each male sup-
ports or defends a certain number of females collected around him.

Sir Charles Russell. — As for instance deer.

The President. — What becomes of the superfluous male?

Sir Charles Russell. — He is killed off, I suppose, just as the super-
fluous female is killed off. A certain proportion is observed. It is the
principle of natural selection, the principle of the survival of the fittest.

The President. — That may be by natural means, or artificially. I
merely point out that question as one that may be of interest.

Sir Charles Russell. — I am afraid that I perhaps did not convey
my views clearly in relation to that.

I admitted that if you have got a race of animals naturally wild and
can tame them, so that you can substitute for the rude rules, if you
please, of nature, a principle of artificial selection of the best looking
females and the best looking males, and so improve the breed, and by
observation, artificially conducted, ascertain what the relative breeding
capacities of male and female are, then you may in the case those ani-
mals improve the breed then alter the relation of numbers; but in state
of nature you cannot interfere with those rules of nature unless you are
prepared to introduce an artificial system by which you can work out
the results on a certain basis.

But apart from the question of improving the species, which is
another question from that of preserving it, the question is whether in
the case of polygamous animals man disturbs the order of nature when
he brings about the destruction of superfluous males by his own means
instead of leaving it to the animals to fight it out.

Lord Hannen. — But then he adds his destruction to that of nature.

Sir Charles Russell. — I am afraid, Lord Hannen, that I inter-
rupted you.

Lord Hannen. — It is i^ast now. I was only going to express the
same idea which you expressed.

(Tlie Tribunal here adjourned for a short time.)

Sir Charles Russell. — I have still a few words to say. Sir, upon
the question of the general application of the character of the Regu-
lations before I come to any definite suggestion. And I was upon the
question whether there was authority in the Tribunal to make tem-
porary Regulations as to which I submitted tliere was, and I was then
considering the question of the exijedieucy of exercising the authority

40 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

SO to make tliem. I have not tlie book here, but 1 have sent for it, and
if it is not, as it probably is, in the library of the learned President, I
would ask him to peruse upon the subject of natural selection and on
the doctrine of the survival of the fittest, a book with which 1 have no
doubt he is generally familiar — I mean Darwin, and he supplies from
actual observation as well as from argument an admirable answer, if I
may respectfully say so, to thedoul)ts which the learned President was
suggesting. 1 am told that the book has arrived, but I have not had
the oi)portunity of refreshing my recollection with reference to the
passages by to it, so I will not stop, but will leave it to my learned
friend if he should think fit to refer to it.

Then there are other matters also to be taken into consideration,
besides the absence of anything like accurate information upon some
of the important conditions of seal life, pointing, as 1 submit, in the
direction of temporary rather than permanent Eegulations, and, fairly
considered, this is not an argument that would not be equally to the
interests of the United States for the reason I have already mentioned.
Further consideration in a possible change of circumstances which is
not at all an unlikely thing to happen may become necessary. Fashions
may change. In the case there are mentioned the elaborate efforts
which are ingenious and cost money, which the representatives of the
lessees made in order to create a fashion in seal skins, and I do not
know whether I have mentioned it before, but it is a fact stated to be
historically true, that when the Hudson's Bay Company were anxious to
get their furs into popularity in London — I am not sure that I have not
mentioned this before — they invited the co-operation of a celebrated
dandy of that day — no less a person than Beau Brummell, and Beau
Brummell was induced to accept the gift of a coat made of the skins
of martens, and he was able to induce his friend, the Prince Eegejit to
do the same thing, with the result that the particular skins in question
became very jiopular. We know the shifting of these fashions. Take
the case again of the beaver hat. It was once supposed to be a necessity
of civilization, but who wears a beaver hat now ? Why do not Miey wear
them "? Because they have an artificial substitute, so that one cannot
predicate with any kind of certainty what the circumstances may be
at any future time. Or again, the fact that the seal may leave the
place, because of some change of food supply in the broader ocean —
which may drive them closer to land and might interfere with some of
the great industries carried on in the United States as well as British
Columbia.

My learned friend, Mr. Eobinson, was perfectly right, that if there were
ten thousand Regulations forbidding the destruction of the fur-seals,
if they were found to conflict with any of those industries, the fur-seal
is inevitably doomed to go. All these considerations, as it seems to
me, point to the expediency of making not permanent hard and fast
rules which purport to operate forever but to the making of regulations
which would exist for a time sufficiently long to allow experience to be
matured, so that the future consideration of the problem, if it still
exists to be considered, should be approached in the light of fuller and
ampler and more detailed information than can now be presented to
this Tribunal, ft might possibly be suggested as an alternative that
while you make your liegulations apparently perpetual in their char-
acter, there might be reserved to either of the Powers to denounce the
Regulations after the expiry of a definite number of years, the effect
of which would be to remit the parties respectively to their original
position and therefore their original rights, whatever those rights were,

ORAL ARGUME^^T OF SIR CHARLES RUSSELL, Q. C. M. P. 41

■with the certainty that they wonhl aiiproach the consideration of the
position in which they then stood in the light of taller and more accu-
rate and a jnster appreciation of what the relevant facts are. I pass
from that general consideration. Tlie Tribunal will recollect that in
the correspondence previous to the Treaty and after indeed it had been
to a large extent reduced to the form which it ultimately took, that
Lord Salisbury desired to introduce a stipulation that the rules of the
Tribunal should be conditional upon the concurrence of other Powers,
and you will recollect also that the United States objected to that sug-
gestion and would not concede it, that Lord Salisbury did not insist
upon it as a condition of the Treaty, but reserved to himself the right
to represent the matter to tiie Tribunal. Now I wish to be distinct in
reference to that matter. I am not here at all asserting that the con-
currence of other Powers ought to be a condithm of the application of
your Pegulations. I have only to say in that connexion, however,
this, which I hope will be considered a just and i)rudent observation,
namely, that the Kegiilations ought to be of a character which will not
refjel, but which will rather invite the assent and cooperation of other
Powers.

Let me remind you, Mr. President, that the Treaty has an express
stipulation upon this point. It is the concluding sentence of Article
VII.

The Higli Contracting Parties furthermore agree to co-operate in securing the
adhesion of other Powers to such Regulations.

I think you have followed the position I take. I do not suggest that
the concurrence ought to be a condition precedent to your Eegulations
or to the enforcement of your Kegalations, but I do suggest the regu-
lations themselves ought to be such as will probably, from their
reasonableness, secure tihe assent and co-operation of other j)owers.

I will not dwell upon the point further beyond saying that, of course,
it is obvious that if you make a set of Regulations of a character which
would give a monopoly to the United States and exclude the nationals
of Great Britain from any share in the pursuit of the fur-seal that you
would be doing the very thing which not only would not invite the coop-
eration of other Powers, but which would suggest to the nationals of
other Powers whether, this being a fair tield for adventure and enter-
prise, they may not embark in it, and so the Executive Authority of
those particular nationals would have an interest not to co-operate,
but an interest to dissent from the observance of these rules.

I do not need again, of course, to point out that the rules which are
made within the limits of their authority by this Tribunal are rules to
which the Government of the United States and Great Britain must
pay honest, bofia fide deference and respect, and must seek to have
effect given to them by legislation, which is a necessary means of giving
effect to them; but and when all that is done, when^your Regulations
are framed, and when legislation in the respective countries has been
accomplished for the purjiose of giving eft'ect to them, neither your rules
nor the legislation of the United States or of Great Britain affects any
other Power in the world, or tlie nationals of any other Power in the
world. If they are reasonable Regulations, if tliey are Regulations
which, in the circumstances of the case, commend themselves to the
good sense and S])irit of equity of other Powers, they will concur in
them, and will co-operate in giving effect to them; otherwise not.

42 ORAL ARGUMENT OF SIR CHARLES RUfiSELL, Q. C. M. P.

Of course, the great argument of force might be replied to me in tliis
connection. It might be said, and with a great show of reason, that,
if Great Britain and the United States were standing side by side in a
dispute of this kind, it would be very difficult for any other Power to
resist or gainsay their will in this particular matter. Quite true; so it
would, as a matter of force, but as a matter of reason (which is the
domain to which I am now addressing myself), it is obviously a part, if
I may respectfully so i^ut it, of the duty of the Tribunal to frame Eegu-
lations which shall be reasonable in themselves and which shall recom-
mend themselves for acceptance by other Powers.

I need not say that it is the a/jp/ta and omega of my argument that
there is no right to exclude the nationals of other Powers from pelagic
sealing; that it is the right which I have been claiming not for Great
Britain or the nationals of Great Britain, or the nationals of the United
States, but for mankind, without any exception, of any Power, great
or small.

Lastly, and this is a very general observation, a general condition
touched upon early in my observations, that the Eegulations must be
marked, putting it respectfully, with a spirit of fair adjustment of
rights which expediency suggests in the circumstances of the case;
and, for the preservation of the fur-seal species, should be subject to
certain limitations and restrictions.

Now, Sir, I have said all that I desire to say on the subject of general
considerations, in the light of which the question of Regulations is to
be approached.

Now for a few moments I will ask the Tribunal to turn to the British
Commissioners' report. I am not going to dwell at any very great
length upon this report, but I think so far as I shall have of course to
criticise the suggestion of the American Commissioners, and particu-
larly the suggested scheme if scheme it can be called, put forward
yesterday evening. I wish first of all to see how the matter has been
dealt with and approached by the British Commissioners. First let
me make this clear, that these Commissioners, in the suggestion that
they are making are dealing with a scheme which shall be general in
its application. They are not dealing with a scheme under the treaty
or with reference to the treaty. They are asked to report upon the
condition of seal life in and in connection with the Pribilof Islands.
They are asked to report upon the cause of the injury which that seal
life is said to be suflering from, and they are asked to suggest what are
the steps which in their judgment ought to be taken to remedy the
state of things supposed to exist.

Senator Morgan. — All that was done. Sir Charles, if I remember
rightly before the treaty really was signed.

Sir Charles Eussell. — Quite true, Sir, but no doubt in view of it.

Senator Morgan. — Of course.

Sir Charles Eussell. — Quite so and what I want to guard against
is this, that you *find they make suggestions which would have no
application outside Behring Sea, for instance they will be found to have
made suggestions, and important suggestions, with regard to the Prib-
ilof Islands. I mention those subjects to show they had not the treaty
before them upon which they were placing any particular construction
and dealing with regulations pointed distinctly to the provisions of that
treay, but they are dealing with the matter upon the supposition — and
not an unnatural one as I conceive — that the United States w^ould have
been willing to concur with Great Britain in submitting the whole area
on and off the Islands to Eules or at least the consideration of Eules

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 43

wliicli should be, as far as was necessary, applicable both to the
Ishmds and the sea.

Now their report begins substantially at page 6 where they deal with
the general conditions of seal life and on page 7 under the head b. killing
on the breeding Islands; they deal with the state of things which they
have found and they euter into a historical review, at the bottom of
page 7 and on page 8, as to the measure of slaughter during the Rus-
sian, and during the period of the United States, control. I have
already given the figures and I do not stop to refer to them, but I
may observe in passing as regards killing upon the Islands which is
claimed as being discriminating, there is this to be said about it, it can-
not escape from this charge — I am not now going back upon the consid-
eration of whether it can be truly called discriminating — that I have
already dealt with as far as I propose to deal with it — but there is this
charge to be made against it and from which it cannot escape, namely,
that it is a killing carried on at the time at which in the case of rules
for the preservation of other wild animals those rules exempt those
wild animals from all interference, namely, during the breeding season.

That is the peculiarity of this beautiful system pursued upon the
Islands, namely, that at the very period when the race is engaged in
the work of reproduction, that is the very time at which the scientific
killing, which is open to no objection whatever, takes place upon the
islands, a system which in those conditions the British Commissioners,
I suppose in order to show how jjartizan and unfair they were, describe
as a system " transcendentally perfect", whatever that means. But
there it is. The killing is carried on at the very x)eriod when the system
of law in all countries in the world, — municipal law I am talking ot^ —
leaves the principal race or races of wild animals or birds wholly unmo-
lested, namely the breeding season. That entails the consequences to
which Professor Elliott in part refers to, of which we have abundant
evidence scattered throughout the whole of the case, of the disturbance
of the harems, of the mixing up of the young and the old, the stampedes
of the old involving the death of the young, the driving and redriving
from their getting mixed up in the way described. But so it is.

The President. — Is it shown that the fur is of lesser quality during
the breeding period — that the hair falls ott', for instance?

Sir Charles Russell. — That is the '' stagey" time, undoubtedly.
What I call the breeding time is later. The evidence appears to stand
in this way. The females have practically all arrived by about the
middle of June, — between the middle and the end of June; the great
bulk of them, I think it may be said, by the middle of June.

They very early after their arrival produce their young. I think the
evidence points to the conclusion, in point of fact, they do not seek
voluntarily the land until the suggestion of nature comes to them; and
they are, very speedily after their arrival, delivered of their young
and then, after a comparatively short time, impregnation is supposed
to follow — within a very short time after the delivery of the young.
The stagey condition is at a later period, July and August, but what I
called the breeding-time, and it was in that sense I was using it, was
this — I was referring to the whole period from the time of the pup
being born, till the time when the pup may be said, in some sense, at
least, to be self-sustaining — that is to say, taking to the water on its
own account, which generally happens within six weeks to two mouths
after its birth.

The President — In fact, the killing goes on during the stagey time.

Sir Charles Russell — Yes to a slight amount.

44 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Senator MorGtAn. — !N"ot of the animals engaged in reprodnction.

Sir Charles Russell. — JSTot as far as it can be avoided.

Senator Morgan. — But they are divided geographically from each
other by an instinct of nature.

Sir Charles Russell. — I assure You, Sir, I would not rely too
much u])on that, because the lines are not so very sharply drawn as all
that. There is a picture, if you turn to the diagram which faces page
22 of this report, which is a very expressive one, and I think, while, ol
course, it does not profess to be strictly accurate, it gives a very great
idea of it.

The President. — You mean the killing in June and July.

Sir Charles Russell. — Yes, the great killing is in the months oi
June and July. The earlier history, going back a good many years,
shows they used to get the killing all practically done, certainly, before
the end of July.

The President. — Before the stagey period.

Sir Charles Russell. — But undoubtedly of later years, from the
constant necessity of redriving, the period of killing has been extended,
but it is as substantially shown on page 22.

It is true, as Senator Morgan, said — 1 have not suggested anything
to the contrary. — that there are certain more or less clearly marked
lines of demarcation, if I may use that word, between the young kill-
able males and the others; but that is not very sharply defined, and
the evidence undoubtedly shows that a number get mixed up in the
herd, which have to be separated from the rest and diiven back. You
will remember that when I was dealing with the question of the alleged
incapacity of domesticity of the fur-seal, that I cited the case of a pup
called " Jimmie", which had been got hold of by a gentleman there, and
he described it as a pup which the cow had dropped while being driven.
So that they do get to a greater or less degree mixed up, although of
course the object is to prevent that mixing.

On page 10 of the Rei^ort, they dwell on the misproportion — the alter-
ation, I will say, of the proportion of males and females — very much as
Professor Elliott does, and citing Professor Elliott — they dwell upon the
large and increasing number of barren females; and in paragraph 50
of that Report, they mention that percentage of driving back, which
shows the condition to which the race had then ueen reduced. They
say in relation to these drives, the last sentence in this paragraph:

The proportion thus turned away, according to the report of the special Treasury
Agent in 1890, actually rose to ninety per cent of the whole number driven.

Now, it is a plain matter of arithmetic, if you drive 100 and only kill
10 of that hundred, that the other 90 are doomed to be driven and
re-driven; and nobodj- can tell exactly how often, but at all events
several times, before they meet their ultimate fate.

Then at page 11, they proceed to deal with the sealing at sea. They
note the fact — in a marginal note, and it is not necessary, I think, for
my purpose, to read the paragraph — that pelagic sealing is a further
draft upon seal life. They give its history and development, beginning
with independent native hunting, its growth, and then they mention
the fact, which is not unimportant in connection with what has been
said about 1884 and the marked decrease that was seen in 1884, that
the first vessei which entered Behring Sea for the purpose of sealing
was the " Mary Ellen", in 1884. That, I think, was an American vessel.
I should have said that was the first of the Columbian -vessels. Then
they deal with the decrease observed on the Pribilof Islands, and the
measures practiced to obtain a quota; and in paragraph 72 there is a

ORAL ARGUMENT OF SIR CHARLES EUSSELL, Q. C. M. P. 45

convenient reference to what I had intended to refer to except that I
did not desire to be longer than I could avoid, as showing the straits
to which they had then come, namely, that there Avas no curtailment in
the number killed. They kept up the 100,0U0. They say :

72. No such curtailment, however, occurred. The Company holding the lease of
these islands on fixed terms were not interfered with, but continued to take tlieir
full legal quota of skins without regard to the risk to seal life as a whole. Not only
so, but instead of rediicing the catch, the standard of weight of skins taken on the
islands was steadily lowered so as to include a younger class of seals under the des-
ignation of " kiilables". Instead of skins weighiug 7 or 8 lbs., those of 5 lbs. and
(as we have ascertained on excellent authority) even of 4 lbs. and of 3^ lbs. have
been taken and Avere accepted by the Company as early as 1889.

The further evidence that has since been obtained shows that the
standard of weight was lowered at a considerably earlier i^eriod; and
of course we say upon that that if the interest of the lessees had been
tlie i^reservation of the fur-seal species and not to make a profit for
themselves as against the rent which they had to pay the United States,
and if it had been a question of regarding the interests of the race, that
ought to have been a very clear and distinct warning which would have
suggested that which Kussian wisdom again and again suggested, as I
have shown from the iigures of killing during the Russian control,
namely, periods of comparative rest; because it is a very startling and
remarkable fact that whereas over the whole Russian period the aver-
age was considerably less^I Avill not pledge myself to the exact figure —
than forty thousand a year, the average from 1S(J7 down to 1889 works
out somewhere very close to the point of one hundred tliousand. And
indeed if you -take the exceptional slaughter, as I admit it to be, of
L*40,000 in 18G8, the full one hundred thousand would be in fact, I think,
maintained.

They then at the bottom of that page, in paragraph 74, sunnnarize
the causes of waste of seal life in the methods actually i)racticed upon
the Pribilof Islands. 1 will not read them. And then they proceed to
consider the allegations against pelagic sealing. We will see Avhether
they deal with this matter fairly or not. They say in paragraph 77 on
page 13 :

77. Against the methods of pelagic sealing two principal lines of criticism and ot
attack have been developed, and both have l)een so persistently urged in various
ways, that they appear to have acliieved a degree of recognition by the uninformed
altogether unwarranted by the facts, in so fav as we have been able to ascertain
them, tlujugh in both there is an underlying measure of truth. It is stated (1) that
almost the entire pelagic catch consists of females; (2) that a very large proportion
of the seals actually killed at sea are lost.

They then proceed :

78. It is undoubtedly true that a considerable proportion of the seals taken at sea
are females, as all seals of suitable size are killed without discrimination of sex.
This is, in part, however, a direct corollary of the extent and methods of killing upflto
the breeding islands, where, practicallj', in late years, all uuiks reaching the shore
have been legally killable, and where, as a matter of fact, nearly all the young
males which land have been persistently killed for some years, with the necessary
result of leaving fewer killable males in jiroportion to females to be taken at sea.

79. The precise bearings on the industry as a whole of the character and composi-
tion of the pelagic catch made along various parts of the coast and in Behriug Sea
are discussed at greater length elsewhere (^ 633 et seq.), but it may be here noted
that the great siirplus of I'emales, resulting i'rom the ijractice just alluded to, has
certainly rendered the killing of considerable numbers of these at sea less harmful
in its effect than it might otherwise have been.

"Less harmful than otherwise would have been" I may say means:
not only that it tended to restoie the balan(;e but also that a consider-
able number of the females so killed were barren females. They then

46 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

proceed. My learned friend Mr. Robinson, I think, entered upon this
yesterday, but I shoukl like to read this passage:

80. To assume that the killing of auimals of the female sex is in itself reprehensi-
ble or inhuman, is to make an assumption affecting all cases where animals are pre-
served or domesticated by man. Most civilized nations, in accordance with the
dictates of humanity as well as those of self-interest, make legislative provision for
the protection of wild animals during the necessary periods of bringing forth and of
rearing their young; but the killing of females is nuiversally recognized as permis-
sible if only to preserve the normal proportion of the sexes. This is the case in all
instances of game preservation and stock raising, and iu the particular example of
the fur-seal, it is numerically demonstrable that, in maintaining a constant total of
seals, a certain proportion of females should be annually available for killing. The
killing of gravid females must, however, be deprecated as specifically injurious, and
in any measures proposed for the regulation of seal hunting should receive sjiecial
attention.

Then they proceed to deal with the allegation of the percentage of
seals lost at sea; and in paragraph 82 — I read this yesterday and I
therefore will merely summarize wliat they say upon it — that the state-
ments are very vagae; that the statistics or figures given are liopelessly
confused; and confused in this way, that the number of seals fired at
is confounded with the number killed, and in other cases it is often
estimated that the number of rounds of ammunition disposed of repre-
sents the total number of seals that are actually killed.

I uuike one observation in that connection. I think one cannot but
be struck in this matter that while they were endeavoring to show, and
succeeded in showing, that a great many seals fired at were not cap-
tured, they do not show that the seals so fired at were either killed or
seriously wounded. In other words in a great many instances, they do
not show that they were hit at all. I have been struck also with this
fact it is true that the specific gravity of the seal taken as an animal, is
greater than the specific gravity of the water, and therefore that the seal
will sink; but I notice that some of the witnesses point out a curious
fact worth noticing in passing, that when the seal is hit iu the head,
which is where it ought to be hit by scientific marksmen, the effect is
that its head goes down first in the water, and in that way the air which
is already in its respiratory organs is preserved and so there is a certain
buoyancy given to it and it will float for a short space of time.

I see no reason to doubt that scientifically at all; but that is not the
point I was going to make allusion to. Where there is no such air in
the respiratory organs to afford buoyancy to the seal, it will sink if its
specific gravity is greater than that of the water. That may be con-
ceded; but after a certain time, as we all know, the i)rocess of decom-
position goes on, which thus occasions a fresh principle of buoyancy in
the dead animal, just as it is in the case of a human bodj^ In the case
of a person who has suffered death from drowning the body sinks, dis-
appears; but after the lapse of a certain time the body again floats,
^hen that process of decomposition has gone on, and in that way the
principle of buoyancy is illustrated. So with much inferior snbjects.
Dead cats and dead dogs, as we know, sink in the first instance, but
come to the surface again. So it onght to be, and so it must be. There
is no natural reason in the world why it should not be in the case of
the seals. The process of decomposition, of course, is slower where the
water is colder; but it goes on in the summer months. If this allega-
tion of this tremendous loss of life by killing and not securing seals
were true, one would expect to have some account of the presence of
large numbers of floating dead seals over the surface of the water. I
do not find there is any substantial evidence pointing in that direction
at all; and I cannot therefore but think that the evidence on this point
as to loss in that way is considerably exaggerated.

OKAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 47

Another matter that they point to which again is not nniniportant,
is that whereas there is a consensns of opinion aud evidence about the
more or less depleted condition of the islands, there is not the same
consensus of opinion as to the lesser number of seals to be found at
sea; which is rather a significant fact. It is common ground that the
numbers on the islands have diminished from their normal condition;
that there has been a marked decrease, and a marked decrease of par-
ticular kinds as to sex and as to age; but there does not seem to be
the same marked decrease in the number of seals perceived at sea; and
tlie Commissioners, not unfairly, as I suggest to the Tribunal, say that
that is one of the results of the system pursued upon the islands, that
these seals driven and redriven, as they have been, make their escape
to the sea, and do not return to the land. Except for the purpose of
breeding they do not require to return to the laud. I say that espe-
cially for the benefit of Senator Morgan because he thinks it is a neces-
sity of their nature that they sliould return to the island to get their
coat changed. I do not admit that that has been established as a sci-
entific fact at all.

Senator Morg-an. — Sir Charles, in that connection, it has occurred
to me that there must be some definite way by which these experts,
or so called experts, can determine the age of a seal, and that relates
somewhat to the color of its coat; for instance that two-year-olds are
not of the same color as four-year-olds. They probably get at their
results by observing the change in the color of the seals, and in the
characteristics of its coat.

Sir Charles Eussell. — I will tell you, without pledging myself to
be literally accurate, how that matter is upon the evidence. (Address-
ing the President) The Senator was asking me as to the evidence. Sir,
remarking with reference to the alteration of the i)elage, the age of
particular seals. The evidence, as I understand it, is in this iDosition.
When the pup is born, it is nearly black.

Senator Morgan, — And has no fur.

Sir Charles Kussell. — Or if so, very little. The impression is that
it has some downy fur ; but that may not be. It is nearly black. When
it gets older it becomes gray. Then when it gets into the yearling and
two-year-old and three-year-old class — I do not affirm positively — but
I am not aware that any distinction is pointed in the color of the coat
from two to three, four or five years of age; but when they get to an
advanced age, there are undoubtedly marked differences, and in the
case of males, one great difference is a hirsute appendage that it has,
its whiskers, etc. I will not commit myself positively to what I have
said, but I think, broadly speaking, that is about approximately cor-
rect. So far as the female is concerned, there is of course a difference
in size between a female of two years and a female of five or six years,
etc.; but I do not recall that there is any evidence of a difference in
the color of pelage between the female of two years old and a female of
greater age.

Senator Morgan. — I think Mr. Elliott, in his capacity as an artist,
has drawn those descriptions pretty vividly.

Sir Charles Russell. — In which. Sir; 1874 or 1890?

Senator Morgan. Between the ages of 3, 3, 4, and 5. I merely wanted
to call attention to it.

Sir Charles Russell. — We will see, Sir, if there is any more evi-
dence bearing upon it.

Senator Morgan. — Then there is a period when they, like the Queen's
Counsel, begin to wear Avigs?

48 ORAL ARGUMENT OF SIR CHARLES RUSSELL, q. C. M. P.

Sir Charles Eussell, — Oh yes; the Queen's Counsel wear wigs ;
and sometimes people who are not counsel at all wear them. But that
is not a case in point.

On page 17, Sir, they devote themselves — my friend Mr. Carter thinks
]nost impertinently — to the consideration of the interests involved.
Well, I respectfully think it very important. In paragraph 102, deal-
ing with the interests on shore and the interests at sea, they say that

the only basis of settlement wbieb is likely to be satisfactory and permanent is that
of mutnal concession, by means of reciprocal and e(|iuvaleiit curtailments of right,
in so far as may be necessary for the preservation of the fnr-seal.

And they go on to say that

the line of division between the shore and ocean interests is not an international
one.

That I have already dealt with, because I have shown by the figures
which I cited in answer to the question of the learned President the
other day, that up to a certain point, and in certain years, the number
of United States sealers exceeded those of Canada, although in the later
years the Canadian vessels had exceeded the other. Then in dealing
with the question of capital involved, they say, paragraph 105:

105. At tlie present time the actual value of the buildings, plant, and equipment
of the North American Commercial Couijiauy, on the Islands of St. Paul and St.
George, is estimated not to exceed 130,000 "dollars (20,000 1.). Adding to this a
further sum to cover other items of capital less directly connected with the islands
themselves, the entire invested capital would probably be over-stated at 200,000
dollars (40,000 1.) ; and it is not to be forgotten that the Companies leasing the seal
islands liabitually do a profitable retail trade in supplies, etc., with the natives and
others in addition to acquiring the seal-skins.

Then turning to the Canadian interest:

106. The estimated aggregate value of the British Columbian vessels employed in
sealing, with their equipment, as they sailed in 1891, was 359,000 dollars (72,000 1.).
It has been asserted that only a portion of this total, corresponding with the length
of the period in each year in which these vessels are actually engaged in sealiug,
should be taken as the capital invested. This statement is, however, as a matter of
fact, incorrect. The sealing- vessels are seldom used in or fitted for other em])loy-
ment, and nearly all of them remain laid up in harbour between the dates of the
closing and opening of the sealing season — that is, between October and January,
or February.

107. Adding to the above amount an estimate of the value of the United States
sealing fleet in tbe same year, which, it has been ascertained, exceeds 250,000 dollars
(50,0001.), and may probably amount to 300,000 dollars (60,0001.), an aggregate
amount of capital of about 6.50,000 dollars (130,000 1.) is represented by the combined
fleets.

The President. — Do those two paragraphs mean that there are
si)ecial boats built for the sealing at sea"?

Sir Charles Eussell. — Yes.

The President. — A s])ecial description of boats which would be
unfit for any other fishing?

Sir Charles Eussell. — Yes, Sir; that is what it means. I do not
think it would be correct to say they could not possibly be applied to
some other purpose if this was i)rohibited; but they are built with that
object, that design.

The President. — Perhaps you mean the small fishing boats that are
let down from the schooners themselves?

Sir Charles Eussell. — Oh no; it means the schooners.

The President. — The schooners themselves are specially built?

Sir Charles Eussell. — They are fishing schoonors — I used the
word boat, but not in the small sense — fishing schooners, specially
adaptable for this ])articular purpose, as 1 understand, but not unfitted
for other kinds of fishing, or to be used in other kinds of commerce.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 49

Lord Hannen. — I suppose as in the case of fisliing vessels of con-
siderable size, they are fitted for fishing, and though they could be
converted, it would be a considerable expense to convert them to other
purposes?

Sir Charles Eussell. — No doubt that is so.

Senator Morgan. — All these fishing schooners carry from five to
fifteen small boats, armed with men. The evidence is that the boats
go out and d(» the sealing.

Sir Charles Russell. — Oh, no doubt. They do not shoot at the
seals from the schooner really.

Senator Morgan. — Kot at all.

Sir Charles Russell. — The real sealing is done by the boats that
are sent out from the side of the schooner. That is quite true. I
may state the information which Mr. Tupper gives me, which I have
no doubt is correct. Tlie great majority of these schooners, probably
not all of them, are boats that come from the Atlantic side of America,
and that have been principally used for fishing on that side. They are
brought around to the west coast of America. There is, of course, a
great field for fishing on the west coast, but like a great n^any other
places where there are valuable products of that kind, the communica-
tion is so defective that if they caught fish, as there is no doubt they
could, there is no means of readily utilizing them to any extent; so that
the mere pursuit of the fishing industry, in the ordinary sense, of that
word, is not pro iit able.

The President. — There is no cod-fishing organized on the north-
western coast as yet"?

Mr. Tupper. — So far as the Canadian portion is concerned, the deep
sea fishing is not yet really developed.

Sir Charles Russell. — What I have said applies to a great many
of these schooners, not all of them, as Mr. Tupper has said. You are
aware, Sir, that railway enterprise may, in a few years change the
whole aspect of things there. The Canadian Pacific, which traverses
the whole of that continent at that point and has its terminus at Van-
couver, may in time with the further development of railway enter-
prise, make a very great change; and so regards Washington Territory.

The President. — You mian for the building of schooners'?

Sir Charles Russell. — ISTo; I was talking about the development
of fishing in the ordinary sense.

The President. — That is so as to allow these boats to be applied for
other fishing besides sealing?

Sir Charles Russell. — At some future time perhaps. They prob-
ably will not be fit when that time comes.

The President. — Our regulations must be framed before that time.

Senator Morgan. — The difficulty about fishing in Behring Sea is
that they have no sun-shine to cure the fish, and it is too far away from
the market to permit of the fish being transported to the market.

Sir Charles Russell. — That is, no doubt, the fact. I am not speak-
ing from my own knowledge at all, but from what others say; — the
difficulty is not really insuperable at all as regards the sun, because
they can preserve the fish, if there were a market for it, — (that is the
real difficulty) — quite sufficiently without any sun to dry it, if they
have the salt.

The President. — I suppose that is the real reason, — that there is no
market"?

Sir Charles Russell.— That is the real reason.

B S, PT XIV 4

50 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

The President. — Of course, a great deal of the fish on the North-
west Coast goes to support this enormous family of seals.

Sir Charles Kussell. — Of course; and as I understand on Wash-
ington territory, Columbian territory and in Alaska from the North
there is great promise from the great salmon rivers.

On page 19, the Commissioners discuss the "principles involved" in
the paragraph so headed. They j)oint out the necessity for protection
both on shore and at sea. They point out, in paragraph 118 which
excited my friend Mr. Carter's wrath, I think, the less danger at sea.

They say:

lu sealing at sea the conditions are categorically different, for it is evident that
by reason of the very method of hunting the profits must decrease, other things heing
equal, in a ratio much greater than that of any decrease in the number of sealis, aii(L
that there is therefore inherent an automatic principle of regulation sufticieut to
prevent the possible destruction of the industry if practised only at sea.

And, finally, they refer to some other reasons. In paragraph 111),
they say :

It Is, therefore, abundantly evident, if we judge by actual experience —

(that is historically true, I submit)

control of seal life beginning and ending with protection at sea, either partial or
absolute, can do no more than palliate, and certainly cannot materially lessen, the
danger to seal life as a whole, unless such control be devised and adopted in close
co-operation with agreed-upon equivalent measures on the breeding islands.

The President. — I suppose that is one of the points upon which
the American Commissioners differed and dissented from the British
Commissioners.

Sir Charles Russell. — I have no doubt they would have differed.

The President. — They have not stated it.

Sir Charles Russell. — They have not gone into it at all. I say
that that is historically true, because we do know that pelagic sealiug,
by itself, has never seriously threatened seal life in any quarter of the
globe.

We know, on the other hand, that uncontrolled, or, as Senator Mor-
gan preferred to call it, "indiscriminate slaughter" on land, has been
the cause; and if it be answered by the United States, as it may be
answered, that they are wise men who will not kill the goose that lays
the golden egg — that self-interest will suggest their doing the proper
thing on the island — our answer is that their self-interest was as great
20 years ago — 10 years ago, as it is to-day, and yet — in face of that we
have this — if you accept the report of Professor Elliott which I have
endeavored to justify, without going into the details upon it — (it will be
gone into in fully hereafter) — that they have pursued upon the island
the most pernicious and most destructive system indicting a very
grievous injury upon the seal life, from which it may be long before it
ultimately and completely recovers. Therefore we have no such pro-
tection merely resting upon their motives of self-interest; they must
continue, whatever their own personal desires may be, to vary that
course of dealing if they would make it a source of revenue to a great
and prosperous community. I believe it is supposed that they have so
much money in their treasury as to know not quite what to do with it,
but if they continue to let the Islands to the sealers those lessees will
pursue their own personal ends, looking to the limited interest they
have got in the subject matter, however stringent Regulations may be
devised for their control.

Now on page 21 the British Commissioners mention a fact which will
become important, which I mention now in j)assing. It is paragraph

OEAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 51

132. In tlie second sentence in that they are still dealing- with Pribilof
sealing and they say:

In pelagic sealing, tlio weather is usnally snch as to iudnce a few vessels to go ont
in January, but the catohes made in this month are as a rule small. In February,
March, and April the conditions are usually better, and larger catches are made. In
May and June the seals are found further to the north, and these are good sealing
months; while in July, August, and part of September sealing is conducted in
Behring Sea, and good catches are often made till such time as the weather becomes
80 iincertain and rough as to practically close the season.

I think that is the nearest approximation to a precise statement as
to date. As a matter of fact it may be taken — I do not think this will
be seriously at all disputed — that as far as pelagic sealing is concerned,
the weather makes it impossible to carry it on after the early part of
September in Behring Sea. It is a pursuit wliich needs calm weather
for its successful operations, and after the early part of September it is
practically at an end.

The President. — Do those indications relate to the first months of
the year — do they relate only to the Beliiing Sea or to tlie Pacific?

Sir Charles Eussell. — Those earlier ones relate to the Pacific.

The President. — I should think so the months being February,
March and April.

Sir Charles Eussell. — Those are all south of the Aleutians.

The President. — They go later into Behring Sea, I am told.

Sir Charles Eussell. — They go later into Behring Sea.

Mr. Justice Harlan.— They commence to go into Behring Sea some-
time in early April.

Sir Charles Eussell. — I think there may be certainly a few such
cases.

Mr. Carter. — Bo you mean the seals, or the sealers?

Sir Charles Eussell. — The sealers I am speaking of.

Mr. Carter. — They are there in July.

Sir Charles Eussell. — No; they are earlier than that.

Sir EiCHARD Webster. — There is abundant evidence of their being
earlier than that, in the United States books.

Sir Charles Eussell. — I do not quite follow this.

The President. — The sealers, 1 was referring to.

Sir Charles Eussell. — The sealers go into the Behring Sea, some
of them, as Mr. Justice Harlan pointed out, in April; but some of them
in May.

Mr. Justice Harlan. — I meant the seals; they turn northward and
commence to enter Behring Sea in April.

Sir Charles Eussell. — That, Sir, is quite true.

Now, on the next page, these i^artizan and unfair Commissioners
having stated those circnmstances of those earlier months, just let me
point out the clear and emphatic way in which, (where they think them-
selves warranted), they express themselves about the effect of the
jpelagic catch in the early Spring.

On the top of page 22, there is a paragraph bearing on the point which
Senator Morgan was good enough to mention a few minutes ago; it is
in conformity with the evidence wliich will be referred to in detail.
They say in paragraph 134.

With seals killed at sea, the skins are never found to be in a "stagey" condition,
as has been ascertained by inquiries, specially nuide on this point, and there is, there-
fore, no naturally definite close to the time of profitable killing, snch as occurs on
the islands. The markedly "stagey" character of the skins at a particular season
appears to be confined to those seals which have remained for a considerable time on
the land.

52 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

I am remiiided by my learued friend that there are some instances,
(but I think so very few as to make the exception to the rule), of some
damaged skins being taken at sea.

The President. — That woukl confirm the observation of Senator
Morgan.

Sir Charles Russell. — I shouhl have thought, with great defer-
ence, it was the other way, — that if it be the fact that it is only a very
rare exception to find a "stagey" skin on a seal taken at sea, it would
seem to me to point in the opposite direction.

The President. — That shows that they nuist go on land, as you say,
to shed their hair when they are in a " stagey" period.

Lord Hannen. — What is meant by a "stagey" condition*? Is it
merely shedding their hair, or is it not something like an ailment of the
skin?

Senator Morgan. — Thinness is the cause of their shedding their
hair.

Sir Charles Russell. — I really do not speak with confidence about
it, but I have understood it is very much like the case of another ani-
mal which I understand much better than the seal, — the horse, — it is
like the shedding of the coat, only in a more aggravated character;
namely, the disappearance of the older hair and the older fur, and the
formation of a younger undergrowth.

The President. — With all hairy animals, that is the case.

Sir Charles Russell. — But of a more aggravated and strongly
marked character.

The President. — But can that go on in the water? It seems no,
according to this.

Sir Charles Russell. — With great deference, not so. I tried to
explain this the other day — it is surrounded in mystery. It is one of
the many points in connexion with the seals that we do not know a great
deal about. I endeavoured to explain it the other day by saying this:
in accordance with what we know of most animals, some process like
stageyness or shifting of the coat occurs with all these animals that are
fur-bearing.

The President. — That is general observation.

Sir Charles Russell. — That is so; but my suggestion was (and
probably it will be found to be the correct one) that in the case of seals
which do not go on land, that the change of process is more gradual,
so as to be less observable — that it takes place in the water more grad-
ually so as not to be so observable. When I say "gradual", it is with
great deiereiice to what Senator Morgan said — that there is not any
evidence to warrant the conclusion — I mean to satisfy one's mind to a
fair conclusion that it is a necessary condition of the existence of the
animal, that they all go on land; and, exempli gratia, when I say it is
conclusively proved by the evidence which I have referred to more than
once of Mr. Bryant who states that when the female pup leaves the
island as a pup, it never returns to the island again, until it comes to
deliver its tirst young.

Mr. Phelps. — Who says that?

Sir Charles Russell. — Mr. Bryant. I will read the passage.

Senator Morgan. — The question would be, how would you come to
find that out?

Sir Chaeles Russell. — How is anything found out?

The President. — I think we must come to the conclusion that there
is a great deal that is doubtful as yet as to these animals.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 53

Sir Charles Russell.— Undoubtedly. What is not known about
tlie fur-seals would fill volumes, but I was following this up. On page
22, paragraph 138, you will see the straightforward way in which these
Commissioners meet the allegation by admitting it. As to what is the
allegation which can truly be made against pelagic sealing they say, in
paragraph 137 :

An equitable basis of protection is therefore not to be found in the adoption of
any simple ami corresponding close season, including a part of each year applicable
to both shore and sea alike; but as pelagic sealing might easily be regulated by the
adoption of a close season, while shore sealing might with equal facility be governed
by a limit of number, it seems probable that some compromise of interest may be
arrived at by a combination of these methods.

If certain'mouths should be discussed as a close time for sealing at sea, it becomes
important to inquire which part of the season is most injurious to seal life in pro-
portion to the number of skins secured, and to this inquiry there can be but the one
reply, that the most destructive part of the pelagic catch is that of the spring,
during which time it includes a considerable proportion of gravid females, then
commencing to travel on their way north to bring forth their young. It is on similar
grounds and at corresponding seasons that protection is usually accorded to animals
of any kind, and, apart from the fact that these seals are killed upon the high seas,
the same arguments apply to this as to other cases.

Now if you refer back to the paragraph as to which you asked me a
question a moment ago — paragraph 132 on the previous page — the
time they are there referring to, and the catch, is in the month of Jan-
uary, when they are small; and February, March and April, when they
say they are much more considerable.

The President. — Yes, but they say the most destructive part of the
pelagic catch is that of the spring.

Sir Charles Eussell. — That is w^hat I am pointing out.

Lord Hannen. — Do not they mean destructive in the sense of it
destroying gravid females?

Sir Charles Eussell. — That is it.

The President. — That seems to imply that that is a reason why it
ought to be closed.

Sir Charles Eussell. — That is undoubtedly what they say. 1 am
calling attention to it — as I should if I had no other reason for it — in
order that the Tribunal may have a fair idea of their Eeport. I am
calling attention to this as proof of the straightforwardness of the
British Conmiissioners — that they are admitting that the pelagic catch
which takes place to a small extent in January, to a greater extent in
February, March and April, is the portion of the catch which includes
the greater proportion of gravid females, and therefore is, in propor-
tion to the catch, more destructive.

The President. — The pelagic catch is that of the spring. That
would include — the end of the spring — the month of May. They pro-
pose a new close season, on page 25, from the first of May.

Sir Charles Eussell. — No, Sir, as they say, in May and June the
seals are found further North, and these are good sealing months.

The President. — At page 25 they say the close season is to be pro-
vided from the 15th September to the first of May. It might be said
to be those three months during which sealing is destructive.

Sir Charles Eussell. — I think I shall show you when I come to that
part of the case, that that is not so. By that time the great bulk of the
gravid females have got very nearly up to the Behriug Sea.

Mr. Justice Harlan. — By the first of May.

Sir Charles Eussell. — Well, I do not say they have all got into
the Behring Sea by the first of May. However, it is rather anticipa-
ting what I have to say on that subject of regulations; but still we con-

54 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

sider tliat a date may be fixed for tlie commencement of the sailing of
sealing vessels which wonld prevent their overtaking the gravid females
going to the breeding islands.

The President. — You consider they have all passed into the Behring
Sea before the first of May?

Sir Charles Russell. — ISTo, 1 think not. Indeed, this is a very con-
venient opportunity for emphasising my i)osition in this regard. I have
pointed out that these comnussioners were dealing with the question of
regulations, both on land and at sea everywhere for the fur-seal preser-
vation. They were arguing u])on the general assumi)tion that regula-
tions may and ought to be made affecting both land and sea.

The President. — Both Behring Sea and the Pacific.

Sir Charles Russell. — Certainly both Behring Sea, the Pacific,
and the islands.

The President. — Yes, and the islands.

Sir Charles Russell. — They were not, as I have more than once
said, writing in view of any construction of the Treaty, even if they
had theTreat}^, in fact, before them. They were dealing with the ques-
tion generally; andassuming that the whole thing wasuuderone Power's
control, what would be the proper adjustment of regulations to apply
to the whole; but that brings me back to the question I referred to
yesterday, and as to which I wish to state distinctly what the position
of the British Government is, as to which Senator Morgan yesterday
rather challenged me.

The British (joverument are today as ready as they always have been
to deal with the whole of this question inside and outside Behring Sea,
the Pribilof Islands and the rest, but they decline to be parties so far
as they can refuse to be i^arties to an arrangement by which the whole
thing is to be preserved to the benefit of the United States, without
any concession or guarantee from the United States; and, therefore, it
was that I .submitted to you, admitting I conceded it to be a point most
arguable and difficult, as a matter for your consideration whether your
jurisdiction extended outside Behring Sea on the Treaty.

On the assum])tion that your jurisdiction does extend outside Behring
Sea I shall have to make some suggestion on that view presently. That
is our position and I think it is a perfectly just and perfectly fair posi-
tion. If there is to be no concession on the part of the United States
and the whole of the Regulations and claim of the United States were
simply to be directed to the preservation of the fur-seal for their benefit
and for their benefit alone, I do not know what we have got to arbitrate
about. It would have been a thousand times better to have admitted
all these questions of alleged rights as raised in Article VI. Let them
go back to the Ukase of 1799 or the Ukase of 1821 against which they
struggled so severely. This new scheme of proposals is but an asser-
tion again of the old exploded claim of territorial jiirisdiction or claim
of property, and except that it is jmt under circumstances very greatly
changed it is the old claim put if possibly in a more utterly untenable
form.

For the present I content myself with re- affirming our position sub-
mitting respectfully for your judgment and consideration the construc-
tion of the treaty which of course, you must construe for yourselves
whether we raise the points or not, because within the ambit of that Treaty
and that alone is your authority to make regulations at all. Having
decided that point as you shall see fit to decide it, if you come to the con-
clusion your authority extends beyond, you will consider what would be
fair and just and equitable Regulations in that wider area. Returning,

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 55

to where I left off reading- the Eeport of the British Commissioners at
page 23, they then proceed to their summary of general considerations.
These are they :

(a.) The facts sbow tliat some such protection is eminently desirable, especially in
view of further expansions of tlie sealing industry.

(b.) The domestic protection heretofore given to the fur-seal on the breeding
islands has at no time been wholly satisfactory, cither in conception or in execution
and many of its methods have now become obsolete.

(c.) Measures of protection to be effective must Include both the summer and
■winter homes, and the whole migration-ranges of the fur-seal, and control every
place and all methods where or l>y which seals are talien or destroyed.

(d.) Although primarily devised for the protection and perpetuation of the fur-
seal itself and of the sealing industry as a whole, any measures must be such as to
interfere as little as possible with established industries, and such as can be insti-
tuted under existing circumstances.

(e.) Equitable consideration must therefore be given to tlie several industries
based npon tlie taking of seals, and especially to the numl)er of persons dependent
on these i'ov a lis^eiihood and to tlie amount of capital invested, so that the measures
adopted may be such as to recommend themselves on the ground of common interest.

(/.) The controlling Regulations sliould be so framed as to admit of varying
degrees of stringency in accordance with the changing exigencies of the case.

Then they deal with improved methods in taking the seals, and
restrictions in the number of seals taken and finally on page 25 is the
sj)ecific scheme of regnlatioiis which they suggest as to which I may
briefly say they mean a restriction in numbers on the Pribilof Islands,
a zone of protected waters 20 nautical miles from the Islands, and a
close season from the 15th of September to the 1st of May. That would
mean that all that spring catch of January, February, March and
April would cease to be made. Then they suggest alternative measures
not inconsistent with the other, but elastic measures I prefer to call
them, by which in consideration of a decrease in the number killed on
the Islands there should be an extension of the zone. As regards these
I do not propose to examine them in any detail.

The President. — That is not your scheme, you have your own to
submit I suppose?

Sir Charles Russell. — Yes. We borrow some features from this
adapted to the altered circumstances which we will submit to you pres-
ently, but I have now in (conclusion still two important topics to deal
with namely a consideration of the American proposals and then a con-
sideration of those which we venture to suggest for the acceptance of
the Tribunal, and that will not occupy me, I hope, the whole of Tuesday.

[The Tribunal thereupon adjourned till Tuesday the 13th June at
11.30 a. m.j

THIRTY-SEVENTH DAY, JUNE 13™, 1893.

Sir Charles Russell. — Mr. President, I have up to tliis point, upon
the question of Regulations, dealt with what I conceive to be, and
what we respectfully submit ought to be, the general questions which
ought to enter into that question ; and, in order wholly or in part to
remove prejudice, and in order also that the Tribunal should have a
just appreciation of what the actual facts were, I endeavoured to show
in some detail, and I hope I succeeded in showing, that, upon no view
of the actual facts of the case, could it be established that pelagic seal-
ing had been the main or even the principal cause of the depletion of
the seal race which, it is admitted, has to some extent taken i)lace; and
though I have always admitted that pelagic sealing was a contributory
cause, I showed also, or endeavoured to show that the true cause, the
main and j^rincipal cause, was the pernicious system pursued upon the
Islands: a system condemned by the voice of the strongest authorities
representing the interests of the United States themselves; the great
and main fact being, that instead of observing the moderation that had
been j)ursued during the Russian regime^ — that instead of observing
periods of rest as the Russian Government did during that regime, the
United States, beginning by permitting that extraordiiuiry wholesale
slaughter in the year 1868 of nearly a quarter of a million of seals, had
permitted their lessees to take year by year the full quota of about
100,000 a year, unmindful of the fact that they were saj)ping the future
male stock of that herd upon which, to a great extent at least, its future
health and prosperity depended. The general considerations, which I
have submitted should be borne in mind by the tribunal were, that the
Regulations should be just and equitable in view of the common inter-
est to be affected by them: that they ought to be snch that the con-
currence of other Powers might be exi^ected in observing them, that it
was a question of the regulation of rights upon the high seas, not a ques-
tion of the proMbition or annihUation of those rights : and that the great
object, of the Regulations is the preservation of the fur-seal species,
and not the aggrandisement of the United States, or the putting them
in a position in wliich they could reap a larger profit from the killing
of the seals.

• I submitted also that while you had no power to make direct Regula-
tions upon the Islands, yet that you have the j^ower, and I submit
ought to exercise the power, of making your Regulations conditional
upon the observance of certaitt distinct rules upon the Islands, the main
one of which would be moderation as to the number killed, as to which
the Russian example to which I referred, would seem to afford a safe
and convenient guide; and lastly, as to general considerations, I sub-
mitted that in view of the incompleteness of the information which is
even now possessed in relation to the conditions which affect seal life,
your Regulations ought either to be for a definite period of time only,
or if on the face of them they purjiorted to have a longer existence or
application, that there ought to be power, after the lapse of a reason-
able time for either Power to denounce those Regulations and recede

56

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 57

from them. I would wish in that connection to add only this word,
that if such a power as 1 have suggested of denouncing the regulations
after a definite period of 5, 7 or 10 years, or whatever is thought reason-
able by the Tribunal, then each party would be remitted to its original
position, its original rights, whatever they were, unaffected and unim-
paired, and tliat they each of them would be in a position to approach
the consideration of proper Eegulations in view of the wider experience
which the actual working of such Eegulations as you are pleased to
propound will have apported; and that there is no reason to apprehend
that in view of that further light thrown by experience upon the condi-
tions of seal life so far as they may be affected by any Eegulations that
you formulate — there is no reason to suppose that these Powers could
not come easily and satisfactorily to an arrangement of the matter.

Now having dealt with these considerations, but two things remain
for me to do. The first is to consider the suggestion made on the part
of the United States. Tlie second is to assist the Tribunal by suggest-
ing the character of the regulations which upon the part of Great Brit-
ain are suggested as being just and fit and equitable, in all the circum-
stances of the case.

First, as to the regulations put forward on the part of the United
States. I do not know whether I am to regard that suggestion as put
forward seriously.

Mr. Phelps. — I think you may, Sir Charles.

Sir Charles Eussell.^WcH, I really cannot so regard it. I cannot
think that any member of the Tribunal will so regard it.

Why, Mr. President, it takes us back to the year 1799, to the year
1821, and we begin to wonder, in the face of this suggestion of the
United States, at the moderation of the Emperor Paul, because all that
he claimed was JOG miles from the shore, but in that memorandum of
Baron de Tuyll was content with six miles over the area which corre-
sponds with the area which is here in dispute.

Now what is this suggestion. I may describe it correctly thus : a
deprivation for all time of the rights of British nationals over an area
of the sea approaching 3,000,000 square miles; a deprivation forever of
the rights of British nationals to fish for seals in that enormous area;
a monopoly to the United States in that area; a monopoly to the United
States which is to be secured in part by the co-operation and at the
expense of Great Britain, because I take it that whatever scheme of
Eegulations is laid down by this Tribunal, each Power will be morally
bound, internationally bound, to lend its part in the enforcement of
those Eegulations; and all this perpetual exclusion, this monopoly to
the United States, this expense to Great Britain, without one fraction
of security that the object of this Treaty, which is the preservation of
the fur-seals, shall have been secured.

I have spoken of the extent over which this perpetual i)rohibition is
proposed to extend. I have had coloured on this map of the northern
hemisphere what it means. The north pole, of course, is in the centre
of the map.

It is a worse state of things — a wider and a more reckless and
unfounded assertion of the jurisdiction or claim of jurisdiction than in
the time of the Ukase of 1799 or of 1821, because in those days this
region was not a field of much commerce or of much enterprise. But
what is the state of things to day"? This prohibition extends over that
area [Pointing to it.] Here is Vancouver, and here is Victoria, and this
line traced upon the map is the new and established mail route to
Yokohama and China, and I need not say that that means the following
of commerce and of considerable commerce in its train, and yet over

58 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

this vast area there is to be this power reserved to the Uuited States
of searching", seizing, condeumiug any vessel found engaged in sealing
or prosecuting a voyage with a view of sealing. I say, looking to the
altered condition of things, the increase of poi)ulation, the extension
of commerce in the region affected, it is a proposition worse than the
proposition propounded by the Eussian Rules of 1799 and 1821 against
the assertion of which both the United States and Great Britain pro-
tested. But it has other vices than the almost unbridled attempt to
assert jurisdiction. What would be the cost of policing that enormous
area? It would defeat absolutely its own object. What is the experi-
ence of everyone who has had to do with practical legislation or the
enforcement of practical legislation in reference to these matters and
who has read of these matters? Why, that if you put up excise duties
applicable to a i^articular frontier line a high point, smuggling follows
as a necessity. Here the United States propose to take a monopoly in
the principal fur-seal producing area of the world.

What does that mean ? It means driving up the price of the fur-seals
to the highest point of popular demand: It means getting the highest
obtainable price for the fur-seal. What does that mean? It offers the
highest inducement that can be offered to persons to violate this area
and to violate these Rules and to pursue an enterprise attended with
some risk, but, if successfully carried out, with enormous profit; and as
I said in the case of a great frontier when there is an article subject to
a very high duty, so here, yon would have reckless venturesome per-
sons sending comparatively worthless ships to infringe the Regulations
and so, defeating the very object at which the scheme is aimed. I
observe in the Argument of the United States upon concurrent Regu-
lations, at 205, dealing with this matter and dealing a much more limited
area, that they say as to :

What would it cost to maintaiu the naval police required to enforce this scheme
of the British Commissioners of a 20 mile zone?

Will you be good enough to bear that in mind?

How many armed steamers would he needed to guard effectually against the
entrance of a ti'espasser within a prohibited zone, the circumference of which is
upwards of 140 miles, in a region of thick and almost perpetual fogs? A million of
dollars annually would be a moderate estimate of the expenditure required, and this
must be paid by somebody, the Commissioners do not tell us by whom.

What then, I ask, would be the cost of policing this enormous area?
Granted that Great Britain, as no doubt she would, pay proper respect
to the Regulations of this Tribunal, and would discharge her proper
duty in that regard, what w^ould be the cost of policing this enormous
area? Against United States citizens, against the people of Ja])an, it
may be against the citizens of Russia, and against the citizens of
British Columbia: aye, against the subjects of other Powers who have
now no temptation from a remote distance to engage in this enterprise
at all — you would have this state of things: seeing that these Regula-
tions apply only to bind the nationals of Great Britain and the nationals
of the United States you would have a resort to foreign flags — United
States vessels sailing and sealing under foreign flags, and British ves-
sels sailing and sealing under foreign flags: you would have an abso-
lute impossibility of enforcing effectual safeguards, and an occasion at
all points of international dfficulty and international complication: and
lastly, you would have, as I have already said, the impossibility of
expecting the adhesion of foreign Powers which is contemplated by
article VII of this Treaty. I have already pointed out in my introduc-
tory observations that by their own force and virtue your Regulations

ORAL ARGUMENT OF SIR CHARLES RUSi^ELL, Q. C. M. P. 59

would carry uo legal sanction with them, they would carry with them
very high moral sanction, but to give legal ettect to them, as I have
pointed out, legislation by the United States would be necessary — leg-
islation by Great Britain would be necessary and I have to point out,
while I am i^erfectly certain that Great Britain M'ould not fail in doing-
its duty in paying due respect to the Eegulations of tins Tribunal that
such a scheme as this would presentenormousdifficulties,in its passage
through an assembly whether it be the Congress of the United States
or through any popular Parliament. No, Mr. President, this scheme, if
scheme it can be called, has all the evils which could be well concen-
trated in any scheme to be suggested. Let me read the first and seeond
of these j)ropositions. First that no citizen or subject of the United
States or Great Britain shall in any manner kill.

So that however discriminatingly we could kill — killing barren female
or only old males, — nevertheless the prohibition is absolute. Next it
extends over the area that I have mentioned with a ludicrous qualifica-
tion provided that it shall not apply to such pursuit and capture as may
be carried on by Indians on the Coasts of the territory either of Great
Britain, or the United States for their own i^ersonal use.

We get back to that old condition of things in which whoever framed
this paper seems to have thought that the Indians on this coast, went
about half naked or with a seal-skin girtabout their loins, a state of things
which no longer exists at all, nor has for many, many years. They wear
clothes like the white men, and tall hats I am told on their Sundays and
holidays like the white men, the tall hat being universally admitted to
be a proof of advanced civilisation. But "for their own personal use";
Avhich, as I understand, means if they want a skin with which to gird
about their loins, or for their wives or for their children, they may have
it; but to sell it, no; and they are to do this in vessels propelled wholly
by paddles. Oars, in the ordinary acceptance of the word, are not to
be admitted; and they are not to be manned by more than two men.
Two men and a boy would be fatal. Two women and a man would be
fatal; and all this is to be done "in the way anciently practised by such
Indians". Who is to fix the point of what is "ancient"'? And who is
to tell us what was anciently practised by such Indians'? What are the
sanctions that follow any breach of these regulations'? Why, that any
ship actually engaged in killing, or the pursuit, or capture of seals, or
prosecuting a voyage for that purpose, and I want to know how that
purpose is to be ascertained, — only by search, of course, — supposing,
for instance a vessel engaged in whaling; how is it to be ascertained
whether she may not be also contemplating a voyage for the purpose
of sealing, or in the days not remote when the great general fishing
wealth of this region may be turned to profitable account by new modes
of access to rapidly rising markets and as jyopulatioa grows and as the
means of communication increase, for the purpose of fishing; and all
these are to be harased over the enormous area of nearly 3,000,000 square
miles at the will and i:)leasure of the authorities of the United States
or at the caprice of those in charge of its Revenue vessels and subjected
to search uj^on the high seas and if found prosecuting a voyage or
engaged in sealing, then Avhat is to follow? The ship of Great Britain
is to be carried into an American port, condemned, and the men sent
adrift, as they were cruelly sent adrift in the case to which I have
drawn attention, thousands of miles and penniless, away from their
homes. The very contemplation of such a scheme makes one feel as I
feel, I must confess, indignant, especially when it is to be borne in mind
that this is the scheme which it must be admitted requires legislative

60 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

action both on tiie side of Great Britain and the United States to give
effect to it, I should like to know what would have been the scheme
which the United States would have put forward if its (jlaim of terri-
torial jurisdiction, its claim of property in the individuals and in the
fur-seals collectively had been established as clearly as it is, I sulunit,
now established to be non-existent? Suppose, when these first five
questions had been framed, Great Britain had chosen to say, "It is a
remote region; it is not a matter of much consequence to us. The
thing we feel most about is this assertion of right upon the high seas
to seize and search the ships of our nationals; but suitable reparation
being made for that in the past, we care not about it in the future;
by all means have your assertion in relation to Behring Sea," — those
assertions were confined to Behring Sea, — and yet absolutely the result
sought to be pointed at by this so-called suggestion for Kegulations is
infinitely worse to Great Britain than if she had never challenged the
right which the United States has claimed at all.

Mr. President, I cannot seriously consider this scheme. It is selfish ; it
is one sided; it is inequitable; it is unworkable, and it is entirely framed
in oblivion of the fact, if fact it be, as we submit it is, that we have
established that the United States liave in no form in which they have
ventured to put it forward any legal rights in this matter at all, except
the rights belonging to their territorial ownership, and those rights only.

Now, Mr. President, I turn to the suggestion which we think it right
to offer, which at least, I hope the Tribunal will think, we have con-
sidered in a serious, in an anxious, in an equitable spirit, and with the
desire to do something to assist this Tribunal in arriving at a just and,
at the same time, a practical conclusion in this matter.

The first suggestion which we submit to this Tribunal is, assuming
that we are right that Regulations and not prohibition is the question,
that in future all vessels engaged in pelagic sealing, belonging either to
Great Britain or the United States, shall be permitted to do so only on
condition of obtaining a license and carrying a distinctive flag; that is
to say, that no ship belonging to a British national shall be allowed at
the mere will and pleasure of its owner to engage in pelagic sealing, and
that the same shall apply to the ships owned by the citizens of the United
States, that as a condition of their right to engage in pelagic sealing at
all, they shall be furnished with and shall obtain a license and bear a
distinctive flag. This presents no difficulty and no comphcation. There
are four ports, and four ports only, belonging respectively to the United
States and Great Britain, from which the pelagic sealers set forth.
Those are San Francisco, Port Townsend, Vancouver, and Victoria; and
there can be, therefore, no difficulty in providing a scheme by which
there could be at each of these ports a Licensing Authority to license
sealers to pursue pelagic sealing. I put that in the first place for a
reason which I think you. Sir, will appreciate; it is that experience of
similar systems has shown that if you pursue that licensing system,
you have some guarantee for the character of the persons who are
licensed, and you have persons who are giving by their position and by
their means and by their character some guarantee that they are entitled
to pursue this calling. But that is not all, nor principally what is the
advantage. It is that once you introduce a system of licenses you con-
stitute automatically an effective police force. How? Because, to
begin with, you make the whole number of those who have licences a
police force upon those who have none. Those who have the privilege
of the license will, in their own interests, do all they can to safeguard
and secure it, and to see that no vessels that do not comply with the

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 61

legal conditions of the license engage in pelagic sealing at all. That
is the flrst point.

The next point is this, that as regards the licensees themselves, when
you proceed to consider the question of Eegulations relating to zone or
to close time, one or the other or both, you make each licensee a police
or detective upon every other licensee to see that such licensee gets no
advantage over him, the particular person, either by entering within a
prohibited zone and thus securing an undue advantage to himself or
entering a particular Sea before a particular time if a close time is
fixed. So that in that way you get, automatically working to a large
extent, a system of checks and restraints for the enforcement of such
Eegulations as are laid down. That is the first, therefore, that we
should respectfully suggest. It has been suggested by the British
Commissioners in their most candid Eeport, — I think it is in their
Eeport; at all events, I know in the Supplemental Eeport which I am
not stopping to refer to, — that, for reasons which will be more apparent
when I come to consider the other suggested Eegulations, that nothing
but sailing boats should be engaged in pelagic sealing; in other words,
that steam vessels should be excluded.

Now I come to the next question. I deal first with the area in which
it is admitted without any conditions at all that the Tribunal has com-
l)lete power to make such regulations within the scope and for the object
contemi^lated in the Treaty, namely, the eastern part of Behring Sea.
First of all, the point that naturally occurs to one is the question of zone
round the islands. I shall be able to aftbrd a very good illustration of
what has been found to be, or considered to be, reasonable and practi-
cable in the case of other islands further to the west in the case of
Eussia, but I reserve that for the later period of my argument.

Now the Biitish Commissioners have suggested a 20 mile zone round
the island, and that has been treated with some derision by my learned
friends in their arguments; and Mr. Coudert who was most fair and
candid in his, with the exception which I am about to mention, addressed
an argument to show that seals were not got within 20 miles of the
island. I will read the passage in a moment. It is on page 635 of the
print. It is only a word, but it is a little disingenuous, I think. He is
citing the evidence of Ohlsen of the steam schooner "Anna Beck" and
he states through the Victoria Daily Colonist of August 6th, 1887, that
anyone who knows anything of sealing is aware that such archarge, that
is catching seals in Alaskan waters within three leagues of the shore is
ridiculous as we never took fur-seals within 20 miles of shore; and Mr.
Coudert proceeds, "This may explain why that 20 mile zone was admitted
by the Commissioners". That was not ingenuous on the part of my
learned friend. I will not say that it was intentionally disingenuous,
but I do not think that he could have quite realized the matter. What
that points to, Mr. President, is this, that a 3, mile zone, which is
the territorial zone generally admitted, means more than a 3 mile zone.
It means that owing to the circumstances of climate principally, the
atmosphere in Behring Sea, that vessels will not run the risk of
approaching anything near the distance which they might in fact
approach the islands, if they were minded so to do; in other words it
means not that there are not seals within a 20 mile zone of the island —
not that — but that they are afraid to approach, although the zone is only
3 miles, within 20 miles of the islands, because of the serious penalty
that might fall ui)on them if they found themselves within the territorial
waters, and what 1 want to impress upon this Tribunal is that a 20 mile
zone means a great deal more than a 20 mile zone. A 20 mile zone
means for the prudent navigator, for the prudent sealer, for the prudent

62 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

pelagic sealer, a zone probably closer to 40 miles tlian 20 miles, because
he cannot always perfectly satisfy himself as to tlie distance he is from
the nearest land, and looking to the serious penalties that would follow
from an entrance within the prohibited area he keeps outside that area.
I do not stop to consider whether the exact figure that the Commission-
ers have mentioned, of a 20 mile zone, is adequate. What I do wish to
point out is that if you think that 20 miles is not adequate you ought
to have present in your minds that 25 miles means probably 50, and 30
miles means probably 60, and that in the case in which the penalties
necessarily would be serious which would attach for an infringement
of regulations as to zone that prudence and the instinct of self-interest
keeps the pelagic sealer away, and widely away, beyond the outside
limit of that zone.

It is important in this connection to consider two things: what are
the facts in relation to the greater or less plentifulness, if I may use
that word, of seals during the important months which we have to con-
sider, namely, the months of June, July, August and part of Septem-
ber, for pelagic sealing is at an end in the early days of September
unless there is exceptionally tine weather, and then it may be prolonged
for a few days longer.

The President. — In Behring Sea.

Sir Charles Kussell, — Yes, Sir, all I now say has reference to Beh-
ring Sea, and to Behring Sea only.

There are two matters to be dealt with in relation to that. First of
all, the question of what is the evidence as to whether or not during
those months that I have mentioned which are the important months,
the vast majority of the seals are not either upon the islands, or within
a comparatively small zone of the islands themselves, and, further, there
will be an important consideration in this regard applicable particularly
to the question of the animals who have delivered their young.

Upon the first point I should just like to say a word or two for the
purpose of illustrating what I have to say, for I am, as you of course
understand, not reinforcing these points 1 am making, with a fulness
which I should be able to if it were not that I am following the plan
which I have described, of merely stating our case in general outlines,
and my learned friend will fill n]) the i)icture. If you would turn to the
seal chart n" (5 of the United States Counter Case you will see what I
mean. In order to save you trouble and that you may see what I mean,
will you refer to this map also, N" 4, where you see the lines crossing
and recrossing. It is also a United States map in their Counter Case,
and it shows the series of voyages the results of which are set out in
the map to which I first called attention. I only want you to see the
way in which they traverse it.

Mr. Phelps. — It is the cruising map.

Sir Charles Russell. — Yes, the result of the cruising is shown in
the map to which I have called attention. That is all I want to show
you in that connection.

Senator Morgan. — That is the map, in connection with Hooper's
report.

Sir Charles Eussell. — Yes, Hooper and Coulson.

Now forgive me asking your attention to this. You will see a
double circle. Will you be good enough to note what the description
of this chart is. It is Counter Case Chart N" 6, showing the position
and nuiuber of seals observed and reported by tlie United States naval
vessels in Behring Sea, during the season of 18'J2. So that this was,
as far as they could do it, not merely general and vague observations,

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 63

but accurate observation, numerically taken, of the actual number of
seals that they saw and were able to count, and the result of that is
shown in the rmniber of little red ticks that are to be found in Chart 6.
I may say it has been very carefully and correctly done, as far as we
can judge, considering the difficulty of doing- it, but looking- to the size
of tiiat map, one of those little ticks which represents a seal covers a
space of something' like a mile, still it is done as well as it could be
done; and in some instances the number recorded in the logbook of the
particular ship has been checked with the number of ticks to be found
on this maj), and they have been found to coincide, I believe, accurately
in the number that have been checked.

There is one other of the 29th July, 1892, where there is quite a
cluster just north of the Akutan Pass.

Now I wish to call attention to what these voyages were. They were
voyages during the months of July and of August, and you will observe
that within the St. Paul and St. George circle zones what is printed
across that area is this: "Seals within this area very numerous". The
circles are quite properly described there looking at the character and
shai)e of the islands; the outer line of the circle will be in some places
more than 20 miles from the nearest land, but the circle is at the least
20 miles in each case from the nearest land. Now we have taken the
trouble of checking their log books, and by absolutely computing the
seals that are here found in these numerous voyages extending over
the months of July and August, to see what they total up to. The
total shown on the map itself is 1,008 seals altogether, outside the 20
mile zone, and computing the entire number in the log, 1,800 seals.
That is the result of the observations although they say in their logs
that they did not begin to count until 5 or 8 miles from land.

I need not say that when you bear in mind that the notation of one
of these seals upon this map occui)ies the space of nearly a mile or
about a mile, that does not show a very large accunuilation of seals out-
side the 20 mile zone, and when you have that in connexion with the
statement that within the 20 mile zone the seals were very numerous, it
does go some way to establish the i)roposition that during that which
is the important time to consider, the great bulk of the seals are to be
found within that very limited area. Of course, you will bear in mind
what I have said on another branch of the case that our case is that
there is a considerable number of seals that do not go to the Islands each
year and some that do not go for years. I referred to the evidence of
the United States Government Agent, Captain Bryant among others,
who expresses the opinion that in one class particularly the female seal
does not go from the time it leaves as a i)up till it comes back to deliver
its young; that would, be in the third year, and Bishop Veniaminoff
puts the same date. The same argument may be based upon mai) 4 to
which 1 have already referred. It refers to a corresponding period in
1891. This map refers to 1892.

Now there is another very important matter and that is this question
of whether, and if so, to what extent the seals that come to sojourn on
the Pribilof Islands go, and if so to long distances to feed during their
sojourn on the Islands. I referred to this matter on Friday as showing
the incompleteness of information that we have on this very important
point. But there are certain facts in regard to the question which are
not in dispute, and I beg that these undisjmted facts be first noted.
First it is an undisputed fact that the breeding- males which come to
take up their place on the rookery and await the arrival of the cows do
not during the whole of the time that they are on the Islands and when

64 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

the work of procreation is going on feed at all; that is an undisi)nted
fact between us. The universal testimony is that they come on the
Islands fat and sleek and in good condition, and that they leave them,
having stayed by the Islands during the whole of the time lean and
emaciated ; and they do not during that period seek any sustenance at
all. Nature seems to have made the curious provision for tliem that in
the early part of the year and in the winter they have been able to
accumulate an amount of fat upon which practically they subsist dur-
ing this very exhaustive period of their existence. So much as regards
the breeding males, that is common ground. But it is also common
ground, as you will find when you come to the case of the holhischickie
or young males; but as that is not so clearly admitted between us, I
must ask leave to call attention to one or two small points of evidence
on the matter. I will rely in this connexion, in the tirst instance upon
what appears in the United States documents themselves put forward
in their Case and Counter Case. In their Case on page 121 they make
this statement:

Both Captain Bryant and Mr. Morgan say that in their opinion the bachelor seals
feed very little while located on the islands, and Mr. Glidden states that the bachelors
once in a while go into the water, but remain in the vicinity of the islands.

The bachelor seals, the holluschickies are the young males who have
not yet been in a position to acquire a place upon the rookery.

Mr. Glidden states that the bachelors once in a while go into the water, but remain,
in the vicinity of the islands' Anton Melovedoft", the native chief on St. Paul Island
for seven years (1884-1891) states that he has found that the seals killed in May and
early .June were fat and that their stomachs were full of food, principally codtish,
and that later in the season they were poor and had nothing in their stomachs, and
that, in his opinion, none but the mother seals go out in the sea to eat during the
time the herds are on the islands.

I will deal with the mother seals in a moment.

And his opinion in this matter corresponds with the views of natives and whites
who have been long resident on the Pribiloff Islands.

Further evidence on that point is to be found in collateral testimony
in the United States Argument under the title "Feeding" page 159.
In that j)age the last paragraph but one.

The Holhischickie (batchelors) do not go out to feed. When they come in May
there is plenty of fish in their stomachs but after June there is nothing.

Again :

Young wigs go into the water, but during the breeding season hang about the
rookeries never going far from shore.

And again on the top of page 160.

I have also observed (says Mr. Fowler) that the male seals killed soon after they
come to the Island are fat and their stomachs filled with food while those killed in
the latter part of the season are poor and l«an aud without food in the stomachs.

Then Mr. Fratis :

I do not think the batchelors go to feed from the time they haul out until they
leave the islands in November for I have observed the males killed in May are fat
and their stomachs full of fish, mostly cod fish, while the males killed in July and
afterwards are poorer and poorer and their stomachs are empty.

I pass the next and go to Nicoli Krukoft":

I think the batchelors do not eat from the time they arrive till they go away, and
I think so because the seals Killed in May and early June are fat and have plenty of
food in their stomachs, while those killed later than June are poor and their stomachs
are empty and they get poorer aud poorer until they go off iu November.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 65

Then:

I have found that the seals killctT (says MolovedoflF) in May and early June were fat
and that their stomachs were full of food principally cod lish, and that later iu the
season they were poor and had nothing iu their stomachs.

Then Mr. Redpath :

Young males killed in May and June when examined are found to he in prime con-
dition and their stomachs are filled with fish — principally codfish, hut those killed
later in the season are found to he poor and lean and their stomachs empty, which
shows that the males rarely leave the islands for food during the summer months.

Mr. Webster is to the same effect, and then he i^roceedKS to express an
opinion about the females going out to feed which I will now proceed
to consider.

Senator Morgan. — Is tliere any evidence that you have seen contra-
dicting the statement you have just read.

Sir Charles Russell. — No not that I am aware of. There are state-
ments scattered here and there which say they do not feed much which
wonld imply therefore that they feed a little — during the latter period
of their sojourn on the Island they do begin to feed but not in the months
I have mentioned.

Lord Hannen. — The probability is when the sexual excitement begins
they are provided with a greater supply of fat as in the case of the old
ones, and that probably arises at the same time — the increase of fat in
the males — which serves them as a reserve force.

Sir Charles Eussell. — It may be. It obviously is so in the case
of the older males, but these observations that I have been just readiug
do not apply to the older males.

Lord Hannen. — Xo, it was apropos of that I made the observation
that at the same time that the sexual passions w^ere roused there is a
greater supply of reserve and fat.

Sir Charles Russell. — And the real question is that nature having
made that extraordinary provision in the case of males is there any
reason for supposing that nature has not made a similar provision in
the case of the females. That is a question that is not admitted, and I
will call attention to the evidence in a moment about it. But it is a
very remarkable thing that in all the seals that have been killed you
will find some reference made to theni in what I am about to state, that
what is stated as true of the males is true of the females — that until
you come to the end of the period when their nursing operations are
nearly over then apparently they take again to food.

I will deal with the females in a moment, but there is also a passage
in the earlier Report reprinted in 1881 what we have been calling the
brown book report, of Mr. Elliott bearing on the same subject; and he
does not restrict it, though I do not say he does not mean to restrict it
(as a matter of fact he does not) to sex. He says:

I have examined the stomachs of hundreds which were driven np and killed imme-
diately after their arrival in the s^jring, near the village; I have the word of the
natives here, who have seen hundreds of thousands of them opened during the
slaughtering-seasons past, hut in no single case has anything ever been found, other
than the bile and ordinary secretions of healthy organs of this class, with the marked
exception of finding in every one a snarl or cluster of worms, from the size of a wal-
nut to a hunch as large as a man's list. Fasting apparently has no effect upon the
worms, for on the rare occasion, and perhaps the last one that will ever occur of
killing three or four hundred old hulls late in the fall to supply the natives with
canoe skins, I was present, and again examined their paunches, finding the same
ascaridcB within. They Avere lively in these empty stomachs, and tlioir presence, I
think, gives some reason for the habit which the old bulls have (and others do not)
pf swallowing small water- worn bowlders, the stones in some of the stomachs weigh-
ing half a pound apiece, in othertj much smaller. In one paunch I found over tiv^

B S, PT XIV 5

66 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M, P.

pouncls, in the aggregate, of large pebbles, which, in grinflirtg against one another,
I believe, must comfort the seal by aiding to destroy, in a great measnre, those
intestinal pests.

Now, I turn to the wider consideration of tbe case of the females;
and I turn to the British Commissioners' Report, section 232, where
the matter is carefully gone into at page 39 of that Eeport.

Some particulars are given on a later page respecting the abstention from food of
the fur-seals while remaining upon or about the breeding islands. It a]tpears to be
certain that the mature males doing duty on the breeding rookeries do not feed at
all dnring the breeding and for some time at least after landing females do not leave
the rookery grounds in search of food.

That is a common fact admitted, that for some weeks after, — this is a
fiict not in dispute, — the female landing and giving birth to her pup,
she does not for some weeks leave the island, and, therefore, for some
weeks does not obtain any food at all. That is an admitted fact. The
witnesses vary as to the length of time, but the body of evidence turns
to that being something like three weeks.

Mr. Carter. — We do not concede any period of several weeks.

Sir Charles Russell. — The shortest time that is put (I assure
you, Mr. Carter, we are not making these statements without consider-
ing them).

Mr. Carter, — When you say that we concede it, I submit that you do.

Sir Charles Russell. — Well, if you will be kind enough to pay
attention and look at the evidence, I think you will find I am right.
There is not one witness who speaks on the subject who was called by
the United States who does not admit that for a considerable period
they do not leave the Islands after giving birth to their i)up, and the
shortest period, I speak from recollection but after careful examination,
is a period of 17 days. Other witnesses put it longer, and I say the
bulk of the testimony fixes it at about three weeks.

My learned friend. Sir Richard Webster will read this for me.

Sir Richard Webstek :

There is no apparent reason why tlie " holluschickie," or yotiug males, sliould
not go to sea in quest of tish. Singularly enough, however, though animals of this
class have been killed by hundreds of thousands upon the breeding islands under
all conceivable conditions of weather, and often within less than an hour of their
deportation from their hauling-grounds, the almost universal testimony is to the
ettect that their stomachs are invariably found to be free from food.

Then follow some passages about male seals that I need not now
read again. I may say the first number killed was 20 seals, and the
second 98.

Then n° 235 is—

From the large North Rookery on Behring Island, 5th September, an adult male
or " seacatch," two females, and an unweaned pup, were driven directly from the
rookery ground, about 200 yards distant, and killed, by permission of the authori-
ties, for jjresentation by us as specimens to the British Museum. The stomachs of
all four were completely empty, with the exception of a few worms in those of the
three aflults. Not only the pup, but the females, and even the old male, were tat
and in good condition.

Sir Charles Russell. — Now, on the next page, paragraph 242 :

Perhaps the most notable feature in regard to this food question, and one directly
consequent on the prolonged abstinence of the seals from food while on and about
the islands, is the entire absence of all excrement on the rookeries and hauling
grounds. Captain Bryant appears, however, to bo the only author who has specially
mentioned this particular and striking fact. He writes:

The fact of their remaining without food seems so contrary to nature, that it
seems to me proper to state some of the evidences of it. Having been assured by
the natives that such was the f;ict, I deemed it of sufficient imiiortauce to test it by
all the means available. Accordingly, I took special pains to examine daily a large

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 67

extent of the rookery, and note carefully the resnlts of my observations. The rocks
on the rookery are worn smooth and washed clean by the spring-tides, and any dis-
charge of excrement could not fail to be detected. I found, in a few instances
where newlv-arrived seals had made a single discharge of red-coloured excrement,
but nothing'was seen afterwards to show that such discharges were continued, or
any evidence that the animals had partaken of food. They never left the rocks
except when compelled by the heat of the sun to seek the water to cool themselves.
They are then absent from the land for but a short time. I also examined the stom-
achs of several hundred young ones, killed by the natives for eating, and alwaj'S
V, ithoit finding any trace of food in them. The same was true of the few nursing
females killed for dissection. On their arrival in the spring they are very fat and
unwieldy, but when they leave, after their four months' fast, they are very thin,
being reduced to one-half their former weight.

Now, it does not seem more remarkable that tlie male, subject to tbe
trying conditions lie is subjected to during this period, should go with-
out food tbau the nursing female should go without food.

The matter is further referred to at paragraph 242, on the top of
page 42.

In a note appended to the above by Professor Allen, that gentleman writes : Steller
states that in the numerous specimens he always found the stomach empty, and
remarks that they take no food during the several weeks they remain on land; Mr.
IJall coniirms the same statemeut in respect to the present species, and Cajitaius
Cook, Weddel, and others, who have opportunities of observing the different south-
ern species, affirm the same fact in respect to the latter. Lord Shuldham long since
stated that the walrus had the same habit, though its actual fast seems somewhat
shorter than those of the eared seals This singular phenomenon of a pro-
tracted annual fast during the period of parturition and the nursing of the young —
the season when most mammals require the most ample sustenance — seems not
wholly confined to the walruses and eared seals. So far as known, however, it is
limited to the pinnipedes; and, excepting in the case of a single member, the sea-
elephant, to the two above-named families. By some of the old writers the sea-
elephant was said to feed sparingly, at this time, on the grasses and sea-weeds that
grew in the vicinity of its breeding places, but the Aveight of the evidence in respect
to this point seems to indicate that this species fast similarly to the eared seals and
walruses during the period it resorts to bring forth its young.

243. The fur-seals on Juan Fernandez are likewise reported, and without qualifica-
tion as to sex, to abstain from nourishment during the breeding season: "Toward
the end of the mouth of June these animals come on shore to bring forth their young,
and remain to the end of September without stirring from the spot, and without
taking any kind of nourishment."

Those are extracts from the authorities mentioned. Then the British
Commissioners proceed :

Though not at the time aware of Bryant's statement, above quoted, the absence of
excrementitious matter Avas one of the first points noted and remarked on by us after
landing upon the Pribyloff rookeries, and it is to the absence of such matter alone that
the continuous herding together on one spot for several months of so many thousand
animals is on sanitary grounds rendered possible. It became obvious that so soon
as the seals commence again to feed, it must be absolutely necessary for them to
abandoil their crowded quarters on shore. The evidence thus afforded, that the
females do not feed to any notable extent until the young are practically weaned,
or, at all events, until very late in the suckling season, is perhaps more definite than
that given in any other way.

I think there is only one other passage that I have to refer to in that
connection. It is on page 54 of the Report commencing with paragraph
303, which my learned friend will, no doubt, kindly read for me.

Sir Richard Webster. — Paragraph 303 :

The feeding habits of the seals, and the distances to which seals engaged in breed-
ing on the islands may be supposed to go for food, as well as the period of the breeding
season at which excursions in search of food begin to be made, are important because
of their direct bearing on the limits of protection which might appropriately be
accorded about the islands at the breeding season.

Then 304 deals with the full grown bulls; and 305 is:

304. The full-grown bulls, or beachmasters, holding stations on the rookery-grounds,
undoubtedly, in the majority of cases— if not invariably— remain on duty throughout

68 ORAL AKGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

«

the breeding season and to the close of the rutting period without seeking food.
The young again, born in any particular season, are not weaned, or not fully weaned,
nor do they, under normal circumstances, leave the immediate vicinity of the shores
till the time of their tinal departure.

305. It is thus only the classes of bachelor and female seals that can, nnder any
circumstances, be found leaving the islands in search of food during the breeding
season. Of the females, the yearlings associate with the bachelors. Some of the
two-year-olds may seek the vicinity of the rookery-grounds for the purpose of meet-
ing the males, but probably they do not lotig remain there, while it is believed that
most of them are covered at sea. Barren females, again, whetlier without young
from age, from an insufficiency of males, or inefficient service, are not in any way
permanently attached to the islands at this time.

306. The remaining — and, at the time in question, most important — class is that of
the breeding females. These, some time after tlie l)irth of the young and the subse-
quent copulation with the male, begin to leave the rookery-ground and seek the
water. This they are able to do because of the lessened interest of the beachmasters
in them, and more particularly after many of the beachmasters themselves begin to
leave their stands. Thus, by about the middle of August, probably only one-half of
the females, or even less, are to be seen at any one time on the rookeries. Snegiloft",
the native foreman in charge of the rookeries on Behring Island, expressed the opin-
ion that the females first leave their young and begin to frequent the water about a
month after the birth of the young. Bryant says about six weeks. Other authori-
ties are less definite on this point, but, according to observations made by ourselves,
the mothers and young were present on the Pribylolf rookeries in ap]iroximately
equal numbers in the last days of July, while, on the same rookeries, in the third
week of August, the young largely outnumbered the mothers present at any one
time, and, in so far as could be ascertained l>y observation, the females were disport-
ing themselves in the sea off the fronts of the rookeries.

307. It is very generally assumed that the female, on thus beginning to leave the
rookery-ground, at once resumes her habit of engaging in the active quest for food,
and though this would appear to be only natural, particularly in view of the extra
drain produced by the demands of the young, it must be remembered that with
scarcely any exception, the stomachs of even the bachelor seals killed upon the islands
are found void of food, and that all seals resorting to the islands seem, in a great
degree, to share in a common abstinence. While, therefore, it may be considered
certain that after a certain period, the females begin to seek such food as can be
obtained, the absence of excrementitious matter on the rookery grounds, elsewhere
referred to, show that this cannot occur till towards the close of the breeding season.
It may, further, be stated, that there is a very general belief among the natives, both
on tlie Pribylotf and Commander Islands, to the effect that the females do not leave
the land to feed while engaged in suckling their young, and that neither of the two
females killed in our presence for natural history purposes on Behring Island, on the
5th September, had any trace of food in the stomach, though killed within a few
yards of the rookery from which they had just been driven. Also bearing on the
same point is the statement made in a memorandum received from Her Majesty's
Minister at TAkio, based on information obtained from a gentleman fully conversant
with the habits and haunts of the fur-seal of the western side of the North Pacific,
as follows : " It is sometimes stated that the breeding cows are in the habit of leaving
the rookeries to fish for the support of their young, but the experienced authority
on whose remarks these notes are founded is not of this opinion. He has never found
food inside the female fur-seal taken on the breeding grounds.

'& o^

Sir Charles Eussell. — Now it is not tiiiimportaTit, I think, to note
there, that the two females who were killed, whose migration is vouched
for as a fact, were killed as late as the 5th of September; and when it
is borne in mind that all the pup-bearing females have got to the Pribi-
lof Islands admittedly by some where about the middle of June — cer-
tainly all practically by the 20th June, — it is a remarkable fact there
are two female seals bearing pups killed on the 5th of September, and
therefore very late in the season, and yet even without any particle or
trace of food in their stomachs.

Now the British Commissioners seem to have weighed- this matter
very carefully and judiciously, and I think in paragraph 308 they prob-
ably state what is the actual fact. They say:

It appears to us to be qtiite probable, however, that toward the close of the season
of suckling, the female seals may actually begin to spend a considerable portion of
■^heir time at sea in search of food. It is unlikely that this occurs to any potable

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 69

extent till after the middle of September, before whicli the season of pelagic sealing
in Behring Sea practically closes.

]!*5"ow, Sir, 1 leave this subject, althoiigli tliere is more to be said about
it. The bearings of it upon the question of zone you well see is impor-
tant because if it be true that they do not leave the islands for food
until that late period when they have acconii)lished their work in not
only giving- birth to, but of suckling-, their young for a considerable time,
of course it justifies the claim for a narrower area and shews the non-
necessity for a wider area of restriction. 1 have not lost sight of the
fact, and I do not lose sight of the fact, that there are instances given
of females with milk killed at very long distances from the islands — I
have not lost sight of that fact at all ; but when it is borne in mind first
of all, that the percentage of death of pups from natural causes is so
enormous, and that these natural enemies of theirs — the Killer Whales —
attack them when they can get at them in the water, is not it a fair
presumption, in the absence of evidence to the contrary, to say that the
seals so found at remote distances, are either seals that have accom-
plished their work of nursing their young — that are going off milk so to
say — or that they are the seals that have lost their pups from natural
causes; for I do ask the Tribunal here (without dwelling on the evidence
which must be examined more in detail), to note this: That while these
instances are mentioned here and there in the evidence on the part of
the United States, I cannot recall any case where there is a combina-
tion of three essential things in order to enable the Tribunal to judge
of the weight of that particular evidence. What I mean is this — a com-
bination of statement as to time, of place, and of number. I find isolated
instances of killing at a great distance, without statement as to date;
of date, without statement as to place, and in both instances no eiuimer-
ation of nuinbers, so that they would probably be, not infrequently what
might properly be characterised as "exceptional cases."

The President. — Is it not a general rule of Natural history, that
all animals that shed their hair or lose their feathers, like birds for
instance, abstain from food and go through a certain process of disease
or illness, at least, during that i)eriod of changing their hair or losing
their feather?

Sir Charles Eussell. — I have not a sufficiently large acquaint-
ance with Natural history to answer the question in a reliable way —
in a way that would assist your view. Sir. In the case of birds of a
domestic kind, I have never known of their ahstaininf/ from food.
They no doubt go through a period of indifferent health, and they
may abstain, to some extent, from food; but I am not aware that they
entirely abstain. There are of course such cases as the case of Deer
who abstain, during- the rutting season, from food to any appreciable
extent, and cases of that kind.

Now, Sir, I have said all I have to say upon that, except one other
observation. You will recollect the Correspondence relating to an
interview between Lord Salisbury and Mr. Phelps as to which there
appears to be some difi'ereuce of recollection between those two gentle-
men u])on the question of a "close time" — This correspondence — (I am
not going to deal with it now) took place in February 1888, and April
1888, and is referred to in December of 1888, where a close time from
April to September, was i)roposed by Mr. Phelps with a conditional or
provisional assent by Lord Salisbury. Now I could not have a more
notable instance than this, of the amazing ignorance that prevailed on
the question of the habits and conditions of seal life, because of course,
the suggestion of a " close time", — (and I ask attention to be paid to
this) — to Lord Salisbury who knew at that time as much about seals

70 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. U. P.

as I did six months ago, which was notliing-, imi)lies of course that there
is a legitimate season. A " close time " means a time when you are for-
bidden, and implies a time when you are per-mitted. And this, of course,
had relation to Behring Sea, and to Behriug Sea only. But I need not
say that I do not charge Mr. Phelps with i)ad faith in the matter — I
merely charge him, and those who instruct him, with entire iguorance
in the matter, because the proposition of a close time from April to
September in Behring Sea would have meant to say in other words, no
pelapic sealing in Behring Sea; and I need not say that Mr, Phelps
would have been no party, if he had known it, to the fact of putting
forward a suggestion of a close time (which would have meant the pro-
hibition of pelagic sealing), without conveying to Lord Salisbury if he
knew it — I am sure he did not know it — that that meant no jjermissible
season at all.

Now I leave the question of zone. I have made the suggestion and
I have given the reasons why I think a zone of a character which the
British Commissioners have suggested looking to the fact that a pro-
hibition of twenty miles from the shore means a prohibition of nearer
40 miles if not actually 40, would practically leave, during the breeding
season inside Behring Sea, an ample protection for the great mass of
the fur-seals, and the practical protection of all who were engaged in
the actual business of breeding and nursing while they are there.

Senator Morgan. — Do you offer that in connection with your proj)-
osition for a licensing system, or independently"?

Sir Charles Russell. — I mean the licensing system in connection
with it, so far as regards Behring Sea, with one other imijortant point:
The British Commissioners authorize the suggestion (and I submit it
is one which shows their perfect and entire good faith in the matter),
that there should be an absolute prohibition against any pelagic sealing
vessel entering Behring Sea before the 1st of July. That is in addition
to the zone which I am speaking of. The zone is a perpetual zone, you
understand — a regulation forbidding the entrance into Behring Sea of
any vessel before the 1st of July.

Senator Morgan. — July or June?

Sir Charles Kussell. — July, before the 1st of July; and I shall
show reasons why we justify that.

Lord Hannen. — Do you mean justify it in the sense of proposing it
yourself as the proper time.

Sir Charles Eussell. — Why we justify it as one which would be
effective for the object in view contemplated by the Treaty, and one
which would be just. But before I come to that I have, of course, a
word to say. We admit your perfect right, within your undoubted
jurisdiction, to say, as regards Behring Sea, no vessel shall enter before
the 1st of July. That is within your undoubted authority and juris-
diction. Outside Behring Sea we have already submitted — (E am not
going to re-open the question) for your consideration and determina-
tion, whether your authority extends beyond it"? If your authority
extends beyond it, and you feel justified in exercising that authority,
then of course I have to consider what ought to be the regulation out-
side Behring Sea. And now in that connection, without dwelling upon
tlie 1st of July, I will approach the question fiom the other point of
view, namely, from the point of view of earlier in the season.

Senator Morgan. — The question whether our authority does extend
outside Behring Sea, is one for the determination of the Tribunal.

Sir Charles Kussell. — I cannot doubt that you must determine
what is open to the Tribunal on the question of authority, and if you

ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 71

come to the conclusion that you have authority and you ought to exer-
cise it, then you, of course, have the right to exercise it.

Now, Sir, you will bear in mind, or if you have not it in mind you
will receive it from me for the moment — that the British Commissioners
have stated that tlie worst part of the pehxgic operation so far as eifect-
ing the birth rate of the fur-seal species, is what is described as the
"early spring catch", and the evidence corroborates their opinion — I
will not dwell upon it now; that is to say, the catch beginning far down
south, and made during the migration nortliward to tlie breeding
islands: that those catches begin in the montlis of January and Feb-
ruary, and go on through March, April, May, June and so on, following
the herd, so to speak, in its migration northward; and the British
Commissioners point out with clearness that that is the i)ortion of the
catch in which gravid females are killed, and they pronounce that to
be the kind of killing which it is desirable should be put a stop to.
There is no such thing 1 think practically s])eaking, as the killing of
gravid females in Behring Sea — it is the killing of gravid females on
the migration of the herd northward.

Senator MorctAN. — Is there any disagreement between the parties
here as to the blue line on the map being substautially the route of
travel?

Sir Charles Russell. — There is; but I must ask my friend as far
as he thinks it necessary, to deal with that. I do not myself conceive
that the differences may be important — I do not conceive it to be very
important.

The problem, therefore, is this, as we submit it: how can you make
a Eegulation which will ensure that the gravid females, and the bulk
of the herd connected with the procreation and continuation of the
species shall have reached the Pribilof Islands free from the attack of
the pelagic sealer! Now I think I am stating the pro])ositiou fairly:
the British Commissioners suggest that an effective mode would be to
prevent them sailing from any one of these liucensiug ports before the
tirst of May. Whether that date is late enough or whether the Tri-
bunal may think that that date is late enough I do not know; but they
justify it by saying this. They say: by that time there is far ahead of
the pelagic sealer the great mass of the gravid females; and that does
seem to be borne out to a considerable extent by another Chart of the
United States which is called the ^'Migration Chart", which is n° 7 in
the Counter Case, to which I should like now to draw the attention of
the Tribunal. This, Sir, I think I must ask you to have before you.
You will see in the centre of the map, the months "November",
"December", "January".

I do not thiidv you need really be troubled with those, they are very
unimportant months. The weather is such in those months that pelagic
sealing, practically, can hardly be said to be pursued at all; but now
when you come to the other months, you will see for instance, the
mouths of "February", "March" "April", I wish to indicate that the
hlach dots are intended to represent the /emrt/es, including the gravid
females; and the reJ- dots are intended to represent the males. Now
you will see that during the month of February there is an admixture,
the males preponderating; that during the month of March, again
there is an admixture; but that as you progress in the month of IMarch
the female seals of the gravid herd get ahead of the rest on their way
up to the Islands. You may see that. Sir, just under the word " March".
Again, if you follow the stream right uj), by the month of April you
will see as you follow that line in its bend round, that the females get

?2 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

ahead again there. So iu the month of May; so in the month of June;
so in the month of July. You will observe that iu the months of June
and July the whole of the tail of the herd is male, and that the greater
number of females are all to the front. Now take that fact finally fol-
lowed out, and you will see that when you get to the uortli of the
Aleutiau chain you have nothing but blacJc dots. There the bulls have
got to the islands before, and they are not shewn by this plan. You
have nothing but hlaclc dots there — iu other words a continuous stream
of gravid females on their way to the islands. Now the evidence is —
(I cannot stop to refer to it) — that by the middle of June the great
bulk of the gravid females have got to the Pribilof Islands: that by
the 2()tli of June practically all have got to the Pribilof Islands and
therefore practically all — when I say practically all I do not mean that
there may not be some remaining — but practically all have got to the
islands by the 20th of June; and therefore the proposition is to reg-
ulate the date of sailing from these licensing i)orts so that the great
bulk of the herd shall have got away, and into the Behring Sea on their
way to the Pribilof Islands before they could be taken or overtaken by
pelagic sealers setting out from San Francisco, Vancouver, Port Town-
send, or Victoria.

Lord Hannen. — Upon that assumption we are to i)revent their enter-
ing Behring Sea before the first of July?

Sir Charles Eussell. — I quite agree, because the Commissioners,
apparently, desire to be on the safe side in order to allow the work of
parturition — the business of producing the young — to have been accom-
l)lished before there could be capture.

Lord Hannen. — A zone round the islands would protect that.

Sir Charles Eussell. — That is undoubtedly my opinion if I were
to be asked it. I am putting it ou the authority of those who. —

Lord Hannen. — That is why I asked you, when you said you justi-
fied it, whether you meant yourself to put forward the 1st of July as.
the jiroper time?

Sir Charles Eussell. — Undoubtedly I do not gainsay the sugges-
tion of the Commissioners; for as they think proper to make it, I do not.
in any way oppose it. It does seem to me an unnecessarily wide restric-
tion; but as they have made the suggestion we feel bound to act uponi
it, and put it before the Tribunal.

Now, as bearing on this matter, it is important to call attention to>
distances. We have taken the distances, in order that the Tribunal:
may have them in their minds, from these various ports to one point,
Unimak Pass, which is the principal pass. From San Francisco the
Unimak Pass is 2,080 miles. From Victoria to Unimak Pass is 1,560/
miles.

Senator Morgan. — In a direct line ?

Sir Charles Eussell. — In a direct line. These are all direct lines..
From Port Townsend to Unimak Pass is 1,560 miles, the same as Victo-
riaj and Vancouver is jiractically the same. There is very little differ-
ence.

The President. — Could you state the time required for a sailing;
boat to go from those places to Unimak Pass?

Sir Charles Eussell. — That, of course, is a matter which depends ;
on various circumstances.

Lord Hannen. — Why restrict them then as to the time of sailing!'
Why not say they shall not begin to fish before such and such a timel'

Sir Charles Eussell. — The only reason is the difticulty of checking,.

Lord Hannen. — Other means might be taken for checking.

ORAL ARGUMENT OF feIR CHARLES RUSSELL, Q. C. M. P. 73

Sir Charles Eussell. I quite agree tbat the licensing system
would act as a check.

Lord Hannen. — Tliey could be required to keep a log, stating when
tbey begin to fish, antl where they catch the seals, how many they
catch, and so on.

Sir Charles Russell. — I am coming to that in a moment.

Lord Hannen. — The other way, it seems to me, is a very artificial
way, of regulating the matter, saying they shall not start until a par-
ticular day. It is giving the advantage to particular sealers, and so on.

Senator Morgan. — 1 would suggest to Lord Hannen that this is what
is done in the case of the hair seal on the northeastern coast, by the
laws of Newfoundland.

Sir Charles Eussell. — The last suggestion that I have to make in
this connection — because this will be worked out more elaborately by
reference to the evidence — is that each of these licensed vessels should
be required as a condition to their having a license to preserve an accu-
rate record of their catch, and time, place, age, and sex, and certainly
similar regulations ought to be observ^ed upon the islands.

Now I have said really all that I intend to say in the way of our sug-
gestions, which I confess seem to me to be — I perhaps ought not to
express my own opinion — to have been suggestions conceived in a broad
and liberal spirit by the British Commissioners, and a very large recog-
nition and a very honest recognition of what they conceive to be the
object of this treaty.

Mr. Justice Harlan. — Are they reduced to writing separately?

Sir Charles Eussell. — No; we will put them in a more definite
form later.

Now, Mr. President, I have very little more to say on the question of
regulations except this: Senator Morgan I think already has intimated
the opinion in which we, representing the British Government, entirely
agree. The suggestion of the United States is that you should, in your
regulations, not merely lay down rules, but also lay down sanctions
and remedies and proceedings and methods for carrying out those rules,
for enforcing them. I cannot conceive that that is the function of this
Tribunal at all. It cannot be doubted that when this Tribunal has dis-
charged its functions of intimating the rules which, within its author-
ity, it thinks to be necessary for the object contemplated in the treaty,
that both the United States and Great Britain will be ready to give
effect by adequate measure to the enforcement of those rules on their
repective nationals.

Senator Morgan. — I have been misunderstood, if I was understood
to express the opinion that this Tribunal should enforce its regulations
by prescribing penalties.

Sir Charles Eussell. — I quite agree. I am anticipating that view.
That was not the course which was followed and wliich exists — one of
the Tribunal, I have no doubt, has acquaintance with the working of
it, — in the case of the Janmayen. Each of the powers interested in the
observance of that Janmayen Convention has made its own legislation
directly in restraint of its own nationals, and of course claiming the
right to deal with its own ships and in its own court of judicature. The
notion of an American ship being taken into a British port and there
dealt with, or a British ship, being taken into an American port, is of
course entirely repugnant to the national feeling which would prevail
either in one country or the other.
* The President. — You would also exclude the right of searching?

Sir Charles Eussell. — Certainly. I have dealt with that point
already. Lastly, I have to make one reference. My learned friend

74 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Mr, Phelps in liis printed arjjument make this statement at page 160.
It is in reference to what he supposes to have been the action of Kns-
sia. He says :

The firm and resolute recent action of the Russian Government in prohibiting in
the open sea, near the Commander Islands, the same depredations upon the seal herd
that are comi^lained of by the United States in the present case, and in capturing
the Canadian vessels engaged in it, is well known and will be universally apiiroved.
That Great Britain, strong and fearless to defend her rights in every quarter of the
globe, will send a fleet into those waters to mount guard over the extermination of
the Russian seals by the slaughter of i>regnant and nursing females, is not to be
reasonably expected. The world will see no war between Great Britain and Russia
on that score.

Ko indeed, it will not; because Russia is wise, and is wisely advised
and understands what the limitations of its rights in fiict are. Now I
wish to make this point clear, as my learned friend has invited atten-
tion to it. We know that the Russian Government is — or more cor-
rectly we ought to put it that the United States Government has been
in communication with Russia, and has been endeavouring to get Rus-
sia to make common cause with it upon this question. I refer, Sir, for
this purpose to the dispatch set out in the largest volume of all, volume
three. United States No. 3, 1892, part 4, page 21. It is only a sentence
and I need hardly trouble you to do more than take the reference to it.
It is from Sir Robert Morier to the Marquis of Salisbury, June 10, 1891,
from St. Petersburg:

When your Lordship's telegram of the 2nd instant respeeting the seal question in
the Bering's Sea reached St. Petersburg on Wednesday morning, I chanced to be in
Finland; whither I had gone for an indispensable change of air. M. de Giers also
intended to proceed thither at the end of the week. The places where we were
staying were a considerable distance apart, and I was not sure which day M. de
Giers was leaving St. Petersburg. I did not know whether to go to the capital or
to his country-house. I accordingly telegraphed to Mr. Howard to at once address
a note to the Foreign Office in the sense of Your Lordship's telegram, and arrange to
meet M. de Giers at his country-house ou Sunday. By this means no time was lost,
for as early as Thursday night M. Chichkine, the Under Secretary of Foreign Affairs,
had telegraphed the contents of Mr. Howard's note to M. de Giers, who when I
reached him on Sunday, had had the i)apers connected with the subject sent ux) to
him and was in a position to give a provisional reply.

His Excellency's statement was to the following effect.

The question of seal hunting in the Behring's Sea had formed the subject of con-
tinuous negociatiou between the United States Government and his own for a very
considerable time, and many proposals had been submitted to him by the United
States Department, to none of wliicb, however, had he been able to give his assent.
So far as he could see, your Lordship's proposal was very reasonable, and its prin-
ciple — namely, to give the seal fisheries a year's rest in order to come to a definite
arrangement as to the best means for preventing the destruction of these valuable
animals — was one with which he had the fullest sympathy.

I do not think there is anything else in that that I need read. My
point is to show that Russia was made aware of the pretentions which
the United States was advancing, and declined, as is there stated, to
join in those pretentions; but we are now in a position to put before
you reliably what is the attitude of the Russian Government. That
appears in a Parliamentary paper, with which I am not going to
trouble the Tribunal, but the effect of which I will shortly state.

Mr. Carter. — What is about to be read now?

Sir Charles Russell. — A Parliamentary paper, Russia No. 1, 1893.

Mr. Carter. — Where is that to be found ?

Sir Charles Russell. — It is not to be found in the books. It can-
not be, because it is a paper which was written in 1893.

Mr. Carter. — Do you propose to put it in evidence?

Sir Charles Russell. — 1 am proposing to meet a statement which
Mr. Phelps has made in his i)rinted argument, which bears with it a

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q . C. M. P. 75

certain implication, and to meet that by evidence of historical docu-
ments, to show that implication is not correct.

Mr. Carter. — In other words, yon j)ropose to put it in evidence.

Sir Charles Kussell. — Certainly.

The President. — Mr. Phelps, do you object to that?

Mr. Phelps. — We do not care to object to this paper, Sir. The
whole of it of course goes in, so that we will have the opportunity to
refer to it.

Sir Charles Russell. — I have not the slightest doubt that my
learned friend is in possession of all these papers. I hope he is.

Mr. Phelps. — Of course we are not to be understood as waiving the
ground upon which we have stood all along, that new evidence is not
admissible at this time; but we do not care to raise the objection to
this paper.

Sir Charles Russell. — This must be unarguable. It is not new
evidence, I submit with great deference. It is in reference to a state-
ment of my learned friend from which he wishes the Tribunal to draw
a certain inference, which is in fact incorrect, but which we had no
opportunity of meeting because it appears in the argument.

Mr. Carter. — It certainly is new evidence; but we do not care to
raise any objection on that score. We do not agree that new evidence
is generally admissible.

Sir Charles Russell. — I first of all call attention to this fact (I
am not going to read it in detail; my learned friend will do so) that
when in 1893 the seizures by Russia had taken phice, we called ujion
the representative of the Russiaii Government for an explanation in
the letter of the 2;jth of January, 1S93, from Sir Robert Morier to Lord
Rosebery, page 5 of the correspondence;

His Excellency stated incideutally that he believed that in the case of the sealers
captured last season it wonld be found that none of them had been taken illegally,
for if they had been seized outside of the territorial waters, it was after the clearest
proof that they had just emerged therefrom.

In other words, they say: None of our seizures were against the
rules of international law as to territory, because they were either
within the three miles limit or had just emerged from it, having com-
mitted an oft( nee within it.

Finally this correspondence takes the shape of negociation between
Russia and Great Britain for a Modus vivencU; and that Modus vivendi
stated shortly thus: It is now finally agreed that the zone from the
Russian coast shall be 10 miles and around the Russian seal islands
30 miles; this agreement be it understood being entirely j^rovisional,
each party standing upon its own rights and in no wise aft'ected in its
possession by this provisional or temporary agreement.

Mr. Justice Harlan. — How long was the Modus to last?

Sir Charles Russell. — One year. Each Government standing
upon its own rights and the Russian Government perfectly aware of the
position assumed by the United States, reserving its right to say that
it might extend its territorial jurisdiction for the purpose of putting
sealing down, etc. . . those contentions, of course, being traversed on
the part of Great Britain, but each party standing on its rights. But
the value of the correspondence is this: Tliat there is an entire absence
of that v/hicli has been the great — up to a certain point — argument of
my learned friends of a claim to property in the seal collectively or indi-
vidually, or in respect to the industry founded upon the seal, or that
pelagic sealing was an invasion of that right or industry. Next that
they have recognized that in the circumstances of the case a zone of

7G ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P.

tbirty miles around tbe islands, or being nnder the impression also that
breeding females do go to feed and urging, as you will see from the cor-
respondence, when it is read, that even a sirmller zone may be adequate
to the purpose, yet that thirty miles would be adequate to cover the
extent to which females would go during the nursing season for the pur-
pose of feeding.

And lastly this is the concluding point to which I have to call the
attention of the Tribunal that in the case of the seizures I give you the
names of the vessels, tbe Marie, tbe liosie Olson, and the Vancouver.
Russia claims that those were lawfully captured because they had com-
mitted an offence within the territory of Russia, within the three miles
limit, some there captured, or if not there captured, ijursued, having
offended, within the three miles limit.

But as regards two other vessels, the McGowan and the Ariel, they
have undertaken to pay damages in respect to the seizure of those ves-
sels, because while they allege that they believe it to have been morally
certain that they had been sealing within the three mile limit, they
have not sufficient evidence to justify it, and therefore they are xiayiug
damages in respect to tbe seizure of those two vessels.

Mr. PiiBLPS, — Is that in the correspondence. Sir Charles "?

Sir Charles Russell. — It is not in the correspondence.

Mr. Carter. — Where isiti

Sir Charles Russell. — It is in a telegraphic communication received
from St. Petersburgh, a copy of which will be handed to you.

Mr. Carter. — And which we object to the reception of.

Mr. Phelps. — Of course. We have no means of refuting it.

Sir Charles Russell. — Why do you, if you are not prepared for
the consequences, make a statement in which you seek to imply before
this Tribunal that Russia is making assertions which Russia is not in
fact making?

Mr. Carter. — We make that upon evidence.

Sir Charles Russell. — Where is the evidence? There is not a
particle of evidence to justify it. On the contrary I have pointed out
the statement appearing in the argument of my friend Mr. Phelps, and
it is not supported by any evidence to befouud in the Case or Counter
Case.

Mr. Carter. — Then you do not require any new evidence to refute it.

Sir Charles Russell. — I do not stop to bandy words at this
moment witli my friend.

I had forgotten to mention, — my friend Mr. Robinson very properly
reminds me — tbat one of the stipulations that Russia did not consider
unworthy of its dignity was to reduce the number of seals taken on tliese
seal islands to thirty thousand. That appears in the correspondence;
and also they agree to the presence of an agent of Great Britain on the
islands with reference to this modus vivencli.

Mr. Phelps. — Perhaps my friend Avill allow me to ask his attention
to the debate in the House of Lords on one of the days of last week,
reported in the London Times, in wbich Lord Roscbery made a state-
ment in regard to this, which to my recollection contains nothing about
damages.

Sir Charles Russell. — No; you are perfectly right; it does not.
But I am stating upon direct information from the Foreign Office what
is the actual state of things to-day. I have no objection to my friend
referring to tbe debate at all — not the least.

Tbere was only one other matter I bave to mention. It has nothing
to do with the regulations. You recollect the question of the find-

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 77

ing^s of fact and counter findings suggested respectively by my learned
friends and by ourselves. I am glad to think that you Avill not be
troubled so far as any disagreemoit is concerned. Of course tlie find-
ings will be on the responsibility of the Tribunal; but we have in fact
agreed, and 1 do not think the Tribunal will find there is any difference
between us as to the findings of fact iu relation to the question of dam-
ages.

Mr. Justice Harlan. — Do you mean that the two papers agree, or
that you have since come to an agreement?

air Charles Eussell. — We have agreed upon a via media which
will be handed in at a later stage.

Now, Mr. President, I have concluded all I have to say in discharge
of my duty on this question of regulations ; but I do pray the Tribunal
to bear in mind that I have tried to follow the plan which I outlined
at the commencement of my argument, and I have not built up and
reinforced the points I have been submitting with at all that detail or
reference to evidence which 1 might have done. 1 have tried to out-
line, with the consent and co-operation of my friends, the general
scheme of argument upon the subject of regulations. Having done
that, I leave to my learned friends the task which they are well fitted
to discharge of going into the justification of that scheme in detail.

I will ask the Tribunal to believe that not the British Commissioners
only but the counsel who are representing directly Great Britain in this
matter have approached the question of regulations with an honest
desire to do something to aid the Tribunal in coming to a system of
regulations which should be just in themselves, in view of the common
interests at stake, and which should be efl'ective to the object in view.
We have addressed ourselves to that task in all seriousness, and 1
would ask you to believe, in all honesty of purpose, too; and I hope the
Tribunal will think we have done something which may be of help to
them in the formidable task which they have to discharge.

It remains for me only to express to each member of this Tribunal my
sense of the extreme courtesy and patience with which, taxing them to
a very large extent, I have been treated during this argument.

The President. — Sir Charles, we appreciate your kindness and your
efforts in this direction. We are certainly thankful for all the trouble
you have taken.

[The Tribunal here adjourned for a short time.]

PUR-SEAL ARBITRATION.

ORAL ARGUMENT

ON

E,EG-TJL.^TIOIsrS

BY

Sir RICHARD WEBSTER, Q. C, M. P.,

BEFORE THE

TEIBUI^AL OF AEBITEATION",

CONVENED AT PARIS.

79

THIRTY-SEVENTH DAY, JUNE 13™, 1893.

The President. — Sir RicLard, we sliall be pleased, if you are ready,
?to hear you.

Sir EiCHARD Webster. — Mr. President, I am ixiinfully conscious of
^the time that our case has occupied, and of the extent to which we have
■tresi^assed upon the attention of this Tribunal, but I trust that upon
i:his part of the case I shall be able to give the Arbitrators some sub-
.:stautial assistance at any rate in forming a judgment as to the true
?facts of the case. It is quite imijossible to attempt to touch every point
tthat is referred to in these papers; so to attempt would be to defeat, to
:a large extent, one's object. I do not pretend that this part of the case
^;an be put in the sam.e way, as the arguments on the question of right.
'These are questions of fact upon which there is counter evidence ui)on
?botli sides. It will be my duty as fairly as I can, to put before you the
(material evidence bearing upon the questions of fact which ought, we
submit, to affect your minds in deciding this question of Eegulations.
I will endeavour to exhaust each point as I pass it by so as to curtail
within the shortest possible limits, the time that I must ask you to be
good enough to devote in listening to my observations. It will be con-
venient if I dispose once and for all of this Russian question. It has
a bearing upon Regulations, it has an indirect bearing upon the (|ues-
tiou of property which I discussed some days ago. If I take it at once
as I said, once and for all, I shall clear it away from the minds of the
Tribunal and be able to refer to the incident afterwards without actu-
ally referring to the papers. You will remember. Sir that in the coun-
ter case of the United States at page 29 the United States say:

In making this assertion the United States believe they are fully sustained by
Russia's action during the summer of 1892. In that year sealing vessels assembled
in great numbers about the Commander Islands and killed fur-seals in the extra
territorial waters surrounding this group. Russia anticipating that her seal herd
would be thus preyed upon, had dispatched to those waters in the early part of the
season two cruisers, which seized six vessels, five of them British anil one of them
American, carrying them in from a distance greater than three miles from any land.

Now, Mr. President, I ought to mention that Mr. Coudert, or Mr.
Carter in his argument referred to the Russiaii action, as indicating an
intention by Russia, to make the same kind of claims as those which
w ere made by the United States. We were therefore in a somewhat dif-
ficult position — that whatever our owu knowledge might be with regard
to the matter we were not in a position to state it because as you will
well know as long as matters form partmerely of diplomatic negociations,
is it not considered that they should be brought in any way into the
arena of public discussion; but by the paper of which my friends have
a copy — the Parliamentary paper which was presented to the House of
Commons and House of Lords last week — that restriction upon our
utterances is removed and I am in a position, as the Attorney General
told you, to put before you the simple facts with reference to the mat-
ter in the briefest possible way.

Mr. President, two questions were involved — one the seizure of five
or six British vessels in the year 1892, the other a question of Rcgula-

H
B S, PT XIV 6

82 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

tioiis, ami it is because this paper deals with both tbat I have taken it
first. As you will see in a very few minutes, it has a very important
bearinti" on the question of Kegulations, but 1 mention the two subjects
together so tliat I need not n)eution them again. My learned friend,
Mr, Phelps mentioned today that in the debate in the House of Lords
last week when part of the arrangement respecting Eegulations was
referred to, Lord Kosebery, the Foreign Minister for Great Britain had
not stated that there was any definite arrangement with regard to the
seizures of last year, but as had been in-eviously stated in the House of
Commons by the Under Secretary, the matter was still in negotiation;
and, Mr. President, it was not till to day that the Attorney General or
myself could have told the Tribunal that which the Attorney General
has told you. We knew perfectly well what was happening, but were
not in a position to state it for the reasons I have already mentioned.
The matter had been referred by the Kussian Government as appears
by the papers to a Committee on wliich a very distinguished jurist is
sitting — ]\Ir. Martens one of the gentlemen whose authority we have
cited in the course of the case, and till that Committee reported, the
question of the seizures during the last year could not be dealt with.

Now with regard to the seizures, I Avill dispose of them in a moment.
Russia never did claim at any time to seize these vessels outside the
territorial waters except where there was evidence that they had been
inside. That will appear from the correspondence which I will read in
a moment. I merely mention that in the final arrangement, made as
read to you this morning by the Attorney General the only case in
which they seek or ask to justify the capture i^ where the boats of the
ship herself had been actually engaged in sealing in territorial waters.
In the other case they admit a responsibility and liability to indemnify.

This jjaper from which I am about to read which is now before my
learned friends and before you, would have told you the same story,
but not quite so shortly as the telegram or information from the Foreign
Oftice that the Attorney General read to you this morning. I will
read no more than is necessary and if I might trouble you to take the
paper and to look at p. 3.

In the despatch from Lord Rosebery to Sir Robert Morier on the 18th
January, 1893, occurs this passage.

But the seizures of British vessels by the Rnssiau authorities iii Behring Sea dur-
ing tlie course of last year, at considerable distances from land, render it expedient
to arrive at some definite understanding of the attitude of the Russian Government
in this respect.

I have, therefore, to request that your Excellency will inform the Russian Govern-
ment of the application that has been made by the Canadian sealers.

You will state that in the opinion of Her Majesty's Government, which they doubt
not will be shared by that of Russia, the memorialists ought in justice to receive
early information as to the limits within which tliey may lawfully and safely pursue
their industry.

And then, Sir, on page 4, on the 11th of January, Sir Robert Morier,
writing to Mr, Chichkine the representative of Russia, puts the matter
in these words:

As at present advised Her Majesty's Government proiiose to inform them

That is the sealers :

that the modus vivendi agreed upon between Great Britain and the United States
having been prolonged during the pendency of the arbitration on the questions in
dispute between these two Powers, sealing will be entirely prohibited to their respec-
tive subjects and citizens during the next season in the waters affected by that agree-
ment; but that outside those waters sealing vessels will be at liberty to pursue their

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 83

avocation provided they are careful not to infringe the Russian regulations, which
strictly prohibit the pursuit of seals and other animals within 3 miles of the Russian
coasts and islands.

Then on the 2otli of January at page 5, Sir Robert Morier reports to
Lord Rosebery tlie result of his interview with Mr. ChiclikinCj and I will
read as much as is necessary from that paper:

His Excellency said that he would not be able to do so until my note had been
returned from the Ministry of Domains, which was the Department which dealt
with the question of sealing, and to which it had been sent. He would press its
return, but there could be no doubt what the answer would be. The Russian Govern-
ment were not at present raising the pretension of prohibiting seal fishing on the high
seas, but were only determined to stoj) the resolute and organized attacks made upon
the rookeries within her territorial waters. I said that the strongest warning would
be given to British sealers to abstain from violating Russian territorial waters, and
that Her Majesty's cruizers would be instructed accordingly.

His Excellency stated, incidentally, that he believed that in the case of the
sealers captured last season, it would be found that none of them had been taken
illegally, for if they had been seized outside'territorial waters, it was after the clear-
est proof that they had just emerged from them. I said this was a matter of evidence
in each particular case, which I could not attempt to judge ; but that from the state-
ments made by the Russian cruizers themselves, it was difficult to admit that the
captures were lawful.

I call the attention of the members of the Tribunal j)articularly to
the report of the interview given by Sir Robert Morier, in which the
Russian representative draws the distinction between a legal taking
inside territorial waters, and an illegal taking outside.

Now you may pass over the intermediate correspondence and come
to page 11 to the translation of the letter from M. Chichkine to Sir
Robert Morier which you will lind will have a very important bearing
when I come to discuss the question of Regulations and I read it now
so as not to have to refer to the correspondence again. This is the sec-
ond ]>aragraph:

While thanking you M. I'Ambassadeur, for this action, of which the Imperial
Government takes note, 1 hasten to inform you that the question of the measures to
be adopted to ])revent the destruction of the seal species has been under considera-
tion for some time past, and that I have been obliged to wait the preliminary results
of this investigation before replying to the note which you were so good as to address
to me. In approaching, on the present occasion, the question of the seal fisheries,
I must first of all point out to your Excellency that tlie insufficiency of the strict
application to this matter of the general rules of international law resiiecting terri-
torial waters has been proved by the mere fact that negociations were commenced
in 1887 between the three Powers principally concerned with the object of agreeing
upon special and exceptional measures.

I am desirous to avoid lengthening the matter by unnecessary com-
ment, but I must be allowed to point out that which will appear over
and over again in this correspondence that the attitude of Russia has
been consistent throughout, namely, claiming a right to exercise these
powers within the territorial limit subject to the agreement outside and
a reference to the fact that the general rules of international law are
not sufficient for the purpose required.

Now turning to page 12 the letter continues.

The following figures clearly show th is :

The number of seals to be killed annually is fixed by the Administration in propor-
tion to the total number of seals. In the years 1889 and 1890, before the establish-
ment of the Anglo-American modus vivcndi, the catch amounted to 55,915 and 56,833,
while for the years 1891 and 1892 (after the above-mentioned agreement) the figures
fell to 30,689 and 31,315. On the other hand according to the statistical information
Avhich the Imperial Government, has been able to obtain, the (luantity of seal skins
of Russian origin delivered by the sealers to the London market increased during
those two years in an inlinitely greater proportion. According to the observations
made by the local Administration the uumljer of vessels engaged in sealing and seen
in the neighbourhood of the Commander Islands and lueleu (Robben) Island has
also increased considerably.

84 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

You will find that means seen from the Islands.

The barbarous and illicit proceedings of these sealers are also proved by the fact,
established by seizures, that more than 90 per cent, of the seal skins carried away by
them are those of female seals, who are hardly, if ever, found far from the shore
during the sealing season, and whose destruction entails that of all the young which
they are suckling.

The destructive character of the fishery is also shown by the number of seals
wounded or abandoned on the shore or within territorial waters, and afterwards
found by the local authorities.

Language could not be stronger, Mr, President, to point that which I
desire to bring prominently to the mind of the Tribunal after the fullest
investigation and postponing this matter till there had been complete
investigation, the considered opinion of the Russian authorities, who
had managed the Commander and Robben Islands at any rate not worse
than the United States authorities have managed the Prybilof Islands
is that the female seals are hardly if ever found far from the shore dur-
ing the sealing season, and further they were complaining of the seals
injured in territorial waters, and they gave as evidence the fact that
nuinbers of them have been found on the shore actually abandoned
within the territorial waters. — Then:

The Imperial Gov-ernment on their side do not hesitate to recognize the fact that
protection cannot be carried out in a really satisfactory manner unless it is pre-
ceded by some such agreement,

I need not point out that this is absolutely inconsistent with any
suggestion that Russia themselves meant to take the law into their
own hands.

Accordingly they are disi>osed to enter into negociations at once with the Govern-
ments of Great Britain, and of the United States of America; but they recognise at
the same time the absolute necessity of immediate provisional measures, both on
account of the near approach of the sealing season and in order to be in a position
to reply in good time to the question contained in your Excellency's note of the Uth
(23rd) January,

With this object, and after thorough investigation, the Imperial Government has
thought it necessary to decide on the following measures to be in force during the
year 1893:

I. No Ship unprovided with a special authorization shall be permitted to hunt for
seals within a distance of 10 miles along all the coast belonging to Russia. 2. This
prohibited zone shall be 30 miles wide around tlie Commander Islands and Inlenew
(Robben) Island according to the Russian official maps, which implies that tlie pas-
sage between the Commander Islands will be closed to vessels engaged in sealing.

With regard to the 10 mile zone along the coast, these measures will be justified
by the fact that vessels engaged in the seal fishery generally take up positions at a dis-
tance of from 7 to 9 miles from the coast, while their boats and crews engage, in seal-
ing both on the coast itself and in territorial waters. As soon as a cruizer is sighted
the ships take to the open sea and try to recall their boats from territorial waters
with regard to the 30-mile zone round the islands, this measure is taken with a view
to protect the banks, known by the sealers as "sealing grounds" which extend
round the islands, and are not shown with sufficient accuracy on maps. These
banks are frequented during certain seasons by the female seals, tho killing of
which is particularly destructive to the seal species at the time of the year when
the females are suckling their young, or go to seek food on the banks known as
"sealing grounds". While requesting you Mr. I'Ambassadenr, to bring the forego-
ing considerations to the knowledge of Her Majesty's Government, I think it impor-
tant to insist on the essentially provisional character of the above measures adopted
underpressure of exceptional circumstances which maybe regarded as a case of
force majeure and analogous to cases of legitimate self-defence.

It does not, of course, enter at all into the intention of the Imperial Government
to dispute the generally recognized rules witli respect to territorial waters. In their
opinion, far from attacking these general principles of international law, the meas-
ures which they think necessary to take must be regarded as confirming them, as
the exception proves the rule.

Then occurs a statement which I need not read — I am willing to if my
learned friends wish it — but it is a repetition of the reason why they

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 85

ask for 10 miles because of the vessels stopping outside and tbe boats
tliemselves going in.

Then you- will And, on page 14, Lord Eosebery's reply, agreeing in
tins proposal; I need not read much, but, at the beginning of the letter,
Lord Eosebery calls marked attention to Mr. Ghichkine'a statement:

Her Majesty's Government laave given tbeir most careful consideration to the note
of Mr. Chichkine of the 12th (2Ith) ultimo, inclosed in your Excellency's despatch
of the following day, and stating the measures which the Russian Government deem
necessary for the protection of their sealing interests in the North Pacific during the
approaching fishery season, and which are submitted to Her Majesty's Government
for consideration with a view to their acceptance.

Those measures consist in:

(1) The prohibition of sealing to vessels not specially authorised within a zone of
10 miles from the Russian coast.

(2) The extension of this prohibitive zone to a distance of 30 miles round Rohben
Island and the Commander Islands.

For the purpose of securing the due observance of these restrictions, it is proposed
that the Russian cruisers should be authorised to pursue and seize all vessels whose
boats or crews have been found fisbiug for seals within the prohibited limits, and
further to pursue and search any vessels whose boats have been seen within those
limits whether actually employed in seal hunting or not. In the latter case the
presence on board of instruments specially employed, in seal hunting or of seal-skins,
the majority of which are those of females, is to beheld to afford suiificient i^resump-
tive evidence to justify seizure.

Her Majesty's Government take note of the statements made in M. Chichkine's
note that the Russian Government have no intention of disputing the generally
recognized rules of international law as to territorial waters, that these measures,
of an exceptional and provisional nature, are designed to meet a pressing emergency,
and that Russia is desirous of entering at once upon discussions with the Govern-
ments of Great Britain and the United States with a view to an agreement between
the Powers principally interested for the proper control of the sealing industry.

Then, at page 15, Lord Eosebery undertakes, on behalf of the Govern-
ment, to issue the necessary instructions, and refers to the i^rivilegeof
British vessels resorting to Eussian ports for shelter repairs and sup-
plies; and expresses, as would be expected, the willingness of Her
Majesty's Government to agree in any reasonable arrangement for the
proper protection of seal life. Then:

If these proposals should, as I hope, be agreeable to the Russian Government, I
should be glad to learn at the earliest moment tbeir views as to the limitation which
they would agree to place on the number of seals to be killed on the islands. The
Rei^orts of the British Commissioners as to the care that, as a rule, has heretofore
been taken to prevent anj' excess in this respect on the Komandorski Islands, lead
me to believe that there would be no difficulty in arriving at an agreement on this
point.

My learned friend, Mr. Eobinson, reminded me, and I am very much
obliged to him, because it is important to note, as I shall presently, that
the Eussian Government, as a consideration for Great Britain restrain-
ing the legitimate rights of their sealers, ofitered to reduce or limit the
number of seals to be killed. It appears also in fact on page 15, a little
higher up than that; and these are Lord Eosebery's words:

The Russian Government would further engage that the number of seals to be
killed on the Russian seal islands should be limited to a certain specified number to
be agreed upon before hand, or to a certain proportion, to be equally agreed upon,
of the total number of seals estimated to have resorted to the islands in the season.

The Russian Government would further allow an Agent of the British Government
to land upon the islands for the purpose of consulting with the Russian authorities
on the working and observed results of the arrangement.

Therefore, you will observe that the proposition coming from Eussia
was that, by agreement, there should be a zone of 30 miles and a zone
of 10 miles in order to protect the sealing Islands, an infringement ot
the ordinary territorifil waters; and that, in consideration of those con-
cessions they, Eussia, would limit the number of seals to be killed on
the Island.

86 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Mr. Justice Harlan. — I do not, from that paper of Kussia, find a
proposal made to limit the uumber of seals.

Sir EiciiAKD Webster. — It is stated by Lord Eosebery.

Mr. Justice Haiilan. — It is not material.

Sir Richard Webster. — I do not think it is. I was reading it per-
haps a little too shortly; but I think it will be found, on looking- at the
papers, that it did; but it makes no ditterence. They agreed to it.
Perhaps it would be more important for us if the suggestion came first
from Great Britain.

Now I will ask the Tribunal to turn to page 22 where they will find
the proposal of Russia dated the Gth of April which led up to the
arrangement to which 1 shall be able to refer very shortly. Mr. (Jhich-
kine, writing on the 6tli of April, says:

lu reply to my note of the 12tli (24tli) February, your Excellency was good enough
to send me a copy of I^ord Rosebcry's despatch of the 17th ]\Iarch in which the
British Government proposes to establish at once a modus vivendi on the following
basis:

1. The British Government would forbid their subjects to fish for seals within
zones of 30 and 10 miles, and would ofl'cr the co-operation of their cruizers to carry
out that measure. The Imperial Govcruuicnt ^\ ould engage to hand over to tlie
English cruizers or to the nearest British antliority the English vessels seized out-
side territorial waters in the above mentioned zones, Avhilst tlie English cruizers
would, in reciprocity, hand over the Russian vessels seized under the same circum-
stances.

I need not point out the reasonableness of that provision, and con-
trast it with what is demanded by the United States in this matter.

• 2. The Imperial Government would limit to a specified number the amount of seals
to be killed on tlie islands.

3. The luiperial Government would authorize an agent of the British Government
to proceed to the islands iu order to confer witli the local authorities as to the work-
ing and result of the arrangement.

4. It would be understood that this arrangement should in no way affect the
facilities hitherto afforded in Russian ports to English vessels for refuge, repairs, or
supplies.

5. The arrangement would not have any retrospective effect, more especially as
regards the English vessels seized last year.

I cannot discuss the subject, M. I'Ambassadeur, without calling your attention in
the first instance to this fact, viz., that the object of my note of the 12th (24th) of
February was to warn the British Government of certain legitimate measures of
defence necessitated for the moment by exceptional circumstances, and not to lay
down the basis of a regular niodus vwendi, that is to say, of a bi-lateral ari"augement,
which might be prolonged until the question was definitely settled.

The only idea was to provide a minimum of protective measures intended to pre-
vent the disappearance of the subject of the dispute, even before the negotiations
with regard to it were commenced.

In view of the near approach of the fishing season, which has now already begun,
the Imperial Government considered at the date of my note that there would not be
sufficient time to discuss and to establish a modus vivendi, which would necessarily
afiect not only questions of interest, but also questions of principle.

If it had been intended to lay down bases of a modus vloendi of this kind, the
Imperial Government would not have failed to claim that a restriction of territorial
rights, that is to say, the engagement to limit the number of seals to be killed on
land, should in equity carry with it the corollary of a complete suspension of pelagic
sealing in the open sea. They would have especially regarded it as indispensable to
make their rosej'vations as regards the definitive settlement of the seal question, in
order to retain their entire freedom of view as to the measures to be agreed upon for
the preservation of the seal species, whether by the prohibition or re,i;ulation of
sealing in the open sea, or by the extension of special rights of protection of that
species beyond the various distances commonly designated as the limits of territorial
waters.

Yet, after making these observations, I am authorized, M. I'Ambassadeur, to inform
your I^xcellency that the Imperial Government lieing anxious to meet halfway any
conciliatory ofier on the part of the British Government, are ready to accept the
proposal made in Lord Rosebery's despatch, with the excoxition of some modifications
on the first point.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 87

Thus, the Imperial Government would be disposed to limit for tlie current year the
number of seals to be killed on the islands to a maximum of 30,000, reducing thus
20,000 the average of 50,000 jirovidedfor in their contract with the sealing Company.

They would not object to an Agent of the British Government coming to the
islands in order to discuss matters with the local authorities, and to obtain informa-
tion from them as to the working and results of the arrangement. The i)lace and
the time of his visit should, of course, be tixed hereafter.

Then :

There would certainly be no modification as regards the facilities which English
A'essels enjoy in Russian ports for refuge, repairs or supplies.

The arrangement agreed upon would have no retrosjiective force, because the
diftereut cases of seizures effected last year have been already examined by a special
Commission on the basis of general principles of international law.

It was that to which I referred to-day when 1 told you that we had
known, though we luid not been able to mention it before, that this ques-
tion of the rights and wrongs of last year had been referred to an Inter-
national Committee and we knew that the Russian distinguished adviser
on international law was a member of that Committee, whose opinion we
have already referred to in connection with this case.

Finally, in regard to the first point of the proposal contained in Lord Rosebery's
despatch, the Imperial Government are of opinion that it would be quite impossible
to apply it as it stands, at any rate iiuder the circumstances existing for the present
fishing season, especially as to the engagement to hand over to the English cruisers
or to the nearest British authority the English vessels caught trespassing outside
territorial waters within the forbidden zones of 30 and 10 miles.

Then occurs a discussion, which I do not think my learned friends
will think it necessary for me to read, with regard to the alternative
suggestion. If they should not happen to find a British cruiser, they
must take the vessel to some other port for that purpose.

Then, at the bottom of page 23, Sir Robert Morier states:

That Her Majesty's Government would not consider themselves justified in hand-
ing over British subjects and property captured outside of bona fide territorial waters
to the jurisdiction of any Government but their own. But there ought to be some
way of turning the difficulty, such, for instance, as a British cruiser being stationed
at Petroijaulovsk or Vladivostock.

Then, on page 24, you will find the draft agreement, which is, I
believe, the agreement that has been entered into; I do not remember
any modification of it. If there be, it will appear in the later docur
ments; and I read the first paragraph:

During the year ending the 31 December, 1893, Her Britannic Majesty's Govern-
ment will prohibit British subjects from killing or hunting seals within the follow-
ing limits:

a) Within a zone of 10 marine miles following the sinuosities of the Russian
coasts which border on Behring Sea and any other part of the A'orth I'acific Ocean.

b) Within a zone of 30 marine miles round the Komandorsky Islands, and round
TuMnew (Robben Island).

Then :

Her Britannic Majesty's Government Undertake to co-operate with British cruizers
in preventing British subjects from killing or hunting seals witbin the aforesaid lim-
its. British vessels engaged in killing or hunting seals within the aforesaid limits
may be seized either by British or Russian cruizers, but if seized by the latter they
shall forthwith be handed over at Yokohama, or at any port in the British posses-
sions or to the Commander of any British ship of war for trial by the I5ritish
authorities.

That is what was suggested by Sir Robert Morier as a way out of the
difficulty.

The Imperial Russian Government engage to limit to 30,000 the'number of seals
which may be killed during the whole of the year 1893 upon or around the said
Islands of Komandovsky and Inlenew (Robben Island).

88 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

It is agTeed that a British Agent may when so desired by Her Britannic Majesty's
Government, visit tlie said Ishmds to confer there witli the Authorities and to inquire
into the working and resnlts of the present Agreement.

The present Agreement will in nowise affect the facilities hitherto accorded in
Russian ports to British vessels as regards refuge repairs obtaining supplies or other
matters for which they may properly require access.

It is understood that the present Agreement relates solely to the year 1893. It has
consequently no retroactive force of effect — more esjjecially as regards the British
vessels captured previously by Russian cruizers.

Then on page 27 will be fouucl tlie Kussiau reply to tbat draft.

I have the honour to inform you that the Imperial Government while accepting the
draft arrangement annexed to that communication, ijrefer to give it the character of
an exchange of notes, for the following reasons:

Because the too concise wording of the above-mentioned draft would leave room
for certain misunderstandings and perhaps even for complication, which it would be
desirable to avoid;

Because the Imperial Government could not agree to the draft in question without
some reservations designed to safeguard their freedom of judgment in the future.

It is understood that the agreement to be arrived at between our two Governments
will leave intact all the rights of Russia in her ferritorial waters.

As to our reservations, tliey refer to the points mentioned below:

1. In consenting to hand over to the British authorities the English ships engaged
in sealing within the prohibited zones, we do not wish to prejudice, generally, the
question of the rights of a riverain Power to extend her territorial jurisdiction in
certain special cases beyond waters properly called territorial.

2. The Imperial Government desire to preserve complete liberty of action as to
choosing in the future between the two systems of protecting seals, either by the
method of a prohibited zone or by the method of entirely prohibiting pelagic seal-
ing, or regulating it in the open sea.

3. The present arrangement cannot in any manner be considered as a precedent,
and will be looked upon by us as of an essentially provisional nature, intended to
meet present circumstances,

I pause to note here I tliink notLiug could be more reasonable than
Eussia reserving her position at the present time. We know from the
correspondence that has been printed she had been kept in constant and
close communication with the United States. We know that she
declined to ally herself with the United States in their contention; and
this question is now raised before a great Tribunal, and if the result of
this Tribunal should be to declare property in these animals /erte yiaturce
on the high seas or to declare the right of a nation to exercise these
extraordinary rights of seizure and search, it was certainly most rea-
sonable that Russia should not have bargained herself — so to speak
contracted herself out of the opportunity of taking advantage of this
award.

Senator Morgan. — Has there been any comi^laint or is it a fact that
pelagic hunting has existed on the Japanese or Russian coasts by fol-
lowing up the herds before they reached the lands.

Sir Richard Webster.— To a certain extent, but not much practi-
cally speaking, though there was some, as appears. Until the modus
Vivendi the pelagic sealers had not gone across to the western side of the
ocean.

Mr. Phelps. — Will my learned friend allow me to ask him from what
he infers the Russian Government declined, as he says, to participate
with the United States on the ground they did?

Sir Richard Webster.— The letter has been read and it is printed
at page 22. The date is the 10th June, 1891.

Mr. Phelps.— That I am aware of.

Sir Richard Webster.— It is from Sir Robert Morier to Lord Salis-
bury, and it stated the question of seal hunting in the Behring Sea had
formed the subject of continuous negotiation between the United States
Government and his own for a very considerable time and many j)ro-

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 89

posals liad been submitted to him by the United States Department, to
none of which, however, had he been able to give his assent. There
are other letters, though they are not stronger than that.

Mr. Carter. — Are there any others that have any value?

Sir Richard Webster. — Yes, there are, and 1 will give my learned
friends references to the others, should they desire to know those which
I rely upon, but I am quite satisfied with that I stated from the cor-
respondence to which attention was called this morning and from this
correspondence, it is perfectly i^lain and quite proper that Russia while
declining to endorse the view taken by the United States was naturally
willing and anxious to reserve to herself the benefit of this discussion,
should it turn out the United States were right.

Then, if you will kindly look at the bottom of page 27:

With these reservations, wo accept the British proposal iu the following terms.

There is no alteration in the terms which I read; and the final assent
is given on the 29th of May, 1893, by Lord Rosebery to Mr. Howard :

With regard to the reservations made in Mr. Chichkiue's note yon will state that
Her Majesty's Government have taken note of them, but do not at present propose
to discuss them; that, on the other hand, they must adhere to the reservation pre-
viously made by them, and contained in your note of the 12th of this month, and that
it is understood that the riglits and position of either Power are in no way affected
by tbe conclusion of this provisional arrangement.

Now, Mr. President, on page 29, appears the assurance or answer
from Sir Robert Morier, in consequence of which, as Mr. Phelps
informed the Tribunal, Lord Rosebery last week introduced the Bill to
give efiect to this modus vlvendi; for, without the consent of Parliament,
the rights of British subjects cannot be interfered with on the high seas.
And it was on that occasion, as Mr. Phelps rightly stated, that Lord
Rosebery, not being then in a position to announce the satisfactory con-
clusions with reference to the claims made by Great Britain, stated
that the matter was under discussion ; but it is the fact, as tlie Attorney-
Geueral has told you this morning, since then, having fully investi-
gated the matter, Russia has adopted that line which was in accordance
with all her previous actions, for she stated, as appears by this corre-
spondence, that no vessels had been illegally seized because they were
within the 3 miles or had just gone out of itj and, in accordance with
that, she has acted throughout.

Senator Morgan. — Is it intimated in this correspondence, or is there
any action of the Government, as to how far the Russian Government
would have been authorised to follow those vessels after crossing the
line?

Sir Richard Webster. — I do not know; but I really speak without
having looked up the subject lately,— I do not think that there is any
limit of distance as to hoi pursuit. I know that the question has been
raised whether you can follow them into other territories, — I know it
has been raised with reference to the high seas; and I should think
you can go for 40 or 50 miles in hot pursuit. I am now sijeaking of
matters that have come before me when I was Attorney-General, with
reference to France and Germany, where the right was recognised to
follow vessels that had broken the Fishery Conventions on the high
seas.

Senator Morgan. — Would not that rather be. Sir Richard, ex pro-
pria vifjoref

Sir Richard Webster. — Well, I should hardly say that, Sir; but
by the assent of Nations to the arm of the law being stretched. I do
jiot tliink it would be quite right to say it was done ex projyrio v'ujore^

90 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

though I agree it is an extension of municipal law. That was a point I
endeavoured to argue before you, and I hope made clear, some few
days ago.

From beginning to end of these transactions there is no foundation
for the statement made in the argument that Eussia was exercising
these rights in support of the same principles as the United States were
claiming in 1886 down to 1892 — they had certaiidy as strong a case as
to original jurisdiction. If the United States had a good case up to
that boundary line to the east of it, Kussia had the same case to the
Avest of it, but we know from this and from everything that has gone
before that no such case was made by them. But I ask you. Sir, not to
forget when I come later on to discuss this question of zone that with
the fullest knowledge of the matter and investigation upon their Islands
Russia has come to the conclusion a 30 mile zone is sutlficient and is
only required in consequence of special circumstances and tliat a female
seal when actually at the Islands are never to i)e found tar from the
islands and even in cases in which it is evident the Russians think
during a certain portion of that time they go for food — it is obvious
that the opinion of the Russian otficials is that during a portion of the
time the female seals go out for food, so that I am justified from an
impartial view in one sense, and on the other hand an interested view —
on looking at the matter fairly — in saying that an arrangement has
been come to which is a corroboration of the case the Attorney General
pointed to this morning I pass from that incident. The real importance
of it was that the Tribunal should have the real facts; and as, inter-
locutorily, my friend Mr. Carter spoke of us introducing fresh evi-
dence, I do not agree that that is the right view of the matter. The
Tribunal wislies to have the real facts and from those real facts it will
be seen we submit that the assumption or inference drawn by the
United States as to Russia's action was not well founded.

Now, Mr. President, I desire to supplement what has been said by
the learned Attorney General with regard to the question of area as
brieily as I possibly can. I must not, I am afraid, pass over the sub-
ject altogether because as I indicated to you it is an important ques-
tion. While it is for this Tribunal to decide the ambit of its own
jurisdiction and the terms of the Treaty, it yet is of extreme impor-
tance (having regard to what may be said hereafter as to the conduct
of the two nations in dealing with this matter) that this question of area
should be fully and clearly (but I hope not at too great length), dis-
cussed before the Tribunal. My friends remind me that I had not read
the telegram received from the Foreign Office this morning; but the
learned Attorney General read it.

Mr. Carter. — Yes, and he read it without giving us the opportunity
to object to it which we regretted. But we do object to it and do not
consider it in.

The President. — I consider you may make use of whatever ]»ublic
documents you have, because those we all know. You cannot use them
as evidence, but as general information ; but as to documents which are
not public I think you cannot use them unless they have been inspected
by the other side.

Sir Richard Webster. — The objection of my friend (I say it in all
seriousness), if he will only think for a moment, does not amount to
anything. It is not a question of what may be called public docu-
ments, although it will be a public document before twenty-four, or
forty-eight hours have passed.

Mr. Carter. — It is a telegram.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 91

Sir EiCHARD Webster. — Tkuow; but yon do really have telegrams
sometimes. The fact is that Ilussia insists upon her right to seize ves-
sels whose boats have actually been sealing in territorial waters, and
does not insist, but on the contrary pays compensation to those vessels
whose boats they could not prove to have been inside territorial waters.
What complaint there can be, I cannot understand.

The President. — Of course we do not doubt your assertion per-
sonally, but it is a personal assertion.

Sir Eichard Webster. — You must not say my personal assertion,
Sir.

The President. — You bring- it personally forward.

Sir Eichard Webster. — You will be good enough to understand.
Sir, that it is not my personal assertion — it is a statement made by the
learned Attorney General speaking of a communication made to him in
his official capacity from the Foreign Office. You must not put it on
me — I mean to say a communication would not come to me — it came
to the learned Attorney-General, and was read by him.

Mr. Carter. — We must not admit the right of Counsel on the other
side to read communications (by whatever name they may be called)
merely from the Foreign Office of Great Britain. They are communi-
cations perhaps stating facts which may be deemed of greater or less
importance to the inquiry here, and facts therefore which it may be
necessary for us to meet. We have not a Foreign Office within twelve
hours communication. We cannot communicate with Eussia for the
jjurpose of ascertaining what the full facts were.

It certainly will not be permitted by this Tribunal, I should supi^ose,
that a partial view of facts may be presented here without any oppor-
tunity to the other side to make that view full and complete — that
surely is not the way in which the question should be brought before
this Tribunal. Therefore we feel bound here to object generally to the
introduction of new evidence which certainly must be considered to be
irregular; and inasmuch as no provision is made for it by the Treaty —
and it is particularly irregular as we think for Counsel to get up on the
other side and offer new evidence without even asking the jiermission
of the Tribunal for doing so — getting it in simply without provision,
before the Tribunal, for what it is worth. That of course we must be
understood most distinctly objecting to, and hope it will not be
permitted.

Sir Eichard Webster. — I would rather abstain from answering
any complaint of my friend Mr. Carter. I have not, by my assertion —
nor has my learned friend the Attorney General sought in any way to
introduce fresh evidence. He has simply sought — and I should submit
to the Tribunal for their judgment ijroperly sought — to remove an
impression which would have been made upon the minds of the Tri-
bunal, by a passage in Mr. Phelps' argument for which we knew there
was no foundation.

Mr. Carter. — If there was no foundation for it, that could easily be
shown.

Sir Eichard Webster. — But I say — my friends have the fullest
notice now — if we had made any mistake, they have the same means
of communication that we have.

Mr. Phelps.— With the Foreign Office?

Mr. Tupper. — With Eussia.

Sir Eichard Webster. — With their own Foreign Minister in Eus-
sia. But really, Mr. Phelps, I am sure you will understand what I
mean — that there is no ground for the suggestion that my learned
friend the Attorney General, (in stating that which he knew to be the

92 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

fact officially), was doing otherwise than giving you the earliest friendly
notice, according to our view, that a mistake had been made in the
inference you attempted to ])ut on certain acts in your argument
which for the first time he told us we saw when that argument was
presented.

Mr, Carter. — We take a wholly different view.

The President. — I think we should maintain a distinction between
documents which are j)ublic. If you mejition that which is merely
mentioning any fact or statement from a public paper, it is for us to
consider the importance that should be attached to it; but as to other
documents not public which are altogether i^rivate or almost private —
that are official and confidential, at any rate, communication from your
government to Counsel, I think we must reserve our opinion on that,
and upon the use you may personally be going to make of them, until
those documents or communications have been communicated to your
friends on the other side and inspected by them.

Sir Richard Weester. — I entirely agree if I maybe allowed to
say so; I only desire to point out that the communication to the Attor-
ney General was only the fact of the telegram being receired or com-
munication being received officially from Russia — just in the same man-
ner as this book that I hold uj) — although it has not become a Parlia-
mentary x^aper. But I follow you. Sir, in what you say, and I will take
care that as far as possible it shall not rest upon that statement of the
Attorney General or any document which is not equally at the disposal
of my friends. There will be ample time. The distinction you have
drawn is of course a most imi)ortant one, Sir, and one which at any rate
I should not have overlooked, but I again point out that it is in order
to remove a false impression not established by what I may call, shortly,
the facts of the case.

The President. — We have perfect faith in your intention.

Mr. Phelps. — My friend should understand now that I shall main-
tain in the close of this argument, the absolute correctness of every
thing that is there said in respect of the action of Russia; and, not the
least, from the very correspondence that we have permitted them to
introduce to-day.

Sir Richard Webster. I am perfectly willing that my friend.

The President. — I think we had better let Mr. Phelps argue tha
in his turn.

Sir Richard Webster. — I was about to make that observation. I
cannot preclude my friend Mr. Phelps from arguing every thing; I have
given him the fullest materials uj^on which to support his contention if
he can.

j^ow, Sir, when you were good enough to make that observation to
me, I was about to argue, and to argue for a very short time as briefly
as I possibly can, the question of jurisdiction.

Senator Morgan. — Before you proceed to that, is this agreement of
Russia to pay damages part of the modus vivendif

Sir Richard Webster. — ISTo, quite independent — it is kept inde-
pendent by both. It is stated in terms that the modus vivendi is to
have no operation on the seizures last year which were to be governed
by the ordinary principles of International law.

It is uuderstood that the present Agreement relates solely to the year 1893. It has
consequently no retroactive force or eifect — more especially as regards the British
vessels previously seized by Russian cruizers.

Neither Great Britain nor Russia wished or intended to put that as
operating with regard to those seizures — they desired that that should
be outside. May I be x^ermitted to remind you again that the question

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 93

ofliability of Eussia was referred to a Committee; aiul it was not (this
appears iu these. documents), until after that Committee had reported
that the decision was come to.

I must not be tempted to make any further incursion on my time or
upon the time of the Tribunal by referring to the observation of Mr.
Phelps. I pass at once to the point to which I invite a few minutes
attention, and that is as to what is the area over which the Regulations
are to be made.

Now I begin by saying that if it is desirable to consider the whole
question of seal preservation, most imquestionably the area outside
Behring Sea as well as the area f«.s/rfe Behring Sea, ought to be con-
sidered; and not by one single word of mine do I mean to. —

Senator Morgan. — Do you mean that is within the powers of the
Tribunal.

Sir EiCHARD Webster. — ISTo, I say it is not witliin the powers of
this Tribunal — I say it is a general question of dealing with seal life
as a whole which ought to be dealt with by anybody who is discussing
the whole question.

Senator Morgan. — How can we deal with it unless it is within the
Xjowers of the Tribunal?

Sir EiCHARD Webster. — It is contended by us Senator that it is
not within the powers of the Tri])unal. It has been argued by my
friend that it is not. He asked me to present to the Tribunal any addi-
tional observations that occurred to me on that question of area and I
was about to present to you some observations and submit them to
your judgment, to show that the ambit of Article VII is the same as
the ambit of Article VI — in other words that the ambit of Article VII
relates to regulations to be made in some part of Behring Sea east-
ward of the line of demarcation detined by the Treaty of 18G7.

Nobody will at any rate accuse me, I am sure, of desiring in any way
to oveilook or minimise or belittle the difficulties which are in my way.
I quite agree if you simply look at the language of Article VII by
itself without reference to the rest of the Treaty, without reference to
the other arguments words used at the same time, or without reference
to the real questions which had arisen between the parties, then you
might say the words are sufficiently large. But as a question of con-
struction I am submitting to the Tribunal that the ambit of Article VII
Avas intended to be the same as that which had been the subject of
discussion and dispute between the parties, and which is covered by
Article VI.

I must, 1 am afraid, refer to a very few documents. I will ask the
Tribunal to be good enough to follow me with them that I may be as
brief as I possibly can. I will ask them to take the United States
Appendix, volume I; and I will refer only to documents in that book,
Avitli one very brief exception. At page 28G the letter under date
of the 17th of December, 181)0, from Mr. Blaine they will lind the first
form of Article VII. It was then the 6th question and it is well that
I should read to the Tribunal what the first form of Article VII was :

If the determination of the foregoing questions shall leave the subject in such
position that tlie concurrence of Great Britain is necessary in prescribing regula-
tions lor the killing of the fur-seal in any part of the waters of Behring Sea, then it
shall be further determined: First, hoAV far, if at all, outside the ordinary territo-
rial limits it is necessary that the United States should exercise an exclusive juris-
diction in order to protect the seal for the time liA^ing upon the islands of the United
States and feeding therefrom. Second, whether a closed season (during which the
killing of seals iu the waters of Behring Sea outside the ordinary territorial limit
shall be prohibited) is necessary to save tjie seal-iishin^ industry, so valuable and

94 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

important to mankind, from deterioration or destruction. And, if so, tliird, what
months or ])arts of montlis sliould bo included in such season, and over "what waters
it should extend.

There will be found in that letter, Mr. President, other passages sup-
T)ortiug our views; but in tlie interest of that brevity to which, I have
alluded very often I am going to keep very closely indeed to this mat-
ter and refer only to the most important passages. So far, I submit, it
cannot be successfully disputed that the question distinctly pointed to
Behring Sea or a part of Behring Sea, and had no reference to regula-
tions outside Behring Sea.

That form of question was objected to by Lord Salisbury on the 21st
of February, and in view of the suggestion that by the terms of the
treaty we are supposed, to have enlarged that question I will ask the
Tribunal to look at the language in which that question was objected
to. 1 refer to page 294 of the same volume, reading from the letter of
the 21st of February, 1891, just before the end of the letter.

The sixth question, which deals with the issues that will arise in case the con-
troversy should be decided in favor of Great Britain, would perhaps more iitly
form the substance of a separate reference. Her Majesty's Government have no
objection to refer the general question of a close time to arbitration, or to ascer-
tain by that means how far the enactment of such a provision is necessary for the
preservation of the seal species; but any such reference ought not to contain words
appearing to attribute special and abnormal rights in the matter to the United
States.

On the 14th of April, at page 295, you will find the sixth question
repeated by Mr. Blaine, with this comment in the beginning:

While Lord Salisbury suggests a different mode of procedure from that embodied
in the sixth question, the President does not understand him actually to object to
the (question, and he therefore assumes that it is agreed to.

Then, Mr. President, Mr. Blaine again repeats the sixth question in
the same terms as before, containing in it the words:

in any part of the waters of Behring Sea, then it shall be further determined : First,
how far, if at all, outside the ordinary territorial limits it is necessary that the
United States should exercise an exclusive jurisdiction in order to protect the seal
for the time living upon the islands of the United States and feeding therefrom?
Second, whether a closed season (during which the killing of seals in the waters of
Behring Sea outside the ordinary territorial limits shall be prohibited) is necessary
to save the seal-fishing industry, so valuable and important to mankind, from dete-
rioration or destruction? And, if so, third, what months or parts of months should
bo included in such season, and over what waters it should extend?

On the 3rd of June, 1891, page 305, Sir Julian Pauncefote proposes
the commission of exi^erts, which, as you are aware, subsequently took
the form of the two commissioners nominated by either party.

In lien thereof they propose the appointment of a commission to consist of four
experts, of whom two shall be nominated by each Government, and a chairman who
shall be nominated by the Arbitrators. The Commission shall examine and report
on the question which follows :

For the purpose of preserving the fur-seal race in Behring Sea from extermination,
what international arrangements, if any, are necessary between Great Britain and
the United States and Russia or any other power?

On the 4th of June, page 307, Mr. Wharton, writing to Sir Julian
Pauncefote — when, as you will see Mr. President, there was no dispute
about the question at all — uses this language. I read from page 307,
the 5th line from the top :

I am also directed to remind you that the contention between the United States
and Great Britain has been limited to that part of Behring Sea eastward of the line
of demarcation described in our convention with Russia, to which reference has
already been made, and that Russia has never asserted any rights in these waters
afi'ecting the subject-matter of this contention, and can not therefore be a necessary

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 95

party to these nefrotiations if they are not now improperly expanded. Under the
statutes of the United States the President is authorized to prohihit sealing in the
Behring Sea within the limits described in our convention with Russia and to restrict
the killing of seals on the islands of the United States, but no authority is conferred
upon him to prohibit or make penal the taking of seals in the waters of Behring Sea
westward of the line referred to or upon any of the shores or islands thereof. It was
never supposed by anyone representing the Government of the United States in this
correspondence, or by the President, that an agreement for a modus vivendi could be
broader than the subject of contention stated in the correspondence of the respective
governments.

I need not remind yoa, Mr. President, the modus vivendi are tempo-
rary regulations — regulations for 1891 and regulations for 3892.

Negotiations for an arbitration have been proceeding between the United States
and Great Britain, and, if these powers are competent to settle by this friendly
method their respective rights and relations in the disputed waters upon a perma-
nent basis, it would seem to foHow that no question could arise as to their compe-
tency to deal directly with the subject for a single season.

That is, of course, my point put very graphically and clearly by Mr.
Wharton.

On the 9th of June, page 312 of the same volume —

Lord Hannbn, — We have had all these, you know. I see every pas-
sage has been scored by me as already read.

Sir Richard Webster. — I will accept the hint, my Lord. I am
extremely obliged for a hint of tli^ kind; and whatever may be the
conseqnences to myself I am quite satisfied, I may say, to take the sug-
gestion made by any member of the Tribunal.

The President. — Do you not believe the limitation put by Mr.
Wharton in this dispatch of June 4th, related merely to the preroga-
tive of the President?

Sir Richard Webster. — Certainly, Sir.

The President. — And you say the modus vivendi practically entered
into afterwards had been submitted to the Senate"?

Sir Richard Webster. — But that also was limited to the same
area.

The President. — The point of Mr. Wharton is that the President
could only make regulations temporary for the Behring Sea.

Sir Richard Webster. — You will observe. Sir, that the modus
vivendi which goes to the Senate goes no further. The modus vivendi
does not go outside Beliring Sea at all. That is my view.

The President. — All these treaties went to the Senate when they
had nothing to do with the power of the President.

Sir Richard Webster. — I entirely agree, Mr. President. I point
out that the modus vivendi^ to which you have referred, which went to
the Senate, limited the damages to be paid and limited the remedies
to be given to the respective Governments to the area of Behring Sea.

S'enator Morgan. — Do you mean the first or the second?

Sir Richard Webster. — Both of them — both in 1891 and in 1892.

Senator Morgan. — I am not aware that the one of 1891 went to the
Senate.

Sir Richard Webster. — Then I correct that with regard to that
one going to the Senate.

Senator Morgan. — The one of 1891 did not go to the Senate, but
the one of 1892 did go to the Senate, and was incori^orated in the
treaty.

Sir Richard Webster. — My mind is entirely acting ujion the same
line. Whether 1 am right or wrong I have no right to say.

96 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

The President. — I think there is a distinct intimation in the letter
of Mr. Wharton, at page 315, that the preservation is to be extended
to the North Pacilic Ocean.

Sir EiciiAiiD Webster. — Becanse, Mr. President, you will remem-
ber that there was proceeding at the same time the collateral line of
negotiation with regard to an arrangement to which all the interested
nations should become parties. You have to consider most carefully
whether the letters which are referred to relate to the discussion
between the United States and Great Britain solely, or relate to that
other negotiation which was going on all the time.

Would you kindly look. Sir, to the letter you have been referring to,
page 316.

Mr. Wharton to Sir Julian Pauncefote.

Department of State, WasMngton, June 13, 1S91.
Sir: Tho President dii'ects me to say, in response to your note of this date, that
his assent to the proposition for a joint commission, as expressed in my note of Juno
9, was given in tlie expectation that hotli Governments would use every projier
effort to adjust the remaining points of difference in the general correspondence
relating to arbitration, and to agree upon the definite terms of a submission and of
the appointment of a joint commission without unnecessary delay.

Therefore I submit that independently and collaterally to the agree-
ment which affected Great Britain, and affected the United States
alone, there was this parallel line of negotiation; and my reply to that
reference to the North Pacific, Sir, is that you will iind the North
Pacific referred to many times, and referred to by nobody more i)oint-
edly than by Lord Salisbury, at a time when he was desirous and at a
time when Mr. Blaine on behalf of the United States was not desirous
that the whole question should be dealt with in the way of arrange-
uient between the United States, Great Britain and other nations who
were to be interested in the matter.

That is my answer to the i)oint to which you were good enough to
call my attention. I submit you will not forget, Sir, that the United
States Government did not attemj^t to go outside Behring Sea until
this year. It was only in this year, 1893, attendiug the sitting of this
Arbitration, while the Arbitrators were actually sitting, that a bill
was passed to enable the President to give effect, so far as United
States citizen's were concerned, to any award made by this Tribunal.
Therefore, the action of both countries, both Great Britain and the
United States, points to the fact that up to the time of the delivery of
these arguments, the suggestion of the Tribunal being seized of the
control of matters outside Behring Sea had not, at any rate, as we
submit, formed the subject of agreement or even of discussion between
the parties.

I equally agree — I have said so more than once, if you merely take
the language of article 7 quite apart from the other articles of the
treaty, quite apart from the fact that you are dealing with questions
which have arisen concerning the preservation of the fur-seal in or
habitually resorting to the said sea, if you will look at the language of
article. 7 apart from that, the terms would seem to be wide enough to
give you power to go below.

Senator Morgan. — The same terms are used in article I.

Sir EiCHARD Webster. — I quite agree, sir; and that, of course,
does not militate against my point, Avhether it be a good point or
whether it be a bad point.

Senator Morgan. — I had su])posed when the treaty came to be for-
mulated and the text was finally determined, that the question was

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 97

changed from one of geographical boundaries limited by Behring Sea
to one rehitiug to a class of seals that were in or habitually resorting
to Behring Sea, and that therefore the powers of the Tribunal were
extended to such regulations as might be sufticient and proper for the
protection of all that class of seals.

Sir Richard Webster. — Mr. Senator, I cannot help saying — I say
it with all respect — that I think any such view would be, looking at it
broadly, a one-sided and unfair view. The United States within their
rights, for reasons best known to themselves, had said, "We will not
allow you to bring before the Tribunal as a matter of regulation any-
thing upon the islands". The United States, for reasons best known
to themselves, endeavored to withdraw from the Tribunal even the
consideration of what was going on upon the islands. They have pro-
tested that it is immaterial except so far as it bears on the question of
decrease. They could not, of course, shut our mouths with regard to
that part of the case; but they said, "Regulations upon the islands as
such cannot be made", and the Attorney-General agrees, and I of
course agree, that that is so. But it is equally certain that regulations
might be necessary for the preservation of the seal species upon the
islands. It is perfectly plain they might be necessary, as, for instance,
if the lease pernutted much too large a number to be killed. Suppos-
ing the 100,000 a year should turn out to be much more than ought to
be killed on the islands. There is nothing more unreasonable in the
area outside Behring Sea not being submitted to this Tribunal any
more than the question of regulations on the islands being submitted.

Senator Morgan. — Regulations on the Islands, Sir Richard, were not
even the subject of negotiation.

Sir Richard Webster. — I beg Senator Morgan's pardon, with great
deference. I do not desire to go back upon that; but I could point out,
if I were to go into the whole of this correspondence, that in the earlier
stages that it*was suggested on behalf of Great Britain, and objected
to by the United States.

Senator Morgan. — But it was abandoned.

Sir Richard Webster. — But that is my whole point, Mr. Senator.
You do not shut it out from the area of investigation when it has been
abandoned.

Senator Morgan.— I thought it did.

Sir Richard Webster. — Well, you shut it out from being that which
was to be dealt with by the parties, but it is clear that the original con-
ception of Sir Julian Pauncefote was that the whole question of seal
life should be examined into, and I must not be tempted by what you
have said to me but I must remind you that the Commissioners in 1891
put it beyond all question that Lord Salisbury did instruct the British
Commissioners to go into the whole matter.

Senator Morgan. — That was before the Treaty was signed.

Sir Richard Webster. — But it would not make any difference. Sir.
May I remind you. Senator Morgan, that when we were arguing some days
ago with regard to the question of the function of the Commissioners,
you then put to us that it was all in view of the treaty. Now when I
remind you of this power of the Commissioners, you say it was before
the treaty was signed. I only ask the same rule may be apidied in
both cases.

I will not pursue that further. I will go at once to my point, if I can.
1 only say, with great respect, to every member of this Tribunal, that as
between the parties, what was submitted to this Tribunal was jurisdic-
tion over and regulations in Behring Sea, and that the United States
. B S, PT XIV 7

98 OEAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

withdrew, properly if you like — I care not whether properly or improp-
erly withdrew within their rights direct jurisdiction over the islands j
and I say equally that Great Britain never submitted, if that is the
j)roper expression, jurisdiction as to regulations outside Behring Sea.

Senator Morgan. — I did not insist upon that. I insisted that both
Governments had agreed that this Tribunal might take cognizance of
the necessary measures for the protection of fur-seals in or habitually
resorting to Behring Sea.

Sir KiCHARD Webster. — If you were to take those words by them-
selves, they would include the islands. If the words were to be strained
against me in that way, it would actually include the" islands. The
measures which are necessary to preserve the seals —

The President. — But there are other words.

Sir Richard Webster. — I say if you were to take the words the
learned Senator puts to me by themselves, it would have included the
islands.

Senator Morgan. — Not unless the Sea means islands. I do not see
how they could.

Sir Richard Webster, — I must not appear to be arguing with you
too much, Sir; but I will call attention to the "proper protection and
preservation of the fur-seal in or habitually resorting to Behring Sea".
Now, if the words had not followed, "What concurrent regulations
outside the jurisdictional limits of the Governments are necessary", then
the words which you were good enough to call my attention, namely,
" regulations for the preservation of the fur-seal frequenting the islands"
would have included the islands as well. It is for that reason, Sir,
that I press upon this Tribunal that whatever may be the construction
they put upon Article VII, which was entirely within their own power,
I cannot do more than suggest the view that we contend for to them,
whatever construction they put upon it : viz that Great Britain in agree-
ing to this Treaty, was neither told, nor believed, that th'ey agreeing to
submitting regulations outside of the Behring Sea to Arbitrators.

I have said all I intend to say upon the matter, because it has been
fully argued; and it was only delierence to the wish of my learned
friend, the Attorney- General, that I referred to the matter at all again.

Senator Morgan. — I know you will pardon my desire to ascertain
exactly what are the powers of this Tribunal because I do not wish to
exceed them in any case or under any circumstances. This is all I am
addressing my remarks to.

Sir Richard Webster. — Now, Mr. President, I shall not refer again
to the question of area ; but I will ask you to permit me to deal with
Behring Sea first; because whatever be the view, that which gave rise
to the discussion, that which called for this Treaty, that which the
United States sought to interfere with, was Behring Sea. And I cannot
help thinking that upon this question — it is not a matter which you will
lose sight of at all — that up to this day they have never moved hand or
foot to interfere with their own nationals and their own ships that were
sealing outside Behring Sea, almost to as great an extent as the vessels
of other nations. Therefore I shall not be doing wrong if I direct the
attention of the Tribunal as closely as I can to tlie question of Behring
Sea.

Mr. President, I propose to state the propositions to which I am going
to address my argument. I have formulated them because, as I indicated
to you early this afternoon, I believe no living man, certainly no man
with my capacilies, could possibly hope with effect to address the Tri-
bunal ux)on every issue in this case. Every single matter has been

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 99

picked out and made the subject of voluminous affidavits, without the
least regard to whether it was of great importance or not; and I hope
to concentrate the attention of the Tribunal upon the important points.

I accept the two cardinal principles recognized by the British Com-
missioners in their most impartial and fair report — a report which never
ought to have been attacked as it has been — that no gravid female
ought to be killed, so far as it can reasonably be avoided, and that no
nursing female upon whose life of the pup depends, ought to be slaugh-
tered, or injured in any way.

Those are the two principles upon which I propose to argue this ques-
tion of regulations. Do not let it be thought that I make those con-
cessions from the point of view of one course being cruel and the
other not. I trust that I have as strong a feeling upon the question of
cruelty to animals as anybody living; but I shall demonstrate, I trust,
before I come to the end of the argument on the question of regula-
tions, that the outcry, the prejudice, that has been endeavored to be
imported into this case from the point of view of cruelty, the exagger-
ated color which has been given to incidents that do occur or have
occurred in the past, is wholly unjustifiable and unwarranted, and that
when you look at the real facts, we have nothing- to fear from an exami-
nation of this case from the point of view of cruelt3\ 1 merely men-
tioned that. Sir, that you may not think that I am shrinking from any
onus or burden that may rest upon me in enunciating these propositions.
1 do not enunciate them upon any consideration from the point of view
of cruelty. I look ui)on them, so far as a counsel may look upon them,
in the point of view of what ought to be provided.

It seems to me that upon the simj)le principle that has governed and
controlled the game laws of all civilized people, the killing of a female
which is about to bring forth its young, or upon whose life the lives of
the young are dependent, is a matter which no Tribunal would endorse
by recommendation, and that therefore the contrary of that what would
commend itself to the mind of this Tribunal.

From that point of view. Sir, what do I propose to establish? I pro-
pose to establish on testimony quite independent of any rei)ort which
has been disclosed to us during the course of these proceedings; —
although I shall not hesitate to make plain what has been the conduct
of the United States in connection with Elliott's report — I propose to
establish upon our evidence which was obtained long before we had
seen or knew of the contents of Mr. Elliott's report, the following pro-
positions: that the thick zone of seals is near the islands; that is to
say that the zone in which the seals ought to be preserved by their
numbers, and ought to be left undisturbed, is to be found near the
islands; that outside a zone of twenty miles, the seals are compara-
tively sparse, that is to say, as compared with the numbers that are
inside the twenty miles, very sparse indeed; but that outside the zone
of twenty miles, they become so sparse that they may be taken to be
scattered seals, as distinguished from what I may call numerous, or
seals in large numbers; and in that connection I wish to submit to the
Tribunal that a zone of thirty miles, for reasons which I shall call atten-
tion to upon the evidence, being the same distance which has been, as
you know, already the subject of negotiation between Russia and Great
Britain, gives a margin of very great safety. Add to that the obser-
vation already made by my learned leader, that all these zones have
attached to them, ex necessitate, another margin which may be \n\t at
twenty-five to fifty per cent, due to the absolute necessity of the per-
sons who have to respect the zones not tresx)assing within them.

100 OliAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

So much for what I propose to establish as to the question of the
population of Behriug Sea by seals. I then proi)ose, Sir, to establish
that as a rule the seals do not feed while resorting to the islands. 1
must not be mivsunderstood or my language must not be so framed that
my learned friends can merely quote it without fully apineciating what
I mean. I am not suggesting that occasional seals may not go out and
get food. I am not suggesting that early in the year before they go to
the islands, and later in the year, even though they may be going back
again for a small })ortion of time, two or three days, that they never
feed, nor anything of that kind. My case is that speaking of the seals,
both male and female, while they are upon the islands as distinguished
from being in the Sea, they do not feed. They go in the water con-
stantly while they are upon the islands. We know that practically
every seal upon the islands, other than the bulls, goes into the sea.
But the important contention will be upon tlie evidence that the seals,
speaking of them as animals Avhich are for the time being out of the
water and on the land, do not feed.

Next I shall endeavour to establish that from three to four weeks
certainly, I know that there is some evidence of a rather less length of
time, but that from three to four weeks after the birth of the i^up the
females do not go into the water again, or, in other words, that for a
period of from 17 days as a minimum up to four or five weeks as a
maximum, although the work of the nutrition of the pup is going on
during that time, although possibly the growth is more rapid then tlian
at other times the mother is able to supply the milk without obtaining
any food other than that which her own condition gives. That is by
no means unknown altogether in natural history, 1 only mention that
by the way, but that the Tribunal may understand my case in regard
to that matter I repeat, speaking of the females, it a])pears that from
three to four weeks after the birth of the pup, the mother does not go
to the sea for food.

Lord Hannen. — In order that I may gather precisely your meaning
what other mammal is there known where under those circumstances
the female does not feed.

Sir Richard Webster. — Both the other races of seals which is the
nearest possible the hair seal and I think the harp seal, but there is evi-
dence about them my Lord, and ap])arently the walrus and I rather
think the sea lion; there are, four or five of this group of animals that
have this peculiarity, or rather feature, because I do not think it is
right to call it a peculiarity. I subn)it the i)eriod of 17 days or what-
ever it may be is quite as remarkable as any other period.

Lord Hannen. — 1 cannot agree to that. A 17 days' fast is not as
remarkable as 10 days.

Sir Richard Webster. — Ko, but then I had not said 10 days, my
Lord. I only said from the point of view we are considering the animal
must have drawn on some internal lesources during that 14, 15, 10 or
17 days. I think there can be no doubt about it. Your Lordship does
not desire that 1 should argue the point now?

Lord IJ ANNEN. — Jn^o, I only wanted to know what was passing in your
mind. You say that the other pinnipeds have the same characteristic.

Sir Richard Webster. — Yes, but I think one can see, when one
comes to consider this question, as fairly as possible, for some reason or
other the habits of this seal necessitate in both male and fennile the
power of self-sustenatiou or support for a considerable period of time.
I think the evidence as to when the pup can support itself is left in a
very uncertain condition. There is substantial evidence that it does
begin to support itself after three or four weeks old, not that it ceases

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 101

from sucking; and probably meinbers of tbe Tribmial will know if tbey
bave studied natural bistory tbat many animals go on sucking for a
long time after it is unnecessary. It is not unknown witli Ibur-footed
animals, and I believe also, not unknown witb otbers — it is known witb
regard to descendants of tbe liuman race. It is a fact. It is a fact,
and you sbould by no means draw tbe conclusion tbat pups cannot
sui)port tbemselves, because wben killed tbey bave milk in tbem.

A striking instance of tbat was given by my learned friend Mr. Cou-
dert. He said tbe i)ups billed in October or November bad milk in
tliem, and suggested tbat this proved tbat tbey were not able to sup-
port tbemselves because tbey bad milk in tbem, but tbat is at a time
wben, according to all accounts, tbey would be able to support tbem-
selves, because tbey were witbin a day or two of taking to tbe water
for tbeir winter voyage. I submit tbat tbere is no doul)t that as long
as tbere are female seals on tbe land witb milk, some of tbese pups will
suck tbeir motbers wben tbey get the opportunity. I only mention
tbat to sbow bow very uncertain is tbe evidence upon wbicb you would
form a conclusion as to wben tbe pup can support itself is, I tbink,
after 4 or 5 or 6 weeks or two montbs tbe piri^s do feed in tbe sea partly
upon sea animals of tbe small kind and partly u])ou tbe algw or sea-
weed, and are not absolutely dependent on tbe motber but can support
tbemselves very soon after four or five weeks.

I tbink it must be so for anotber reason, wbicb I will expand later
on. Sbortly after tbe Gtb of July, large numbers of pups were found
in otber parts of tbe island ; and it is doubtful if tbeir motbers find them
again. I do not mention tbat for tbe sake of saying tbat tbe motber
has not a natural instinct to come back to tbe pup; but it will be found
to have some bearing upon tbe question whether tbe pu]) is absolutely
dependent on tbe motber after a certain date.

Then, in this connection of food, I shall call attention to tbe very
remarkable evidence wbicb up, to the time of this case, has never been
disputed. It is not a very savoury subject, but it is one wbicb bas to
be examined with some little care; I mean, tbe absence of all excreta
or dejecta from these animals upon tbe Islands.

1 mention tbat, because it is a most remarkable tbing, wben we come
to the United States Case, tbey think nothing of throwing overboard
tbe unanimous testimony and consent of everyl3ody else who has exam-
ined tbe question previously saying that an affidavit made for tbe pur-
X)ose of this case is to be preferred to tbe knowledge of other people who
have independently examined this matter without tlie slightest motive
for saying that which is untrue or to exaggerate it. I shall bave to
call attention to that in connexion witb an incident to which I shall
refer. Then, following out this line of argument I shall call attention
to the fact tbat upon the evidence tbere is abundance of food near the
islands, and further to a very remarkable solution which is endeav-
oured to be given by one of the United States witnesses with regard to
why the females do not take the food near the islands which he admits
to be there in large (|uantities. That is that some males are so busy
catching the fish tbat the female seal knowing that tbere are plenty
catching these fish she goes to a place which is more distant to catch
other fish, because she will be less disturbed than where the males are
near tbe islands. It is a remarkable suggestion and does great credit
to the gentleman who thought it out. I will read that affidavit in
connection with a part of the case to wbicb I have referred namely, the
proof that there is abundance of food near tbe islands, and then I shall
endeavour to make good tbe statement made by the Attorney General

1

that there is substantial evidence leadbig us to tbe belief that tbe

102 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

females killed at long distances from the islands are probably females
in whom the milk is drying up, or wlio have left the islands not with the
intention of returning during that season.

That might be for many reasons, among others, the death of the pup,
which we know occurs, and it is the case of the United States that it
does occur from causes perfectly independent of pelagic sealing, and
also from the fact that the earlier births — pups born in the middle of
June, some even in the earlier days of June — those which are born
before the end of June would be weaned or independent of the mother
some time at the end of July or the beginning of August which may
account as it does for a certain number of females with milk being killed.
It is an important thing to note in the United States aflidavits scarcely
any attention has been called to this question, what was the condition
of the milk found in the mother. As I submit, upon the fair view of
the evidence in which nursing mothers have been slaughtered by
pelagic sealing that might be the reason.

Theu Mr. President you will notice that I have endeavoured to keep
all questions of attack upon the way in which the islands have been
managed quite independently to the end because I want, if the Tribu-
nal will believe in my wish to argue, fairly the question of regulatious
from the point of view of what they ought to be assuming the islands
to be pro]ierly managed — what would be the proper regulations neces-
sary for the preservation of life, that is to say proper regulations at sea
for the preservation of the fur seal.

It cannot be seriously contended that it is necessary to preserve seals
at sea in order that the United States may be able to kill a greater
quantity on land. It would be most unreasonable, it would be most
unjust, it would be most unfair, having regard to the basis upon which
we are arguing this question of Regulations; and, therefore, I submit
that " necessarj^" must mean necessary upon the assumption that proper
Regulations are in force and are enjoined upon the Islands in order to
prevent an undue and improper killing of seals there. In that conec-
tion, I shall have to consider this question; Aye or no, it is true that
the" decrease, such as it is, is due to the action of pelagic sealing? And,
in that respect, I shall have to call attention to the facts which, of
course, must be expanded more at length to show that now you have
the whole facts before you, if you look at what is the real condition of
the rookeries upon the Islands and on the number of males that have
been killed, the size of the skins that have been taken, you can see quite
plainly from the year 1870 or 1880 downwards the rookeries upon these
Islands have been in a gradually waning condition; and that the con-
tention that the observed decrease in the years 1884 to 1890 is due to
pelagic sealing will not stand the investigation of facts now that we
have the facts before us.

Sir, the enunciation of those questions may have seemed a little long.
On the other hand, it will enable you to follow the evidence to which I
proi)ose to keep closely in each case and will, I trust, show the Tribunal
that in considering the scheme of Regulations I shall be able to touch
on a particular subject and then to pass from it. Further I have to
regard this case as a whole from the point of view of considering what
Regulations are really fair.

That is to say not from the point of view of asking you to give any
undue privilege or protection to pelagic sealing, but that you may by
regulation make a suggestion that will prevent any undue or unneces-
sary slaughter of the lives of those animals which it is so necessary to
preserve.

The Tdbunal then adjourned till Wednesday, the 1 4th instant, at 11,30.

THIRTY-EIGHTH DAY, JUNE 14™, 1893.

Sir EiCHARD Webster. — Mr. President, I proceed at once to the
examination of tlie evidence on tlie various subjects which I enumerated
at the close of the sitting yesterday afternoon. The task of the British
Counsel has not been rendered lighter by the action taken by my learned
friends on the other side. We always had a hope that there might
have been a certain amount of approximation and fair discussion
between us as to what I may call the hmits of Regulations; but you
will have observed, from the paper read some days ago by General
Foster, to which paper allusion was made by the Attorney General yes-
terday and which called forth a remark from Mr. Phelps, I have to
justify the whole of my Regulations. It is not a question of degree;
they are objected to root and branch by the United States, who contend
that an exclusive right is to be given to them of capturing these seals,
and that, within the whole of this area, no Regulations are at all com-
patible with the duty imposed on this Tribunal by the Treaty.

Sir, you will not have forgotten the scheme of the Treaty is that, for
the guidance of the Tribunal, there shall be presented to them a joint
and several, Report of the Commissioners, both of the United States
and Great Britain; and in dealing with the various heads to which I
have to direct your attention, I must, of course, in every case see that
I bring before you, inasmuch as it has not been already brought before
you, the contents of the various Reports upon each of these points, sup-
plemented of course, by the evidence which the two countries have laid
before the Tribunal. The first question I propose to address myself to
is, what is the zone of thick seal-life as I shall contend upon the evi-
dence taken fairly as a whole and disregarding exceptional statements?
The thick seal-life is to be found within a comparatively speaking, nar-
row beltround the Pribilof Islands; outside a narrow belt of somewhere
about 20 miles, seal-life is sparse, seals are scattered, and attacks made
on seal life would not imj^air or injure what I may call the main seal
herd.

In considering all this evidence, Mr. President, you will have to
remember that it has not been subjected to cross-examination. I shall
have to point that observation later on when I deal with specific state-
ments ui)on which cross examination was attempted and not permitted.

It is very important in reference to the statements on which reliance
is placed on one side and the other. The Tribunal will be good enough
to bear that in mind and further as to these observations I ask partic-
ular attention. It is important to see if the statements made are ex
post facto that is to say after the discussion has arisen or if they are
statements made before the actual contention between the parties had
been developed. In that view may I ask the Tribunal kindly to take
the British Commissioners' Report and to refer to certain paragraphs
beginning at paragraph 209. I do not pause to rei)eat, but only to
endorse with a word my learned friend the Attorney General's argu-
ment with regard to the attack made on the British Commissioners. I
may have to refer to it later on. It has been a matter of astonishment

103

104 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

and regret to me that such passages as I shall have to read will be found
ill the Uuited States papers. I will only appeal to the fair judgment of
every member of this Tribunal, as I read this, as to whether on every
point this Eeport is not only fair but impartial and giving the authority
on for and against every statement whether it tells in favour of the
supposed view of the Commissioners or against it. Then paragraph
209 is ill these words :

The distribution and mode of concurrence of the fur-seals at sea when congregated
in their winter habitats on the two sides of the North Pacific, and while migrating,
have already been noticed. While the information on these points is not as complete
as could be wished, it is sufficient to show in a. general way how the fur-seal is
affected in its movements by currents, drift, and winds. In speaking of its food and
feeding habits on a subsequent page, it further becomes apparent in what manner
the seals congregate and travel in following certain food fishes. It appears to be
rather in consequence of such circumstances, operating conjointly upon these pelagic
animals, than to any ruling gregarious tendencies while at sea that they become
collected into "schools " or groups of greater or less dimensions. This at least is the
result of the examinations made during the summer of 1891 in Behring Sea, where,
though two or three seals were often seen actually in company, and occasionally as
many as six or eigljt, the general rule seemed to be that each seal was pursuing its
own course, travelling, sleeping, feeding, or sporting in the water, without reference
to others in the vicinity. This is clearly shown by the observation that even when
passing through an .area at sea in which seals would be noted as abundant, they are
as a matter of fact usually sejiarated by distances much too great to enable any
single animal, or any group of two or three individuals, to be in any way cognizant
of the presence of the next adjacent individual or similar group.

I should point out the remarkable corroboration of this presently when
I call attention to the United States evidence:

A])art from seals met with near the shores of the breeding islands, the densest
"school " found by us was on one occasion about five miles to the westward of the
land of St. Paul Island, where about forty seals were counted in a distance ruu of two
miles. In all other cases, it was exceptional to meet with seals to the number of four
to a mile run, while two to a mile run was much above the average even when pass-
ing through areas of abundance. It is thus evident that the seals had been brought
together in such areas of abuedance by reason of common conditions rather than by
their own volition.

Then follow some paragraphs which give some very important state-
meuts as to the sources of information, but are not sufficiently material
for me to read. I will now direct your attention to paragraph 214:

214. Without attempting to enter into further details here as to the methods em-
ployed, the general results arrived at may now be briefly described :

It is evident, in the first place, that the seals are most abundant in the water in the
immediate vicinity of the shores of the breeding islands, this abundance of seals
extending often not more than half-a-mile from the fronts of the breeding grounds,
and seldom for 3 or 4 miles in such a way as to be at all notable. In the case of the
Pribylof Islands, it is also observed that seals were numerous in both the monthly
periods in the tract included in a general way between St. Paul and St. George
Islands, though they differed much in this respect even at nearly approximate dates.
It is further clearly shown that the Pribylof and Commander groups form the main
centres of abundance of seals in Behring Sea during the summer; but that while this
is undoubtedly the case, the seals are not found to decrease in numbers with any
approximation to regularity in zones concentric with the islands, — always excluding
the seals in the immediate neighbourhood of the shores.

215. It is therefore not possible to outline a series of zones in which the number
of seals present will bear an inverse ratio to the distance from the islands. It is,
however, possible to draw an approximate limit for a region about thePribilof group,
which will roughly define the area of abundant seals at sea during each of the two
monthly periods chosen. In the case of the region about the Commander Islands,
data though almost wanting for the first monthly period, and but scanty for the
second, are sufficient to indicate a general mode of distribution similar to that demon-
strable in the first case. Within the areas of abundant seals, these animals are,
however, by no means regularly distributed, even at any particular fixed date, but
are scattered in irregular patches in the diffuse character already described, and are
very often thichest locally towards the outer limits (M the area.

31G. Beyond these areas, seals are found more or less sparsely scattered over a
great part of Behring Sea.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 105
I call attention particularly to this Mr. President.

Which in the lirst period extends, in the ionofitude of the Prihilof Islands, from
the Aleutian chain northward to about the 59th degree of latitude, includes the
whole vicinity of the western Aleutian Islands, and spreads again to a greater width
with the Commander Islands as a centre.

217. In 1891 the area of abundant seals about the Prihilof Islands appeared to be
not only changed in form, but considerably reduced in size in the second monthly
period; while that of scattered seals was not only changed in form, but much
enlarged in area.

That would be a natural consequence, Mr. President, of more seals
having occasion to resort to the islands — you would expect to lind after
tlie period of their visit to the islands became practically finished, more
seals out in the scattered regions further away.

It appears, that in most years, in the later summer this area of scattered seals
extends to the north-east of the Commander Islands, quite to, or even beyond, the
60th parallel of north latitude. This particular extension is probably to be explained
by the drift of that branch of the Japan current which flows through the western
part of Behring Sea, assisted by the prevailing southerly winds in the same part of
the sea in June and July; while the comparatively restricted spread in a northward
direction in the eastern part of the sea may be similarly connected with the general
movement of the water from north to south in that region.

Then you may pass the next two paragraphs which bear upon great
detailed observations which support their statement, and I wish to read
paragraphs 220 and 221. .

220, An examination of the area surrounding the Prihilof Islands in which seals
were abundant in 1891, together with such other facts bearing on former years as
could be obtained from pelagic sealers, indicates that the maximum limit to which
this area may reach from the islands in the summer months in any direction is not
more than about 180 miles, and it is probable that similar conditions obtain with
regard to the Commander Islands.

221. Respecting the number of fur-seals to be found at sea within the areas of
abundance above referred to, and exclusive of those frequenting the islands and
their immediate shores, it is difflcultto attain to anything like certain results. The
endeavour has been made, however, in a tentative way to reach some roughly approxi-
mate estimates, by finding the number of seals actually seen in measured lengths of
runs in or across such areas, chosen as typical, and made at different times in both
monthly periods. The results obtained varied somewhat widely, as might be expected,
not alone in consequence of the actual difference in density of the seals, but also
from circumstances connected with the weather and the state of the sea surface.
The observations made were, however, combined in a general average, which, when
thus treated, showed about one seal noted to each mile run. On the assumption
(which cannot be very far from the fact j that on the average a width of half-a-mile
was efficiently scanned from the deck, this would give a mean of two fur-seals to
each square mile of Sea surface within the area referred to.

I will ask the Tribunal not to overlook that statement when I come to
the corroborative testimony which I shall submit from the United States
affidavits. I need read no more there at present, but I will ask you to
turn to paragraph 313 page 56 where occurs a statement to which I
shall direct attention.

313. So far as the facts actually observed in 1891 go, it is apparent that there is
always a considerable number of seals swimming, playing at sea opposite each of tlie
rookery grounds, and that these in August consist largely of females, while in Sep-
tember great numbers of pu))s are to he found in addition. When extensive kelp
beds exist off the rookeries, the main body of seals is generally seen inside the kelp,
and at a distance of half-a-mile or so from shore comparatively few seals are seen;
while at two or three miles seaward from tlie rookery there is no notable abundance
of seals, and if sailing round the breeding islands, in a fog, at a distance of four
miles from the shore, it would be ditiicult for the closest observer (apart from other
indications) to decide when he had passed abreast of a rookery.

1 am not now upon the question of the distance which females go
specially — I will take that separately j but I refer to the general body
of seals.

106 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Now, the Court will remember that tlieorigjinal contention of the United
States accorded with our own, lam not at all snggestingthatmy learned
friends are not fully entitled to the argument that they did not know,
or Mr. Blaine, when he wrote, did not know, as much as we know now.
T am myself going to use that argument in favour of some of my con-
tentions; it is equally open to my learned friends. I am entitled, how-
ever, to note in passing the original contention in the celebrated letter
from Mr. Blaine to Sir Julian Pauncefote, the actual passage being at
page 284 of the first volume of the United States Appendix, — the date
was the 17th of December, 1890, — in which you will remember the Presi-
dent asked the Government:

To agree to the distance of 20 marine leagues — within which no ship shall hoA^er
around the islands of St. Paul and St. George, from the 15th of May to the 15th of
Octoher of each year. This will prove an effective mode of preserving the seal lish-
eries for the use of the civilized world.

Sir, in my submission, having regard to the evidence that we now
have a distance of 60 miles, or 20 marine leagues, is very excessive; but
it is to be noticed that that distance was in connection with the dates
there mentioned, from the 30th of May to the 15th of September, and
would have left Behring Sea outside that 60 miles open during the whole
year; and in connection with what I am going to i^ress upon this Tri-
bunal (fori ask to be allowed here again to make the observation), I
shall submit to the Tribunal that I am considering this question of
Eegulations fairly from the point of view of assisting the Tribunal and
not trying to argue it too much from the British point of view, and I
say it is important to stop pelagic sealing in Behring Sea while the
stream of gravid females is going from Unimak pass up to the islands.
I mention that because it is quite clear, from that point of view, that
Mr. Blaine had not sufficient knowledge. I agree that that scheme of
his would have allowed pelagic sealing in Behring Sea in the months of
May and June north of the Aleutian Islands, and up to within 60 miles
of the Pribilof Islands; and I admit at once, so far as Counsel may
make an admission, looking at it impartially, that is a period of time
when in Behring Sea the most destruction would be done to gravid
females. I speak of Behring Sea as compared with outside Behring
Sea, because, from about the middle of May up till the 15th of June,
the female seals in large crowds, clustered together, are streaming up
from the Unimak pass and other passes close by to the Pribilof Islands.

Therefore, I call attention to this, and I think the Tribunal will think
I am not unfairly admitting it, that the zone proposed by Mr. Blaine,
which he thought to be efl'ective, did overlook or was insufficient from
an important point of view, and that the rights of pelagic sealers ought
to be restricted, so as to prevent any pelagic sealing in Behring Sea
when the herd of females close together are, to use an expression I used
just now, streaming up in close proximity towards the Pribilof Islands.
I may make this observation once and for all, and submit this to the Tri-
bunal, in the Pacific Ocean, and even round the coasts of the Gulf of
Alaska, the stream has a comparatively speaking wide area, speaking
of the stream of seals — that is to say it is dispersed from 3, 4, 5, 6, or
even 20 miles from the shore; that is the evidence, and I believe even
further. But when the seals get to pass through the Aleutian Islands
they might become pressed, be closer together, because the passage
through which they go is narrow, and people thought, even at those
places, nets put round might catch and destroy a very large proportion
of the female seals. So a point to be considered by this Tribunal, and
considered I admit most carefully, is to see that during the time that

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 1 07

the congested lierd of female seals, or tlie congested body of femnle
seals, is passing through the Uniinak and other passes up to the Pribilof
Islands they should be, practically speaking, free from attack.

Now, having reminded you, Mr. President, of what the view of the
Commissioners was, put down impartially and fairly, not as an admis-
sion forced from unwilling witnesses, let me in a very few sentences
remind you of how the United States evidence stands. I must go over
somewhat the same ground as was referred to yesterday in order to
supplement it a little. Will you take map 4 of the United States Case.
That is the sealing chart of the year 1891. How do the United States
advisers describe tlie condition of sealing area in the year 1801? You
will find that they have drawn again two imaginary circles round the
Pribilof Islands at a distance of 20 miles from the nearest land. The
Attorney General was not quite accurate in saying it wouUl be more
than 20 miles in some places. That is not the condition. It would be
always 20 miles from the nearest land, and therefore more from other
pieces of land.. It is a zone enclosing the distance between St. George
and St. Paul, you will see, because, being 36 miles apart, those two
circles would overlap. How do they describe that? "Seals within
this area very numerous ". That is the statement made in the United
State's Case for the purpose of showing what was the condition of
things in 1891.

Now I will tell the Tribunal what this map shows. It has been used
in the United States Argument and in the evidence of the United
States witnesses as though outside that 20 miles it showed the sea very
thick with seals. On the contrary, it shows the reverse.

The total observations of six cruisers from the 15th July till the 15th
September (that is to say, at various times between that), put down
the total number, I have no doubt quite fairly, giving the dates and
numbers, is 615 seals.

The total area over which those seals are spread is 100,000 square
miles. Now do not let me be misunderstood. It is quite possible that
on other days, or on 'tfie same day in other parts of these 100,000 square
miles there would be seals, comparatively speaking, sparse or frequent,
as you choose to call it, to the same extent. But it points to this, that
the observation, assuming it, as I do, to have been fairly taken, shows
that outside the radius of 20 miles from these Islands the seals are,
comimratively speaking, sparse, and further than that, that they
are existing in the condition, so far as thickness is concerned, where
you would expect to find them, if they were, as the evidence leads you
to believe, not in the course of actually migrating or going to or coming
from the Islands themselves. In other words, as it is described by
those who have made these affidavits, and compiled the evidence and
described them as being seen in one direction sometimes and sometimes
in another, and sometimes sleeping and sometimes not, and evidence in
the condition in which seals would be, treating this part of the sea as
that part of the universe they were inhabiting, if that is a proper
expression to use with regartl to seals in such a condition. I only
pause, before I leave this map again to remind you of how misleading
the api)earance to the eye would be when you remember the extraordi-
nary small scale on which this map is. I do not make the slightest
complaint, and I shall not be mistaken, but it is a fact that each one of
these seals covers from a mile and a half to two miles space on the
water and therefore does not represent what would be the physical
appearance of the seals in the sea itself.

108 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Now I ask the Court to take the map N" 6 of the Counter Case which
is the corresponding- map of 1892 which my learned friend the Attorney
General referred to yesterday.

That is important, because a good deal more information is given in
connexion with the year 1802 than is given in connexion with 1891,
which information I desire to put before the Court in a compendious
shape. In 1891, no doubt, not seeing the importance of the matter so
much, they either did not keep the logs or tliey have not given us the
logs. I merely mean that we have not the same amount of information
for 1891 that we have for 1892. In 1892 they have given us the logs, I
think, of all the six or seven cruisers that were engaged.

Now the state of things is this, and it bears, I shall respectfully sub-
mit, upon the very important corroboration, of the British Commis-
sioners' view. Six cruisers were engaged for 148 days; that is to say
combined, the total days occupied in examination was 148, ranging
between the 20th July and the 31st August, some more and some less,
amounting altogether to an average of something like 35 or 36 days
observations each. All the logs are given, and one, the "Corwin"
gives the number of seals they observed in all cases. The "Corwin" in
one or two instances — a few outside and a greater number inside the 20
mile radius, says that in certain instances the seals were too numerous
to be counted.

It is not quite possible to give an exhaustive statement with regard
to this, but this is what the map shows and what the logs show. In the
first place, will the Tribunal kindh'^ observe again the 20 mile radius or
zone, which is a little more accurately drawn upon this map than upon
the other but sufiBciently for our purpose corresponding with that of
1891 and the words are written '' Seals within this area very numerous ".
Then occur,' Mr. President, the pictorial representations of the other
observations extending, as you will notice over a considerable area of
sea, and I i^erhaps cannot point my observation more than by telling
you that the map has been correctly made from the logs.

On the 20th July, almost due south-east of the Pribilof Islands, you
will find 102 seals in a large cluster, and there are 102 in that bunch
when it is counted it is correctly put down, and they cover an area, as
nearly as possible, as well as you can clieck it of 400 square miles. If
it is a picture of what was seen the 102 seals would, in fact, cover a
space which would be perhaps three or four acres at the very outside
they would not cover it, but be in it. The map shows as though they
covered a large area. That is perfectly fair, but I want to remove any
false impression. This map and the log show this, that daring all this
time with a number of cruisers in and out, as was shown yesterday —
and I need not bring it to your attention again — the total observa-
tions outside the 20 mile radius were 1062 seals; the total observations
counted inside and outside were 1859, and then within the 20 mile
radius there is "thickly populated, very numerous ". Thej^ very nat-
urally and very properly not only did not attempt to count, but could
not because they were so very numerous. The area is nearly as large
as the map of 1891 covers, and even of the observed and counted seals
40 per cent are found within the 20 mile radius; but when you remem-
ber this area is spreading out and by geometrical i)rogression getting
larger and larger.

The President. — The seals within the 20 miles radius are not taken
from the map, but from observation.

Sir Richard Weester, — The dilference between 1062 and 1859 or
about 600 seals is taken from the logs, that is to say, in addition to the

OPvAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 109

outside 10G2 tliere are other instances of seals actually counted inside
the 20 miles which brings it up to the 1859, the total number, that is,
independently of the densely thick seals which they did not attempt to
count inside close up to the Islands.

I therefore respectfully submit to this Tribunal asking them to
remember that these observations are addressed to them for their
assistance and not for the purpose of endeavoring- to produce an unfair
or distorted impression upon the mind of the court — 1 say that this
evidence points to the strongest corroboration of the British Commis-
sioners' judgment that there was a fairly defined area — it may be 20
miles, it may be 15 miles, it may be 30 miles for all I care — I dare say
it also varies with the weather, and with the fish and with other inci-
dents connected with seal life, but there is a certain defined area within
the immediate proximity of the I'ribilof Islands at the time that the
Fribilof Islands are densely crowded with seal life — outside that there
is a sparse distribution of seals which are not in attendance upon the
Islands but which are seals for reasons which I may have reason to
examine inhabiting the sea, passing through the sea, and to be found
from time to time under such circumstances that they can be occasion-
ally captured by the sealer.

The President. — I suppose the information you have given us in
part concerning the Eussian Islands tends to show that the general
circumstances of seal life on the Commander Islands is the same.

Sir Kif'iiAED Webster. — The intormation we have obtained — I
shall have to refer to it later on — from the Commander Islands is the
same, that under ordinary circumstances the seals do not go far from
the Commander Islands — it might be 10 miles it might be 15 miles, it
may be 20 miies, and that a zone of 30 miles suggested by the liussiaus,
for a special reason which does not ai)ply to Pribilof Islands, as I shall
show later on, is certainly an outside distance. But I address these
observations to the Court in order that they .may understand upon our
own independent investigation, quite apart from that which has been
subsequently discovered in regard to this matter, these are the consid-
erations that the Court ought to take in view when they decide what
are the limits to be i)ut upon a legitimate industry in order tliat it may
not be curtailed further than is necessary for a proper protection of the
life of the animals which are the subject of consideration.

The President. — Have you any information as to the proportion of
the Commander i sland seals to the Pribilof Island seals. Is the Kussian
herd larger or smaller.

Sir EiCHARD Webster. — Smaller.

The President. — Do you know the proportions.

Sir EiCHARD Webster. — Yes, I can tell pretty well. In an ordinary
year the Russians think tliey ought to kill 50,000 to 57,000 seals on the
island. In an ordinary year the United States contend, and I dare say
rightly they kill 100,000. My case is 100,000 is very much too large, but
I should think in all probability the correction of it Avould not bring it
down so low as the Russian. I think the evidence is as to the Com-
mander Island group or family, that the number of seals of the Pribilof
Islands is larger.

The President. — Comprising Robben Reef, or is that a separate
flock.

Sir Richard Webster. — I was speaking of it as a whole, but if I
am wrong it will not be taken against me.

Mr. Phelps. — I observe that the last two years before the modus
Vivendi the Russians took about 30,000.

110 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Sir EiCHARD Webster. — I think tlie evideuce read yesterday was
tliey used to take 57,000 before tlie modus virendi and after the modus
Vivendi it had fallen to 35,000 and 33,000. That is my recollection.

Mr, Justice Harlan. — Whicli modus vlvendi.

Sir EicHARD Webster. — Of 1891, 1892. I do not complain of the
interrui)tion. On the contrary, if at any time Mr. Phelps thinks I am
wrong or wishes to correct an error I am personallj^ obliged to him, for
he once said, Mr. President, in a speech which is classic and historic
and which will never be forgotten by any one who heard it that a man
who never makes a mistake, never makes anything, and I desire to say
nobody is more conscious than I in addressing an argument of this kind,
that it is imi)ossible to avoid mistakes and if I by ignorance or want of
recollection, make a statement which my learned friend thinks to be so
inaccurate that he desires to correct it, I am i)ersonally obliged to him
for calling attention to it. The figures I had in my mind were taken
from the Kussian correspondence and I thought I was right.

In the years 1889 aud 1890 before the establishment of the Anglo-American modus
Vivendi the catch amounted to 55,915 and 56,833 ; while for the years 1891 and 1892 after
the above mentioned agreement the ligures fell to 30,089 and 31,315.

Therefore apparently assuming the Commander and Eobbeu Islands
to be afi'ected by pelagic sealing, between 50,000 and 60,000 is what the
Eussians seemed to consider their normal yield.

Having called attention, Mr. President, to the maps of the United
States I am going to ask you kindly to unfold Maps 3 and 4 annexed to
the British commissioners' Eeport. There is a preliuiinary observation
which ought to be made. You will remember prior to these Commis-
sioners' Eeports very little indeed about the seals at sea was known;
something, a good deal, was known about the seals upon the Islands,
but the British commissioners and the United States commissioners
have added considerably— particularly the British Commissioners — to
the knowledge of the world with regard to the seals at sea. You will
find Map 3 shows approximately, according to the opinion of the British
Commissioners the area frequented by fur-seals in the j)eriod extending
from July 15 to August 16. The darker coloured area is characterised
by abundant s'ealsand the lighter area is characterised by scattered seals.
You will notice that the commissioners drew the distinction rather dif-
ferently between what I may call abundant seals and scattered seals.
It is a little dithcult to follow that area — it is rather larger in some
respects. It looks to me in some cases to go out as far. I should think,
as 60 or 70 miles, or even further on the north east, but judging from
the distance, from the Pribilof Islands, it would seem to me to go some
where about half way to Unalaska.

General Foster. — That is 195 miles.

Sir EiCHARD Webster. — I have stated the distance from the Pribi-
lof Islands which is 182. You take 195 — I do not care which it is, 1 do
not suggest that these gentlemen are absolutely accurate. They would
be the last to wish that I should make any allegation of that kind.
They are attacked in the United States Counter Case for having sug-
gested that the seals are found scattered over the sea practically con-
tinuously — although of course in sparse numbers — from the Pribilofs
to the Commanders. I will call attention to that very shortly, and we
will see on which side the truth lies in that respect. This Map jST" 4
gives a similar sort of area for the Commanders. I remember the
British Commissioners did not visit the Commanders till later in the
season. If you turn to Map 4, you will find a general distribution of
seals over Behring Sea, an opinion more than supported, proved, by the

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. Ill

evidence now before the Court, and a rough idea of what they thought
to be the comparatively speaking dense area.

But, Mr. President, of course, we must detine terms before we use
them, and it is quite evident from reading the Keport that the United
States authorities when they si)L'ak of these 20 miles about the islands
characterized by, very numerous seals so numerous they could not be
counted, were not speaking of the same kind of distribution as that
which extends all over the thicker part of the British Commissioners'
colour. That appears from the British Commissioners' Report itself.

Now, it may be said that I do not correctly interpret the United
States Map; and, therefore, I should like to read one passage of very
great significance from the United States evidence iu regard to this
uuitter. Will you. Sir, be good enough to take the United States
Counter Case, and let me read you a passage on page 235! What I
have been trying to give the Tribunal, in the hopes of assisting them,
is the effect of reading and boiling down these logs, reports and
affidavits and to give it to you as shortly as possible; but there is one
passage on page 235, which is deserving of special notice. Cap.
Coulson was iu charge of, I think, the " Eush " and he took his instruc-
tions from the " Albatros ", and I may tell you, Mr. President that
he cruized from South-south-east to North-north-east, that is to say,
to the eastward of the Pribilof Islands principally. He says :

At every stcation where the vessel was stopped, codfish was taken; in some
localities they were abuiulaut, at others only a few were caught.

During the month and while prosecuting the work, the vessel has cruised nearly
three thousand mileg, and in the whole time not one vessel engaged in taking seals
has been seen. The weather, as will be noticed by the Seal Log, has been unfavor-
able for sealing a greater jjart of the time, added to this the scarcity of seals on the
Eastern side of the Pribilof Islands will account for the small number of seals
observed or taken and the little information gathered.

On nearly every point of the compass on which the lines were run and the seal
herd, or what might be termed numerous seals, were passed at ten miles.

that means ten miles from the islands,

And the numbers decreased rapidly, so that at forty miles few seals were seen, and
at fifty, on most all of the courses, no signs of seals were seen. The exception to
this rule was in one or two of the Northern aud North Eastern lines, where seals
were met in small numbers, one hundred miles away from St. Paul Island; these
were apparently feeding on some surface food, as large flocks of whale birds, and in
one instance a whale, were in the vicinity. Night coming on prevented cloSe obser-
vation or investigation.

Therefore, that would show you that, at any rate speaking of the
eastern side, the view which I have been expressing to the Tribunal
was in substance the conclusion at which Captain Coulson arrived as
the result of his investigation. Captain Hooper's affidavit 1 have
already read and criticised; I will only remind you of it, on page 21(3,
where he says that he found, what he calls, numerous seals iu certain
latitudes at a distance of 300 miles, from which, —

I infer that the western limit of the range of the Pribilof herd of seals is between
two and three hundred miles from the Islands.

I criticised that when addressing you on the question of property,
and will not refer to it any further at present.

Mr. Phelps. — The figure 300 is a typographical error, and should
be 200.

Sir EiCHAED Webster.— Is it 200 in the original Keport?

Mr. Phelps. — General Foster can explain it to you.

General Foster,— 1 gave Mr. Tupper notice of the fact that we
would claim that that was an error, that it should be 200 in place of

112 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

300, and it is plainly indicated by the context, if you read the whole
page. It will show itself when you examine it with the Chart.

Mr. TUPPER. — And I may say that you informed me, as I understood
you, that the error, whether it is an error or not, is in the original
Eeport signed by Captain Hooper.

General Foster. — Yes, it is a type- written copy.

Sir KiCHARD Webster.— Well, my learned friend, Mr. Phelps, hav-
ing said that it is a typographical error, I of course accept it at once;
but I attach so little importance to the actual question of distance,
having regard to what the maps themselves show, because the 1,008
seals in the 100,000 square miles include the seals observed by Captain
Hooper and all the other cruizers, and we know what he means by
numerous seals because every single set of seals he observed outside
the 20 mile radius was counted and put down. Therefore, whether it
be 200 or 300 for the purpose I am contending for is immaterial, but I
think I ought in justice to myself to say that, when I made the argu-
ment about the 300 miles the other day, I did not receive the slightest
notice from my learned friends of the mistake, nor did I hear of it till
some days afterwards, when I immediately made the enquiry to know
if it was in the original.

Lord Hannen. — I think, if you look at the paragraph, General
Foster's observation is borne out, and I think he is correct, because it
speaks of a 200 mile zone " dividing that part of the sea over which the
"Corwin" cruised into zones" up to 200 miles, and he says, " I find the
percentage of seals", and so on.

Sir Richard Webster. — I had not examined it from that point of
view, my Lord, I was only looking at the statement with reference to
the supposed absence of intermingling when I made my last reference
to it,

i*^ow the main point of attack made on the British Commissioners is
because they have stated, as the result of their own observations, taken
during their own cruising, that the seals did extend sparsely, practically
speaking, all the way across Behring Sea. Now if I was entitled, and
if I desired simply to incorporate, as part of my argument, the mere
statement in the Commissioners' Supplemental Report, I should from
their own investigations prove that they did in fact see seals right
away across; but I prefer to take another course, and I will ask the
Tribunal kindly to turn to Volume 2 of the Appendix to the British
Counter Case, pages 23 to 27, where they will find a very convenient
abstract of the affidavits which bear upon this matter. I will only
pick out those (there are some 57 of them, and I will not trouble the
Tribunal with the whole of them) that bear directly on this question of
seals in Behring Sea. If you will look at the top of page 24, it is a
verbatim extract of Mr. Billard's afitidavit given later on in the book,
page 56:

Last year the " Beatrice" crossed Behriug Sea from east to west, starting from
about 35 miles north of St. Paul Island. I saw seals all the way over to the Copper
Island jiTounds and got two seals on 27th July between American and Russian sides
of the Sea.

Mr. Bragg, the next man, also on page ii6.

In the year 1887 I went over to Copper Island on the schooner "Teresa" and I saw
seals in Behring Sea ail the way across.

And if you go to the top of page 25, George French his affidavits are
at pages 44 and 46, but I read from the summary on page 25.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 113

Last year, 1891, when the "City of San Diego" was crossing Behring Sea from
Amntka Pass to Copper Island, we passed small bands and bnnches of seals travel-
ling rapidly north-easterly. This took place on three dift'creut days. The last lot we
met Avere abont 150 miles from the Co])per Islands. I am fnlly satisfied they were
crossing Behring Sea to the Pribilof Islands. This was between the 5th and the 12th
July 1891.

Then De Witt, the next but one:

I have been over to the Copper Island grounds twice, in 1891 and 1892. In 1891
the " VMva" crossed Beliring Sea from about 20 miles north of Amntka Pass to the
Copper Island grounds. I saw seals scattered all the way over. This year the " Sea
Lion" went oAer outside the Aleutian Islands. I saw seals in about the same way
all the way over.

Then Captain Charles Cami^bell :

I went over to the Asiatic side of Behring Sea last year and this year, last year
through Behring Sea, this year outside. Last year we saw seals on the way across
whenever the weather was fine. There was no way of telling Avhen we saw the last
of the seals that frequent the Pribilof Islands, and met the first of those that were
going to the Commander Islands.

Then Thomas Brown :

Last year and this year I hunted on the Asiatic side of Behring Sea in the summer.
On the way across last year through " the Sea" we saw seals whenever it was line, and
got some, and this year we saw some seals south of the Aleutian Islands as we went
across.

I need not read more of these, and I come a little lower down to.
Captain James W. Jood.

In September last [on " Enterprise"], on my voyage home from the Asiatic side, I
saw seals in mid-ocean 200 miles east-south-east of Attn Island.

That is south of the Aleutians, and I need not have read that.

When ordered out [of Behring Sea] in 1891, I was about 30 miles northward of
Unimak Pass. I at once sailed across the sea westward to the Copper Island
grounds, following a course along the 55th parallel north latitude. I saw seals all
the way across to the Commander Islands. Some of the seals were .sleeping, others
travelling, some east, some west, most of them going east.

Then if you will turn over to page 26.
Maurice Edwards.

I went over to the Russian side of Behring Sea last year [1891], and I saw a few
scattered seals all the way across.

Then the 4th, turn down:
William Edwards.

Last year [1891] I went over to the Russian side of Behring Sea; we saw a few
seals all the way across.

The next man, Captain Thomas O'Leary:

I went across to the Russian side of the Behring Sea last year [1891]. We found
a few seals nearly all the way across.

Then George Wester.

In travelling from the American to the Asiatic side of Behring Sea from the middle
of June to the middle of July, I have seen seals all the way across on fine days.

And then on the next page, last but two, captain Andrea McKiel
says that :

In 1891, the "Maud S", after being warned, sailed across Behring Sea in nearly a
direct line between the Pribilof Islands and the Commander Islands. I saw seals
every day on the voyage over.

Then the next voyage, is passing south. I need not refer to that.
Mr. Macouu, when sailing across the Behring Sea in the year 1892 (I
read from his Report at page 138 of the first volume of the Appendix
to the Counter Case) says:

B S, PT XIV 8

1 14 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

On the return trip to St. Paul Island we again encountered such bad weather that
no look-out could be kept for seals. While the ship was laid to, between noon and
bj). m. on the i)tli of September, many fur-seals were, however, seen swimming about
in all directions. The ship's position at noon that day was latitude 58° 58', longi-
tude 177'^ 8' west, about 240 miles Irom St. Paul Island.

I will not stop to argue whether it is to be presumed that those seals
found swimming about there are to be considered as beiug all female
seals and each having a pup on the Islands that would perish if those
seals were slaughtered.

I have pointed those out not for the purpose of dealing with general
intermingling, not for the purpose of calling attention to the body of
evidence to which I alluded when I was addressing you on the ques-
tion of property. You will remember, however, Mr. President, what
the claim of the United States is, — down to this line 35 and everything
east of tliat place where I have left the pointer on the map, longitude
180, is claimed by them to be United States property, under regulations,
so that no British vessel can catch or hunt seals there at all. I want
to know on what evidence my learned friends are going to suggest that
both in the Pacific Ocean south of the Aleutian Islands, and in the
Pacific Ocean north of the Aleutian Islands, that is to say in Behring
Sea, seals which on the evidence I shall submit to you are proved to be
scattered across in that sparse kind of way, and having no direct con-
nection with the Pribilof Islands at the time that they are so scattered,
are to be regarded for this purpose as being the exclusive property of
the United States, so that the British sealer, and I suppose, somehow
or other, the sealers of other mxtions, are not to be allowed to kill them
at all, at any time within those very wide limits to which reference has
already been made.

I ought to mention in connection with the subject I have just left, that
the United States Commissioners' Report gives us no statement or infor-
mation upon which we can draw any conclusion as to what is the breadth
or width of the populous zone, for reasons wliich I suppose are satis-
factory to themselves. They have not thought fit to investigate that
matter at all.

Now, I claim, Mr. President, to have established, upon the United
States evidence as well as upon the British evidence, that the zone of
sea thickly populated by seals in immediate proximity to the Pribilof
Islands at a distance which may be taken roughly at 20 miles; but for
my i^urpose I care not if you consider, on a review of the evidence, it
is 15, 25 or 30, — it is immediately round these islands. My learned
friends endeavour to meet us in another way. They say, or rather they
would say if they would bring their minds to bear on Regulations prop-
erly so-called, — That may be perfectly true, but we say that outside that
30 miles there is a certain number of seals, — we say a large number of
female seals, feeding or desirous of getting food, and these seals are
caught by pelagic sealers in such a condition and at such a time that
the life or death of the young upon the Islands is involved in their life
or death.

Now, I was about to consider this question of the females feeding,
and the time during which they feed, and the distance to which they
go. It is impossible for me to make any assumption as to what my
learned friends may ultimately concede in arguing, but I do not propose
to go over the evidence in support of the two statements made by the
Attorney General yesterday with regard to the male seals, unless I had
an intimation that it was going to be seriously disputed. The first is,
that the bulls do not feed at all during the time that they are on the
Islands; secondly, that, on the United States evidence, the "hollus-

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P 115

chickie", or bachelor seals, tboiigli out of the water from periods of from
4 to 6 weeks, or even longer, practically speaking do not feed at all. I
am prepared to establish both those propositions from the United States
evidence alone ; but I want to consider whether, on general considera-
tions, it is not highly probable that that which the evidence supports
will be the fact. ISTobody suggests the individual male seal knows that
it is going to be killed at a certain age, or it would try to enjoy life as
much as it could during the time that it was going to be allowed to live.

I^obody suggests, for instance, that "holluschickie" at 3 years old
know they are going to be knocked on the head at 4 years old; or that
"holluschickie" at 4 years old know they are going to be knocked on
the head at 5. We know when they come into a proper condition to be
bulls 6, 7, or 8 years old, or possibly a little younger, they do fast for
these extraordinary periods of from 2 to 3 months. I should have
thought that if a seal is going in the year 1890 to fast for 2 months and
performing the functions you know of during that period, it is very
improbable that it will have eaten for every week of its life, or every day
of its life in the previous years of its existence. You would expect
from natural laws that if a seal has to go through that state of things
and that ordeal, the natural course of its training would be that in
these earlier years it will be in a condition to go without food, at any
rate after it has grown up, during that time until it is out upon the
Island, speaking of the substantial part of the time.

Now, we come to the females; and we start, as I shall show you pres-
ently, with this statement (I am aware that I must not treat it as an
admission after what was stated), that for a considerable time, and I
think the lowest at which it can be fairly put upon the evidence is a
period of from 3 to 4 weeks, the female, after giving birth to the young,
does not go out to feed at all. Now, I i^ropose to pursue exactly the
same course, Mr. President, and to call your attention to such paragraphs
of the British Commissioners' Report upon this matter as have not
already yet been called to your attention.

Now on page 54 at paragraphs 303 to 308, read by me yesterday when
the Attorney General was arguing on this matter, you will find the con-
clusion of the British Commissioners with regard to the feeding of the
female seal, which conclusion is, according to the judgment of the Brit-
ish Commissioners, that until the time when the pup-seals are beginning
to take care of themselves the female seal, though it goes into the water,
does not go out to feed. It is based upon facts — when I say " facts",
upon information, the value of which the Court was able to appreciate
when I read it yesterday, and I do not propose to read it again. Now
let us see what further evidence there is upon that particular matter.
Now I call attention, at once, to a statement made in an Affidavit of
Mr. Stanley-Brown, and as this is the first occasion upon which I have
had to refer to the evidence of Mr. Stanley -Brown, I wish to say a word
or two which will be taken to apply to all the observations on his evi-
dence and to him, which I make. It is no part of my duty, and much
less of my intention, to attack the evidence of Mr. Stanley-Brown (»n any
particular point in so far as it depends upon matters which he saw or
observed himself. I believe him to be a gentleman who certainly would
not intentionally make any statement he did not believe to be true; but
in critcising Mr. Stanley-Brown's opinion the Court must remember this
fact: That until the year 1891, when he went to the islands, he had
never studied seal life at all, and never had been any where near the
Pribilof Islands or taken any part in the investigation. I mention that
and I shall have to point my observation again when I come to remind

116 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

the Tribunal of what has been the conduct of the United States Gov-
ernment in connection with the information they have obtained — that
although there were at their disposal five or six competent gentlemen
who had been in an indepeudejit position and had previous experience
of the existing, state of things on the Pribilof Islands, and therefore
whose opinion would have been extremely valuable inasmuch as they
would not be forming conclusions for the first time, but would be bring-
ing their opinions to bear on the changed state of circumstances — the
United States, in the exercise of their discretion, thought tit to send, in
the years 1891 and 1892 — 1891 particularly — to the Islands, Mr. Stanley-
Brown, who while his powers of observation were, I will assume, equal
to those of anyone and his intention to record accurately surpassed by
nobody, on the other hand it is obvious from a perusal of his affidavits,
that he spoke in ignorance and in inexperience of what had been known
before of the habits of these seals, and to a large extent was forming
opinions and drawing conclusions which a vast mass of testimony enables
one to show are incorrect, or at any rate are not correct to the full extent
they are not stated.

Now, Sir, the paragraph to which I was about to refer will be found
at page 386 of the United States Counter Case. This is referring, Sir,
not to his visit in 1891 but to his visit in 1892. The paragraphs of the
affidavit are not numbered, but you will find it is the last paragraph on
page 386. He says there :

I arrived on the islaud this year a few days after the coming of the first cows, and
by selecting a small harem composed of seals the arrival of which I had seen, and
giving it daily observation, I was able to satisfy myself that females begin to go into
the water from 14 to 17 days after first landing. On first entering the sea they make
a straight line for the outer waters, and as far as the eye can follow them they seem
still to be travelling.

It is perhaps unfortunate that we were not told what distance that
was. We know from other evidence that the sea, at those times is
densely crowded when the weather is fine, with seals. Then Mr. Stanley-
Brown says :

The first cows to arrive are the first to depart in search of food ;

Of course that is purely inference, whether or not they depart in
search of food:

And by the first week in July the cows are coming and going with such frequency
as to be readily seen at any time. The accompanying photograph (taken on July 8,
1892, from the same position as, but one day earlier than, the one last year which
faces page 13 of Vol. II of the Case) shows pups the mothers of which are already at
sea.

I do not think the photograph will enable you to tell that the pups'
mothers are already at sea, but I am quite willing to assume that Mr.
Stanley-Brown did see — and I take it from him without a word of criti-
cism — the mother-seals going into the water, and that the conclusion
that he draws is that they begin first to go into the water at from four-
teen to seventeen days. Whether they first go into the water to feed, or
whether they go into the water for purposes of enjoyment, or for other
purposes dictated by other instincts, as others have thought with not
less experience than Mr. Stanley-Brown, is a matter which one may
fairly criticise; but at any rate the furthest that Mr. Stanley-Brown can
go, looking at the matter from the point of view that he is entitled to
look at it from — namely that of supporting as he fairly wished to sup-
port the United States case — is that they go into the water for the first
time from 14 to 17 days after they come on shore.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 117

]Now I desire to call attention to a g'entleman who is eqnally entitled
to be treated in the same way, and will, I have no doubt, be treated by
my friend Mr. Phelps with the same fairness as 1 have treated Mr.
Stanley Brown — I mean Mr. Macoun, who also had tlie opportunity, for
a very'lengthened time, of observing this matter, and who was also on
these islands during the same two years that Mr. Stanley Brown him-
self was. But I must again be allowed to say that I do not put for-
ward Mr. Macoun as a witness whose opinions are to be taken as of
great value based upon previous experience, because he, in the year
1891, went I believe, for the first time, to the Pribilof Islands, and had
not been in the position of having previous experience.

Now at page 142 of the 1st volume of the Appendix to the British
Counter Case, I call attention to a paragraph that has not yet been
read in Mr. Macoun's report. He says :

Within a few hours after a pnp is born it receives its first notirishment from the
mother; and for some days, while the mother remains about the harem and the pup
is too young to wander far from it, there can be little or no doubt that each mother
seal suckles her own young one alone.

It was not until the 1st of July that I first noted pups forming "pods" or small
separate herds.

The time of arrival, if I remember rightly, of the mother-seals for
the x)urpose of giving birth to the young is about the 10th or 12th June,
so that this would make the pups somewhere about 19 to 21 days old.

It was not until the 1st July that I first noted pups forming '^pods", or small
separate herds; every harem was still well defined, but the pups belonging to each
had begun to show greater activity, and the older ones had to some extent formed
little "pods" a few yards distant from the mother seals. By the 5th July it was
noticeable that the pups from adjoining harems had "podded" together l)etween
them, while the harems themselves wore still, with few exceptions, compact and
well defined.

The cows had not yet begun to go to the water. The few wet ones seen upon the
rookeries were without exception females that were still carrying their young. The
seals on a great many small harems were counted, and it was always found at this
time that the pups and cows were in about equal numbers. Within the next week,
however, the cows began to go into the water, but not in great numbers. They
seemed content to swim about near the shore, and were often seen hauled-out on
some flat rock after they had been but a few minutes in the water, and, after scratch-
ing tliemselves for a little while, would plunge again into the sea, swim to shore,
and go back to the harem to which they Ijelouged.

Now you will remember, Mr. President, that the observation of Mr.
Stanley Brown was that he saw, as he believed, the female seal to be
still travelling when he last saw her. Mr. Macoun, also observing for a
very considerable length of time, and having many days to devote to
this, describes that which is in accordance with the evidence of previ-
ous persons of experience in this matter who had written on the sub-
ject, and have called attention to the fact that the mother goes into the
water, remains in the proximity of the islands, plays about the islands,
and comes out again. Then follows a long passage read by Mr. Coudert
(I do not intend to read it again — I want to spare the Court as much
as I can), with reference to the question of whether a mother suckles
her own pup or not. Sir, I am not going to trouble the Tribunal with
a lengthened discussion on that point. From natural instinct it would
seem to me — I must not do more than submit it to the Tribunal — that
in all probability the mother does as a rule, suckle her own pup; but it
is by no means uncommon both in domestic, and in wild animals, to find
that mothers do allow other of their species to suck, and of course we
know it is a means in the case of sheep, and the case of other animals,
whereby the young are kept alive before they are able to feed. But in
my judgment the poiut becomes, comparatively speaking immaterial, for
this reason — that there is abundant evidence that after about three or

118 ORAL ARGUMENT OP SIR RICHARD WEBSTER, Q. C. M. P.

fonr weeks to five weeks to put it accurately — the pup seals begin to
spread all along the shores of the islands for vast distances — distances
of a mile, a mile and a half, and even more, and occupy positions in the
islands away from the harem to which the female wonld return if the
puj) was absolutely dependent upon her; and therefore it seems to me
to be comparatively immaterial unless we were in a position to say,
(which we are not), that up to a certain time the pup is dejjendent on
the mother and that after a certain time ther pup is independent of the
mother. Criticising the evidence as fairly as I can, it seems to me that
there is no evidence of the pup feeding independently before it is three
to four weeks old, and that after that time there is substantial evidence
to show that the pup can, to a certain extent, take care of itself; but
iigain I say I think in all probability that with seals as with other ani-
mals, the pup will go on sucking tlie mother much longer than a period
of three to four weeks if it gets the chance.

Now at the bottom of page 143 is another passage in Mr. Maconn's
report which I wish to read. He says:

I was repeatedly told by agents of the United States Government that wlienever
females were seen coming from the water they had been out to sea for food. This
was manilestly absurd, as when the morning was cold it was apiiareut that few seals
were absent from the rookeries, but if the sun afterwards came out, or the day gi'ew
warmer, hundreds of seals would be seen going to the water, and late in the after-
noon, or towards evening, as it became cooler, they would return to their respective
harems. At such times the water from 100 yards or so in front of the rookery would
be black with seals, while fnrtlier out but few — and sometimes none — were to be
seen. Many females were watched from the time they left the harem until they
were lost among the multitude of swimming seals. They would slide into the water
and roll about with evident enjoyment for a few minutes, and then come out upon
some rock ; after a short rest they returned again to the water. Though a careful
watch was often kept, no cow was ever seen by me to enter the water and swim out
to sea.

On the 23rd July, at Lnkannon and Ketavie rookeries, more than half the seals
were in the water, but careful examination, through lield-glasses, of the sea in front
of these rookeries, neither showed seals coming towards the land nor going from it.

During the seasons of 1891 and 1892, but more especially in 1892, I spent much
time at sea in the vicinity of the seal islands, and during both seascms kept a careful
count of the number of seals seen in the water. It was noted in both years that
while the seal were very abundant in the immediate vicinity of the rookeries, and
few were always to be seen between 2 and 3 miles from the islands, very few were
after that to be seen until we had gone a long di.stance out to sea. It is thus evident
that the number of seals going to and from the islands is very small.

On the 11th September, when on H. M. S. "Melpomene" we steamed from North-
east Point to the village of St. Paul— a distance of about 11 miles — being nevermore
than 3 miles from the shore, and most of the time much nearer to it, when off North-
east Point, Polavina and Reef rookeries, thousands of seals were, with the aid of
field-glasses, seen playing in the water near the shore, but very few close to the ship
at the distance stated from the land.

I mention that, Mr. President, in order to show you that Mr. Macoun
had opportunities of investigation, exercised those oj^portunities, and
has recorded the results of his observation I submit, fairly; and it
leads to the natural conclusion, namely, that these female seals would
go into the water according to their inclination, especially if the
weather was hot, for the purpose of cooling themselves, or for the pur-
poses enjoying the water and then coming out again; whereas the
United States asks you to believe that no female seal ever goes into
the water except for the purpose of going away and getting food and
coming back. It seems to me to be a somewhat extravagant assump-
tion, and I shall ask the Tribunal when they have considered this and
the further evidence, to come to the conclusion that the view submitted
by Great Britain with regard to this point is not without ample war-
rant having regard to the evidence which is before the Court.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 119

Lord Hannen. — The difficulty I feel about this is that there is a
great drain on the males; that nature has siii)plied means of providing
for that drain : there is a great drain on the females during the time of
nursing, but there is no evidence that nature has supplied them with
any additional reserve of fat.

Sir Richard Webster. — I do not think it is quite "no evidence''
my Lord. 1 am not sure whether there is any evidence of the emacia-
tion of the females after the period of nursing. I am very much
obliged to the Court for indicating any point upon which they think my
statement requires further support. I call attention to the fact — it
must be only a question of degree — that there must be that drain, ex
concessis for a considerable time — I say from 14 to 17 days or three
weeks. The whole significance of this, my Lord, is, during what period
the pup is dependent on the mother. It is not a question of whether
or not the female feeds — the question is, whether a female that is killed
is one ui)on whom the life of a pup depends; because there is nothing
morally wrong from the point of view.

Lord Hannen. — We are merely on the natural history point.

Sir EiCHARD Webster. — Quite so, there is nothing wrong from the
point of view of the killing of a female. All I meant is, the LTnited
States argument proceeds on three assumptions, everyone of which I
shall submit later on, are unjustifiable. First: that every female seal
killed at sea has got a pup on the ritokery ; secondly : that every female
seal killed at sea has already been impregnated so that she is going to
produce another seal; and next they boldly state that the pelagic sealer
who kills a female seal kills three seals at the same time. I will not of
course refer to the passages in Mr. Coudert's speech on that. They
appeared to me at the time as being extremely exaggerated. My sole
object in examining this is not for the purpose of saying that female
seals never feed for any given time, which 1 can fix, after the birth of
the pup, but I submit to the Court that upon the evidence they are not
shewn to go out to feed until a time when there is reasonable ground
for supposing that the pup is to a great extent independent of the abso-
lute necessity of the sui)x>ly from its own particular mother or from any
mother at all.

Mr. President, it is no part of my case — not the least necessary to
my case — to suggest that these fenmles must fast for two months, or
anything of the kind. I have understated the period with regard to
the males, for it appears to be nearer three months; but however, it is
no part of my case to suggest that these females are to be subjected
and must be subjected to that draft u])on their strength. My w^hole
jioint is to endeavour that the court may have fairly before them the con-
siderations which bear upon what I may call the necessity for regula-
tions in connection with the preservation of seal life; and I submit that
so far as the evidence, apart from mere surmise and apart from mere
assumption, is before the Tribunal, it would seem that the period when
the pup is absolutely dependent upon the mother is, roughly speaking,
from three to four weeks at the outside, and that after that time,
whether the mother goes to sea to feed or not is, comparatively speak-
ing, immaterial.

My Lord, with regard to the spreading of the seals out upon the
shores upon the islands, I desire to call attention to an extract from
Mr. Elliott's Eeport for 1881.- Now, Mr. President, having read this
extract, I propose temporarily to make a digression, once and for all,
with reference to the way in which I am going to use Mr. Elliott's
Eeports and the evidence that I think ought to be before you in con-

120 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. 0. M. P.

nection with them. The statement with regard to the seals that 1 i)ro
pose to read is at page 40 of Elliott's Eeport of 1881,

Mr. Justice Harlan. — The one that was published in 1881?

Sir EiCHARD Webster. — Published in 1881 by the United States
Government. It is what Mr. Foster called the Tenth Census Report.

Mr. Foster. — Prepared upon observations made from 1872 to 187G.

Sir EiCHARD Webster. — Very likely so; but this is a republication.
It had been previously published, as I shall show in a moment or two,
in earlier years.

The paragraph is headed " Young Pups learning to swim."

Early in August, usaallj'^ by the 8th or 10th, I noticed one of the remarkable move-
ments of the season. I refer to the jiup's lirst essay in swimming. Is it not odd —
paradoxical — that the young seal, from the moment of his birth, uirtil he is a month
or six weelis old, is utterly unable to swimf If he is seized by the nape of the neck
and pitched out a rod into the water from the shore, his bullet-like head will drop
instantly below the surface, and his attenuated posterior extremities Hap impotently
on it. Suffocation is the question of only a few minutes, the stupid little creature
not knowing how to raise his immersed head and regain the air again. After they
have attained the age I indicate, their instinct drives them down to the margin of
the surf, where the alternate ebbing and flowing of its wash covers and uncovers
the rock or sandy beaches. They first smell and then touch the moist pools, and
flounder in the upper wash of the surf, which leaves them as suddenly high and dry
as it inmiersed tliem at first. After this beginning, they maiie slow aud clumsy
progress in learning the knack of swimming. For a week or two when overhead in
depth, they continue to flounder about in the most awkward manner, thrashing the
water as little dogs do with their fore-feet, making no attempt wliatever to use
the hinder ones. Look at that pup now, launched out for the first time beyond his
depth; see how he struggles — his mouth wide open and his eyes fairly popping. He
turns instantly to the beach, ere he has fairly struck out from the point whence he
launched in ; and as the receding swell, which at first carried him ott' his feet and
out, now returning, leaves him high and dry for a few miuutes, he seems so weary
that he weakly crawls up out beyond its swift returning wash, aud coils himself up
immediately to take a recuperative nap. He sleeps a few minutes, perhaps half an
hour, then wakes as bright as a dollar, apparently rested, and at his swvimming
lesson he goes again. By repeated and persistent attempts, the young seal gradually
becomes familiar with the water aud acquainted with his own power over that ele-
ment, Avhich is to be his real home and his whole support. Once boldly swimming,
the pup fairly revels in his new happiness. He and his brethren have now begun to
haul and swarm along the whole length of St. Paul coast, from Northeast Point
down and around to Zapadnie, lining the alternate sand beaches and rocky shingle
with their plump black forms.

I now read from page 141 of Volume I, Appendix to the British
Counter Case, from Mr. Macoun's report:

The first pups I saw swimming in 1892 were in the water in front of North rookery
on St. George Island, the 18th July. The day was bright and warm, and the tide at
the time of my visit was just beginning to flow. A great many pujis were playing
in the pools among the rocks near the edge of the sea; in one place there were forty
or fifty going, in many others more than half that number, while all along the shore
the young seals were in little groups of from three to ten. No old seals were near
them but those swimming about in the water and those going to and coming
from it. As the tide came in some of the pups slowly retreated, but many of them
remained among the rocks until the water was some distance beyond them. They
played about in much the same way as hollnschickie do, and swam from one rock to
another and back many times, with no appreciable interval of rest. I neither at this
time nor on any other occasion saw an old seal attempt to teach a pup to swim nor
carry it to the water; nor did I ever see anything that would lead me to suppose that
pups learned to swim. On the contrary, a pup cut from its mother can swim for a long
time. Ten days later these pups had inci'eased considerably in size, aud were swim-
ming and playing about in tlie water in great numbers, seeming as much at home
there as the older seals did ; a few of them were 50 or 60 yards from the shore diving
without apparent effort through the large waves that were coming in.

Early in August j)"ps had begun to haul out with the holluschickie on the North
side of Lukannon Rookery, nearly a mile from the rookery, and by the middle ot
that month a great many of them were to be seen far liom the rookery grounds.
They were of course, in greatest numbers in front of and near.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 121

I tliiuk, Mr. President, it ^yould save you a little trouble if I asked
you to be kiud euougli to take the cliart of the rookeries. Would you
kindly take before you — I will have to refer to it a little later on — Chart
2 of the Pribilof Islands, in the United States Gavse. If you will turn
it with the north from you, the way the map is written, you will see
Keef Eookery, Lukaniion Kookery, Polaviua Rookery.

Lord Hannen. — Which island f

Sir Richard Webster. — 1 am on St. Paul's Island entirely, the
larger of the two. You will hud Zapadnie Rookery, Tolstoi Rookery,
Reef, Lukannon and Polaviua. I shall have to refer to that map
later on.

They were of course in greatest nutabers in front of and near Lukannon, Ketavie and
Eeef iiookeries, but they extended in an unbroken line from Lukannon to the laud-
ing place at the village. —

That, my Lord, is all the way around that point, Grarbatch Rookery,
right around to the village. The landing place of the village is where
Village Cove is written. The landing referred to by Mr. Macoun is at
Villase Cove —

^w

in places mixed with holischickie, but very frequently there were no older seals near
tliem. At Black Bluif and between Zoltol Saudsand the Village landing place, large
bands of pups swam about from place to place or hauled out on the rocks and sand.
It does not seem possible or probable that the mother seals should tind their own
young ones among so many and at such a distance from the breeding ground; and
during the whole time I was on the Pribilof Islands I never saw a female seal suckle
a young one except on a rookery.

We have got this from the observation of Mr. Macoun, and we have
got it from the statement made by Mr. Elliott long before, that from
Northeast Point down to Zapadnie — You will see, Mr. President, that
Northeast Point is up at the extreme end of the island ; Zapadnie is the
westernmost of the rookeries, my Lord, a little to the left of the village;
and Mr. Elliott describes the pups that have just learned to swim as
having hauled out and swarmed along the whole length of St. Paul's
coast from Northeast Point down and around to Zapadnie.

It seems to me — I must not put it higher than that — as not an unrea-
sonable suggestion to make, that the pups being born some where
between — speaking roughly — the 20th of June and the first week in
July. By the beginning of August they are found spread all the way
along the coasts of that island. It does not seem to me an unreasonable
inference to draw that after that time they are independent of their
mothers; and I ask the court to observe that when the evidence shows
us that no female seal has ever been seen, according to the evidence,
giving suck to a pup except upon a rookery, it is a very strong corrobo-
ration of the point which I am pressing ujion the Tribunal, that after
the pups scatter, are podded out and spread along the islands, they are
either wholly, or comparatively speaking independent of their mothers.
Would the President kindly follow on to page 141, the next passage:

From the time the pups first go into the water, they are to be seen with pieces of
sea-weed in their mouths, and there is no reason for doubt that from this time until
they leave the island, at least a considerable ])ortion of their food is composed of sea-
weed picked up along the shore or in the waters adjacent to it. Mr. Elliott says
that he knows fur-seals feed to a limited extent upon crustaceans and squid, and also
eat tender algoid sprouts. Perhaps the seals live upon crustaceans and squid for the
first five or six mouths they are at sea. Squid, as has been shown in another part of
this Report, are plentiful near the seal islands.

Now, Mr. President, the proposition which I am contending for is
this: that after the first four or five weeks, to put it most against
myself, the seals are in such a condition that they are practically inde

122 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

pendent of their mother; and I shall call attention to that later on in
connection with the evidence which I have to call particnlar attention
to about the killing of females with milk in their breasts at sea at cer-
tain times later in the year.

I want now to make a digression in order to save repetition later on.
This is the first reference that I have made to Mr. Elliott. I ask per-
mission of the Tribunal for a very few minutes to let me put clearly
before them what are the facts with regard to Mr. Elliott, his position
and his reports, for of all things that are astonishing in the conduct
of this case the abandonment of Mr. Elliott's report of 1890 is the most
astonishing. Sir, there is not the slightest ground in the evidence or
in anything before the court for regarding Mr. Elliott as other than a
man of impartiality and of accuracy; but I am not going to allow it to
remain upon my statement or upon anything which I cannot vouch for
from the documents. May I for a few moments before the court
adjourns put this matter before them as briefly as possible.

You will remember, Mr. President, that Mr. Elliott was appointed
under an act of Congress. He has made statements in his report to
which I shall come later on in my argument — statements of fact that
are absolutely inconsistent with the United States case. Tliat may be
a good reason for suppressing his report or it may be a bad reason.
So far as I know upon the whole of this evidence it is the only reason
that can fairly be suggested. Now, Mr. President how does the matter
stand? There are categorical statements of fact, extending over many
days in Mr. Elliott's report, to which I have to call attention later,
which are capable of distinct contradiction. He was accompanied on
that visit in the year 1890 by not less than four Government agents,
Mr. GofC, Mr. Nettleton, Mr. Lavender and Mr. IMurray. There was
also present on that island during a great part of the time a perfectly
independent gentleman, Prof. Palmer. I am quite aware that Mr.
Foster has said that they do not agree with Mr. Palmer's conclusions;
and I was not surprised, 'for whenever.

Mr. Foster. — 1 did not say that.

Sir Richard Webster. — I so understood you.

Mr. Foster. — I said a great many of them.

Sir EiCHARD Webster. — For whenever a statement is made, or evi-
dence is given, I am aware, against the view of the United States, the
United States do say that they do not agree with that; and of course
they are quite within, their rights. But my point is this, Mr. President;
and I ask the court to consider this in fairness to the case I am pre-
senting: that of those four gentlemen though they make affidavits on
some minor points, to which I shall call attention later on, not one of
those ibur gentlemen has made any affidavit inconsistent with Mr.
Elliott's statements of fact. Nay, more; Mr. Stanley Brown was sent
to the islands in 1891, Mr. Elliott having made his report in the autumn
of 1890. I do not know whether Mr. Stanley Brown had Mr. Elliott's
report in his hand or not. W^e have never been told, and I have no
right to assume it; but one thing is certain, he either had it or he had
it not. If he had it, he has not contradicted Mr. Elliott on the most
important and salient facts, as I shall show later on. If he had it not,
I do not think the court will think it was the right thing to send a per-
fectly independent gentleman to the islands without giving him some
information at any rate as to what the report was which had been pre-
sented to the Government by their accredited agent. Therefore, the
first point tliat I make with regard to this is that on three separate
occasions Mr. Elliott has been put forward by the United States Gov-

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 123

ernmeiit as being the most experienced person who could possibly give
information with regafd to seal life. He has been put forward and
chosen with that object; and at no stage, Mr. President, prior to this
case have the contents of that report from whicli I read the extracts — 1
mean the report of 1881 — been impeached until the matter came in
controversy to-day. You may remember when Sir Charles Knssell
quoted from tliat report, stating that he did not understand that to be
attacked, my learned friends said they had not referred to it and
they must not be understood as agreeing at all in Mr. Elliott's earlier
conclusions.

But now, if the court will give me a very few moments with regard
to this matter in order to complete it, I am in a position to put before
the court that which I certainly had not the opportunity of doing a few
days ago. I happen to have before me the report of the debate in the
House of Eepresentatives and in the Senate when this gentleman was
appointed; and I read from the public Congressional liecord.

Mr. Carter. — Is that in the case"?

Sir EiOHARD Webster. — It is not.

Mr. Carter. — Then we object.

Sir EiCHARD Webster. — I read from the public document of the
Congressional Record of what happened in the Senate when Mr. Elliott
was appointed.

The President. — Is that an official paper?

Sir Richard Webster. — And I would tell you also that I am going
to read from the letter written from the Treasurj^ Department at Wash-
ington, an official letter.

Mr. Phelps. — Will my friend excuse me. If we are permitted to put
in evidence from the public documents and elsewhere on the other side
of this case when we come to reidy, I have no objection to your reading
the observations of any member of Congress on this subject.

Sir Richard Webster. — Mr. Phelps, I should not object, if it were
for me, to any public document being referred to upon this or any other
question; because in my opinion

Mr. Phelps. — We should be glad to read the Secretary of the Treas-
ury's letter that accompanied this report and some other matters. If
we are to try Mr. Elliott we had better try him upon the evidence on
both sides.

■ Sir Richard Webster. — Yes, I quite agree. Mr. President would
you prefer that I should suspend for the present"?

The President. — If there is an objection I think it would be better
for you to suspend.

Sir Richard Webster. — Before we adjourn will you allow me to
state that I proposed to read the official letter of the 13th of March.

Lord Hannen. — That stands on a different footing than the matter
to which objection was raised.

Sir Richard Webster. — Oh, no.

Lord Hannen. — I thought you were going to read reports of speeches
in Congress, and that I understood was objected to.

Sir Richard W^ebster. — It was not my fnult, my Lord, that inter-
position was made before I had the opportunity of explaining myself
fully. I was going to read from the letter of Mr. Batchelor, the Acting
Secretary, from the Treasury Department, office of the Secretary at
Washington, the 13th of March, 1890. My only reference to it is the Con-
gressional Report. When that letter had been read I did subsequently
intend to refer to some of the observations made in the debate. I wish
the court to have exactly before them what my proposition is.

The Tribunal thereux)on adjourned for a short time.

124 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

The President. — Before you proceed, Sir Ricliard, we sliould like
to have a few words together.

The Tribunal then proceeded to consult for a short time.

Sir KiCHARD Wetister. — I have had an intimation, Mr. President
from my learned friend, Mr. Phelps, who is always courteous in these
matters, that may save the Tribunal further trouble with reference to
their consultation.

He does not propose to make any suggestion against Mr. Elliott other
than can be gathered from the fiice of the Report itself in the way of
criticism, and I do not wish to introduce any extraneous matter with
a view of either commenting upon or raising any comment upon Mr.
Elliott personally, it being open both to my learned friend, Mr. Phelps
and myself to criticize the Report itself. Therefore it is not necessaiy
for me, as there is nothing before the Tribunal, to bring forward any
independent testimony with regard to it.

The President. — The Report having been admitted, it is better to
proceed on that alone.

Sir Richard Webster. — It is very satisfactory to me, because my
learned friends have, whatever the objection may have been, met us in
a way that is fair, when it was necessary to dismiss or get rid of mat-
ters for the purpose of shortening the proceedings. The Tribunal will,
of course, see why I was anxious that they should have sufficient infor-
mation to enable them to judge of the merits of the Report, and I am
willing to take it upon the Report itself. Therefore I pass from that.
The Report, as you will see, bears on its face matter which may be
criticized and also evidence both of great accuracy and obvious verac-
ity, as we shall submit. I am very glad indeed that the occurrence of
the incident will enable me to shorten the time of my argument by not
having to refer to certain documents which have been put into my
hands.

Now, Mr. President, Lord Hannen was good enough to put a question
to me, and I apologize for not having the answer ready at the moment,
as to whether there was any evidence of the emaciation of females.

Lord Hannen. — Well, it was rather the other side of it. My ques-
tion was whether there was any evidence of their having a store of fat
like that of the males.

Sir Richard Webster. — Well, my Lord, I will not apologize to this
Tribunal for not being able to answer any question at the moment it is
asked. It is difficult to carry all the facts in one's memory, but my
learned friend, Mr. Robinson, has been good enough to remind me of a
passage which we should read in another connexion which will be found
at page 214 of the British Counter Case from a book of undoubted
authority by Professor Allen. I will look at the rest of the book
to-night to see if there is any other authority on the matter, but this
appears to me bear directly upon Lord Hannen's question.

The habit of prolonged abstinence at the breeding season is well known to be nor-
mal among the rinnipedia as a whole; and notwithstanding the number of years over
which the habits of seals have been observed, there is no record of food being found
in the stomachs of females when killed upon the islands, or any facts that justify the
statement that nursing females leave the islands on feeding excursions.

Writing particularly of the eared-seals (or fur-seals and sea-lions). Professor Allen
Bays :

One of the most striking features in their history is that at this period [that of
reproduction], both sexea pass weeks, and even months, without food, or without
oiten visiting the water. Arriving at the breeding-grounds exceedingly fat and
un wieldly, they seem to be sustained by the fat of their bodies, they finally leave at
the end of the breeding season greatly emaciated.

A similar fact has been long known in respect to the walrus, whose period of
fasting, however, seems to be shorter than that of the eared-seals.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 125

Then in this Monograph of 1880, Professor Allen writes on the same

subject:

The males, diiring the breeding season, remain wholly on land, and they will suffer
death rather than leave their chosen spot. They thus sustain, for a period of several
weeks, an uninterrupted fast. They arrive at the breeding stations fat and vigor-
ous, and leave them weak and emaciated, having been nourished through their long
period of fasting wholly by the fat of their own bodies. The females remain unin-
terruptedly on land for a much shorter period, but for a considerable time after their
arrival do not leave the harems.

I will look to see before to-morrow whether there is any other evidence
with regard to the sustenance of the female during this period being-
drawn from the fat. It is plain that Professor Allen in his earlier ref-
erence which I cited there refers to the fat of their bodies in the case
of both sexes enabling them to fast from the time they do, notwith-
standing the strain there is on their system.

This is by no means the only evidence. There are two other branches
to which I propose to call attention which are in my submission of very
great importance. The first is that speaking of the seals whose bodies
have been opened prior to this Case, male and female; speaking of the
female particularly, until this case commenced there is no evidence at
all of anything being found in their bodies. There is one passage in
Mr. Stanley Brown's later aftidavit, of 3 female seals being killed at a
late date to which I will call attention presently, one of which was
found to have food in it. That is the only evidence, but of the ftict
that the female seals which have been killed in large numbers, for the
purpose of examination only, have no food in them, is spoken to by
abundant testimony prior to this case. Next there comes the natural
fact to which I must refer, though the subject is somewhat unsavoury,
and that is the absence on the rookeries of any excrement or any
excreta of any sort or kind.

Lord Hannen. — Ui)on that may I make a suggestion, simply for the
purpose of acquiring information! May not they have habits of clean-
liness which would account for it? I am simply enquiring, but may
they not go into the water to get rid of any excreta?

Sir EiCHARD Webster. — There is no evidence of their doing so.'

Lord Hannen. — It only passed through my mind; that was all.

Sir KiCHARD Webster. — And I may say, my Lord, that it was
present to our minds too, and we endeavored to see if there was any
evidence of that kind, but there is none. It would be a very remark-
able incident, having regard to the time that they remain on land, and
their general habits if it w^ere so; but the evidence is particularly
strong, and it is my duty to call the attention of the Tribunal to it.

Now I would ask the Tribunal to refer to paragraphs 232 to 235 of
the British Commissioners' Eeport.

232. Some particulars are given on a later page respecting the abstention from
food of the fur-seals while remaining upon or about the breeding islands. It appears
to be certain that the mature males doing duty on the breeding rookeries do not feed
at all during the breeding season, and that for some time, at least several weeks,
after landing, the breeding females do not leave the rookery grounds in search of
food. There is no apparent reason why the " holluschickie," or young males, should
not go to sea in quest of fish. Singularly enougli, however, though animals of this
class have been killed by hundreds of thousands upon the breeding islands under
all conceivable conditions of weather, and often within less than an hour of their
deportation from their hauling-grounds, the almost universal testimony is to the
effect that their stomachs are invariably found to be free from food.

233. With a view to obtain such direct information on this subject as might be
possible, the stomachs of seals killed in our presence were examined; and though
the results of these examinations, noted below, do not entirely confirm the state-
ment just referred to, they show a remarkable absence of food. The number of
seals which it was thus possible to examine was of course small.

126 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Then occur the references to 2,0 seals killed on St. George, and 18
seals on St. Paul, the result of which is as to the male seals — that no
particle of food was found in any of them.

Then:

From the large North rookery on Behriug Island, 5th September, an adult male or
"seacatch," two females, and au nnweaned pup, Avere driven directly from the rook-
ery ground, about 200 yards distant, and killed, by permission of the authorities,
for presentation by us as specimens to the British Museum. The stomachs of all
four were completely empty, with the exception of a few worms in those of the three
adults. Not only the pup, but the females, and oven the old male, were fat and in
good condition.

And ill this connection 1 mention, but do not read, Mr, President,
paragraph 306, which was read by me yesterday during the Attorney
General's argument, which bears directly upon this.

Now I call your attention to paragraph 242.

Perhaps the most notable leature in regard to this food question, and one directly
consequent on the prolonged abstinence of the seals from food while on and about
the islands, is the entire absence of all excrement on the rookeries and hauling
grounds. Captain Bryant appears, however, to be the only author who has specially
mentioned this particular and striking fact. He writes:

"The fact of their remaining without food seems so contrary to nature, that it
seems to me proper to state some of the evidences of it. Having been assured by the
natives that such was the fact, I deemed it of sufficient importance to test it by all
the means available".

I hope the Tribunal will kindly follow this a little carefully, because
in a later affidavit, contrary to all the other testimony, and contrary to
his own testimony before given in this respect, Mr. Stanley Brown
expresses the opinion that excrement is to be found on the rookeries.
I shall contrast those two statements in order to show that I think he
is mistaken in the opinion he forms upon that.

Accordingly, I took special pains to examine daily a large extent of the rookery,
and note carefully the results of my observations. The rocl^s on the rookery are
worn smooth and washed clean by the spring-tides, and any discharge of excrement
could not fail to be detected. I found, in a few instances where newly-arrived seals
had made a single discharge of red-coloured excrement, but nothing was seen after-
wards to show that such discharges were continued, or any evidence that the ani-
mals had partaken of food. Tliey never left the rocks except when compelled by
the heat of the sun to seek the water to cool themselves.

That bears on the question that his Lordship put to me.

They are then absent from the land for but a short time. I also examined the
stomachs of several hundred young ones, killed by the natives for eating, and always
without finding any trace of food in them. Tlie same was true of the few nursing
females killed for dissection. On their arrival in the spring they are very fat and
unwieldy, but when they leave, after their foiu* months' fast, they are very thin,
being reduced to one-half their former weight.

I cannot help calling attention to this, that this is evidence written
by a competent gentleman, a gentleman who is a witness for the United
States, and writing independently of any controversy or any question,
simply with a desire, no doubt, to tell scientifically what was the actual
fact-
Senator MoRGrAN. — Does the evidence show, or is there any state-
ment of the weight of those females when they arrive, and the weight,
when they go out.

Sir KiCHARD Weester. — N'ot comparatively, Mr, Senator, but there
is abundant evidence about various ages. There is no comparison. It
could not be taken ; and there are no statements beyond the fact that
they are emaciated and thinner.

Senator Morgan. — And no statement of what they weigh when they
arrive in this condition?
Sir E-icHARD Webster. — No.

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 127

Mr. Justice Harlan. — Is there any evidence as to what the females
weigh when they arrive'?

Sir Eichard Webster. — No, only at various periods of their life.
There is evidence that at tlie period of three years old they weigh so
much, and when four years old they weigh so much.

Mr. Justice Harlan. — What are those weights?

Sir Eichard Webster. — Well, unless you wish me to give it now
I have it in connection with another i)art of the case, and I could not
exactly give if off-hand.

Mr. Justice Harlan. — That will do.

Sir Eichard Webster. — My recollection is that a female that bears
young weighs about 80 pounds, I think it is, but 1 am afraid I must
ask the Tribunal to let me correct that if necessary.

Senator Morgan. — It must weigh more than that.

Sir Eichard Webster. — I think not, speaking of the female, but
do not let it be assumed that I state it positively, because I am not pre-
pared to answer the question at the moment. I have it in connection
with another matter.

At page 46 of Mr, Elliott's first Eeport, it will be seen in one week
they are from 6 to 7^ lbs; 6 months, 30 lbs; 1 year, 30 lbs; 2 years,
58 lbs; 3 years, 87 lbs (you see my memory was not very far out); 4
years, 135 lbs ; 5 years, 200 lbs ; 6 years, 280 lbs ; and from 8 years to 20
years, 400 to 500 lbs.

Senator Morgan. — Those are male seals'?

Sir Eichard Webster. — Both; that is the table showing the
weight, growth and size of the fur-seal from the i>up to the adult, male
and female; and he adds this as to the weight of female seals.

The adult females will correspond with the 3 year-old males in the above Table,
the younger cows weighing frequently only 75 lbs, and many of the older ones going
as high as 120 lbs; l)ut an average of 80 to 85 lbs is the rule. Those specimens of
the females which I weighed were examples taken by me for transmission to the
Smithsonian Institution; otherwise I should not have been permitted to make this
record of their weight, inasmuch as weighing them means to kill them; and the
law and the habit, or rather the prejudice, of the entire community up there is
unanimously in opposition to any such proceeding, for they never touch fenuiles
here and they never set their foot on or near the breeding grounds on such an errand.
It will be noticed also that I have no statement of the weights of those exceedingly
fat and heavy males which first appear on the breeding grounds in the Spring.
Those which I have referred to in the Table above given were very much heavier at
the time of their first appearance in May and June than at the moment when they
were in my hands in July, but the cows and the other classes do not sustain pro-
tracted fasting, and, therefore, their weights may be considered substantially the
same throughout the year.

Then at the end of paragraph 242 in page 42 of the British Eeport
there is a statement which I think was read yesterday but the lastx)art of
paragraph 243, was not read which is the commissioners own statement.

Though not at the time aware of Bryant's statement, above quoted, the absence of
excrementitious matter was one of the first points noted and remarked on by us
after landing upon the Pribilofi" rookeries, and it is to the absence of such matter
alone that the continuous herding together on one spot for several months of so
many thousand animals is on sanitary grounds rendered possible.

I remember that it was read.

Now I have read suflQcieutly from the Counter case and if you will
kindly turn to page 144 of volume 1 of tlie Appendix to the Counter
case you will find some very important evidence by Mr. Macoun on that
matter.

No visit was paid to any rookery on either St. George or St. Paul without a careful
examination of the rookery and hauling-grounds being made, for the purpose of
recording the amount of excrement to be seen on them; the matter being Of iuipor-

128 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

tancein connection with the qnestion of the feeding or abstinence of seals during
the breeding season. Shortly before labour began a female was sometimes seen to
void a small quantity of excrement; once only, in addition to this, did I see excre-
ment on rookery-ground that had not been voided by pups. In the instance referred
to, Mr. iJrown who was with me at the time said that it was probably from a female
that had recently come ashore.

That is Mr. Stanley Brown who is referred to there.

In this connection Captain Bryant may be quoted. He says :

I found, in a few instances, where newly-arrived seals had made a single discharge
of red-coloured excrement, but nothing was seen afterwards to show that such dis-
charges were continued, or any evidence that the animals liad partaken of food.

Mr. Vincent Colyer, in his Report to the Secretary of the Interior, dated 18th Feb-
ruary, 1870, likewise says :

The assertion that the fiir-seal eats but little food from June to September may
be true ; certainly, there was little or no offensive excrement even in October, when I
believe it is acknowledged that they do get some food from the water.

On the 27th July a large piece of fresh light-coloured excrement, firm, and of
cylindrical form, was noticed on the ground where holluschickie had been; a great
many worms such as are found in seals' stomachs were mixed with it.

A large harem, the resort of over 300 seals, near the west end of Reef rookery,
was visited by me almost daily, and excrement was always carefully looked for.
This harem lay just beneath an overhanging bank, and the opportunities for obser-
vation were excellent; but, though between twenty and thirty visits were made to
this place, no excrement was ever seen either on the breeding-ground, or the slope
leading to it, with the exception of very small pieces voided by pups which differs
greatly from that of older seals, both in shape and colour. While it is certain that
holluschickie go to and from the water at all times, and when the weather is warm
quit the land almost en masse, there is no satisfactory evidence to show that they
feed while in the water. Several hundred stomachs were opened in my presence
during the summer of 1892, and no trace of food was found in any of them, though,
while struggling together in the killing-ground, some of them voided a small quan-
tity of dark yellowish excrement.

ISTow the suggestion is made for the first time in the evidence in con-
nection with tlie United States Counter Case that this absence of this
sign is due to the ground being such that the excrement is soaked up.
While in the first place the evidence is conclusive as to the dejecta of
the animal that it cannot be of that character, you would not expect it
to be, and it is not in fact — if the Tribunal desire further information,
though no further information is necessary, than that contained in Mr.
Macoun's report there is of course the most direct testimony in regard
to the matter in the statement annexed to the Supplemental Eeport of
the British Commissioners. I do not at present refer to it because I do
not desire to give rise to anything as to which discussion can take place,
but if the Tribunal have any doubt I shall ask them to refer to it later
on. They can find it out for themselves in Paris without referring to
the supplemental Eeport. I desire to call attention to the character of
this; and I would direct your attention to Mr. Stanley Brown's first
affidavit when no suggestion had been made at any time, that either on
the rookeries or elsewhere, was excrement to be found. This is on
page 12 of the 2nd Volume of the AjDpendixto the United States Case,
under the heading "Eookeries":

As a result of the volcanic origin of the islands, their shores are, with few excep-
tions, either made up of bowlder-strewn lawledges or covered by jagged fragment s
of basalt of all sizes, the sharp edges of which are only slightly worn by the seals
flippers or more comiiletely rounded by the waves at the water's edge. There are a
few true sand beaches, occasional level areas are found at the back of the rookeries,
and in some places between the rock masses comparatively smooth interspaces occur,
but even the level portions referred to must be reached by crossing a wide belt of
bowlders of all sizes that have been pushed landward by the waves and by the ice
which annually surrounds the islands. It is upon such shores that the seal "rook-
eries" are located. Of the ruggedness of these shores or of the irregularity "and
confusion of the lava blocks tliat cover them it is difiicult to form a picture, but it
is iu a measure indicated in the accompanying photographs".

OKAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 129

And if you will kindly turn and look at that photograph and see the
character of the rocks, part of the reef rookery, on iSt. Paul's Islands
and remember the seals remain on those rookeries for weeks after going
into the water, both male and female, I do not tliink it is saying too
much when I suggest to you that tlie idea that tlie solid and hard dejecta
and excreta of these animals can be soaked up so as to disappear will
not commend itself to the mind of tlie Tribunal so far as it is necessary
to decide this point; and yet it is the fact that this absence of excre-
ment and excreta was common ground with everybody till the United
States Counter Case, and then they do not go to the people who have
known these rookeries for years, they do not go to the persons who
would have been able to say from the knowledge of 20 years, but they
go to Mr. Stanley Brown who, in his later affidavit, says that this
absence of it is to be accounted for by it having- soaked in to the ground
to a certain extent. I think I am not doing an injustice to him when I
say that that is scarcely to be credited as an opinion in the face of the
evidence to which I have already called attention. In the same Vol-
ume will be found Mr. Morton's account of the rookeries at page 66.

Senator Morgan. — When you say that the seals old and young
remain without food on the Islands there for 5 or 6 weeks, do you mean
also to say. Sir Richard, the males and females, — do you mean the old
and the young females?

Sir Richard Websier. — No; I did not mean old and young, if you
include pups in old and young. I Avas speaking of the females and par-
ticularly I had in my mind the females whom it is suggested go out to
sea for food and come back again during the period of nursing. My
contention is this, and it is one ujion which I ask the jndgment of the
Tribunal, that t]ie females do not leave for food substantially, (I do not
say that they do not ever go) till the independence of the pup with
regard to the mother is practically complete; at that time, they leave
to go to sea for food, the necessity of their being there having, jiracti-
cally speaking, disappeared. That is shown by two facts; that very
shortly afterwards, that is to say within a few weeks, the pups are to
be found at a considerable distance along the shore spread all along,
and that at no time during the continued sojourn of the female upon
the Island is any excreta to be f lund at any place where she has been.
That is my contention, on which I ask your judgment when you come
to the evidence.

jS^ow, I was calling your attention to the character of the rookery
ground; and in Mr. Morton's affidavit, at page 66, you will see this:

During the seasons of 1877 and 1878, while serving iu the caparity of special
Treasury Agent, I devoted my best attention and study to this subject. It may be
said in the start that the grounds held by the fur-seals are known at the islands as
"rookeries" and hauling "'gr')unds." On the former are found the breeding seals,
namely, the full-grown males not less than six years of age, and females of three
years old and upwards. The grounds comprising the rookeries slope upward from
the sea in a gradual and e;isy manner, and are characterized by hard dry surfaces of
volcanic cement or basaltic rock. They are readily accessible from the water and
possess other favorable conditions for occupancy by the seal life.

Now that is the condition of the rookery gronnd spoken to by
Captain Bryant; that is the condition of the ground spoken to by
Mr. Stanley Brown ; that is the condition of the ground spoken to by Mr.
Morton before any question had been raised suggesting that the dejecta
from these animals might disappear into the soil absolutely impossible —
inconsistent with all the known facts. Upon that 1 ask attention again
to the British Commissioners' Report because they examined this mat-
ter, because there is no one that would suggest with reference to this
B S, PT XIV 9

130 OEAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Eeport, that if ]^r. Dawsou and Sir George Baden Powell liad found
the fact of excreta on these rookeries they would not have stated it.
]i^ very single fact they did discover in this matter, however it told — and
there was no reason to think it would tell in their favor at the time they
made this Keport — they have stated every single fact in the case as it
came to their knowledge without bias or colour.

Now at ParagrajDh 260 they say ;

It appears possible to meution only two conditions "which have been avoided by
the seals in the choice of their rookery grounds: these are mnd and loose sand. On
muddy ground the fur is doubtless apt to become uncomfortably clotted, and the
sand if driven by the wind or splashed about by rain is probably also irritating to
them. Shifting sandy ground besides renders the always clumsy locomotion of the
seal when upon the land additionally difficult; but it may be noted that sandy
beaches appear to be well liked by the seals when they haul out temporarily, and
are not actually established for breeding purposes. On most of tlie rookery grounds,
away from the actual beach, the character of the soil is such that it becomes beaten
down between the projecting rocks into a hard and nearly smooth lloor, a circum-
stance which depends in part on the incorporation with it from year to year of the
felted hair which is shed by the seals themselves during the stagey season.

Then at Paragraph 256 sub paragraph 4, they say :

Beef Eoolceries. — Occupying both sides of the outer part of the long promontory
known as Reef Point, and facing to the north-west and south-east. The north-
western slope, often called Garbotch, is rather steep, and a part of the rookery
ground occupied on this side consists of a narrow fringe of rocky shore overlooked
by low basaltic cliffs. A narrow ridge, which is worn bare and occupied as a haul-
ing ground by holluschickie in the early part of the season, and is frequented by
all classes of seals at a later period, separates the northwestern Irom the south-
eastern side of Reef Point. On the south-east side there is a wide border of flat land
but little elevated above the tide, upon which the greater part of the seals of the
reef rookeries is found. Almost the whole of the rookery ground of the reef is plen-
tifully strewn with angular masses of rock, though occasional smooth spaces also
occur. The higher parts of the Reef Point consist very largely of a bed of volcanic
scoriae, lying compact and much in its original state, and forming a iine hard surface
considerably diiferent from that found on most of the rookeries.

So there you have the statement, made from independent sources,
that the character of the ground between is either rock, or else it is
beaten down hard ground.

Senator Morgan. — That is in the rookeries proper?

Sir KiCHARD Webster. — That is in the rookeries proper.

Senator Morgan. — How do the holluschickie haul out?

Sir Richard Webster. — They haul out on ground practically speak-
ing beaten down by the lying upon it, and which consists to a large
extent of seal hair and fibre toughened from the pressure of years and
centuries.

Senator Morgan.— The holluschickie do?

Sir Richard Webster. — Yes. It is also hard, although not the
same kind of hardness as would apply to the rocky formation of the
rookery and it is the fact that upon the rookeries with this abundant
opportunity of examination, no trace of anything of the kind has been
found.

Now this is what Mr. Stanley Brown says at page 387 of the United
States Counter Case. There is nothing iu his original affidavits con-
tradicting the universal testimony and no evidence upon this point
from persons of experience contradicting what I have stated.

The presence of excremeutitious matter upon the breeding rookeries is recognized
both by sight and smell. It is of a yellowish color, and though much of it is
excreted it is of such a liquid consistency that it is quickly rubbed into and mingled
with the soil, and thereafter its existence can only be noticed through the discolora-
tion of the soil and the offensive odour. The latter is readily detected at a distance

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 131

of miles when the wiud is in the right direction, for the soil on the breeding rook-
eries is completely impregnated with it. The odour bears no resemblance to that
which arises from the bodies of a large number of assembled animals.

The quantity of excrementitious matter present is influenced by the nature of
their diet, which, being tish, is largely assimilated, while in their coming and going
much of it may be deposited in the water, to say nothing of drenching from rain to
which the rookeries (many of which are solid rock) are subjected.

Upon the face of the affidavit, the statements are a little inconsistent.
You see the character of the rocks from the photograph which speaks
for itself — the rain would not wash it away from the liollows of those
rocks. If the statment be supposed to mean that the excreta of the
seal are not solid, the whole of the evidence in this case is to the con-
trary of that. That the females do void something of that character
just before the birth of their pup is spoken to by Mr. Bryant. I submit
that upon this evidence the testimony is all on one side and in one
direction, namely, that there is no evidence of any excreta being voided
by female seals at any time when they are upon the rookeries and in
attendance upou their young.

l^ow, Mr. President, I come to a part of the case which again I am
happy to say does not require very much argument from me, because
I am able to take the evidence almost entirely, if not entirely, from
the United States, and that is with regard to there being food round
the island.

For a long time it was suggested more than stated — suggested I
think in the United States Commissioners Report — that the reason
why females went far from the islands was because there was no food
near.

Upon the evidence upon both sides it is clear that there is abundance
of food far beyond what the seals require, remembering that it is com-
mon ground that a very large percentage of those upon the islands do
not feed at all. There is evidence on both sides that there is abun-
dance of food suitable for the seals in close proximity to these islands.
I suppose it is scarcely necessary for me at present, Mr. President, to
prove what the seals feed upon, but if I am ehallenged of course I will
do so. I will state they feed upon cod — they feed upon practically all
kinds of tish including herring salmon and halibut. They also feed,
to a certain extent upon Squid, but having regard to the enormous
amount that seals eat in the day, they must have something much
more substantial to live upon than simply the squid which they can
collect. However, the evidence in this case, on both sides, is that when
food has been discovered in the stomachs of seals, it is found to be
largely consisting of cod, and largely consisting of other kinds of lish,
but among their most suitable food is the cod.

Now the evidence with regard to food near the Islands can be put
shortly, but it must not be overlooked. I call attention first to para-
graph 231 of the British Commissioners Eeport in which they say.

That the fur-seal is essentially a pelagic surface feeder, is further shown by the
fact that it is not known to resort habitually to the best fishing banks in Behring
Sea, such for instance, as the Baird bank, and that fish, such as the cod and halibut
inhabiting water of some depth and feeding along the bottom, are often found in
considerable numbers, not only near the breeding islands of the seal, but even in the
immediate vicinity of the breeding rookeries of these islands. Such fish are actually
caught at various seasons by the natives of the Pribilof Islands within 1 or 2 miles
of some of the largest rookeries on the south side of St. Paul Island, and not more
than 2+ or 3 miles oif the rookeries on the north shore of St. George Island. On one
occasion, while at anchor for a short time within less than half-a-mile from the largest
rookery on Behring Island, at Cape Yushin, over twenty cod, with some other fishes,
were caught from our steamer with two or three hand lines, in water not more than
6 or 7 fathoms in depth.

132 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Then in Vol. 1 of the Appendix to the BritivSh Counter Case, pages
138 and 139, you will find. Sir, very important and very strong evidence
with regard to this presence of food. This is what Mr. Macoun says :

When I landed at the village on St. Paul Island on the 30th June, cod and halibut
were hanging before many of the natives' houses. In answer to my enquiry as to
where they had been caught, I was told that they had been taken less than 3 miles
from St. Paul Island, and between it and Otter Island.

Up to the 12th of Seiitember, the date of my final departure from the Pribilof
Islands, natives went out fishing every fine Sunday, and, in fact, every day they
were not engaged on work for either the Government or the Company, and good
catches of fish were invariably made.

When on St. George Island the 17th July a great many cod were seen hung up to
dry, and at dinner that day I asked the United States Treasury Agents and the
oflieers of the Company why they had not fresh fish on the table. I was told that
they could be had in abundance whenever wanted, but that they were all tired of fish.

"H. M. S. Daphn6", while I was on board of her, was anchored during the fore-
noon of the 2l8t July in 18 fathoms of water, one-third mile off Dalnoi Point, St.
George's Island, and cod, small halibut and sculpin were caught in great numbers
at this time.

A holiday was given the natives on St. Paul Island on Saturday, the 13th August,
and many of them spent the day fishing. Their boats were in sight all day between
2 and 3 miles off Lukannon rookery. They returned late in the afternoon with their
boats half full of fish; there were many more cod than halibut, though the latter
were much the larger fish.

I asked the natives how far they went out for fish later in the season ; they replied
that they never had to go more than 5 miles from land to get all the fish they wanted,
and that it was only in September that they went that far. I was taken to south-
west Bay, St. Paul Island, by a crew of natives, on the 23rd Atigust. During the
brief time I was ashore they fished about half-a-mile off' Zapadnie rookery catching
two halibut and seven cod. These men told me that the fish were always very plen-
tiful near the island, biit that until 1891 they had never had time during the summer
mouths to catch them, when they were not driving or killing seals, there were the
skins to salt and re-salt, the Company's ship to load or unload, and coal and pro-
visions to be brought from the landing-place to the storehouses.

The next day salmon were seen in tlie lagoon near the village.

Then the next paragraph relates to Behring Island. I need not read
that. Then it goes on :

Mr. Baldwin, who has been on St. Paul Island several years, told me that small
squid are very numerous close to the islands, and Mr. Townsend. —

that is the United States gentleman —

Who has for several years been employed as a naturalist on the "Albatross" in
Behring Sea, said more than once in my hearing that there was no part of Behring
Sea that did not abound with them.

It is thus evident that should seals, whether males or females, require food during
the time they resort to the islands, (which has not been proved) it is to be had in
abundance close to the rookeries, while it is further apparent that the natives with
the exercise of but ordinary diligence on their own part are in no way dependent on
the slaughter of seals for food.

Now, Mr. President, it must not be forgotten in this connection that
ex concessis, as I have said more than once to-day, the large proportion
of the animals during a considerable portion of their stay on laud do
not require to catch lish — that is to say the bulls, the holuschikie and
the females, — until such time as they are minded to go out again to sea.

Now let us look at the United States evidence upon this point. I
refer to the evidence of Captain Tanner and I will ask the Tribunal
kindly to turn to it. It will be found at page 374 of volume 2 of the
Appendix to the case of the United States.

He says:

Seals killed in Behring Sea after the birth of the pups are largely mother seals
and the farther they are found from the islands the greater the percentage will be.
The reason for this seeming paradox is very simple. The young males, having no
family responsibilities can afford to hunt nearer home where food can be found if
sufficient time is devoted to the search. The mother does not leave her young except

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 133

when necessity compels her to seek food for its sustenance. She cannot afford to
waste time on feeding grounds already occupied by younger and more active feeders;
hence she makes the best of her way to richer iields farther away, gorges herself
with food, then seeks rest and a quiet uap on the surface.

Well iSir, there is a very great deal of romance in that affidavit, I
cannot help thinking that it would not have been undesirable to have
had an opportunity, if the Treaty had permitted it, of testing such a
statement by cross-examination — that the mother seal knows that there
are fish in the neighborhood of the island, but knows that the young
males, who have not got family responsibilities, are hunting themselves,
therefore passes those fish by on the chance of catching others by and
by, and goes out a greater distance to seek food. Not having time to
take fish near at liand, she has time to travel great distances on the
chance of other fish. There were other reasons given, for instance,
which I will not fail to deal with, but to get, over that which the gentle-
man is by implication obliged to admit, namely the existence of a very
large quantity of food in the immediate proximity to the islands, know-
ing that a very large proportion of the seals on the island do not require
food — he has to write a little romance of the female seal who knows
that the male seal has got no family responsibilities, therefore goes
straight through, past the fish, in order to get to a richer feeding
ground.

At pjige 504 of the first volume of the Appendix, is a statement by
Captain Hooper, made quite indirectly, without reference to this point,
which will be found very strongly corroborative:

Male seals remain upon and around the islands until the ice appears. The natives
say the codfish also disappears with the first appearance of the ice.

The natives, of course, can only be those who live upon the islands.
They can only speak from what they know, from their no longer being
able to catch the codfish, which would have to be in the neighborhood
of the islands during the time they would be able to catch them.

The statement made — no doubt correctly made — by Captain Hooper
in regard to that matter is that the fish disappears with the appearance
of the ice, in other words, the codfish remain there in the neighborhood
until the ice comes. I therefore ask the Tribunal to allow me to assume,
only for the purpose of my argument at present, not to repeat myself,
that I have established the fact that there is an abundance of food
around the islands, which, if it were the question of the immediate
necessity of getting food and going back to its young, would be preyed
upon by the female seal.

The President. — There is no information about the migration routes
of the cod and halibut and those other fish?

Sir EiCHARD Webster. — None whatever; but we know Mr. Presi-
dent, that cod largely frequent the same waters constantly. I do not
know that you remember, Sir; but I called attention to that in connec-
tion with the argument upon property, referring to the report of the
United States Fishery Inspectors in regard to this matter. We know
that cod come back to the same place continually. They are found
upon some banks and in other places, and it is known that they return
there continually.

Lord Hannen. — Do they not depend on other fish, herrings for
instance?

Sir Richard Webster. — I do not know whether cod feed on herring,
except this — that the herring is said to be fed upon by every fish from
the sillock to the whale. The sillock is a little tiny fish, Mr. President,
that is caught in Scotland, and which feeds upon the herring.

134 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Mr. GkAjVI. — In my country we liave the experience that cod come
every year to tlie .same places for breeding.

Sir Richard Webster. — Yes. I believe the experience upon both
coasts of America, where the cod fishing is very great; I bdieve the
experience on the east coast of England and on the coast of Europe, is
that codfish do come back to the same place year after year; but for
my point, Mr. President, it is not very important, because there is abun-
dant evidence that the cod are found, practically speaking, in all parts
of Bell ring Sea.

The President. — And during the season when the seal is on the
islands?

Sir EiCHARD Webster. — During the season when the seal is on the
islands. I would call attention, Mr. President, as you have been good
enough to put that question to me, to Captain Coulson's report, at page
235 of the Counter Case:

At every station where the vessel was stopped, codfish were taken. In some locali-
ties they were abundant; at others only a few were caught.

I merely mention that for the purpose of showing that it is not, as
far as we can gather from the evidence, a case of there being quantities
of codfish distances away from the island, but as far as I can judge
from the evidence and the evidence only, these cod appear in very
considerable numbers, practically speaking, all around the islands.

But it may be said, "That is perfectly true; but you cannot deny
that female seals, which we call nursing females, are found and killed
at great distances from the island." Mr. President, it is no part of my
case to deny it, and I never have, in any observation that I have made,
intentionally denied that at times, at distances from the islands greater
than the distance I have mentioned of twenty or thirty miles, seals with
milk in their breasts have been killed. But I ask the Tribunal in con-
sidering this matter to be good enough to look at the whole question
and not to look at the question from the narrow point of view, closing
their eyes to all we know about natural history, which is the attitude
that has been assumed by my friends upon the other side. I do not in
any way want to exaggerate or put their case unfairly against them.
But I must remind you that Mr. Coudert actually argued in this court,
solemnly, before you, that inasmuch as the pups were found with milk
in them in the month of November, that therefore it must be assumed
that the pups were dependent upon their mother right up to the month
of November. Well, of course it is an absurdity Mr. President.

That pups may occasionally suck as late as this, is extremely proba-
ble; but we have got to consider Avhat is going to happen. These
animals are going in the next day or so right across the sea, hundreds
and thousands of miles, to find their own living; and nobody suggests
that they go on sucking, the mother then. It would be contrary to
all the experience of every other animal known, to imagine that it is
dependent upon its mother up to within four or five days of the month
of November and then suddenly becomes independent. What is the
ordinary rule you expect to apply? Be it long or be it short, weaning
takes place gradually, either at a longer or a shorter period; and wean-
ing takes place, at times, by the pup poddiug and wandering away from
the rookery, being able to support itself, not being dependent upon the
mother, so that the mother does not have to find it out and feed it. But
there is another most important incident in connection with this matter
which the United States advocates are obliged wholly to overlook. They
entirely forget that it is common knowledge now ever since we have

ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 135

known anything about the fur seal that a very considerable — when I
say considerable I mean a large number — of these pups are actually
killed by killer wliales in the months of August and September on the
very shores, when they begin to swim, and that a certain other number
of these pups are killed by ordinary accidents of life, due to the stam-
pedes upon the rookeries, the conduct of the bulls themselves, and other
natural causes. We also have a substantial body of evidence of ])ups
not infrequently dying from sun -stroke and from other causes of this
kind; and that therefore there must every year be present in the waters
of Behring Sea a large number of seals which have got milk in their
breasts, milk which is drying off, showing seals that have given up
suckling, seals whose pups are weaned or have died, this is certain,
without any argument; and I challenge contradiction upon it.

What does it mean? We have at present no direct evidence of the
time it takes for the milk to disappear entirely from the glands. We
know they are very large glands.' We know that a very large portion
of the body of the seal is covered by the milk producing glands. You
will remember, Sir, there is a phofcograijh in one of the books of a seal
that was cut open by the United States for the purpose of examination,
and we further know that there are four of the mammae or teats, to
each of which the milk goes. Some of us have some experience from
other animals; but I admit that kind of experience is of no real value
for the purpose of what I may call a quatititive estimate. But I do say
this: it would be no exaggeration to suggest that milk would be pres-
ent, must be secreted, got rid of and ultimately dried up for a period
of two or three weeks in the bodies of these animals; and therefore my
learned friends are obliged to assume this position, in order partly to
introduce what I cannot help thinking is to a certain extent prejudice,
and in order to indicate that injury is done to the seals upon the islands
that the evidence does not warrant. Every seal that is taken, every
female seal that is killed, is a crime. Every female seal that is killed,
either she herself and the unborn pup in her — 1 am dealing now with
seals that have delivered their young on the Pribilof Islands — is to be
regarded as being lost, and therefore that two seals are lost, and if
there is a pup upon the island, three.

Does the evidence warrant it"? With very great deference, Mr. Presi-
dent, and only inviting the candid and severe criticism of this Tribunal
upon my arguments, I submit the evidence does not warrant it at all;
and I submit that when the evidence is examined there is nothing to
show that any substantial number of females would be killed in Beh-
ring Sea by vessels that are j)elagically sealing at distances outside
thirty miles from the islands. Of course, Mr. President, it must not
be put upon me that I am advocating pelagic sealing within ten or fif-
teen miles of the shore. I have said distinctly tliat I do not advocate
it. It must not be put upon me that I am justifying pelagic sealing in
Behring Sea during the months of May and June, when the females are
gravid. That is another matter which I have disclaimed, and which I
am going, of course, to come to later on when I deal with the supposed
injury to gravid females. I am dealing now entirely with the injury to
nursing females.

As I have said before, to make, my note complete, I will merely men-
tion in connection with this subject to form a starting point, sections
303 to 308 of the British Commissioners' Eeport. 1 do not wish to read
them now, because I read them yesterday; but I want my argument to
be self-contained, and therefore I call attention to them, that the Tri-
bunal may have in one passage, so to sj)eak, of my argument, all the
references that bear upon this.

136 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

But now occurs some very important evidence on page 55, section 310
of tlie British Commissioners llepoit, whicli I read witliout comment
except to say by anticipation again tbat you will see whether the Com!
missioners have excluded any evidence that might tell against theni;

310. In the Report on the fur-seal fisheries of Alaska (1889), Mr. W. B. Taylor states
that the cows go out every day for food to a distance of 10 or 15 miles, or even
further.

Of course if that means every day after they go on shore, that is
obviously wrong. If it means every day u.ler they have begun to feed,
it may be true or it may not. I do not wish to tie anybody to the dis-
tance of " 10 or 15 miles, or even farther". I do not of course wish to
dispute that if it be a matter of calculation.

Mr. p. F. Ryan states that the main feeding gronnds of the seal during the sum-
mer stay upon the islands, and to whicli the cows are coutinually going and coming,
are to be found, 40 to 70 miles south of St. George Island.

That, at any rate, does not look like suppressing anything which was
against them; but I mention that for the purpose of pointing out that*
we have no means of judging on what information Mr. Ryan made that
statement, or where that particular place is.

Mr. G. R. Tingle, in the same Report, says that the seals probably go twenty miles
ont in some cases in search of food

Mr. Tingle had been of the United States Agents or Treasury Agents.
All these men that I am quoting from are Treasury Agents of the
United States:

312. The following is a summary of the evidence personally obtained in 1891 from
those sn])posed to be most capable of giving an opinion on the subject:

Mr. G. R. Tiugle stated that he believed seals from St. George went to feed, for the
most part, about 30 to 40 miles to the southward or south-eastward of that island.
From St. Paul he was not aware that they went in any particular direction.

Mr. J. C. Redpath did not know of any special place or places to which the seals go
to feed, but believed that the females go from 10 to 15 miles from the islands for that
purpose.

Mr. D. Webster thinks that seals go from St. George Island, when feeding in the
autumn, about 60 miles southward; he believes that there is a favourite feeding
ground in this vicinity, because he has seen numerous seals there when on his way
from the islands to Ounalaska.

Mr. Fowler stated that he believed there was a favourite feeding ground of the
seals about 30 miles oft' north-east point of St. Paul Island. This was not from per-
sonal knowledge, but depended on statements that seals had been seen in abun-
dance there.

Natives of St. Paul informed us that the females from the rookeries went only 3 or
4 miles to sea to feed, always returning to their young on shore the same day. When
questioned as to the classes of seals seen further out, as for instance, midway
between St. Paul and St. George Islands, they stated that all kinds of seals might be
found there, but added again that the females usually do not go far from the
rookeries.

I will leave Mr. Grebnitzky for a moment, and will come back to him.

Mr. Tillman, the Agent of the Russian Government, in charge of Copper Island,
where he has been for two years, thinks that the females go as much as 2 to 4 miles
oft" shore to feed, but return to the rookeries every night.

Mr. Kluge, who has been for twenty-one years in the service of the Alaska Com-
mercial Company on several different islands, agreed in this point with Mr. Tillman,
and added that he knows from close personal observation, which he was able to make
on Robben Island, that the females return every night, as stated.

Snegiloft", the native foreman on Bchriug Islands, thinks, on the contrary, that the
females may leave their young for several days, and may go as far as 10 miles from
land to feed.

Now Grebnitzky, whom I passed for a moment:

Mr. N. Grebnitsky, Superintendent of the Commander Islands, stated, as the result
of his own personal observation and long experience, that the females went out to

OKAL ARGUMENT OF SIR RICHARD WEBSTER, Q, C. M. P. 137

sea while suckling the young, but not further than half-a-mile or a mile from tlie
shore. Most of the natives, he added, thouglit that tlie females did not feed during
this period, but in this he believed them to be mistaken.

It is not an unfair comment to say that this is a striking instance of
liow little we really know accurately. I call attention to it in order
that the Tribniial may see tliat upon the evidence wliicli was there (col-
lected, of a number of witnesses of equal credit, a number of wit-
nesses of equal experience, all Treasury Agents, and therefore whose
interest it would be to tell the truth and not to suppress the matter,
some of them say they do not go more than 10 or 15 miles, others think
they go farther. But it is extremely important to notice we are dealing
for this purpose only with the period when from the wasteful i)oint
of view it may be suggested that you ought not to kill the female
because the life of her i)up depends upon it; for in so far as it referred
to the killing of females on whose life a pup's life did not at the moment
depend, I protest tliat there is not only no reason for interfering with
it, but it would be contrary to all the rules which have governed similar
matters to interfere with the killing of a female simply because it is a
female.

It is not unimportant, and that is why, Mr. President, I postponed
the reference to Mr. Grebnitzky, to remember tbat Mr. Grebnitzky
made a further allidavit for the United States on the 26th of Novem-
ber — 8th December, 1S92, and that they sent that to St. Petersburg]!
from Washington in order to have certain corrections made in the affi-
davit that it might be an affidavit which would go as far as JMr. Greb-
nitzky could go in support of the United States Case; and I ask you
just to let me read what he says upon this at page 3G6 of the Counter
Case of the United States:

Consequently when the mothers, who after the birth of their pups leave the rook-
eries in search of food (travelling sometimes considerable distances, I do not Icnow
exactly how far), and fail to return their pups must necessarily die.

Those words "considerable distances" were inserted in the affidavit
after the affidavit had been sent to him, no doubt properly sent to him,
from Washington, that the further correction might be inserted.

Mr. Foster, — It does not so appear.

Sir KiCHARD Websteu. — Well, I think it does so appear. If it is
not the fact, by all means, if you say it is not the fact I Will accept that.
I think it does a])pear in the papers that it is so.

Mr. Foster. — I -will state what I understand the fact to be, if you
desire it.

Sir Richard W^EBSTER, — I was merely dealing with what appears
upon the face of the affidavit; but my point is that Mr. Grebnitzky, who
was previously stating that he did not think they w^ent larther than
half a mile or a mile says in the revised affidavit, "considerable dis-
tances" but he does not know how far.

We know, Mr. President, that the result of the combined knowledge
on the Russian islands — and Mr. Grebnitzky comes from the Russian
Islands, — demonstrates that they are rarely to be found outside 10 miles
except in the particular case of a particular place which it is considered
some seals go to in connection with some island.

Mr. Foster. — I have no idea that you wish to make any statement
that is not consistent with the facts. If you will observe the date of
the corrections, you will see they are of the same date as the original
affidavit, December 8th. The fact is that the errors in copying were
corrected by the Consul-Geueral at St. Petersburgh.

138 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.

Sir Richard Webster. — If you, Mr. Foster, say they are errors in
copying that removes, of course my observation.

Mr. Foster. — The date shows it.

Sir Richard Webster. — It may not; but I have the information
somewhere. However, I will not rely any further upon the statement
after what you have stated. It is not a matter of any great importance.

But now, Mr. President, I cometo theevidence of si>e(*ific experiments
or examinations made by the United States in order to support this
matter: and I want to call particular attention, and I ask for the atten-
tion of the Tribunal, to two affidavits, or two tables, one of Mr. Alex-
ander and the other of Capt. Hooper. Mr. Alexander's table will be
found at page 242 of the United States Counter Case. It is the Un