FOR THE PEOPLE
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LIBRARY
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THE AMERICAN MUSEUM
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NATURAL HISTORY
KUR SEAL ARRITRATION.
PROCEEDINGS
Tribunal of Arbitration,
CONVENED AT PARIS
UNDER THE
TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT
BRITAIN, CONCLUDED AT WASHINGTON FEBRUARY 29, 1892,
5Q,q,1i5* I (o. I
DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV-
ERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES
WATERS OF BERING SEA.
volunie: I,
WASHINGTON:
GOVERNMENT TR-INTING OFa<'lCE.
1895.
•^ TH tTT V -i— u^4
FUR SEAL ARBITRATION.
FINAL REPORT OF THE AGENT OF THE UNITED STATES; PROTOCOLS
OF THE PROCEEDINGS OF THE TRIBUNAL; AWARD AND
DECLARATION; OPINIONS OF MR. JUSTICE
HARLAN AND SENATOR MORGAN.
FINAL REPORT OF THE AGENT OF THE UNITED STATES.
Agency of the United States,
Paris, August 10, 1SD3.
Iloiiornblo W. Q. Gkesham,
kSecretanj of State, Was-hi)ir/{o»., D. G.
Sir: As agent of the United States, appointed under the treaty of
February 29, 1892, providing for the submission to arbitration of tlie
questions whicli had arisen between the United States and Great
Britain respecting the far seals of tlie Pribilof Islands, I now have the
honor to transmit to you the following- report of the proceedings and
results of the arbitration:
When I entered upon my duties as agent, in May, 1892, it was found
that no steps had up to that time been taken to collect evidence iu
authentic form to support the claims put forward by the United States,
aiul which were, by the treaty of February 29, 1892, to be submitted to
the Tribunal of Arbitration. I conceived it to be my duty- under the
treaty, in the preparation of the (;ase of the United States, to embrace
in that document a presentation of all the questions of law aiul of tact
which were by the treaty submitted to arbitration, and to support the
claims of the United States in respect thereto by all the evidence in
the possession or within the reach of the Government. I therefore
proceeded with as much promptness and thoroughness as the time and
means at my command allowed to collect all the evidence which was
pertinent and proper to lay before the Tribunal of Arbitration, tending
to establish the position assumed by the United States res[)ecting the
five points set forth in Article VI of the treaty and embracing the
focts necessary to a determination of the regulations referred to in
Article VII.
The printed case of the United States, accompanied by the docu-
ments, ofhcial correspontlence, and other evidence relied upon in sup-
port thereof, was delivered to the agent of Great Britain and to the
arbitrators between the 1st and 6tli of September, 1892, or within the
time flxed by the treaty; and the printed case of Great Britain was
in like manner delivered to me by the agent of that Government.
When the i^rinted case of Great Britain was examined it was found
to contain no evidence whatever touching the nature and habits of the
seals, the consideration of which was necessary to the determinatioii
of the main questions submitted to the Tribunal, which were embraced
5
6 FINAL REPORT OF THE AGENT OF THE UNITED STATES.
in the filth point of Article VI, concerning the right of protection or
property asserted by the United States in the seals inhabiting the
Pribilof Islands, and in Article VII, concerning concurrent regulations.
By direction of the President, the Secretary of State addressed a
note to the British representative in Washington, under date of Sep-
tember 27, 1892, protesting against this omission in the printed case of
Great Britain, as a failure to comply Avith the requirement of the
treaty. Attention was called to the fact that it was manifestly con-
templated by that compact that both parties should simultaneously
submit to the arbitrators and to each other their propositions, their
claims, and their evidence upon all points in dispute; that it v.'as well
known to the British Government that the decision of the two ques-
tions above referred to nuist depend upon the evidence produced
concerning the nature and habits of the fur seal, and the methods of
capture and killing, which are consistent with the jireservation of the
species; that only one opportunity was afforded each party to submit
evidence upon these important questions, and that was to be availed
of in the original case, except so far as evidence in rebuttal might be
legitimate in the counter case; that to reserve the evidence which
Great Britain might choose to submit on these matters to the counter
case would be to afford to the United States no opportunity whatever
to meet it by any rebutting, explanatory, or impeaching testimony;
and that the United States could not assent to results so grossly
unjust and prejudicial, and so contrary to the spirit and terms of the
treaty. The Secretary of State ex])ressed the earnest desire of the
President that the arbitration should proceed, but only according to
the treaty, the object of which was to provide a fair trial; and that he
entertained the greatest confidence that the British Government would
correct the errors which had been made by its representatives in
charge of its case
To this representation the Secretary for Foreign Affairs of Great
Britain responded that the fifth point of Article VI, respecting the
right of protection and of property in tlie seals, in the opinion of Her
Britannic Majesty's Government, depended upon questions of law, and
not upon the habits of seals and the incidents of seal life; that the
concairrent regulations referred to in Article VII were not to be taken
up for consideration by the Tribunal, except in the contingency of a
decision u])on the five points in Article VI unfavorable to the claim of
the United States, and so that the subject Avould be left in such a
position that the concurrence of Great Britain should be necessary
for the establishment of proper regulations; and that it would have
been inconsistent, illogical, and im])roper to have introduced into the
British case matter which, in the opinion of his Government, could only
be legitimately used when the question of concurrent regulations was
under consideration. But the Government of the United States having
expressed a different view, Her Majesty's Government, the Secretary
FINAL REPORT OF THE AGENT OF THE UNITED STATES. 7
for Foreign Affairs stated, being desirous to facilitate tlie progress of
the arbitration, would furnish at once to thedovernnientof the United
States and to the arbitratoi^s the report of the lUitisli Conmiissioners
appointed under Article iX of the treaty, which might be treated as a
part of the ease of Great Britain.
The Secretary of State, in reply to the British Secretary for Foreign
Affairs, concurred with him iu the view that the tilth i)oiut of Article
VI, respecting the right of protection or property in the seals, was a
question of law; but he insisted that the precise questions of law could
not be known and not therefore determined until the facts out of which
they arose were known, and that the facts concerning the nature and
habits of fur seals were in the highest degree important for a proper
determination of tlie question embraced in the tilth point. He dis-
sented from the opinion expressed that the submission of evidence was
dependent as to time upon any contingency; but he accepted the offer
to deliver the report of the British Commissioners as a part of the case
of Great Britain, assuming that it contained substantially all the matter
upon which that Government would rely to support its contentions in
respect to the nature and habits of the fur seals, and reserving the right
to protest against and oppose the submission to the arbitrators of any
matter which might be inserted in the British counter case not relevant,
by way of reply, to the case of the United States.
On the oOth of September, 1892, I received notice from the agent of
Great Britain that, in accordance with the provisions of Article IV of
the Treaty of Arbitration, the Government of Great Britain would
require an additional period of sixty days within which to deliver its
counter case.
On the 15ih of JSTovember, 1SD2, the British minister in Washington
delivered to me printed copies of the report of the British Commission-
ers as tendered to the Secretary for Foreign Affairs. This report was
found to contain a statement and discussion of the nature and habits
of the fur seals, of the present condition of the Pribilof seal herd, and
of the methods and effects of the killing of seals both in the water and
on the land. The report was also accompanied by various appendices
on these subjects.
In accordance with the provisions of the treaty, the printed counter
case of the United States, with accompanying documents, correspond-
ence, and evidence, was delivered on the 'Ml of February, 181)3, to
the British agent and to the arbitrators. This counter case had been
prepared in accordance with the terms of the treaty, and was in strict
reply to the printed case of the British Government.
The counter case of Great Britain was delivered to me within the
time required by the treaty; bnt when examined it was found to con-
tain a large body of evidence which could in no proper sense be
regarded as in reply to the case of the United States, and which,
under the terms of the treaty, should have been i^resented in the
S FINAL RErORT OP THE AGENT OF THE UNITED STATES.
original case of Great Britain. Its submission at the time and in tlie
form adopted by the P>ritish Government deprived the United States
of any opportunity to meet it by means of rebutting, exphmatory, or
impeaching testimony.
But while it was regarded by tlie President and by the counsel of
tiie United States as a wholly unjustifiable proceeding on the part of
Great liritaiu, it was deemed best to allow the arbitration to proceed,
and at the proper time to bring the subject to the attention of the
Tribunal.
The first session of the Tribunal of Arbitration was held in Paris, in
accordance with the terms of the treaty, .on February 23, 1893, but, by
agreement of the two Governments, it was of an informal character
and an adjournnient for one month was had without the transaction of
any business. On reassembling in Paris, March 23, 1893, the printed
argument of each of the parties was laid before the Tribunal. A recess
was then taken to April 4, when the counsel for Great Britain submitted
a motion that the agent of the United States be called npou to i^roduce
the report of Henry W. Elliott, made in 1890, to the Government of
the United States. The report of Mr. Elliott had never been pub-
lished by the Government and had not been used nor alluded to in the
case of the United States; but during the joint conference of the Com-
missioners of the two Governments in Washington in February, 1893,
it had, at the request of the British Commissioners, been laid before
them for sncih use as they saw fit to make of it.
The counsel for the United States denied that the British Govern-
ment was entitled under the treaty to an order of the Tribunal for the
production of the document, but, waiving their right of objection and
not conceding that either party had tlie right to introduce any further
evidence whatever, they offered to lay a copy of the report in question
before the Tribunal, upon condition that if it be used in evidence it
should be open to the use of both parties equally. The report of Mr.
Elliott was therefore produced, and it was printed by the British agent.
During the recess following the adjournment of March 23 the agent
of Great Britain sent to each of the arbitrators and to the agent of the
United States printed copies of a " Supplementary Peport of the British
Commissioners Appointed to Inqnire into Seal Life in Bering Sea." At
the session of the Tribunal on April 4 I presented a motion that this
document be dismissed from consideration, on the ground that it waf]
submitted at a time and in a manner not allowed by the treaty. This
motion was supported by the counsel for the United States in argu-
ments at some length, in the course of which they animadverted upon
the course pursued by Great Britain in Avithholding from its case evi-
dence as to facts material to the determination of the questions sub-
mitted to arbitration and in inserting that evidence in its counter case,
by which means the United States was placed at a great disadvantage.
While counsel would have been justided by the treaty and the rules of
t'lNAL REPORl' OF THE AGENT OF THE UNITED STATES. 9
judicial procedure in asking- tlie Tribiiiial to correct the injustice by a
rejection of this evidence, counsel stated that the United States was
content to allow the arbitration to proceed upon the case and counter
case of each party as presented, but that the wrong already committed
should not be ag gravated by the introduction of further testimony as
proposed by means of the supplementary report. After argument by
counsel for Great Britain the Tribunal decided that the report should
not be received as evidence.
It is not deemed necessary to set forth in detail the claims of the two
parties as prescribed in the Treaty of Arbitration or the issues joined
before the Tribunal. These are fully stated in the case, counter case,
and j)rinted argument of each Government whi(;h accompany this
report. It is sufficient to note that three subjects were submitted to
the Tribunal for its consideration and decision. The first of tiiese
related to the Eussian claim of exclusive jurisdiction in Bering Sea;
the second to the right of the United States to x^rotection or j^rop-
erty in the fur seals of the Pribilof Islands, and the third to the concur-
rent regulations necessary for the i)roper protection and preservation of
these seals.
The oral argument on these questions provided for in Article V of the
treaty began on the 12th of April. By arrangement of counsel, it was
agreed that the United States should open and close the argument,
Mr. Carter and Mr. Coudert si)eakiiig for the United States, followed
by the attorney-general of England, Sir Richard E. Webster, and
Mr. Eobinsou for Great Britain, and Mr. Phelps for the United States,
closing the argument. The discussion extended until July 8, with a
recess of one week, the Tribunal holding sessions of four hours during
four days of each week.
Early in the preparation of the case of the United States the conclu-
sion was reached that it would be difficult to sustain the claims which
had been put forward by the United States in the diplomatic corre-
spondence as to the exclusive jurisdiction exercised by Russia over the
waters of Bering Sea previous to the cession of Alaska. Counsel for
the United States made earnest efforts in support, as far as possible,
of the position assumed by our Government in the diplomatic corre-
spondence, but the decision of the Tribunal on the first four points of
Article VI was not unexpected.
On the fifth point of Article VI, as to the right of protection or prop-
erty in the fur seals of the Pribilof Islands, counsel for the United States
felt themselves upon solid ground of law and of fact. The assertion,
indeed, of a right of property in seals which spent half the year in
remote regions of the seas w\as .^udeed a novel one, but novelty itself is
no objection to a proposition, and they felt entirely confident of their
ability to show that according to the universal laws which underlie the
institution of property the fur seals must be deemed to be the property
of the United States.
10 FINAL REPORT OF THE AGENT OF THE UNITED STATES.
The case of tlie United States liad established the following- facts:
That the fur seals which were the subject of this arbitration were
begotten, born, and reared on the Pribilof Islands, owned by the United
States; that they made these islands their home and had, so far as it is
known, always done so; that they spent a large part of each year on
these islands ; that when they left them on their annual migration it was
with the fixed intention to return to them, whicli tiiey did with unvary-
ing regularity, never resorting to any otlier land; that tliey were
domestic in their habits and voluntarily jjlaced themselves v\iien on the
islaiuls within the control of man; that the existence of the race
depended upon the care, industry, and forbearance practiced by the
United States toward them, and that but for the protection given them
by the United States the race would be destroyed; that the United
States alone could take the increase of the seal herd without dimin-
ishing the stock, since it could make the necessary discrimination as
to sex and age when taking the seals on the islands for commercial
purposes; and that the taking of the seals in tlie sea was necessarily
Avithout discrimination as to sex, was wastei'iil, and would result in
destroying the race.
Upon these facts the counsel for the United States contended that,
as the seals could not possibly be i>roserved excei)t by according a
right of property in them to the United States, the law ought to and
did recognize such right of property, and, consequently, the right of
protection claimed by our Government. Their propositicm was, sub-
stantially, that wherever any uselul thing is dependent for its existence
upon the care and induvstryof man, the men who exercise such care and
industry have a right of i)roperty in such thing.
The counsel of the United States presented these views to the Tri-
bunal at length, with great ability, persistency, and force, and I speak
with assurance when I say that at the end of weeks ot discussion on
both sides their position was unshaken. So far from the British coun-
sel refuting tlieir arguments on this branch of the case, it may be said
that thei' nuule no effort to refute the above proposition, and tacitly, if
not openly, admitting that it ought to be the law, insisted that it was
necessary to show that the seals had been distinctly recognized as prop-
erty before the Tribunal could hold them to be such.
The adverse decision of the Tribunal does not, it must be confessed,
seem to confirm this view, but its action is susceptible of explainition
without any reliection npon the impartiality of the neutral arbitrators.
I am pleased to state that they are gentlemen of ability and of the high-
est standing in their respective countries, and I have no doubt they
were inspired by a most conscientious desire to discharge their difficult
and somewhat complex duties upon a fair and just basis. But they
were confronted with a question novel in its facts and with a claim on
the part of the United States which to them seemed in conflict with
the accepted doctrine of the freedom of the seas. Further, it is now
apparent that it was unwise to have coui)led the question of the right of
FINAL REPORT OF THE AGENT OF THE UNITED STATES. 11
protection or property with the matter of conciirroiit regulations neces-
sary for the preserv^ation of the seals. The decision and the protocols
lead to the conclusion that the neutral arbitrators looked to the regu-
lations as the best method of adjusting the difierences which had arisen
between the two litigant nations, and that the argnnieiits of counsel for
the United States on the right of protection and proj^erty did not, as a
consequence, have the weight which the arbitrators would have attached
to them if that had been the only question referred for decision. It is
to be iuferred that they conceived it just and practicable to decide the
fifth point against the United States, and yet attain the main object of
the treaty, the preservation of the seals, by the adoi)tion of stringent
regulations as to pelagic sealing.
Their mistake was not apparent until they had decided the fifth point
and came to consider the subject of regulations. Having reached a
conclusion in favor of the rigiit of pelagic sealing, it became necessary,
in their well-meant effort to reach a compromise between the conflicting
interests, to frame such regulations as would, on the one hand, allow
pelagic sealing to be carried on with profit, and, on the other hand, not
seriously impair the seal herd. This insoluble problem doubtless
occasioned them long and anxious deliberations and greatly delayed
the final decision. The protocols show that the Tribunal was brought
face to face with this problem. When Mr. Justice Harlan submitted a
resolution to the efiect that the purpose of Article VII of the treaty
was to secure the proper protection and preservation of the seals, and
that in the framing of regulations no extent of pelagic sealing should
be allowed which, would seriously endanger the accomplishment of that
end, he and Senator Morgan recorded the only votes in its favor, the
other arbitrators declining to vote or giving reasons why they could
not assent to the declaration.
The regulations as finally framed and promulgated are the result of
an honest and conscientious effort on the part of the neutral arbitrators
to do all that they conceived possible and necessary for the protection
and preservation of the seal herd consistent with their decision on the
fifth point. These regulations go much further than the provisions
which our Government has proi^osed in the past, but it is to be observed
that later investigations have revealed perils to which the seals are
exposed not then known. It is to be hoped that the regulations when
put in operation will realize the best expectations of the Tribunal.
Much depends upon the manner in which they are enforced. It is not
to be doubted that both Grovernraents, in deference to the expressed
directions of the Tribunal and to their own obligations, will adopt all
necessary legislation and rules to give them full force and effect. If
the recommendation made by the Tribunal for a complete cessation of
taking seals both on land and at sea for a few years be adopted, I shall
look for satisfactory results from the operation of the regulations.
I transmit herewith the original award of the Tribunal of Arbitration
and the original protocols of the sessions of the Tribunal.
12 FINAL REPORT OF THE AGENT OP THE UNITED STATES.
I take i)Ieasui-e, in recoouizino- the hearty mariner iu whicli I have
been seconch^d by the counsel for the United States and all other per-
sons associated with nie in the i^reparation of the case and in my labors
before the Tribunal.
It only remains for me to make acknowledgment of the cordial recep-
tion and great hospitality extended by the French Government to the
Tribunal of Arbitration and to all the representatives and officials of
the United States connected with it. Commodious and elegant apart-
ments in tlie Ministry of Foreign Affaii's were set apart for the use of
tlie Tribunal, and every provision freely afforded for the dispatch of its
business and for the comfort of all persons associated with it. Our
Government has, thereby, been placed under a new debt of gratitude
for French hospitality and friendship.
I am, sir, very respectfully, your obedient servant,
John W. Foster.
PROTOCOLS OF THE SEVERAL SES-
SIONS OF THE TRIBUNAL.
PEOTOCOL I.i
MEETING OF FEBRUARY 23, 1893.
The Tribunal assembled at Paris, at the French Ministry for Foreign
Affairs.
The arbitrators present were:
The Honorable John M. Harlan, Justice of the Supreme Court of the
United States, one of the arbitrators named by the United States;
His Excellency Baron Alphouse de Courcel, French Senator, the
arbitrator named by France;
The Eight Honorable Lord Hannen, Lord of Appeal, one of the arbi-
trators named by Great Britain;
Who, having assured themselves that their respective powers were
in good and valid form.
Baron de Courcel was invited by his colleagues to take the chair as
liresident for the present meeting.
There were present at the meeting:
Mr. WiHiam Williams, special agent and associate counsel for the
United States; the Hon. Charles H. Tupper, as agent of Her Britannic
Majesty.
Messrs. Williams and Tupper laid before the Tribunal of Arbitration
the commissions empowering them to act before the Tribunal.
There were also present at the meeting as counsel for ller Britannic
Majesty's Government :
Sir Charles Eussell, Q. C, M. P., ller Britannic Majesty's Attorney-
General;
Sir Eichard Webster, Q. C, M. P.,
And Mr. Christopher Eobinson, Q. C.
The president invited Mr. Henri Feer, formerly a consul general of
France, to draw up the protocol of this meeting, with the assistance of
Messrs. Williams and Tupper.
Mr. Williams, acting for the Government of the United States, asked
tl)at tlic Trilmnal adjourn till the -!3d of March.
1 The origiual text of the Protocols is in Frencli.
13
14 PROTOCOL!?.
Mr. Tapper, in the name of the British Government, snpported the
request of Mr. Williams.
Sir Charles Russell, the leading- counsel for Great Britain, stated that
tlie counsel, though ])reviously aware of tlie request which wonld be
nnide. thoujiht it riiiht to attend the tirst meeting, out of respect for the
Tribnnal of Arbitration.
The Tribunal of Arbitration acceded to the request made in the name
of the two parlies, and agreed to adjourn to the 23(1 of March.
The question of the publication of tlie cases and counter cases having
been mentioned, the arbitrators stated that it was not a subject for their
consideration.
In regard to the ])ul)lication of the protocol of this meeting, the arbi-
trators present, finding themselves in insufticient number to give a
decision which would bind the Tribunal of Arbitration for the future,
announced that the protocol of the meeting of the 23d of February
should be kept secret until further orders.
The Tribunal of Arbitration adjourned till IMarch 23.
So done in Paris, the 23d of February, 1893, and have signed:
The FreHulent : ALFH. DE CoURCEL.
The iSpccial .i'jcnl for the United Slates: WiLL1A:\[ WilLIAMS.
The Jj/eiil for (rre.dt Britain: CiTARLES H. TurrEB.
The Secretary : H. FeEK.
Translation certified to be accurate:
A. Bailly-Blanchard, ) r' <' . i ,..;^c
n. CUNINUUAME, )
PROTOCOL II.
MEETINfl OF MARCH 23, 1893.
The Tribunal assembled at Paris, as had been agreed, at the French
Ministry for Foreign Affairs.
There were present the seven members of the Tribunal of Arbitration :
The Honorable John M. Harlan, Justice of the Supreme Court of the
United States,
And the Honorable John T. Morgan, Senator of the United States,
the arbitrators named by tlie United States;
His Excellency the Baron Alphonse de Courcel, Senator of France,
the arlntrator named by France;
The Right Honorable Lord Hannen, Lord of Appeal,
And Sir John Thompson, Minister of Justice for the Dominion of
Canada, the arbitrators named by (Treat Britain;
His Excellency the Marquis E. Visconti Venosta, Senator of Italy,
the arbitrator named by Italy;
PROTOCOLS. 15
And His Excellency Mr. Gregers (xrani, the arbitrator named by
Sweden and Koiway;
The Honorable John W. Foster and the Honorable diaries H. Tup-
per, Minister of Marine and Fisheries for the J>()niiniou of Canada,
were present at the meeting- as agents for tlie Governments of the
United States and Great Britain.
The members of the Tribunal of Arbitration assured themselves that
their res])ective powers were in due and valid form.
Lord Hannen, one of the arbitrators named by (rreat Britain, rose
to propose that His Excellency the Baron de Courcel, the arbitrator
named by France, should be requested by his colleagues to assume the
IHesidency of the Tribunal.
The Honorable John M. Harlan, one of the arbitrators named by tiie
United States, supported the i)ro[)osal of Lord Hannen.
The other members of die Tribunal of Arbitration having agreed to
the proposal, Baron de Courcel took the chair as jiresident and deliv-
ered the following address:
Gentlemen: You have been pleased to exercise in my favor that
courteous usage which, in proceedings of an international character,
confers the presidency upon the representative of the country in which
tlie meeting is held.
The Governments of Great Britain and the United States of America
have determined to end the long-standing dispute concerning the
Bering fisheries by a friendly arbitration, and in choosing Paris for the
seat of it they have paid a. distinguished compliment to France and to
her capital city.
I venture to say that both are worthy of it.
iSTowhere, be sure, would you have found yourselves surrounded by
a more sincere and warm sympathy with the great and good W(U'k
which you are charged to carry out. Through all the shocks and trials
which the hard necessity of events inflicts upon mankind France has
remained steadfast to ideals. Every generous conception moves and
captivates her. She has a passion for the cause of human progress.
And what aim can be more ideal, what progress more noble and wortliy
of attainment than the gradual disappearance from annmg the people
of the earth of a recourse to brute force.
This is the aim of procedure by arbitration, and each new recourse
to it brings us nearer to that end by furnishing anotiier proof of the
actual possibility of that which, even yesterday, seemed but a dream.
Some years ago, by the peaceful authority of a decision which two
proud and powerful nations had previously agreed to accept, the arbi-
trators assembled at Geneva put a happy end to a dispute which it
seemed at one time could only terminate in war.
The Geneva arbitration was an e[>()ch in inteinational relations. It
may be said to have revived the old law of nations, and opened to it a
pew era with a boundless j)rospect of beneficent consequences.
16 PROTOCOLS.
The two nations which subuiitted to the Geneva verdict, in spite of
the sacrifices whi(;h at first it seemed to involve, have evidently not in
the long rnn re])ented of their appeal to moral force, for to-day they
renew that appeal by common consent, in aiialogons circumstances. It
is true that the cause that is to be pleaded before us is not one which
apparently would let loose the scourge of war, but short of war how
many evils are caused to nations by lasting coldness and by the per-
sistence of bitter sentiments. Like individuals, nations owe a duty to
charity, and when yielding to pride they fail to obey the laws of Provi-
dence they inflict upon themselves many s^ifferings.
If arbitrations had no other effect than to preserve them fiom this
peril, they would be an incalculable blessing and service to the broth-
erhood of humanity.
Your presence in this room, gentlemen, is the most eloquent evidence
of the value which attaches to your expected decision.
England, from all time so rich in eminent jurivSts, America and Can-
ada, who hand down in their turn and in a new world a tradition
whose ancestral origin may, perhaps, be sought in our old Norman
soil, have delegated men whose knowledge and rare penetration have
been applied in the highest and most delicate functions in the magis-
tracy, or in the discussions of political assemblies whose prudence was
renowned.
Beside them I see a politician, a wise heir of the illustrious Cavour,
whose premature and voluntary retreat from European diplomacy has
been the subject of deep regret.
Another of our colleagues from ISforth Scandinavia, whose reputa-
tion has preceded him, has occupied one of the highest positions which
could be conferred upon him by the just confidence of the sovereign of
two twin kingdoms, each equally jealous of its individnaliiy.
At your bar, to represent the two great powers who have confided
their cause to you, appear politicians of the first order. One of them
only lately guided the foreign relations of the great American Repub-
lic. They are assisted by counsel accustomed to occupy the front rank,
either at the bar or in the government of their country, and whom the
admiration of their countrymen on each side of the Atlantic hails as
l)rinces of eloquence.
It is an honor sufficient to dignify an entire life to be asked to sit
with men like these, and the responsibility of presiding among them
would be overwhelming if he whom his colleagues have charged with
this duty could not count on their unvarying and indulgent support.
May divine Providence, on whom dei)ends all human action, give us
the strength and inspire us with the wisdom necessary to fultill our
difficult mission, and thus to advance a stage nearer to the realization
of the words of consolation ami hope of Him who has said "Blessed
are the x>eacemakers, for they shall inherit the earth."
PROTOCOLS. 17
Gentlemen, I trust that I represent your wishes in proposinj; to you
j to break up our present nieetinn', in order to eonvey our respects to the
President of the French Republic, together with an expression of our
gratitude for the hospitality which we are receiving- from Prance.
On the proposal of the president, Mr. A. Imbert, a minister plenipo-
tentiary of France, was named secretary to the Tribunal of Arbitration.
Baron de Courcel then invited the English and American arbitrators
to name for their respective nationalities a secretary to be associated
with the secretary of the Tribunal. It was agreed that this appoint-
ment should be made at the next meeting.
The Tribunal fixed the days and hours of its meetings.
In conformity with the stipulations of the treaty of Washington of
the 29th of February, 1892, the agents of the (Jovernments of the
United States and Great Britain laid before the Tribunal the printed
arguments of their respective Governments.
The agent of the United States having intimated that, owing to an
oversight in printing, there was an omission in the appendices of
authorities cited in the argument of the United States, he was author-
ized to present at a later date, as an appendix to the argument, a suj>-
plement containing the citations omitted, with the reserve of the right
on the part of the British •Government to present a reply to the cita-
tions should they deem it to be necessary.
The agents of the respective Governments stated that they had
agreed to arrange for taking shorthand reports of the daily proceedings.
It was announced that the proceedings were now public, and admis-
sion to the discussions would be upon the presentation of cards of
admission, to be issued by the secretary of the Tribunal.
The Tribunal of Arbitration adjourned till the ith of April next.
Done at Paris, the 23d of March, 1893, and signed :
The President : ALPH. DE COUECEL.
The Agent for the United States: JOHN W. FOSTEK.
The A(jent for Great Britain: CHARLES H. TUPPER.
The Secretary : A. iMUEliT.
Translation certified to be accurate :
A. Bailly-Blanchard,
T-r ., I Co- Secretaries.
H. CUNYNGHAME,
B S — VOL I 2
18 PROTOCOLS.
PEOTOCOL III.
MEETING OP TUESDAY, APRIL 4, 1893.
At 11.45 tlie Tribunal assembled, all the arbitrators being present.
The president announced that tlie Tribunal had decided to appoint
Mr. A. Bailly-Blanchard and Mr. Cunyngliame as co-secretaires with
M. Imbert.
Also, M. le Chevalier Bajnotti, M. Henri Feer, and M. le Vicomte de
Manneville as assistant secretaries.
The president announced that the Tribunal was ready to hear any
motion by either of the parties.
Sir Charles Eussell then spoke, and at the close of liis speech he
submitted the following motion :
That tlie agent of the United States be called npon to produce the original or a
certified copy of the report made by Henry W. Elliott on the subject of fur seals
pursuant to act of Congress of 1890.
Sir Eichard Webster supported the motion.
The Honorable E. J. Phelps replied, and submitted the following
answer to the motion :
The United States Government denies that Her Uritanuic Majesty's Government is
entitled under the provisions of the treaty to any order by the Tribunal for the
production of the document specified in the motion, as a matter of right.
The United States Government, however, is willing to waive (so far as it is con-
cerned) its right of objection, and. to furnish to the agent of Her Majesty's Govern-
ment a copy of the document referred to, for such use as evidence as the Tribunal
may deem jiroper to allow ;
Not conceding, however, in so doing that either party at this o.r any subseijnent
stage of the proceedings has a right to introduce any further evidence whatever,
upon any subject whatever connected with the controversy.
And further stipulating that if the document referred to in this motion shall be
used in evidence at all it shall be open to the use of both parties equally in all its
points.
Mr. James C. Carter followed in support of the answer.
The court adjourned for a short time.
On reassembling, the president said:
The Tribunal directs that the above-named document be regarded as before the
Tribimal, to be made such use of as the Tribunal thinks fit.
The agent for the United States then read the following motions:
1*'. The agent of the United States desires to bring to the attention of the Tribunal of
Arbitration the fact that he has been informed by the agent of Her Britannic Majesty,
in a note dated March 25 ultimo, that he has sent to each of the members of the
Tribunal copies in duplicate of a "Supplementary Report of the British Commis-
sioners A])pointcd to Inquire into Seal Life in Bering Sea."
The agent of the United States, in view of this information, moves this Honorable
Tribunal that the document referred to be dismissed from consideration and be
returned to Her Majesty's agent, on the ground that it is submitted at a time aud in
a manner not allowed by the treaty.
2"''. The agent of the United States moves this Honorable Tribunal to dismiss from
the arbitration so much of the demand of the Government of Great Britain as relates
PROTOCOLS. 19
to the sum stated upon page 315 of the Counter Case of said GoverniDent to have been
incurred on account of expenses in connection with proceedings before the Supreme
Court of the United .States;
And, also, to dismiss from the arbitration the claim anil request of the same Gov-
ernment, mentioned on said page 315, that the arbitrators find what catch or catches
might have been taken by pelagic sealers in Bering Sea without undue diminution
of the seal herd during the pendency of this Arbitration;
And, further, to dismiss from the Arbitration the claim of the same Government
mentioned on the said page 315, to show payments by it to the Canadian owners of
sealing vessels;
And that all proofs or evidence relating to the foregoing claims or matters or
either of them, be stricken from the British Counter Case, and in particular those
found on pages 215 to 229, inclusive, of Volume II of the Appendix to said Counter
Case.
The ground of the foregoing motion or motions is that the claims and matters
aforesaid are, and each of them is, presented for the first time in the Counter Case of
the Government of Great Britain, and that they are not, nor is eitlier of them, per-
tinent or relevant by way of reply to the Case of the United States or to anythino-
contained therein, excei)t so far as the same may tend to support claims for dama'>es
distinctly made in the original case of the Government of Great Britain, and that
so far as they come under that head the matters are irregular as being cumulative
only.
The president having remarked that the motions shonhl be consid-
ered separately and that the discussion upon the second motion brouo-ht
forward by tlie United States should be postponed to a subsequent
period of the proceedings, the Honorable E. J. Phelps addressed the
court in support of the tirst motion relative to the supplementary report
of the British Commissioners.
At 4 p. m. the Tribunal adjourned to the next day at 11.30.
Done at Paris, the 4th of April, 1893, and signed :
The President : AlpH. DE CoURCEL.
The Agent for the United States : JOHN W. FOSTER.
The Agent for Great Britain : CHARLES H. T UPPER.
The Secretary : A. ImBERT.
TranvSlation certified to be accurate:
A. Bailly-Blanchard, ) ^ cy ^ •
„ „ ' > (Jo- Secretaries.
H. CUNYNGHAME, )
PEOTOCOL IV.
MEETING OF WEDNESDAY, APRIL 5, 1893.
At 11.45 a. m. the Tribunal asseml)led, all the arbitrators being
[)resent.
The Honorable E. J. Phelps continued his speech of the previous
day and concluded his argument.
Mr. James C. Carter announced that he had no additional remarks
to ofler.
20 PROTOCOLS.
Sir Charles JUissell opposed the motion iiiHler <Uscussion on the fol-
lowiug grounds:
That the supplementary rejxnt of the IJritish Commissiouers, dated the 31st Janu-
ary. 1893, is presented solely with reference to the question of roj^nlations, and,
under the provisions of the Treaty of Arbitration of February 29, 1892, is properly
presented to the Tribunal, and so should be considered by theiu in the event of their
being called upon to determine, iiursuant to Article VII, what, if any, concurrent
regulations are necaesary.
The Tribunal adjourned for a short time.
On reassembling, Sir Charles Kussell continued his argumeut.
At 4 p. m. the Tribunal adjourned to the next day at 11.30.
So done at Paris, the 5th of April, 1893, and signed :
The Frenident : ALPH. DE COUllCEL.
The AyenI for ilm United States : JOHN W. FOSTER.
The Jijentfor Great Britain: ClIARLES 11. Turi'ER.
The Secretary : A. ImBERT.
Translation certified to be accurn te :
A. BAlLLY-IiLANCHARU, I ., ^ v,v,.,.„/,,,.,;^o
H. CUNYNGIIAME, )
PEOTOCOL V.
MEETING OF THURSDAY, APRIL 0, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Sir Charles Eussell resumed his si)eech of the previous day and
concluded his argument.
Sir Richard Webster said that he had nothing to add to Sir Charles
Kussell's remarks.
Mr. James C. Carter replied in su])})ort of the motion made on behalf
of the United States.
At 1.30 the Tribunal adjourned for a short time.
On reassembling, Mr. James 0. Carter continued his argumen-t.
At 1 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 0th of April, 1893, and signed :
The President : ALPH. DE COTTRCEL.
The Af/ent for the United States : JOIIN W. FOSTER.
The Aijent for Great Britain: ClIARLES H. TUPPER.
The Secretary: A. ImEERT.
Translation certified to be accurate:
A. Bailly-Blanciiard, ) ., ., , .
^^ . ' > Co- /Secretaries,
II. CUNYNGHAME, )
PROTOCOLS. 21
PROTOCOL VI.
MEETING OF FRIDAY, ATRIL 7, 1893.
The Tribunal assembled at 11.40 a. ra., all the arbitrators being
present.
The Honorable E. J. Phelps called the attention of the Tribunal to
certain errors in the fhorthaiid notes.
The president stated that the only official minutes which were
specially under the authority of the Tribunal were the protocols; the
responsibility of tlie shorthand notes rested, exclusively with the agents
of the two Governments.
Mr. James C. Carter then continued his argument on behalf of the
United States.
At 1.30 the Tribunal adjourned for a short time.
On reassembling, Mr. Carter continued and conchided his argument.
The counsel on both sides then exchanged, with the sanction of the
president, some supplementary explanations on points relevant to the
arguments which had previously taken place.
The Honorble E. J. Phelps having afterwards applied to have the
second motion considered, the Tribunal declared that it would announce
its intentions on this subject at the next meeting.
At 3.50 p. m. the Tribunal adjourned to Tuesday for a private meet-
ing, the iniblic meeting being postponed to Wednesday, April 12, 1893.
Done at Paris, the 7th of April, 1893, and signed:
The President : ALrH. DE CoURflEL.
The Agent for the United AStates : JOHN W. Fo.STER.
The Agent for Great Britain : ClIARLES H. TUPPER.
The Secretary : A. ImBERT.
Translation certified to be accurate:
A. liATLLY-BLAlN'rilART), ) ^ « ^ .
^^ ^, ' ^ (Jo- /Secretaries.
H. CUNYNGHAME, )
PROTOCOL VII.
MEETING OF WEDNESDAY, APRIL 12, 1893.
The Tribunal assend^led at 11.40 a. m., all the arbitrators being
present.
The president then read the decision of the Tribunal with reference;
to the " Supplementary Report of the British Bering Sea Commission-
ers, " dated January 31, 1893, the admissibility of which was the subject
of the debates which took place at the pi-evious meetings.
The terms of this decision are as follows:
It is ordered that tlio document entitled n " 8iipplpmentiiry Report of the British
Bering Sea Commissioners," dated Jannary 31st, 1893, and signed by George Baden
22 PROTOCOLS.
Powell and Goorj^e M. Dawson, and delivered to the indivi.lual arbitrators by the
agent of Her Hritaimic Majesty on the 25th day of Mareli, 1893. and which contains
a criticism of, or argiimeut upon, the evidence in the docntnents and pa])ers previ-
ously delivered to the arbitrators, be not now received, with liberty, however,
reserved to counsel to adopt such document, dated January 31st, 1893, as part of their
oral argument if they deem proper.
The question as to the admissibility of the documents, or any of them, constitut-
ing the appendices attached to said document of January 31st, 1893, is reserved for
further consideration, without prejudice to the right of «)uusel on either side to
discuss that qnestion, or the contents of the appendices, in the coarse of the oral
arguments.
The president then read a second decision of the Tribunal. This
decision, which relates to the application of the Honorable E. J. Phelps,
presented at the close of the preceding meeting, and having reference
to the consideration of the second motion of the United States, is
worded in these terms :
It is ordered that the argument and consideration of the motion made by the
United States of America, on the 4th day of April, 1893, to strike out certain parts
of the counter case and proofs of the Government of Great Britain, be postponed
until such time as may bo hereafter indicated by the Tribunal.
The president then expressed the desire of the Tribunal not to spend
time in discussions on procedure, but to enter as soon as possible upon
the main question.
He accordingly invited the counsel to address themselves immediately
to the matter at issue.
Sir Charles Russell indicated the order in which it had been agreed
the counsel would jiresent their arg'uments, and his statement was con-
firmed by Mr. James 0. Carter.
The president declared that the Tribunal would ai)prove of the mode
of proceeding agreed upon by the counsel, but he requested them to be
kind enough, as far as possible, in the arrangement of their arguments,
to keep sei)arate the discussion on the matters relating to right and
those relating to the regulations which miglit eventually be proposed.
Mr. James C. Carter, after thanking France for her hospitable recep-
tion, began his argument in behalf of the United States.
At 1.30 the Tribunal adjourned for a short time.
On reassembling, Mr. James C. Carter continued his argument.
At i p. m. the Tribunal adjourned to the next day at 11.30.
Done at Paris, the 12th of April, 1893, and signed:
The President : ALPH. DE COUROEL.
TheAtjctil for the Uvited States : JOHN W. FOSTER.
'^e A fjent for Great Britain: CllARLES H. TUPPER.
The Secretary : A. ImBERT.
Translation certified to be accurate:
A. ]>AILLY-Bl.ANCIIARD, ) ^ ry . ■
„ _ ' > Co- (secretaries.
H. CUNYNGHAME, )
PROTOCOLS. 23
PROTOCOL VI ri.
MEETING. OF THURSDAY, APRIL 13, 1S93.
The Tribiiual assembled at 11.40 a. m., all the arbitrators being
present.
Mr. James 0, Carter resumed his argument.
At 1.30 the Tribunal adjourned for a short time.
On reassembling, Mr. James C. Carter continued his argument.
At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 13th of April, 1893, and signed:
The Prct<i<hiit : ALPH. DE OoURCEL,
The Agent for the ['nilvd Stales: JOIIN W. FOSTER,
The Agent for Great Britain.: CHARLES H. TUPPER.
The Secret ar 11 : A. iMIiERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) r< a 4 •
^^ ^^ ' } Co- Secretaries.
H. CUNYNGIIAME, )
PROTOCOL IX.
MEETING OF FRIDAY, APRIL 14, 1893.
The TribuTial assembled at 11.40 a. m., all the arbitrators being
present.
Mr. James C. Carter resumed his argument.
At 1 o'clock the Tribunal adjourned for a short time.
On reassembling, Mr. James C. Carter continued his argument.
At 4 p. m. the Tribunal adjourned to Tuesday, April 18, at 11.30 a. m.
Done at Paris, the 14th of Ainil, 1893, and signed:
The President : AlPH. DE COUROEL.
The A g nit J or the United States : JOHN W. FOSTER.
The Agent for (ireat Britain: CHARLES H. TUPPER.
The Secretary : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) ri o 4 •
„ ^ ' > Co-iSecretarics.
H. OUNYNGIIAME, )
PROTOCOL X.
MEETING OF TUESDAY, APRIL 18, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
l)resent.
The i^resident, at the opening of the meeting, referring to a few
remarks which he had made at the end of the preceding sitting,
24 PROTOCOLS
iunioiiTiced that, if in tlie course of the arguments, the arbitrators were
led to malce observations or to address questions to counsel, these
observations or questions must not be considered as expressing any
o])inion on tlie part of the arbritrator who makes them, and still less as
binding- the country to which he belongs. They are simply, so far as
the Tribunal is concerned, the means of obtaining from the representa-
tives of the i^arties a more complete elucidation of the points under
discussion.
Upon the invitation of the president, Mr. James C. Carter then con-
tinued his argument.
At 1.30 the Tribunal took a recess.
On the reassembling of the Tribunal, Mr. Carter resumed his
argument.
At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. ra.
Done at Paris, the 18th of April, 181)3, and signed:
The President : AlPH. DE CoURCEL.
The Ayent for the United States: JOHN W. FOSTER.
The J gent for Great Britain : CHARLES H. TUPPER.
The President : A. ImBERT.
Translafion certified to be accurate:
A. iUiLLY-lJLANCiiARD, ) Co- Secretaries.
H. CUNYNGnAME, )
PEOTOCOL XL
MEETING OF WEDNESDAY, APRIL 10, 1S93.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Mr. James C. Carter resumed his argument.
At 1.30 the Tribunal took a recess.
On the reassembling, Mr. Carter continued his argument.
At 4 p. m. the Tribunal adjcmrned till the next day at 11.30 a. m.
Done at Paris, the lOtli of April, 1893, and signed:
The President: ALPII. DE CoURCEL.
The Agent for the United Stales : JOHN W. FOSTER.
The Agent for Great Britain : CHARLES . H. TUPPER.
The Secretari/ : A. ImBERT.
Translation certified to be accurate:
A. IJAILLY-BLANCHARD, ) (jo- Secretaries.
11. CUNYNGHAME, )
PROTOCOLS. 25
PEOTOCOL XII.
MEETlNCr OF TIIT^RSDAY, APRIL 20, ISO?*,
Tlio Tribunal assembled at 11.30 a. m., all the arbitrators beiiip,'
present.
The aueiit for the United States caused to be delivered to the Tribunal
a collection of ''Citations from the writings of jurists and economists
as an ai)i)endix to the argument of the United States."
Mr. James C. Carter resumed his argument of the i)receding day.
At 1.30 the Tribunal took a recess.
On reassembling, Mr. Carter continued his argument.
At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 20th of Ajiril, 1803, and signed:
T/w Prefiidvnt : AlPIT. DE OoFROEL.
The Agcnf for the United States : JoiIN W. FoSTER.
The Jgeiit for Great Britain: CHAELES IT. TuPPE'r.
The Sccrctarii : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) /, o / •
' > (Jo-lsccretaries,
H. OUNYNGHAME, )
PROTOCOL XIII.
MEETING OF FRIDAY", APRIL 21, 1893.
The Tribunal assembled at 11.30, all the arbitrators being present.
Mr. James C. Carter resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Mr. Carter continued his argument.
At 4 p. m. the Tribunal adjourned till Tuesday, April 25th, at 11.30.
Done at Paris, the 21st of April, 1803, and signed:
The President: ALPH. DE COURCEL.
The Agent for the United States : JOUN W. FOSTER.
The Agent for Great Britain : ClIARLES H. TUPPER.
The Secretary : A. iMBERT.
Translation certified to be accurate:
A. Bailly^-Blanciiard, ),.,., , •
H, Cunynghame, )
PROTOCOL XIV.
MEETING OF TUESDAY, APRIL 25, 1803.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present with the exception of Lord Ilannen, confined to his house by
illness.
26 PROTOCOLS.
Sir Kicliard Webster rose and stated that any decision of tlie Tri-
bunal as to a suspension of its labors during the time necessary to
insure tlie complete recovery of Lord Ilannen would be in accordance
with the wishes of the counsel of the British Government.
The Honorable E. J. Phelps expressed himself to the same effect in
tlie name of the counsel of the Government of the United States.
The president then announced that the Tribunal had decided to
adjourn until Tuesday, May 2nd, at 11.30 a. m.
Done at Paris, the 25th of April, 1803, and signed:
TJw Preiiidcnt : ALPH. DE COUROEL.
The Agent for the United States : JoiIN W. FOSTEU.
The Agent for Great Britain: CHARLES H. TUTPER.
The Seer ct aril : ^- ImBERT.
Translation certified to be accurate:
A. Bailly-Blanciiard, ) (j^,^^,,,Uirlc8.
H. CUNYNGIIAME, )
PROTOCOL XV.
MEETING OF TUESDAY, MAY 2, 1803.
The Tribunal assembled at 11.30 a. m., all the arbitrators being present.
Mr. James C. Carter resumed and concluded his argument on the
matters relating to right. As he was proceeding to deal with the ques-
tion of regulations. Sir Charles Russell observed that the counsel of
Great Britain wM)uld in the discussion keep absolutely separate matters
relating to right and those relating to regulations.
The president recalled the fact that the Tribunal had decided, with-
out prejudging the question of right, t^^) give to counsel on each side,
who had agreed upon this point, full liberty to arrange their arguments
in such manner as they thought most convenient, but always, as fiir as
possible, so as to keep the questions of right distinct from the regu-
lations, and added that the Tribunal took note that both parties had
decided to defer to this desire.
At 1.30 the Tribunal took a recess.
On reassembling, Mr. Carter finished his argument.
At 3.30 ]). m. the Tribunal adjourned till the next day at 11.30 a. m.
Done at Paris, the 2ud of May, 1803, and signed :
The President: AlPH. DE COURCEL.
The Agent for the United States: JOHN W. FOSTER.
Tlie Agent for Great Britain : CHARLES H. TUPPER.
The Secretary : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) /, ^ 4 •.„
' > Co-tsvcreianes.
H. Cunynghame, )
PROTOCOLS. 27
Pl^OTOCOL XVI.
MEETING OF WEDNESDAY, MAY 3, 1893.
Tlio Tiibunnl assembled at 11.30 a. m., all the arlu'trators being
[! resent.
The Honorable John W. Foster announced that in a very short time
he expected to be able to deliver to the members of the Tribnnal a
shorthand report, revised and corrected, of Mr. James C. Carter's
argument, as concluded the previous day.
Upon the invitation of the president, Mr. Frederick II. Coudert then
began his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Mr. Coudert continued his argument.
At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Dune at Paris, the 3rd of May, 1893, and signed:
The President : ALPH. DE COURCEL.
The Agent for the United Stales : JOHN W. FOSTEK.
The A(jc)it for Great Britain: ChARLES H. TuPPER.
The Secretary : A. ImRERT.
Translation certified to be accurate:
A. BAILLY-BLANCIIARD, } ri i.y 4 •
,^ . ' > Cu-iSecretarics.
U. Cunynghame, )
PROTOCOL XVII.
MEETING OF THURSDAY, MAY 4, 1803.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
|>resent.
Mr. Frederick II. Coudert resumed his argument of the preceding day.
At 1 .30 the Tribunal took a recess.
On reassembling, Mr. Coudert continued his argument.
At 4 p. in. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 4th of May, 1803, and signed:
The President: AlPH. DE CoURCEL.
The Agent for the United States: JOHN W. FOSTER.
The Agent for Great Britidn : CHARLES 11. TUPPEIl.
The Secret urn • ^- ImBERT.
Translation certified to be accurate:
A. Bailly- Blanc HARD, ) ., .< ^ •
-rr ,, ' > Co-)^ecrctarics.
H. Cunynghame, )
28 PROTOCOLS.
TEOTOCOL XVIII.
MEETING OF FRIDAY, MAY 5, 1803.
The Tiibuiial assembled at 11.30 a. m., all the arbitrators being-
present.
Mr, Fredericlv E. Coudert resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Mr. Coudert continued his argument.
At 4 J), m. the Tribunal adjourned until Tuesday, May 9th, at 11. .".O
a. m.
Done at Paris, the nth of May, 1893, and signed:
The Fresident : AlPH. DE CoURCEL.
The Afjcni for the United States : JoHN W. FOSTER.
The Agciii for Great Britain : CHARLES II. TUPPER.
The Sevretary : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanoiiard, ) ., ., . . „
' } to- Secretaries.
n. CUNYNGHAME, )
PROTOCOL XIX.
MEETING OF TUESDAY, MAY 9, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Mr. Frederick E. Condert resumed his argument.
At 1.30 the Tribuunl took a recess.
On reassembling, Mr. Coudert concluded his argument.
The Honoriible Edward J. Phelps rose to in form the Tribunal, before
the counsel of Great Britain commenced their argument, that in his
reply he would rely upon all the authorities and ])oints referred to
between i)ages 130 and 190 of the printed argument of the United
States.
The president said that the Tribunal would take note of the Iloimr-
able Edward J. Phelps's declaration.
At 1 ]). m. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 9th of May, 189.'>, and signed:
The I'rvsideut: ALPH. DE CoURCEL.
The Agent for the United States: JOIIN W. FoSTER.
The Agent for Great Britain: CHARLES H. TUPPEB.
The Secretary : A. ImBERT.
Translation certified to be accurate:
A. IUtlly-Blanchard, ) ^i a * •
H. Cunynghame, )
PROTOCOLS. 29
PEOTOCOL XX.
MEETING OF WEDNESDAY, MAY 10, ISO.'j.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
The agent of the United States caused to be delivered to the mem-
bers of the Tribunal a shorthand report, revised and corrected, of Mr.
James C. Carter's argument.
Upon the invitation of the president, Sir Charle.s Russell began his
argument for Great Britain.
At 1.30 the Tribunal took a recess.
On reassembling, Sir Charles Russell continued his argument.
At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 10th of May, 1803, and signed:
The President: ALPH. DE CoURCEL.
The Agent for the United States: JOIIN W. FOSTER,
The Agent for Great Britain: ClIARLES H. TUPrER.
The Sccretarg: A. ImDERT.
Translation certified to be accurate :
A. Bailly-Blanchard, ) ^, ci 4 •
„ ^ ' > Co-IScereiaries,
H. CUNYNOnAME, )
PROTOCOL XXI.
MEETING OF THURSDAY, MAY 11, 1803.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
l)resent.
Sir Charles Russell, in continuing his argument, announced that on a
future day he would rubmit on the part of Great Britain a list of the
findings of facts which the Tribunal was requested to make under
Section VIII of the Treaty of Arbitration.
The president remarked that these questions would be considered by
the Tribunal, with full liberty for Sir Charles Russell to deal with the
nuitter as he thought proper.
At 1.30 the Tribunal took a recess.
On reassembling. Sir Charles Russell continued his argument.
The Tribunal adjourned at 4 p. m. till 11.30 the next day.
Done at Paris, the 11th of May, 1803, and signed:
The Fresident : ALPH. DE CoURCEL.
The Agent for the United Stales: JOHN W. FOSTER.
The Agent for Great Britain : OhARLES II. TUPPER.
The Secretary : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, } ^, a ^ •
^^ ,, ' > Co-iSecretaries.
H. CUNYNGHAME, >
30 PROTOCOLS.
PKOTOC OL XXII.
MEETING OF FRIDAY, MAY 12, 1803.
The Tiibiiiial assembled at ll.oO a. m., all the arbitrators being
Ijreseiit.
Sir Charles Knssell resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Sir Charles Russell continued his argument.
At 4 p. m. the Tribu nal adjourued until Tuesday, May 1(>, at 11 .30 a. ni.
Done at Paris, the 12th of May, 1893, and signed:
The President: ALPII. DE CoURCEL.
The Aijent for the United States : JOHN W. FOSTER.
The Agent for Great Britain : CHARLES IT. TUPPER.
The Secretarii : A. ImBERT.
Translation certitied to be accurate:
A. Bailly-Blanciiard, ) ^ ^ 4 •
' ■ C<>-ISccrct<trtes.
H, Cunynghame, )
PEOTOCOL XXIII.
meeting of TUESDAY, MAY 10, 1893.
The Tribunal assembled at 11,30 a. m., all the arbitrators bcin^
present.
Sir Charles Russell resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling. Sir Charles Russell continued his argument.
At 4 p. m. the Tribunal adjourned till 11.30 a. m. the next day.
Done at Paris, the 10th of May, 1893, and signed:
The President: ALPH. DE CoURCEL.
The Agent for the United States: JOHN W. FOSTER.
The Agent for Great Britain: CHARLES II. TuPPER.
The Secretary: A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ? y^ cr 4 • c
.^ ,, ' > Go- Secretaries.
II. Cunyngiiame, )
PROTOCOL XXTV.
MEETING OF WEDNESDAY, MAY 17, 1893.
The Tribunal assembled at 11.30 a. m,, all the arbitrators being
present.
Sir Charles Russell resumed his argument.
At 1.30 the Tribunal took a recess.
PROTOCOLS. 31
On reassembling:, Sir diaries Kussell coutiiined his argument.
At 3.40 p. m. the Tribunal adjourned until Tuesday, May 23rd, 1893,
at 11.30 a.m.
Done at Paris, the 17th of May, 1893, and signed:
The Fresidmt: AJ^PII. DE CoUliCEL.
The J(jevlfor the. United States : JOIIN W. FOSTER.
The J<jeit If or Great Britain: ChAELES H. TurPEIi.
The Secretary: A. ImEERT.
Translation certified to be aijcurate:
A. Batlly-Blan(!haed, ) ., ., , .
„ ^ ' > Co- /Secretaries.
H. CUNYNCillAME, )
PliOTOCOL XXV.
MEETING OF TUESDAY, MAY L'3, 1893.
Tlie Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Sir Charles Russell resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Sir (^liarles Russell continued his argument.
At 4 }). m. the Tribunal adjourned to the next day at 11.30 a. ni.
Done at Paris, the 23rd of May, 1893, and signed:
The President : Al^VR. DE COURCEL,
The Ayent for the United States: JoHN W. FOSTER.
The Jgeiit for Great Britain: CHARLES 11. TurPER,
The Secretary : A. iMBERT.
Translation certified to be accurate:
A. Bailly-Blancitard, ) ., t, ^ •
H. CUNYNGITAME, )
PROTOCOL XXVI.
MEETING OF AVEDNESDAY, MAY 24, 1893.
The Tribunal assembled at 11.30 a. in., all the arbitrators being
present.
Sir Charles Russell resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling. Sir Charles Russell continued his argument.
32 PROTOCOLS.
At 4 p. ui. the Tiil)uiial adjourned to the next day at 11.30 a. m.
Done at Paris, the 21tli of May, 18{)3, and signed:
The Fresident : ALPII. DE CoURCEL.
The Jgciii for the United States : JOIIN W. FOSTER. .
The Agent for Great Britain: ClIARLES H. TUPPER.
The Secretary : A, IMBERT.
Translation certified to be accurate :
A. Bailly-Blanchard, ) ., o..., ...>/„.. .-/.o
H. CUNYNGnAME, )
PKOTOCOL XXVII.
MEETING OE THURSDAY, MAY 25, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators bein<
present.
Sir Charles Eussell resumed his argument.
At 1.30 the Tribnnal took a recess.
On reassembling, Sir Cliarles Kussell continued his argument.
At 4 p. m. the Tribnnal adjourned to the next day at 11.30 a. m.
Done at Paris, the L'oth of May, 1893, and signed:
The President : AlPII. DE GOURCEL.
The Agent for the United States: JoHN W. FOSTER.
The Agent for Great Britain : CHARLES H. TUPPER.
The Secretary : A. IMBERT.
Translation certified to be accurate:
A. BAILLY-BLANCHARD, | (jo- Secretaries.
11. Cunynghame, )
PEOTOCOL XXVIII.
meeting of FRIDAY, MAY 26, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Sir Charles liussell resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Sir Charles Russell continued his argument.
At 4 p. m. the Tribunal adjourned until Tuesday, May 30th, at 11.30
a. m.
Done at Paris, the 2Gth of May, 1893, and signed:
The rresident: AlPH. DE COURCEL.
The Agent for the United States: JOHN W. FOSTER.
The Agent for Great Britain : ClIARLES H. TUPPER.
The Scrretarg: A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) ., ,-, ., . „
' > Co-occretaries.
H. Cunynghame, >
PROTOCOLS. 33
PROTOCOL XXIX.
MEETING OF TUESDAY, MAY 30, 1803.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Sir Charles Russell resumed his argument.
At 1.30 the Tribunal took a reeess.
Ou reassembling. Sir Charles Russell continued his ari;ument.
At! p. m. tlie Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 30tli of May, 1803, and signed:
The President : AlPII. DE CoUROEL.
The Agent for the Vniled Siaies: JOHN W. FOSTER.
The Agent for Great Britain: ClIARLES II. TUPPER.
The Secrclari/: A. ImPEUT.
Translation certified to be accurate:
A. BAILLY-BLANCIIARD, ] ri u ^ • „
' } Co- Secretaries.
H. Cunynghame, )
PROTOCOL XXX.
meeting of WEDNESDAY, MAY 31, 1803.
The Tribunal assembled at 11.30 a. m., all the arbitrators being-
present.
Sir Charles Russell, in continuation of his argument, presented to
the Tribunal the ibllowing paper:
The British Government having submitted to the arbitrators certain
questions of fact as involved in the clain)s for damage set iorth in the
schedule to the British case, pages 1 to 00, inclusive, ask for the fol-
lowing findings thereon, namely:
1. That the several searches and seizures, whether of ships or goods,
and the several arrests of masters and crews, respectively, mentioned
in the said schedule, were made by the authority of the United States
Government.
2. That they were made in non-territorial waters.
3. That the several searches, seizures, condemnations, and confisca-
tions, whether of ships or goods, and the several arrests, fines, and
imprisonments, were for alleged breaches of municipal laws of the
United States, which alleged breaches were wholly committed on the
high seas outside the territorial w^aters of the United States.
4. That the several orders mentioned in the said schedule, whereby
ships were prevented from pursuing their voyages, were given on the
high seas outside territorial waters, under the authority of the United
States Government and in execution of the nuinicipal laws of the
United States; and
B s— VOL I 3
34 PROTOCOLS.
i"i. That the snid several searelics, seizures, coiideiniiatioiis, confisca-
tions, lines, iiiii»risf)nnients, and orders were not made, imposed, or
{iiven under any claim or assertion ot'riglit or jurisdiction, except such
as is submitted to tlie decision of the arbitrators by tlie questions in
ArticUi VI of the Treaty of Arbitration.
Sir Charles Kussell furllier announced that Great Britain would not
ask the Tribunal for any finding for damages upon and under articled
of the convention or modus vivcndi of April 18, 1892.
The Honorable Edward J. Phelps announced that the United States
would not, on its behalf, ask the Tribunal for any finding for damages
upon and under article 5 of the convention or modus vivendi of Ai)ril
18, 18I)L>.
Sir Cliarles Kussell then concluded his argument.
Sir liichard Webster then commenced his argument on behalf of
Great Britain.
At 1.30 the Tribunal took a recess.
On reassembling. Sir liichard Webster continued his argument.
At 4 p. ni. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 31st of May, 1893, and signed:
The Preside)! t : AlPH. DE CoURCEL.
The J<jent for the Uiiilcd Slates: JOHN VV. FOSTER.
The Agent for areal Britain: ClIARLES H. TUPPER.
The Secretary : A. iMliERT,
Translation certified to be accurate:
A. BAILLY-BLANCIIARD, ) ^,,.^,,,,^,,,-,,.
IE. CUNYNGIIAME, )
PBOTOCOL XXXI.
MEETING OP THURSDAY, JUNE 1, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being-
present.
Sir liichard Webster resumed his argument.
At 1.30 the Tribunal took a recess.
On reasseuibling, Sir Richard Webster continued his argument.
At 4 p. ni. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 1st of June, 1893, and signed:
The Fresident : AlPH. DE COURCEL.
The A(jent for the United States : JOHN W. FOSTER.
The Aiient for Great liriiain: ClIARLES H. TUPPER.
The Secretary : A. IMBERT.
Translation certified to be accurate:
A. Bailly-Blancuard, ) ^ r. , •
H. Cukyngiiame, )
PROTOCOLS. 35
PKOTOCOL XXXII.
MEETINa OF FRIDAY, JUNE 2, 1893.
Tlic Tribnnal asseiubled at ll.;>(), all the arbitrators being present.
Sir liichard Web-itcr resumed liis argiinieut.
At 1.30 the Tribunal toDJc a recess.
On reassembliiiii', Sir Kichard Webster continued his ar<iunient.
At 4 p. ni. the Tribnnal adjourned until Tuesday, June 0th, at 11.30
Done at Paris, the 2nd of -lune, 1<S!)3, and signed:
The rirsidvnt: ALPH. DE COURCEL.
The Agent for the rnlted States: JOIIN W. FOSTER.
The Aijent for (irvat Britain: OhARLES H. TuPPER.
The Seeretary : A. ImpERT.
Translation ecrtilied to be accurate:
A. Bailly-Blanciiard, ) .^ c. , •
H. Cui^iYNGIIAME, S
PB(3T()0OL XXXIII.
MEETING OF TUESDAY, JUNE 6, 1803.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
H. E. M. Gram, the arbitrator designated by Sweden and Xorway,
read the following statement:
Tlie Appendix Voluiue I to the (luitetl States case gives the text of the law and
rcgulaiions relating to the protection of wliales on the coast of Finnniarken. It was
my iutrntion hiter on to explain to my colleagues these laws and regulations in
^ui)plying some information about the natural conditions of Norway and Sweden
which have necessitated the establishment of special rules concerning the territorial
waters, and to.state at the same time my opinion as to whether those rules and their
subject-matter may be considered as having any bearing npon the present case. As,
however, iu the latest sittings reference has r(!pcatedly been made to the Norwegian
legislation concerning this matter, I think it might be of some use at the present
juncture to give a very brief relation of the leading features of those rules.
The peculiarity of the Norwegian law quoted by the counsel for the United States
consists in its providing for a close season for the wlialing. As to its stipulations
about inner and territorial waters, such stipulations are simply applications to a
special case of the general princii)les laid down in the Norwegian legislation con-
cerning the gulfs and the waters washing the coasts. A glance on the map will
be suflicient to show the great nuinlxjr of gulfs or fiords and their importance for the
inhabitants of Norway. Some of these fiords have a considerable development,
stretching themselves far into the country and being at their mouth very wide.
Ne\erthele«s, they have been from time immemorial considered as inner waters, and
til is principle has alwaj's been maintained, (!ven as against foreign subjects.
More than twenty years ago a fdt'eign Government once complained that a vessel
of their nationality had been prevented from fishing in one of the largest fiords of
36 PROTOCOLS. '
Norway, in the nortliorn part of the country. The h^biug carried on in tliat neigh-
borhood during the (irst four months of every year is of extraordinary importance
to the country, some 30,000 people gathering there from south and uortli, in order
to earn their living. A Government ius[)ection controls the lishing going on in the
waters of the fiord, sh iltered by a ran j;e of islands against the violence of the sea.
The appearance in the3'3 waters of a foreign vessel pretending to take its share of the
fishing was an unheard of occurrence, and in the ensuing diplomatic correspondence
the exclusive right of Xorwegi:in subjects to this industry was encrg(!ti(ally insisted
upon as founded in immemorial practice.
Besides, Norway and Sweden have never recognized the three miles limit as the con-
fines of their territorial waters. They have neither concluded nor acceded to any
treaty consecrating that rule. By their municipal laws the limit has generally been
fixed at 1 geograi)hical mile, or one-fifteenth part of a degree of latitude, or 4 marine
miles, no narrower limit having ever been adopted. In fact, in regard to this
question of the fishing rights, so important to both of the United Kingdoms, the
said limits have in many instances been found to be even too narrow. As to this
question and others therewith connected, I beg to refer to the communications ])re-
sented by the Norwegian and Swedish members in the sittings of the hisfitut dv Droit
International in 1891 aiul 1892. I wish also to refer, concerning the subject which I
have now very briefly treated, to the proceedings of the conference of Hague, in
1882 (Martens. Noiiveaii Reuiieil geiu'ral, II st'rie, Volume IX), containing the reasons
why Sweden and Norway have not adherinl to the treaty of Hague.
The president requested that counsel on both si(k's woukl hear in
mind the observations of II. E. M. Grain, in case they found it neces-
sary to cite tlie example of the Avaters of Norway, but thouj^ht it his
duty to remind them that tlie question of the definition of territorial
waters was not submitted to tlie arbitrators, and that it was not the
intention.of the Tribunal to express any opinion with respect to that
definition.
Sir Eichard Webster then resumed Ins argument.
At 1.30 the Tribunal took a recess.
On reassembling, Sir Richard Webster continued his argument.
At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 6th of June, 18D3, and signed:
Thf Frcsident: ALPII. DE COUIICI'^L. .
The Agent for the United Stales : JoiIN VV. FOSTEII.
The Agent for (Ireat llrilain : ClIAKLES H. TUPPEll.
The Sccrelarg : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) /, .- ^ • „
H. CUNYNGIIAME, .)
PROTOCOL XXXIV.
MEETING OF WEDNESDAY, .lUNE 7, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Sir liichard Webster resumed and concliuled his argumeut.
Mr. Christoxiher liobinsou then began his argumeut.
PROTOCOLS. 37
At l.oO tlic Tril)Tiiial took a recess.
On reassembling', Mr. llobiiisoii continued liis argument.
At 4 p. m. the Tribunal adjourned to the next day at 11 o'clock.
Done at Paris, the 7tli of June, 1893, and signed :
The rresident: AlPH. DB CoURCEL.
The Agent for fhe United States: JOHN W. FOSTER.
The Agent fur (ireat Britain : CHARLES H. TirpPER.
37(6 Secretary : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) ^, « ^ •
„ ^ ' > (jo-becretaries.
H. CUNYNGHAME, )
PEOTOCOL XXXV.
MEETING OF THURSDAY, JUNE 8, 1893.
The Tribunal assembled in the council cliamber at 11 o'clock, all the
arbitrators being present.
The public sitting commenced at 12 noon.
Mr. Christopher Robinson continued and finished his address.
The United States agent then read the following statement:
The Government of tlie United States, in the event that the determination of the
High Trilnmal of certain questions described in the seventh article of the treaty as
'•tJie foregoing questions as to the exclusive jiuisdictiou of the United States"
should, as mentioned in said seventh article, "leave the subject in such a condition
tliat the concurrence of Great Britain is necessary to the establishment of regula-
tions for the proper protection and preservation of the fur seal in, or habitually resort-
ing to, Bering Sea," submits that the following regulations are necessary and that
the sanu' should extend over tlie waters hereinafter in that behalf mentioned:
First. No citizen or subject of the United States or Great Britain shall in any man-
ner kill, capture, or pursue anywhere upon the seas, within the limits and boundaries
next hereinafter prescribed for the oijeratiou of this regulation, any of the animals
commonly called fur seals.
Second. The foregoing regulation shall apply to and extend over all those waters,
outside the jurisdictional limits of tlic above-mentioned nations of tlie North Paciiic
Ocean or Bering Sea which are north of the thirty-fifth parallel of north latitude and
east of the one hundred and eightieth meridian of longitude west from Greenwich:
Provided, however, That it shall not apply to such pursuit and capture of said seals
as may be carried on by Indians dwelling on the coasts of tlie territory either of
Great Britain or the United States for their own personal use with spears in open
canoes or boats not transported by, or used in connection with, other vessels, and
]iropclled wholly by paddles, and manned by not more than two men each, in the way
anciently practiced by such Indians.
Third. Any ship, vessel, boat, or other craft (other than the canoes orboatsmentioned
and described in the last foregoing paragraph) belonging to the citizens or subjects
of either of the nations aforesaid which may be found actually engaged in the kill-
ing, pursuit, or capture of said seals, or prosecuting a voyage for that purpose within
the waters above bounded and described, may, with her tackle, ajiparel, furniture,
])rovisious, and any seal skins on board, be captured and made prize of by any iiublic
armed vessel of either of the nations aforesaid; and, in case of any such capture,
38 PROTOCOLS.
limy be talicii into any port of tlio nation to Avliicli t1ie raptnrins; vessel belongs and
1)(< condemned by proceedings in any court of competent jurisdiction, which jiro-
ceedings shall be conducted so far as may be in accordance witli the course and
practice of courts of admiralty when sitting as prize courts.
Tlie Agent of the Uuited States also read the following- stateiueut:
Substitute proposed by the Government of the Uuited States for tindings of facts
submitted by the Government of Great Britain:
1. That the several searches and seiztires, whether of ships or goods, and the
several arrests of masters and crews, respectively mentioned in the said schedule,
were made by the authority of the United States Government. Which and how
many of the vessels mentioned in said scliedule were in whole or in part the actual
property of British subjects, and which and how many where in wliole or in part
the actual property of American subjects, is a fact not passed upon by this Tribunal.
Nor is the value of said vessels or contents, or either of them, deterniined.
2. That the seizures aforesaid were made u]ion the sea. more than ten miles from
any shore.
3. That the said several searches and seizures of vessels were made by public
armed vessels of the United States, the commanders of which had, the several
times when they were made, from the Executive Department of the Government of
the Uuited States, instructions, a copy of one of which is annexed Iiereto, marked
"A," and that the others were, in all substantial respects, the same; that in all the
instances in which proceedings were had in the district courts of the United States
resulting in condemnation, such proceedings were begun by the tiling of libels, a
copy of one of which is annexed hereto, marked " B," and that the libels in the
other jiroceedings were in all substantial respects the same; that the alleged acts
or oH'cnses for which sai<l several searches and seizures were made were in each case
done or committed upon the seas more than ten miles from any shore; and that in
each case in which sentence of condemnation was had, except in those cases when
the vessel w.as released after condemnation, the capture was adopted by the Go\ < m
ment of the United States. That the said tines and imiirisoiimeuts were for alleged
breaches of tlie municipal laws of the United States, which alleged breaches were
wludly comniitred upon the seas more than ten miles Iroin any sliore.
4. That the several orders mentioned in said schedule warning vessels to leave
Bering Sea were made by xiublic armed vessels of the United States, the commanders
of which had, at tlie several times when they were given, like instructions as
mentioned in tinding 3, alxjve proposed, and that the vessels so warned were engaged
in sealing or prosecuting voyages for that purpose.
.5. That the said several searches, seizures, condemnations, confiscations, fines,
iin])risonments, aiul orders were not made, imposed, or given under any claim or
assertion of right or jurisdiction except such as is submitted to the decision of tlie
arl)itrators by the qnestiims in Article VI of the Treaty of Arbitration.
(i. That the district courts of the Uuited States in which any proceedings were had
or taken for the purpose of condemuing any vessel seized as mentioned in the
schedule to the case of Great Britain, pages 1 to GO, inclusive, had all the jurisdiction
and xiower of courts of admiralty, including the prize jurisdiction.
Annex A.
[See Britisli counter case, Appeiidix-, Vol. I, p. 72.]
TlllCASUKY DKrARTMKNT. OfI'ICK OF TllK SeCRETAUY,
irashiiu/ion, April 21, ISSG.
Sir: ReA^rriiig to Department hdter of this date, directing you to ])roceed with
the revenue steamer Hear, under your comifiand, to the seal islands, etc., you are
hereby clothed with full ])()wer to cutbrce the la,w cimtained in the provisions of
section 1956 of the United States Revised Statutes, and directed to seize all vessels
PROTOCOLS. 39
and arrest and deliver to the proper autlniritics any or all persons whom you may
detect violating the law referred to, after due liotiee shall have been given.
You will also seize any li(iuors or firearms attempted to 1)0 introduced into the
country without proper permit, under the provisions of section 1955 of the Kevised
Statutes, and the proclamation of the President dated 4th February, 1870.
Kesi)ectfnlly, yours,
(Signed) C. S. Faihchild,
Jvtiiig iScei-ftari/.
Capt. M. A. IIkaly,
Commaiid'uKj Eevcnue Steamer Bear, Sail Francisco, California.
Annex B.
[See British .'aso, Aiippiulix, Vol. Ill, U. S. No. 2. 1890, p. 65.]
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF ALASKA.
AUGUST sPEci.\L TKi;.\r, 1886.
To the Honorable Lafayette Dawson, Judge of said District Court:
The libel of information of M. D. Ball, attorney for the United States for the Dis-
trict of Alaska, who prosecutes on behalf of said United States, and being present
here in court in his proper person, in the name and on behalf of the said United
States, against the schooner Thornton, her tackle, apparel, boats, cargo, and furui-
ture, and against all persons intervening for their interest therein, in a cause of for-
feiture, alleges and informs as follows:
That Charles A. Abbey, an officer in the Revenue-Marine Service of the United
States, and on special duty in the waters in tlie District of Alaska, heretofore, to wit,
on the 1st day of August, 1886, within the liiuits of Alaska Territory, and in the
waters thereof, and within the civil and judicial District of Alaska, to wit, within
the waters of that portion of Bering Sea belonging to the said district, on waters
navigable from the sea by vessel, of 10 or more tons burden, seized the ship or vessel
commonly called a schooner, tlie Thornton, her tackle, ajiparel, boats, cargo, and
furniture, being the property of souie person or persons to the said attorney unknown,
as forfeited to the United States, for the following causes:
That the said vessel or schooner was found engaged in killing fur-seal within the
limits of Alaska Territory, and in the waters thereof, in violation of section 1956 of
the Revised Statutes of the United States.
And the said attorney saith that all and singular the premises are and were true,
and within the admiralty and maritime jurisdiction of this court, and that by reason
thereof, and by force of the Statutes of the United States in such cases made and
provided, the aforementioned and described s<dioouer or vessel, being a vessel of
over I'O tons burden, her tackle, apparel, boats, cargo and furniture, became and are
forfeited to the use of the said United States, and that said schooner is now within
the district aforesaid.
Wherefore the said attorney prays the usual process and monition of this honor-
able court issue iu this behalf, and that all persons iuterested in the beforementioued
and described schooner or vessel may be cited iu general and special to answer the
premises, and all due proceedings being had, tiiat the said schooner or vessel, her
tackle, apparel, boats, cargo and furniture nuiy, for the cause aforesaid, and others
appearing, be coudemued by the definite sentence and decree of this honorable
court as forfeited to the use of the said United States, according to the form of
the statute of the said United States in such cases made and provided.
(Signed) M. D. B.\li-,
United Slalen JJinlrict Altorneij for the District of Alaska.
40 PROTOCOLS.
At 1.^)0 the Tril)iiiial took a locess.
0)i reassoinbliiig, iSiv Oliiirles Kusscll began liis argument on behalf
of tlie Government of Great Britain on the question of regulations as
contemplated by Article VII of the Treaty of Arbitration,
At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the Sth of June, 1803, and signed:
The President: ALPH. DE COURCEL.
The A(jent for the Ihiited Stales: JOHN W. FOSTER.
The Agent for Great Britam : CHARLES H. TUPPER.
The Secretary : A. IMBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, J (jo- Secretaries.
H. CUNYNGIIAME, )
PROTOCOL XXXVI.
MEETING OF FRIDAY, JUNE 9, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Sir Charles IJnssell resumed his argument of the previous day.
At 1.30 the Tribunal took a recess.
On reassembling. Sir Charles Kussell continued his argument.
At I }). m. the Tribunal adjourned until Tuesday, June 13th, at 1 1.30
a. m.
Done at Paris, the 9th of June, 1893, and signed:
The President : ALPII. DE CoURCEL.
The Agent for the United Slates: JOIIN W. FOSTER.
The Agent for Great Britain : ClIARLES H. TUPPER.
The Secretary : A. ImBERT.
Translalion ceitilied to be accurate:-
A. Bailly-Blanciiard, ) ., ., , ,,.. „
' > (Jo-lsccrctitrtcs.
11. CUNYNGIIAME, )
PROTOCOL XXXVIL
MEETING OF TUESDAY, JUNE 13, 1893.
The Tribunal assembled at 31.30 a. m., all the arbitrators being
present.
Sir Charles Russell resumed and concluded his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Sir Richard Webster began his argument on behalf
of Great Britain on the questioii of regulations.
PROTOCOLS. 41
At 4 p. in. the Tribniinl adjonniod to tlie next dny at 11.30 a. ni.
Done at I'aris, tlie lotli of , lane. 181)3, and .si<>iiod:
The President : ALPII. DE COUUCEL.
The Agent for (he T'vited States: JoHN W. FOSTER.
The Agent for Great Jh-itnin: ClIARLES H. TurPEE.
The Seereiary: A. ImEEUT.
Translation certified to be accurate:
A. BAILLY-BLANCIIArtD, ) ., ,, , .
„ ' > (Jo-ISecretancs.
H. CUNYNGIIAME, )
PROTOCOL XXXVIII.
MEETING OP WEDNESDAY, .TUNE 14, 1803.
Tlie Tribunal assembled at 11.30 a. in., all the arbitrators being
jiresent.
Sir Kichard. Webster resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling. Sir Eichard Webster continued his argument.
At 4 p. in. the Tribunal adjourned to the next day at 11.30 a. m.
Done at Paris, the 14th of June, 1893, and signed:
The President: AlPH. DE COUSJOEL.
The Agent for the United States: JOHN W. FOSTEK.
The Agent for Great Britain: CHARLES H. TUPPEK.
The Secretimj : A. ImdERT.
Translation certitied to be accurate:
A. Bailly-Blanchard, ) ^, r< . .
H. CUNYNGHAME, )
PBOTOCOL XXXIX.
MEETING OP THURSDAY, .JUNE 15, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Sir Richard Webster resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Sir Richard Webster continued his argument.
At 4 p. m. the Tribunal adjourned to the next day at 11 a. m.
Done at Paris, the 15th of June, 1893, and signed:
The President : AlPH. DE COURCEL.
The Agent for the United States: JOHN W. FOSTER,
The Agent for Great Britain : CHARLES H. TUPPER.
The Secretarg : A. ImBERT.
Translation certitied to be accurate:
A. Bailly-Blanchard, / ^^ ,, ^ .
H, Cunynghame, S
42 PROTOCOLS.
PROTOCOL XL.
MEETING OF FRIDAY, JUNE 16, 1893.
The Trihnnal assembled at 11 o'clock, all the arbitrators being present.
Sir llicliard Webster resumed liis argument.
At 1.30 the Tribunal took a recess.
On reassembling, Sir Richard Webster continued his argument.
The president, in adjourning, announced that during the temporary
absence of Mr. (3unynghame, the Tribunal authorized Mr. Heniy Han-
nen. barristci- at law, to perform his duties.
At 3.30 p. m. the Tribunal adjourned until Tuesday, June 20th, at
11.30 a.m.
Uone at Paris, the ICth of June, 1893, and signed:
TheVrcsldent: ALPH. DE COURCEL.
The Aocnt for tlie VnUt'd Sliitis : JOHN W. FOSTER.
The A(jent for Great Britain : CHARLES H. TUPPER.
The Stcnlanj : A. ImEERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) r, ^i 4 ■
H. CUNYNGHAME, )
PROTOCOL XLL
MEETING OF TUESDAY, JUNE 20, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Sir Richard Webster continued his argument.
The agent of ller Britannic Majesty laid before the Tribunal a scheme
of regulations worded as follows:
REGULATIONS.
1. All vessels engaging- in pelagic sealing shall be required to obtain licenses at one
or other of the following pox'fs:
Victoria, in the Province of British C'dlnnibia.
Vauconver, in the Province of i^ritish Coliunbia.
Port Towuseud, in Washington Territory', in the United States.
San Francisco, in the State of California, in the United States.
2. Such licenses shall only be grantcul to sailing vessels.
3. A zone of 120 miles around the I'ribilof Islands shall be established, -within -uhich
no seal hunting shall be; permitted at any time.
4. A close season, fiom the IJjth of Seidemlxir to the 1st of July, shall he established,
during -which no pcdagic sealing shall Ix; permitted in ]5ei-ing Sea.
5. No rifles or nets shall be used in pelagic sealing.
6. All sealing vessels shall be required to carry :i distinguishing ll.ig.
7. The masters in charge of sealing vess<ds sliall keep accurate logs as to the
times and places of sciUing, the number and sex of the seals captured, and shall
enter an abstract thereof in their official logs.
8. Licenses shall he subject to forfeiture for breach of above regulations.
PROTOCOLS. 43
At 1.30 the Tribunal took a recess.
On leasseiiibling-. Sir Kicliard Webster resumed and concluded liis
argument.
Tlie agent of Her Britannic Majesty then presented to the Tribunal
the following' paper, which, by agreement with the agent of the United
States, was submitted as a substitute for the papers heretofore pre-
sented as to findings of lacts:
riNDIXGS OF FACT PROPOSED BY THE AGEXT OF GREAT BRITAIN AND AGREED TO
AS PROVED BY THE AGENT FOR THE UNITED STATES, AND SUBMITTED TO THE
TRIBUNAL OF ARBITRATION FOR ITS CONSIDERATION.
1. Tliat tlie several searches auci seizures, wlietbcr of ships or goods, and the
several arrests of masters and crews, respectively mentioned in the schedule to the
British case, pages 1 to 60, inclusive, were made by the authoritj^ of the United
States Government. The questions as to the value of the said vessels or their con-
tents, or either of them, and the question as to whether the vessels mentioned in the
schedule to the Britisli case, or any of them, were wholly or in part the actual
property of citizens of the United States, have been withdrawn from and have not
been considered by the Tribunal, it being understood that it is open to the United
States to raise these questions, or any of them, if they think tit, in any future nego-
tiations as to the liability of the United States Government to pay the amounts
mentioned in tlie schedule to the British case.
2. That tlie seizures aforesaid, with the exception of the rathfinder, seized at Neah
Bay, were made in Bering Sea at the distances from shore mentioned in the schedule
annexed hereto, marked "C."
3. That the said several searches and seizures of vessels were made by public armed
vessels of the United States, the commanders of which had, at the several times
when they Avere made, from the Executive Department of the Government of the
United States, instructions, a copy of one of which is annexed hereto, marked "A,"
and that the others were, in all substantial respects, the same : that in all the instances
in which proceedings Avere had in the district courts of the United States resulting
in condemnation, such proceedings were begun by the liling of libels, a copy of one of
which is annexed hereto, marked "B," and tliat tlie libels in the other proceedings
were in all substantial respects the same: that the alleged acts or offenses for which
said several searches and seizures were made were in each case done or committed in
Bering Sea at the distances from shore aforesaid : and that in each case in which
sentence of condemnation was passed, except in those cases when the vessels were
released after condemnation, the seizure was adopted by the Government of the
United States: and in tliose cases in which the vessels were released the seizure was
made by the authority of the United States. That the said fines ?iud imprisonments
were for alleged breaches of the municipal laws of the United States, which alleged
breaches were wholly committed in Bering Sea at the distances from the shore
aforesaid.
4. That the several orders mentioned in the schedule annexed hereto and marked
"C," warning vessels to leave or not to enter Bering Sea, were made by public
armed vessels of the United States, the commanders of which had, at the several
times when they were given, like instructions as mentioned in finding 3, above pro-
posed, and that the vessels so warned were engaged in sealing or prosecuting voy-
ages for that purpose, and that such action was adopted by the Government of the
United States.
5. That the district courts of the United States in which any proceedings wer''
had or taken for the purpose of condemning any vessel seized as mentioned in the
schedule to the case of Great Britain, pages 1 to 60, inclusive, had all the jurisdiction
44
PROTOCOLS.
and powers of courts of arlmiralty, including Mio prize jurisdiction, but that in each
case the sentence pronounced l>y the court was based upon the grounds set ibrtli in
the libel.
Annexes A and B.
(For the text of these annexes see Protocol XXXV, Annexes A and B to the find-
ings of fact submitted by the agent of the United States.)
Annex C.
The following table shows the names of the British sealing vessels seized or
warned- by United States revenue cruisers, 188G-90, and the approximate distance
from land when seized. The distances assigned in the cases of the Carolena, Thorn-
ton and Onward are on the authority of United States Naval Commander Abbey
(see Fiftieth Congress, second session, Senate Executive Document, No. 10(5, pp. 20.
30 40). The distances assigned in the cases of the Anna Beck, W. P. Sayivard, Dol-
pMn, and Grace are on the authority of Captain Shepard, U. S. R. M. (Blue Book,
United States, No. 2, 1890, pp. 80-82. See Appendix, Vol. III.)
Jsnine of vcsspL
Carolena. .
Thornton .
Onward . . .
Tavorite..
Anna Eeclc
W. P. Say ward.
Dolphin
G race
Alfred Adams. .
Ada
Triumph
Juanita
I'athtinder
Triunipli
Black Diamond.
Lily
Ariel
Kate
Minnie
Pathiiuder
Date
of seizure.
Ai)proxiuiale distance from hinil wlicn seized.
United States
vessel
making seizure.
Aug. l,l!^8C
Aug. l,18.-^6
Aug. 2,1880
Aug. 2,1886
July 2,
July 9,
July 12,
JulV 17,
Aug. 10,
Aug. 25,
Aug. 4,
July 31,
July 29,
Julv 11,
1887
1887
1887
1887
1887
1887
1887
1889
1889
1889
July 11, 1889
Aug. 0,1889
July 30, 1889
Aug. 13,1889
Julv 15,1889
Mai-. 27, 1890
7a miles
70 miles
1 15 miles
Warned hy Corwiu in ahoiit same po.sition as
Onward.
66 miles
59 miles
40 miles
96 miles
62 lu ilos
15 miles
Warned hy Eush not to enter liering Sea.
06 miles
50 miles
Ordered out of Bering Sea hy Hush. (?) As to
position when warned.
35 miles
66 miles
Ordered out of Bering Sea h v Kush.
do '
65 miles
Seized in Neah Bay (1)
Corwin.
C'orwin.
Corwin.
Knsh.
l^ish.
llwAi.
Itiish.
Knsli.
Bear.
linsh.
Bush.
Rush.
Eush.
Eush.
j;ush.
Corwin.
(1) Neah Bay is in the State of Washington, and the J^ath finder was seized there on charges made
a<'ainst her in' Bering Sea in the previous year. She was released two days later.
Mr. Cliristo])l»er Eobiiison then began liis urguinent on the qnostion
of rcguUitions.
At 4 p. ni. the Tribunal iuljouriied to the next day at 11.30 a. m.
Done at Paris, the 20th of June, 1893, and signed:
The rresidcut: AlPH. DE COUROEL.
The A (lent for ihe United States : JOHN W. FOSTEK.
The Af/ent for Great Britain: CHARLES H. TUPPER.
The Secretary: A. ImBERT.
Translation certified to be accurate:
Co-Secretary: A. BAILLY-BLANCnARD.
Acting Co-Secretary : HeNRY A. HANNEN.
PROTOCOLS. 45
PKOTOCOL XLII.
MEETING OF WEDNESDAY, JUNE 21, 1S03.
The TribuDcil assembled at 11.30 a. ni., all the arbitrators being
present.
Sir Richard Webster produced and i)roposed to read to the Tribunal
certain documents recently presented to the I*arlianK'nt of Great Brit-
ain containing- correspondence between Great Britain and Russia on
the subject of the seizure of British vessels by Russian cruisers in the
Bering Sea.
Mr. Carter objected to these documents being regarded as before the
Tribunal.
The president, after consultation with his colleagues, announced that
the Tribunal would permit the documents to be read, but reserved to
itself for further consideration tbe question of their admissibility as
evidence.
Sir Richard Webster then read an extract from the documents in
question.
Mr. Christopher Robinson then resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, Mr. Robinson continued ami concliuled his argu-
ment.
At 3.50 p. m. the Tribunal adjourned to the next day at 11.30 a.m.
Done at Paris, the 21st of June, 1893, ami signed:
The rresldent: AlPII. DE CoURCEL.
The Agent for tlw, United Slates : JOHN W. FOSTER.
The Jycnt for (Ireat Britain : ChARLES H. TuPPER.
The Secretary: A. ImeERT.
Translation certifted to be accurate:
Co-Secretary: A. BAILLY-BlANCHARD.
ActiiKj Co-Secretary : HeNRY A. HANNEN.
PROTOCOL XLIII.
MEETINGr OE TUURSDAY, JUNE 22, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
The Honorable Edward J. Phelps bej^an his argument on behalf of
the United States.
At l.'iO the Tribunal took a recess.
On reassembling, the Honorable Edward J. Phelps continued his
argument.
46 PROTOCOLS.
At 4 p. m. the Tribunal adjoiinied to the next day at 11. .'50 a, in.
Done at Paris, the 22nd of June, 1803, and signed:
The President: AlPII. DE COURCEL.
The Agent for the United Slates: JOHN W. FOSTEII.
The Agent for Great Britain : CHARLES H. T UPPER.
The Seeretarij : A. ImuERT.
Transhition certilied to be accurate:
Co-Sicretary : A, BATELY-BLAlN^CnARD.
Acting Co-Secretary: llENRY A. HAJN'NEN.
PEOTOCOL XLIV.
ICEETINa OF FRIDAY, JUNE 23, 189
The Tribunal assembh'd at 11.30 a. ui., all the arbitrators being
l)resent.
The Honorable Edward J. Phelps resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling', tlie Honorable h^dward J. I'lielps continued his
argument.
At 4 p. m. the Tribunal adjourned until Tuesday, June 27th, at 11.30
a. m.
Done at Paris, the 23rd of June, 1893, and signed:
The President : AlPH. DE CoURCEL.
The Agent for the United Stales: JOHN W. FOSTER.
The Agent for Great Brilain : OlIARLES H. TUPPER.
The Secretary : A. ImBERT.
Translation certilied to be accurate :
Co-Secretary: A. BAILLY-BlANCIIARD.
Acting Co-Secretary : HENRY A. HANIS'EN.
PEOTOCOL XLV.
MEETING OF TUESDAY, JUNE 27, 1893.
The Tribunal assembled at 11.30 a. m., all tl)e arbitrators being
present.
The Honorable Edward J. Phelps resumed his argument.
At 1,30 the Tribunal took a recess.
(Jn reassembling, the Honorable Edward J. Pheli)s continued his
argument.
PROTOCOLS. 47
At 4 [). 111. the Tribunal adjourned to tbe next day at 11.30 a. ui.
Done at Paris, tlie tilth of Juue, 1893, and siy,ned:
The President: AlPII. DE CoURCEL.
The A</entfor the United States : JOHN W. FOSTER,
The Anviit for Great Britain: ClIARLES H, TUPPER.
The Secretary: A. ImBERT.
Tiaiislatiou certilled to be accurate:
Co-Secrclary: A. BATLLY-BLANOnARD.
ActiiKj Co-Secretary: HeNRY A. HANJNEN.
PEOTOCOL XLYI.
MEETING OF WEDNESDAY, JUNE 28, 1893.
The Tribunal assembled at 11.30 a. lu., all the arbitrators being
present.
Mr. H, Cunynghame resumed his duties of Co-Secretary, Avhich had
been fulfilled temporarily by Mr. Henry Hanuen,
The Honorable Edward J. Phel[»s continued his argument.
At 1..30 the Tribunal took a recess.
On reassembling, the Honorable Edward J. Phelps continned his
argument.
At 1 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Done at J*aris, the 28th of June, 1893, and signed:
The President : ALPII. DE CoURCEL.
The Agent for the United States: JOHN W. FOSTER.
The A(jent for Great Britain : CHARLES H. TUPPER.
The Secretary : A. ImbERT.
Translation certified to be accurate:
A. Bailly-Blanchard, ) /, c» ^ •
„ _ ' > Co-tSecretanes.
H. Cunynghame, )
PROTOCOL XLVII.
meeting of THURSDAY, JUNE 29, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
Tlie Honorable Edward J.Phelps resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, the Honorable Edward J. Phelps continued hi«
argument.
48 PROTOCOLS.
At 4 p. ni. the Tribunal adjouined until Monday, July 3rd, at 11.30
a. m.
Doue at Paris, tlie 29th of June, 1893, and signed:
The President : ALPH. DE CoURCEL.
The Agent for the United States: JOHN W. FOSTER.
The Aijent for Great Britain : CHARLES H. TUPPER.
The Secretary : A. IMBERT.
Translation certified to be accurate:
A. Bailly-Blanciiaed, ) ,^ t, . . „
' > Co-oecrctancs,
11. CUNYNGIIAME, )
PROTOCOL XLYIII.
MEETING OF MONDAY, JULY 3, 1893.
The Tribunal assembled at 11.30 a. ni,, all the arbitrators being
present.
The Honorable Edward J. Phelps resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, the Honorable Edward J. Phelps continued his
argument.
At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m.
Hone at Paris, the 3rd of July, 1893, and signed:
The President: ALPII. DE COURCEL.
The Agent fur the United Slates: JOHN W. FOSTER.
The Agent for Great Britain: CHARLES H. TUPPER.
Tlie Secretary : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchaud, ) ^, ., . .^
n. CUNVKOHAME, )
PROTOCOL XLIX.
MEETING OF TUESDAY, JULY 4, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
IJ resent.
The Honorable Edward J. Phelps resumed his argument.
At 1.30 the Tribunal took a recess.
On reassembling, the Honorable Edward J. Phelps continued his
argument.
PROTOCOLS. 49
At 4 p. m. the Tribntial adjouiiied to tin- next day at 11. oO a. in.
Done lit Paris, the 4tli of -luly, 18!K>, and signed:
The Pirtiifleiit : ALPII. DE COI'RCEL.
The A<n'iil for thi' riiiUd Slaics : JOHN W. FOSTER.
The Aijnit for (Ireat lirHaiii : ClIART.ES II. TuPrER.
The Secretary : A. ImuERT.
Translation eertitied to be accurate:
A. Baillv- Blanch ARD, } ,< ^, ^ ■
^^ ,, (o-S^evniarics.
U. CUNYNGIIAME, )
PIJOTOCHIL L.
MEETINO OF AVJCUNESDAY, JULY 5, 1893.
The Tribunal assend)led at 11.30 a. ni., all the arbitratois being
present.
The Honorable Edward J. Phelps resumed his argument.
At 1..'>U the Tribunal took a recess.
On reassembling, the Honorable l^'dward J. lMieI[»s continued his
argument.
At 1 p. m. the Tril)unal adjourned to the next day at 11.30 a. ul
Done at Paris, the 5th of July, 18!»3, and signed:
The President : ALI'IL DE COUROEL.
The A(jent for the I'nlted SIdtes: JOIIN W. FOSTER.
The A(jent for (Ireat nritiiiii: ClIARLES II. TUPPER.
The Seeretanj : A. IMBERT.
Translation eertitied to be aeeurate:
A. Bailly-Blancilvrd, ) ., ^, , .
H. CUJNYNGIIAME, )
PJJOTOCOL LI.
MEETING OF THURSDAY, JULY 0, 1893.
The Tribunal assembled at 11.30 a. m., all the arbitrators being
present.
The Honorable Edward J. Phelps resumed his argument.
At J. 30 the Tribunal took a reeess.
On reassembling, the Honorable Edward J. Phelps continued his
argument.
At 1 p. m. the Tribuinil_ adjourned to the next day at 11.30 a. m.
Done at Paris, the 0th of July, 1893, and signed:
The Pren'ident: AlPII. DE COURCEL.
The A(jent for the United States: JOHN W. FoSTER.
The A(jnit for (Ireat Jlrilain: ClIARLES H. TuPPER.
2 he Secretari/ : A. IJMRERT.
Translation certified to be acjcurate:
A. IjAilly-Blangiiaru, ) /, w , •
n. Cunynghame, )
B S — VOL I 4
50 PROTOCOLS.
PiiOTOCOL LII.
MEETINCI OF FlIIDAY, JULY 7, 1893.
Tiie Trilmiiiil asseuibled at 11.30 a. in., all the arbitrators bciiijr
present.
The Honorable Edward J. Plielps resumed his arj;anieut.
At 1.30 the Tribunal took a recess.
On reassembling, the Honorable Edward J. Phelps continued his:
argument.
At 4 p. m. the Tribunal adjourned to the next day at 2 p. m.
Done at Paris, the 7th of July, 1893, and signed:
Tlui Vrmdvnl: AlPIL DE COUIJCEL.
The J fjeiit for the United jStalcs: JOIIN W. EOSTKR.
The Arjciit for <h-eat Britain: (JlIARLES H. TurPER.
The Secretary : A. ImBERT.
Translation certified to be accurate:
A. Bailly-Blanchard, } ^ c, , • „
„ } Co- Secretaries.
n. OUNYKGHAME, )
PROTOCOL LIII.
MEETING OF SATURDAY, JULY 8, 1893.
The Tribunal assembled at 2 p. n)., all the arbitrators being
present.
The lloncnable Edward J.Phelps continued and concluded his argu-
ment.
Sir Cliailes Ivussell, in the name of his colleagues, thanked the
members of the Tribunal for the kind attention with which they had
followed the lengthy debates. He also thanked the secretary, cosecre-
taries, and assistant secretaries of the Tribunal, as well as the private
secretaries of the arbitrators for theii' obliging and useful assistance.
The Honorable Edward J. Plielps indorsed tiie I'emarks of 8ir
Charles llussell in the n;iine of counsel for the Government of the
United States. He referred, on behalf of all his colleagues, to the
ability and courtesy with which the president had directed the diseus-
sions, and he renewed the expression of their gratitude for the hospi-
tality of Era nee.
The i)resideiit thereupon announced that the Tribunal would take
the case under consideration.
Sir Charles Ilussell and the Honorable Edward J. Phelps expressed
their desire thai in case the Tribunal, during its deliberations, should
find it necessary to obtain from counsel any further information, the
re(]uest for such information and the answer thereto should be iu
writing.
PROTOCOLS. 51
The president replied tliat the Tribunal would takenote of the request
as far as possible, without however surrendering the right given it by
the treaty of requiring all such infornuition, whether oral, written, or
printed, as it might deem useful.
The agent of Her Britannic Majesty announced that the agent of the
United States and he would renjaiu in Paris at the disposition of the
Tribunal.
At 4 p. m. the Tribunal adjourned.
Done at Paris, the 8th of July, 1893, and signed:
The Prcnuh'ut: AlPIT. DE COURCEL.
The Afjent for the United States: JOHN W. FOSTER.
The Agent fur Great Britain: CHARLES H. TUPPER.
The Secretary: A. ImBERT.
Translation certified to be accurate:
A. Pailly Blanchard,
^^ ,^ , Co- Secretaries.
H. CUiMYNGlUAME,
PEOTOCOL LIV.
MEETINGS FRO]^I JULY 10 TO AUCfUST 14, 1893.
The Tribumil of Arbitration asseinbled with closed doors, all the
arbitrators being present, on Monday, July lOth, 1893, and deliberated
during successive meetings until Monday, August 14th, inclusive, upon
the questions submitted to its de(;ision.
During these deliberations Lord fJannen presented the following-
motion:
That the award of this Tribunal be given in the form following:
Whereas by a treaty between the United States of Americaand Great
Britain signed at >\'asliington ]<\'bruary 29th, 1892, the ratifications of
which by the (Jovernniei.ts of the two countries were exchanged at
London on ]\[ay the 7th, 1892, it was, amongst otiier things, agreed and
concluded, that the (piestions which had arisen between the Govern-
ment of the United States of America and the Government of Her
Britannic Majesty concerning the jurisdictional rights of the United
States in the waters of Bering Sea, and concerning also the preserva-
tion of the fur-seal in or habitually resm-ting to the said sea, and the
rights of the citizens and subjects of either country as regards the tak-
ing of fur-seals in or habitually resoi'ting to the said waters, should be
submitted to a Tribunal of Arbitration to be composed of seven arbi-
trators, who should be appointed in the following n)anner, that is to
say, two should bo named by the President of the United States; two
should be named by Her Britannic ^^ajesty; His Excellency the Presi-
dent of the French Republic sh((uld 1)0 jointly rcfpiested by the high
contracting x^artics to name one; llis JMajosty th". King of Italy should
52 PROTOCOLS.
be so reqiiested to name one; His ^lajesty the Kingj of Sweden and
Norway . should be so nMjuested to name one; the seven arbitrators to
be so named should be jurists of distinguished reputation in their
respective countries, and the selecting powers should be requested to
choose, if possible, jurists who are ac(iuaiiited with the English
language;
And whereas it was further agreed by Article II of the said treaty
that the arbitrators should meet at Paris within twenty days after the
delivery of the counter-case mentioned in Article IV, and should pro-
ceed imjtartially and carefully to examine and decide the questions
which had been or should be laid before them as in the said treaty pro-
vided on the part of the Governments of the United States jind of Her
Britannic Majesty respectively, and that all questions considered by
the Tribunal including the final decision should be deteriniued by a
majority of all the arbitrators;
xViid whereas by Article VI of the said treaty, it was further pro-
vided as foUows:
In (lecidini;- the matters subiiiittcil to the said arbitrators, it is aj^roed that the
following hve jioints shall be siibiiiitted to them in order t!iat theii award shall
embrace a distinct decision npon each of said live points, to wit:
1. What exclusive jnrisdiction in the sea now known as the Bering Sea, and what
exclusive riglits in the seal lishcries therein did Kussia assert and exercise prior
and up to the time of the cession of Alaska to the United States?
2. How far were these claims of jurisdiction as to the seal fisheries recognized and
conceded by Great Britain?
3. Was the body of water now known as the Bering Sea iTicluded in the phrase
Pacific Ocean as used in the treaty of 1825 between Great Britain and Russia; and
■what rights, if any, in the Bering Sea were held and exclusively exercis'.d by Russia
after said treaty?
4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in
Bering Sea east of the wattsr boundary in the treaty between the United States
and Russia of the 30th of March, 1867, pass nuiuipaircd to the United States under
that treaty?
5. Has the United States any right, and if so what right, of i^rotection or i>rop-
crty m the fur-seals frequeutiug the islands of the ITnited States in Bering Sea
when such seals are found outside the ordinary 3-niile limit?
And whereas by Article VII of the said treaty it was furtiier agreed
as follows:
If the determination of the foregoing questions as to the exclusive jurisdiction
of the United States shall h;ave the subject in such position that the concurrence
of (xreat Britain is necessary to the establishment of regulations for the proper ])ro-
tection and preservation of the fur seal in or habitually resorting to the Bering Sea,
the arbitrators shall tlien determine what concurrent regulations, outside the juris-
dictional limits of the respective Governments, are necessary, and over what waters
such regulations should extend;
The high contracting parties furthermoi-e agree to cooperate in securing the adhe-
sion of other i)owers to such regulations.
And whereas by Article VIII of the said treaty, after reciting that
the high contracting parties had fouiul themselves unable to agree upon
a reference which should include tlie question of the liability of each
PROTOCOLS. 53
for the injiuies alleged to liave been sustained by the other or by its
citizens in connection with the claims presented and urged by it, and
that "they were solicitous that this subordinate question should not
interrupt or longer delay the submission and determination of the main
questions," the liigh contracting parties agreed that "either of them
might submit to the arbitrators any question of fact involved in said
claims and ask for a linding thereon, the question of the liability of
either Government upon the facts found to be the sul)ject of further
negotiation";
And whereas the President of the United States of America named
the Honorable John M. Harlan, Justice of the. Supreme Court of the
United vStates, and the Honorable John T. Morgan, Sen ii tor of the
United States, to be two of the said arbitrators, and Her Britannic INIaj-
esty named the Eight Honorable Lord Haiinen and Sir John Tiu)mpson,
JVIinister of Justice and Attorney-General for Canada, to be two of the
said arbitrators, and His Excellency the President of the French llepnb-
lic named the Baron Alphonse de Courcel, Senator, Ambassador of
France, to be one of the said arbitrators, and His Majesty the King of
Italy named the Marquis Fmilio Visconti Vcnosta, former Minister of
Foreign Aifairs and Senator of the Kingdom of Italy, to be one of the
said arbitratojs, and Plis IVTajesty the King of Sweden and Norway
named Mr. Gregers Gram, Minister of State, to be one of the said arbi-
trators;
And whereas We, the said Arbitrators, so named and apiiointed, hav-
ing taken u])on ourselves tlie burden of the said arbitration, and having
duly met at Paris, ])ro(*eeded impartially and carefully to examine and
decide all the<|uestions submitted to us, the said arbitratm-s, under the
said treaty or laid before us as provided in the said treaty on the ])art
of the Governments of Her Britannic J\r;ijesty and the United States,
respectively:
Now We, the said Arbitrators, having im|)artially and carefully exam-
ined the said <piestions, do in like manner, by this our award, decide
and determine the said questions in manner following, that is to say,
we decide and determine as to the live points mentioned in Article VI
as to which our Award is to embrace a distinct decision upon each of
them:
As to the first of the said hve points. We, the said Arbitrators, do
decide and determine
As to the second of the said tlve i)()ints, We, the said Arbitiators, do
decide and determine
As to the third of the said five points, We, the said Arbitrators, do
decide and determine
As to the fourth of the said five points. We, the said Arbitrators, do
decide and determine
As to the fifth of the said five points, We, the said Arbitrators, do
decide and determine
54 PROTOCOLS.
And wliereas the aforesaid deterniiiiatioii of the foregoing questions
as to the oxchisive jurisdiction of the United States mentioned in
Article VI leaves the subject in such a i)ositi<)n that the concurrence
of Great Britain is necessary to the estabhslnnent of regulations for
the proper protection and preservation of the iur-seal in or habitually
resorting to the Bering Sea, We, the said Arbitrators, do thereupon
determine that the foUoM'ing concurrent regulations outside the juris-
dictional limits of the respective Governments are necessary and tliat
they should extend over the waters hereinafter mentioned; that is
to say
And whereas the Government of Her Britannic Majesty did submit
to the Tribunal of Arbitration under Article VIII of the said treaty
certain questions of fact iuvolved in the claims referred lo in the said
Article VIII and did also submit to us, the said Tribunal, a statement
of the said facts, as follows; that is to say
We, the said Arbitrators, do decide and determine
And whereaA each and every question which has been considered by
the Tribunal has been determined by a majority of all the arbitrators:
jS^ow we do declare this to be the final decision and award in writing
of this Tribunal, iu accordance with the treaty.
Made in duplicate at Paris and signed by us the day , iu
the year 181)3.
After an exchange of views between the Arbitrators, it was agreed
that the form ])repared by Lord Ilannen be adopted as a basis for the
wording of the award.
The preamble of this form having been nnaniiuously voted, without
modification, the arbitrators passed to the considei-ation of t!ie five
points mentioned iu Article VI of the treaty of February 2nth, ]8i)2.
As to the tirst point, relating to the rights exercised or claimed by
Eussia in Bering Sea, the arbitrators recognize that a distinction must
be made between difterent i)eriods.
After some discussion as to the events which preceded the ukase of
1821, it was decided that these might be left aside as not being
material to the decision of the questions submitted to the Tribunal.
In consequence, Baron de Courcel presented the following pioject of
decision :
By tlie ukase of 1821, Russia claimed jurisdiction iu the sea now known as tlic
Bering's Sea, to the extent of 100 Italian miles from the coasts ami islands belonj;in,f]j
to her, but, iu the course of the negotiations which led to tlie conclusion of tlie
treaties of 1824 witli tlie United States and of ISlT) with Great Britain, Russia
admitted that her jurisdiction in the said sea should he restricted to the reach of
cannon shot from shore, audit appears that, from tliat timi> up to the time of tlie
cession of Ahiska to the United States, Russia never asserted in fact or exercised
any exclusive jurisdiction in Bering's Sea or any exclusive rights in the seal iishcries
therein beyond the ordinary limit of territorial waters.
This was adopted by a majority composed of Baron de Courcel, Mr.
Justice Harlan, Lord Hannen, Sir Jolm Thompson, Marquis Visconti
PROTOCOLS. 55
Venosta and Mr. Gregers Gram. Senator Morgan voted againt^t it,
reserving unto himself to propose an amendment, when the second ])oint
would have been considered.
As to the second of the said five points mentioned in Article VI, tlie
following' decision was adopted by a miijority composed of tlie Baron
de Courcel, Mr. Justice II;u"lan, Lord Ilannen, Sir John Thompson,
Marquis ^'isconti Venosta, and Mr. Gregers Gram:
Great Britain did not recognize or concede any claim, upon the part of Russia, to
exchisive jurisdiction as to the seal lisherics in Bering Sea, outside of ordinary
territorial waters.
Senator Morgan voted against and presented the following motion as
a substitute for the decisions as to tlie two lirst i)oints:
1. From the time tliat Russia first discovered and occupied Boring Sea and the
coasts and islands thereof, until she ceded a portion thereof to the United States,
slie claimed tlie seal lisheiies in Bering Sea and exercised, exclusively, the right to
the usufruct, and to own the jiroduct of such seal iisheries, and to protect the same
against lieing interfered with, in those waters, hy the people of any other country;
and also tlie exclusive jurisdiction that was found necessary for those ]>iiiposes; j,nd,
also, the exclusive jurisdiction to regulate the hunting of fur-seals in tliose waters;
and to grant the right of hunting them, to her own suhjects.
2. The attitude of Russia towards the fur-seal fisheries in Bering Sea, as descrihed
above, being known to Great Britain, she acquiesced in the same without objection.
This motion was negatived by all the arbitrators except Senator
Morgan.
As to the third of the said five points mentioned in Article VI, it was
agreed that the two questions therein contained should be considered
se])arately.
On the lirst of these questions the following decision was unanimously
ado[)ted:
The body of M'ater now known as the Bering Sea was included in the ])liraso
"Pacific Ocean" as used in the treaty of 1825 between Great Britain and Russia.
On the second of these questions the following decision was adojited
by a mnjority com])osed of Baron de Courcel, ^Ir. Justice Harlan, Lord
Hannen, Sir John Thom])Son, Marfjuis Visconti Venosta, and Mr.
Gregers Gram, Senator Morgan voting in the negative:
No exclusive riglits of jurisdiction in Bering Sea and no exclusive rights as to seal
fisheries therein, were held or exercised by Russia outside of ordinary territorial
waters after the treaty of 1825.
Baron de Courcel remarked that, in adhering to the decision which
had just been adopted, his intention is to state the ])osition held by
Bussia in the Bering Sea oidy in aslar as it has been pi-esentcd for the
consideration of the Tribunal of Arbitration by the two (lovernments
Avho have (xnistituted tlie said Tribunal, and that he by no means
intends to prejudge the ap])reciation made by Russia herself, as that
])ower has not Ixmmi heard by the Tribunal, nor placed in such a situa-
tion as to make her views known to the same.
56 PROTOCOLS.
As to tlie fourth of the said live points mentioned in Article VI, the
followinj^- decision was i)roi)ose(l by Lord Jiannen:
That all tLe rights of Russia as to jurisdiction and as to the seal fisheries in
Bering Sea east of the water bonndary in the treaty between tlie United States and
Russia of the 30th March, 18G7, did pass nnimpaired to the United States under the
said treaty.
This proposition was nnaniniously ado^jtcd.
As to the ilftli of the said live points mentioned in Article VI, the
following decision was proposed by Lord llannen:
The United States has not any right of jjrotectiou or property in the fnr seals fre-
quenting the islands of the United States in Bering Sea, when snch seals are found
outside the ordinary S-uiile limit.
Tliis proposition was ado])tod l)y a majority, composed of Baron de
Conrcel, Lord llannen, Sir Jolin Thonipson, Marquis Visconti Venosta,
aud Mr. Gregors Gram. Mr. Justice Harlan and Senator Morgan voted
in the negative, and stated that, in their opinion, the United States
owned the herd of seals which frequented the islands of the United
States in Bering Sea, and were entitled to employ for their protection,
when found outside the ordinary 3 -mile limit, the same means that an
individual might legally employ for the protection of his property. They
also stated tliat in tlieir opinion, independently of any right of proi)erty
in the fur-seals themselves, the United States, as the owner and pro-
l)rietor of the industry conducted on the Pribilof Islands, and which
industry consisted in taking fur-seals on those ishmds for connnercial
purposes, had the right to protect these animals against being taken
in the open w.iters of Bering Sea and the North Bacific Ocean outside
of territorial waters, by any method, such as pelagic sealing, which
Avould necessarily extenninate the race.
Senator Morgan thereupon submitted the following nuition:
I propose to amend the proposed aAvard and decree by inserting, after the words
not mil/, the word special, and at the end of the proposed award and decree, the
following words: "heyond iher'ufltts that all ualious liavc under the hiteiiKilioiial law, in
rcftpect of Helf-proleciion and self-defense."
So that the entire award, as to point five in Article VI of the treaty, would read as
follows, viz: .-/,s 1o He fifth of ihe said x>oin1s, tre, heiiig a majoritu of the said arhiira-
lors, do decide and delermiiie that ihe United States has iiot any special riyht of protection
or property in the fnr seals frequenting ihe islands of the United Stales in Bering Sea,
v-hen snch seals are found outside the ordinary 3-mile limit, heyond ihe rights that all
nations hare, niider tlie international law, in respect of self-protection and self-defense.
Mr. Justice Harlan and Senator Morgan voted in favor of this amend-
ment, stating thai sis their views, as above set forth, upon the question
of pro])erty and protection, were not accepted by the majority, they
would prefer the :inswer to the tit'ih point to be in the words indicated
by the last amendment- ])roi)()sed by Senator Moi-gan, rather than in
the Avords approved by the miijoi-ity.
Lord llannen, Sir John Thompson, IManpiis Visconti Venosta, aud
J\lr. Gregers Gram voted against the proi)osed aiueudment.
PROTOCOLS. 67
Baron de Conrcel abstained fioui voting-.
In coiiseiiuence the aineiuliiieiit proposed by Senator Morgan was
rejected.
Mr. Gregers Gram here expressed the desire that it be well under-
stood that tlie Tribunal, in answering as it has done the foregoing-
questions, did not propose to decide what are, according to the princi-
ples of international law, the ordinary limits of territorial waters.
The arbitrators concur that tliey do not feel themselves called on to
decide what, according to the principles of international law, are the
ordinary limits of territorial waters.
Those limits have been assumed for the purposes of the award to be
3 miles fiom the coast, in accordance witli the wording of the litth ques-
tion of Article VI of the treaty.
Senator Morgan here asked that the following morion be taken into
consideration:
I move that the Trihnnal of Arhitration i^roceed in sucli order as may he p]'o])cr,
hefore a final award is made in the case, to consider and deckire the ri,i;hts of the
citizens and subjects of either country as regards the taking- of lur-seal in or resort-
ing to tlie waters of Bering Sea.
This inquiry and decision includes the entire; herd that resorts, hahitu.illy, in the
sunnner and autumn, to the islands of St. Paul and St. George, in leering Sea.
The answers given to the live points stated in Article VI of the treaty do not, in
my .iudgment, answer the question above stated, which the treaty provides shall be
submitted to the Tribunal of Arbitration; and an award that does not specifically
answer that (juestion can not be "a full, perfect, and iiual settleiucnt of all the
questions referred to the arbitration.''
I would proceed to point out the grounds and reasons on which I base this motion,
bnt I am aware that, in the opinions delivered by a majority of the arbitrators, I hey
consider either that this (pie.stion is not required by the tueaty to be specifically
answered or that it has been answered, in effect, by a decision of a majority of the
Tribunal upon the fifth point stated in Article VI of the treaty, under which the Tri-
bunal is actiug.
This motion gave rise to a debate.
Mr. Justice Harlan atul Senator Morgan voted for its adoption.
Baron de Conrcel, Lord Ilannen, Sir John Tliompson, Maiquis Yis-
conti Yenosta, and Mr. Gregers Gram, constituting a majoiity of the
arbitrators, considered that the answers to all the questions referred to
in Article I of the said treaty are to be found in the decisions which
have been rendered upon the five points mentioned in Article VI, and
voted against tliis motion.
In cofisequence, the motion was rejected.
The arbitrators, having reached this point of tlieir deliberations, con-
curred in liolding that the decisions rendered by tliem on Uie ([iiestioiis
as to tlie exclusive jurisdiction of the United States, mentioned in
Article VI of the treaty, "leave the subject in sm-h position that the
concurrence of Great Britain is necessary to the estal)]isliment of
regulations for the proper protection and preservation of the fur-seal
in or habitually resorting to the Bering Sea."
58 ' PROTOCOLS.
In coiiscquoiice they dccidcil t(» pass to the consideration of the con-
cun-ent leguhitions called for l)y Article VII of the treaty.
Mr. Justice Harlan pre-enicd the follo\vin<i' draft of resolution:
Jlcsolrcd, That tli(> pnrixj.so of Article VII of the treaty is to .secure, in any and all
events, the jirniicr jiroteition iiud preservation of the herd of seals frequenting the
Pribilof Islands; and in the iVaniing of regnlations, nnder the treaty, uo extent of
pelagic sealing should bo allowed which will seriously endanger the acconiplish-
uient of that end.
Senator lAro/ijan and ^Ir. Justice Harlan voted for the adoption of
this resolution.
Lord Hanneu and Mr. Greyers Gram declared that tliey abstain<Hl
from voting because they found the jiropositiou submitted to be of too
abstract a character.
Sir Johu Thompson declined to vote on the following', among other
grounds: "That the treaty does not give power to the Tribunal to make
the provisions which may be ue(;essary in any and all erents for the
l)reservation of the seals, notably as to the preservation of the seals
on their breeding grounds."
Marijuis Visconti Venosta voted against the i)ro])Osition.
He remarked that, in order to secure the preservation of the fur seals,
the regulations onght to proN'ide a system of enactments ai)i)licable to
the whole area, where, on land as well as at sea, is (leveloi)ed the life
of the seals resorting to Uering Sea, and to be equally accepted by all
nations the citizens of whicli might compete in pelagic sealing. Such
regulations, however, would go beyond the powers of the Tribunal as
delined by the treaty.
The; resi»onsibility of the arbitrators as to the result of their labors was
necessarily bounded by the limits of their mandate; they might simjjly
prescribe such measures, as they would judge consistent with the cir-
cumstances and with the decisions which they might have taken ou the
questions of right, and express the wish that these regulations receive
their necessary complement within the limits of the territorial Jurisdic-
tion of the two countries, and that they become the object of an under-
standing with the other nations.
Baron de Courcel vofed against the i)roposition, because he looked
ui)Oii it, as did Lord Ilannen and Mr. Gregers Gram, as being too
abstract, and also, because in his opinion, the treaty, when it prescribed
the establishment of regulations for the proper protection and preser-
vation of the fur-seals, intended that given circumstances should be
taken into account; his view was that tlie preservation of this specaes
of animals sliould be regulated, not in the absolute interest of the
species, but in the interest of the human industries of which it is the
object, without the TribuiuU having to distinguish between the nature
of these ditlerent industries, whether they be exercised on land or
whether they be engaged upon at sea, and without it having to favor
one to the detriment of the other.
PROTOCOLS. 59
In consoqnence, the resolution offered by Mr. Justice Harlan was
rejected.
Mr. Justice Harlan then inesented the following motion:
This Tribunal has power, and it is its duty, nuder the treaty, to prescribe such
coucurreut regnhitious, coveviug the waters, outside the jurisdictional limits of the
two countries, of both Bering Sea and the North Pacific Ocean, traversed by the
fur-seals in, or habitually resorting to, Bering Sea, as may be found necessary for
the ])roper protection and preservation of such seals, even if such regulations, when
sanctioned by legislation of the two Governments, should, by reason of tlieir express
provisions, or l)y their practical operation, result in preventing the hunting and
taking of these seals during the seasons Avhen the condition of said waters admits
of fur-seals being taken Ijy pelagic sealers.
Senator Morgan and Mr. Justice Harlan voted in favor of this motion.
Lord Haniien declined to vote on the ground, amongst others, that
the arbitrators are not called on to vote on abstract questions apart
from the facts as to which their decision is to be given.
Sir John Thompson declined to vote, for the following, among other,
reasons:
Tliat the views of the several arbitrators on this and other abstract questions relat-
ing to regulations have been better expressed during the deliberations of the past
weeks than in the form of the present resolution.
Mr. Gram abstained from voting on the ground that the resolution
proposed will have for him no practical value, as his vote on regula-
tions will not in any way be affected by such question.
Marquis Visconti Venosta likewise abstained from voting.
He believed that the treaty, in its Article VII, had in view the
restriction and not the j)rohibition of the exercise of the right of pelagic
sealing on the high sea. He was disx)osed to vote for efficacious meas-
ures in order to prevent what might be essentially destructive for the
species in this fishing. But after having recognized the right, he did
not feel authorized, by the interpretation of the treaty, to suppress it
l)ractically, either by an absolute prohibition or by measures which
would be equivalent thereto.
Baron de Courcel might agree to the principle expressed in the
motion, but declined to vote upon it as being purely abstract.
The motion was in consequence not adopted.
The Tribunal then proceeded to the drafting of the text of the con-
current regulations which it was charged to determine by virtue of
Article VII of the treaty.
Mr. Justice Harlan submitted the following draft, of which Senator
Morgan expressed his approval:
Articlk 1. No citizen or subject of the United States or Great Britain shall in any
manner kill, capture, or pursue anywhere upon the seas, within tlie limits and bound-
aries next hereinafter prescribed for the operation of this regulation, any of the
animals commonly called fur-seals.
AuT. 2. The foregoing regulation shall apply to and extend over all those waters,
outside the jurisdictional limits of the above-mentioned nations, of the North Pacific
60 PROTOCOLS.
Ocean and Bering Sea wliicli are nortli of the tliirty-fiftli parallel of north latitude
and east of the one hundred and eightieth meridian of longitude from Greenwich.
Art. 3. Every vessel or person offending against these regulations may be seized
and detained by the naval or duly commissioned officers of eitiier the United States
or Great Bi-itain, but they shall be handed over as soon as practicable to tlie author-
ities of the nation to which they respectively belong, who alone shall have jurisdic-
tion to try the offense and impose penalties for the same. The witnesses and proot
necessary to establish the offense or to dis^irove the same found on the vessel shall
also be sent with them.
Art. 4. Every person guilty of violating those regulations shall, for each oftense,
be lined not less than $200 nor more than $1,000, or imprisoned not more than six
montlis, or both; and vessels, their tackle, apparel, I'urniture, and cargo found
engaged in violating these regulations shall lie forfeited and condemned.
Sir John Thompson submitted the following draft:
Article 1. No sealing except by licenses, which are to be issued at two United
States and two Canadian ports on the Pacific Coast.
These lieenses to be granted only to sailing vessels, and not to be graiited earlier
than a date that would correspond with the 1st of May in the latitude of Vic-
toria, B. C.
Art. 2. Each vessel carrying such license to use a distinctive flag and to keep a
record in the official log of the number of seals killed or wonnded, and the locality
in which the hunting takes place, from day to day, all such entries to be filed with
the collectors of customs on the return of the vessels.
Art. 3. The use of rifles and nets in seal fishing is prohibited.
Art. 4. The killing of seals to be prohibited within a zone of 30 miles from the
Pribilof Islands, and within a zone of 10 miles around the Aleutian Islands.
Art. 5. The killing of seals to be prohibited in Bering Sea (east of the line of
demarcation adojited in the treaty of cession irom Russia to the United States)
before the 1st of July and after the 1st of October in each year.
Art. 6. The foregoing regulations shall be brought into force from and after a day
to be agreed upon by Great Britain and the United States, aoid shall continue in
operation for ten years from the above day; and, unless Great Britain ov tlie United
States shall, twelve months before the expiration of the said jieriod of ten years,
give notice of intention to terminate their operation, shall continne in force one
year longer, and so on from year to year.
Senator Morgan submitted the following paper:
I adhere to the position taken by the United States, that pelagic sealing shonld
be prohibited north of 35 degrees north latitude, and in order to nnule no interfer-
ence with any (]uestion that may concern the substantial interest of Russia east of
180 degrees longitude from Greenwich.
I believe that this is the only really effective method of protecting and preserving
these seals; but, if the Tribunal shall jirefer the plan of iirotectionaud preservation
that has for its basis a close season, I respectfully insist that the use of firearms and
explosives in such hunting should be prohibited under effective penalties, as well
for the neeessai'y protection and preservation of the seals as for the protection of
human life and the iireservation of peace; for joint hunting, or the hunting in a com-
mon right and in the same waters, of these valuable animals will produce conflicts
and bloodshed, and may rcsnlt in international conflict once the use of firearms is
sanctioned by the laws that are to l)e enacted by these two Governments to carry the
award of the Tribunal into eflect. There is no possible restraint or limit that can
be placed on their destructive use; this is a doom of the seals; that is as certain as
that the genius of man, in killing the seals, is almost infinitely snjjerior to the
instinct of self-preservation in the seal, and to its capacity to escape the pursuit of
PROTOCOLS. 61
iiien in boats, nriiied with the brcoeli-loiuliiii;' (loiible-barrelcd sliotginis, with c^liu-
dor c;utridj;es.
Baion (le Courcel, Miuqiiis Mscoiiti Veiiosta, and Mr. Gregers Gram,
luniiig, witli tlio assent of their colleagues, i)repare(l a draft of concur-
rent regulations intended to be submitted to the Tribunal, presented,
in tin ir eolleetivH' names, the draft, of which the text is as follows:
Articlk 1. The Govi'Viuneiits of the United States and of Great Britain aliall for-
bid tlieir citizens and subjects, respectively, to kill, capture, or pursue at any time,
and in any manner whatt^'Cr, the animals connnonly called fur-seals within a zone
of ()0 miles around tlie Pribilof Islands, inclusive of the territorial w^aters.
The miles menlioned in the preceding paragra})!! are geograiihical miles, of 60 to
a degree of latitude.
Airr. 2. The two Governments shall forbid their citizens and subjects, respectively,
to kill, capture, or pursue, in any manner whatever, during the season extending
each year from the 15th of April to the 31st of July, both inclusive, the fur-seals on
the high sea in the part of the Pacific Ocean, inclusive of the Bering Sea, which is
situated to the north of the thirty-fifth degree of north latitude.
Akt. 3. During the period of time and in the waters in whic'li the fur-seal fishing is
allowed only sailing vessels shall be permitted to carry on or take part in fur-seal
fishing operations. They will, however, be at liberty to avail themselves of the use
of canoes or small lioats, propelled Avholly by oars.
AUT. 4. The sailing vessels authorized to iish for fur-seals must be provided with
a special license issued for that purpose by its Government, and shall be required to
cany a distinguishing fiag to be lU'cscribi^d by its Government.
Art. 5. The masters of the vessels engaged in fur-seal fishing shall enter accu-
rately in their official log book the date and place of each fur-seal fishing operation,
and also the nuni1)er and sex of the seals captured, upon each day. These entries
shall be communicated by each of the two Governments to the other at the cud of
each fishing season.
AuT. 6. Tlie use of nets, firearms, and explosives shall be forbidden in the fur-seal
fishing. This restriction shall not apply to shotguns when such fishing takes place
outside of Bering Sea.
AiiT. 7. The two Governments shall take measures to contrcd the fitness of the
men authorized to engage in fur-seal tishing; these men shall have been proved fit to
handle with sul'licient skill the weapons by means of which this fishing may bo
carried on.
AuT. S. The regulations contained in the preceding articles shall not a])i>ly to
Indians dwelling on the coasts of the territory of the United States or of Great
Jb-ifaiu, and carrying on in their canoes, at a small distance from the coasts where
they dwell, fur-seal fislung.
AuT. !». The concurrent regulations hereby determined Avith a view to the protec-
tion and preservation of the fur-seals shall remain in force until they have been, in
A\ hok', or in part, abolished or modified by common agreement between the Goveru-
uients of the United States and of Great Britain.
The said concurrent regulations shall be submitted every five years to a new
examination, so as to enable both interested governments to consider whether, in
the light of past experience, there is occasion for any modification thereof.
Baron de Courcel developed, on behalf of his two colleagues and in
his name, the reasons in support of the preceding draft.
The Tribunal decided to take, as a basis of its deliberations upon the
concurrent regulations which it was required to i)repare, the wording-
presented collectively by Baron de Courcel, Marquis Visconti Venosta,
and Mr. Gregers Gram.
62 PROTOCOLS.
The arbitrators then proceeded to eotisider article 1 of this draft.
Sir Jolm Thompson moved, as an amendment, that the i)rohibited
zone around the Pribih)f Ishmds be 30 miles, inclnding territorial
waters.
This amendment was rejected by tlie vote of a majority, comi)osed of
Baron de Gourcel, Mr. Justice Harlan, Senator Morgan, Maripiis
Visconti Yenosta, and Mr. Gre.uers Gram. Lord Hannen declared
that, after much hesitation, and although considering that serious
reasons recommended the adoption of a zone of 30 miles, he adhered
to the vote of the majority.
The text of article 1 was adojjted in conformity witli the draft by all
the arbitrators with the exc-eption of Sir John Thompson.
As to article 2, Sir John Thompson moved the following amendment:
"That the date of April 3 5th, mentioned in the draft, be changed to
May 1st," and stated at lengtli his views in support of the amendment.
Mr. Justice Harlan and Senator Morgan voted against this amend-
ment. They 'concurred in stating that the proper i)r()tection and preser-
vation of these fur seals could not be certainly secured except by a pro-
hibition of pelagic sealing in all the waters traversed by those animals
north of 350 of north latitude and east of 180° of longitude from Green-
wich. But as the closed time from April 15th to July 31st, in connec-
tion with other provisions, gave some hope that this race might be
saved from destruction by pelagic sealing, and as that period had been
recomiiiended by the arbitrators from France, Italy, and ]S"orway, they
had, in the interest of conciliation only, expressed their willingness to
accept the clcsedtime proi)osed by Baron de Gourcel, Marquis Visconti
Venosta, and Mr. Gregers Gram in the original draft submitted by
them, Bnt they objected to the i)roi)osed change from April 15th to
May 1st as one that would put in peril the existence of this race of
animals, and teiul to defeat its proper protection and preservation.
The duty of the Tribunal, they said, was to prescribe such regidations
as would properly protect and preserve this race, whatever eifect such
regulations might have upon the business of pelagic sealing.
The anuMidment presented by Sir rlohn Thompson was sustained by
Lord Hannen, Marquis Visconti Venosta, antl Mr. Gregers Gram,
Baron de Gourcel declared that he seriously objected to an extension
of the season open to pelagic sealing during the spring, because it was
during that season that ])elagic sealing, attacking pregiumt females,
was most destructive; nevertheless he thought proper to vote for the
amendment of Sir John Thompson in a spirit of conciliation and so
as to secure in its general outlines the adoption of the draft actually
submitted to the consideration of the arbitrators, and whicli he is not
unaware imposes strict limitations upon the taking of fur seals on the
high sea.
In consetpience, the aiuendiuent of Sir John Thom[)son to insert th"
date of ^lay 1st instead of tiiat of Ai)ril 15th in article 2 was adopted.
PROTOCOLS. 63
Sir Joliii Tlu)iii])S()i) tlicn iii;>\r(] a sicnnd aiiieiKlinoiit, worded as
follows:
That tlic words : From Maij lat lo Juhj Slut bu struck out and replaced hy the words :
From Jcniuarif lut to JitJji Lst.
Mr. Justice Harlan and Senator IMorjian expressed tliemselves
sti'ongly against allowing pelagic sealing during the month of July,
and voted against the aniendnient.
Lord Hanneu abstained tenii)orarily from expressing an opinion.
Marquis Visconti Venosta found it difficult to accept the date of
July 1st. In case a majority of the arbitrators adhered in princii)le to
the amendment of Sir John Thomi)son, he wouhl ask that this date be
replaced by that of July IHth. It was during the month of July that
the work of reproduction of tlie seals took p'ace, chietly during the
tirst fortnight of that month, during which many of the gravid fenmles
were still on the track between the i)asses of the Aleutian Islands and
the Pribilof group.
r>ut, he said, the (juestion of tlie close season was, according to his
view, intimately connected with that of the prohibition of the use of
firearms.
The establishment of a closed season, extending from January to
July, meant that practically there would be no pelagic sealing outside
of IJering Sea, and that the use of lirearms being, according to Article
VI of the project, prohibited in that sea, all iielagic sealing in future
would only be allowed by means of spears or harpoons.
He had already had occasion to make known his ])oint of view. He
felt disposed to place serious limitations upon pelagic s(;aling, but he
did not intend to suppress it, neither in principle nor in ])iaetice;
neither opetdy, nor by indirect means. He did not think that the
Tribunal could withdraw by the regulations all that it had conceded by
its decisions on the (piestions of right.
He did not possess sufticient information to form an opinion in regard
to the practical effect of the prohil)ition of lirearms and the exclusive
use of spears and harpoons. If the i)rohibition in (juestion had ai)plied,
as was i^roposed in the j)roject, to one zone only of ])elagic sealing, the
consequences, whatever they might have been, would have affected but
one portion of the fisheries; and in this way the prohibition would have
been but a restriction. But if it was to be applied to all pelagic seal-
ing, he could not fVn-esee its consequen(;es any longer, and under such
conditions he would be compelled to reserve his vote respecting the
interdiction of the use of firearms.
He would feel inclined rather to examine whether, in acce])ting- a
closed season from January 1st to July 15th, in place of the said prohibi-
tion, it would not be suitable to decide that every three years pelagic
sealing be suspemled for the period of a whole year. This would be
only a restriction, the consefpieiu-es of which he would feel prepared
to appreciate, at least by comparison.
64 PROTOCOLS.
Mr. Gram tlioiiglit, like Marquis Visconti VeDOsta, that pelagic seal-
ing on the high sea during the month of July would attack necessarily
a great number of pregnant females and would in consequence be very
prejudicial. He voted against the amendment.
Baron de Courcel declared that he was disposed to accept this amend-
ment, because he considered i^elagic sealing in the spring as essentially
detrimental to the preservation of the species of fur seals. According
to his notion the close season for fnr-seal tishing should extend until
July loth, at which time the total number of fenmles, save some unimpor-
tant exceptions, had arrived at the Pribilof Islands to deliver their
young; but he would cheerfully make the sacrifice of the fifteen lirst
days in July to obtain the relinquishment of all pelagic sealing in the
spring.
The second amendment of Sir John Thompsou was consequently
negatived by a majority of the arbitrators.
]]aron de Courcel then moved the following amendment as a compro-
mise:
That tb(3 words : From May 1st to July Slst be rei)l:ic'ed by the words : From Jauuurij
1st to July 10th.
Sir John Thompson declared that as, in his opinion, the Tribunal did
not x)ossess sufticient information to determine whether the abandon-
ment of the right to fur-seal lishing during the four months of winter
and spring, in which it was conceded by the regulatiou previously
adopted, ^ould be sufliciently compensated by the addition of the short
season formed of the three last weeks of the month of July, he declined
to assume any responsibility in regard to this, and abstained from voting
for the })r()posed amendment.
Lord Haiinen abstained for the same reasons as Sir John Thompson.
Tiie otiier arbitrators maintained their objections against any pelagic
sealing during the month of July.
In conse(|uence the anuMidment was not adopted.
Lord Ilannen asked that the extent of waters in which fur-seal fishing
would be forV)idden each year during the close season, limited to the
south by the tliirty-tifth degree of north latitude, be likewise limited to
the west by the adoption of a boundary line, in default of which Kussia
and Japan would be called upon to benefit gratuitously of the herd of
seals frequenting their waters, by the prohibition im])osed upon the sub-
jects ami citizens of Great Britain and of the United States.
He moved in consequence to insert in Article 2, after the words:
North of the tliirty-fifth degree of north latitude^ the words : and, eastirard
of the one h^mdred and eightieth degree of longliudefrom Greenicieh till it
strikes the water boundary described in Article I of the treaty of 1867
hetn-een the United States and Russia, and following that line up to Bering
Straits.
Baron de Courcel staled that if the authoi-s of the draft had abstained
from indicating a western boundary as claimed by Loi'd Haunen, they
PKOTOCOLS. 65
had Ro acted out of rog^ard for liussia and Japan, powers not repre-
sented before the Tribunal of Arbitration, and toward the waters of
whom it appeared not equitable to drive back the Englisli and Ameri-
can pelagic searlers during the whole time of the close season. Never-
theless, as far as he Avas coni'erned he did not desire to do anything
which might be prejudicial to the position of Great Britain or of the
LTnited States in the negotiation which the Governments of these two
countries might engage ultimately with Eussia and Japan. In conse-
quence he accejited the amendment proposed by Lord llannen.
This amendment was unanimously agreed to.
The whole of article 2 of tlie draft, modified and com])leted by the
two amendments which had been made to it, was voted affimatiNcly by
the Baron de Courcel, Lord lianncn, Sir Jolni Thompson, Marquis Vis-
con ti Veuosta, and JMr.Gregers Gram. Mr. Justice Harlan and Senator
Moi'gan voted in the negative.
The text of article 3 of the draft, after an exchange of views between
the arbitrators, was modified in its last part. In place of the woi-ds:
Ciiiiocs or small boats propcUcd icholly J>y oars, the follov.ing words were
substituted: Canoes or uiulcclcd boats, propelled by paddles, oars, or
sails, as are in eommon use as Jlsliimj boats.
Tliis article, as modified, was agreed to.
Article 4 of the draft was unanimously agreed to in its entirety.
Article 5 was also unanimously agreed to.
As to article 6 it was aslced that the two phrases composing it bo
considered and voted upon separately.
The first phrase, wor<led as follows: The use of nets, firearms, and
explosives shall be forbidden in the fur-seal fishing, was voted in the
affirmative by Baron de Courcel, Mr. Justice Harlan, Senator Morgan,
.Marquis Visconti Venosta, and ]\Ir, Gregei's Gram.
Sir John Tiiompson voted in the negative.
Lord llannen abstained, reserving unto himself to vote on the whole
article.
The second phrase was worded as follows: This restrietion sh<tll not
apply to shotf/Kvs ndien such fishing taJccs place outside of Bering >S'e^f.
This provision was objected to by Sir John Tiiompson, who opposed
the iH'ohibition of shotguns in Bering's Sea or elsewhere; it was
adopted by a majority of the arbitrators composed of Baron de Coui-
cel. Lord Haiinen, Marquis Visconti Venosta, and Mr. Gram.
Mr. Justice Harlan and Senator Morgan abstained from voting,
olijectiug to the use of shotguns at all or in any of tlie waters traversed
by these fur-seals.
The Tribunal decided that, in order to avoid a i)ossible ambiguity,
article <> would be completed by tlie addition of the foHowing words, to
be inserted at the end of the second phrase: during the season iche7i it
may he lawfully carried on.
Article 6 as a wdiole Avas vote4 for by a majority formed of Baron dp
B s-~yoL I— §
66 PROTOCOLS.
Courcel, Lord Hiinneii, Marquis Yiscoiiti Venosta, mid Mr. Grogers
Grain. Mr. Justice narlaii, Senator Morgan, and Sir Jolm Thompson
voted against it.
The text of article 7 gave rise to observations from several of the
arbitrators, bearing upon the practical difficulty of obtaining a strict
execution of this article. Nevertheless, that article was voted for by a
majority composed of all the arbitrators, with the exception of Sir
John Thompson, who voted against it.
As to article 8, Senator Morgan movofl to strike out the whole of the
said article. Tliis motion was negatived, Mr. Justice Harlan and Sen-
ator Morgan alone voting for it.
Mr. Justice Harlan expressed a desire to have the whole of article 8
stricken out, but as that could not be done, he proposed to substitute
the following text in place of that of the draft:
The Regulations contained in tlie preceding articles sliall not npply to Indians
dwelling on the coasts of the territory of the United States or of Great Britain and
carrying on fur-seal fishing with spears or harpoons only, in canoes or undecked
boats not trans]>orted by or used in connection with other vessels and propelled
wholly by paddles or oars and manned by not more than two persons each in the way
anciently practiced by the Indians, provided such Indians are not in the employment
of other persons, and provided that, when so hunting in canoes or undecked boats,
they shall not hunt fur-seals outside territorial waters under contract for the
delivery of the skins to any person.
This exemption sliall not be construed to affect the municipal law of either conn-
try, nor shall it extend to the waters of Bering Sea or the waters of the Aleutian
Passes.
The arbitrators unanimously decided to take as a basis for the word-
ing of article 8 the text submitted by Mr. Justice Harlan.
Sir John Thom])son moved to strike out of that text the words: irith
spears or harpoons only.
This suppression was voted by a. majority composed of Baron de
Courcel, Lord Haiinen, Sir John Thompson, Marquis Visconti Venosta,
and Mr. Gregers Gram.
Mr. Justice Harlan and Senator Morgan voted against the sup])res-
sion asked for, because they had the strongest objections to the use ol
tirearins by the Indians at any time or in any waters.
Sir John Tliompson moved to substitute for the words: by paddles or
oars, the words: by paddles., oars, or sails.
The proposed amendment Mas adopted by the Tribunal, Mr. Justice
Harlan and Senator Morgan voting in the negative.
Sir John Thompson projiosed to substitute for the words: manned by
not more than two persons each, the words: nuorned by not more than
Jive persons each.
This amendment was voted by a majority formed of Baron de Courcel,
Lord Haunen, Sir John Thompson, Marquis Visconti Venosta, and Mr,
Gregers Gram.
Mr. Justice Harlan and Senator Morgan voted against it.
PROTOCOLS. 67
Mr. Justice Harlan moved as a couipromise to substitute for the
words five persons^ the words three persons.
This modification, opposed by Sir John Thoiiii)Son, was negatived
by the same majority which had voted tlie amendment.
Sir John Thompson moved to substitute for the words: in the way
anciently practiced, the words: in the way hitherto practleed.
This amendment was opposed by Mr. Justice Harlan and Senator
Morgan, and was voted by a majority formed by all the other arbitrators.
vSir John Thompson moved to add to the text before the Tribunal a
paragraph worded as follows:
Xothing herein eontainedis intended to interfere with the employment of
Indians, as hunters, or otherwise, in connection 7vith fur- sealing vessels as
heretofore.
This addition was unanimously adopted.
Senator Morgan proposed to add at the end of the secoiul paragraph
of article 8, atter the words: or the waters of the Aleutian Passes, the
following words: Nor shall it be operative in favor of such Indians prior
to the 1st January, 1895.
This proposition, supported by Senator IVForgan and Mr. Justice Har-
lan, was ne^'atived by a majority of the arbitrators formed of Baron
de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti
Venosta, and Mr. Gregers Gram.
As to article 9, Sir John Thompson moved to substitute for the text
acfually being considered by the arbitrators the text which appeared
as article C of the draft of regulations proposed by himself and which
reserved to the two Governments of Great Britain and of the United
States the right of denouncing the regulations to be established at
the end of a period of ten years, and then from year to year.
After deliberation, the arbitrators, other than Sir John Thompson,
decided to reject this motion, and continued to the consideration of the
text of article 9, presented by Baron de Courcel, Marquis Visconti
Venosta, and Mr. Gregers Gram.
This text was voted by all the arbitrators, with the exception of Sir
John Thompson, who voted against it.
The Tribunal having thus settled the wording of each of the articles
intended to api)ear in the regulations ])repared in conformity with
Article Vll of the treaty of h'ebrnary 29, 1892, decided to proceed to
vote upon the whole of the nine articles of these regulations.
The whole of the regulations as amended were voted by Baron de
Courcel, Lord Hannen, JMarquis Visconti Venosta, and Mr. Gregers
Gram.
Sir John Thompson, Mr. Justice Harlan, and Senator Morgan voted
against them as an entirety, although approving certain parts of them.
In consequence, the whole regulatioiis were adopted, and the
Tribunal decided to incorporate the text in the award, with the follow-
ing statement preceding it:
68 ^ PROTOCOLS.
And wlieriMis the aforesaid detcriniuation of tlie forcffoiiiif (|ne.stioiis as to the
exclusive^ jiii'isdiction of tlie United States mentioned in Article VI leaves the sub-
ject in such a posilion lliat tiie concnrrence ol'(!reiit ;'ritain is necessary to the
estahiislimcnt of rei;ulations I'or tlie proper protection and preservation of the fnr-
seal in or habitually resorting to the Hering Sea, the 'I'libnnal having decidetl by a
majority as to each arti'-le of tlic I'ollowing regulations, Ave, the said Baron de
Conrcel, Lord ii.iiinen. Mai(|ui.s V'iscouti Venosta, and Mr. Gregers Gram, assenting
to the Avhole of tlie nine articles of the following regulations, and being a majority
of the said arbitrators, do decide and Tleternnne in the mode provided by the treaty,
that the following concurrent regulations outside the jurisdictional limits of the
respective Governments are necessary, au<l that they should extend over the waters
liereinafter menlioned, that is to say:
The arbitiators tlu'ii i)roc('eded to the coiisideiatioii of a project of
declarations, in connection with the res^'nlations, wliicli Baron de Conrcel
in liis name, as in that of Marqnis Visconti Venosta and Mr. Gregers
Gram, i)roposed to the Tribnnal to refer to the Governments of the
United States and Great Britain for their consideration. This project is
worded as folloAvs:
Deduralioiis made hi/ ihe Trihuval of Arhitratinn and referred to tlie Governments of the
United Stales and Great Britain for their consideration.
I.
The arbitrators declare that the concurrent regulations, as determined upon by
the Tribunal of Arbitration, by virtue of Artich; VII of the Treaty of tin? 29th of
February, 1S92, being ap])licable to the high sea only, should, in their ojnnion, bo
supplemented by other regulations applicable within the limits of the sovereignty
of each of the two powers interested and to be settled by their common agreement.
II.
In view of the critical condition to which it appears certain that the race of fur-
senls is now reduced in consequence of circumstances not fully known, the arbi-
trators think tit to recommend both Governments to come to an understanding in
order to prohibit any killing of fur-seals, either on land or at sea, for a period of
two or three years, or at least one year, subject to such exceptions as the two Gov-
ernments might lihink proper to adnut of.
Such a measure might be recurred to at occasional intervals if found beneficial.
III.
The arbitrators declare moreover that, in their opinion, the carrying out of the
regulations determined upon by the I'ribunal of Ai-bitration, should be assured by a
system of stipulations and measures to be enacted by the two powers; and that the
Tribunal must, in consequence, leave it to the two powers to decide upon the means
for giving elfect to the regulations determined upon by it.
We do certify this English version to be true and accurate, and have signed the
same at Paris this — — day of August, 1893.
The first and third of the proposed declarations were nnaniinously
ado])ted without modification.
As concerns the second, Lord Hannen, althongh approving the spirit
in which it is cone 'ved, and although regarding as very desirable that
the destruction of fur-seals might be entirely suspended during a certain
PROTOCOLS. 69
period of time, so as to enable nature to retrieve tlie losses which this
race of animals has undei'.yone, declared that he does not feel authorized
by the terms of his mandate to express an ojunion ou the subject.
Sir Joliu Thompson looked upon the subject in the same light as
Lord Hauneu.
The other arbitrators ado])ted the secoud declaration and it was
decided that the text of tlic three declarations should be handed, at
the same time as the award, but in a separate document, to the agents
of the two Governments of the United States of Auujrica and of Great
Britain, to be transmitted by them to their resijective Governments.
Passing to the consideration of the questions of fa»;t which had been
referred to it by the Britannic Government, by virtue of Article VIII
of the treaty of February 29lh, 18!)2, the Tribunal noticed that the
agent and counsel of the Government of the United States had
admitted that the statement of facts submitted by the agent of the
(rovernment of Great Britain was contirmed by the evidence, and had
declared themselves in accord with the agent and counsel of the Gov-
ernment of Great Britain to leave it to the Tribunal to declare and
pronounce true, as far as it might judge proper, the said statement of
facts.
The arbitrators, after deliberating, in consequence, ui)()n the facts
submitted to the Tribunal, decided unanimously that the said facts, as
related in the above mentioned statement, are true.
The arbitrators then proceeded with the final wording of the award,
so as to make the award agree with each of the decisions arrived at by
a majority of votes on each of the questions submitted to the Tribunal,
taking as a basis of this wording, as it had been agreed, the form pre-
pared by Lord Hannen.
It was distinctly agreed that the arbitrators who found themselves
in the minority on certain (juestions were not to be understood as with-
drawing their votes. Under this reservation, the final text of the
award was fixed and settled, by a unanimous vote of the arbitrators,
in the form annexed to the present })rotocol.
The Tribuiuil decided, unanimously, that in conlbrmity with the
directions of the treaty of February 2!)th, 1892, two copies of the award
should be prepared and signed to be handed to the two agents of the
United States of America and of Great Britain, and that a third copy
should also be prepared and signed to be filed in the archives of the
arbitration, which will remain confided to the French (Jovernment.
A similar decision was adopted as regards the declarations.
Mr. Justice Harlan then sul)mitte(l the following motion, which was
adopted by a unaninuuis vote of the arbitrators:
The right is reserved to each iuMtiatm- to lile with the secretary of tliis Trihimal,
at any time after its adjoiuiinieut, and before the 1st day of January, 189i, an o])in-
ion or opinions upon the ((U(^'^tion8 or any of tliem 8u))rnitt(!d for d(^ternliuation, and
such opinion or opinions shall bo regarded as an annex to this protocol.
70 PROTOCOLS.
The Tribunal docided to meet on Tuesday, Anf>nst loth, at 10 a. m.,
Avith rdosed doors, for the signature of the award and the dedarations,
and innnedintely thereafter, in public nieetnig, for the delivery of the
award and the declarations to the agents of the two Governments.
Done at Paris, the 11th of August, 1S03, and signed:
The Frc^iiiUut: AlPH. DE CoUKOEL.
TheStcreiory: A. ImEEHT.
Translation certiiied to be accurate:
A. Bailly-Bi.anchaed, )
H. CUNYNGHAME, i Co- Secretaries,
PROTOCOL LV.
]VrEETING OF TUESDAY, ATIGUST 15, 1893.
The Tribunal assembled, with closed doors, at 10 a. m., all the arbi-
trators being ]>resent.
The seven arbitrators signed the final award of the Tribunal, in trip-
licate copies, on i)archment, one of these copies being ior each of the par-
ties, in conformity with the directions of the treaty, and the third, by
virtue of a previous decision of the Tribunal, to be ])reserved in the
archives of the arbitration confided to the safekeeping of the French
Government.
The original text was a'ccomiianied by an English version, which the
seven arbitrators have certified by their signatures thereto as being true
and accurate.
The seven arbitrators also signed, in triplicate copies, on parchment,
the declarations to be referred by them to the two Governments of the
United States and of Great Britain ami certified the English version
thereof to be true and iiccurate.
Lord Hannen and Sir John Thompson, while signing, stated in
writing that they aj)i)roved only Declarations I and III.
The arbitrators then considered a re(]uest which had Ix^en trans-
mitted to them by the agents of the Llnited State^s and of Great
Britain, to settle the allowances which it would be proper to make to
the secretaries who had assiste<l the Tribunal in its labors, and drew
111) ^ statement of these allowances, which was handed to the agents
of the two Governments, through the; care of Mr. Justice Harlan and
of Sir John Thompson.
At 11 o'clock the meeting with closed doors came to an end and was
immediately followed by a public meeting.
All the arbitrators were present, also the agents of the Governments
of the United States of America and of Great Britain.
Upon the request of the president, Mr. Imbert, secretary of the
Tribunal, handed to the Honorable John W . Foster, agent of the Gov-
PROTOCOLS. 71
eminent of the United States of America, the signed copy of the
award of the Tribunal intended for the Government of the United
States.
Mr. Imbert then handed to the Honorable Charles II. Tapper, agent
of Her Britannic Majesty, the signed copy of the award of the Tri-
bunal intended for the Government of Her Britannic Majesty.
The two copies of the declarations of the arbitrators, signed by them
aud intended for the Governments of tbe United States of America and
of Great Britain, were handed in the same form to the agents of the
two Governments.
Tiie president then sijoke as follows:
Gentlemen: Now we liave como to the end of our task. We have done our best
to accomplish it, without concealiug from ourselves the diHiculties which compli-
cated it, nor the heavy respousihilities which it has imposed upon us. Selected
from various nationalities, we have not considered ourselves the representatives of
any one in particular, nor of any government or any humau power, but, solely guided
by our conscience and our reason, we have wished only to act as one of those coun-
cils of wise men, whose duties weie so carefully defined by tlie old capitularies of
France.
To assist us, we have had at our disposition a library of documents, compiled
with extreme care, and in order that we might not lose our way among so many
sources of information, men holding a high rank among the most learned jurists
and eloquent orators of which the Old or New Worlds could boast have been will-
ing so liberally to bestow upon us their advice.
During weeks and months our labors have been prolonged, and it constantly
appeared that some new matter had risen before us aud that some new problem
pressed upon our attention.
To-day, on this great holiday, we are assembled to inform you of the result of our
abors, hoping with all our hearts that they uuiy be profitable to man, and conform-
able to the designs of Him who rules his destiny.
We know that our work is not perfect; we feel its defects, which must be inherent
in all huuuin efforts, and are conscious of its weakness, at least in certain points
as to which we had to base our action on circumstances necessarily liable to change.
The declarations which we offer to-day to the two agents, and which we hope will
be taken into consideration by their Governments, indicate some of the causes of
the necessary imperfection which we have mentioned.
We have felt obliged to nuiintain intact the fundamental principles of that august
law of nations, which extends itself like the vault of heaven above all countrit^s,
and which borrows the laws of nature herself to protect the peoples of the earth,
one against another, by inculcating in them the dictates of mutual good will.
In the regulations which we were charged to draw up we have had to decide
Ijetween conflicting rights and interests which it was difficult to reconcile. The
Governments of the United States of America and Great ]5ritain have promised to
accept and execute our decisions. Our desire is that this voluntary engagement
may not cause regret to either of them, though we have required of both sacrilices
which they may, perliaps, regard as serious. This part of our work inaugurates
great innovation.
Hitherto, the nations were agreed to leave out of special legislation the vast
domain of the seas, as in times of old, according to the poets, the earth itself was
common to all men, who gathered its fruits at their will, without limitation or con-
trol. You know that even to-day, dreamers believe it possible to bring back huniau-
ity to that golden age. The sea, however, like the earth, has become suuill for men,
who, like the hero, Alexander, and no less ardent for labor than he was for glory,
72 PROTOCOLS.
feel confined in a, world too narrow. Onr work is a finst attempt at a sliaring of the
products of the ocean, which has liitherto been undivided, and at applying a rule
to tilings which escaped every other law but that of the fii'st occupant. If this
attempt succeeds, it will doubtless be followed by numerous imitations, until the
entire planet, until the waters as well as the continents will have become the sub-
ject of a careful partition. Then, perhaps, the conception of property may change
amongst men.
Before laying down the mandate which we have received in trust from two great
Goveruments, we desire to otfer our gratitude to all those whose elforts had for their
object to facilitate the accomplishment of our task, and esjiecially to the agents and
counsel of the tw^o Governments of the United States of America and Great liritain.
And, now, a Frenchman may be Y>ermitted to use a word which his ancestors
emx)loyed when they sung the lay of their great Em]>eror, aiid to say to :ill of you:
Gentlemen, may you retaiu a kind remembrance of sweet France!
Loid Ilaiiuen, tlion addressing the president, said:
Mr. de Courcel, on behalf of your late colleagues, I have to express my great
regret that the absence of the President of the French Republic and Mr. Devjdle
from Paris prevents our waiting upon them before leaving this city w'here we have
been so kindly treated. We must therefore beg you, ay the French member of the
late Tribunal of Arbitration, to convey to the President and to the French Govern-
ment the expression of our sentiments of iiroiound gratitude for the gracious recep-
tion and generous hospitality which they have extended to us. Our thanks are
specially due to Mr. Develle, who, so much to his own inconvenience, has provided
us in thisi)alace with so splendid a domicile, and we offer liim our apologies for having
so long, though involuntarily, trespassed on his kindness.
And now, Mr. de Courcel, I have to discharge a duty Avhicli gives me peculiar
satisfaction. I have to express to you our high appreciation of the manner in which
you have pi'tisided over our deliberations. The public has had the opportunity of
witnessing the sagacity, the learning, and the courtesy with which you have guided
the ]iroceedings during the arguments. Your colleagues only can know how greatly
those qualities have assisted us in our private conferences. Let me add, that our
intimate relations Avith you have taught us to regard yon with the warmest esteeni
and att'cction. I'crmit me to say^ that you have won in each of us an attached friend.
I must not ('(mclude without an allusion to the remarkable occasion which has
brought ns together. AVe trust that the result will prove that we have taken part
in a great historical transaction fruitful ia good for the world. Two great nations,
in submitting their differences to arbitration, have set an example which I doubt
not will be followed from time to time by others, so that the scourge of war will be
more and more repressed. Few can be so sanguine as to expect that all international
quarrels will be speedily settled by arbitration, instead of by the dread arbitrament
of war; but each occasion on which the peaceful method is adopted will hasten the
time when it will be the rule and not the exception.
One of our poets has said that every prayer for universal peace avails to expedite
its coming.
We have done more than join in such a sni»plication ; we may hope that we have
been the humble instruments through whom an answer has been granted to that
prayer which I doubt not ascends from the hearts of th(!se two kindred nations, that
peace may ibrever prevail between them.
I bid you heartily iarewell.
Seuator Morgan then addressed tlie l'(»lh)\\iiig remarks to ex])resshis
vshare in the sentiments which Lord Uanneii had Jnst interpreted:
The arbitrators on the part of the United States most sinceiely unite in the very
hapi)y expressions that have fallen from Lord Ilanueu, of grateful api)reciation of
PROTOCOLS. 73
the si)leuclid. Lospitality of the FiiMicli (iuveriiment and people. We have been their
guests for uiauy montlis, aud have been uiulei" the shelter of their laws and iu the
presence of their grand and beautiful civilization, and during all that time we have
felt that our welcome did not cease to be cordial.
If we should take a iiiwrow view of the results of this arbitration, the United
States would have a regret that the important judicial questions we have been con-
sidering were not stated in a broader form iu the treaty between these great Powers.
The opportunity was offered when the treaty was iu process of foiniation to have
presented iu a more e(|uitab]e Hglit the rights of the nations to whose islands and
coasts the fur-seals habitually resort for places of abode and shelter in the sunuuer
season; to control and jirotect them uuder tlie legal rules and intendiuents tiiat
ajjjily universally to the animals that are classed as domestic, or domesticated ani-
nuils, because of their usefulness to men.
My colleague aud I concurred iu the view that the treaty presented this subject
for consid(!ration in its broadest aspect. Our honorable colleagues, liowever, did
not so construe the scope of the duty prescril)ed to the Tribunal by the treaty. They
considered that these questions of the right of i)roperty and jirotection in resjjcct to
the fur-seals were to be decided upon tlie existing state of the law, aud, liuding no
existing precedent iu the international law, they did not feel warranted in creating
one.
As the rights claimed by tlic United States could only be supported by interna-
tional law, iu their estinuition, and inasmuch as that law is silent on the subject,
they felt that under the treaty they could find no legal foundation for the rights
claimed that extended beyond the limits of the territorial jurisdiction of the United
States.
This ruling made it necessary to resort to the power conferred upon the Tribunal
to establish, by the authority of both (ilovernmeuts, regulations for the preservation
and protection of the fur-seals, to which the treaty relates. In tliis new and unti-ied
lield of experiment, much embarrassment was found in conllicting interests of an
important character, and yet nmre difficulty iu the uncertainty as to the facts ui)on
which regulations could be based that would be at once just to those interests, and
would iitford to the fur-seals proper preservation and protecti(Ui.
The United States will fully understand aud appreciate those difhculties, and will
accept the tiual award as the best possible result, uuder existing conditions. A veiy
large measure of protection is secured by the regulations adopted by the Tribunal
to the Alaskan herd of fur-seals; and the virtual repression of the use of tirearms iu
])elagic sealing is an earnest and wise guaranty that those common interests may bo
pursued without putting in serious peril the peace of the two countries.
It is a great pleasure to the arbitrators appointed on the part of the United States
that they can bear the highest testimony to the ability, integrity, jiatience, industry,
and judicial impartiality of their colleagues in this Tribunal.
Our labors have been arduous aud protracted, but have been attended with uni-
form courtesy and good feeling on the ]iart of all the nuMubers of tlui Tril)unal.
We hope for still broader and l)etter results from the foundations we have laid iu
this new lield of international agreements.
To the president of the Tribunal we owe a debt that we gratefully acknowledge,
that he has so patiently and with such disi iuguislied ability discharged the diflicult
duties of hia position.
The agents of the respective Goveruuients have jirepan^l, at great ex])ense of
labor and with unusual skill aud industry, every available fact that would throw
any light upon the luatters in controversy, aud the counsel have dealt with the great
masses of evidence so prepared with that marked ability for which they have
become renowned upon other occasions. Conscious of having done all we could to
reach conclusions that are just and will be salutary, we close our labors in the hope
that they will be acceptable to all nations.
74 PROTOCOLS.
The j)resident thereupon said that he cheerfully accepted the mission
to transmit to the President of the French Eepublic and to Mr. Develle
the thanks of the members of the Tribunal.
He thanked personally Lord Hannen and Senator Morgan for the
sentiments which they had exi^ressed concerning himself.
He then announced that the Tribunal had closed its labors, and at
12 m. the Tribunal adjourned sine die.
Done at Paris, the 15th of August, 1893, and signed:
The President : ALPH. DE CoURCEL.
The Agent for the United States : JOHN W. FOSTER.
The Afjent for Great Britain: ClIARLES H. TUPPER.
The Secretary : A. ImbeRT.
Translation certified to be accurate:
A. BAILLY-BLANCHARD, ) Co-Seeretaries.
H. OTTTVYNftnAME. )
H. CUNYNGHAME,
AWARD
OK
THE TRIBUNAJ. OF ARBITRATION
CONSTITUTED
UNDER THl^ TREATY CONCLUDED AT WASHINGTON,
THE 29TH OF FEBRUAEY, 1892,
BETWEEN
THE UNITED .STATES OF AMERICA
AND HER MAJESTY THE QUEEN OF THE UNITED KINGDOM
OF GREAT BRITAIN AND IRELAND.
Whereas by a treaty between tlie United States of America and
(xreat Britain, signed at Wasbiiigton, February liU, 180li, the ratifica-
tions of which by the Governments of the two countries were exchanged
at London on May tlie Ttli, 1S92, it was, amongst other things, agreed and
(•oncluded tliat the questions whicli had arisen betweeiL the Govern-
ment of the United States of America and the Government of Her
Britannic Majesty, concerning the jurisdictional riglits of the United
States in the waters of Bering's Sea, and concerning also the preser-
vation of the fur-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-seals in or iiabitually resorting to the said waters, should
be submitted to a Tribunal of Arbitration, to be composed of sevea
Arbitrators, who sliould be appointed in the following manner — that is
to say: Two should be named by the President of the United States;
two should be named by Her Britannic Majesty; His Excellency the
President of the 1^'iench Kepnblic should be jointly requested by the
High Contracting Parties to name one; His Majesty the King of Italy
.should be so requested to name one; His Majesty the King of Sweden
and Norway should be so requested to name one; the seven Arbitrators
to be so named should be jurists of distinguished reputation in their
respective countries, and the selecting Powers should be refpiested
to choose, if possible, jurists who are acquainted with the English
language;
And whereas it was further agreed by Article II of the said Treaty
that the Arbitrators should meet at Paris within twenty days after the
75
76 AWARD AND DECLARATIONS.
delivery of the Couuter-Cases inentioiied in Artii^tle IV, and slionld
proceed impartially and carefully to examine aud decide tbe questions
wbicb had been or should be laid before them as in tbe said Treaty
provided on tbe part of tbe Governments of the United States and of
Iler Britannic Majesty, res])ectively, and that all questions considered
by the Tribunal, including- the linal decision, should be determined by
a majority of all the Arbitrators;
And whereas by Article VI of the said Treaty, it was further pro-
vided as follows:
In deciding tlio matters submitted to tbe said Arbitrators, it is agreed that tlio
following live points shall be submitted to tliem, in order that their award shall
embrace a distinct decision upon each of said live points, to wit:
1. What exclusive jvirisdictiou in the sea now known as the Bering's Sea, and what
exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and
up to the time of the cession of Alaska to the ITuited States f
2. How far were these claims of jurisdiction as to the seal fisheries recognized and
conceded by Great Britaiu?
3. Was the body of water uow known as the Bering's Sea included in the phrase
Pacific Ocean, as used in the Treaty of 1825 between Great Britaiu and Russia; aud
what rights, if any, iu the Bering's Sea were held and exclusively exercised by Russia
after said Treaty ?
4. Did not all the rights of Russia as to jurisdiction aud as to the seal tisheries iu
Bering's Seaeastof the water boundary, in the Treaty between the tluited States aud
Russia of the 30th of March, 1867, pass uuim]iaired to the Uuited States uuder that
Treaty?
5. Has the Uuited States any right, aud if so, what right of protection or projierty
in the fur-seals frequenting the islands of the Uuited Sta' es in Bering Sea when such
seals are found outside the ordinary three-mile limif?
Aud wiiereas, by Article VII of the said Treaty, it was further agreed
as follows :
If the determiuation of the foregoing questions as to the exclusive jurisdiction of
the United States shall leave the subject in such ]iosition that the concurrence of
Great Britain is uecessary to the establishment of Regulations for the pro])er ])rotec-
tiou aud preservation of the fur-seal in, or habitually resorting to, the Bering Sea,
the Arbitrators shall then determine what concurrent Regulations, outside the juris-
dictional limits of the respective Governments, are uecessary, and over what waters
such regulations should extend;
The High Contracting Parties furthermore agree to cooperate iu securing the
adhesion of other Powers to such Regulatious;
And whereas, by Article VIII of the said Treaty, alter reciting that
the High Contracting Parties had found themselves unable to agree
upon a reference which should include the question of the liability of
each for the injuries alleged to have been sustained by the other, or by
its citizens, in connection with the claims presented and urged by it,
and that " they were solicitous that this subordinate question should
not interrupt or longer delay the submission aud determ.iuation of tbe
main questions," the High (lontracting Parties agreed that "either of
them might submit to the Arbitrators any (juestion of fact involved in
said claims aud ask for a finding thereon, the question of the liability
AWARD AND DECLARATIONS. 77
of either Goverinneut upon tlie facts found to be the subject of further
neofotiation ;''
And whereas the President of the United States of America named
the Honorable John M. Harhm, Justice of the Supreme Court of the
United States, and the Honorable John T. Morgan, Senator of tlie
United States, to be two of the said Arbitrators, and Her Britannic
Majesty named the Eight Honorable Lord Hannen and the Honorable
Sir John Thompson, minister of justice and attorney- gen era! for Can-
ada, to be two of the said Arbitrators, and His Excellency the Presi-
dent of the French Eepnblic named the Baron de Courcel, Senator,
Ambassador of France, to be one of the said Arbitrators, and His
Mnjesty the King of Italy named the Marquis Emilio Visconti Venosta,
former Minister of Foreign Affairs and Senator of the Kingdom of
Italy, to be one of the said Arbitrators, and His Majesty tlie King
of Sweden and Norway named Mr. Gregers Gram, minister of state,
to be one of the said Arbitrators;
And whereas We, the said Arbitrators, so named and appointed,
having taken upon ourselves the burden of the said Arbitration, and
ha^dng duly met at Paris, proceeded impartially and carefully to exam-
ine and decide all the questions submitted to us, the said Arbitrators,
under the said Treaty, or laid before us as provided in the said Treaty
on the i)art of the Governments of Her Britannic Majesty and the
United States, respectively;
Kow We, the said Arbitrators, having impartially and carefully
examined the said questions, do in like manner by this our Award
decide and determine the said questions in manner following, that is to
say, we decide and determine as to the fivei)oints mentioned in Article
VI as to which our Award is to embrace a distinct decision upon each
of them :
As to the first of the said five points. We, the said Baron de Courcel,
Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Vis-
conti Venosta, and Mr. Gregers Gram, being a majority of the said Arbi-
trators, do decide ami determine as follows:
By the Ukase of 1821 Russia claimed jurisdiction in the sea now
known as the Bering's Sea to the extent of 100 Italian miles from the
coasts and islands belonging to her, but, in the course of the negotia-
tions which led to the conclusion of the Treaties of 1824 with the
United States and of 1825 with great Britain, Russia admitted that
her jurisdiction in the said sea should be restricted to the reach of can-
non shot from shore, and it appears that from that time up to tlie time
of the cession of Alaska to the United States Russia never asserted
in fact or exercised any exclusive jurisdiction in Bering's Sea or any
exclusive rights in the seal fisheries therein beyond the ordinary limit
of territorial waters.
As to tlie second of the said five points, We, the said Baron de Cour-
cel, Mr. Justice Harlau, Lord Hauuen, Siv Joha TUompsou, Marquis
78 AWARD AND DECLARATIONS.
Visconti Yenosta, and Mr. Gregers Gram, being a majority of the said
Arbitrators, do decide and determine tliat Great Britain did not recog-
nize or concede any claim, upon the i^art of Jinssia, to ex(!lusive juris-
diction as to the seal fisheries in Bering Sea, outside of ordinary terri-
torial waters.
As to the third of the said five points, as to so much thereof as
requires us to decide whether the body of water now known as the
Bering Sea was included in the jVhrase " racitic Ocean " as used in the
Treaty of 1825, between Great Britain and Russia, We,tlie said Arbitra-
tors, do unanimously decide and determine that the body of water now
known as the Bering Sea was included in the phrase "Pacific Ocean "
as used in the said Treaty.
And as to so much of the said third i)(»int as requires us to decide
what rights, if any, in the Bering Sea were held and exclusively exer-
cised by Russia after the said Treaty of 1825, We, the said Baron de
Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Mar-
quis Visconti Venosta, and Mr. Gregers Gram, being a majority of the
said Arbitrators, do decide and determine that no exclusive rights of
jurisdiction in Bering Sea and no exclusive rights as to the seal fisheries
therein were held or exercised by Russia outside of ordinary territorial
waters after the Treaty of 1825.
As to the fourtli of the said five points. We, the said Arbitrators, do
unanimously decide and determine that all the rights of Russia as to
jurisdiction and as to the seal fisheries in Bering Sea, east of the water
boundary, in the Treaty between the United States and Russia of the
30th March, 1867, did pass unimpaired to the United States urnler the
said Treaty.
As to the fifth of the said five points, We, the said Baron de Courcel,
Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr.
Gregers Gram, being a majority of tlie said Arbitrators, do decide and
determine that the United States has not any right of protection or
property in the fur seals frequenting the islands of the United States
in Bering Sea, when such seals are found outside the ordinary three-
mile limit.
And whereas the aforesaid determination of the foregoing questions
as to the exclusivejurisdiction of the United States mentioned in Arti-
cle VI leaves the subject in such a position that the concurrence of
Great Britain is necessary to the establishment of Regulations for the
proper protection and preservation of the fur-seal in or habitually
resorting to the Bering Sea, the Tribunal having decided by a majority
as to each Article of the following Reguhitions, We, the said Baron de
Courcel, Lord Hannen, Marquis Visconti Venosta, and Mr. Gregers
Gram, assenting to the whole of the nine Articles of the following
Regulations, and being a majority of tlie said Arbitrators, do decide
and determine, in the mode r»rovided by the Treaty, that the following
AWARD AND DECLARATIONS. 79
concurrent Kegiilations outside the jurisdictional limits of the respec-
tive Governments are necessary and that they should extend over the
waters hereinafter mentioned; that is to say:
Article 1.
The Governments of the United States and of Great Britain shall
forbid their citizens and subjects res[)ectively to kill, capture, or pnrsue,
at any time and in any manner whatever, the animals commonly called
fur seals, within a zone of sixty miles aroniid the Pribilof Islands,
inclusive of the territorial waters.
The miles mentioned in the pieceding paragraph are geographical
miles of sixty to a degree of latitnde.
Article 2.
The two Governments shall forbid their citizens and subjects respec-
tively to kill, capture, or pursue, in any manner whatever, during the
season extending, each year, from the 1st of May to tlie 31st of July,
both inclusive, the fur seals on the high sea, in the part of the Pacilic
Ocean, inclusive of the Bering Sea, which is situated to the north of
the 35th degree of North latitude, and eastward of the 180th degree of
longitude irom Greenwich till it strikes the water boundary described
in Article 1 of the Treaty of 1807 between the United States and Eus-
sia, and following that line u]) to Bering Straits.
Article 3.
During the period of time and in the waters in which the fur seal
fishing is allowed, only sailing vessels shall be i»ermitted to carry on or
take iKirt in fur-seal fishing operations. They will, however, be at lib-
erty to avail themselves of the use of such canoes or undecked boats,
propelled by paddles, oars, or sails, as are in common use as fishing
boats.
Article 4.
Each sailing vessel authorized to fish for fur seals must be provided
with a special license issued for that purpose by its Government and
shall be required to carry a distinguishing- flag to be prescribed by its
Government.
Article 5.
The masters of the vessels engaged in fur seal fishing shall enter
accurately in their official log book the date and place of each fur seal
fishing operation, and also the number and sex of the seals captured
upon each day. These entries shall be communicated by each of the
two Governments to the other at the end of each fishing season.
80 AWARD AND DECLARATIONS.
Article G.
TIio use of nets, flreiirms, and explosives shall be forbidden in the
Inr seal iishin^-. Tliis restiiction shall not apply to shotguns when
such fishing takes place outside of Bering's Sea, during the season wiien
it may be lawiully carried on.
Article 7.
The two (lovernnients shall take measures to control the fitness of
the men authorized to engage in fur seal fishing; tliese men shall have
been j^roved tit to haiidh3 with sutlicicnt skill the weapons by means of
which this (ishing may be carried on.
Article 8.
The regulations contained in the preceding articles shall not apply
to Indians dwelling on the coasts of the territory of the United iStates
or of Great Britain and carrying on fur seal fishing in canoes or
undecked boats not transported by or used in connection with other
vessels and propelled wholly by paddles, oars, or sails, and manned by
not more than five persons each, in the way hitherto practiced by the
Indians, provided such Indians are not in the employment of other
persons, and provided that, when so hunting in canoes or undecked
boats, they shall not hunt fur seals outside of territorial waters under
contract for the delivoy of the skins to any person.
This exemption shall not be construed to affect the nninicipal law of
either country, nor sliall it extend to the waters «f Bering yea or the
waters of the Aleutian Passes.
Xothing herein contained is intended to interfere with the emi)loy-
ment of Indians as hunters or otherwise in connection with fur sealing
vessels as heretofore.
Article 9.
The concurrent regulations hereby determined with a view to the
protection and i)reservation of the fur seals shall remain in force untd
they have been, in whole or in part, abolished or modified by common
agreement between the Governments of the United States and ot
Great Britain.
The said concurrent regulations shall be submitted every five years
to a new examiinition, so as to enable both interested Governments to
consider whether, in the light of past experience, there is occasion for
any nu)dification thereof.
And whereas the Government of Her Britannic Majesty did submit to
the Tribunal of Arbitration by Article VIII of the said Treaty certain
questions of fact involved in the claims referred to in the said Article
VIII, and did also submit to ns, the said Tribunalj s^ statement of the
said facts, as follows, that is to say ;
AWARD AND DECLARATIONS. 81
Findings of fact propased hi/ ihv Aijenl of Great Britain and ajreed to as proved hy the
Agent for the United ^States, and sn1)iniited to the Tribunal of Arbitration for its
consideration.
1. That the several senrches and seizures, whether of ships or goods, and the sev-
eral arrests of masters aud crews, respectively nieiitioiied in the Schedule to the
British Case, pages 1 to 60, inclusive, were made by the authority of the United
States Government. The questions as to the value of the said vessels or their con-
tents, or either of them, ami the question as to whether the vessels mentioned in the
Schedule to the British Case, or any of them, were wholly or in part the actual prop-
erty of citizens of the United States, have been withdrawn from and have not been
considered by the Tribunal, it being understood that it is open to the United States
to r-aise these questions, or any of them, if they think fit, in any future negotiations as
to the liability of the United States Government to pay the amounts mentioned in the
Schedule to the Brstish Case;
2. That the seizures aforesaid, with the exception of the " rathfiuder," seized at
Neah-Bay, were made in Bering Sea at the distances from shore mentioned in the
Schedule annexed hereto marked "C;
3. That the said several searches and seizures of vessels were made by public
armed vessels of the United States the commanders of which had, at the several
times when they were made, from the Executive Department of the Government of
the United States, instructions, a copy of one of which is annexed hereto, marked
"A", and that the others were, in all substantial respects, the same: that in all the
instances in which proceedings were had in the District Courts of the United States
resulting in condemnation, such proceedings were begun by the filing of libels, a
copy of one of which is annexed hereto, marked "B", and that the libels in the
other proceedings were in all substantial respects the same: that the alleged acts
or offenses for which said several searches aud seizures were made were in each case
done or committed in Bering Sea at the distances from shore aforesaid: and that in
each case in which sentence of condemnation was passed, except in those cases when
the vessels were released after condenmation, the seizure was adopted by the Gov-
ernment of the United States; and in those cases in which the vessels were released
the seizure was made by the authority of the United States; that the said fines and
imprisonments were for alleged breaches of the nuinicipal laws of the United States,
which alleged breaches were wholly committed in Bering Sea at the distances from
the shore aforesaid;
4. That the several orders mentioned in the Schedule annexed hereto and marked
" C " warning vessels to leave or not to enter Bering Sea were made by public armed
vessels of the United States the commanders of which had, at the several times
when they were given, like instructions as mentioned in finding 3, aud that the ves-
sels so warned were engaged in sealing or prosecuting voyages for that purpose, and
that such action was adopted by the Government of the United States;
5. That the L^istrict Courts of the United States in which any proceedings were had
or taken for the purpose of condemning any vessel seized as mentioned in the Sched-
ule to the Case of Great Britain, pages 1 to 60, inclusive, had all the jurisdiction and
powers of Courts of Admiralty, including the prize jurisdiction, but that in each
case the sentence pronounced by the Court was based upon the grounds set forth in
the libel.
B 8 — VOL I (5
82 AWARD AND DECLARATIONS.
AxxKX A.
Treasury Departmi<:xt, Office of the Secretary,
Washington, Jjiril 21, 18S6.
Sir: Referring to Departmeut letter of this date, directing yon to proceed with
the revenue steamer Bear, under your command, to the seal islands, etc., you are
hereby clothed with full power to enforce the law contained in the provisions of
Section 1956 of the United States Revised Statutes, and directed to seize all vessels
and arrest and deliver to the proper authorities any or all persons whom yon may
detect violating the law referred to, after due notice shall have been given.
You will also seize any liquors or fire-arms attempted to be introduced into the
country without proper permit, under the provisions of Section l'J55 of the Revised
Statutes and the Proclamation of the President dated 4th February, 1870.
Respectfully yours,
(Signed) C. S. Faihchild,
Acting Secretary.
Capt. M. A. Healy,
Commanding Revenue Steamer Bear, San Francisco, California.
Annex B.
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF ALASKA.
AUGUST SPECIAL TERM, 1886.
To the ITonorahle Lafayette Dawson, Judge of said District Court:
The libel information of M. D. Call, Attorney for tlie United States for the District
of Alaska, who prosecutes on behalf of said United States, and being present here
in Court in his proper person, in the name and on behalf of the said United States,
against the schooner Thornton, hev tackle, ap})arel, l)oats, cargo, and furniture, and
against all persons intervening for their interest therein, in a cause of forfeiture,
alleges and informs as follows:
That Cliarles A. Abbey, an officer in the Revenue-Marine Service of the United
States, and on special duty in the waters of the district of Alaska, heretofore, to
wit, on the first day of August, 1886, witliin the limits of Alaska Territory, and in
the waters thereof, and within the civil and judicial district of Alaska, to wit,
within the waters of that portion of Bering Sea belonging to the said district ou
waters navigable from the sea by vessels of 10 or more tons burden, seized the
sliip or vessel commonly called a schooner, the Thornton, her tackle, npx)arel, boats,
cargo, and furniture, being the property of some person or persons to the said
Attorney uuknov/n, as forfeited to the United States, for the following causes:
That the said vessel or schooner was found engaged in killing fur-seal within the
limits of Ahisk-a Territory, and in the waters thereof, in violation of Section 1956 of
the Revised Statutes of the United States.
And the said Attornej- saith that all and singnlnr the premises are and were true,
and within the Admiralty and maritime jurisdiction of this Court, and that by
reason thereof, and by force of the statutes of the United States in such cases made
and provided, the aforementioned and described schooner or vessel, being a vessel
of over 20 tons burden, her tackle, apparel, boats, cargo, and furnitnro, became and
are forfeited to the use of the said United States, and that said schooner is now
within the district aforesaid.
Wherefore the said Attorney ])rays the usual process and monition of this honor-
able Court issue iu this behalf, and that all persons interested in the before-
AWARD AND DECLARATIONS.
83
mentioued and described schooner or vessel may be cited in general and special to
answer the premises, and all dne proceedings being had, that the said schooner or
vessel, her tackle, api)arel, boats, cargo, and furniture may, for the cause aforesaid,
and others appearingv be condemned by the definite sentence and decree of this hon-
orable Court, as forfeited to the use of the said United States, according to the form
of tlie statute of the said United States in such cases made and jn-ovided.
(Signed) M. D. Ball,
United Stales District Attorne>i for the District of Alaska.
Anxex C.
The following table shows the names of the British sealing vessels seized or
warned by United States revenue cruisers, 1886-1890, and the approximate distance
from land when seized. The distances assigned in the cases of the Carolena, Thorn-
ton, end Onward are on the authority of United States Naval Commander Abbey.
(See Fiftieth Congress, second session, Senate Executive Document No. 106, pp.
20, 30, 40.) The distances assigned in the cases of the Anna Beck, W. P. Sayward,
Dolphin, and Grace are on the authority of Captain Shepard, U. S. R. M. {Blue Book,
United States, No. 2, 1890, pp. 80-82. See Appendix, Vol. Ill) :
Kame of vessel.
Date of
seizure.
Approximate distance from land when seized.
United States
vessel malving
seizure.
Carolena Aug. 1,1880
Thornton Ang. 1,1886
Onward Aug. 2,1880
Favourite i Aug. 2.1886
Anna Beck I July 2, 1887
'W. P. Sayward l July 9, 1887
Dolphin I July 12,1887
Grace I July 17,1887
Alfred Adams
Ada
Triumph
Jiianita
Pathtinder
Triumph
Aug. 10, 1887
Aug. 25, 1887
Aug. 4,1887
July 31, 1889
July 29, 1889
July 11, 1889
Black Diamond July 11, 1889
Lil V Aug. 0, 1889
Ariel ! July 30,1880
Kate Aug. 13, 1889
Jtlinnie i July 15,1889
Pathfinder Mar. 27,1890
.J miles Corwiu.
70 miles Corwic.
115 miles Corwiu.
Warned by Corwin in about same jjosition as
Onward.'
60 miles Rush.
59 miles Eush.
40 miles Rush.
96 miles Rush.
62 miles Eush.
15 miles Bear.
Warned by Eush not to enter Bering Sea.
66 miles Eush
50 miles Eush.
Ordered out of Bering Sea by Eush. (?) As
to position when warned.
35 miles
66 miles
Ordered out of Bering Sea bj* Rush.
Ditto "
05 miles
Seized In Neah Bay (')
Rush.
Ru.sh.
Rush.
Corwiu.
('iKeah Bay is in the State of Wa.shington, and the Pathfinder was seized there on charges made
against her in the Bering Sea in the previous year. She w.is releisod two days later.
And whereas the Goveniineiit of Her Britamiic Majesty did ask the
said Arbitrators to find the said facts as set forth in' the said state-
ment, and whereas the Agent and Counsel for tlie United States Gov-
ernment thereupon in our presence informed us that tlie said statement
of facts was sustained by the evidence, and that they had agreed with
the Agent and Counsel for Her Britannic Majesty that We, the Arbi-
trators, if we should think fit so to do, might find the said statement of
facts to be true.
Now, We, the said Arbitrators, do unanimously find the facts as set
forth in the said statement to be true.
And whereas each and every question which has been considered by
the Tribunal has been determined by a majority of all the Arbitrators;
84 AWARD AND DECLARATIONS.
Now, We, Baron cle Coiircel, Lord Hiiiinen, Mr. Justice Harlan, Sir
John Thompson, Senator Morgan, the Marquis Visconti Venosta, and
Mr. Gregers Gram, the respective minorities not withdrawing their
votes, do dechire this to be the final Decision and Award in writing of
this Tribunal in accordance with the Treaty.
Made in duplicate at Paris and signed by us the fifteenth day of
August, in the year 1893.
And We do certify this English Version thereof to be true and a'Ccurate.
Alph. de Courcel.
John M. Harlan.
John T. Morgan.
Hannen.
JnO. S. D. THOMPSOfj.
Visconti Venosta.
G. Gram.
DECLARATIONS
MADE BY THE TRIBUNAL OF ARBITRATION
AND REFERRED
TO THE GOVERNMENTS OF THE UNITED STATES AND GEEAT BRITAIN
FOR THEIR CONSIDERATION.
The Arbitrators declare that the concurrent Eegulations, as deter-
miued upon by the Tribunal of Arbitration, by virtue of Article VII of
the Treaty of the 20th of February, 1892, being applicable to the high
sea only, should, in their opinion, be supplemented by other Eegulations
applicable within the limits of the sovereignty of each of the two
Powers interested and to be settled by their common agreement.
II
In view of the critical condition to which it appears certain that the
race of fur-seals is now reduced in consequence of circumstances not
fully known, the Arbitrators think lit to recommend both Govern-
ments to come to an understanding in order to prohibit any killing of
fur-seals, either on land or at sea, for a period of two or three years,
or at least one year, subject to such exceptions as the two Governments
might think proper to admit of.
Such a measure might be recurred to at occasional intervals if found
beneficial.
Ill
The Arbitrators declare, moreover, that, in their opinion, the carrying
out of tlie Eegulations determined upon by the Tribunal of Arbitration
should be assured by a system of stipulations and measures, to be
enacted by the two Powers, and that the Tribunal must, in conse-
85
86 AWARD AND DECLARATIONS.
queuce, leave it to the two Powers to decide upon the means for giving
effect to the Eeguhations determined upon by it.
We do certify this Englisli version to be true and accurate, and have
signed the same at Paris this 15th day of August, 1803.
Alph de Couecel.
John M. Harlan.
1 approve Declarations I and III •
Hannen.
I approve Declarations I and III
Jno. S. D. Thompson.
John T. Morgan.
ViscoNTi Venosta.
G. Gram.
BERING SEA TRimiNAL OF ARBITRATION.
OPINION
OF
MR. JUSTICE HARLAN
CONFERENCE IN PARIS
OF TKE
BERING SEA TRIBUNAL OF ARBITRATION, CONSITITJ FED BY THE
TREATY OF FEBRUARY 29, 1892, BETWEEN HER BRITANMC
MAJESTY AND THE UNITED STATES OF AMERICA, AND
COMPOSED OF THE FOLLOWING MEMBERS:
BARON DE COURCEL,
Benalur and Ainba!<saiwr of France, President nf the Tribunali
THE RIGHT HONORABLE LORD HANNEN.
0/ Great Britain;
THE HONORABLE SIR JOHN THOMPSON.
Minister of Justice and Attorney-General of Canada;
MR. JUSTICE HARLAN,
A Justice of the Huprcme Court of the United State^i
SENATOR MORGAN,
A Senator of the United States;
MARQUIS EMILIO VISCONTI VENOSTA,
Former ilinister of Foreign Affairs, and Senator of the Kingdom of Italy;
And HIS EXCELLENCY GREGERS GRAM,
Minister of State of Konvay.
WASHINGTON, D.O.:
GOVERNMENT PRINTING OFFIOE.
1893.
TABLE OF CONTENTS.
PART I.
THF JURISinCTIOV OK Till; TIUBUXAL OF lUlJITUATION.
Page.
1. Remarks in siipi>ort of motion that Tribiiual tirst determine its comiietency
or powers under the Treaty in res})ect to certain nnittcr.s 5
2. Upon the (j^uestion of the coiupeteney of the Tribunal to prescribe regula-
tions covering the waters of tlu3 North Paciiic Ocean, and wiiicli would
prohibit pelagic sealing entirely 8
PART II.
THE MERITS OF THE VARIOUS (JIIESTIOXS SUBMITTEI) TO THE TRIUIINAL FOR DETEU-
MIXATION.
I'age.
1. General statement of the facts out of w liich tlic present contioversy between
the two nations arose, and the history of the negotiations resulting in the
Treaty of February 20, 1892 36
2. Jurisdiction and rights asserted and exercised bj^ Russia in l>(!ring Sea, and
in respect to the seal fisheries in that sea, prior to the cession of 1867 of
Alaska to the United States. P^ffect of the Treaty concluded iu 1825
between Russia and Great Britain. The rights that passed to the United
States by the Treaty of Cession of 18G7 58
3. The right of property asserted by the United States iu the Pribilof herd of
seals, and its riglit, Avhefcher as owner of the herd, or simply as owner of
the fur-seal industry on the Pribilof Islands, to protect the seals against
pelagic sealing Ill
4. Coucurrent regulations 205
3
[After the argnracuts of counsel were conclndefl, the Ti'ihnnal of Arhitration wont
into Coiifereuco to consider anil determine tlie various matters submitted to it. All
the questions discussed were examined and fully coiisidcri-d by the Arbitrators, and
in order that they miglit liave an opportunity to put upon record in the form of
written opinions ("if they sd desircul), the views eKpressed bj^tiicm in coufereuce, the
Tribunal, at the close of its deliberations, adopted and embodied in the Protocol of
August 14, 1893, the following resolution:
"The right is reserved to each Arbitrator to file with the secretary of this Tribunal,
at anytime after the adjournment, and before the lirst day of January, 1894, an
opinion or opinions upon tlie questions or any of them submitted for determination,
and such opinion or opinions shall be regarded as an annex to this Protocol."
The opinions below embody, substantially, what was said orally in conference by
Mr. Justice Harlan upon the questions or matters alluded to in those opinions,]
PART I.
THE JURISDICTION OF THE TRIBUNAL OF ARBITRATION.
1.
RGITIARK!^ IIV SUPPORT OF ITBOTBOiV TBIAT TIfflE TRDB51J1VAI. FIR.SIT
DETEItitBIXE ITS COMPB^TEXi; V OBfi PO^VKRS, UrVBtER THE
TREATV, IIV RESPECT TO CERTAIIV MATTERS.
(These remarks were made at the first meeting of the Arbitrators after counsel had
concluded their arguments.)
Mr. President: It Iris been suggested that tlie Arbitrators have a
full iuterchange of views touchiug the questions submitted by the
treaty for determination before any formal vote is taken. I entirely
approve this suggestion. We ought to have the benefit of such an in-
terchange of views before placing upon record the conclusions we have
respectively reached.
But, in my judgment, our first duty is to determine the competency
of this Tribunal, under the treaty, to deal with the various matters sub-
mitted to us by the two governments. I move, therefore, that the
Tribunal, before entering upon the consideration of these matters
upon their merits, determine its competency, so far as it may be in-
volved in the following questions:
1. Is it competent, under the treaty, for this Tribunal to prescribe
regulations applicable to such parts of the IsTorth Pacific Ocean, outside
6
of tlie jurisdictional limits of the two governments^ as are traversed by
the seals frequeiitiag the Pribilof Islands, if, upon the facts, regula-
tions of that character are necessary for the proper protection and pres-
ervation of the fur seal in, or habitually resorting to, Bering Sea"?
2. Is it competent, under the treaty, for this Tribunal to jn'escribe
reguhitions for a closed season covering sucli waters of both Bering
Sea and the North Pacific Ocean, outside the jurisdictional limits of the
two countries, as are habitually traversed by these fur seals, and
embracing the months during which fur seal may be taken in the open
seas, and during which closed season all hunting of said seals in such
waters shall be forbidden, provided the facts show that regulations of
that character are necessary for the proper i)rotection and preservation
of the fur seal in, or habitually resorting to, Bering Sea?
We find that counsel differ widely as to the powers of the Tribunal
touching the matters referred to in this motion.
The British Government, in its Counter Case, and its counsel in their
printed argument, question the authority of the Tribunal, under the
treaty, to prescribe regulations applicable to the North Pacific Ocean,
even if it be found that regulations covering a part of that ocean are
absolutely essential to the proi)er protection and preservation of these
fur seals. And that Government and its learned counsel, at whose
head is the Attorney-General of Great Britain, while not expressly
disputing our power to establish a zone around the Pribilof Islands
within which pelagic sealing may be entirely prohibited at all seasons,
also deny that this Tribunal has any authority to prescribe regulations
which, by their necessary operation, will put an end altogether to the
business of hunting these seals in the open waters of Bering Sea out-
side of such zone or in the North Pacific Ocean.
The United States contends that the treaty requires at our hands
whatever regulations are necessary for the proper protection and pres-
ervation of these fur seals when found outside the jurisdictional limits
of the respective Governments, either in Bering Sea or in the North
Pacific Ocean ; that the power to prescribe such regulations is expressly
c(mferred; and that a refusal to exert such power, if its exercise be
fcjand, under the evidence, necessary to the preservation of this race,
will be a refusal to execute the treaty, and, therefore, Avould defeat one
of its principal objects.
For one. I wish to know, before any interchange of views occurs
between Arbitrators in resi)cct to the merits of the several matters sub-
mitted, what the Tribunal deems its powers to be in regard to the
subjects we are here to consider. No Arbitrator should be put in such
l)osition that it can be said that his views as to the competency of
theTribunal were withheld until the majority had expressed opinions in
respect as well to the merits of the several questions of right arising
under the treaty, as to the necessity of regulations for the proper
protection and preservation of these seals.
If, however, it be the pleasure of Arbitrators to. interchange views
upon the merits of all the questions before us, not involving the jurisdic-
tion of the Tribunal, before any vote is taken, and if they order my
motion to lie upon the table for the present, I will acquiesce, if it be
understood that the first recorded vote shall be upon the points em-
bodied in that motion.
Let me say in this connection that, the arguments having been con-
cluded, I am prepared to indicate to any Arbitrator, whenever desired
by him, the conclusion reached by me touching any question before us,
whether relating to the merits of the case or to the competency of the
tribunal. Any such expression of views must, of course, be subject to
the possibility of their being changed or modified as the result of our
discussions in conference. If there are other questions of the juris-
diction of this Tribunal besides those named by me in respect to which
any Arbitrator desires action by the Tribunal before coming to matters
that must be covered by the award, I will cooperate with him in
having such action, and this without reference to the nature of the
question. If any Arbitrator wishes to know, in advance, what the
Tribunal thinks as to its comj)etency or i^owers, I shall deem it my duty,
so far as my action can have effect, to put his mind at rest in respect
to that matter.
But, Mr. President, I can not stop here without running the risk of
being charged with concealing some things that are on my mind and
which Arbitrators are entitled to know before acting upon this motion.
My conviction is absolute that the treaty as interpreted by the British
Government and its counsel, in respect to the powers of the Tribunal,
is not the treaty I was asked to aid in executing. It is not the treaty
Great Britain would have asked the United States to sign. It is not
the treaty which the President of the United States would have ap-
proved. It is not the treaty whicb a single member of the Senate of
the United States would have sustained by his vote. So strong is my
conviction upon this subject that if this Tribunal does not conceive
8
itself to liave the power, niider the treaty, to preserve this race of
useful animals so far as that end may be attained by regulations
applicable to the waters of both Bering Sea and the North Pacific Ocean
traversed by these seals; if it decides that it can not, for want of power,
make regulations of that character, I would deem myself wanting in
duty to both of the countries here represented, if I did not insist upon
an adjournment of this Conference for such reasonable time as would
give the respective Governments an opportunity to negotiate for a
suppleinentary convention investing the Tribunal with full power to
accomplish the object wliich, in every form of language, they have
expressed an earnest desire to accomplish, namely, the preservation of
this race of fur seals, without reference to considerations of profit or
advantage to any nation or to the individuals of any nation.
I beg you to understand that 1 do not aslv the Tribunal to say at this
time what regulations are necessary to secure the preservation of these
animals. If, upon examination of the evidence, it be hmnd that regula-
tions which in terms or by necessary operation prohibit or put an end
altogether to i)elagic sealing both in Bering Sea and in the North Pacific
Ocean are not necessary for the proper protection and preservation of
this race of animals, both countries must, in good faith, abide by that
determination. I only ask that you declare in some form and in advance
whether you have the power under the treaty to prescribe regulations
of the character indicated by me, if the facts show them to be necessary
in order to save this race from extermination. I am unwilling to remain
silent upon this (juestion of the com])etency of the Tribunal until I shall
have ascertained what your views are on the several matters submitted
for determination, and then bring up, or forbear to bring up, this ques-
tion of jurisdiction, as I may agree or disagree with the views you
express on the merits.
IJPOIV TBIK OJJESTIOIV OF THE <;OMPETEIVCY OF THE Tr^^SBIINAI^
TO I»UI<:«J'KIBE RE«lJI-AT«OIV» CO VEISIIVO THE ^VATEBIW OF TIBE
NOKTai FACBFK; OIIEAIV, AIVD WHICIH WOUIiUPROHIBtIT I*EBiA44B€
SEAI^BIVC: EIVTBISEBiV.
(Tho Trilmnal having on a subsequent day of its ssssions voted to consider the
above motion, tbc remarks below were made in its support.)
This Tribunal has been constituted in order that there may be an
amicable settlement, by arbitration, of certain questions between the
Government of the United States of America and the Government of
Her Britannic Majesty, which are described, generally, in Article I of
the treaty of February 20, 1892,* as questions " concerning the jnrisdic-
* TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN CON-
CLUDED FEBRUARY 29, 1892.
The United States of America ami Hit Majesty the Queen of the United Kingdom
of Great Britain and Ireland, being desirous to provide for an amicable settlement of
the questions which have arisen between their respective Governments concerning
tlie jurisdictionnl riglits of the United States in tlie waters of Bering's Sea, and con-
cerning also the preservation of the fur se;il in, or habitually resorting to, the said
sea, and the rights of the citizens and subjects of either country as regards the
taking the fur-seal in, or liabitually resorting to, the said waters, have resolved to
submit to arbitration the questions involved, and to the end of conclndiug a conven-
tion for that pur])ose have ajjpninted as their respective rieuipotentiaries :
The President of the United States of America, James G. Blaine, Secretary of State
of the United States; and
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Sir
.Julian Pauncefote, G. c. M. G., k. c. r., Iler Majesty's Envoy Extraordinary and
Minister Plenipotentiary to the United States;
Who, after having commnuic:ited to each other their resi^ective full poAvers which
were found to be in due and proper form, have agreed to and concluded the follow-
ing articles:
Articlk I. The questions which have arisen between the Government of the
United States and the Government of ITer Britannic Majesty concerning the juris-
dictional rights of the United States in the waters of Bering Sea, and concerning
also the preservation of the fur-seal in, or habitually resorting to, the said sea, and
the riglits of tiie citizens and subjects 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, to be composed of seven arbitrators, who shall be appointed in the
f(dlowing nuinner, that is to say: Two shall be named by the President of the
United States; two shall be named by her Britannic Majesty; His Excellency the
President of the French Republic shall be jointly requested by the high contracting
parties to name one; His Majesty, the King of Italy, shall be so requested to name
one; and His Majesty, the King of Sweden and Norway, shall be requested to name
one. The seven arbitrators to be so named shall be jurists of distinguished reputa-
tion in their respective countries; and the selecting poAvcrs shall be requested to
choose, if possible, jurists .who are acquainted with tlie English language.
In case of death, absence, or incapacity to serve of any or either of the said
arbitrators, or in the event of any or cither of the said arbitrators omitting or
declining or ceasing to act as such, the President of the Uni ted States, or Her Britan-
nic Majesty, or His Excellency, the President of the French Kepublic, or His Majesty
the King of Italy, or His Majesty, the King of Sweden and Norway, as the case may
be, shall name, or shall be requested to name forthwith another person to act as
10
tioiial riglits of the United States in tlie waters of Bering Sea, and
concerning also tlie preservation of the fur seal in, or habitually resort-
ing to, the said Sea, and the rights of the citizens and subjects of cither
country as regards the taking of fur seal in, or habitually resorting to,
the said waters."
Article VI i>rovides that, ^' in deciding the matters submitted to the
arbitrators," certain points, five in number, shall be sumbitted to them,
in order that their award may embrace a distinct decision upon each
point. One of those i)oints is embodied in the following question :
ail)it.r<itor in the place and stead of the arbitrator originally named by such head of
a State.
And in the event of a refusal or omission for two months after receipt of the joint
request from tlie High Contracting Parties of His Excellency, the President of the
French Republic, or His Majesty, the King of Italy, or His Majesty, the King of
Sweden and Norway, to name an arbitrator, either to fill the original appointment
or to fill a vacancy as above provided, then in such case the appoiutnient shall be
made or the vacancy shall be filled in such manner as the High Contracting Parties
shall agree.
Art. II. The iirbitrators shall meet at Paris within twenty days after the delivery
of the counter cases mentioned in Article iv, and shall proceed imjiartially and care-
fully to examine and decide the questions that have been or shall be laid before
them as herein provided on the part of the Covervments of the United States and Her
Britaimic Majesty, I'espectively. All questions considered by the tribunal, including
the final decision, shall be determined by a majority of all the arbitrators.
Each of the High Contracting Parties shall also name one person to attend the tri-
bunal as its agent to represent it generally in all matters connected with the arbi-
tration.
Art. III. The printed case of each of the two parties, accompanied by the docu-
ments, the official correspondence, and other evidence on which each relies, shall be
delivered in duplicate to each of the arbitrators and to the agent of the other party
as soon as may be after the appointment of the members of the tribunal, but within
a period not exceeding four mouths from the date of the exchange of the ratifications
of this treaty.
Art. IV. Within three months after the delivery on both sides of the printed case,
either party may, in like manner deliver in duplicate to each of the said arbitra-
tors, and to the agent of the other party, a counter case, and additional documents,
correspondence, and evidimce so presented by the other party.
H', liowever, in consequence of the distance of the place from which the evidence
to be i^resented is to be procured, cither i)arty shall, within thirty days after the
receipt by its agent of the Ciise of tlie other jiarty, give notice to the other party
that it requires additional time for the delivery of such counter case, documents,
correspondence, and evidence, such additional time so indicated, but not exceeding
.sixty days beyond the three months in this article provided, shall be allowed.
If, in the case submitted to the arliitrators, either party shall llavt^ sjiccilied or
alluded to any report or document in its own exclusive possession, without annexing
11
"5. Has the United States any ri,a,lit, and if so, wliat right, of i)rotec-
lion or property in the fur seals frequenting the islands of the United
States in Bering Sea when such seals are found outside the ordinary
three-mile limit ?"
Article VII is in these words:
"If the determination of the foregoing questions as to the exclusive
jurisdiction of the United States shall leave the subject in such posi-
tion that tlie concurrence of Great Britain is necessary to the estab-
lishment of Regulations for the proper protection and preservation of the
a copy, such party shall he honiid, if the other party thinks proper to apply for it,
to fiirui.sh that party with a copy thereof; ami either party may call npou the other,
through tlie arbitrators, to produce the originals or certified copies of any papers
adduced as evidence, giving in each instance notice thereof within thirty days after
delivery of the case; and the original or cojiy so requested shall be delivered as soon
as may be, and within a jieriod not exceeding forty days after receipt of notice.
Akt. V. It shall be the duty of the agent of each party, within one month after
the expiration of the time limited for the delivery of the counter case on both sides,
to deliver in duplicate to each of the said arbitrators and to the agent of the other
party a printed argument showing the points and referring to the evidence upon
wliich his Government relies, and either party may also support the same before the
arbitrators by oral argument of counsel ; and the arbitrators may, if they desire
further elucidation with regard to any point, require a written or printed statement
or argument, or oral argument of counsel, upon it; but in such case the other party
shall be entitled to re^ily, either orally or in writing, as the case may be.
Art. YI. In deciding the matters submitted to the arbitrators, it is agreed that
the f(dlowiug five points shall be submitted to them, in order that their award shall
embrace a distinct decision upon each of said five points, to wit:
1. What exclusive jurisdiction in the sea now known as the Bering Sea, and what
exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and
up to the time of the cession of Alaska to the United States?
2. How far were these claims of jurisdiction as to the seal fisheries recognized and
conceded by Great Britain?
3. Was the body of water now known as the Bering Sea included in the phrase
"Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia;
and what rights, if auj^, in the Bering Sea were held and exclusively exercised by
Russia after said treaty?
4. Did all the rights of Russia as to jurisdii'tion, and as to the seal fisheries in
Bering Sea east of the water boundary, in the treaty between the United States
and Russia of the 30th March, 1867, pass uninj[)aired to the United States under
til at treaty?
5. Has the United States any right, and if so, what right of protection or property
in the fur-seals frequenting the islands of the United States in Bering Sea, when
such seals are found outside the ordinary 3-mile limit?
A.KT. Vir. If the detcrminniion of the foregoing questions as to the exclusive
jurisdictiou of the United States shall leave the subject in such position that tho
12
fur seal in, or habitually resorting to, the Bering Sea, the Arbitrators
shall then determine what concurrent Kegulatious outside the jurisdic-
tional limits of tlie respective Governments are necessary and over
what waters such Regulations should extend, and to aid them in that
determination the report of a Joint Commission to be appointed by the
respective Governments shall be laid before them, with such otlier evi-
dence as either Government may submit. The High Contracting
Parties furtliermore agree to cooperate in securing the adhesion of
otlier powers to such Regulations."
Article XIV declares that "the High Contracting Parties engage to
consider the result of the proceedings of the Tribunal of Arbitration,
concurrence of Great Britain is necessary to the establishment of regulations for the
proper protection and preservation of the fur-seal m, or hahitually resorting to,
the Bering Sea, tlie arbitrators shall then (letcrniine what concurrent regulations
outside the jurisdictional limits of the respective Governments are necessary, and
over what waters such regulations should extend, and to aid them in that determi-
nation, the report of a Joint Commission to be ap]>ointed by the respective Govern-
ments shall be laid before them, with such other evidence as eitlier Governn^.cut
may submit. •
The High Contracting Parties furthermore agree to coiiperate in securing tlie adhe-
sion of other Powers to such regulations.
Ar.r. VIII. Tlie High Contracting Parties liaxing found themselves unable to agree
upon a reference which shall include the question of the liability of each for the
injuries alleged to have been sustained by the other, or by its citizens, in connection
with the claims presented and urged by it ; and being solicitous that this subordinate
question should not interrupt or longer delay the submission and determination of
the main questions, do agree that either party may submit to the arbitrators any
question of fact involved in said claims and ask for a finding thereon, the question of
the liability of either Government upon the facts found to be the subject of further
negotiation.
Art. IX. The High Contracting Parties have agreed to appoint two commissioners
on the part of each Government to make the joint investigation and report contem-
plated in the preceding Article vii, and to include the terms of the said agree-
ment in the convention, to the end that the joint and several reports and recom-
mendations of said commissioners may be in due foi-m submitted to the arbitrators,
should the contingency' therefor arise, the said agreement is accordingly herein
included as follows;
Each Government shall appoint two commissioners to investigate conjointly with
the commissioners of the other Government all the facts having relation to seal life
in Bering Sea, and the measures necessary for its proper protection and preserva-
tion.
The four commissioners shall, so far as they may be able to agree, make a joint
report to each of the two Governments, and they shall also report, either jointly or
13
as a full, perfect, aud final settlement of all the questions referred to
tlie Arbitrators."
Throughout the whole of the negotiations resulting in the treaty,
the two Governments, by their accredited representatives, expressed
an earnest desire for the proper protection and preservation of the fur
seals which had their breeding grounds on Pribilof Islands in Bering
Sea, as well as their willingness to unite in the enforcement against
their respective citizens or subjects of all measures found necessary to
prevent the extermination of that race of animals. Tlie record before
us furnishes conclusive evidence of these facts.
As early as November 12, 1887, Mr. Phelps, United States Minister
severally, to each Govei-uuient on any poiuts upon which they may be unable to
agree.
These reports shall not be made public until they shall be submitted to the arbi-
trators, or it shall appear that the contingency of their being used by the arbitra-
tors can not arise.
AitT. X. Each Government shall pay the expenses of its members of the joint
commission in the investigation referred to in the preceding article.
AuT. XI. The decisions of the tribunal shall, if possible, be made witliin three
months from the close of the argument on both sides.
It sh.all be made in writing and dated, and shall bo signed by the arbitrators who
may assent to it.
Tile decision shall be in duplicate, one copy whereof shall be delivered to the agent
of tlie United States for his Govcrumeiit, aud the other copy shall be delivered to tlie
agent of Great Britain for his Government.
AitT. XII. P^acli Government shall pay its own agents and provide for the proper
remuneration of the counsel employed by it, and of the arbitrators appointed by
it, and ibr the expense of preparing and submitting its case to the tribunal. All
other (expenses connected with the arbitration shall be defrayed by the two Govern-
ment iiie(]ual moieties.
Art. XIII. Tlie arbitrators shall keep an accurate record of their proceedings,
and may appoint and employ the necessary officers to assist them.
Art. XIV. The High Contracting Parties engaged to consider the result of the pro-
ceedings of the tribunal of arbitration, as a full, perfect, and final settlement of all
the questions referred to the arbitrators.
Art. XV. The present treaty shall be duly ratified by the President of the United
■States of America, by and with the advice and consent of the Senate thereof, and
by Her Britannic Majesty ; and the ratification shall be exchanged either at Wash-
ington or at London within six months from the date hereof, or earlier if possible.
In faith whereof we, the respective Plenipotentiaries, have signed this treaty and
have hereunto affixed our seals.
Done in duplicate at Washington the twenty-ninth day of February, one thousand
eight hundred and ninety-two. Jamks G. Blaink. [skal.]
JuLiAX Pauncefotb. [seal.]
14
at London, had an interview with the Marquis of Salisbury, British
Secretary of State for Foreii;n Affairs, iii which tlie former [)ro[)osed, on
the part of the Government of the United States, that by mutual
agreement of the two Governments a code of regulations be adoi)ted
for the preservation of the seals in Bering Sea from destruction at im-
proper times and by improper means by tlie citizens of either country —
swch agreement- to be entirely irrespective of any questions of conflict-
ing jurisdiction in those waters. In this view his lordship promptly
acquiesced, and suggested that the American minister obtain from his
Government and submit a sketch of a system of regulations that would
be adequate for that purpose. U. S. Case, A2)p. Vol. I, p. 171.
The American Secretary of State, Mr. Bayard, being informed of
this interview, wrote to Mr. Phelps, under date of February 7, 18SS,
suggesting that the only way to preveut the destruction of the seals
appeared to be for the United States, Great Britain, and other inter-
ested powers to take concerted action restraining their citizens or sub-
jects from killing them with firearms, or other destructive weapons,
'^ north of 50° of north latitude, and between 160° of longitude west and
L70'^' of longitude east from Greenwich, during the period intervening
between April 1.") and November 1. To prevent the killing within a
marine belt of 40 or 50 miles from the islands during that i^eriod would
be ineffectual as a preservative measure. This would clearly be so dur-
ing the approach of the seals to the islands. And after their arrival
there such a limit of protection would also be insufficient, since the
rapid progress of the seals through the water enables them to go great
distances from the islands in so short a time that it has been calculated
that an ordinary seal could go to the Aleutian Islands and back, in all
a distance of 300 or 400 miles, in less than two days."
In the s'ame letter Mr. Bayard, referring to the threatened extermi-
nation of these seals by pelagic sealers, using firearms, nets, and other
destructive implements, said : " That the extermination of the fur seals
must soon take place unless they are protected from desti'uction in
Bering Sea is shown by the fate of the animal in other parts of the
world in the absence of concerted action among the nations interested
for its i)reservation. * * * It is manifestly for the interests of all
nations that so deplorable a thing should not be allowed to occur. As
has already been stated, on the Pribilof Islands this Government
strictly limits the number of seals that may be killed under its own
lease to an American company, and citizens of the United States have,
15
durinfj the past year, been arrested and ten American vessels seized
for kdling fnr seals in Bering- Sea. Enuland, however, has an
especially great interest in this matter in addition to that which she
must feel in preventing the extermination of an animal wliicli con-
tributed so mucli to the gain and comfort of licr i)eo[)le. Kearly all
undressed fur seal skins are sent to London, wliere they are dressed
land dyed for the market and where many of tliem are sold." U. S.
Case, App. Vol. I, pp. 173^ 174.
This proposal was communicated to the Marquis of Salisbury and
became the subject of conference between the representatives of Great
Britain, the United States, and Russia. U. S. Case, App., Vol. r, -p.
175. A counter proposition was made by the Marquis of Salisbury to
the effect that " with a view to meeting the Eussian Goverment's wishes
respecting the waters surrounding Robben Island," the "whole of
Bering Sea, those portions of the Sea of Okhotsk, and of the Pacific
Ocean north of north latitude 47° should be included in the proposed
arrangement." He further said " that the period proposed by the
United States for a closed time — April 15 to ]!^ovember 1 — might inter-
fere with the trade longer than absolutely necessary for the protection
of the seals, and he suggested October 1, instead of a month later, as
the termination of the period of seal protection." U. jS. Case, Vol.I^
A2)p., p. 179.
The result of the above conference is thus stated in a letter from the
Marquis of Salisbury to the British Minister at Washington: ''At
this iireliminary discussion it was decided, provisionally, in order to
furnish a basis for negotiation, and without definitely pledging our
Governments, that the sjjace to be covered by the proposed convention
should be the sea hetween America and Russia north of the forty-
seventh degree of latitude ; that the close time should extend from the
15th April to the 1st November; that during that time the slaughter
of all seals should be forbidden, and vessels engaged in it should be
liable to seizure by the cruisers of any of the three powers, and
should be taken to the port of their own nationality for condemnation;
that the traffic in arms, alcohol, and powder should be prohibited in
all the islands of those seas; and that, as soon as the three powers
had concluded a convention, they should join in submitting it for the
assent of the other maritime powers of the northern seas. Tlie United
States Charge d' Affaires was exceedingly earnest in pressing on us the
importance of dispatch, on account of the inconceivable slaughter that
16
had been and still was going- on in these seas. He stated that, in
addition to the vast (Quantity brought to marliet, it was a common
practice for those engaged in the trade to shoot all seals they might
meet in the open sea, and that of these a great number sank so that
their skins could not be recovered." A similar letter was sent to Sir
E. Morier, British Ambassador at St. Petersburg. British Case, App.,
Vol. Ill, p. 196; U. S. Case, Ajjp., Vol. I, p. 238.
The close time, thus provisionally decided upon, covered, as will be
seen, not only Bering Sea, but the entire North Pacific Ocean between
America and Eussia, north of the forty-seventh degree of latitude.
Mr. Bayard, writing to Mr. White, the United States Charge
d' Affaires at London, under date of May 1, 1888, said: "As you have
already beeu instructed, the Department does not object to the inclu-
siou of the Sea of Okhotsk, or so much of it as may be necessary, in
the arrangement for the protection of the seals. Nor is itthouglit
absolutely necessary to insist on the extension of the close season till
the 1st of November. Only such a period is desired as may be requi-
site for the end in view. But in order that success may be assured in
the efforts of the various governments interested in the protection of
the seals, it seems advisable to take the 15th of October instead of the
1st as the date of the close season, although, as 1 am now advised, the
1st of November would be safer. U. 8. Case, App., Vol. I, p. 180.
In the course of a friendly discussion, in November, 1889, between
Mr. Blaine, the American Secretary of State, and Sir Julian Paunce-
fote, British Minister accredited to the United States, the former
(according to the report of that discussion made by the latter to the
Marquis of Salisbury) said: "The fur seal was a species most valuable
to mankind, and the Bering's Sea was its hist stronghold. The
United States had bought the islands in that se.a to which these crea-
tures periodically resort to lay their young, and now Canadian fisher-
men step in and slaughter the seals on their passage to the islands,
without taking heed of the warnings given by Canadian officials them-
selves, that the result must inevitably be the extermination of the
species. This was an abuse, not only reprehensible in itself and
opposed to the interests of mankind, but an infraction of the rights of
the United States. It indicted, moreover, a serious injury on a neigh-
boring and friendly State, by depriving it of the fruits of an industry
on which vast sums of money had beeu expended, and which had long'
been pursued exclusively, and for the general benefit. The case was
17
so strong' as to necessitate measures of self-defense for the vindication
of the rights of tlie United States and the protection of this valuable
fishery from destruction."
Mr. Blaine's tone during this discussion (Sir Julian Pauncefote also
reported) was most friendly throughout, manifesting "a strong desire
to let all questions of legal right and international law disapx^ear in an
agreement for a close season, which ho believes to be urgently called
tor in the conunon interest." In reply to his observations^ the British
Minister, among other things, said: "As regarded the question of fact,
namely, the danger of extermination of the fur-seal sxjecies, and the
necessity for a 'close season,' there was, unfortunately, a conflict of opin-
ion. But if, upon a further and more complete examination of the evi-
dence. Her Majesty's Government should come to the conclusion that a
'close season' is really necessary, and if an agreement should be arrived
at on the subject, all differences on questions of legal rights would qiso
facto disappear." British Case, -Aj;j>,, Vol. Ill, py. 350, 351.
In a subsequent letter, written in April, 1890 by Sir Julian Pauncefote
to Mr. Blaine, the former said: "It has been admitted, from the com-
mencement, that the sole object of the negotiation is the lyreservation
of the fur seal species for the benefit of manMnd, and that no consid-
erations of advantage to any particular nation, or of benefit to any pri-
vate interest, should enter into the question." U. 8. Case, App., Vol.1,
p. 201, 205. Under date of June '6, 1890, Sir Julian, writing to Mr.
Blaine, observed : "Her Majesty's Grovernment have always been willing,
without i)ledging themselves to details on the questions of area and
date, to carry on negotiations, hoping thereby to come to some arrange-
ment for such a close season as is necessary in order to preserve the
seal species from extinction, but the x^ro visions of such an arrangement
would always require legislative sanction so that the measures thereby
determined may be enforced." U. S. Case, App., Vol. I, p. 220.
The Marquis of Salisbury, in a letter to Sir Julian Pauncefote of
June 20, 1890, inclosing, among other documents, a cox>y of the above
letter of Ax)ril 10, 1888, addressed to the British rex^resentatives at
Washington and St. Petersburg: "Her Majesty's Government always
have been, and are still, anxious for the arrangement of a convention
which shall 'provide ivhatever close time in ivhatever localities is necessary
for the preservation of the fur seal species." British Case, App., Vol. Ill,
p. 492; U. S. Case, App., Vol. I, p. 237,
1X492 2
18
In Lis letter to Sir Julian Panncefote of December 17, 1890, Mr. Blaine
said:
"The United States, in protecting the seal fisheries, will not inter-
fere with a single sail of commerce, on any sea of the globe.
"It will mean something- tangible, in the President's opinion, if Great
Britain will consent to arbitrate the real questions which have been
under discussion between the two Governments for the last four years.
I shall endeavor to state what, in the judgment of the President, those
issues are:
"First. What exclusive jurisdiction in the sea now known as the
Bering' Sea, and what exclusive rights in the seal fisheries therein
did Russia assert and exercise prior and ux) to the time of the cession
of Alaska to the United States?
"Second. How far were these claims of jurisdiction as to the seal fish-
eries recognized and conceded by Great Britain?
"Third. Was the body of water now known as the Bering Sea in-
cluded in the phrase 'Pacific Ocean' as used in the treaty of 1825
between Great Britain and Russia; and what rights, if any, in the
Bering Sea were given or conceded to Great Britain by the said
treaty?
"Fourth. Did not all the rights of Russia as to jurisdiction, and as to
the seal fisheries in Bering Sea east of the water boundary, in the
treatj"^ between the United States and Russia of March 30, 1807, pass
unimpaired to the United States under that treaty?
"Fifth. What arenowthe rights of the United States as to the fur seal
fisheiies in the waters of the Bering Sea outside of the ordinary terri-
torial limits, whether such rights grow out of the cession by Russia of
any special rights or jurisdiction held by her in such fisheries or in the
waters of Bering Sea, or out of the owncrsliip of the breeding islands
and the habits of the seal in resorting thither and rearing their young
thereon and going out from the islands for food, or out of any other fact
or incident connected with the relation of those seal fisheries to the
territorial possessions of the Ujiited States?
"Sixth. If the determination of the foregoing questions shall leave
the subject in such position that the concurrence of Great Britain is
necessary in prescribing regulations for the killing of the fur seal in any
part of the waters of Bering Sea then it shall be further determined:
First, how far, if at all, outside the ordinary territorial limits, it is neces-
sary that the United States should exercise an exclusive jurisdiction iu
19
order to protect tlie seal for tlie time living' upon the islands of the
United States and feeding therefrom. Second, whether a closed season
(dnring which the killing of seals in the waters of Bering Sea outside
the ordinary territorial limits shall be prohibited) is necessary to save
the seal-fishing industry, so vaUiable and imiwrtant to mankind, from
deterioration or destruction. And if so, third, what months or parts of
months should be included in such season, and over what waters it
should extend." U. S. Case, A2rp., Vol. J, p. 285, 286.
The Marquis of Salisbury, in a letter of February 21, 1891, to Sir
Julian Pauncefote, expressed his assent to the first, second, and fourth
questions propounded by Mr. Bhxiue, and, after criticising the third
and fifth, proceeded: "The sixth question, which deals with the issues
that will arise in case the controversy should be decided in favor of
Great Britain, would perhaps more fitly form the subject of a separate
reference. Her Majesty's Government have no objection to refer the
general question of a close time to arbitration, or to ascertain by that
means how far the enactment of such a provision is necessary for the pres-
ervation of the seal species; but any such reference ought not to contain
words ai)pearing to attribute special and abnormal rights in the matter
to the United States." British Case, App., Vol III, pt. 2, p. 89 ; JJ. 8.
Case, App., Vol!l,p. 204.
Replying, under date of April 14, 1891, Mr. Blaine observed that
although Lord Salisbury suggested a different mode of i)rocedure from
that embodied in the sixth question, the President did not understand
him as objecting to the question. He restated all the questions, leav-
ing the first, second, fourth, and sixth as originally proposed, and
reforming the third and fifth questions so as to read:
"Third. Was the body of water now known as the Bering Sea
incUnled in the phrase 'Pacific Ocean' as used in the treaty of 1825
between Great Britain and liussia, and what rights, if any, in the
Bering Sea were held and exclusively exercised by Eussia after said
Treaty"?
"Fifth. Has the United States any right, and if so what rigiit, of pro-
tection or i)roperty in the fur seals frequenting the islands of the
United States in Bering Sea when such seals are found outside the
ordinary three-mile limit *?" U. 8. Case, App., Vol. I, p. 295.
At this period of the negotiations a correspondence intervened with
respect to a modus vivouli between the two Governments, regulating
the taking of fur seals in Bering Sea during the sealing season of
20
1891. While that matter was being discussed Sir Julian Pauncefote,
under date of June 3, 1801, notified the Government of the United
States that Her Majesty's Government were prepared to assent to the
first five questions proposed to be submitted to arbitration in Mr.
Blaine's note of April 14, 1891. But he added : " Her Majesty's Govern-
ment can not give their assent to the sixth question formulated in that
nete. In lieu thereof they propose the appointment of a commission to
consist of four experts, of whom two shall be nominated by each Gov-
ernment, and a chairman Avho shall be nominated by tLe Arbitrators.
The Commission shall examine and report on the question which follows :
'For the purpose of preserving the fur seal race in Bering Sea from ex-
termination, what international arrangements, if any, are necessary
between Great Britain and the United States and Eussia or any other
power V" U. S. Case, Apj)., Vol I, p. 305.
Then followed some correspondence between Mr. Wharton, Acting
Secretary of State for the United States, and Sir Julian Pauncefote, in
reference to the proposed modus vivcndi for 1891. The terms of that
modus vivcndi, as proposed by the United States, were communicated
to Lord Salisbury. They were returned by the latter with certain
modifications and additions. The fifth paragraph of the agreement
proposed by Lord Salisbury was as follows : " (5) A commission of four
experts, two nominated by each Government, and a chairman nomi-
nated by the ^Arbitrators, if appointed, and if not, by the aforesaid
commission, shall examine and report on the following question : ' What
international arrangements, if any, between Great Britain and the
United States and Eussia or any otlier power are necessary for the pur-
pose of preserving tlie fur seal race in the Northern Pacific Ocean from
extermination'?'" U. S. Case, Airp., Vol. I, p. 311.
It thus appears that the British Government proposed, in connec-
tion with the modus vivendi for 1891, to ascertain, by means of experts
representing the two Governments, what international arrangements
were necessary "for the inirpose of preserving the fur seal race in the
Northern Faeljio Ocean from extermination."
President Harrison, however, insisted upon an agreement (such as
he had proposed) relating only to matters that were appropriate in a
modus Vivendi.
Sir Julian Pauncefote wrote to Mr. Wharton, exj)ressing the regret
of the Marquis of Salisbury that his proposed modifications had not been
accepted. But he observed: "Nevertheless, iu view of the urgeucy of
21
the case, his lordship is disposed to authorize me to sign the agreement in
the precise terms formulated in your note of June 9, ]irovided the ques-
tion of a joint commission be not left in doubt, and that your Govern-
ment will give an assurance in some form that they will concur in a
reference to a joint commission to ascertain what permanent measures
are necessary for the preservation of the fur seal species iri the Northern
Pacific Occany TJ. 8. Case, ^PP-j ^ol. I, p. 315.
To this letter Mr. Wharton replied on the same day, as follows:
"Sir: I have the honor to acknowledge the receipt of your note of
to-day's date, and in reply I am directed by the President to say that
the Government of the United States, recognizing t\\Q, fact that fnll and
adequate measures for the protection of seal life should embrace the
whole of Bering Sea and portions of the North Pacific Ocean, will have
no hesitancy in agreeing, in connection with Her Majesty's Government,
to the appointment of a joint commission to ascertain what permanent
measures are necessary for the preservation of the seal species in the
ivaters referred to, such an agreement to be signed simultaneously with
the convention for arbitration, and to be without prejudice to tlie
questions to be submitted to the arbitrators. A full reply to your note
of June 3 relating to the terms of arbitration will not be long delayed."
U. S. Case, App., Vol. I, pp. 315,316.
Under date of June 13, 1801, Sir Julian Pauncefote wrote to Mr.
Wharton: "I lost no time in telegraphing to the Marquis of Salisbury
the contents of your note of June 11 convoying the assent of your Gov-
ernment to the appointment, in connection with Her Majesty's Gov-
ernment, of a joint commission for the purpose mentioned in my note
to you of the same date, such agreement to be signed simultaneoasly
with the convention for arbitration and to be without prejudice to the
questions to be submitted to the arbitrators. I informed his lordship
at the same time that, in handing me the note under reply, you had
assured me that the President was anxious that the commission should
be appointed in time to commence its work this season, and that your
Government woukl, on that account, use their utmost efforts to expedite
the signature of the arbitration convention. I now have the honor to
inform you that I liave this day received a telegraphic reply from Lord
Salisbury in which, while conveying to me authority to sign the pro-
I)osed agreement for a modus vivendi contained in your note of June 9,
his lordship desires me to place on record that it is signed by me on the
clear understanding that the joint commission will be appointed without
22
delay. On tliat understanding, therefore, I shall be prepared to attend
at the State Department for tlie purpose of signing the agreemeut at
such time as you may be good enough to appoint." TJ. S. Case, Vol. J,
App.^ p. 316.
On the same day Mr. Wharton Avrote to Sir Jujian Pauncefote: " The
President directs 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 June 9, was given in the expectation that both Governments
would use every proper effort to adjust the remaining points of differ-
ence in the general correspondence relating to arbitration, and to agree
upon the definite terms of a submission and of the appoin tment of a joint
commission without unnecessary delay. He is glad that an agreenjent
has finally been reached for the i^ending season; and 1 beg to say that
if you will call at the Department at 10 o'clock Monday next, I will
be glad to put into writing and give formal attestation to the modus
Vivendi which has been agreed upon." U. S. Case, App.^ Vol, I,
p. 316.
Under the assurance thus exacted by and given to the British Gov-
ernment the modus vivendi for 1891 was signed and the negotiations
in respect to the matters to be submitted to arbitration were resumed.
Mr. Wharton, under date of June 25, 1891, addressed a conmiunica-
tion to Sir Julian Pauncefote, in which, after referring to the agree-
ment of the parties in respect to the first five questions and to the
objection that Lord Salisbury liad made to the sixth question, asform-
ulaied by Mr. Blaine, said:
"I am now directed by the President to submit the following, which
he thinks avoids the objecfion urged by Lord Salisbury:
(6) If the determination of the foregoing questions as to the exclu-
sive jurisdiction of the United States shall leave the subject in such
position that the concurrenceof Great Britain is necessary to the estab-
lishment of regulations for the proper protection and preservation of
the fur seal in, or hahitually resortinr/ to, the Bering Sea, the arbi-
trators shall then determine what concurrent regulations outside the
jurisdictional limits of the respective Governments are necessary, and
over toliat waters such regulations should, extend; and to aid them in
that determination the report of the Joint Commission to be appointed
by. the respective Governments shall be laid before them, with such
Dther evidence as either Government may submit. The contracting
parties furthermore agree to cooperate in securing the adhesion of
other j)owers to such regulations."
23
In the same letter Mr. Wliarton submitted a proposal for the
appohitmeut of a Joiut Commission by the two Governments, in accord-
ance with the assurance given by the President in the letter of June
11, 1891, from Mr. Wharton to Sir Julian Pauncefote. The terms of
this proposal were accepted by Lord Salisbury, and they appear in
Article IX of the treaty. TJ. S. Case, Aj)})., Vol. I, pp. 319, 320.
The British Government accepted the sixth question as thus formu-
lated, and that question constitutes Article VII of the treaty. I do
not find in any part of the diplomatic correspondence any criticism by
representatives of the British Government of that question as last
formulated.
Other evidence throws light upon the inquiry whether it was not
well understood by the British Government, after the signing of the
modus Vivendi for 1891, if not before, that the inquiry as to what was
necessary to protect the fur seal race embraced both Bering Sea and
the North Pacific Ocean.
The commission issued June 15, 1891, by Her Majesty to the two
commissioners appointed to investigate seal life recited that they were
appointed "for the purpose of inquiry into the conditions of seal life
and the precautions necessary for i)reventing the extermination of the
fur seal species in Bering Sea and other parts of the North Pacific
Ocean.^^ Substantially the same recitals were made in the letter of
instructions issued to those commissioners by the Marquis of Salisbury
under date of June 21, 1891. Subsequently, on tlu^, 15th January, 1892,
after the two Governments had agreed in writing upon the terms
embodied in and constituting Articles VI, VII, VIII, and IX of the
treaty, the Marquis of Salisbury issued another letter of instructions
to the British Commissioners, in which he said: "There are, however,
a few points to which Her Majesty's Government consider it desirable
that your special attention should be directed. You will observe that
it is intended that the re|)ort of the Joint Commissioners shall embrace
recommendations as to all measures that should be adopted for the
preservation of seal life. For this purpose it will be necessary to con-
sider what Eegulations may seem advisable, whether within the juris-
dictional limits of the United States and Canada, or outside those
limits. The Regulations which the Commissioners may recommend for
adoption within the respective jurisdictions of the two countries will,
of course, bo matter for the consideration of the respective Govern-
ments, while the regulations affecting waters outside the territorial
24
limits will have to be considered under clause 6 of the Arbitration
Agreement* [Art. 7 of the Treaty] in the event of a decision being given
by the Arbitrators against the claim of exclusive jurisdiction put for-
ward on behalf of the United States. The Eeport is to be presented in
tlie first instance to the two Governments for their consideration, and
is subsequently to be laid by those Governments before the Arbitra-
tors to assist them in determining- the more restricted question as to
what, if any, Kegulations are essential for the protection of the fur-
hearing seals outside the territorial jurisdiction of the two countries."
British Comm. Report, p. Vii.
And the report of these commissioners, presented to the British
Government June 21, 1892, recites that they were appointed to inquire
"into the conditions of seal life and the precautions necessary for pre-
venting the extermination of the fur seal species in Bering- Sea and
other parts of the North Pacific OceanP In the same report will be
found "a general view of the conclusions at which we [the British Com-
missioners] have arrived as to the condition of seal life in the North
Pacific Ocean, and as to the measures necessary for the preservation of
the fur seal industry.'''' It may be stated, in addition, that the Ameri-
can Commisshmers, Profs. Mendenhall and Merriam, were appointed
by the President "to proceed to the Pribilof Islands and to make cer-
tain investigations of the facts relative to seal life, with a view to ascer-
tain what permanent measures are necessarj^ for the preservation of
the fur seal in Bering Sea and the North Pacific Ocean." U. 8. Case,
311.
It thus appears from the diplomatic correspondence before us and
by the action of the two Governments —
1. That each Government, from the beginning to the end of the
negotiations resulting in the treaty, expressed not only an earnest
desire that the fur seals be protected against extermination, but their
willingness to adopt such measures as were necessary to prevent the
destruction of these animals by its citizeris or subjects, and that their
action should be concurrent;
2. That the British Government, in the early jieriod of these negotia-
tions, agreed, provisionally and as a basis of negotiations, that a closed
time be established, from April 1 to November 1, during which the
slaughter of all seals be forbidden '■'■in the sea hetwcen America and
Russia north of the forty-seventh degree of latitude; " ,
* This agreement was signed December 18, 1801. The treaty was not signed until
February 29, 1892.
25
3. That wliile the original proposition of Lord Salisbury was for a
joint couimissiou to ascertain what iuternatioual arraii<>ements were
necessary " for the pnrpose of preserving the fur seal race in Bering
Sea from extermination," he subsequently modified that position, so
as to require that commission to ascertain what iiiteruational arrange-
ments were necessary " for the purpose of preserving the fur seal in the
Northern Pacific Ocean from extermination ;"
4. That the British Government made a condition of its agreeing to
the proposed modus vivendi for 1891, relating to Bering Sea, that
the President of the United States would give an assurance in some
form that his Government would concur in a reference to a joint
commission "to ascertain what permanent measures are necessary for
the preservation of the fur seal species in the Northern Pacific Ocean,''''
which assurance the President formally gave to the British Gov-
ernment, explicitly stating at the time that the Government of the
United States recognized "the fact that full and adequate measures
for the protection of seal life should embrace the whole of Bering Sea.
and parts of the North Pacific Ocean;'''' and,
5. That the Government of the United States, having in view the
exi)licit declaration of Sir Julian Pauncefote, that "the sole object of
the negotiation is the preservation of the fur seal species for the bene-
fit of mankind," and the equally explicit declarations of Lord Salisbury
that her Majesty's Government was anxious for the arrangement of a
convention which "shall provide whatever close time in whatever
localities is necessary for the preservation of the fur seal species,''^ and
ascertain, by arbitration, how far such a close time was necessary "for
the preservation of tlie fur seal species," and in order that the Arbitra-
tors, if appointed, might consider measures for the protection of seal
life "throughout the whole of Bering Sea and portions of the Northern
Pacific Ocean,''^ modified the sixth question, as originally formulated,
and, instead of concurrent regulations "for the killing of the fur seals
in any part of the Bering Sea," outside of ordinary territorial limits,
as was first iiroposed, provided for concurrent regulations (if the con-
currence ot Great Britain was found to be necessary) "for the proper
protection and preservation of the fur seal in, or hahitually resorting
to, tlie Bering Sea."
It could not liave escajied tlie attention of Lord Salisl)ury that the
effect of tliis modification of the sixth question was, beyond all question,
to enable this Tribunal to prescribe concurrent regulations to i)rotect
26
and preserve nil fnr seals tliatliubiliially resorted to tlie islands of the
United States in Bering Sea, althougli tliey might not remain during the
whole of each year in that sea. And the mod ideation which the United
States made of the sixtli question brought it into harmony with the
fifth question, previously assented to, wliich involved an inquiry as to
whether the United States has "any right, and if so what right, of
l^rotection or property in the lur seal frequenting the islands of the
United States in Bering Sea when such seals are found outside the
ordinary three-mile limit?" These seals do not the less frequent those
islands, nor the less habitually resort to Bering Sea, because their
habit — as both Governments well knew — was, in the fall of every year,
at about the same time, to leave their breeding grounds at the Pribilof
Islands and go to the south of the Aleutian Islands into the North
Pacific Ocean, from which ocean, each year and at the same time, they
returned to Bering Sea and to their established breeding grounds on
the islands of St. Paul and St. George.
But this is not all that is suggested by the modification made of the
sixth question. Recurring to the words of that question, in its original
form, it will be seen that one of the matters to be determined in the
event the concurrence of Great Britain was necessary in prescribing
regulations for the ''killing" of fur seals in the waters of Bering Sea
was whether a "closed season (during which the killing of fur-seals in
the waters of Bering Sea outside the ordinary territorial limits shall
be j)rohibited) is necessary to save the seal-fishing industry, so valuable
and important to mankind, from deterioration or destruction." Here
we have the suggestion by the United States of a closed season, dur-
ing which the taking of those seals might be entirely inohibited. What
was the reply of the Marquis of Salisbury to this suggestion? It was
that if the reference to arbitration did not contain "words which
attribute special and abnormal rights to the United States," Her
Majesty's Government had " no objection to refer the general question of
a closed time to ai'bitration, or to ascertain by that means how far the
enactment of such a provision is necessary for the preservation of the
seal species." In other words, he did not object to a prohibition of
pelagic sealing during such closed time as was found to be necessary
for the preservation of the species. And it is a fact of much signifi-
cance that while the sixth question referred to the concurrence of
Great Britain in prescribing regulations for the "killing" of the fur
seals in the waters of Bering Sea that question, as finally propounded,
27
omitted any words concerning- regulations for the killing of seals in
any particular waters, but made the establishment of regulations by the
Arbitrators depend alone upon their determination in respect "to the
exclusive jurisdiction of the United States," and the necessity, result-
ing from that determination, of prescribing concurrent regulations, not
for the killing of fur seal, but "for the x>i"oper protection and pres-
ervation of the fur seal in, or habitually resorting to, the waters of
Bering Sea." This change of phraseology seems plainly to indicate
that the main purpose was to protect the seals by whatever means
were found to be necessary. And such must have been the desire;
for what object could there have been to regulate the taking of ani-
mals unless their existence was to be preserved?
Much stress has been laid upon isolated passages in communications
emanating from the State Department of the United States in which it
was said, in different forms of language, that the area of contention
between Great Britain and the United States related only to Bering Sea.
Tiiat statement was, in a certain sense, strictly accurate, for the dis-
pute between the two Governments arose out of seizures made in that
sea. The legality of tiiose seizures was the principal and vital
matter then in controversy. ISTo seizures had then been made in the
North Pacific Ocean. And these statements, as to the area of conten-
tion, were made quite naturally in view of the fact, plainly disclosed by
the evidence, that IMr. Blaine, at one time and before the facts in con-
nection with seal life in Bering Sea were fully developed, was of
opinion that a zone of 20 marine leagues around the Pribilof Islands,
within which pelagic sealing should be prohibited, would be all that was
necessary in order to preserve these fur seals from extermination.
Some stress is also laid on the fact that the modus vivendi for 1S91 and
that for 1892 only related to Bering Sea; and, consequently, it is argued,
the two governments did not contemplate regulations applicable to the
Northern Pacific Ocean. Those who so argue forget that the modus
Vivendi for 1S91 was not signed until June 15, 1891, by which time the
sealing vessels had all left for the sealing grounds, and a large nundjor,
if not the greater part, of the fur seals had then passed from the North
Pacific Ocean into Bering Sea, and probably reached their breeding
grounds on the Pribilof Islands. In respect to the modus vivendi for
1892 it need only be said that Mr. Blaine endeavored to have it
extended to the North Pacific Ocean as well as to Bering Sea. He
was, no doubt, moved to this course by the fact that the two Govern-
28
ments, as early as December 18, 1891, had signed tlie text of tlie arti-
cles that were to go into the treaty, thereal'ter to be put in ibrin, and
by one of which articles it was required that the regulations in-escribed
by the arbitrators should look to the proper protection and preservation,
not simply of the fur seals in Bering Sea, but such as habitually
resorted to that sea.
He was also aware of the fact that as early as June 11, 1891, in
giving assurance that he would unite in the appointment of a Joint
Commission to ascertain what measures were necessary for the ])reser-
vation of these fur seals, the President had distinctly informed the
British Minister that adequate measures to that end ^' should embrace
the whole of Bering Sea and portions of tlie North Pacific Ocean."
So, in his letter to Sir Julian Pauncefote of February 24, 1892, before
the treaty was signed, Mr. Blaine, referring to the proposed modus
Vivendi for 1892, said: "If Her Majesty's Government would make her
eiforts most eifective, the sealing in the North Pacific Ocean sliould be
forbidden; for there the slaughter of the, mothers heavy with young is
greatest. This would require a notice to the large number of sealers
who are preparing to go forth from British Columbia. The nund)er
is said to be greater than ever before, and witliout any law to regulate
the killing of seals the destruction will be immense. All this suggests
the need of an effectiv^e modus. Holding an arbitration m regard to
the rightful mode of taking seals, while their destruction goes forward,
would be as if, while an arbitration to the title of land were in progress,
one party should remove all the timber." Mr. Blaine would not have
suggested that, pending the arbitration, the modus for 1892 be made
applicable both to Bering Sea and the North Pacific Ocean, if he had
not supposed tliat the treaty which he was about formally to conclude
on behalf of his Government, invested the Arbitrators with authority
to establish regulations applicable to all the waters traversed by tliese
seals in their migration routes from and to the Pribilof Islands. Two
days after writing the letter last referred to, Mr. Blaine communicated
to Sir Julian Pauncefote a copy of a telegram, tliat day received by him
from the United States consul at Victoria, in relation to the large
number of sealing vessels about to sail, and said: " I think from this
you will sec that if we do not come to an understanding soon, there
will be no ]ieed of our agreement relating to seals in the North Pacific
or in the Bering Sea." U. S. Case, Vol. J, App. 853-4.
Sir Julian Pauncefote replying, under date of February 28, 1892,
29
to Mr. Blaine's note of Febiuaiy 24, referred to tlie statement of the
latter that ''if Her Majesty's Government would make their efforts most
effective the sealing- in the Korth Pacific Ocean should be forbidden."
If, as is now contended, the treaty then about to be signed, and
which was signed the next day, did not contemplate regulations fur the
preservation of these fur seals while they were in the North Pacific
Ocean on their migration routes, it would have been easy for tlie Prit-
ish Minister to state that fact as a conclusive reason why the modus
Vivendi for 1892 should only apply to Bering' Sea. But no such rea-
son was assigned for the refusal of the British Government to extend
the modus for that year to the North Pacific Ocean. The United States
Government was, unfortunately, in such condition at that time, in
respect to the arbitration, that it was compelled to accept a modu.s for
1892, applicable only to Bering Sea, or leave both that sea and the
North Pacific Oceau entirely open to jjelagic sealing- pending the arbi-
tration.
Notwithstanding- the distinct declaration made to the United States
by the British Government, through its representative at Washington,
that "the sole object of the negotiation is the preservation of the fur
seal species for the benefit of mankind, and that no considerations of
advantage to any particular nation, or of benefit to any private inter-
est, should enter into the question;" notwithstanding the exi^licit
assurance, given by the Marquis of Salisbury, that Her Majesty's Gov-
ernment "always have been, and are still, anxious for the arrangement
of a convention which shall provide whatever close time in whatever
localities is necessary for the preservation of the fur seal species;" and,
notwithstanding the express injunctiouof the treaty that the Arbitrators,
upon finding- the concurrence of Great Britain necessary to the establish-
ment of regulations " for the proper ])rotection and preservation of the
fur seal in, or habitually resorting- to, the Bering Sea," shall "deter-
mine what concurrent regulations outside the jurisdictional limits of
the respective governments are necessary, and over what waters such
regulations should extend," tlie contention now by Her Majesty's Attor-
ney General and his learned associates, is that the Tribunal is Avithout
authority or jurisdiction, under the treaty, to prescribe regulations
api)licable to the North Pacific Ocean, or any regulations which in
terms, or by their necessary operation, will result in the prohibition of
pelagic sealing. It is contended that no such power can be exerted
by this Tribunal, even if the Arbitrators find from the evidence that
30
tliis race of uiiiinals can only be properly protected and preserved by
tbe absobite cessation, during tbe sealing season, of tbe bunting and
taking of tbese fur-seals in tbe waters botb of Bering Sea and tbe
JSTortb Pacific Ocean traversed by tbeni outside tbe jurisdictional limits
of tbe respective governments.
Tbese two contentions are opposed by tbe United States, wbicb
insists tbat, according to tbe evidence, tbe continuance of pelagic seal-
ing in tbe oj)en waters either of Bering Sea or of tbe Nortbern Pacific
Ocean, during tbe montbs of tbe year wben tbese seals may be taken,
is absolutely certain to bring about tbe extermination of tbe race in
the course of a few years ; and tbat nnder tbe power to determine tbe
rights of the citizens or subjects of the two governments, as regards
tbe taking of fur seal in, or babitually resorting to, Bering Sea, and
to prescribe concurrent regulations for tbe i^roper protection and i)re-
servation of sucb seals, and to declare over wbat waters such regula-
tions sbould extend, it is competent for this Tribunal, and is its plain
duty, nnder tbe treaty, to prescribe regulations looking to a prohibi-
tion of pelagic sealing in any waters outside tbe jurisdictional limits
of tbe resi)ective governments wbicb are traversed by these seals in
tbeir regular semiannual migration from and to the Pribilof Islands.
In harmony with tbe views upon regulations wbicb the connsel for
Great Britain present, regulations have been submitted in behalf of
Her Britannic Majesty, which, if approved, would establisb a zone
of -0 miles around tbe Pribilof Islands within wbicb no seal bunt-
ing shall be permitted at any time, nor rifles nor nets nsed by sealers,
and a closed season from tbe 15tb September to the 1st July for
Bering Sea. Under sucb regulations pelagic sealing could be car-
ried on witbout restraint, and -with sbotgun.s — confessedly a destruc-
tive, if not tbe most destructive mode of taking seals — not only in the
ll^ortb Pacific Ocean during the entire season, wben seals can be taken
in tbat ocean, but in Bering Sea outside the proposed zone of 20 miles
around Pribilof Islands between July 1 and September 15.
The regulations suggested, in behalf of the United States, call for a
prohibition, during the entire year, of pelagic sealing in all the waters
of Bering Sea and of tbe ISTortb Pacific Ocean, outside tbe jurisdic-
tional limits of tbe two Governments, nortli of the thirty-fifth degree
of nortb latitude, and east of the one hundred and eightieth meri-
dian of longitude from Greenwich. These regulations, it is admit-
ted, cover all the waters babitually traversed by tbese fur seals in
31
tlieir migration routes from and to the Pribilof Islands, and, if ap-
proved, v.'ould result in the prohibition practically of all hunting; and
taking of these seals outside of territorial waters.
Much was said, in argument, as to the authority of the Tribunal to
prescribe regulations that would entirely prohibit pelagic sealing dur-
ing the months in each year when, by reason of the weather and tlie
condition of the seas, the hunting aud taking of seals is impracticable.
The British counsel contended that it is beyond the power of the Arbi-
trators to prescribe regulations of that charaeter. They argued that
the Tribuiuil could not do indirectly what they could not do dircc^tly;
that prohibition, in terms, or by the necessary operation of regulations,
is not regulation ; that the power to regulate is not a power to prohibit.
This view, it may be observed, would place it beyond the i^ower of this
Tribunal to prescribe such regulations as those decided upon, provi-
sionally, in 18SS, between the diplomatic representatives of Great
Britain, the United States, and Russia, as a basis of negotiation,
namely (to use the words of Lord Salisbury), "that thwe siiace to be
covered by the proposed convention should be the sea between America
and Eussia, north of the forty-seventh degree of latitude; that the
close time should extend from the 15th April to the 1st November;
that during that time the slaughter of all seals should be forbidden."
When enforcing the view last stated, counsel asked us whether a
power given by the legislative department to a munici[)al corporation to
regulate, within its limits, the sale of ardent spirits would give to such
corporation authority to prohibit all sales of such spirits. Perhaps
not. But the case put does not meet the one belbre the Tribunal. A
legislative enactment of the kind referred to would show upon its face
an intention to permit some sales of ardent spirits, under regulations
to be prescribed by the municii)al corporation. It might well be that
a prohibition of all sales, by refusing all licenses to sell, would in the
case supposed, defeat the intention of the legislature. The rule of inter-
pretation which has been invoked has no application to the present case.
If the treaty empowered this Tribunal to regulate pelagic sealing it
could, not unreasonably, be contended that the two Governments had
no puri^ose to prohibit altogether and under all circumstances, the
hunting of fur seals in the open seas, but only to authorize the regula-
tion of that particular mode of taking these animals. The power given
is to prescribe such concurrent regulations "outside tlLe jurisdictional
limits of the resijective Governments" as may be necessary "for the
32
proper protectiou and preservation of the fur seal in, or babitiially
resortiug to, the Bering Sea," and to declare "over what waters such
regulations should extend." The end to be accomplished is the proper
protection and preservation of the seals which habitually resort to that
sea. Clearly a regulation which did not look to that end would fall
short of what the treaty contemplated. The x>l'^iii duty, therefore,
of this Tribunal is to provide by concun ent regulations for the pres-
ervation of these animals, if regulations of that character are neces-
sary to accomplish such a result. And tliat duty can be performed by
means of regulations, which the two Governments are under solemn
obligation to resi)ect and to enforce against their respective citizens
or subjects.
I will add that if this Tribunal is without power to prescribe such
regulations as are necessary for the proper protection and preserva-
tion of this race of animals, then the result of its proceedings can
not possibly be, as both countries intended it should be, " a full, i)er-
fect, and linal settlement of all the questions referred to the Arbitra-
tors." It is mere play upon words to say, in respect to this treaty, that
jirohibition is not regulation, and that regulations or rules, calling in
exj)ress words or by their operation for a prohibition of i)elagic sealing,
are beyond the powers given to this Tribunal, even if it appeared
that regulations of that character are absolutely necessary to prevent
the extermination of the fur seals fre(pienting the Pribilof Islands. The
manifest result of this interpretation of the treaty is that while the Tri-
bunal may prescribe regulations for the proi)er i)rotection and preserva-
tion of these animals, the business of taking them in the high seas may
still be carried on even though it should involve the destruction of the
species. Can anyone believe that Great Britain would have asked the
United States to so stultify itself as to sign a treaty which, either in
words or by necessary implication, woiild have admitted of such a
result? Does anyone believe that a treaty rendering such a result x>os-
sible would have been signed by any diplonuitic representative of the
United States, or would have been api)roved by its President or by any
member of the Senate of the United States'?
I exx)ress at this time no opinion as to what regulations are in
fact, and ujjon a view of all the evidence, necessary to the proper pro-
tection and preservation of those fur seals. Nor do I ask the Tribunal
now to make any declaration upon the weight of the evidence touch-
ing that or any other issue. I am without knowledge of the views of
33
the Arbitrators upon the various questions of right or issues of fact
to be determiued by them, aud I ask no expression of opinion touch-
ing any of tliose questions in advance of their being reached in the
regular course of our proceedings in conference. But as indicating
the grounds upon which a declaration is asked at this time, as to the
powers of this Tribunal under the treaty, I may say that there is a
large amount of evidence in the record tending to show that tlie
hunting and taking of these fur seals, according to the methods now
j)racticed by pelagic sealers in the open waters either of the Bering
Sea or of the North Pacific Ocean, if continued, will certainly result at
no distant day in the complete extermination of the race. My purpose
is only to show that the power to prescribe regulations, which expressly
or by their i)ractical operation will prohibit pelagic sealing, was
intended to be conferred and has been conferred by the treaty, with
respect to the waters both of Bering Sea and of the North Pacific
Ocean, traversed by these far seals in their going from and returning
to the Pribilof Islands.
This Tribunal, I insist, has not been constituted for the purpose of
conserving the interests of the Canadian and American sealers who,
within the past ten years, have devised a mode of taking these fur
seals in the ox)eu seas, by means which, all concede, are destructive,
because not admitting of any discrimination as to sex, nor, still less, of
any discrimination between females that are heavy with young and
those that have not been impregnated. We are not here with authority
to make an award, simply by way of compromise, so that each side in
this dispute may have an opportunity to say that it has not been
entirely unsuccessful in its contentions before this Tribunal. Our
authority has a much wider field of operation. If the repeated avowals
of the two nations, who seek an amicable settlement of their differences
by means of arbitration, are not to be wholly discredited, we are here,
in their names, and by their joint authority, to protect aud preserve
this race of animals from extermination if we find that concurrent
regulations to that end are necessary. A foilure or refusal to exercise
the power, plainly given, to prescribe such regulations as are neces-
sary to prevent the extermination of this race of useful animals, will, in
my judgment, wholly defeat the principal object for which this Tribunal
was created.
Matters involving the jurisdiction and power of the Tribunal to deal
>vith every aspect of this case, as it may affect the supreme object of
11491> 3
34
the protection and preservation of these fnr seals, shonhl, I submit, be
passed upon before the Arbitrators euter upon the consideration of the
several questions of right submitted for determination.
The duty of this Tribunal to prescribe regulations arises when the
determination of the questions submitted to us, "as to the exclusive
jurisdiction of the United States," leaves the subject in such i^osition
"that the concurrence of Great Britain is necessary to the establish-
ment of regulations for the i) roper protection and preservation of the
fur seal in, or habitually resorting to, the Bering Sea." Such are the
express Avords of Article VII. If the United States has not such exclu-
sive jurisdiction — that is, such sovereign power — as enables it to enact
laics, binding upon all, whether citizens of the United States or sub-
jects of other countries, for the x>rotection and preservation of these
seals, in all the waters both of Bering Sea and of the North Pacific Ocean
traversed by them — and no such claim has been preferred before us —
then we know, at this time, that the concurrence of Great Britain is
necessary to the establishment of regulations, whatever conclusion may
be reached upon the issue as to property and x^rotection presented by
the fiftli question of Article VI.
If it be held that the United States has no right of property in
these seals, and no right to protect them when found outside the ordi-
nary three-mile limit, then the duty to prescribe concurrent regulations
becomes manifest. But regulations of that character are, in my judg-
ment, necessary though, perhaps, not equally so, for the proper protec-
tion and preservation of the seals, if the Tribunal holds that such right
of property or lu'otection does appertain to the United States; for, in
that case, the only means which the Government of that country could
emi^loy would be those which the law permits to individual owners
of property for its protection. But that would be inade(iuate protec-
tion, Avithout the concurrence of Great Britain, manifested by such leg-
islation as would bind its subjects wherever they may be, and compel
them, under, proper penalties, to respect any right of i)roperty or
protection accorded to the United States by the award or decision of
this Tribunal. So that it is certain that Ave must come to the subject
of regulations for tl\Q proi)er x^rotection and preservation of this race
of animals.
If the Arbitrators believe that the race Avill be soon exterminated
unless pelagic sealing is prohibited, in both Bering Sea and the North
Pacific Ocean, during all the mouths Avhen they may be taken in the
35
open waters, but that the Tribuual is without power, under the treaty,
to iH'escribe regulations of that character, is it not, as I have heretofore
suggested, our duty to suspend further action for a time, in order that
the two Governments may have an ox)iK>rtuuity to so amend the treaty,
under which we are proceeding, as to enable us to preserve this race
from extermination? Shall we ignore the fact that both Governments
have protested, in every form of language, that they desired the pres-
ervation of these animals without reference to considerations of profit
or advantage to any nation or to individuals of any nation? Shall it
be assumed that either of the great nations before us wish the Tribuual
to conclude its labors and adjourn without prescribing concurrent regu-
lations that are, in fact, necessary for the preservation of these seals?
As these questions touching the competency of the Tribunal to deal
with the subject of the preservation of these animals have been dis-
tinctly raised by Great Britain and must be decided, I submit that they
should be examined and decided, at the threshold of our proceedings
in conference.
Senator Morgan authorizes me to say that he concurs in this opinion.
[At the close of the discussiou Senator Morgan offered, as a substitute for the mo-
tion of Mr. Justice Harlan, the following: "'This Tribunal of Arbitration is empow-
ered by the Treaty of February 29, 1892, between the United States and Great
Britain, to determine what concurrent regulations are proper to be adopcea and
enforced by the action of tlie respective governments, applicable to their resjiective
citizens or subjects, outside of their respective territorial limits and outside oL
Bering Sea, for the protection and preservation of fur seals in, or habitually resort-
ing to, Bering Sea." This substitute was accepted by Mr. Justice Harlan, and was
adojited, one Arbitrator voting in the negative. It was agreed that the considera-
tion of the subject embraced in the second branch of the original motion of Mr.
Justice Harlan be postponed until the Tribuual should reach the subject or regula-
tions in order, and should determine that regulations were made necessary by the
conclusions reached upon other q^ucstious named m the treaty .J
PART II.
THE MERITS OF THE VARIOUS QUESTIONS SUBMITTED TO THE TRI-
BUNAL FOR DETERMINATION.
1.
CJEIVERAIi STATEMENT OF THE FACTS OUT OF ^VHICn THE
PRESENT CONTKOVEKSV BETWEEiV THE TWO IVATBONS ABOSE,
AIVW THE BSSSTOKV OF TSIE NEGOTIATIONS KESUL.TlNCi IN THE
TISEATIT OF FES5KUABV -29, 1S92.
Before entering upon the examination of tlie important questions
submitted for determination, it will be Avell to recall the general course
of the negotiations that preceded the making of the treaty under which
we are proceeding, and the principal facts out of which the present
controversy between the two governments originated. Some of these
facts have already been stated by me when considering, at a former
session of this Tribunal, the question of its competency to make regu-
lations applicable to the North Pacific Ocean, and which also, in terms,
or by their necessary operation, would put an end to j)elagic sealing in
the waters traversed by the Pribilof seals. But it is well, even at the
risk of repetition, to restate them in this connection.
The controversy had its origin in certain seizures of vessels, alleged
to belong to, or to be in the possession or uuder the control of, British
subjects who were engaged, at the time, in the Avaters of Bering Sea
outside of the ordinary limits of territorial jurisdiction, in hunting and
taking fur-seals which had their breeding grounds on the islands ol
St. Paul and St. George, two of the four islands in Bering Sea con-
stituting the Pribilof group.
The seizures referred to were made in 1886, 1887, and 1889 by public
armed vessels acting under instructions from the Executive Depart-
ment of the Government of the United States.
The Pribilof Islands are situated in Bering Sea, latitude 57° north,
longitude 170° west from Greenwich, about 300 miles from Cape ISewen-
ham, on the mainland of Alaska Territory, and about 200 miles north
ol the Aleutian Islands, the latter islands extending several hundred
86
37
miles -vrestwardly and sontliwestcrly from the peninsnla of Alaska
into the Pacific Ocean. They were discovered in 1780 and 1787 by
Gerassim Pribilof, a Eussian navigator, while he was endeavoring to
ascertain upon what shores the herd of fur seals habitually landed,
which had been observed to pass once a year northwardly, and once a
year southwardly, through the channels between the Aleutian Islands.
Those islands, after their discovery, remained continuously in the
possession of Eussia until 18G7. In that year the Emperor, by treaty,
ceded to the United States "all the territory and dominion" then pos-
sessed by him " on the continent of America and in the adjacent islands,"
and contained within certain defined geographical limits. The eastern
limit of the territory and dominion so conveyed was declared to be
the line of demarcation between the Eussian and British possessions
in ]^orth America, as established by articles III and IV of the treaty,
which will be hereafter referred to, between Eussia and Great Britain
of February (28) IG, 1825. .
The western limit is thus defined by the treaty of 1807:
"The western limit within which the territories and dominion conveyed
are contained passes tlirough a point in Bering's Straits on the parallel
of 05^' 30' north latitude, at its intersection by the meridian which
passes midway between the Islands of Kruzenstern or Igualook,
and the Island of Eatmanofif or Xoonarbook, and proceeds due north,
without limitation, into the same Frozen Ocean. The same western
limit, beginning at the same initial point, proceeds thence in a course
nearly southwest, through Bering's Straits and Bering's Sea so as to
])ass midway between the northwest point of the Island of St. Law-
rence and the southeast point of Cape Choukotski, to the meridian of
172, west longitude; thence, from the intersection of that meridian, in
a southwesterly direction, so as to pass midway between the Island of
Attn and Copper Island of the Komandorski couplet, a group in the
North Pacific Ocean, to the meridian of 193° west longitude, so as to
include in the territory conveyed the whole of the Aleutian Islands east
of that meridian."
That treaty further provided : " The cession of territory and dominion
herein made is hereby declared to be free and unencumbered by any
reservations, privileges, franchises, grants, or possessions by any
associated companies, whether corporate or incorporate, Eussian or any
other, or by any parties, except merely private individual property
holders; and the session hereby made conveys all the rights, franchises,
38
nnd privileges now beloiif^ing to Eiissia in the said territory or domin-
ion and appurtenances tliereto." (15 U. S. Stat., 539.)
The Pribilof Islands are east of the line thus defined as the western
limit within which are the territory and dominion conveyed by liussia
to the United States.
By an act of the Congress of the United States approved March 3,
18G9, the islands of vSt. Paul and St. George in Alaska were declared
"a special reservation for Government purposes," and it was made
unlawful for any person to land or remain on either of them, except by
authority of the Secretary of the Treasury. This statute was followed
by an act approved July 1, 1870, the expressed object of which was to
l)revent the extermination of fiir-bearing animals in Alaska,. The pro-
visions of the acts of 1860 and 1870 are reproduced in the lievised
Statutes of the United States of 1873. Those sections* show the extent
of authority and jurisdiction, which has been asserted by the United
*Sec. 1954. The laws of tlie United States relating to customs, commerce, and
navigation are extended to and over all the mainlands, islands, and waters of the
territory ceded to the United States by the Emperor of Knssia by treaty concluded
at Washington ou the thirtieth day of March, anno Domini one thousand eight
hundred and sixty-seven, so far as the same may be applicable thereto.
Sec. 1956. No person shall kill any otter, mink, marten, sable, or fur-seal, or
other fur-bearing animal within the limits of Alaska Territory, or in the waters
thereof; and every person guilty thereof shall, for each offense, be fined not less
than two hundred nor more than one thousand dollars or imprisoned not more than
six months, or both; and all A'essels, their tackle, apparel, furniture and cargo,
found engaged in violation of this section shall be forfeited. Bnt the Secretary of
the Treasury shall have power to authorize the killing of any such mink, marten,
sable, or other fiir-bearing animal, except fur-seals, under such regulations as he
may prescribe; and it shall be the duty of the Secretary to prevent the killing of
any fur-seal, and to provide for tlie execution of the provisions of this section until
it is otherwise provided by law; nor shall he grant any special privileges under this
section.
Sec. 1959. Tlie islands of Saint Paul and Saint George in Alaskai, are declared a
special reservation for Government purposes; and until otherwise provided by law
it shall be unlawful for any person to land or remain on either of those islands,
except by the authority of the Secretary of the Treasury; and any person found on
either of those islands contrary to the provisions hereofshall be summarily removed;
and it shall be the duty of the Secretary of War to carry this section into effect.
Sec. 1960. It shall bo unlawful to kill any fur-seal upon the islands of Saint Panl
and Saint George, or in the waters adjacent thereto, except during the months of
June, .Inly, September, and October in each year; and it shall be unlawful to kill
such seals at any time by the use of firearms, or by other means tending to drive
the seals away from those islands; but the natives of the islands shall have the
privilege of killing such young seal as may be necessary for their own food and
39
States, over the territory and waters witliin the limits referred to in
the treaty of 1SG7.
By a subsequent act, passed March 2, 1SS9, section 1950 of tlie Eevised
Statutes, forbidding the kiHing of "any otter, mink, marten, sable or
fur seal, or other far-bearing animals within the limits of Alaska Terri-
tory, or in the waters thereof," was declared "to include and apply to
all the dominion of the United States in the waters of Bering Sea;"
and it was made the duty of the President, at a timely season in eacli
year, to issue his proclamation warning all persons against entering
said waters for the i)urpose of violating the provisions of said section,
and to cause one or more vessels of the United States to diligently
cruise said waters and arrest all persons, and seize all vessels found
to be, or to have been, engaged in any violation of the laws of the
United States therein.
In execution of the above statutory provisions, the Secretary of the
clothing (Inring other months, and also such old seals as may be reqnived for their
own clothing-, and for the mauufactnre of boats for their own use; and tlie killing
in such cases shall be limited and controlled by such regulations as may be pro-
scribed by the Secretary of the Treasury.
Src. 1'JIjI. It shall be unlawful to kill any female seal, or any seal loss than one
year old, at any season of the year, except as above provided; and it shall also be
unlaAvfnl to kill any seal in the waters adjacent to the islands of Saint Paul and
Saint George, or on the beaches, cliffs or rocks where they haul up from the sea to
remain; and every person who violates the provisions of this or the preceding sec-
tion shall be punished for each offense by a fine of not less than two hundred dollars
nor more than one thousand dolkirs, or by inipiisonment not more than six months,
or by both such fine and imprisonment; and all vessels, their tackle, apparel, and
furniture, whose crews are found engaged in the violation of either this or the pre-
ceding section, shall be forfeited to the United States.
Sec. 1962. For the period of twenty years from the first of July, eighteen hun-
dred and seventy, the number of fur-seals which may bo killed for their skins upon
the Island of Saint Paul is limited to seventy-five thousand per annum, and the
number of fur-seal which may be killed for their skin upon the Island of Saint
George is limited to twenty-five thousand; but the Secretary of the Treasury may
limit the right of killing, if it becomes necessary for the preservation of such seals,
with such proportionate reduction of the rents reserved to the Government as may
be proper; and every person who knowingly violates either of the provisions of
this section shall be punished as provided in the preceding section.
Sec. 1963. When the lease heretofore made by the Secretary of the Treasury to
the Alaska Commercial Company of the right to engage in taking fur-seals on tho
islands of Saint Paul and Saint George, pursuant to the act of tho first .July, 1870,
chapter one hundred and eighty-nine,or when any future similar lease expircs,or is sur-
rendered, forfeited or terminated, the Secretary shall lease tojiroperand responsible
40
Treasury has, from time to time, leased to an incorporated company the
right to engage in the business of taking fur seals on the islands of St.
Paul and St. George, under regulations x>rescribed by that officer.
It was under this state of the law, so far as the statutes of the United
States were concerned, that seizures of vessels were made. The Brit-
ish Government protested against those seizures as an unauthorized
interference with the rights of its subjects on the high seas. Its Minis-
ter at Washington, Sir Lionel Sackville West, in a letter dated Janu-
ary 9, 1887, and addressed to Mr. Bayard, the American Secretary of
State, said: ''It is unnecessary for me to allude further to the informa-
tion with which Her Majesty's Government have been furnished respect-
ing these seizures of British vessels in the open seas, and which for
some time past has been in the possession of the United States Gov-
parties, for tlie best advantage of the Uaitecl States, having dne regard to the in-
terest of the Government, the native inhabitants, their comfort, maintenance and
edncation, as well as to the interest of the parties heretofore engaged in trade,
and the protection of the fisheries, the right of taking fnr-sealson the islands herein
named, and of sending a vessel or vessels to the islands for the skins of such seals,
for the term of twenty years, at an annual rental of not less than fifty thousand dol-
lars, to be reserved in such lease and secured by a deposit of United States bonds
to that amount; and every such lease shall be duly executed in duplicate, and shall
not be transferable.
Sec. 1964. The Secretary of the Treasury shall take from the lessees of such islands
in all cases a bond, with securities, in a sum not less than five liundred thousand
dollars, conditioned for the faithful observance of all the laws and requirements of
Congress and the regulations of the Secretary of the Treasury touching the taking
of fur-seals and the disposing of the same, and for the payment of all taxes and
dues accruing to the United States connected therewith.
Sec. 1965. No persons other than American citizens shall be permitted, by lease or
otlierwiso, to occupy the islands of Saint Paul and Saint George, or either of them,
for thepurp(jse of taking the skins of fur-seals therefrom, nor shall any foreign vessel
be engaged in taking such skins; and the Secretary of the Treasury shall vacate and
declare any lease forfeited if the same be held or operated for the use, benefit, or
advantage, directly or indirectly, of any persons other than American citizens.
Sec. 1967. Every person who kills any fur-seal on either of these islands, or in the
waters adjacent thereto, without authority of the lessees thereof; and every person
who molests, disturbs, or interferes with the lessees, or either of them, or their
agents or employes, in the lawful prosecution of their business, under the provis-
ions of this chapter, shall for each offense be punished as described in section 1961;
and all vessels, their tackle, apparel, appurtenances, and cargo, whoso crews are
found engaged in any violation of the provisions of sections 1965 to 1968, inclusive,
shall be forfeited to the United States.
Sec. 1968. If any pers(m or company, under any lease herein authorized, know-
41
eniDieiit, because Her Majesty's Government do not doubt that if, on
inquiry, it should prove to be correct, the Government of the United
States will, with their well-known sense of justice, admit the illegal-
ity of the proceedings resorted to against the British vessels and the
British subjects above mentioned, and will cause reasonable reparation
to be made for the wrongs to which they have been subjected and for
the losses which they have sustained." U. 8. Case, Vol. 1, App., 156.
Under date of April 12, 1887, Mr. Bayard, writing to the British
minister, said: "The remoteness of the scene of the fur-seal fisheries
and the special peculiarities of that industry have unavoidably delayed
the Treasury officials in framing appropriate regulations and issuing
orders to United States vessels to police the Alaskan waters for the
protection of the far seals from indiscriminate slaughter and conse
iugly kills, or permits to be killed, any number of seals exceeding the number for
each island in this chapter prescribed, such person or company shall, in addition to
the penalties and forfeitures herein provided, forfeit the Avhole number of skins oi
seals killed in that year, or, in case tbe same have been disposed of, then such per-
son or company shall forfeit the value of the same.
Sko. 1969. In addition to the annual rental required to be reserved in every lease,
as provided in section nineteen hundred and sixty-tliree, a revenue tax or duty of
two dollars is laid upon each fur-seal skin taken and shipped from the islands of
Saint Paul and Saint George during the continuance of any lease, to be paid into
the Treasury of the United States; and the Secretary of the Treasury is empowered
to make all needful regulations for the collection and payment of tbe same, and to
secure the comfort, maintenance, education, and protection of the natives of those
islands, and also to carry into full eftect all the iirovisions of this chapter except as
otherwise prescribed.
Skc. 1970. The Secretary of the Treasury may terminate any lease given to any
person, company, or corporation on full and satisfactory proof of the violation of
any of the provisions of this chapter or the regulations established by him.
Skc. 1971. The lessees shall furnish to the several masters of vessels employed by
them certified copies of the lease held by them respectively, which shall be preseni.ed
to the Government revenue officer for the time being who may be in charge at the
islands as the authority of the party for landing and taking skins.
Sec. 1972. Congress may at any time hereafter alter, amend or repeal sections from
1960 to 1971, both inclusive, of this chapter.
Sec. 1973. The Secretary of the Treasury is authorized to appoint one agent and
three assistant agents, who shall be charged with the management of the seal fish-
eries in Alaska, and the performance of such other duties as may be assigned to them
by the Secretary of the Treasury.
Sec. 1975. Such agents shall never be interested, directly or indirectly, in any lease
of the right to take seals, nor in any proceeds or profits thereof, either as owner,
agent, partner, or otherwise.
42
uent speedy extermination. The laws of the United States in this
behalf are contained in the Revised Statutes relating to Alaska, in sec-
tions 1956-1971, and have been in force for upwards of seventeen years ;
and prior to the seizures of last summer but a single infraction is known
to have occurred, and that was promptly punished. The question of
instructions to Government vessels in regard to preventing the indis-
criminate killing of fur seals is now being considered, and I will inform
you at the earliest day possible what has been decided, so that British
and other vessels visiting the waters in question can govern themselves
accordingly." U. S. Case, Vol. i, App., 160. Subsequently, August
19, 1887, Mr. Bayard addressed communications to the United States
mi nisters in France, Germany, Great Britain, Japan, Enssia, and Sweden
and Norway, in which he said: "Recent occurrences have drawn the
attention of this Department to the necessity of taking steps for the
better protection of the fur seal fisheries in Bering Sea. Without
raising any question as to the exceptional measures which the peculiar
character of the property in question might justify this Government
in taking, and without reference to any exceptional marine jurisdiction
that might properly be claimed for that end, it is deemed advisable,
and I am instructed by the President to so inform you, to attain the
desired ends by international cooperation. It is well known that the
unregulated and indiscriminate killing of seals in many parts of the
■world has driven them from place to place, and, by breaking up their
habitual resorts, has greatly reduced their number. Under these cir-
cumstances, and in view of the common interest of all nations in pre-
venting the indiscriminate destruction and consequent extermination
of an animal which contributes so importantly to the commercial wealth
and general use of mankind, you are hereby instructed to drav/ the
attention of the Government to which yon are accredited to the sub-
ject, and to invite it to enter into such an arrangement with the Gov-
ernment of the United States as will prevent the citizens of either
country from killing seal in Bering Sea at such times and places, and
by such methods as at present are pursued, and which threaten the
speedy extermination of those animals and consequent serious loss to
mankind. The ministers of the United States to Germany, Sweden
and Norway, Russia, Japan, and Great Britain have been each simi-
larly addressed on the subject referred to in this instruction." TJ. 8.
Case, Vol. 1, Ajyp., 168.
A copy of this connuunlcation having been received by Mr. Phelps,
43
United States minister at London, lie liad an interview witli Lord Sal-
isbury, tUe British Secretary of State for Foreign Affairs, and proposed
that the two governments should adopt a code of regulations for tlie
preservation of the seals in Bering Sea from destruction at improper
times and by improper means by the citizens of either country — such
agreement to be entirely irrespective of any questions of conflicting
jurisdiction in those waters. This proposal, Mr. Phelps reported,
was acquiesced in by Lord Salisbury, who suggested that the American
]\Iinister obtain from his Government and submit a sketch of a system
of regulations that would be adequate for the purpose. U. S. Case,
Vol. 1, Ap^)., r/1.
Under date of February 7, 1888, Mr. Bayard wrote to Mr. Flielps
disclosing, in some detail, the reasons why prompt action was necessary
in order to prevent the entire destruction of the fur seals frequenting
the islands of the United States in Bering Sea, as well as those found
on the islands belonging to Kussia. Eesponding to the suggestion
in respect to code of regulations, he said:
"The only way of obviating the lamentable result above predicted
appears to be by the United States, Great Britian, and other interested
powers taking concerted action to ])revent their citizens or subjects
from killing fnr seals with firearms or other destructive weajions
north of 50 degrees of north latitude, and between IGO degrees of longi-
tude west and 170 degrees of longitnde east from Greenwich, during the
period intervening between April 15 and ISTovember 1. To prevent the
killing within a marine belt of 40 or 50 miles during that period would
be ineffectual as a preservative measure. This would clearly be so
during the approach of the seals to the islands. And after their arrival
there such a limit of protection would also be insufficient, since the
rapid progress of the seals through the water enables them to go great
distances from the islands in so short a time that it has been calculated
that an ordinary seal could go to the Aleutian Islands and back, in all
a distance of 300 or 400 miles, in less than two days." What would
take place unless steps were taken to preserve this race Mr. Bayard pro-
ceeded to show: "That the extermination of the fur seals must soon
take i)lace unless they are protected from destruction in Bering Sea
is shown by the fate of the animal in other parts of the world, in
the absence of concerted action among the nations interested for its pre-
servation. Formerly, many thousnnds of seals were obtained annnally
from the South Pacific Islands and from the coasts of Chile and South
44
Africa, Tbey were also common in the Fallvland Islands and the adja-
cent seas. Bnt'in those islands, where hundreds of thousands of skins
were formerly obtained, there have been taken, according to the best
statistics, since 1880, less than 1,500 skins. In some cases the indis-
criminate slaughter, especially by use of firearms, has in a few years
resulted in completely breaking up extensive rookeries. * * * It is
manifestly for the interests of all nations that so deplorable a thing
should not be allowed to occur. As has already been stated, on the Prib-
ilof Islands this Government strictly limits the number of seals that
may be killed under its own lease to an American company, and citizens
of the United States have, during the past year, been arrested, and ten
American vessels seized for killing fur seals in Bering Sea." He fur-
ther observed that Great Britain, in cooperating with the United
States to prevent the destruction of fur seals in Bering Sea would
aid in perpetuating au extensive and valuable industry in which her
own citizens have the most lucrative share. U. S. GasCj Vol. 1, p. 172.
Mr. Phelps, upon receiving this communication, held an interview,
in Loudon, with both Lord Salisbury and the Eussian Ambassador, M.
de Staal, and reported, under date of February 25, 1888, that his lord-
ship assented to the proposition of Mr. Bayard, and that he would
also join the United States Government in any preventive measures it
may be thought best to adopt, by orders issued to the naval vessels in
that region of the respective governments. U. S. Case, Vol, 1, App.,
173. The Eussian ambassador concurred, so far as his personal o])iu-
ion was concerned, in the propriety of the proposed measures for the
protection of the seals, and promised to conmiunicate at once with his
Government.
In reply to the last letter Mr. Bayard wrote to Mr. Phelps: "It is
hoped that Lord Salisbury will give it favorable consideration, as there
can be no doubt of the importance of preserving the seal fisheries in
Bering Sea, and it is also desirable that this should be done by au
arrangement between the governments interested without the United
States being called ui)on to consider what special measures of its owu
the exceptional character of the i^roperty in question might require it
to take in case of the refusal of foreign powers to give their coopera-
tion. Whether legislation would be necessary to enable the United
States and Great Britain to carry out measures for the protection of
the seals would depend much upon the character of the regulation 5 but
it is probable that legislation would be required. The manner of pro-
45
tecting the seals would depend upon the kind of arrangement which
Great Britain would be willing- to make with the United States for the
policing of the seas and for the trial of British subjects violating the
regulations which the two governments may agree upon for such pro-
tection." TJ. S. Case, Vol. 1, App.^ 175.
During a temporary absence of Mr. Phelps from London, Mr. White,
the United States Charge d'Affaires, had an interview with Lord Sal-
isbury and the Kussian ambassador, and reported that M. de Staal
exj)ressed a desire, on behalf of his government, to include in the area
to be protected by the convention the Sea of Okhotsk, or at least that
portion of it in which Robben Island is situated, there being, he said,
in that region large numbers of seals whose destruction is threatened
in the same way as those in Bering Sea; and that Lord Salisbury,
in order to meet the Eussian Government's wishes respecting the
waters surrounding Bobben Island, suggested that, besides the
whole of Bering Sea, those portions of the sea of Okhotsk and of the
Pacific Ocean north of latitude 47 degrees should be included in the pro-
posed arrangement. His lordship intimated, furthermore, that the
period proi^osed by the United States for a close time, April 15 to No-
vember 1, might interfere with the trade longer than absolutely neces-
sary for the protection of the seals, and he suggested October 1, instead
of a month later, as the termination of the period of seal protection.
TJ. 8. Case, Vol., 1, App., 179.
Mr. Bayard, in reply, said that he did object to the inclusion of the
Sea of Okhotsk, or so much of it as was necessary for the protection of
the seals; nor did he deem it absolutely necessary to insist on the ex-
tension of the close season till the 1st of November. Only such a i)eriod •
was desired as was requisite for the end in view. But that suc-
cess may be assured in the efforts of the various governments inter-
ested in the protection of the seals, it seemed advisable to take the loth
of October instead of the 1st as the date of the close time, although,
the 1st of November would be safer. U. 8. Case, Vol. 1, App., 180.
At the argument there was some controversy between counsel as to
whether Lord Salisbury had, in fact, agreed to any particular mode of
protecting these fur seals from destruction. It is quite sufficient,
in any view of this case, to accept the account Lord Salisbury him-
self gave of the meeting between himself and the representatives of
the United States and Russia, on which occasion was considered the
question of the preservation of the furseal species. The principal
46
interview on tbis subject was held on the IGth of April, 1888, and its
result was stated the same day in an official comiuunication from Lord
Salisbury to the British Minister at Washington. Lord Salisbury
said: "At this preliminary discussion it was decided provisionally, in
order to furnish a basis for negotiation, and without definitely pledg-
ing our governments, that the space to be covered by the proposed
convention should be the sea between America and Eussia north of
the iTth degree of latitude; that the close time should extend from
the 15th of April to the 1st of November; that during that time the
slaughter of all seals should be forbidden, and vessels engaged in it
should be liable to seizuie by the cruisers of any of the three powers
and should be taken to the port of their own nationality for condemna-
tion; that the trafiic in arms, alcohol, and powder, should be prohibited
in all the islands of those seas; and that, as soon as the three powers
had concluded a convention, they should join in submitting it for the
assent of the other maritime powers of the northern seas. The United
States charge d'aifaires was exceedingly earnest in pressing- on us
the importance of dispatch, on account of the inconceivable slaughter
that had been and was still going on in these seas. He stated that, in
addition to the vast quantity brought to market, it was a common
practice for those engaged in the trade to shoot all seals they might
iheet in the open sea, and that of these a great number sank, so that
their skins could not be recovered." British Case, Vol. 6', App., 196; XT.
8. Case, Vol. 1, App., 238.
A similar communication was sent to Sir E. Morier, the British Am-
bassador at St. Petersburg-.
These negotiations resulted in nothing of a practical nature because
of the objections raised by the Canadian Government to any such plan
as that to which the rei^resentatives of Great Britain, the United States
and Eussia, '-provisionally, in order to furnish a basis for negotiation,"
assented at the meeting of April 16, 1888.
Mr. Phelps, had a conversation with Lord Salisbury on the 13th of
August, 1888, and again pressed for the comi)letiou of the convention,
as the proposed extermination of the seals by Canadian vessels was un-
derstood to be rapidly proceeding. His lordship did not question tbe
X)ropriety or importance of taking measures to i^revent the wanton de-
struction of so valuable an industry, in which, as he remarked, England
had a large interests of its own. But he said that the Canadian Gov-
ernment objected to any such restrictions, and that until its consent
47
could be obtained, Iler ]\rajesty's Government was not willing to enter
into the convention; that time would be requisite to bring about that;
and that meanwhile the convention must wait. It then became ap-
parent to Mr. Phelps tliat the British Government would not execute
the desired convention without the concurrence of Canada. Writing
to Mr. Bayard, September 12, 1888, Mr. Phelps, in giving an account
of his interview with Lord Salisbury, said : " Certain Canadian vessels
are making a prolit out of the destruction of the seal in the breeding
season in the waters in question, inhuman and wasteful as it is. That
it leads to the speedy extermination of the animal is no loss to Canada,
because no part of these seal fisheries belong to that country; and the
only profit open to it in connection with them is by destroying the seal
in the open sea during the breeding time, although many of the animals
killed in that way are lost, and those saved are worth much less than
when killed at the proper time. Under these circumstances, the Gov-
ernment of the United States must, in my opinion, either submit to
have these valuable fisheries destroyed or must take measures to prevent
their destruction by capturing the vessels emi)loyed in it. BetAveen
these alternatives it does not appear to me there should be the slightest
hesitation." U. S. Case, Vol. l,pp. 181,182.
Upon the accession of Mr. Harrison to the office of President, tne
matters in dispute between the two Governments being unsettled,
again became the subject of diplomatic correspondence. That corre-
spondence is too voluminous to be reproduced in this opinion. But a
reference to an interview between Mr. Blaine and the British minister
at Washington, which took place October 24, 1880, together with
extracts from some of the communications emanating from the State
Department, will suifice to show the general grounds ui)on which the
l)osition then taken by the United States was based.
In the report which Sir Julian Pauncefote made to Lord Salisbury of
the above interview, it is said:
" We had a great deal of friendly discussion, in the course of which
he stated that the seizures of the Canadian seal fishing vessels had
been effected by the Treasury Department, whicli is cliarged with the
protection and collection of the revenue (including that derived from
the Alaska Company), and the measure had been resorted to under the
belief that it was warranted by the act of Congress and the proclama-
tion of the President. In this view the Department had been confirmed
by the judgment of the district court of Alaska. I observed that this
48
appeared like an assertion of the marc dauswn doctrine, wliich I coald
hardly believe would be revived at the present day by his (loverument
or any other, to which he replied that his Government had not officially
asserted such a claim, and therefore it was nunecessary to discuss it.
As a matter of fact there had been no interference with any Canadian
vessels in Bering Sea except such as were found engaged in the capture
and destruction of fur seals. But his Government chiimed the exclusive
right of seal fishery, which the United States, and Eussia before them,
had practically enjoyed for generations without any attempt at interfer-
ence from any other country. Tlie fur seal was a species most valuable
to mankind and the Bering Sea was its last stronghold. The United
States had bought the islands in that sea to which these creatures
])eriodically resort to lay their young, and now Canadian fishermen
step in and slaughter the seals on their passage to the islands, without
taking heed of the Avarnings given, by Canadian officials themselves,
that the result must inevitably be the extermination of the species.
This was an abuse, not only reprehensible in itself, and opposed to the
interests of mankind, but an infraction of the rights of the United
States. It inflicted, moreover, a serious injury on a neighboring and
friendly State, by depriving it of the fruits of an industry on which vast
sums of money had been expended, and which had long been pursued
exclusively and for the general benefit. The case was so strong as to
necessitate measures of self-defense for the vindication of the rights ot
the United States and the i)rotection of this valuable fishery from des-
truction. I replied that as regarded the question of right I could not
admit that the seizure of the Can;idian vessels was justified under the
terms of the act of Congress or of the proclamation of the President.
Municipal legislation could have no operation against foreign vessels be-
yond territorial waters. A claim of exclusive fishery on the high seas
was opposed to international law, and no such right could be acquiied
by prescription. Mr. Blaine observed that he thought Great Britain
enjoyed such a right in relation to pearl fisheries in some parts of the
world. I said I was not aware of any such case. As regarded the
question of fact, namely, the extermination of the fur seal species and
the necessity for a ' close season,' there was unfortunately a conflict of
opinion. But if, uj)on a further and more complete examination of the
evidence, Her Majesty's Government should come to the conclusion
that a 'close season' is really necessary, and if an agreement should be
arrived at on the subject, all ditferences on questions of legal right
49
would ipso facto disappear. Mr. Bluine expressed his readiness to pro-
ceed to such an inquiry, adding- that he would be prepared to establish
from Cauadiau evidence alone the absolute necessity for a ' close sea-
son,' but he strongly insisted that the inquiry should take place here
and be entirely of a diplomatic character. * * * As regards com-
pensation, if an agreement should be arrived at, he felt sure that his
Government would not wish that private individnals who had acted
bona fide in the belief that tliey were exercising their lawful rights
should be the victims of a grave dispute between two great countries,
which had happily been adjusted. He was not without hope, therefore,
that the wishes I had expressed might be met, and that all might be
arranged in a manner which should involve no humiliation on either
side. His tone was friendly throughout, and he manifested a strong
desire to let all questions of legal right and interimtional law disap-
pear in an agreement for a 'close season,' which he believes to be
urgently called for in the common interest. It oidy now remains for me
to solicit your lordship's instructions in regard to the suggestion of
resuming in Washington the tripartite negotiation, with a view to
arriving, if possible, at such a solution as is proposed by Mr. Blaine."
Britisli Case, Vol, 3, App. 350-351.
After this interview the British Government made complaints of other
seizures of British vessels in the open waters of Bering Sea. Those
complaints were met by Mr. Blaine in his letter of January 22, 1890,
addressed to Sir Julian Pauncefote. As that letter contains a fuller
statement of the position of the United States than had been made up
to that time, nearly the whole of it is given, as follows:
"In the opinion of the President, the Canadian vessels arrested and
detained in the Bering Sea were engaged in a pursuit that was in
itself co/^^ra honos mores, a pursuit whichof necessity involves a serious
and permanent injury to the rights of the Government and people of
the United States. To establish this ground it is not necessary to
argue the question of the extent and nature of the sovereignty of this
Government over the waters of Bering Sea ; it is not necessary to
explain, certainly not to define, the powers and privileges ceded by
His Imperial Majesty, the Emperor of Eussia, in the treaty by which
the Alaskan Territory was transferred to the United States, The
weighty considerations growing out of the acquisinou of that territory,
with all the rights on land and sea inseparably connected therewith,
may be safely left out of view, while the grounds are set forth upon
11492 4
50
whicli tliis Govenimeiit rests its justification for tlie action complained
of by Her Majesty's Government. It cannot be nnknown to Eer
Majesty's Government tliat one of the most valuable sources of revenue
from tlie Alaskan possessions is tlie far seal fisLeries of the Bering
Sea. These fisheries had been exclusively controlled by the Govern-
ment of Eussia, without interference or without question, from their
original discovery until the cession of Alaska to the United States in
18G7. From 1867 to 1886 the possession in which Russia had been
undisturbed was enjoyed by this Government also. There was no
interruption and no intrusion from any source. Vessels from other
nations passing from time to time through Bering Sea to the Arctic
Ocean in pursuit of whales had always abstained from taking part in
the capture of seals.
"This uniform avoidance of all attempts to take fur seal in those
waters had been a constant recognition of the right held and exercised
first by Russia and subsequently by this Government. It has also been
the recognition of a fact now held beyond denial or doubt that the tak-
ing of seals in the opeu sea rapidly leads to their extinction. This is
not only the well-knowu opinion of experts, both British and American,
based upon prolonged observation and investigation, but the fact has
also been demonstrated in a wide sense by the well nigh total destruc^
tiou of all seal fisheries except the one in Bering Sea, which the Gov-
ernment of the United States is now striving to preserve, not altogether
for the use of the American people, but for the use of the world at large.
"The killing of seals in the open sea involves the destruction of the
female in common with the male. The slaughter of the female seal is.
reckoned as an immediate loss of three seals, besides the futuie loss of
the whole number which the bearing seal may produce in the succes-
sive years of life. The destruction which results from killing seals in
the open sea proceeds, therefore, by a ratio which constantly and rap-
idly increases, and insures the total extermination of the sjjecies within
a very brief i)eriod. It has thus become known that the only proper
time for the slaughter of seals is at the season w^hen they betake them-
selves to the land, because the land is the only place where the neces-
sary discrimination can be made as to the age and sex of the seal. It
would seem, then, by fair reasoning, that nations not possessing the
territory upon which seals can increase their numbers by natural growth,
and thus aftbrd an annual supply of skins for the use of mankind, should
refrain from the slaughter in open sea, where the destruction of the
species is sure and swift.
51
"After the acrjuisifciou of Alaska the Goveriiineut of the United
States, through competent agents working under the direction of the
best ex j)erts, gave careful attention to the improvement of the seal fish-
eries. Proceeding by a close obedience to the laws of nature, and rig-
idly limiting the number to be annually slaughtered, the Government
succeeded in increasing the total number of seals and adding corre-
spondingly and largely to the value of the fisheriCvS. In the course of a
few years of intelligent and interesting experiment the number that
could be safely slauglitered was fixed at 100,000 annually. The com-
pany to which the administration of the fisheries was intrusted, by a
lease from this Government, has paid a rental of 150,000 per annum,
and in addition thereto $2.C2i per skin for the total number taken.
The skins were regularly transported to London to be dressed and i^re-
pared for the markets of the world, and the business had grown so
large that the earnings of English laborers, since Alaska was trans-
ferred to the United States, aniount in the aggregate to more than
112,000,000. The entire business was then conducted peacefully, law-
fully, and profitably — profitably to the United States, for the rental was
yielding a moderate interest on the large sum which this Government
had paid for Alaska, including the rights now at issue; profitably
to the Alaskan Company, which, under governmental direction and
restriction, had given unwearied i)ains to the care and development of
the fisheries; profitably to the Aleuts, who were receiving a fair pecu-
niary reward for their labors, and were elevated from semi-savagery to
civilization and to the enjoyment of schools and churches provided for
their benefit by the Government of the United States, and, last of all,
profitably to a large body of English laborers, who had constant employ-
ment and received good wages.
"This, in brief, was the condition of the Alaska fur seal fisheries down
to the year 18S0. The precedents, customs, and rights had been estab-
lished and enjoyed either by Russia or the United States for nearly a
century. The two nations were the only powers that owned a foot of
land on the continents that bordered, or on the islands included within,
the Bering waters where the seals resort to breed. Into this peaceful
and secluded field of labor, whose benefits were so equitably shared by
the native Aleuts of the Pribilof Islands, by the United States, and by
England, certain Canadian vessels in 1886 asserted their right to enter
and by their ruthless course to destroy the fisheries, and with them to
destroy also tlie resulting indu.slrics whicli are so valuable. The
62
Government of the United States at once proceeded to check this
movement, which, unchecked, was sure to do great and irreparable
harm. It was cause of unfeigned surprise to the United States that Her
Majesty's Government should iuimediately interfere to defend and
encourage (surely to encourage by defending) the course of the Cana-
dians in disturbing an iiidiistry which had been carefully developed for
more than ninety years under the Hags of Kussia and the United States —
developed in such a manner as not to interfere with tlie public rights
or the private industries of any other people or any other person.
" Whence did the ships of Canada derive the right to do in 1880 that
which they had refrained from doing for more than ninety years ? Upon
what grounds did Her Majesty's Government defend in the year 188Ga
course of conduct in the Bering Sea which she had carefully avoided
ever since the discovery of that sea? By what reasoning did Her Mnj-
jesty's Government conclude that an act may be committed with impu-
nity against the rights of the United States which had never been
attempted against the same rights when held by the Russian Empire?
''•'So great has been the injury to the fisheries from the irregular and
destructive slaughter of seals in the open waters of the Bering Sea by
Canadian vessels that, whereas the Government had allowed 100,000
to be taken annually for a series of years, it is now compelled to reduce
the number to 60,000. If four years of this violation of natural law and
neighbor's rights has reduced the annual slaughter of seal by 40 per cent,
it is easy to see how short a period will be required to work the total
destruction of the fisheries.
"The ground ui)on which Her Majesty's Government justifies, or at
least defends, the course of the Canadian vessels rests upon the fact
that they are committing their acts of destruction on the high seas, viz,
more than 3 marine miles fi-om the shore line. It is doubtful whether
Her Majesty's Government would abide by this rule if the attempt were
made to interfere with the pearl fisheries of Ceylon, Avhich extend more
than 20 miles from the shore line and have been enjoyed by England
without molestation ever since their acquisition. So well recognized
is the British ownership of those fisheries, regardless of the limit of
the 3-mile line, that Her Majesty's Government feels authorized to
sell the pearl-fishing right from year to year to the highest bidder.
Nor is it credible that modes of fishing on tlie Grand Banks, altogether
practicable, but highly destructive, would be justified or even permitted
by Great Britain on the plea that the vicious acts were committed more
than 3 miles fiom the shore.
53
"There are, according to scientific authority, " great colonies of fisli"
on tlie "Newfouudhind Banlcs." These coh)nies resemble the seats of
great populations on land. They remain stationary, having a limited
range of water in which they live and die. In these great "colonies"
it is, according to expert judgment, comparatively easy to explode
dynamite or giant powder in such manner as to kill vast quantities of
fish and at the same time destroy countless numbers of eggs. Strin-
gent laws have been necessary to prevent the taking of fish by tlieuse
of dynamite in many of the rivers and lakes of tlie United States.
The same mode of fishing could readily be adopted with effect on the
more shallow parts of tlie banks, but the destruction of fisli in propor-
tion to the catch, says a high authority, might be as great as 10,000 to 1.
"Would Her Majesty's Government think that so wicked an act could
not be prevented and its perpetrators punished simply because it
had been committed outside of the 3-mile linel
"Why are not the two cases parallel? The Canadian vessels are
engaged in the taking of fur seals in a manner that destroys the power of
reproduction and insures the extermination of the species. In exter-
minating the species an article useful to mankind is totally destroyed
in order that temporary and immoral gain may be acquired by a few
persons. By the employment of dynamite on the banks it is not prob-
able that the total destruction of fish could be accomplished, but a
serious diminution of a valuable food for man might assuredly result.
Does Her Majesty's Government seriously maintain that the law of
nations is ]30werless to prevent such violation of the common rights of
man? Are the supporters of justice in all nations to be declared
incompetent to prevent wrongs so odious and so destru(;tive?
"In the judgment of this Government, the law of the sea is not law-
lessness. Nor can the law of the sea and the liberty which it confers
and which it protects be perverted to justify acts which are immoral in
themselves, which inevitably tend to results against the interests and
against the welfare of mankind. One step beyond that which Her
Majesty's Government has taken in this contention, and piracy finds
its justification. The President does not conceive it possible that Her
Majesty's Government could, in fact, be less indifferent to these evil
results than is the Government of the United States. But he hopes
that Her Majesty's Government will, after this frank expression of views,
more readily comprehend the position of the Government of the United
States touching this serious question. This Government has been ready
54
to concede mncli in order to adjust all differences of view, and has, in
tlie judgment of the President, already proposed a solution, not only-
equitable, but generous. Thus far Her Majesty's Government has
declined to accept the proposal of the United States. The President
now awaits with deep interest, not unmixed with solicitude, any propo-
sition for reasonable adjustment which Her Majesty's Government may
submit. The forcible resistance to which this Government is constrained
in the Bering Sea is, in the President's judgment, demanded not only
by the necessity of defending the traditional and long-established rights
of the United States, but also the rights of good government and of
good morals the world over.
" In this contention the Government of the United States has no occa-
sion and no desire to withdraw or modify the positions which it has at
any time maintained agaiust the claims of the Imperial Government of
Russia. The United States will not withhold from any nation the
privileges which it demanded for itself when Alaslca was part of the
Russian Empire. ISTor is the Government of the United States dis-
j)osed to exercise in those possessions any less power or authority than
it was willing to concede to the Imperial Government of Russia when
its sovereignty extended over them. The President is persuaded that
all friendly nations will concede to the United States the same rights
and privileges on the lands and in the waters of Alaska which the same
friendly nations have always conceded to the Empire of Russia." U. 8.
Case, Vol. J, A;pp., 200.
In his letter of December 17, 1890, in reply to Lord Salisbury's
letter of August 2, 1890, Mr. Blaine discusses with much elaboration
and with signal ability all the questions then in dispute between the
two governments. In that letter he says:
"I am directed by the President to say that, on behalf of the United
States, he is willing to adopt the text used in the act of Parliament to
exclude ships from hovering nearer to the island of St. Helena than 8
marine leagues, or he will take the example cited by Sir George Baden-
Powell, where, by permission of Her Majesty's Government, control
over a part of the ocean GOO miles wide is to-day authorized by Austra-
lian law. The President Avill ask the Government of Great Britain to
agree to the distance of 20 marine leagues — within which no ship shall
hover around the islands of St. Paul and St. George from the 15th of
May to the 15th of October of each year. This will prove an effective
mode of preserving the seal fisheries for the use of the civilized world —
55
a mode which in view of Great Britniii's assumption of power over tlie
open ocean she can not with consistency decline. (Ireat Britain pre-
scribed 8 leagues at St. Helena; but the obvious necessities in the
Bering- Sea will, on the basis of this precedent, justify 20 leagues for
the protection of the American seal fisheries.
"The United States desires only such control over a limited extent of
the waters in the Bering- Sea, for a jKirt of each year, as will be suffi-
cient to insure the protection of the fur seal fisheries, already injured,
possibly, to an irreparable extent by the intrusion of Canadian vessels,
sailing- with the encouragement of Great Britain and protected by her
flag. The gravest wrong is committed when (as in many instances is
the case) American citizens, refusing obedience to the laws of their own
country, have gone into partnership with the British flag and engaged
in the destruction of the seal fisheries which belong to the United
States. So general, so notorious, and so shamelessly avowed has this
practice become that last season, according to the report of the Ameri-
can consul at Victoria, when the intruders assembled at Unalaska
on the 4th of July, previous to entering Bering Sea, the day was
celebrated in a patriotic and spirited manner by the American citizens,
who at the time were protected by the British flag in their violation
of the laws of their own country.
"With such agencies as these, devised by the Dominion of Canada,
and protected by the flag of Great Britain, American rights and inter-
ests have, within the past four years, been damaged to the extent of
millions of dollars, with no corresx)onding gain to those who caused
the loss. * * *
"The repeated assertions that the Government of the United States
demands that the Bering Sea be pronounced /Harec/fmsMm are with-
out foundation. The Government has never claimed it and never
desired it. It expressly disavows it. At the same time the United
States does not lack abundant authority, according to the ablest expo-
nents of international law, for holding a small section of the Bering
Sea for the protection of the fur seals. Controlling a comi^aratively
restricted area of water for that one specific purpose is by no means
the equivalent of declaring the sea, or any part thereof, mare clausum.
Nor is it by any means so serious an obstruction as Great Britain
assumed to make it in the South Atlantic, nor so groundless an inter-
ference with the common law of the sea as is maintained by British
authority to-day in the Indian Ocean." U. S. Case, Vol. I, Apj)., 263, 284^
286,
56
In tlie same letter he observes that the President, not desiring the
long- postponement which an examination of tlie legal anthorities from
LTlpiau to Phillimore and Kent would involve, refers to the following
passages in the letter of Mr. Phelps of September 12, 1888, as fully ex-
pressing his own views :
"Much learning has been expended upon the discussion of the
abstract question of the right of mare clausiim. I do not conceive it
to be applicable to the i)resent ease. Here is a valuable li.'liery and a
large, and, if i)roperly managed, permanent industry, the property of the
nations on whose shores it is carried on. It is proposed by the colony
of a foreign nation, in defiance of the joint remonstrance of all the
countries interested, to destroy this business by the indiscriminate
slaughter and extermination of the animals in question in the open
neighboring sea during the period of gestation, when the common
dictates of humanity ought to protect them were there no interest at
all involved. And it is suggested that we are prevented from defend-
ing ourselves against such depredations because the sea at a certain
distance from the coast is free. The same line of argument would
take under its protection piracy and the slave trade, when prosecuted
in the open sea, or would justify one nation in destroying the commerce
of another by placing dangerous obstructions and derelicts in the open
sea near its coasts. There are many things which can not be allowed
to be done on the open sea with impunity, and against which every sea
is mare clausum; and the right of self-defense as to person and prop-
erty prevails there as fully as elsewhere. If the fish ui)on Canadian
coasts could be destroyed by scattering poison in the open sea adjacent
with some small profit to those engaged in it, would Canada, upon the
just principles of international law, be held defenceless in sucli a case?
Yet that process would be no more destructive, inhuman, and wanton
than this. If precedents are wanting for a defense so necessary and
proper it is because precedents for such a course of conduct are like-
wise unknown. The best international law has arisen from precedents
that have been established when the just occasi(m for them arose,
undeterred by the discussion of abs.tract and inadequate rules." [T.
IS. Case, Vol. 1, App., 263, 287.
At a later date, in his letter of June 14, 1891, to Sir Julian Paunce-
fote, Mr. Blaine said :
"In the opinion of the President Lord Salisbury is wholly and
strangely in error in making the following statement: 'Nor do they
57
(the ndvlsers of tlie President) reply, as a justifieatiou for the seizure
of British ships in the open sea, upon the contention that the interests
of the seal fisheries give to the United States Government any right
for that purpose which, according to international law, it would not
otherwise possess.' The Government of the United States has steadily
held just the reverse of the position which Lord Salisbury has imputed
to it. It holds tliat the ownership of the islands upon which the seals
breed, that the habit of the seals in regularly resorting thither and rear-
ing their young thereon, that their going out from the islands in search
of food and regnlarly returning thereto, and all the facts and incidents
of their relation to the island, give the United States a property interest
therein; that this property interest was claimed and exercised by Kussia
during the whole period of its sovereignty over the land and waters of
Alaska; that England recognized this property interest so far as recog-
nition is implied by abstaining from all interference with it during the
whole period of Russia's ownership of Alaska and during the first nine-
teen years of the sovereignty of the United States. It is yet to be deter-
mined whether the lawless intrusion of Canadian vessels in 18SG and
subsequent years has changed the law and equity of the case thereto-
fore prevailing." U. 8. Case, Vol. 1, App., 295, 298.
The general contention of the British Government, during the negotia-
tions, so far as the questions of right and jurisdiction were concerned,
was that Russia neither asserted nor exercised, and could never have
rightfully asserted or exercised, exclusive jurisdiction or exclusive
rights in the open waters of Bering Sea, except that by the Ukase of
1821 she forbade foreign vessels from .approaching nearer than 100
Italian miles from the coast of the North American continent between
Bering Strait and the fifty-first degree of north latitude, or the coasts
of the Asiatic continent from the same strait to the forty- fifth degree of
north latitude, or the intervening islands belonging to her; that against
this prohibition both Great Britain and the United States earnestly
protested, and it was withdrawn or abandoned by Russia when she
made the treaty of 1824 with the United States, and that of 1825
with Great Britain; that the pursuit of fur seals in the open seas could
not of itself be regarded as contra honos mores unless and until, for si)ecial
reasons, it has been agreed by international arrangement to forbid it;
that Great Britain has always claimed the freedom of navigation and
fishing in the waters of Bering Sea outside the usual territorial limit of
58
one marine league from tlie coast; that the public right to fish, catch
seals, or pursue any other lawful occupation on the high seas can not
be held to be abandoned by a luition from the mere fact that for a cer-
tain number of years it has not suited the subjects of that nation to
exercise it; that fur seals were animals ferm naturoSj and were res
nullius until caught; that no person could have property in them
until he had actually reduced them into possession by capture, and
that auy interference by the United States with the hunting and
taking of these fur seals, in the open waters of the ocean, by the
citizens or subjects of Great Britain, was a violation of rights secured
to them by the law of nations.
The result of the negotiations was the treaty of February 29, 1892,
under which this Tribunal is proceeding.
2.
JURISOICTION ANI> RIOHTS AS!«iEKTK» AIVD KXISRCISf:!) BY RFS-
SSA IIV BKKEI^C} SEA, AX]» BIV RES^SPECT TO TBEE SEAt, FISHERIES
IIV THAT SEA, l>RIOR TO THE tJESSION OE 1S67 OF AI.ASKA TO
THE UIVBTED STATES.
EFFECT OF THE TKEATV COIVC5iU©ED IN iS35 BETWEEN RUSSIA
AIV» OREAT BRITAIN.
THE RICJHTS THAT PASSED TO THE UNITED STATES BY THE
TREATY OF tKSSION OF lS«r.
With the knowledge of the origin and history of the controversy
between the two Governments which the above stateaieut furuishes we
are the better i^repared to con-^ider the particular questions which
this treaty requires this Tribunal to determine.
By Article VI of the treaty of February 29, 1892, it was provided
that
"In deciding the matters submitted to the Arbitrators it is agreed
that the following five points shall be submitted to them in order that
their award sliall embrace a distinct decision upou each of said five
points, to wit:
"1. What exclusive jurisdiction in the sea now known as the Bering
Sea, and what exclusive rights in the seal fisheries therein, did Russia
assert and exercise prior and up to the time of the cession of Alaska to
the United States'?
"2. How far were these claims of jurisdiction as to the seal fisheries
recognized and conceded by Great Britain?
59
"3. Was the body of water now known as the Bering Sea included
in the phrase 'Pacific Ocean,' as used in the treaty of 1825 between
Great Britain and Enssia, and what rights, if any, in the Bering
Sea were held and exclusively exercised by Eussia after said treaty?
"4. Did not all the rights of Eussia as to jurisdiction and as to the
seal fisheries in Bering Sea east of the water boundary in the treaty
between the United States and Eussia of the 30th March, L867, pass
unimpaired to the United States under that treaty ?
"5. Has the United States any right, and, if so, what right, of pro-
tection or property in the fur seals frequenting the islands of the
United States in Bering Sea when such seals are found outside
the ordinary three-mile limit?"
All of the j)oiiits specified in this article of the treaty are, in iny
judgment, embraced in the general questions for the amicable settle-
ment of which this Tribunal has been constituted, and which are
described in Article I of the treaty as questions ''concerning the juris-
dictional rights of the United States in the waters of Bering Sea, and
concerning also the preservation of the fur seal in, or habitually resort-
ing to, said sea, and the rights of the citizens or subjects of either
country as regards the taking of fur seal in, or habitually resorting to,
the said waters." These general questions may properly be met by
the answers tlie Tribunal makes to the points particularly named in
Article VI. If they are not so met, then it will be the duty of Arbi-
trators to make such additional answers as will cover all the mat-
ters embraced in Article I. An award that does not dispose of those
points, as well as of the several matters generally named in Article
I, might be disregarded as not such a decision as the treaty requires.
It was not Avithiu the contemplation of the two governments that any
matter embraced in either article should be left undetermined by the
Tribunal. In the belief that the entire controversy in respect to the
questions and i)oints enumerated in those artic^les would be concluded
by the award, the two governments engaged, in Article XIV, "to
consider the result of the proceedings of the Tribunal of Arbitration,
as a full, perfect, and final settlement of all questions referred to the
Arbitrators," and to cooperate in securing the adhesion of other powers
to such regulations as might be prescribed.
The first point in Article VI of the Treaty involves an inquiry as to —
What exclusive jttrisdiction in the sea now Joiowu as the Bering Sea,
60
and wJiat exclusive rights in the seal fisheries therein, did Bussia assert
and exercise prior and up to the time of the cession of Alaska to the
United States?
The relations lield by Russia to Bering Sea and to the fisheries
therein, Uirgely involve the interpretation to be given to what are called
the Ukases of 1799 and 1821, to the treaty of 1821 between Enssia
and the United States, and the treaty of 1825 between Eussia and
Great Britain. Those treaties were the result of negotiations that
followed the vigorous protests made by the United States and Great
Britain against the Ukase of 1821. I will later on consider their effect
upon any claims of jurisdiction and authority asserted by Russia.
The Ukase of 1799, as it is commonly called, was little more than a
charter granted to the Russian American Company. The material
portions of it are in these words:
"By the grace of a merciful God, we, Paul the First, Emporor and
Autocrat of all the Russias, etc. To tlie Russian American Company
under our highest protection. The benefits and advantages resulting
to our emi)ire from the hunting and trading carried on by our loyal
subjects in the nortlieastern seas and along the coasts of America have
attracted our imperial attention and consideration; therefore, having
taken under our immediate protection a comjiany organized for the
above-named iiurpose of carrying on hunting and trading, we allow it
to assume the appellation of "Russian American Company, operating
under our Highest Protection;" and for the purpose of aiding the com-
pany in its enterprises, we allow the commanders of our land and sea
forces to employ said forces in the company's aid, if occasion requires it,
while for further relief and assistance of said company, and having
examined their rules and regulations, we hereby declare it to be our
highest Imperial will to grant to this company for a period of twenty
years the following rights and privileges:
"I. By the right of discovery in past times by Russian navigators of
the northeastern part of America, beginning from the fifty-fifth degree
of north latitude and of the chain of islands extending from Kamchatka
to the north to America, and southward to Japan, and by right of pos-
session of the same by Russia, we most graciously permit the company
to have the use of all hunting grounds and establishments now exist-
ing on the northeastern coast of America, from the above-mentioned
fifty-fifth degree to Bering Strait, and also on the Aleutian, Kuiiie,
and other islands situated iu the Northeastern Ocean.
61
"II. To make new discoveries not only north of the fifty-fifth degree
of north latitude but farther to the .south, and to occupy the new lands
discovered as Russian possessions, according to prescribed rules, if
they have not been previously occupied by or been dependent on any
other nation.
"III. To use and jjrofit by everything that has been or shall be dis-
covered in those localities, on the surface and in the interior of the
earth, without competition from others.
"ly. We most graciously permit this company to establish settle-
ments in future times wherever they are wanted, according to its best
knowledge and belief, and fortify them to insure the safety of the in-
habitants, and to send ships to those shores with goods and hunters,
Avitliout any obstacles on the part of the Government.
" V. To extend their navigation to all adjoining nations and hold busi-
ness intercourse with all surrounding powers, upon obtaining their free
consent for the purpose, and under our highest protection to enable
them to j)rosecute their enterprises with greater force and advantage.
"VI. To employ for navigation, hunting, and all other business, freeand
unsuspected people, having no illegal views or intentions. * * *
"X. The exclusive right is most graciously granted to the company
for a period of twenty years, to use and enjoy, in the above extent of
country and islands, all profits and advantages derived from hunting,
trade, industries, and discovery of new lands, prohibiting the enjoy-
ment of these profits and advantages not only to those who would wish
to sail to those countries on their own account, but to all former hunters
and trappers who have been engaged in this trade and have their
vessels and furs at those places; and other comj)anies which may have
been formed will not be allowed to continue their business unless they
unite with the present company with their free consent; but such
private companies or traders as have their vessels in those regions can
either sell their proijerty, or, with the company's consent, remain until
they have obtained a cargo, but no longer than is required for the
loading and return of the vessel; and after that nobody will have any
privileges but this one company, which will be protected in the enjoy-
ment of all the rights mentioned.
"XI. Under our highest protection the Russian-American Company
will have full control over all above-mentioned localities, and exercise
judicial powers in minor cases. The company will also be permitted
to use all local facilities for fortifications in the defense of the country
62
under tlieir control against foreign attacks. Only partners of the
companj'^ shall be employed in the administration of the new possessions
in charge of the company." U. 8. Case, Vol. 1, App., 14.
This is the translation of the Ukase of 1799 as given in the origi-
nal Cases of both governments. It is also identical with that found
in Bancroft's History of Alaska, the author stating that the translation
adojited by him is based on the full text of the charter from Golovnin
in Materialui I. 77-80. Bancroffs Works, Vol. 33, History of Alaslca,
p. 379.
In the British Counter Case it is said that the above translation is
inaccurate, and what is now claimed to be a correct rendering of the
original Eussian document, as given by Golovnin and Tikhmenie, is
produced. But at the oral argument it was admitted that the differ-
ences between these translations did not materially affect any questions
depending upon the construction of the Ukase of 1799. For that reason
the latter translation is not embodied in this opinion.
Did this Ukase assert an exclusive jurisdiction upon the part of Rus-
sia over any part of Bering Sea beyond ordinary territorial waters'?
It is quite true that at the time the Ukase of 1799 was issued all the
islands in Bering Sea had become a part of the territory of Russia by
right of discovery and occupancy, within the rules announced by the
Supreme Court of the United States in Johnson vs. McItosU, 8 Wheat.,
543, 572. In that case Chief Justice Marshall, speaking for the court,
said: " On the discovery of this immense continent, the great nations of
Europe were eager to appropriate to themselves so much of it as they
could respectively require. Its vast extent afforded an ample field to
the ambition and enterprise of all; and the character and religion of its
inhabitants afforded an apology for considering them as a x^eople over
whom the superior genius of Europe might claim an ascendancy. The
potentates of the old world found no difflculty in cojivincing themselves
that they made ample compensation to the inhabitants of the new by
bestowing upon them civilization and Christianity in exchange for unlim-
ited independence. But as they were all in pursuit of nearly the same
object it was necessary, in order to avoid conflicting settlements and con-
sequent war with each other, to establish a principle, which all should
acknowledge as the law, by which the right of acquisition, which they all
asserted, should be regulated as between themselves. This principle
was that discovery gave title to the government by whose subjects, or
63
by wliose autliority, it was made, against all otlier European govern-
ments, wLich title might be cousuiumated by xiossessiou. The exclu-
sion of all other Europeans necessarily gave to the nation making the
discovery the sole right of acquiring the soil from the natives, and estab-
lishing settlements upon it. It was a right with which no Europeans
could interfere. It was a right which all asserted for themselves, and to
the assertion of which by others all assented."
In my judgment there is nothing in the Ukase of 1799 which either
expressly or by necessary implication indicates the purpose of Russia
to assert such sovereign authority over the open waters of Bering
Sea as would enable it to exclude the vessels of other powers from
that sea, or even to prohibit hunting or fishing in its waters, beyond
the ordinary territorial limits x^rescribed by the law of nations.
Prior to 1799 numerous rival comx)anies or associations, maintained
by Eussian capital, were engaged in trading with the native inhabit-
ants residing on the coasts or islands of Bering Sea. Many com-
plaints were made to the Emperor of cruelty and wrong practices by
those associations toward the natives. The " promyshleniki," it was
said, "could easily toke by force what they had not the means to buy, or
what the natives did not care to sell." "Thus," says Bancroft, "foi
many years matters were aUowed to take their course; but toward the
end of the eighteenth century the threatened exhaustion of the known
sources of supply caused much uneasiness among the Siberian mer-
chants engaged in the fur trade, and some of them endeavored to rem-
edy the evil by soliciting special privileges from the Government for
the exclusive right to certain islands, with the understanding that a
fixed percentage of the gross yield — usually one-tenth — was to be paid
into the public treasury. Such privileges were granted freely enough,
but it was another matter to make the numerous half-piratical traders
respect or even pay the least attention to them." History of Alaska^
375-6. And we have the authority of a report made by a committee,
under royal permission, for saying that out of this condition of aftairs
arose the necessity recognized by the Russian Government of one
strong company which " would serve on the one hand to perpetuate
Russian supremacy tliere, and on the other woidd prevent many dis-
orders and preserve the fur trade, the principal wealth of the country,
affording i)rotection to the natives against violence and abuse, and
tending toward a general improvement of their condition." Hence
the creation of the Russian-American Company by the Ukase of 1799>
64
to wliicli. accoidiiiii' to tlie same report, "was granted full privi-
leges, for a i^eriod of twenty years, on the coast of Northwestern
America, beginning from latitude 55° north and including the
chain of islands extending from Kamschatka northward to America
and southward to Japan; the exclusive right to all enterprises, whether
hunting, trading, or building, and to new discoveries, with strict pro-
hibition from profiting by any of these pursuits not only to all parties
who might engage in them on their own responsibility, but also to those
who formerly had ships and establishments there, except those who
have united with the new company." Bancroffs History of Alasla,
37.9; Ueport on Euss. Amer. Colonies., MS. vi, 13.
Undoubtedly it was intended that the Russian-American Company
should enjoy these rights and privileges without competition — that is,
exclusively, against all, whether Russian subjects or the subjects of
other countries. But the rights and privileges so granted were only
such as related to business carried on within the territorial dominion
or authority of Russia. If the translation of this Ukase, as given in
the original Cases of the two governments be the correct one, the exclu-
sive right granted to the Russian- American Company for twenty years
was only to use and enjoy " in the above extent of country and islands
all profits and advantages derived from hunting, trade, industries,
and discovery of new lands." If the translation embodied in the Brit-
ish Counter Case be the correct one, then the grant was of an " exclusive
right to all acquisitions, industries, trade, establishments, and dis-
covery of new countries" thronghout the "entire extent of the lands
and islands described." Neither translation supports the suggestion
that the Emperor of Russia intended to assert sovereign power over
any part of Bering Sea outside of territorial waters, and thereby in-
terfere with the freedom of navigation in the open waters of that sea,
or with any such use of those waters by the citizens or subjects of
other countries as was sanctioned by the law of nations. He intended
only to assert an exclusive right to control, for the benefit of a par-
ticular company taken under his protection, all the profits and ad-
vantages to be derived from the business, trading, and industries
conducted tcithin territorial waters and on the coasts and islands of
Russia. When the Ukase of 1799 was issued, the hunting of fur seals
in the open waters of the ocean, beyond territorial jurisdiction, was
unknown.
The only i)art of the Ukase of 1799 that seems to give any support
65
whatever to the opposite view are the words in the first paragraph
referring to the benefits and advantages that resulted to the Em^iire
from the hunting and trading carried on by the Emperor's loyal subjects
"^?^ the northeastern seas and along the coasts of America." But
that was merely a recital — in what may, not unreasonably, be called
the preamble of the company's charter — of the fiict that Russians had
been engaged in hunting and trading, not only "along the coasts of
America," but "in the northeastern seas;" not that they had been so
engaged in those waters, to the exclusion of the citizens or subjects of
other countries rightfully engaged in commerce and navigation on the
high seas.
This is made clear by the granting clause of the company's charter,
which, referring to the discovery by Eussian navigators of the north-
eastern [northwestern] part of America, and of certain islands, and of
the possession held in those localities by Russia, permits the company
to have the use, (not of the northeastern seas, but) of all hunting grounds
and establishments then existing "on the northeastern [northwestern]
coast of America," from the fifty-fifth degree of latitude to Bering
Strait, " and also on the Aleutian, Kurile, and other islands, situated in
the Northeastern Ocean." And, as already stated, the exclusive right,
granted to the company, as declared in section 10, was "to use and
enjoy, in the above-described extent of country and islands, all profits
and advantages derived from hunting, trade, industries, and discovery
of new lands."
In my judgment there is nothing in the record which even remotely
sustains the theory that Russia intended, by the Ukase of 1799, to
assert exclusive jurisdiction over, or any sovereign control of, the
northeastern sea outside of territorial waters. The only jjurpose was
Uj give. to a favored company exclusive privileges within the territory
and dominion of that nation. In respect to that Ukase, Mr. Middle-
ton, the United States Minister at St. Petersburg, who negotiated the
Treaty of 1821 with Russia, said, in a letter to Mr. Adams that it " is,
in its form, an act i)urely domestic, and was never notified to any foreign
state with injunction to respect its j)rovisions." Ainerican State Papers,
Foreign Relations, vol. 5, p. 461.
'^OY, in ray judgment, is there any document or fact in the public
history of Russia, as disclosed in the record before us, which justifies
the contention that that country asserted or exercised, jirior to 1831,
exclusive jurisdiction over the waters of Bering Sea or any exclusive
rights in the seal fisheries in that sea, outside of territorial waters.
11492 5
This bringf? ns to an exaiiiination of tlio Ukase of 1S21, tlie ])rovdsioiis
of wliich, as well as the iiegotiatious that arose fiom its promulgation,
were the subject of extended comment by counsel.
Between 179!) and 1831 the waters of Bering- Sea were visited by-
vessels fiom various countries in charge of i^ersons engaged in the
hunting of whales, and who also carried ou illicit and forbidden trade
of diflterent kinds with tlie native inhabitants of Russian territories,
in violation of the established policy of the Russian Government. For
the purpose of breaking up that trade and enforcing the policy of his
Government, the Emperor of Russia issued the following Edict, called
the Ukase of 1821:
"Observing from reports submitted to us that the trade of our sub-
jects on the Aleutian Islands and on the northwest coast of America,
appertainingunto Russia, is subjected,because of secret and illicit traffic,
to oppression and impediments; and finding that the principal cause
of these difficulties is the want of rules establishing the boundary for
navigation along these coasts, and the order of naval communication
as well in these places as on the whole of the eastern coast of Siberia
and the Kurile Islands, we have deemed it necessary to determine these
communications by specific regulations which are hereto attached.
In forwarding these regulations to the directing senate, we command
that the same be published for universal information, and that the
proper measures be taken to carry them into execution."
Those regulations are entitled ^^ Rules estahlMicd for the limits of
navigation and order of communication along the coast of eastern Sibe-
ria, the northwest coast of America^ and the Aleutian, Kurile, and other
islands^ As given in the Cases of both Governments, they contain
among other provisions, the following:
"Sec.1. The pursuits of commerce, whaling, and fishery, and of all
other industries, on all islands, ports, and gulfs, including the whole of
the northwest coast of America, beginning from the Bering Straits, to
the fifty first degree of northern latitude, also from the Aleutian Islands
to the eastern coast of Siberia, as well as along the Kurile Islands, from
Bering Straits to the South Gape of the Islands of Urup, viz: to the
45'^ 50' northern latitude, is exclusively granted to Russian subjects.
" Sec. 2. It is therefore prohibited to all foreign vessels, not only to
land on the coasts and islands belonging to Russia, as stated above,
but also to approach them within less than 100 Italian miles. The trans-
gressor's vessel is subject to confiscation, along with the whole cargo.
67
"Sec. 3. An exception to tliis rule is to be made in favor of vessels
carried tliitlier by heavy gales or real want of provisions and unable
to make any otber shore but such as belongs to Russia. In those cases
they are obliged to produce convincing proofs of actual reason for such
exception. Ships of friendly governments merely on discoveries are
likewise exempt from the foregoing rule. In this case, however, they
must previously be provided with passports from the Russian minister
of the i^avy.
•'Sec. 4. Foreign merchant ships which, for reasons stated in the fore-
going rule, touch at any of the above-mentioned coasts are obliged to
endeavor to choose a place where the Russians are settled, and to act
as hereunder stated.
"Sec. 14. It is likewise interdicted to foreign ships to carry on any
tratKic or barter with the natives of the islands and of the northwest
coast of America in the whole extent above mentioned. A ship con-
victed of any trade shall be confiscated.
"Sec. 25. In case a ship of the Russian Imperial ISTavy, or one be-
longing to the Russian- American Company, meet a foreign vessel on the
above-stated coasts, in harbors or roads within the before-mentioned
limits, and the commander find grounds by the present regulation
that the ship be liable to seizure he is to act as follows:
" Sec. 26, The commander of a Russian vessel suspecting a foreign to
be liable to confiscation, must inquire and search the same, and, finding
her guilty, take possession of her. Should the foreign vessel resist he
should employ persuasion, then threats, and at last force, endeavoring,
however, at all events, to do this with as much reserve as possible. If
the foreign vessel employ force against force, then he shall consider the
same as an evident enemy, and force her to surrender according to the
naval laws." U. S. Case, Vol. I, p. J6.
In Mr. Blaine's letter of June 30, 1890, to Sir Julian Pauncefote,
there is a translation of sections 1 and 2 of this Ukase that differs
somewhat (though not, in my opinion, materially) from the translation
of the same sections given inthe Cases of the two Governments. The
translation followed by Mr. Blaine is as follows:
"Sec. 1. The transaction of commerce and the pursuit of whaling and
fishing, or any other industry on the islands, in the harbors and inlets,
and, in general, all along the northwestern coast of America from
Bering Strait to the fifty-first parallel of northern latitude, and like-
wise on the Aleutian Islands and along the eastern coast of Siberia,
68
and on tlie Kiuile IsLnuLs; tliat is, ftoiii P>criiig Straits to the south-
ern promontory of the Island of Uru]), viz, as far south as latitude 45° 50'
north, are exclusively reserved to subjects of theKussian Government.
"Sec. 2. Accordingly, no foreign vessel shall be allowed either to
put to shore at any of the coasts and islands under Eussian dominion,
as specified in the preceding section, or even to a]>proach the same to.
within a distance of less than 100 Italian miles. Any vessel contravening
this provision shall be subject to confiscation with her whole cargo."
TJ. 8. Case, Vol. 1, App., 224, 226.
Does the Ukase of 1<S21 — looking first to its words only — import an
assertion upon the part of Russia of exclusive jurisdiction over the
open waters of Bering Sea, or of exclusive rights in what are called
the seal fisheries in those waters? If not, what was the extent and
nature of the jurisdiction so asserted"?
This Ukase appears, upon its face, to be based upon reports sub-
mitted to the Emperor touching the trade of his subjects, not in Bering
Sea, but "on. the Aleutian Islands and on tlie northwest coast of
America." The first regulation has reference to "the pursuits of com-
merce, whaling, and fishery, and of all other industry on all isla nds, iwrts,
and gulfs, including the whole of the northwest coast of America," and
^^ along the Kurile Islands." The same regulation according to the
translation given in the letter of Secretary Blaine to Sir Julian Paunce-
fote, refers to " the transaction of commerce and the pursuits of whaling
and fishing, or any other industry, on the islands, in the harbors and
inlets, and, in general, all along the northwestern coast of America."
Considering next the circumstances under which this Ukase was
issued, we find that Russia had numerous colonial establishments and
industries on certain coasts and islands. And there were i)orts, gulfs,
harbors, and inlets contiguous to its possessions, and constituting part
of its territorial waters, in which foreigners carried on trade to the prej-
udice of the Russian- American Company and in violation of the
established policy of Russia. The Emperor, as his edict shows, claimed
that an illicit trade had been illegally carried on by foreigners with
those establishments and with the native population. He desired
that Russian subjects alone should enjoy the benefits of those estab-
]isliment,s, and of the industries under the control of or belonging to
Jiussia. It was " therefore" — that is, to that end — foreign vessels were
prohibited, not from entering Bering Sea, but from landing on the
coasts and islands of Russia named in the first regulation, or approach-
69
iuf? tbein Avithin less than 100 Italian miles. The transj^ressor's vessel
aud cargo would not have beeu subject to coiifiscatiou, under the rega-
latious established, by engaging iu whaling or fishing in the opeu
waters outside of the line defined iu the second regulation, namely,
100 Italian miles from the particular coasts and islands specified in
the Ukase and regulations. Whether, therefore, refereace be made to
the words of the Ukase or to the circumstances under which it was
promulgated, it is quite clear that Kussia did not intend by that edict
to assert any exclusive authority over the waters of Bering Sea out-
side of 100 Italian miles from the coasts and islands described in the
first regulation.
That we have properly interpreted the Ukase and regulations of
1821 is, in part, shown by the second charter granted to the Eussian-
American Company, a few days after the above regulations were pro-
uu)lgated. That charter states that the company was established " for
carrying on industries and trade on the mainland of Northwestern
America, on the Aleutian Islands, and on the Kurile Islands,''^ and that
"it enjoys the privilege of hunting and fishing to the exclusion of all
other Russian or foreign subjects," not throughout Bering Bea, but
"throughout the territories long since in the possession of Russia
on the coast of Northwest America, beginning at the northern point
of the Island of Vancouver in latitude 51"^ north, and extending
to Bering Strait and beyond, as well as on all islands adjoining
this coast, and all those situated between that coast and the eastern
shore of Siberia, as well as on the Kurile Islands where the company
has engaged in the hunting down to the South Cajie of the Island of
Urup, in latitude 45° 50'." This clearly indicates that the exclusive
privileges granted to the liussianAmerican Compjiny had no reference
to hunting, trading, fishing, and industries in the oj)eu seas outside of
100 Italian miles from the coasts defined in the regulations of 1821.
That line was established by Kussia simply as a means — and it was
deemed by the Emperor sufficient for that purpose — of i^reventing for-
eigners from coming into contact with its colonial trade and industries,
and thereby interfering with the enjoyment by the Russian-American
Company of the exclusive rights and privileges granted to it.
Turning to the diplomatic correspondence between Russia and the
United States, what do we find? This Ukase, and the regulations
promulgated in execution of it, were brought to the attention of the
governments of both the United States and of Great Britian: to the
70
former, by M. de Poletica, tlie Eussian minister at Washington, in an
official commiiiiicatiou dated January 30, 1822, addressed to John
Qiiiucy Adams, the Americau Secretary of State. Mr. Adams rei)lied,
under date of February 25, 1822, expressing, by direction of the Presi-
dent, his surprise at this " assertion of a territorial claim on the part
of Kussia extending to the fifty-hrst degree of north latitude on this
continent, and a regulation interdicting to all commercial vessels other
than Russian, under tlie penalty of seizure and confiscation, to
ai^proach upon the high seas within 100 Italian miles of the shore to
which that claim is made to apply." After observing that the exclu-
sion of the vessels of citizens of the United States from the shore
''beyond the ordinary distance to which territorial jurisdiction
extends" had excited still greater surprise, he inquired whether the
Russian minister was authorized to give explanation of the grounds of
right, upon principles generally recognized by the laws and usages of
nations, which could warrant the action of Kussia. U. 8. Case,
Vol. 1, App.j 132. It is clear that Mr. Adams did not interpret the
Ukase as asserting jurisdiction over Bering Sea, except to the extent
of 100 Italian miles from the coasts specitied. Equally explicit were
the declarations of the American Minister at St. Petersburg, who in a
confidential memorandum sent to Mr. Adams, said: " The extension of
territorial rights to the distance of 100 Italian miles upon two opposite
continents, and the prohibition of approaching to the same distance
from those coasts, or from those of all the intervening islands, are
innovations on the law of nations, and measures unexampled." Amer-
ican State Papers, Vol. 5, p. 452.
M. Poletica, February 28, 1822, replied at some length, in justifica-
tion of the edict promulgated by the Emperor of Russia. He recited
numerous facts which, in his judgment, sustained the claims of Russia
to the extent specified in the regulations for the Russian- Americau
Comj)any — resting the title of his Government upon first discovery,
first occupancy, and peaceable, uncontested jjossession for more than
half a century i^rior to the independence of the United States. In
respect to the territory claimed by Russia, he said that the Imperial
Government, in assigning for limits to the Russian i)ossessions on the
northwest coast of America, on the one side Bering Strait and on
the other the fifty-first degree of north latitude, has only made a mod-
erate use of an incontestable right, "since the Russian navigators, who
wore the first to explore that part of the American continent in 1711,
71
puKsliecl their discovery as far north as the forty-ninth degree of north
hititude.'' The hfty-tirst degree, therefore, he said, was no more than a
mean point between the Russian establisliment of ISTew Archangel, situ-
ated under the fifty seventh degree, and the American colony at the
mouth of the Columbia, which is found under the forty-sixth degree of
the same latitude.
To what extent the Ukase was intended to interfere with the free
use of the waters outside of ordinary territorial limits, will appear in
the following extracts from the above letter of M. Poletica :
"I shall be more succinct, sir, in the exposition of the motives which
determined the Imperial Government to prohibit foreign vessels from
approacliing the northwest coast of America, belonging to Russia,
within the distance of at least 100 Italian miles. This measure, how-
ever severe it nuiy at lirst view appear, is, after all, but a measure of
prevention. It is exclusively directed against the culpable enterprises
of foreign adventurers, wlio, not coutent with exercising upon the
coasts above mentioned an illicit trade very prejudicial to the rights
reserved entirely to the Russian- American Company, take upon them
besides to furnish arms and amnuinition to the natives in the Rnssiau
provinces in America, exciting them likewise, in every manner, to
resistance and revolt against the authorities there established. The
American Government doubtless recollects that the irregular conduct
of these adventurers, the majority of whom was composed of American
citizens, has been the object of the most pressing remonstrances on the
part of Russia to the Federal Government from the time that diplomatic
missions were organized between the two countries. These remon-
strances, repeated at different times, remain constantly without effect,
and the inconveniences to which they ought to bring a remedy con-
tinue to increase. * * * Pacific means not having brought any
alleviation to the just grievances of the Russian- American Company
against foreign navigators in the waters which environ the establish-
ments on the northw^est coast of America, the Imperial Government
saw itself under the necessity of having recourse to the means of
coercion, and of measuring the rigor according to the inveterate char-
acter of the evil to wliich it wished to put a stop. Yet, it is easy to
discover, upon examining closely the last regu]ati(m of the Russian-
American Company, that no spirit of hostility had anythiiig to do with
its formation. The most minute precautions have been taken in it to
prevent abuses of authority on the part of commanders of Russian
72
(•misers appointed for the execution of said regulation. At the same
time it lias not been neg'lected to give all the timely publicity neces-
sary to put those iipon their guard against whom the measure is aimed.
Its action, therefore, cau oidy reach the foreign vessels which, iu spite
of the notitication, will expose themselves to seizure by iufringiug w^o?i
the line inarlced out hi the regulation. The Government flatters itself
that these cases will be very rare; if all remain as at present apiiears,
not one.
"I ought, in the last place, to request you to consider, sir, that the
Russian possessions in the Pacific Ocean extend, on the northwest
coast of America, from Bering Strait to the fifty-first degree of north
latitude, and on the opposite side of Asia and the islands adjacent
from th-e same strait to the forty-fifth degree. The extent of sea to
which these possessions form the limits, comprehends all the conditions
attached to shut seas ('mers fermees'), and the Eussian Government
might consequently judge itself authorized to exercise ujion this sea
the right of sovereignty, and especially that of entirely interdicting
the entrance of foreigners. But it irreferred asserting only its essential
rights, without taking any advantage of localities." British Case,
Vol. i, App., x)P' 28, 30; U. S. Case, Vol. 1, AjJp., 133.
Equally exi)licit were the declarations made by the Russian Gov-
ernment, to the British Government, in an official communication, dated
November 12, 1S21, addressed by Baron Nicolay, the Russian Ambassa-
dor at London, to the Marquis of Londonderry, then at the head of the
British Foreign Office. After referring to the complaints which the
operations of smugglers and adventurers along the northwest coast of
America belonging to Russia have more than once given rise to, which
operations had for their object ''a fraudulent commerce in furs and other
articles which are exclusively reserved to the Russo-American Com-
pany," and betrayed a purpose to excite resistance or revolt, upon the
part of the natives, to established authority, Baron Nicolay said :
"It was, therefore, necessary to take severe measures against these
intrigues, and to protect the company against the hurtful prejudices
that resulted, and it was with that end in view that the annexed regu-
lation has just been published.
" This new regulation does not forbid foreign vessels to navigate the
seas that ivash the shores of the Russian Possessions on the northwest
coast of America and the northeast coast of Asia. Such a prohibition —
which it would not have been difficult to enforce with a sufficient naval
force — would, of a truth, have been the most efficacious means of \)vo-
73
tectingthe interests of the Russo American Company; and, moreover,
it would appear to be based upon incontestable rights. For, on the
one hand, to remove all foreign ships, once for all, from the coast above
referred to, would be to put an end forever to the illegal operations
which it is necessary to prevent. On the other hand — considering tlie
Kussian possessions, whicli extend on the northwest coast of America
from the Bering Strait to the fifty-first degree of north latitude, as
well as on the coast of Asia opposite and on the adjacent islands, from
the same strait to 45° — it can not be denied that the sea of which these
possessions form the bounds embraces all the conditions that the most
widely known and best accredited publicists have attached to the
definition of a closed sea, and that, therefore, the Russian Government
lias perfect authority to exercise the rights of sovereignty over that sea
and particularly that of forbidding the approach of foreigners. Never-
theless, however important the considerations may have been that
claimed such a measure, however legitimate such a measure would in
itself have been, the Imperial Government did not wish, on this occa-
sion, to exercise a power which is assured to it by the most sacred title
of possession, and which is, besides, confirmed by irrefragable author-
ities. The Government, however, limited itself— as can be seen by the
newly published regulation — to forbidding all foreign vessels not only
to land on the settlements of the American Company, and on the
Peninsula of Kamschatka and the coasts of the Okhotsk Sea, but also
to sail alonfj the coast of these possessions, and, as a rule, to ajjproacJi
them tcithin 100 Italian miles.
" Vessels of the Imperial Marine have just been sent to see that this
arrangement is carried out. The arrangement appears to us to be as
lawful as it is urgent. For, if it is shown that the Imperial Govern-
ment had strictly the right to close to foreigners that portion of tlie
Pacific Ocean which is bouiuled by our ])ossessions in America and
Asia, a fortiori the right in virtue of which it has just adopted a much
less restrictive measure should not be called in question. This riglit,
in effect, is universally admitted, and all maritime powers have exer-
cised it more or less, in their colonial system." British Case, Vol. 2,
App., p. 1.
These official declarations of the Russian Govermment through its
accredited representatives are in harmony with the words of the Ukase
of 1821. They show: (1) That the object of that Ukase was to prevent
foreigners (to use the language of M. de Poletica) "from exercising upon
74
the coasts above mentioned au illicit trade very prejudicial to the riglits
reserved entirely to the liussian- Vmciican Company," and from fur-
nisliiug " arms and animunitiou to tlie natives in the Eussian possessions
in America," and (to use the language of Bnron Mcolay) from landing
<'on the settlements of the American Company, and on the Peninsula
of Kamschatka and the coasts of Okhotsk Sea, and from sailing along
the coasts of those possessions, and, as a rule, from approaching them
within 100 Italian miles." (2) That, in order to accomplish those ends?
foreign vessels were not to infringe upon ''the line marked out in the
regulations," and therefore not to approach the coasts within a less
distance than that specified. (3) That while Russia claimed that it
could jpstly assert the rights of sovereignty over all the waters
between the North American and Asiatic Continents, from Bering Strait
to the fifty-first degree of north latitude on the American side, and
from the same strait to the forty-fifth degree of north latitude on the
Asiatic side, it limited' in the Ukase of 1821 its actual assertion of
sovereignty over the waters within or inside of a certain line. It
consequently declared that the Ukase of 1821 had reference only to
the waters within 100 Italian miles from the coasts mentioned.
Additional proof of all this is found in the letter of Mr. Adams, the
American Secretary of State, of March 30, 1822, replying to the above
communication from M. Poletica, and in the latter of M. Poletica to
Mr. Adams, dated April, A. D. 1822. Mr. Adams, in his letter, said:
" With regard to the suggestion that the Eussian Government might
have justified the exercise of sovereignty over the Pacific Ocean as a
close sea, because it claims territory both on its American and Asiatic
shores, it may suffice to say that the distance fiom shore to shore on
this sea, in the latitude of 51 degrees north, is not less than 90 degrees
of longitude or 4,000 miles." To this M. Poletica responded : " In the
same manner the great extent of the Pacific Ocean at the fifty-first
degree of north latitude can not invalidate the right which Eussia may
have of considering that part of the ocean as close. But as the
Imperial Government has not thought it fit to take advantage of that
right, all further discussion on this subject would be idle." U. 8.
Case, Vol. 1, App., 134, 135.
The next point in Article VI to be considered is that involved in the
inquiry:
'■'■ Iloiofar were these claims of JHrlsdicAion as to the seal fisheries
recognized and conceded by Grcal BrilaliiP^
75
Tlie use liere of the word "jurisdiction" creates some doubt as to
the in-ecise object of the questiou. But it must be assumed that the
purpose was to ascertain whether, iu the judgment of this Tribunal,
Great Biitain recognized and conceded any claim of jurisdiction, upou
the part of Russia, over the waters of Bering Sea, or over any fish-
eries in that sea, outside of the ordinary limit of territorial waters.
So interpreting- the question, I have no doubt of the answer which
must be made to it. The ofiflcial correspondeiiee between the gov-
ernments of Great Britain and Russia shows that throughout the
whole of the negotiations following the Ukase of 1821, and result-
ing ixi the treaty of 1825, Great Britain stood firmly by the iwsi-
tion, not only that the territorial jurisdiction asserted by Russia
on the northwest coast was in excess of what it was entitled to
claim, but that the prohibition by that Ukase of the approach of
foreign vessels nearer than 100 Italian miles to those coasts was
an assertion of sovereignty over the open waters of the Sea, which
was forbidden by the established principles of international law.
Let us see what was recognized and conceded by Great Britain dur-
ing her negotiations with Russia.
In his conununication of January 18, 1822, addressed to Count Lieven,
the Russian Ambassador at London, in reply to the letter of Baron Nico-
lay, covering a copy of the Ukase of 1821, the Marquis of Londonderry,
then at the head of the British Foreign Office, said: "Uijon the subject
of this Ukase generally, and especially ujjon the two main principles of
claim laid down therein, viz, an exclusive sovereignty alleged to belong
to Russia over the territories therein described, as also the exclusive
right of navigating and trading within the maritime limits therein set
forth, His Britannic Majesty must be understood as hereby reserving
all his rights, not being prepared to admit that the intercourse which is
allowed on the face of this instrument to have hitherto subsisted on
those coasts, and in those seas, can be deemed to be illicit, or that the
ships of friendly powers, even supposing an unqualified sovereignty was
proved to appertain to the Imperial Crown in the vast and very imper-
fectly occupied territories, could, by the acknowledged laws of nations,
be excluded from navigating within the distance of 100 Italian miles as
therein laid down, from the coast, the exclusive dominion of which is
assumed (but, as His Majesty's Government conceive, in error) to belong
to His Imperial Majesty, the Emperor of all the Russias." British
Case, Vol.2 Ap^., 14.
76
Subsequently, September 27,1822, Mr. George CaTining, the successor
of Lord Londonderry, in the British Foreign Office, writing to the Duke
of Wellington, who had been commissioned to acquaint the Russian
Government with the views held by the British Government said
that with respect to the points in the Ukase which had the effect of
extending the territorial rights of Eussia over the adjacent seas to
the '^ unprecedented " distance of 100 miles from the line of coast, and
of closing a hitherto unobstructed passage (through Bering Straits),
at that time the object of important discoveries for the i)romotion of
general commerce and navigation, those pretensions were considered
by the best legal authorities as positive innovations on the right of
navigation, and as such, could receive no explanation from further
discussion, nor by any jiossibility be justified. Common usage, he said,
which has obtained the force of law, had indeed assigned to coasts and
shores an accessorial bouiulary to a short limited distance for purposes of
l)rotection and general convenience, in no manner interfering with the
rights of others, and not obstructing the freedom of general commerce
and navigation. But that important qualification, he observed, the
extentofEussia's claim entirely excluded, and when such a j)rohibi-
tion was applied to a long line of coasts, and also to intermediate
islands in remote seas, where navigation was beset with innumerable
and unforeseen difficulties, and where the i^rincipal employment of the
fisheries must be pursued under circumstances that were incompatible
with the prescribed courses, " all particular considerations concur, in an
especial juanner, with the general princij)le, in repelling such a preten-
sion as an encroachment on the freedom of navigation, and the inalien-
able rights of all nations." He expressed satisfaction in believing
from a conference which he had had with Count Lieveu that upon
these two points — "the attempt to shut up the passage altogether,
and the claim of exclusive dominion to so enormous a distance from
the coast — the Russian Government are prepared entirely to waive their
X)retensions." British Case, Vol. II, App., 22.
After receiving this letter, the Duke of Wellington, November 28,
1822, delivered to Count Nesselrode, at the head of the Russian min-
istry, a confidential memorandum, in which ne objected first, to the
claim of sovereignty set forth in the Ukase; and, secondly, to the mode
in which it is exercised. "The best writers on the laws of nations,"
he observed, " do not attribute exclusive sovereignty, particularly
of continents, to those who have first discovered them, and although
77
wa imglit on good grounds dispute with Eussia tlic priority of dis-
coverj- of these continents, we contend that the much more easily
proved, more conclusive, and more certain title of occujiatiou and use
ought to decide the claim of sovereignty." He explicitly declared
that Great Britain could not admit the right of any power possessing
the sovereignty of a country to exclude the vessels of others from
the seas on its coasts to the distance of 100 Italian miles. British
Case, Vol. II, p. 23.
The Duke of Wellington, writing on the same day to Count Lieven
and repeating the objection of the British Government to the Ukase,
so far as it assumed for Russia an exclusive sovereignty in the conti-
nent of North America, observed: "The second ground on which we
object to the Ukase is that His Imi)erial Majesty thereby excludes from
a certain considerahle extent of the open sea vessels of other nations.
We contend that the assumption of this power is contrary to the law
of nations, and we cannot found a negotiation upon a paper in which
it is again broadly asserted. We contend that no i)ower whatever can
exclude another from the use of the o^ieu sea. A power can exclude
itself from the navigation of a certain coast, sea, etc., by its own actor
engagement, but it cannot by right be excluded by another." British
Case, Vol. II, App. 25.
I am unable to find a single sentence in all the diplomatic corre-
spondence that took place between Russia and Great Britain, touching
the Ukase of 1821, showing, or tending to show, that Great Britain
modified, in the slightest degree the position taken by its representa-
tives from the very outset, namely, that the ujaritime jurisdiction or
authority claimed by Russia, upon whatever ground rested, to the
extent of 100 Italian miles from its coasts, was inconsistent with the
law of nations. On the contrary, after the expiration of more than
two years without an agreement being reached as to the disputed
questions of maritime supremacy and territorial sovereignty, and when
serious apprehensions were felt that no satisfactory solution of those
questions would be reached, Mr. Stratford Canning was sent by the
British Government to St. Petersburg as Plenipotentiary to effect, if
possible, a settlement of the pending dispute. He received a letter
of instructions from Mr. George Canning, in which will be found an
extended review of all previous efforts to accommodate the differences
between the two countries, and a fall statement of the grounds upon
which Great Britain stood in respect to this Ukase.
78
If any doubt conld arise from previous correspondence as to whether
Great Britain recognized and conceded any jurisdiction upon the part
of Russia in the waters of Bering Sea, outside of ordinary territorial
limits, as those limits are defined by international law, that doubt will
be removed by the examination of the letter of Mr. George Canning to
Mr. Stratford Canning, of December 8, 1824, Avhich was after the Treaty
of 1824 between the United States and Russia was signed. That letter,
inclosing a projet of settlement, is too lengthy to be inserted in full here,
and the following extract from it must suffice:
" The whole negotiation grows out of the Ukase of 1821. So entirely
and absolutely true is this proposition that the settlement of the
limits of the resjiective possessions of Great Britain and Russia on the
Northwest coast of America was proposed by us only as a mode of
facilitating the adjustment of the difference arising from the Ukase by
enabling the Court of Russia, under the cover of a more comprehen-
i^ive arrangement, to withdraw, with less ai)pearance of concession,
the offensive pretensions of that edict. It is comparatively indifferent
to us whether we hasten or postpone all questions respecting the
limits of territorial possession on the continent of America, but the
pretensions of the Russian Ukase of 1821 to exclusive dominion over
the Pacific could not continue longer unrepealed without compelling
us to take some measure of public and effectual remonstrance
against it. * *
" That this Ukase is not acted upon, and that instructions have been
long ago sent by the Russian Government to their cruisers in the
Pacific to suspend the execution of its provisions, is true 5 but a yni-
vate disavowal of a published claim is no security against the revival
of that claim. The suspension of the execution of a principle may be
perfectly compatible with the continued maintenance of the principle
itself, and when we have seen in the course of this negotiaticm that the
Russian claim to the possession of the coast of America down to lati-
tude 59° rests in fact on no other ground than the presumed acquies-
cence of the nations of Europe in the provisions of the Ukase pub-
lished by the Emperor Paul in the year 1800 [1799], against which it
is affirmed that no public remonstrance was made, it becomes us to be
exceedingly careful that we do not, by a similar neglect, on the pres-
ent occasion allow a similar presumption to be raised as to an acquies-
cence in the Ukase of 1821. The right of the subjects of His Majesty
to navigate freely in tlie Pacific can not be held as a matter of indul-
79
gence from any power. Having once been iniblicly questioned it must
be publicly acknowledged. * * *
"It will, of course, strike the Eussian plenipotentiaries that by the
adoption of the American article respecting navigation, etc., the pro-
A'ision for an exclusive fishery of two leagues from the coasts of our
respective possessions falls to the ground. But the omission is, in
truth, immaterial. The law of nations assigns the exclusive sovereignty
of one league to each power on its own coasts, without any specific stijju-
lation, and though Sir Charles Bagot was authorized to sign the con-
vention with the specific stipulation of two leagues, in ignorance of what
had been decided in the American convention at the time, yet, after
that convention has been some months before the world, and after the
opportunity of consideration has been forced upon us by the act of
Russia herself, we can not now consent in negotiating de novo to a stipu-
lation which, while it is absolutely unimportant to any practical good,
would appear to establish a contrast between the United States and us
to our disadvantage. Count ISTesselrode himself has frankly admitted
that it was natural that we should exi)ect, and reasonable that we
should receive, at the hands of Russia, equal measure in all resi^ects,
witli the United States of America.
"It remains only, in recai^itulation, to remind you of the origin and
l>riuciples of the whole negotiation. It is not on our part essentially a
negotiation about limits. It is the demaiul of the rej^eal of an offensive
and unjustifiable arrogation of exclusive jurisdiction over an ocean of
unmeasured extent, but a demand qualified and mitigated in its manner
in order that its justice may be acknowledged and satisfied without
soreness or humiliation on the jiart of Russia. We negotiate about
territory to cover the remonstrauce n^on principle. But any attempt
to take undue advantage of this voluntary facility we must oppose.
If the present ^projeV is agreeable to Russia, we are ready to conclude
and vsign the treaty. If the territorial arrangements are not satis-
factory, we are ready to postpone them; and to conclude and sign the
essential part, that which relates to navigation alone, adding an article,
stipulating to negotiate about territorial limits hereafter. But we are
not prepared to defer any longer the settlement of that essential part
of the question, and if Russia will neither sign the whole convention
nor that essential part of it, she must not take it amiss that we resort
to some mode of recording in the face of the world our protest against
the pretensions of the Ukase of 1821, and of effectually securing our
80
owu interests ugaiust tlie possibility of its future operation." British
Case, Vol. 2, Ax>p., 73.
The opiiositioii of Great Britain to Eussia's claim of maritime su-
premacy within 100 Italian miles from the coasts mentioned in the
Ukase of 1821 was not more decided or persistent than that of the
United States. The action taken by the United States is not irrele-
vant to the present discussion, because, as will presently appear, its
counsel insists that Eussia's treaty of 1825 with Great Britain is to be
interpreted to mean just what the treaty of 1824 with the United States
was understood by Eussia, with the knowledge of the United States,
to mean.
Eeferring to the reasons assigned by M. Poletica upon which Eussia
based the territorial and maritime claims asserted in that Ukase, Mr.
Adams, the American Secretary of State, said, in reply: "This pre-
tenvsion is to be considered not only with reference to the question of
territorial right, but also to that prohibition to the vessels of other
nations, including those of the United States, to approach within 100
Italian miles of the coasts. From the period of the existence of the
United States as an independent nation, their vessels have freely
navigated those seas, and the right to navigate them is a part of that
independence." Again: "As little can the United States accede to
the justice of the reason assigned for the prohibition above mentioned.
Therightof the citizens of the United States to hold commerce with the
aboriginalnativesof the northwest coast of America, without the terri-
torial jurisdiction of other nations, even inarms and munitions of war,
is as clear and indisputable as that of navigating the seas. That right
has never been exercised in a spirit unfriendly to Eussia ; and, although
general complaints have occasionally been made on the subject of this
commerce by some of your predecessors, no specific ground of charge
has ever been alleged by them of any transaction in it by which the
United States were, by the ordinary laws and usages of nations, bound
either to restrain or punish. Had any such charge been made, it would
have received the most pointed attention of this Government, with the
sincerest and firmest disposition to perform every act and obligation of
justice to yours which could have been required. I am commanded by
the President of the United States to assure you that this disposition
will continue to be entertained, together with the earnest desire that
the harmonious relations between the two countries may be i^reserved.
81
Eelylng upon the assurance in your note of similar dispositions recip-
rocally entertained by His Imperial Majesty towards the Uuitea
States, the President is persuaded that the citizens of this Union will
remain unmolested in the prosecution of their lawl'ul commerce, and
that no effect will be given to an interdiction manifestly iucomx^atible
with their rights." U. 8. Case, Vol. 1, App., 134.
Mr. Middleton, the American minister at St. Petersburg, writing to
Mr. Adams under date of August 8, 1822, said: "To Mr. Speransky,
Governor-General of Siberia, who had been one of the committee origi-
nating this measure, I stated my objections at length. He informed
me that the first intention had been (as M. Poletica afterward wrote
you) to declare the northern portion of the Pacific Ocean as mare
clausum, but that idea being abandoned, probably on account of its
extravagance, they determined to adopt the more moderate measure of
estahlishing limits to tlie maritime jurisdiction on their coasts, such as
should secure to the Russian American Fur Company the monopoly of
the very lucrative traffic they carry on. In order to do this they
sought a precedent and found the distance of 30 leagues named in the
treaty of Utrecht, and which may be calculated at about 100 Italian
miles, sufficient for all purposes. I replied ironically that a still better
l^recedent might have been i)ointed out to them in the papal bull of
1493, which established as a line of demarcation between the Spaniards
and Portuguese a meridian to be drawn at the distance of 100 miles
west of the Azores, and that the expression 'Italian miles' used in the
Ukase, very naturally might lead to the conclusion that this was actually
the precedent looked to. He took my remarks in good part, and I am
disposed to think that this conversation led him to make reflections
which did not tend to confirm his first impressions^ for I found him
afterward at ditfcreut times speaking confidentially upon the subject.
For some time past I began to perceive that the provisions of the Ukase
would not be persisted in. It appears to have been signed by the
Emj)eror M'ithout sufficient examination, and may be fairly considered
as having been surreptitiously obtained. There can be little doubt,
therefore, that with a little patience and management it will be molded
into a less objectionable shape." U. S. Case, Vol. 1, App. 136.
But this is not at all. Mr, Adams, writing to Mr. Middleton, under
date of July 22, 1823, said: "From the tenor of the Ukase the pre-
tensions of the Imperial Government extend to an exclusive territorial
11492 6
82
jarisdictiou from the forty-fifth degree of north latitude, on the Asiastic
coast, to the latitude of fifty-one north on the western coast of the
American continent; and they assume the right of interdicting tlie
navigation and the fishery of all other nations to the extent of 100
miles from the whole of the coast. The United States can admit no
part of tliese claims. Their right of navigation and of fishing is per-
fect, and has been in constant exercise from the earliest times, after the
peace of 1783, throughout the whole extent of the Southern Ocean,
subject only to the ordinary exceptions and exclusions of the territorial
jurisdictions, which, 'so far as Kussian rights are concerned, are con-
fined to certain islands north of the fifty-fifth degree of latitude, and
have no existence in the continent of America." if. S. Case, Vol. i,
Ap2y., 14:1.
As tending further to show the construction placed by the United
States upon the Ukase of 1821, and its decided opposition to the pre-
tensions of Russia, reference may be made to the letter of Mr. Adams,
written under date of July 23, 1823, to Mr. Rush, the American minister
at Loudon. In that letter Mr. Adams said: "By the Ukase of the
Emperor Alexander of the 4th (16th) of September, 1821, an exclusive
territorial right on the northwest coast of America is asserted as be-
longing to Russia, and as extending from the northwest extremity of
the continent to latitude 51°, and the navigation and fishing of all other
nations are interdicted by the same Ukase to the extent of 100 Italian
miles from the coast. When M. Poletica, the late Russian minister here,
was called upon to set forth the grounds of right conformable to the
laws of nations which authorized the issuing of this decree, he answered
in his letters of February 28 and April 2, 1822, by alleging first discovery,
occupancy, and uninterrupted possession. It appears ujDon examina-
tion that these claims have no foundation in fact."
In the same letter, after combating these claims and referring to the
peculiar relations held by the United States to the question of colonial
establishments on the North American continent, Mr. Adams said:
" A necessary consequence of this state of things will be that the
American continents henceforth will no longer be subjects of coloniza-
tion. Occupied by civilized independent nations, they will be accessible
to Europeans and to each other on that footing alone, and the Pacific
Ocean m every part of it will remain open to the navigation of all
nations in like manner with the Atlantic. Incidental to the condition
of National independence and sovereignty, the rights of anterior navi-
83
gatiou of their rivers will belong to each of the American nations within
its own territories. The application of colonial principles of exchisiou,
therefore, can not be admitted by the United States as lawful on any
part of the northwest coast of America, or as belonging to any Euro-
pean nation. Their own settlements there, when organized as terri-
torial governments, will be adapted to the freedom of their own insti-
tutions, and, as constituent parts of the Union, be subject to the prin-
ciples and provisions of their constitution. The right of carrying on
trade with the natives throughout the northwest coast they (the United
States) can not renounce. With the Russian settlements at Kodiak, or
at jS"ew Archangel, they may fairly claim the advantage of a free trade,
having so long enjoyed it unmolested, and because it has been and
would continue to be as advantageous at least to those settlements as
to them. But they will not contest the right of Russia to prohibit the
traffic, as strictly confined to the Russian settlement itself and not
extending to the original natives of the coast." TJ. 8. Case, Vol. 1,
App., 145, 146, 148.
Further reference to the diplomatic correspondence relating to the
the Ukase of 1821 would seem to be unnecessary. The evidence is
overwhelming that the positions taken by the United States and Great
Britain were substantially alike, namely, that Russia claimed more ter-
ritory on the northwest coast of America than it had title to, either by
discovery or occupancy, and that its interdict of the approach of for-
eign vessels nearer to its coasts than 100 Italian miles was contrary to
the principles of international law and in violation of the rights of the
citizens and subjects of other countries engaged in lawful business on
the waters covered by that regulation.
The negotiations between Russia and the United States resulted in
the treaty of 1824, the material parts of which are as follows:
"Art. 1. It is agreed that in any part of the Great Ocean, com-
monly called the Pacific Ocean or South Sea, the respective citizens or
subjects of the High Contracting Powers shall be neither disturbed
nor restrained either in navigation or in fishing, or in tlie power of
resorting to the coasts, upon points which may not already have been
occupied for the purpose of trading with the natives, saving always,
the restrictions and conditions determined by the following articles.
" Art. 2. With a view of preventing the rights of navigation and of
fishing exercised upon the Great Ocean by the citizens and subjects of
the High Contracting Powers from becoming the pretext for an illicit
84
trade, it is agreed tliat tlie citizens of tlie United States sliall not resort
to any point wliere tliere is a Eussian establislinient, witliout tlie per-
mission of tlie Governor or Commander; andtliat, reciprocally, tbe sub-
jects of Kussia sliall not resort, without permission to any establish-
ment of the United States upon the Northwest Coast.
"Art. 3. It is moreover agreed that, hereafter, there shall not be
formed by the citizens of the United States, or under the authority of
the said States, any establishment upon the Northwest Coast of Amer-
ica, nor in any of the islands adjacent, to the north of 54° 40' north
latitude; and that, in the same manner, there shall be none formed by
Eussian subjects, or under the authority of Eussia, south of the same
parallel.
"Art. 4. It is, nevertheless, understood that during a term of ten
years, counting from the signature of the present convention, the ships
of both powers or Avliich may belong to their citizens or subjects
respectively, may reciprocally frequent, without any hindrance what-
ever, the interior seas, gulfs, harbors and creeks, upon the coast men-
tioned in the preceding Article, for the purpose of fishing and trading
with the natives of the country." V. S. IStat. vol. 8, p. 302.
The negotiations between Eussia and Great Britain resulted in the
treaty of 1825, as follows:
" I. It is agreed that the respective subjects of the high contracting
Parties shall not be troubled or molested, in any part of the Great Ocean,
commonly called the Pacific Ocean, either in navigating the same, in
fishing therein, or in landing at such parts of the coast as shall not
have been already occupied, in order to trade with the natives, under
the restrictions and conditions specified in the following articles.
" II. In order to prevent the right of navigating and fishing, exercised
upon the ocean by the subjects of the high contracting Parties, from
becoming the pretext of an illicit commerce, it is agreed that the sub-
jects of His Britannic Majesty shall not land at any place where there
may be a Eussian establishment, without the permission of the Gov-
ernor or Commandant; and on that other hand, that Eussian subjects
shall not land, without permission, at any British establishment of the
Northwest coast.
" III. The line of demarkation between the possessions of the high
contracting Parties, upon the coast of the continent and the Islands cf
America to the Northwest, shall be drawn in the manner following:
85
Commcncirig from the southernmost point of the island called Prince
of Wales Island, which point lies in the j)arallel of 54 degrees forty
minutes, north latitude, and between the one hundred and thirty-first,
and the one hundred and thirty-third degree of west longitude (Merid-
ian of Greenwich), the said line shall ascend to the north along the
channel called Portland Channel, as far as the point of the continent
where it stril^es the fifty-sixth degree of north latitude; from this last
mentioned iDoint the line of demarkation shall follow the summit of the
mountains situated parallel to the coast, as fur as the point of intersec-
tion of the one hundred and forty-first degree, of west longitude (of
the same meridian) and, finally, from the said point of intersection, the
said meridian line of the one hundred and forty-first degree, in its i)ro-
longation as far as the Frozen Ocean, shall form the limit between the
Eussian and British possessions on the continent of America to the
Northwest.
"IV. With reference to the line of demarkation laid down in the pre-
ceding article it is understood :
First. That the Island called Prince of Wales Island shall belong
wholly to Eussia.
Second. That wherever the summit of the mountains which extend
in a direction parallel to the coast, from the fifty-sixth degree of north
latitude to the point of intersection of the one hundred and forty-first
degree of west longitude, shall prove to be at the distance of more than
ten marine lejigues from the ocean, the limit between the British posses-
sions and the line of coast which is to belong to Eussia, as above men-
tioned, shall be formed by a line parallel to the windings of the coast, and
which shall never exceed the distance of ten marine leagues there-
from.
" V. It is moreover agreed, that no establishment shall be formed by
either of the two parties within the limits assigned by the two pre-
ceding articles to the possessions of the other; consequently, British
subjects shall not form any establishment either upon the coast, or
upon the border of the continent comprised within the limits of the
Eussian possessions, as designated in the two preceding articles; and,
in like manner, no establishment shall be formed by Eussian subjects
beyond the said limits.
" VI. It is understood that the subjects of H ; Hritannic Majesty, from
whatever quarter they may arrive, whether from the ocean, or from
86
the interior of tlie continent, sliall forever enjoy tlie right of navigating
freely, and without any hindrance whatever, all the rivers and streams
which, in tlieir course towards the Pacific Ocean, may cross the line
of demarkation upon tlie line of coast described in article three of the
present Convention.
" VII. It is also understood that for the space of ten years from the
signature of the present convention, the vessels of the two Powers, or
those belonging to their respective subjects, shall mutually be at lib-
erty to frequent, without any hindrance whatever, all the inland seas,
the gulfs, havens, and creeks on the coast mentioned in article three
for the purposes of fishing and trading with the natives.
"VIII. The port of Sitka, or Nova Archangelsk, shall be open to the
commerce and vessels of British subjects for the space of ten years
from the date of the exchange of the ratifications of the present con-
vention. In the event of an extention of this term of ten years being
granted to any other power, the like extention shall be granted also to
Great Britain.
" IX. The above-mentioned liberty of commerce shall not ai)ply to the
trade in spirituous liquors, in fire-arms, or other arms, gunpowder or
other warlike stores; the high contracting Parties reciprocally engag-
ing not to permit the above-mentioned articles to be sold or delivered,
in any manner whatever, to the natives of the country.
"X. Every British or Eussian vessel navigating the Pacific Ocean,
which may be compelled by storms or by accident, to take shelter in
the ports of the respective Parties, shall be at liberty to refit therein,
to provide itself with all necessary stores, and to put to sea again,
without paying any other port and lighthouse dues, which shall be the
same as those paid by national vessels. In case, however, the master
of such vessel should be under the necessity of disposing of a part of
his merchandise in order to defray his expenses, he shall conform him-
self to the regulations and tariffs of the place where he may have
landed."
From these treaties it will be seen that the respective subjects or
citizens of the High Contracting Parties were not to be molested or
disturbed in navigating, or in fisliing in, any part of the Pacific Ocean,
or in landing on the coasts of either country, not then occupied,
in order to trade with the natives, except under certain specified
conditions which have no bearing upon the present controversy.
87
We now come to the third point in Article vi of the Treaty —
Was the body of ivater now Tcnown as the Bering Sea included in the
phrase '■'Facific Occan,^^ as used in the treaty of 1825 hetiveen Great
Britain and Bussia; and what rights, if any, in the Bering Sea were
held and exclusively exercised by Russia after said treaty?
An affirmative answer to this question would sustain the position taken
by Mr. Blaine, to the elfect that the treaty of 1825, as between Eussia and
Great Britain, had reference only to the dispute in respect to the bound-
ary line between those countries on the northwest coast of America,
south of the GOth degree of north latitude, and to the waters of the
Pacific Ocean south of the Alaskan Peninsula, and in no way to the
waters of Bering Sea, or to the Ukase of 1821 in its application to
the waters of that Sea. If that i^osition was well taken, it might be
fairly contended that Great Britain by signing the treaty of 1825,
impliedly recognized, or determined not to further question, the valid-
ity of the Ukase of 1821 in its application to the waters of Bering Sea,
for the distance of 100 Italian miles from its shores and islands in
that sea. But if "Pacific Ocean" in the treaty of 1825 embraced
Bering Sea, it would follow that that treaty had the effect to annul or
withdraw that Ukase, so far as it asserted authority in Eussia to molest
or disturb the subjects of Great Britain in navigating, or fishing
in, any of the open waters of Bering Sea or of the north Pacific
Ocean.
It will be observed that there is no substantial difference between
the treaties of 1821 and 1825, in respect to the description given of the
waters in which the citizens or subjects of the High Contracting Parties
were to enjoy freedom of navigation and fishing. The words in the
treaty of 1824, "the Great Ocean, commonly called the Pacific Ocean
or South Sea," evidently describe the same waters as the words, "the
Great Ocean, commonly called the Pacific Ocean," in the treaty of 1825.
Before the latter treaty was negotiated the British Government had in
its possession a copy of the treaty between Eussia and the United States.
Mr. George Canning, in his letter of December 8th, 1821, referring to a
projet proposed by Great Britain, and which Eussia rejected, and to a
counter projet proposed by Eussia which Great Britain had rejected,
said that the stipulation for free' navigation in the Pacific stood in the
front of the Convention concluded between Eussia and the United States
of America J that no reason existed why upon similar claims Great Britain
88
slioultl not obtain exactly the like satisfaction; that for reasons of the
same nature Great Britain could not consent that the liberty of navi-
gation through Bering Straits be stated in the treaty as a boon
from llussia; that the tendency of such a statement would be to give
countenance to those claims of exclusive jurisdiction against which
Great Britain on its own behalf, and on that of the whole civilized world,
protested. 'No specification of this sort, lie said, was found in the Con-
vention with the United States of America, and yet it could not be
doubted that the Americans considered themselves as secured in the
right of navigating Bering Straits and the sea beyond them, " It can
not be expected," he said, "that England should receive as a boon
that which the United States hold as a right so unquestionable as
not to be worth recording. Perhaps the simplest course after all will
be to substitute, for all that part of the ''in-ojeV and 'counter projeV
which relates to maritime rights and to navigation, the first two articles
of the convention already concluded by the court of St. Petersburg
with the United States of America in the order in which they stand
in that convention. Eussia can not mean to give to the United States
of America what she withholds from us; nor to withhold from us any-
thing that she has consented to give to the United States. The uni-
formity of stipulations in pari materia gives clearness and force to
both arrangements, and will establish that footing of equality between
the several contra(;ting parties which it is most desirable should exist
between three powers whose interests come so nearly in contact witli
each other in a part of the globe in which no other power is concerned."
British Case, Vol. 2, ylpp.,73.
In view of these and similar declarations by British representatives,
made before the negotiation of tlie treaty of 1825, it is earnestly con-
tended that that Ireaty must receive the same interpretation that would
be given to the treaty of 1824 as construed by Eussia and the United
States. And it is said that Eussia and the United States, before the
ratification of the treaty of 1824, substantially agreed that that treaty
(lid not refer to the waters of Bering Sea, and, consequently, it is
argued, "Pacific Ocean," as used in both treaties, must be held not to
include that Sea.
The facts upon which these oontentions, in respect to the treaty of
1824, are based, may be thus summarized:
The treaty of 1824 was signed at St. Petersburg April 5 (17), 1824.
89
Sliortly thereafter the Eussian-Ariieiican Coinpany represented to the
Eussian Government that conseqnences injurious to its rights might
result from its ratification. The subject was referred by the Emperor
to a committee, at the head of wliich was Count Nesseh'ode. Tliat
committee, July 21, 1824, made a report, wiiich received the approval of
the Emperor. After enumerating the advantages that would accrue to
Eussia from carrying out the treaty, the report proceeds: "7. That as
the sovereignty of Eussia over the coasts of Siberia and the Aleutian
Islands has long been admitted by all the powers, it follows that the
said coasts and islands can not be alluded to in the articles of the said
treaty, which refers only to the disputed territory on the northwest
coast of America and to the adjacent islands; that, even supposing
the contrary, Eussia has established permanent settlements, not only
on the coast of Siberia but also on the Aleutian group of islands;
hence, x\merican subjects could not, by virtue of the second article of
the treaty of April 5-17 land at the maritime places there, nor carry
on sealing and fishing without the permission of our commandants or
governors. Moreover, the coasts of Siberia and the Aleutian Islands
are not washed by the Southern Sea, of which alone mention is made
in the first article of the treaty, but by the Northern Ocean and the
seas of Kamchatka and Ohkotsk, which form no xjart of the Southern
Sea on any known map or in any geography. 8. Lastly, we must not
lose sight of the fact that, by the treaty of April 5-17 all the disputes
to which the regulations of September 4 (16), 1821, gave rise, are termi-
nated, which regulations were issued at the formal and reiterated
request of the Eussian- American Company; that those disputes had
already assumed important proportions, and would certainly be renewed
if Eussia did not ratify the treaty, in which case it would be impossible
to foresee the end of them or their consequences. These weighty
reasons impel the majority of the members of the committee to state
as their opinion :
" That the treaty of April 5-17 must be ratified, and that, for the pre-
vention of any incorrect interpretation of that act, Gen. Baron Tuyll
may be instructed at the proper time to make the declaration men-
tioned in the draft of the communication read by Count Nesselrode.
The Minister of Finance and Acting State Counselor Drushinin, while
admitting the necessity of ratifying the treaty of April 5-17, express
and place on record the special opinion hereto annexed in the proctocol,
to the effect that Baron Tuyll should be instructed at the exchange of
90
the ratification of that treaty to stipulate tliat the right of free hunting
and Ashing- granted by the twelfth article of the said treaty shall extend
only from 54° 40' to the latitude of Cross Sound." U. 8. Counter
Case, 156, 157.
This report was communicated by the Eussian Minister of Finance
to tlie Eussian-Americau Company, in a communication which closed
with these words: ''From these documents the board will see that, for
the avoidance of all misunderstandings in the execution of the above
mentioned convention, and in conformity with the desire of the com-
pany, the necessary instructions have already been given to Baron
Tuyll, our minister at Washington, to the effect that the northwestern
coast of America, along the extent of which, by the provisions of the
convention, free trading and fishing are permitted subjects of the North
American States, extends from 54° 40' northwards to Yakutat (Bering)
Bay." U. S. Counter Case, 155.
The instructions received by Baron Tuyll from his Government were
communicated by him informally to Mr. Adams, the American Secre-
tary of State. This appears from the Diary of Mr. Adams, under date
of December 5, 1824, at which time the treaty of 1824 had not been
approved by the United States Senate. The account which Mr. Adams
gives in his Diary of Baron Tuyll's interview with him, is as fol-
lows:
^^6th, Monday. — Baron Tuyll, the Eussian Minister, wrote me a note
requesting an immediate interview, in consequence of instructions
received yesterday from his court. He came, and after intimating that
he was under some embarrassment in executing his instructions, said
that the Eussian American Company, upon learning the purport of the
northwest coast convention, concluded last June byMr.Middleton, were
extremely dissatisfied ("a jete des hauts cris"), and by means of their
influence had prevailed upon his Government to send him these in-
structions upon two points. One was, that he should deliver, upon
the exchange of the ratifications of the convention, an explanatory
note, purporting that the Eussian Government did not understand that
the convention would give liberty to the citizens of the United States
to trade on the coasts of Siberia and the Aleutian Islands. The other
was, to propose a modification of the convention by which our vessels
should be prohibited from trading on the northwest coast north of
latitude 57. With regard to the former of these points he left with
me a minute iu writing.
91
"I told him that we should be disposed to do everything to accommo-
date the views of his Government that was in our power, but tliat a
modification of the convention could be made no otherwise than by a
new convention, and that the construction of the convention as con-
cluded belonged to other departments of the Government^ for which
the Executive had no authority to stipulate; that i1 on the exchange
of the ratifications he should deliver to me a note of the purport of that
ichich he now informally gave me. I should give him an answer of that
import, namely, that the construction of treaties depending here upon
the judiciary tribunals, the Executive Government, even if disposed to
acquiesce in that of the Russian Government as announced by him,
could not be binding 7ipon the courts nor upon this nation. I added
that the convention would be submitted immediately to the Semite;
that if anything- affecting its construction, or, still more, modifying its
meaning, were to be presented on the part of the Eussian Government
before or at the exchange of ratifications, it must be laid before the
Senate, and could have no other possible effect than of starting doubts
and perhaps hesitation in that body, and of favoring the views of those,
if such tliere were, who might wish to defeat the ratification itself of
the convention. This was an object of great solicitude to both Govern-
ments, not only for the adjustment of a difficult question which had
arisen between them, but for the i^romotion of that harmony which was
so much in the policy of the two countries, which might emphatically
be termed natural friends to each other. If, therefore, he would per-
mit me to suggest to him what I thought would be his best course, it
would be to wait fortlie exchange of the ratifications andmakeit purely
and simply ; that afterwards, if the instructions of his Government were
imperative, he might present the note, to tvhich I now informed him
tvhat would be in substance my answer. It necessarily could not be
otherwise. But if his instructions left it discretionary with him, he
would do still better to inform his government of the state of things
here, of the purport of our conference, and of what my answer must be
if he should present the note. I believed his court would then deem
it best that he should not present the note at all. Their apprehensions
had been excited by an interest not very friendly to the good under-
standing between the United States and Russia. Our merchants
would not go to trouble the Russians on the coast of Siberia or north
of the fifty-seventh degree of latitude, and it was wisest not to put
92
such fancies into their heads. At least, the Imperial Government
might wait to see the operation of tbe convention before taking any
further step, and I was confident they would hear no complaint result-
ing from it. If they should, then would be the time for adjusting the con-
struction or negotiating a modification of the convention; and whoever
might be at the head of the administration of the United States, he
might be assured that every disposition would be cherished to remove
all causes of dissatisfaction and to accommodate the wishes and the
just policy of the Emi)eror.
" The Baron said that these ideas had occurred to himself ; that he had
made this application in pursuance of his instructions, hut he was
aware of the distribution of powers in our Constitution and of the
incompetency of the Executive to adjust questions. He would, there-
. fore, wait for the exchange of the ratifications without presenting
his note, and reserve for future consideration whether to present it
shortly afterwards or to inform his court of what he had done and ask
their further instructions as to what he shall definitively do on the sub-
ject. He therefore requested me to consider what had now passed
between us as if it had not taken place (" nou a venu"), to which I readily
assented, assuring him, as I had done heretofore, that the President
had the highest personal confidence in him and in his exertions to foster
the harmony between the two countries. I reported immediately to the
President the substance of this conversation, and he concurred in the
propriety of the baron's final determination." Memoirs of John Quimy
Adams, Vol. 6, p. 435.
In conformity (it may be assumed) with Mr. Adams' advice or inti-
mations Baron Tuyll forebore to file any official note upon the subject
prior to the ratification of the treaty by the United States. The
treaty having been ratified January 15, 1825, and January 25, 1825,
Baron Tuyll, under instructions from his Government, filed in the
Department of State, the following Explanatory Note:
" Explanatory note to be presented to the Government of the United
States at the time of the exchange of ratifications, with a view to
removing with more certainty all occasion for future discussions, by
ineans of which it will be seen that the Aleutian Islands, the coast of
Siberia, and the Russian possessions in general on the northwest coast
of America to 59^ 30' of north latitude are positively excepted from
the liberty of hunting, fishing, and commerce stipulated in favor of
citizens of the United States for ten years.
93
"This seems to be only a natural consequence ot lue stipulations
agreed upon, for tlie coasts of Siberia are washed by the Sea of
Okhotsk, the Sea of Kamschatka, and the Icy Sea, and not by the
South Sea mentioned in the first article of the convention of April 5
(17), 1824. The Aleutian Islands are also washed by the Sea of Kam-
schatka, or Northern Ocean.
"It is not the intention of Eussia to impede the free navigation of
the Pacific Ocean. She would be satisfied with causing- to be recog-
nized, as well as understood and placed beyond all manner of doubt,
the ininciple that beyond 59° 30' no foreign vessel can apjiroach her
coasts and her islands, nor fish nor hunt within the distance of two
marine leagues. This will not i)revent the recei^tion of foreign vessels
which have been damaged or beaten by storm." U. S. Case, Vol. 1, A})i).^
275 \ Memoirs of John Quincy Adams, Vol. 6, p. 435.
In respect to these matters Mr. Blaine observed : "Of course his
(Baron Tuyll's) act at that time did not afiect the text of the treaty
but it placed in the hands of the Government of the United States an
unofficial note which significantly told what Eussia's construction of
the treaty would be if, unhappily, any difterence as to its meaniu"-
should arise between the two governments. But Mr. Adams' friendly
intimation removed all danger of dispute, for it conveyed to Eussia the
assurance that the treaty as negotiated contained, in eflfecjt, the pro-
visions which the Eussian note was designed to supply. From that
time until Alaska, with all its rights of land and water, was trans-
ferred to the United States — a period of forty-three years — no act or word
on the part of either government ever imj)eached the full validity of the
treaty as it was understood both by Mr. Adams and Baron Tuyll at the
time it was formally proclaimed. While these important matters were
transpiring in Washington negotiations between Eussia and England
(ending in the treaty of 1825) were in progress in St. Petersburg. The
instructions to Baron Tuyll concerning the Eussian-American treaty
were fully reflected in the care with which the Anglo-Eussian treaty
was constructed — a fact to which I have already adverted in full.
There was, indeed, a possibility that the true meaning of the treaty with
the United States might be misunderstood, and it was, therefore, the
evident purpose of the Eussian Government to make the treaty with
England so plain and so clear as to leave no room for doubt and to
baffle all attempts at misconstruction. The Government of the United
States finds the full advantage to it in the caution taken by Eussia in
94
1825, and can, thorefore, quote the Anglo Russian treaty with the utmost
confidence that its meaning can not be clianged from that clear, unmis-
taliable text wliicb throughout all the articles sustains the American
contention. The Explanatory Note filed with this Government by Baron
Tuyllis so plain in its text that after the lapse of sixty-six years the exact
meaning can neither be misapprehended nor misrepresented. It draws
the distinction between the Pacific Ocean and the waters now known
as the Bering Sea so particularly and so perspicuously that no answer
can be made to it. It will bear the closest analysis in every particular.
It is not the intention of llussia to impede the free navigation of the
Pacific Ocean. This frank and explicit statement shows with what
entire good faith Russia had withdrawn in both treaties the offensive
Ukase of Alexander so far as the Pacific Ocean was made subject to it.
Another avowal is equally explicit, viz, that the coast of Siberia, the
nortliwest coast of America to 59° 30' north latitude — that is, down to
59° 30', the explanatory note reckoned from north to south — and the
Aleutian Islands are positively excepted from the liberty of hunting,
fishing, and commerce, stipulated in favor of citizens of the United
States for ten years." U. S. Case, Vol. I, App., 377, 278.
It seems to- me that the interview between Baron Tuyll and Mr.
Adams is of far less consequence than that attached to it by Mr. Blaine.
Nor, in my judgment, are the inferences which he draws from it justi-
fied by the facts as disclosed by the Russian documents and by the
Diary of Mr. Adams.
Recurring to the treaty of 1824, it will be remembered that Article 1
secured to the respective citizens and subjects of the contracting
powers freedom of navigation and fishing in every part of the Great
Ocean commonly called the Pacific Ocean, or South Sea, and also the
right to resort to coasts upon points not then occupied for the jjurpose
of trading with the natives, subject to or saving the restrictions and
conditions prescribed in the succeeding aricles. Among those con-
ditions M^ere: 1. By Article II, citizens of the United States should
not resort to any i^oint where there was a Russian establishment
without the permission of the Government or commander, and the
subjects of Russia should not resort, without permission, to any estab-
lishment of the United States upon the northwest coast. 2. By
Article III, neither the United States nor its citizens should form
any establishment upon the northwest coast of America, nor in the
islands adjacent, to the north of fifty-four degrees and forty minutes of
95
north latitude, and that, in the same manner, there shall be none
formed by Eussian subjects or under the authority of Russia south of
the same parallel. But by Article LY it was provided that for a period
often years the ships of either country might frequent the interior
seas, gulfs, harbors, and creeks, upon the coast mentioned in the pre-
ceding article, for the purpose of fishing and trading with the natives
of the country.
ISTow it is apparent from the proceedings of the ISTesselrode confer-
ence of July 21, 1824, the Diary of Mr. Adams, and the Exjilanatory
Kote of Baron Tuyll, that the Russian-American Company were not at
all disturbed by tlie broad recognition in Article I of freedom of navi-
gation and fishing throughout the whole of the Great Ocean. Their
uneasiness had reference to the possibility that the treaty could be
construed as giving the right for ten years to trade on the coast of
Siberia mid the Aleutian Islands. The substance of the answer made
by the Russian Government to the Russian-American Company was
that the article of the treaty reserving the right to resort for ten years
to certain "interior seas, gulfs, harbors, and creeks" referred to the
waters that washed the coast mentioned in Article III, which was
the coast most in dispute between the two countries, and, therefore,
did not authorize citizens of the United States to trade on the coasts
of Siberia and the Aleutian Islands which were never in dispute, and
over which Russia for a long time, and without question, had exercised
sovereign authority; in other words, that the privilege of trading for
ten years did not extend to the coast of Siberia, or to the Aleutian
Islands, or to the Russian possessions in general on the entire north-
west coast of America, but only to the coasts, embracing the territory
in disj)ute between the two countries, south of 59° 30' north latitude.
Nowhere in the documents referred to is there a suggestion that Rus-
sia understood the treaty of 1824 as reserving to itself any peculiar or
paramount authority over the waters of the Pacific Ocean outside of the
ordinary limit of territorial jurisdiction. The only part of any docu-
ment implying that, in the judgment of the Russian authorities, the
treaty had no reference to Bering Sea, is the statement incidentally
in the proceedings of the ISTesselrode Conference and in the Explanatory
Note of Baron Tuyll, to the effect that the coasts of Siberia and the
Aleutian Islands were not washed "by the Southern Sea" mentioned
iu Article II. But there is no evidence in Mr. Adams's Diary that he
assented to this view. He waived any discussion of the question.
96
It was impossible for him to have assented to the views of Baron Tayll
excej)t upon the theory that he recognized the treaty of 1824 as having
no reference at all to the waters of the Bering Sea as part of the Great
Ocean commonly called the Paciiic Ocean or South Sea, a conclusion at
variance with all that he contended for throughout the negotiations
arising from the Ukase of 1821. In my opinion, Mr. Blaine was mistaken
in saying that Mr. Adams expressed his concurrence in Baron TaylPs
interpretation of the treaty of 1821. It is, I think, quite clear that Mr.
Adams prudently withheld any expression of his opinion, disclaiming
authority in himself or in the President of the United States to change
or give any binding interpretation of the treaty. He frankly stated to
Baron Tuyll that the treaty as made must, when ratified, be carried out
according to its proper interpretation and meaning. He warned him
that if, on the exchange of the ratificatioas, he should deliver a note of
the purport of that informally delivered, he, Mr. Adams, should tell
him "that the construction of treaties depending here upon the judi-
ciary tribunals, the Executive Government, even if disposed to acqui-
esce in that of the Eussian Government as announced by him, could
not be binding upon the courts nor upon this nation." Baron Tuyll
distinctly said that he understood the relations subsisting in Amer-
ica between the executive and judicial departments of Government.
So that the utmost that can be said is, that the United States had notice,
before the ratidcation of the treaty of 1824, of the interpretation which
Russia, possibly, at some future time, would place upon the treaty, so
far as it embraced the subject to which Baron Tuyll referred in his
Explanatory Note.
The material inquiry, however, is whether Great Britain had any
notice of what took x>lace in the interview between Baron Tuyll and
Mr. Adams. This question must be answered in the negative. It is
not claimed that the Explanatory Note of Baron Tuyll was ever pub-
lished or brought to liglit from the files of the State Department of
the United States until it was produced in this case. Nor is it pre-
tended that a copy of it was ever sent to Great Britain. The only
document relied upon to show knowledge upon the part of Great
Britain of the interpretation placed by the United States upon the
treaty of 1824 is the letter of Mr. Addington, the British representa-
tive at Washington, written August 2, 1824, to Mr. George Canning. Mr.
Addington said: "A convention concluded between this Government
and that of Kussia for the settlement of the rcspectivQ (;laima of the
97
two nations to the intercourse with tlie northwestern coast of America
reached the Department of State a few clays since. The main points
determined by this instrument are, as far as I can collect from the
American Secretary of State, (1) the enjoyment of a free and unre-
stricted intercourse by each nation with all the settlements of tlie other
on the northwest coast of America, and (2) a stipulation that no
new settlements shall be formed by Eussia south, or by the United
States north, of latitude 54° 40'. The question of the mare clausum,
the sovereignty over which was asserted by the Emperor of Kussia
in his celebrated Ukase of 1821, but virtually, if not expressly, re-
nounced by a subsequent declaration of that sovereign, has, Mr.
Adams assures me, not been touched upon in the above-mentioned
treaty. Mr. Adams seemed to consider any formal stipulation record-
ing that renunciation as unnecessary and supererogatory." British
Case, Ajpp. Vol. 2, j). 66.
It is to be observed, in reference to this letter, that it was written
many months i)rior to the interview with Baron Tuyll, and only a few
days after the treaty of 1824 had reached the United States Depart-
ment of State. Besides, if the writer of that letter understood Mr.
Adams to say that the question of free navigation and fishing by the
citizens and subjects of Eussia and the United States in the Pacific
Ocean had "not been touched upon in the treaty" of 1824, it is clear
that he must have wholly misapprehended the observations of the
American Secretary of State. The treaty, upon its face, shows just the
contrary. M. de Poletica, it Avill be remembered, at the very outset of
the negotiations between Eussia and the United States, expressly
waived the question of the right of Eussia to regard the whole sea
between the North American and Asiatic continents north of 51°
north latitude on one side and 45° north latitude on the other side,
as a " shut sea," and only insisted upon Eussia's right, as a means
of protecting its colonial industries and trade, to prevent foreign
vessels from coming nearer to her coasts that 100 Italian miles. If Mr.
Adams said to Mr. Addington that the question of mare clausum had
not been touched upon in the treaty of 1824 he meant only that the
question of mare clausum, or ''shut sea," as stated in its broadest
aspect, but expressly waived, by M. Poletica, had not been specifically
disposed of by that treaty. He could not have said that the right of
the subjects and citizens of the two countries to freely navigate and
fish in the open waters of the sea was left untouched by the treaty of
1824.
11492 7
98
That Great Britain signed the treaty of 1825 witliont any knowledge
that the treaty of 1824 would be interpreted otherwise than by its
words, according to their natural signification, is shown by the letter
of Mr. Stratford Canning (who negotiated the treaty of 1825) to Mr.
George Canning, under date of April 3-15, 1825, in which he said:
"Eeferring to the American treaty, I am assured as well by Count
Nesselrode as by Mr. Middleton [the American minister at St. Peters-
burg] that the ratification of that instrument was not accompanied by
any explanations calculated to modify or afJect in any way the force
and meaning of its articles. But I understand that at the close of the
negotiation of that treaty a protocol, intended by the Russians to fix
more specifically the limitations of the right of trading with their pos-
sessions, and understood by the American envoy as having no such
effect, was drawn up and signed by both parties. No reference what-
ever was made to this paper by the Russian iilenipotentlaries in the
course of my negotiations with them; and you are aware, sir, that the
articles of the convention which I concluded depend for their force
entirely on the general acceiitation of the terms in wliich they are
expressed." It does not ajipear that any such protocol was ever, in
fact, executed 5 at any rate, we have no evidence that it was executed.
If this were a case between the United States and Russia, involving
the question as to whether the treaty of 1824, in using the words
"Pacific Ocean," covered the waters of Bering Sea, other considera-
tions might possibly arise than those which must determine that ques-
tion under the treaty of 1825 with Great Britain. Here the inquiry is
wliether Great Britain and Russia in that treaty referred to "Pacific
Ocean" as including Bering Sea. And tlmt inquiry can only be deter-
mined, apart from the words of the treaty itself, by what passed between
the representatives of those two countries during the negotiations
resulting in the treaty between them, of whicli the only evidence is
found in the letters and official documents having rei'erence to those
negotiations.
Did Russia and Great Britain intend that Article I of the treaty of
1825, by which those powers agreed that their respective subjects
" shall not be troubled or molested in any i)art of the Great Ocean com-
monly called the Pacific Ocean, either in navigating the same or in
fishing therein," should be applicable to Bering Sea? Did either Gov-
ernment at the time the negotiations were opened, or when the treaty
was concluded, regard Beriug Sea as outside of the ocean " commonly
99
called the Pacific Ocean"? In view of the grounds upon which Great
Britain, during negotiations extending over three years, steadily rested
its objections to the Ukase of 1821, can it be presumed or supposed
that she intended to leave that Ukase in force as to the waters of Ber-
ing Sea and thereby recognize the right of Eussia to prohibit British
vessels from approaching any of the coasts of that sea nearer than 100
Italian miles?
It seems to me that these questions must all be answered in the
negative. What waters, according to the understanding of Russia, at
the date of the treaty, were in fact embraced in the Pacific Ocean?
Upon this point there is scarcely room for doubt. In the letter of
Baron Nicolay, dated November 12, 1821, in which he gave notice to
the British Government of the Ukase of 1821, he states that the pos-
sessions of Eussia ^' extend on the northwest coast of America from the
Bering Strait to tlie fifty-first degree of north latitude, as well as on
the coast of Asia opposite and on the adjacent islands, from the same
strait to forty-five degrees," and that if " the Imperial Government had
strictly the right to close to foreigners that portion of the Pacific
Ocean which is bounded by our possessions in America and Asia, a
fortiori, the right in virtue of which it has just adopted a much less
restrictive measure should not be called in question." In the letter,
already referred to, of February 28, 1822, in which M. Poletica stated
fully the grounds upon which Eussia based the Ukase of 1821, he
stated that the first discoveries of Eussia on the northwest coast of
America went back to the time of Peter I, and belonged to the attempt
made towards the end of his reign " to find a passage from the Icy Sea
into the Pacific Ocean"; implying that the Icy Sea, which is now
known as the Arctic Ocean, was connected with the Pacific Ocean.
In the same letter, in which he describes the limits assigned to Eussian
possessious by the Ukase of 1821, M. Poletica states that "the Eussian
possessions in the Pacific Ocean extend on the northwest coast of
America from Bering Strait to the fifty-first degree of north latitude, and
on the opposite side of Asia and the islands adjacent from the same strait
to the forty-fifth degree." It thus appears that Eussia, by its repre-
sentatives, in language too clear to admit of doubt as to its meaning,
regarded all of its possessions on the northwest coast of America,
extending from Bering Strait to the fifty-first degree of north latitude,
as being on the Pacific Ocean.
It is equally clear that Great Britain so understood the matter. In
100
no dispatch emanating from the British Foreign Office is there any-
thing indicating that, in its judgment, Bering Sea was not a i)art of
the Great Ocean commonly called the Pacific Ocean, or that its Gov-
ernment was concerned simply about navigation and fishing in the
waters south of the Alaskan Peninsula, which washed the shores of the
particular territory, limited in extent, and then in dispute between that
country and Kussia. On the contrary, in the xjrojet of a convention
which Mr. George Canning, on the 12th of July, 1824, prepared for the
consideration of Russia, it distinctly appears that Great Britain con-
templated a treaty covering all the coasts and waters on the North
American coast from Bering Strait southward. Article i in that
draft provided: "It is agreed between the high contracting parties
that their respective subjects shall enjoy the right of free navigation
along the whole extent of the Pacific Ocean, comprehending the sea
tvithin Bering Straits, and shall be neither troubled nor molested in
carrying on their trade and fisheries, in all parts of the said ocean,
either to the northward or southward thereof; it being well understood
that the said right of fishery shall not be exercised by the subjects of
either of the two powers nearer than two marine leagues from the
respective possessions of the other."
In his letter inclosing this projet to Sir Charles Bagot, the British
minister at St. Petersburg, Mr. Canning said: "Your Excellency
will observe that there are but two points which have struck Count
Lieven as susceptible of any question. The first is the assumption
of the base of the mountains, instead of the summit, as the line
of boundary; the second, the extension of the right of the naviga-
tion of the Pacific to the sea beyond Bering Straits. As to the
second point, it is, perhaps, as Count Lieven remarks, new. But
it is to be remarked, in return, that the circumstances under which
this additional security is required will be new also. By the territorial
demarcation agreed to in this ^projet\ Eussia will become possessed,
in acknowledged sovereignty, of both sides of Bering's Straits. The
power which could think of making the Pacific a mare clausum may not
unnaturally be supposed capable of a disposition to apply the same
character to a strait comprehended between two shores of which it
becomes the undisputed owner; but the shutting up of Bering
Straits, or the power to shut them up hereafter, would be a thing not
to be tolerated by England. Nor could we submit to be excluded,
either positively or constructively, from a sea in which the skill and sci-
101
ence of our seamen lias been and is still employed in enterprises inter-
esting not to this country alone, but to the whole civilized world. The
protection giv^en by the convention to the American coasts of each
power may (if it is thought necessary) be extended in terms to the
coasts of the Russian Asiatic territory; but in some way or other, if
not in the form now prescribed, the free navigation of Bering's Straits
and of the seas beyond them must be secured to us." British Case,
Vol. 3, App. 65.
Of course Mr. Canning, when he framed the above draft of a conven-
tion regarded the waters immediately south of "the sea within Ber-
ing Strait" as part of the Pacific Ocean. The same draft shows that
he contemplated the settlement of the rights of the two nations on the
entire coasts and in all the waters south of Bering Strait. And such
evidently was the purpose of Russia, which offered a counter-^^roje^ of a
convention, to settle, "according to the principle of mutual accommo-
dation, the boundary between their possessions and settlements on tlie
northwest coast of America, as well as divers questions relating to
commerce, navigation, and fishing by their resjiective subjects in the
Pacific Ocean." After defining the line of demarcation between the
possessions of the two high contracting parties on the northwest coast
of America and the adjacent islands, and according to the vessels and
the subjects of the two powers the right in the possessions of the two
powers, as defined, for ten j^ears " to freely frequent the gulfs, harbors,
and creeks in those parts of the islands and of the coast which are not
occupied by either Russian or English settlements, and there to engage
in fishing and commerce with the natives of the country," the Russian
couuter-projet proceeds: "Art. IV. In future no settlement shall be
formed by His Britannic Majesty's subjects within the limits of Russian
possessions set out in Articles I and II, and, in like manner, none shall
be formed by the subjects of His Majesty the Emperor of all the Russias
outside of the said limits. Art. Y. The High Contracting Parties stipu-
late moreover, that their respective subjects will have the right to
freely navigate the tohole extent of the Pacific Ocean, both towards the
north and south, without any liindrance whatever, and that they will
enjoy the right of fishery in the high seas, but that this latter right shall
never be exercised \?'ithin a distance of two marine leagues from the
coast or possessions — whether Russian or British. Art. VI. His Majesty
the Emperor of all the Russias, being anxious to give a special proof of
his regard for the interests of His Britannic Majesty's subjects, and to
102
render more useful the success of tlie enterprises which will eventually
result in the discovery of a i)assage on the north of the American conti-
nent, consents that the freedom of navigation mentioned in the preced-
ing article shall apply, under the same conditions, to Bering Strait,
and to the sea situated to the northward of said strait. Art. VII. Any
itussian or British ships navigating the Pacijio Ocean and the sea
above mentioned tliat may be obliged, by storms or by damages, to
take refuge in the respective ports of the High Contracting Parties,
shall be allowed to refit therein, and to take aboard everything neces-
sary, and to sail away again freely, without paying any other charges
than port and lighthouse dues, which shall bo the same as those paid
by national vessels." British Case, Vol. 5, App., 68, 69.
Is it not apparent from this cowwU^.v -projet that Russia regardod
the "sea situated to the northward" of Bering Strait, that is, the Arctic
Sea, as being separated from the Pacific Ocean only by the waters of
that Strait, and therefore that what is now called Bering Sea was
regarded by the Government of that country as jjart of the Pacific
Ocean? If Russia did not then regard Bering Sea as a part of the
Pacific Ocean, it would follow that the privilege given by Article VII
of the couwiox-projet to "Russian or British ships navigating the
Pacific Ocean and the sea above mentioned''^ (the sea north of Bering
Strait) to take temporary refuge, in case of storms or damage, in the
respective ports of the two countries, could not be exercised by a
British vessel navigating Bering Sea. A i)urpose to make such a dis-
tinction ought not to be imjDuted to Russia. It ought not to be sup-
posed that Russia intended to assent to the navigation by British
vessels of Bering Strait and the sea to the northward of it, and yet
restrict the right of navigation in the waters immediately south of
Bering Strait. This sui^position is entirely inconsistent with the
declaration in the counter -^roje^ that the treaty whicli the two govern-
ments were seeking to negotiate had in view the settlement of ques-
tions relating to commerce, navigation, and fishing by their respective
subjects "in the Pacific Ocean."
The documentary evidence to which we have referred all tends to show
that Great Britain was chiefly concerned about the assumption by Rus-
sia, in the Ukase of 1821, of exclusive dominion over the Pacific Ocean,
and that it regarded the question of territorial limits on the continent
of America as subordinate and relatively unimportant. It earnestly
sought the repeal of an edict that asserted "exclusive jurisdiction over
103
ail ocean of iininensured extent." It withdrew its oifer to establish
"an exclusive fishery of two leagues from the coasts" of the respective
countries, and suggested that one league to each i)ower on its own
coasts, as recognized by the law of nations, would suflice and was all
that she would admit.
Not long- after this letter of December 8, 182-1, the treaty between
E,ussia and Great Britain, in the form above given, was signed. Mr.
Sti'atford Canning-, in the letter informing Mr. George Canning- of that
fact, said, among other things: "With respect to Bering- Straits I
am happy to have it in my power to assure you, on the joint authority
of the Russian plenipotentiaries, that the Emperor of Russia has no
intention whatever of maintaining any exclusive claim to the naviga-
tion of those straits, or of the seas north of them." Is it to be supposed
that the British plenipotentiary understood Russia as asserting- or
reserving exclusive rights in the sea south of those straits'?
In view of this array of documentary evidence the Tribunal is asked
to find that the treaty of 1825 used the words "Pacific Ocean" as
embracing- only the waters of Bering Sea. If we so declare, then our
finding- will, in eftect, be a declaration that although Great Britian, dur-
ing- negotiations covering several years, persistently demanded the
abrogation of an edict asserting for Russia the right to establish a line
100 Italian miles from its shores, washed by seas too vast in extent and
too immediately connected with the great oceans of the world to come
under the exclusive jurisdiction of any nation, she finally agreed to
withdraw her opposition to that assumption of jurisdiction so far as
. related to Bering Sea, more than 1,000 miles in length and more
than 1,200 miles in width j and this notwithstanding in no i)art of the
voluminous correspondence preceding the treaty of 1825 is there one
word that expressly, or by necessary implication, indicates any x)ur-
pose on the part of Russia to demand, or upon the part of Great Britian
to concede, that the Ukase of 1821 should remain in force as to Bering
Sea, as distinguished from the North Pacific Ocean.
I have been unable to reach that conclusion. Nor can that position
be sustained consistently with the position taken by Russia itself after
1825 as to the sco])e and effect of the treaties of 1821 and 1825. The
evidence is conclusive that Russia — whatever may have been em-
bodied in the proceedings of the Nessdrode conference after the treaty
of 1821 was signed — understood both treaties to have annulled the
Ukase of 1821 in its application to foreign vessels, so far as to secure
104
to tbe citizens of G-reat Britain and America entire freedom of navi-
gation and rights of fishing throughout the whole of Bering Sea, out-
side of territorial waters.
In Tickmenief 's "Historical Eeview of the formation of the Kussian
American Company and their proceedings to thepresent time", published
at St. Petersburg in 1863 {Part I, pp. 130-139), it is said: "In 181L>
Etolin, governor of the colony, informed the company that in the course
of his tour of inspection he had come across several American ships.
Although circumstances had prevented his communicating with them
at the time, he had reason to believe that they were whalers. In cor-
roboration of this he stated that for some time he had been receiving
reports from various parts of the colony of the appearance of American
whalers in the neighborhood of the harbors and shores of the colony.
Amongst these reports the most noteworthy was that of Captain Kad-
nikofif, the commander of the company's ship IS'asliednik Alexander, who
stated that, on a voyage from Sitka to Okhotsk, he had hailed a whaler
flying the American flag. The master informed him that he had come
from the Sandwich Islands in company with thirty other ships to whale
on both sides of the western extremity of the peninsula of Alaska and
the eastern islands of the Aleutian group belonging to that peninsula,
and that as many as 200 whalers were coming from the United States
the same year. Captain Kadnikoff also ascertained from the master
that in 1811 he had whaled in the same waters in company with fifty
other shijis, and that his ship secured thirteen whales, from which
1,000 barrels of oil were obtained." British Case, Vol. 1, Apj)- 40.
In reply to an application by the Russian American Company to i^re-
vent the Americans from fishing in the waters of the colony, the Eus-
sian foreign office, in 1812, said: "The claim to a mare clausu»i, if we
wi.shed to advance such a claim in respect to the northern part of the
Pacific Ocean, could not be theoretically justified. Under Article I of
the convention of 1824 between Russia and the United States, Avhich is
still in force, American citizens have a right to fish in all parts of the
Pacific Ocean. But under Article IV of the same convention, the ten
years' period mentioned in that article having expired, we have power
to forbid American vessels to visit inland seas, gulfs, harbors, and
bays, for the purposes of fishing and trading with the natives. That is
the limit of our rights, and we have no power to prevent American
ships from taking whales in the open sea.''^ Letter from the Department
of Manufactures and Internal Trade, December 14, 1813, No. 5191, Dielo.
Arlch. Kom., 1842, goda, Mo. 14, str. 7. British Case, Vol. 1, A]^p. 40.
105
Again, in 1<S43, tlie question was presented to tlie Russian Foreign
Office whether the cUiim of foreigners to take whales in Eussian waters
ouffht not to be limited by a line drawn at a distance of at least three
leagues, or nine Italian miles, from the shores of the colony. The Eus-
sian Foreign Office, in 18-13, said: "The fixing of a line at sea within
which foreign vessels should be prohibited from whaling off our shores
would not be in accordance with the spirit of the convention of 1821,
and tcould he contrary to the provisions of our convention of 1825 icith
Great Britain. Moreover, the adoption of such a measure, without
preliminary negotiation and arrangement with the other powers, might
lead to protests, since no clear and uniform agreement has yet been
arrived at among nations in regard to the limit of jurisdiction at sea."
British Case, Vol. 1, A})}). 41.
Subsequently, in 181G, the governor- general of Siberia, in conse-
quence of what were regarded as new aggressions on the part of whalers,
expressed the opinion that, in order to limit the whaling operations of
foreigners, it would be fair to forbid them to come within 40 Italian
miles of the Eussian shores, the ports of Petropavlosk and Okhotsh to
be excluded, and a j^ayment of 100 silver roubles to be demanded at
those ports from any vessel for the right of whaling. He recommended
the employment of a cruiser to watch foreign vessels. But the Eussian
Foreign Office, in 1817, said: " T7e have no right to exclude foreign
shipa from that part of the Great Ocean to hich separates the eastern shore
of Siberia from the northwestern shore of America, or to make the pay-
ment of a sum of money a condition to allowing them to take whales."
British Case, Vol. 1, App. 41.
Of course, the waters here referred to included the whole of Bering
Sea, and the language used by the Eussian Foreign Office leaves no
room to doubt that Eussia regarded Bering Sea as part of the "Great
Ocean." Nor can we suppose that Eussia, after the treaty of 1825, re-
garded the prohibition in the Ukase of 1821 against foreign vessels
approaching its shores nearer than 100 Italian miles as in force against
the subjects of Great Britain, or against the people of any nation at
the time of the cession of 1867 to America.
It may be said that the official declarations of the Eussian Foreign
Office as to the spirit and meaning of the treaties of 1824 and 1825
had reference to the hunting of whales and not to the hunting of fur
seals. But there is no ground to supi)ose that foreign vessels employed
in hunting whales in Bering Sea had, in the judgment of the high
106
contracting' parties, any less rights tlian those employed in the hunt-
ing of fur seals in the same waters. There is no trace in the record
of any purpose upon the part of Eussia to claim larger rights in the
open waters of Bering Sea in respect to the hunting of fur seals than
in respect to the hunting of whales. In fact, prior to 1807, there was
no such thing known as the hunting of these fur seals in the high seas,
except, perhaps, a few were taken by the natives along the coasts with
spears and harpoons.
There is one argument, in sujiport of the contention that "Pacific
Ocean" in the treaties of 1824 and 1825 do not include Bering Sea, which
deserves examination. It is, that upon a vast number of maps pub-
lished prior to 1825 the waters north of the Aleutian Islands and be-
tween Alaska and Siberia were designated separately from the waters
south of those islands, and that if Eussia and Great Britain intended
that the treaty of 1825 should embrace the Avaters of Bering Sea some
reference would have been made to that sea in the form of words used
on maps designating it as a separate body of water. To Mr. Blaine's
letter of December 17, 1890, is attached a list of 105 maps, covering
the period from 1743 to 1829, showing that on those maps the waters
south of Bering Sea are variously designated as the Pacific Ocean,
Ocean Pacifique, Stilles Meer, the Great Ocean, Grand Mer, Grosser
Ocean, the Great South Sea, Grosser Sud-Sea, iJ^orth Pacific, Mer du
Sud, etc. On those maps the waters north of the Aleutian Islands
are as a general rule designated specially, sometimes by the words
"Sea of Kamschatka," and at other times by the name of "Bering-
Sea."
But, upon examining those and other maps, it appears that, in most
instances, the words "Seaof Kamschatka" and "Bering Sea" are often
in letters so small as compared with the words " Pacific Ocean," "Great
Ocean," "Great South Sea," etc., lower down on the map, as to justify the
conclusion that the former body of water was regarded as a part of the
latter. This view is supported by the fact that on many charts, and in
many geographies, encyclopedias, and other publications prior to and
since 1825 (references to some of which ai'e given in the margin*) Bering
*Morse's American Geography, London, 1794, p. 650: "Russian Empire. This
immense empire stretches from the Baltic Sea and Sweden on the west to Kam-
schatka and the Pacific Ocean on the east, and from the Frozen Ocean on the ■
north to about the forty-fonrth degree of latitude on the south."
Malhani's Naval Gazctcer, London, 1705, Vol. 2, p. 4: "Kamschatka Sea is a
large hranch of the Oriental or North Pacific Ocean."
107
Sea was often referred to as constituting a part of tlie Pacific Ocean or
South Sea, or the Xorth Pacific Ocean. These facts explain how it was
that the treaty of 1821 described the Great Ocean, on which there
shouhl be free(h:)in of navigation and fishing, as the body of waters com-
monly called the Pacific Ocean or South Sea. This description was
first suggested in the projet presented to the Russian Government by
Mr. Middleton, the American minister at St. Petersburg, the words of
which were, "in any part of the Great Ocean, vulgarly called the Pacific
or South Sea." American State Papers, Vol. 5, p. 464.
Ibid, Vol. 1,1). 42: "Bering's Straits, wliicli is the passage from the North
Pacific Oceau to the Arctic Sea."
Brooke's General Gazcleer, 1802: "Bering's Island — An island in the Pa-
cific Oceau."
Montefiore's Commercial Dictionary, 1S03 : "Kamschatka — Bounded on the east
and south by the North Pacific Ocean."
CrutttweWs New Universal Gazcleer, 1808 : "Kaiuschatka — Peninsula, bounded
on the east and south by the North Pacific Oceau.
Eees's Cijclopadia, Vol. 26, London, 1819. — "Pacific Ocean, or South Sea, iu geog-
raphy, that vast ocean which separates Asia from America. It is called Pacific
from the moderate weather which the first mariners who sailed in it met with
between the tropics; and it was called the Soath Sea because the Spainards
crossed the isthmus of Darien from north to south. It is properly the western
ocean with regard to America. Geographers call the Soutli Sea Mare Pacificum,
the Pacific Ocean as being less infested with storms tliau the Atlantic. * # »
This ocean is divided into two great parts. That lying east from Kamgchatka,
between Siberia and America, is eminently styled the Eastern or the Pacific
Ocean; that on the west side from Kamschatka, between Siberia, the Chinese
Mongoley, and the Kwielly Islands is called the Sea of Okliotsk. From the
different places it touches it assumes difi^erent names, e. g , from the place where
the river Anadyr falls into it, it is called the Sea of Anadyr, about Kamschatka,
the Sea of Kamschatka; and the bay between the districts of Okhotsk and
Kamschatka is called the Sea of Okhotsk."
Encyclopedie Miilhodique Geographie, Paris, Vol. 2, p. 501: "2d. L'Oci^au pacifl-
que, la mer du sud, ou la grand mer, qui est situde entre les cotes orientales
d'Asie, et occidentales d'Amerique."
(The Pacific Ocean, the South Sea, or the Great Sea, which is situated between
the coasts of Asia and the western coasts of America.)
Encyclop^die du Dix-Neuvieme Siecle (Eucyclopjedia of the 19th Century),
Paris, Vol. 17, p. 429; Ocean Pacifique ou raer du sud, appelce aussi grande Mer
entre I'Araerique et I'Asie, entre le cercle polaire du nord et colui du sud. (The
Pacific Ocean, or the South Sea, called also the Great Sea, between America and
Asia, and between tlie northern polar circle and the southern.)
Edinburgh Gazeleer, 1822. Vol. 1, p. 432: " Behriug's Island — an island in the
North Pacific Oceaa."
108
I am of opinion in view of all tUe evidence — wliicli includes many
do(;nnients that do not appear to have been brought to the attention
of Mr. Blaine during his correspDudcnce with Lord Salisbury — that the
words Pacific Ocean in the treaty of 1S35 included, and wore intended
by Russia and Great Britain to include, the waters of Bering Sea as
part of "the Great Ocean commonly called the Pacific Ocean."
Respecting the seal fisheries in Bering Sea, named in the first and
second points of Article VI of the treaty — if the reference be to the
fur-seal industries conducted under the license or authority of Russia on
the islands situated in that sea — it is clear, from the records in our hands,
that Russia, from a date prior to the beginning of the present century
down to the cession in 18G7 of Alaska to the United States, had the ex-
clusive right to such fisheries, and that her rights, in that regard, were
General Gazeleer, London, 18.23: " Beering's Island — in the North Pacific Ocean."
New London Gazeteer, 1826: -'Beering's Island — in the Pacific."
Edinburgh Gazetecr, London, 1837, Vol. I,}). 433: "Kamschatka (Peninsula). On
the east it has the North Pacific Ocean, and on the west that large gulf of it
called the Sea of Okhotsk."
Arrowsmith's Grammar of Modern Geography, 1833: "Bhering's Strait connects
the Frozen Ocean with the Pacific. The Anadir flows into the Pacific Ocean."
Penny Encyclopedia, London, ISiO, p. 116: "Pacific Ocean extends between
America on the east and Asia and Australia on the west. * * * It is called
the South Sea, because vessels sailing from Europe can only enter it after a long
southerly course. The name of South Sea has been limited in later times to the
southern portion of the Pacific. The Pacific is the greatest expanse of water
on the globe, of which it covers more than one-half of the surface. * * *
Behring's Strait, wliich may be considered as its most northern boundary, lies
between East Gape in Asia and Cape Prince of Wales near 66° north latitude,
and is less than 40 miles wide."
London Encyclopedia, 1845, Vol. 16, p. 102: Following Malte Brouu's Precis
de la Geographic Uuiversello, this book describes the Eastern or Great Pacific
Ocean as embracing among other waters "the Northeastern Ocean between Asia
and North America," the ''seas of Japan, Kamschatka, and Beering's Strait,"
making "a part of it."
Encyclopedia Americana, Philadelphia, 1845, Vol. 9, p. 476: "Pacific Ocean;
the great mass of waters extending from Beering's Straits to the Antarctic Circle,
a distance of 3,200 leagues, and from Asia and New Holland to America. * * *
It was at first called the South Sea by the European navigators, who entered it
from the north. Magellan gave it the name of Pacific," etc.
New American Cyclopedia, by Ripley and Dana, 1851: "Pacific Ocean: Between
longitude 70° west and 110° east ; that is, for the epace of 180°, or over one entire
half of the globe. It covers the greatar part of the earth's surface from Behring's
Straits to the Polar Circle, that sejiarates it from the Antarctic Ocean."
Harpei-' 8 Statistical Gazeteer of the World. By Smith. New York: 1855. "Eus-
109
recognized and conceded by Great Britain, in the sense that that
country never, in auy form, disputed such right, although neither Great
Britain nor the United States ever recognized or conceded even the
quah tied jurisdiction asserted by Russia, in the Uliase of 1821, to for-
bid foreign vessels from approaching nearer tlian 100 Italian miles from
her coasts or islands. In respect to seal fisheries, if any, conducted in
the oi)en waters of Bering Sea outside of territorial waters, Kussia
neither held nor exclusively exercised any right not possessed, in such
open waters, by all other nations.
In respect to the fourth point of Article VI, it was not disputed in
argument (as of course it could not be) that whatever rights — that
is, wliatev^er legal rights — Russia had, as to jurisdiction and as to
sian America comprises the wliole of the continent of northwest America west of
longitude 144*^ west and a strip on the coast extending south to latitude 55°
north, bounded on the east by British America, south and west by the Pacific
Ocean, and north by the Arctic Ocean," etc.
Cyclopedia of Gco(]rapluj, hy Knight, 1856: "Behring's Strait, which connects
the Pacific with the Arctic Ocean, is formed by the approach of the continents
of America and Asia."
McCuUoclCs Geographical Dictionary, hy Martin, 1866: "Pacific Ocean: Its ex-
treme southern limit is the Antarctic Circle, from which it stretches northward
through 132^ of latitude to Behring Strait, which separates it from the Arctic
Ocean."
BlacMe's Imperial Gazeteer, London, 1874, Vol. 2, p. 558 : "In the north the
Pacific gradually contracts in width; the continents of America and Asia
stretching out and approximating, so as to leave the comparatively narrow
channel of Behring's Strait as the only communication between the Pacific
and the Arctic Oceans."
American Cyclopedia, New York, 1875, Vol. 1, p. 480: ''Behring Sea. That part
of the Pacific Ocean which lies immediately south of Behring Strait."
Encyclopedia Britannica, Edinburgh. Ninth Ed., 1875-1800, Vol. 18, p. 115:
"The Pacific Ocean is bounded on the north by Behring's Strait and the coasts of
Russia and Alaska. * * * It extends through 132-^ of latitude; in other
words, it measures 9,000 miles from north to south. From east to west its
breadth varies from about 40 miles at Behring's Strait," etc. In the English
edition it is stated in a footnote that the Pacific Ocean was formerly called the
South Sea.
Worcester's Dictionary of the English Language, Philadelphia, 1887: "Behring
Sea: A part of the Pacific Ocean north of the Aleutian Islands."
Chambers's Cyclopaedia, 1888: "Behring Strait connects the Pacific Ocean witJi
the Arctic Ocean. Behring Sea: A part of the Pacific Ocean commonly known
aa the Sea of Kamchatka."
110
seal fisheries in Bering Sea east of the water boundary defined in
the treaty of March 30, 18G7, between Eussia and the United States,
passed unimpaired to the United States. She conveyed all her terri-
tory and dominion, and all the rights, franchises, and privileges Avhich
she possessed in such territory and dominion, within the limits defined
by that treaty, free and unincumbered by any reservations, privileges,
grants, or possession, by any company or individuals. The deed of ces-
sion of 1867 necessarily embraced all of Kussia's rights, whatever they
were, in the fur seals frequenting the Pribilof Islands, and in the
industries carried on there for more than three-guarters of a century
prior to 1867.
If I am correct in the views above expressed, the answers to the
first four points of Article VI should be, substantially, as follows:
To the first. — Prior to and up to the time of the cession of Alaska to
the United States, Russia did not assert nor exercise any exclusive
jurisdiction in Bering Sea, or any exclusive rights in the fur seal fish-
eries in that sea, outside of ordinary territorial waters, except that in
the Ukase of 1821 she did assert the right to prevent foreign vessels
from approaching nearer than 100 Italian miles the coasts and islands
named in that Ukase. But, pending the negotiations to which that
Ukase gave rise, Russia voluntarily suspended its execution, sa far as
to direct its officers to restrict their surveillance of foreign vessels to
the distance of cannon shot from the shores mentioned, and by the
treaty of 1821 with the United States, as well as by that of 1825
with Great Britain, the above Ukase was withdrawn, and the claim
of authority or the power to prohibit foreign vessels from approaching
the coasts nearer than 100 Italian miles was abandoned, by the
agreement embodied in those treaties to the effect that the respective
citizens and subjects of the high contracting parties should not be
troubled or molested, in any part of the Great Ocean commonly called
the Pacific Ocean, either in navigating the same or in fishing therein,
or in landing at such parts of the coast as shall not have been already
occupied, in order to trade with the natives, under the restrictions
and conditions specified in other articles of those treaties.
To the second. — Great Britain never recognized nor conceded any
claim by Russia of exclusive jurisdiction in Bering Sea, nor of
exclusive rights as to the seal fisheries therein, outside of ordinary
territorial waters; although she did recognize and concede Russia's
Ill
exclusive jurisdiction within her owu territory and such jurisdiction
inside of territorial waters as was consistent with the law of nations.
To the third. — The body of water now linown as Bering Sea was
included in the phrase "Pacific Ocean" as used in the treaty of 1825
between Great Britain and Kussia, and, after that treaty, Eussia
neither held nor exercised any rights in the waters of Bering Sea, out-
side of ordinary territorial waters, that did not belong in the same w^aters
to other countries.
To the fourth. — All the rights of Russia as to jurisdiction, and as to
the seal fisheries in Bering Sea, east of the water boundary in the
treaty between the United States and Russia of March 30, 18G7, jiassed,
under that treaty, unimpaired to the United States.
3.
THE RIfiHT OF PROPERTY ASSERTE» BY THE UNITED STATES
IIV THE PKIRSJLOE HERD OF SEAES, AWD ITS RliiiHT, M'HETIIER
AS OW^ER OF THE HERD, OR SIIUPEY AS O^VIMiR OF THE FUR
SEAE IIVDUSTRY OIV TBIE PRBRIEOF ISEAIVDS, TO PROTECT THE
SEAES AGAINST PEEA«1€ SEAEIIVG.
I come now to the most important and interesting question presented
for determination, namely, that involved in the fifth point of Article VI
of the Treaty :
^'■Has the United States any right, and if so, ichat right of protection or
property in the fur-seals frequenting the islands of the United States in
Bering Sea when such seals are found outside the ordinary three-mile
Umitr^
It is necessary to a proper understanding of this question, in its
bearing upon the general subject of the preservation of this race of ani-
mals, that we recall the facts (never before so fully developed as in the
evidence now adduced) touching their history, nature, and habits as
w^ell as the results that necessarily follow from hunting and killing
them in the high seas. These facts vshould be clearly apprehended before
we enter upon the consideration of the princii)les of law and justice
applicable to the case. They should be brought together here, even at
the risk of some repetition.
These facts — stating only such as are admitted or are established by
overwhelming evidence — are as follows:
1. The animals in question belong to the species commonly designated
by naturalists as the Is'^orthern Fur Seal, and are valuable for purposes
112
of raiment and food. The race has only four breedingplaces : Commander
Islands, in the western part of Bering Sea, near the coast of Asiaj llobben
lleef, in the Sea of Okhotsk ; the Kurile Islands, on the west side of
the Pacific Ocean, near the coasts of Japan and Asia ; and the islands
of St. Paul and St. George, part of the Pribilof group in Bering Sea.
The Pribilof seals so far differ from others of the Northern Fur Seal
species that their pelage can readily be distinguished by experts from
that of the seals of other herds.
2. The taking or killing of fur seals, for commercial jiurposes, at the
islands of St. Paul and St. George, during the eighty years of Kussia's
ownership of the Pribilof Islands, was conducted under the license
or authority of that nation. And the exclusive right of Eussia, dur-
ing that period, to control that business, so conducted, for its exclusive
benefit or for the advantage of its subjects, was not disi^uted by any
other country.
3. By a joint resolution of the Congress of the United States, apjjroved
March 3, 1869, providing for the more effective protection of the fur
seal in Alaska, the islands of St. Paul and St. George — which, with
other islands in Bering Sea, became the property of the United
States by virtue of the cession from Russia of March 30, 18G7 — were
declared to be "a special Eeservation for Government purposes;" and
it was made unlawful for any person to land or remain on either of the
two islands named, except by the authority of the Secretary of the
Treasury; any person found on either island without such authority
being liable to be summarily removed.
Subsequently, by an act of Congress, entitled "An act to prevent
the extermination of the fur-bearing animals in Alaska," approved
July 1, 1870, it was made unlawful to kill any fur seal upon the islands
of St. Paul and St. George, or in the waters adjacent thereto (except
during certain named months), or to kill such seals at any time with
firearms, or to use any means that tended to drive the seals from the
islands; the natives on the islands being, -however, allowed the priv-
ilege (sul)ject to regulations prescribed by the Secretary of tlie Treas-
ury) of killing, during other months, such young or old seals as were
necessary for food and clothing. By the same statute it was made
unlawful to kill any female seal, or any seal less than one year old, at
any season of the year (except as provided in the case of natives), or
to kill any seal in the waters adjacent to the islands, or on the beaches,
cliffs, or rocks where they hauled up from the sea to remain ; any per-
son violating the above provisions or either of them being made liable
113
to a fine of not less tliaii $200 nor more tbau $1,000, or to imprison-
ment not exceeding six months, or botli to sucli tine and imprisonment
at the discretion of the conrt liaving cognizance of the offense; all
vessels, their taclile, apparel, and furniture, whose crew were found
engaged in violating the provisions of the act, to be forfeited to the
United States.
The same act provided tliat, for tlie period of twenty years, the
number of seals Ivilled for tlieir skins should be limited to 75,000 per
annum upon the island of St. Paul, and 25,000 upon the island of
St. George; subject, however, to the power of the Secretary of the
Treasury to limit the right of killing, if that should become neces-
sary for the preservation of the seals, with sucli i)roportionate reduc-
tion of the rents reserved to the Government, as was riglit and ])ro])er.
The Secretary was required to lease for the term of twenty years, to
proper and resj^onsible parties, for the best advantage of the Govern-
ment, the native inhabitants, their comfort, maintenance, and educa-
tion, as well as to the interest of the parties previously engaged in the
trade, and the protection of the fur seals, the right to engage in the
business ot taking fur seals on the islands of St. Paul and St. George,
and to send a vessel or vessels to those islands for the skins of the
seals; taking irom the lessee or lessees bond with sufficient sureties
in the sum of not less than $500,000, conditioned for the faithful observ-
ance of all the laws of Congress and of the regulations of the Secre-
tary of the Treasury, touching the subject nuitter of taking fur seals,
and disposing of the same, and for the i)aymcnt of all taxes and dues.
It was further provided, that at the end of the lease, otlier like leases
could be made; but no persons other than American citizens were
l)ermitted to 0(;cupy the islands or either of them, for the i)urpose of
taking the skins of fur seals, nor any vessel allowed to engage in taking
such skins; any lease made by the Secretary of the Treasury being
subject to forleiture if it was held or operated, directly or indirectly,
for the use, benefit, or advantage of any person other than American
citizens.
These and other provisions having for their object the utilization of
these animals for purposes of revenue and commerce, and their pro-
tection against indiscriminate slaughter on the islands, or in the
adjacent waters, were preserved in the Kevised Statutes of the United
States of 1873, §§. 195J: to 197G, inclusive.
1U'J2 6
114
By anotlier act of Congress, ai)proved Marcli 2, 1889, it was iirovided
that section lOaGot'tlie lievised Statutes, prohibiting the kilHngof any
otter, mink, nmrten, sable or seal, or other I'lir-bearing- animal, within the
limits of Alaska Territory or in the waters thereof was declared to include
and apply to all the dominion of the United States in the waters ot
Bering Sea; and it was made the duty of the President, at a. timely
season in each year, to issue his iiroclamatiou and cause the same to be
published at each United States port of entry oh the Pacific coast,
warning all persons against entering those waters for the purpose of
violating the provisions of that section.
4. The Pribilof herd is found, en masse, every year on the islands of
St, Paul and St. George. They remain there about four or five months.
Much longer time intervenes between the first arrival of some, and the
departure from the islands of those who last leave them for the season.
The xieriod duiing which the herd abides on those islands, is called
the breeding season. They return there regularly for the pur^^ose of
breeding and rearing their young, and of shedding and renewing their
coats of fur.
5. The breeding males, called bulls, arrive in the early i)art of May
or by the middle of that month. Each bull, immediately after coming
from the sea, establishes himself upon the rocky beach, appropriating
as much space as will be needed for his female companions after they
arrive. The non-breeding males, or baclielors, arrive during tlie same
month, and take i^osition, substantially in a body, and, as a general
rule, in the rear of the spaces occupied by tlie bulls. Sometimes tlie
bachelors occupy spaces near the water, but separate from those
occupied by tlie bulls and their female companions. Early in June the
female seals, called cows, begin to emerge in bodies or droves from the
sea, and to enter the spaces iirovided for them by the bulls. By the
10th of July substantially the entire herd is established on the islands.
Each bull appropriates for the season at least fifteen or twenty female
seals.
Within a few hours, it may be, always within a few days, after reach-
ing the islands, the mother seal, in)pregnated during the breeding
season of the previous year, gives birth to a single pup, the period
of gestation being eleven or twelve nu)nths, the pups born being
about equally divided between the sexes. The pups are conceived on
the islands during the breeding season. Cohabitation, for any effective
purpose, in the water, is impossible. The females appear to have an
116
unerring instinct as to the time when the period of gestation will end.
The cows, after being delivered of their i)ui>s, remain for a few weeks
with the bulls l)y whom they have been ai)])ropriated. They go from
the islands into the sea as often as nature suggests -to be necessary for
the purpose of obtaining Hsh for food by which they are nourislied while
suckling their young. A cow, while nursing its puji, often goes long
distances from the islands in search of fish. Capt. Shepard, of the United
States Marine service, who examined tlie skins taken from sealing ves-
sels seized in 1S87 and 1889, over 12,000 in number, two thirds or three-
fourths being the skins of females, says: " Of the females taken in the
Pacific Ocean, and early in the season in Bering Sea, nearly all are
heavy with young, and the death of the female necessarily causes the
death of the unborn pup seal; in fact, I have seen on nearly every vessel
seized the pelts of unborn pups which had been taken from their mothers.
Of the females taken in Bering Sea nearly all are in milk, and I have
seen the milk come from the carcases of dead females lying on the decks
of sealing vessels which were more than 100 miles from the Pribilof
Islands. From this fact, and from the further fact that I have seen seals
in the water over 150 miles from the islands during the summer, I am
convinced that the female, after giving birtli to her young on the rooker-
ies, goes at least 150 miles, in many cases, from the islands in search of
food." liobert H. McManus, a journalist of Victoria, who had devoted
some attention to the sealing industry, referring to a catch of seals
"in Bering Sea when he was present, says that over three-fourths of
that catch were cows in milk. This, he says, at a distance of 200
miles from the rookeries, shows that the nursing cows-ramble all over
the Bering Sea in search of their chief food, the codfish, thongh
these are chiefly found on the banks along the coast of the Aleutian
Islands. In the Canadian Fisheries Report of 1880, it is stated that
of the seals taken that year, "the greatest number Avere killed in
Bering Sea, and were nearly all cows or female seals;" and in the
report of 1888, that " over GO per cent of the entire catch of Bering-
Sea is made up of female seals." The record is full of similar evidence.
6. Upon returning from her search for food the mother seal hunts up
her pup, and will refuse her milk to the pup of any other cow. An intelli-
gent witness thus describes the general habits of the mother seal and its
pup : " The cows appear to go to and come from the water quite fre-
quently, and usually return to the si)otor its neighborhood, where they
leave their pups crying out for them and recognizing their individual
116
cries, tliongli ten thousand Jirouud all together should bleat at once,
Tliey quickly single out their own and attend them. It would be a
very unfortunate matter if the mothers could not identify their young-
by sound, since their pups get together like a great swarm of bees,
spread out upon the ground in 'pods' or groups, while they are young
and not very large, but by the middle and end of September until they
leave in November they cluster together, sleeping and frolicking by
tens of thousands. A mother comes up from the water where sbe has
been to wash, and i)erhaps to feed for the last day or two, about wliere
she thinks her pup should be, but misses it, and iinds instead a swarm
of pups in which it has been incorporated, owing to its great fondness for
society. The mother, without at first entering into the crowd of thou-
sands, calls out just as a sheep does for her lambs, listens, and out of
all the din she — if not at first, at the end of a few trials — recognizes the
voice of her offspring and then advances, striking out right and left,
and over the crowd toward the position from which it replies; but if the
pup at this time happens to be asleep she hears nothing from it, even
though it were close by, and in this case the cow, after calling for a
time without being answered, curls herself up and takes a nap, or
lazily basks, and is most likely more successful when she calls again."
Another witness of large experience says: "As already stated, the
females now mostly spend their time in the water, returning on shore
only to suckle their young as they reqidre food. On landing the
mother calls out to her young with a plaintive bleat like that of a sheep
calling to her lamb. As she approaches the mass several of the young
ones answer and start to meet her, responding to her call as a young-
lamb answers its parent. As she meets them she looks at them, touches
them with her nose as if smelling them, aud passes hurriedly on until
she meets her ow"n, which she at once recognizes. After caressing
liiui she lies down and allows him to suck and often falls into a sound
sleep very quickly after."
If the mother seal is killed while out at sea in search of fish for food,
her pup, left behind on the islands, and requiring the milk of its mother
for eight weeks or more after its birth, will die from starvation. This
fact is placed beyond dispute by the evidence, and is not, I think,
seriously questioned.
The pups do not take to swimming naturally. They are enticed or
forced by their mother, from time to time, into the water and taught
to swim. If a pup, by accident, is born in the sea, it will immediately
117
sink and bo drowned. As already stated, tlie race is botli oonceived
and comes into existence on land, and from the necessities of its physi-
cal natnre must abide npon land during several months of the year.
7. In the latter part of September or early in October, the breeding
season having closed, the pups having learned to swim, and the
ice around the islands increasing the difQculty of going into the sea
for fisli food, the herd begins to leave tlic islands, in squads or bands
of different sizes, proceeding in a southerly and southeasterly direction
through the middle passes of the Aleutian Islands into the North
Pacific Ocean south of those islands, where they get into the warmer
water of the Japanese current. During the winter months many of
the seals are seen off tiie coasts of California and Oregon. The bulls
do not go so far south, and do not accomx)any the herd in its general
migrations, usually remaining in the Gulf of Alaska until they return
to the breeding grounds. In the beginning of the year the seals turn
their faces towards their land home, moving leisurely in small schools
or bands, but substantially as a herd, northwardly and opposite to the
coasts of Oregon, Washington, British Columbia, and Alaska, thence
westwardly, through the eastern passes of the Aleutian Islands, back
into Bering Sea, to their breeding grounds on the islands of St. Paul
and St. George. They occupy year after year substantially the same
places on the islands.
Their general migration route each year from the Pribilof Islands
tlirough the passes of the Aleutian Ishiuds into the Pacific Ocean
and back to their land home on those islands, is well known to sealers
and navigators.
8. While on the islands they are subject to the control, for every
practical or commercial purpose, of those who are there by the authority
or license of the United States. Credible witnesses, faniiliar with the
habits of these animals, state that the young seals, before being weaned,
could be easily handled and branded with the mark of the United
States. So complete is the subjection of these animals, old and young,
to control, while on the islands during the breeding season, that such of
them as U may he desirable to take for commercial 'purposes, can he readily
separated from all the others. Indeed, if pelagic sealing continues to such
an extent as to imperil the existence of the race, and if the United
States should find it to be unprofitable to hold the islands of St. Paul
and St. George as a Government Ivcservation, to be used exclusively
by these animals as their breeding grounds, it could take substantially
118
the entire herd, in any one breeding- sejvson, and put the proceeds of
the sale of their skins into its treasury.
9. Neither in Bering Sea, nor in the North Pacific Ocean, does the
Pribilof lierd intermingle, to any appreciable extent, with the herds of
northern fur seals frequenting the islands on the Asiatic coast. The
migration routes of the latter are altogether in the waters on the western
side of the Pacific Ocean, while the Pribilof herd never have gone west
of the one hundred and eightieth degree of longitude from Green-
wich, and very few have ever been seen so far west. This fact is
conclusively established by the evidence, and is recognized in the
separate re])orts made by the commissioners who were appointed by
the two governments (two by each g'overnment) to investigate and
make report upon the facts having relation to seal life and the meas-
ures necessary for its i)roper protection and preservation.
The American Commissioners, Profs. Merriam and Mendenhall, in
their separate report made under the authority of the treaty between
the two governments, say:
" The fur seals of the Pribilof Islands do not mix with those of the
Commander and Kurile Islands at any time of the year. In summer
the two herds remain entirely distinct, separated by a water interval
of several hundred miles; and in their winter migrations those from
the Pribilof Islands follow the American coast in a southeasterly direc-
tion, while those from the Commander and Kurile Islands follow the
Siberian and Japan coasts in a soutlnvesterly direction, the two herds
being separated in winter by a water interval of several thousand
miles. This regularity in the movements of the different herds is in
obedience to the well-known law that migratory animals follow definite
routes in migration and, return year after year to the same place to breed.
Were it not for this law there would be no such thing as stability
of species, for interbreeding- and existence under diverse physiographic
conditions would destroy all specific characters." U. 8. Case, 323.
The British Commissioners, Prof. Dawson, and Sir George Baden-
Powell, in their separate report, under the same authority, say:
"Eespecting the migration range of the fur seals which resort to
Commander Islands, to Eobbeii Island, and in smaller numbers to
several places in the Kurile Islands, as more fully noted in subsequent
])ages, comparatively little has been recorded; but the result of
inquiries made in various directions, when brought together, are suffi-
cient to enable its general character and the area which it covers to
119
be outlined. The defi ciency in information for the Asiatic coast depends
upon the fact that pelagic sealing, as understood on the coast of
America, is there practically unknown, while the people inhabiting
the coast and its adjaceni islands do not, like the Indians and Aleuts
of the opposite side of the North Pacific, naturally venture far to sea
for hunting purposes. The facts already cited in connection with the
migration of tlie seals on the east side of the Pacific show that these
animals enter and leave Bering Sea almost entirely by the eastern
passes through the Aleutian chain, aiul that only under exceptional
circumstances, and under stress of weather, are some young seals,
while on their way south, driven as far to the west as Atka Island.
No large bodies of migrating seals are known to pass near Attn Island,
the westernmost of the Aleutians, and no young seals have ever tcithin
memory been seen there. These circumstances, with others which it
is not necessary to detail here, are sufficient to demonstrate that the
main migration routes of the seals frequenting the Commander Islands
do not touch the Aleutian chain, and there is every reason to believe
that although the seals become more or less commingled in Eerijig Sea,
during the summer, the migration routes of the two sides of the North
Pacific are essentially distinct. The inquiries and observations now
made, however, enable it to be shown that the fur seals of the two
sides of the North Pacific belong in the main to practically distinct
migration tracts.^ both of which are elsewhere traced out and described,
and it is believed that while to a certain extent transfers of individual
seals or of small groups occur, probably ever year, between the
Pribilof and Commander tribes, that this is exceptional rather than
normal. It is not believed that any voluntary or systematie movement
of fur seals takes place from one group of breeding islands to the other,
but it is probable that a continual harassing of the seals upon one group
might result, in a course of years, in a corresiionding gradual accessiou
to the other group.
"There is no evidence whatever to show that any considerable branch
of the seal tribe which has its winter home off the coast of British
Columbia resorts in summer to the Commander Islands, whether vol-
Qutarily or led thither in pursuit of food fishes; and inquiries along the
Aleutian chain show that no regular migration route follows its direc-
tion, whether to the north or south of the islands. It is certain that
the young seals, in going southward from the Pribilof Islands, only
rarely get drifted westward as far as the one hundred and seventy-
120
second ninridian of west longitude, while Attn Island, on tlie one hnn-
dred and seventy-tliird meridian east is never visited by youn^? seals,
and therefore lies between the regular autumn migration routes of the
seals going from the Pribilof and Commauder Islands respectively."
Sees. 197, W8, 453, 454.
10. The herd habitually resorting to the islands of St. Paul and
St. George is the same that has resorted there in the spring,
summer, and fall of every year for the past century and more
without any change whatever in their habits or in their migra-
tion routes. Since the discovery of the islands, the seals frequenting
them have never resorted, for any purpose whatever, to other coasts
or lands. This, no doubt, is due to the fact that they find on
the Pribilof Islands, and nowhere else, tlie isolation required for the
breeding season, as well as the climatic and iihysical conditions
necessary to their life wants, among which conditions are an uniformly
low temperature and an overcast sky and foggy atmosphere that serves
to protect them against the sun's rays while they remain at the
rookeries during the long summer season. Whatever may be the
reason for their never having landed upon any other shores, it is
indisputably shown that they have regularly resorted to those islands
as their breeding grounds for a period so long that the memory of man
runneth not to the contrary. And the contrary is not asserted.
11. Prior to 1883 or 1885 the taking of these fur seals at sea was
exclusively by Indians or natives inside territorial waters, at any rate,
quite near the coasts. They employed for that purpose only small
canoes and harpoons or spears. Their catch, liowever, lias never been
large in any year, and has not materially affected the industry con-
ducted at the islands of St. Paul and St. George, nor apparently
diminished the number of the herd.
But in 1883 a schooner manned by hunters skilled in taking
seals entered Bering Sea and returned with more than 2,000 seals.
This stimulated the business of taking tlicse animals in the open waters
beyond tlie territorial jurisdiction of the respective governments.
In 1885 firearms were first used in hunting seals. Large schooners
or vessels now go out into the ocean in the route traversed by the
seals and send out small boats manned by hunters with rifles or
Bhotguns. Ordiniirily, only the head of the seal can be seen as it
moves through, or lies asleep, in the water; those thus asleep being,
as a general rule, mother seals heavy with young, who, being dis-
121
abled by their condition from making rapid movements, are easily
approached and killed. It is indisputably sh own by the evidence tha
at least 75 per cent of all seals shot by pelagic sealers and actually
secured are female seals, the larger part of whom are far advanced
in pregnancy when so taken. As soon as the motlier seal is taken
by pelagic sealers, her body is ojiened and tlio unborn pup thrown
into the sea. It is also shown that large numbers of seals, that
are shot at and wounded or kilh'd, sink and are entiiely lost before
the hunter can reach tlieni with his small boat. Tlie number so lost
varies according to the skill of the hunter in using lire arms and the
implements carried for the purpose of securing the seal that has been
wounded or killed, before it sinks. But, making a fair average of the
per cent given by witnesses on both sides, it is certain that, in addi-
tion to the seals actually taken by hunters using fire arms, not less
than 25 to 40 per cent of all seals wounded sink before they are
reached by the hunter, and are entirely lost. In pelaf/ic sealing
there can he no selective Jcillinfi so far as sex is concerned, for it is agreed
hat a hnnter can not tell ivliether the seal at vhich he shoots in the
water is of the male or female sex. Such an attack upon the breeding
females, if continued for a few years, will, of course, result in the ex-
termination of this polygamous race. The slaughter of the female seal
not only involves the loss of the mother and its unborn pup, but, as
Mr. Blaine well said, "the future loss of the whole number which the
bearing seal may jiroduce in the successiv^e years of life. The destruc-
tion which results from killing seals in the open sea proceeds, therefore,
by a ratio which constantly and ra]Mdly increases, and insures the
total extermination of the species within a very brief period." Besides,
in the long run, the killing of a female which has not yet borne young,
or which is too young to have borne many pnps, is more destructive
than to kill one somewhat advanced in years.
The largest number of vessels engaged in hunting these fur seals on
the high seas outside of territorial waters in any year previous to
188G was 16. The number increased in 1880 to 34, in 1887 to 47, in 1889
to 68, in 1800 to 91, in 1891 to 115, in 1892 to 122. The catch,
in the open sea by pelagic hunters of seals belonging to the
Pribilof herd has steadily increased for ten years past, so that
in the North Pacific Ocean, south of the Aleutian Islands, it
amounted to 68,000 in 1891 and at least 70,000 in 1892, the modus
122
Vivendi for those years excluding pelagic sealers only from Bering
Sea.
Daring the breeding season of 18GS, before the United States bad
established regulations for the taking of fur seals at the Pribilof
Islands, and before its authorities had acquired any knowledge as to
the necessity of imposing restrictions upon the number to be killed for
commercial purposes, seal liunters took on those islands alone about
2()S,()00 of all ages and sexes. The evil was, of course, remedied as soon
as the act of 18GS was passed. From 1809 to 1871, inclusive, the aver-
age number killed annually on the islands for commercial purposes
(taking for this estimate the report of the British commissioners) was
G9,258, and from 1872 to 1889, inclusive, 98,211, exclusive, in each
period, of the pups killed by natives for food and raiment. In 1890,
when the disastrous effects of pelagic sealing began to be more distinctly
felt, only 20,995 young males suitable for taking could be found on the
islands, and in 1891 only 12,071, including the 7,500 allowed by the
modus Vivendi of thai year. By tlie modus vivendi of 1892 only 7,500
were allowed to be taken on the islands. In the present year, under the
operation of the latter arrangement, only 7,500 can be taken by the
United States or its licensees on the islands, while pelagic sealers are
at liberty to take all they can in the North Pacific Ocean. It is not
doubted that they will take at least 80,000 this season in those waters.
12. The Commissioners appointed by the United States and Great
Britain agree that "since the Alaska purchase a marked diminution of
the seals on, and habitually resorting to, 'the Pribilof Islands, has
taken i)lace; that it has been cumulative in effect, and that it is the
result of excessive killing by man." They also agree that ''for indus-
trial as well as for other obvious reasons, it is incumbent upon all
nations, and particularly those having direct commercial interests in
fur seals, to provide for their proper protection and preservation."
13. But for the protection given to these seals while on the islands of
St. Paul and St. George, first by Eussia, and, subsequently, by the United
States, the entire herd, frequenting the Ishmds of St. Paul and St.
George since the discovery of those islands (how uuich longer can not be
now known), would long ago have been destroyed by raiders and seal
hunters. If the care, supervision, and self-denial practiced by the
United States on the islands were withdrawn, the race would be swept
out of existence within a very few years.
It is common knowledge that, at the close of the last century fur seals
123
of a somewliat difFerent species from the i^ortlicrn Fur Seals, but
liaving most of tlie same characteristics, could be seen in numbers
almost incredible on numerous coasts and islands in the Southern
Ocean, off the coasts of South America. According to the concur-
rent testimony of navigators and naturalists, all these herds in the
southern seas have been annihilated, or so reduced in numbers that it
is no longer worth while to visit them, "owing," to use the language of
Sir William H. Flower, the distinguished head of the Ibitisli Natural
History Museum, "to the ruthless and indiscriminate slaughter carried
on by ignorant and lawless sealers, regardless of everything but imme-
diate profit." We have the authority of the same eminent naturalist
for saying: "The only spot in the world where the fur seals are now
found in their original, or even increased, numbers, is the Pribilof group,
a circumstance entirely owing to the rigid enforcement of the wise reg-
ulations of the Alaska Commercial Company. But for tliis tlie fur seal
before now would have been added to the long list of animals extermi-
nated from the earth by the hand of man." Fifty -second Congress
United States, First session, Senate Ex. Doc. No. 55, pp, 06-97.
Dr. Philip Lutley Sclater, of the Zoological Society of London, in a
recent article to which our attention has been called, says, substantially
in conformity with the evidence before us : " In former days South Africa,
Australia, and South America all supplied seal slcins for the market,
derived either from the shores of the continents themselves, or from the
adjoining islands, to which the fur seals resorted for the purpose of
breeding and bringing uj) their young. But the Antarctic fur seal trade
is now practically extinct, owing to the indiscriminate slaughter of these
animals, which commenced at the end of the last century and was con-
tinned until the reduction in their numbers rendered the trade altogether
unprofitable. In a single year, it is said tliat 300,000 seal skins were
taken from the South Shetland Islands, and upward of 3,000,000 are
stated to have been carried off from the island of Mas-a-fnero, near
Juan Fernandez, in the short space of seven years. In fact, the breed-
ing i)Iaces, or rookeries, as they are called, of the fur seals in the Ant-
arctic seas have been entirely destroyed. The myriads of seals which
formerly resorted to them have been either swept away or reduced to
a few individuals, which seek the land in scattered bands and rush to
the sea on the approach of man. There can be little question, we see,
of the fate that will overtake these animals in other parts of the world
unless effective measures are instituted for their protection. Although,
121
tlierefore, a few lots of seal skius may still be received from tlie Sontli
Seas, the fiirseal of the North Paciflc {Otaria ursina) is, in fact, the
only source of the present supply of fur seal skins that can be relied
upon. At the present epoch only two remaining breeding i^laces of this
animal exist. Tliese are in Pribilof islands or Bering* Sea, within the
territory of Alaska (ceded by Russia to the United States in 1857) aud
the Commander Islands in the southwest corner of the same sea, which
still remain under Russi:in Jurisdiction. Two great herds of fur seals
resort to tiiese islands respectively during the summer months for the
l)urpose of breeding and rearing their young."
Again the same scientist: "If there were no other reasons to the
contrary it would be .quite as fair that the pelagic sealers should catcli
sixty thousand seals in tlie ojien Pacific, as that the American ofilicials
should slaughter the same number on the P ribilof Islands. I>ut, in the
former case there is, of course, no pass lb U it 1/ of malcing a selection of a(je
or sex. The pcJafjlc hunter kills every seal he can come across, irhether
male, female, or young. According to the American Commissioners,
at least 80 per cent of the seals thus taken are females. Worse than
this, according to the same authorities, they are principally females
heavy with young. Thus, for every seal of this kind taken, two lives
are sacrificed. Moreover, as the seal, if shot dead, sinks quickly below
the surface, mauy of the bodies are altogether lost, and another con-
siderable element of wastefulness is thus attached to i)elag"c sealing.
Xow, let me ask, what owner of a deer forest in Scothind would consent
to his hinds being killed, especially during the breeding season ? Is it
not likewise on a grouse moor forbidden to shoot grey hens at any
time? In these, and in numerous other instances which might be men-
tioned, the sanctity of female life is universally recognized. On the
other hand, the fur seal being polygamous, males may be killed to a
large extent without fear of injury to the herd, for, although nearly
equal numbers of both sexes appear to be born, one adult male is suffi-
cient for twenty or thirty females. But the selection of males from
females, and esjiecially of males of the age required to make the best
skins, can only he effected on land, where the assembling together of the
younger male fur seals on particular spots presents the necessary
opportunity. I think, therefore, that if tlie fur seal is to he preserved
for the use of posterity every true naturalist will agree with the Amer-
ican Commissioners that 'pelagic sealing ought to he altogether sup-
pressed— in the first place, because it necessarily involves the de-
125
struction of female life; and in the second place, because of its waste-
fulness through the frequent failure to recover seals shot at sea.
* * * The fur seal of Alaska (practically now the only remaining
member of the group of fur seals) should be declared to be, to all
intents and purposes, a domestic animal, and its capture absolutely
prohibited except in its home on the I'ribilof Islands." Nineteenth
Century^ June, 1893, p. 1038.
Sir George Baden-Powell, one of the British Commissioners, pub-
licly declared before his appointment as a commissiouer, that "as a
matter of fact, the Canadian sealers take very few, if any, seals close to
these (the Pribilof) islauds. The main catch is made far out at sea,
and is almost cntirehj composed of females.''''
Dr. A. Milne Edwards, director of the Museum of ISTatural History at
Paris, alluding to the fur seals frequenting Bering Sea, says:
"What has hax)pened in the Southern Ocean may serve as a warning
to us. Less than a century ago these amphibia [fur seals] existed there
in countless herds. In 1808, when Fanning visited the islands of
South Georgia, one ship left those shores carrying away 14,000 seal-
skins belonging to the species Arctoeephalus Australis. He himselt
obtained 57,000 of them and he estimated at 112,000 the number of
these animals killed during the few weeks the sailors s]ient there that
year. In 1822 Weddel visited the islands and he estimated at 1,200,000
the number of skins obtained in that locality. The same year 320,000
fur seals were killed in the South Shetlands. The inevitable conse-
quences of this slaughter were a rapid decrease in the number of these
animals. So, in spite of the measures of protection taken during the
last few years by the governor of the Falkland Islands, the seals are
still very rare, and the naturalists of the French expedition of the
Romanche remained for nearly a year at Terra del Fuego and the
Falkland Islands without being able to catch a single specimen. It is
a source of wealth which is now exhausted. It will be thus with the
Gallorhinus ursinus in the Xorth Pacific Ocean, and it is time to insure
to these animals a security which may allow them regular reproduction.
I have followed with much attention the investigations which have
been made by the Government of the United States on this subject.
The reports of the Commissioners sent to the Pribilof Islands have
made known to naturalists a very large number of facts of great
scientific interest, and have demonstrated that a regulated system of
killing may be safely ajjplied in the case of these herds of seals when
126
there is a superfluity of males. What uiight be called a tax on celi-
bacy was applied iu this way iu the most satisfactory uiaiuier, aud the
indefinite preservation of the species would have been assured if the
emigrants, on their icay hade to their breeding places, had not been
attaeled and pursued in every wayP TJ. 8. Case, Vol. 1, App. 419.
The record contains the opinions of other scientific gentlemen of high
repute, iu answer to written inquiries on this subject made by Prof.
Merriam, of the United States Department of Agriculture, and based
upon a. full and accurate account of seal life.
Dr. Nehriiig, Professor of Zoology in the Royal Agricultural College
of Berlin: "1 am like yourself of the opinion that the . remarkable
decrease of fur seals on the rookeries of the Pribilof Islands which has,
of late years, become more and more evident, is to be attributed mainly,
or i>erhaps exclusively, to the unreasonable destruction caused by the
seal-hunters who ply their avocation in the open sea. The oidy rational
method of taking the fur seal, and the only one that is not likely to
result in the extermination of this valuable animal, is the one which
has hitherto been employed on the Pribilof Islands under the super-
vision of the Government." U. 8. Case, Vol. 1, App. 420.
Prof. Salvadori, of the Museo Zoologico, Turin, Italy: "No doubt
free pelagic sealing is a cause Avhich will act to the destruction of the
seal herds, and to that a stox) must be put as soon as possible." U. 8.
Case, Vol. 1, App. 422.
Prof Von Schrenck, of the Imperial Academy of Sciences, St.
Petersburg: "lam also persuaded that pelagic sealing, if pursued in
the same manner in future, will necessarily end with the extermination
of the fur seal." U. 8. Case, Vol. 1, App. 422.
Prof. Giglioli, director of the Zoological Museum, Eoyal Su])erior
Institute, Florence, Italy: " In any case, all who are competent in the
matter will admit that no method of capture could be more uselessly
destructive in tlie case of Pinnipedia tlian that called pelagic sealing;
not only any kind of selection of the victims is impossible, but it is
admitting much to assert that out of three destroyed one is secured and
utilized, and this for obvious and well-known reasons. In the case
of the North Pacific fur-seal, this mode of capture and destruction
is doubly to be condemned, because the destruction falls nearly exclu-
sively on those, the nursing and pregnant females, which ought on no
account to be killed. * * * I quite agree with you in maintaining
that uuless the malpractice of j)elagic sealing be prevented or greatly
127
checked, both ill the North P;u;itic and in the Beriiij^' Sea, the eco-
uomic extermination of Oallorhinits ursinus in merely the matter of a
few yearsJ^ U. S. Case, Vol. 1, Ap}). 423.
Prof. Blauchard, of the Medical Faculty of Paris, aud general sec-
retary of the Zoological Society of France: "By reason of the mas-
sacres of which it is the victim, this species is advancing rapidly to its
total and final destruction, following the fatal road on which tlmBhy-
tina iStelleri, the Monarehtis tropliieaUSj aud the Macrorhinus angustiros-
tris have preceded it, to cite only the great mainmifers which but
recently abounded in the American seas. Now, the irremediable
destruction of an eminently useful animal species, such as this one, is,
to speak plainly, a crime of which avc are rendering ourselves guilty
tow ards our descendants. To satisfy our instincts of cupidity we vol-
untarily exhaust, aud that forever, a source of wealth, wliicli properly
regulated, ought, on the contrary, to contribute to the lU'osperity of
our own generation and of those which will succeed it. * * * With
his harpoons, his tirearms, and his machines of every kind, man with
whom the instinct of destruction attains its highest ])oint, is the worst
enemy of nature and of mankind itself. Happily, while yet in time^
the savants sound the alarm. In this century, when we believe in
science, we must hope that their voice will not be lost in the desert."
Profs. Lilljeborg and Nordenskiold, of the Academy of Sciences,
Sweden unite in declaring: "As to the former question, the killing of
the seals on the, rookeries, it seems at present regulated in a suita-
ble rnanuer to effectually prevent the gradual diminishing of the stock.
Ifa wider experience should require some modifications in these regula-
tions, there is no danger but that such modifications will be adopted. It
isevidently in the interest of the owners of the rookeries to take care that
this source of wealth shall not be lessened by excessive exploitation.
Nor will there be any difficulty for studying the conditions of health and
thriving of the animals during the rookery season. As to pelagic
sealing, it is evident that a systematic hunting of the seals in the open
sea on the way to and from or around the rookeries, will very soon
cause the complete extinction of this valuable, and, from a scientific
point of view, so extremely interesting and important animal, espe-
cially as a great number of the animals killed in this manner are preg-
nant cows, or cows temi)orarily separated from their pups while seek-
ing food in the vicinity of the rookery. Everyone having some expe-
rience in seal hunting can also attest that only a relatively small part
128
of the seals killed or seriously wouiuled in tlie open sea eaii in tliis
maiiuer be caught. We are therefore i)ersuaded that a ijrohibition of
pelagic sealing is a necessarij condition for the prevention of the total
extermination of the far seal.''"' U. S. Case, Vol. f App. 4^8.
Prof. Middendorf, an eminent scientist of Russia: "The method of
treating these animals which was originally adopted by the IJussiaur-
Americau Company at their home on the Pribilof Islands is still con-
tinued in the same rational manner, and has, for more than half a cen-
tury, been found to be excellent, both on account of the large number
of seals taken and because they are not exterminated. So long as super-
fluous young males are killed, not oidy the existence but even the
increase of the herd is assured." U. S. Case, Vol. 1, App. 430.
Prof. Holub, of Prague, Austria-Hungary: "If the pelagic seahng
of the fur seal is carried on still longer^ as it has been executed dur-
ing the last years, the pelagic sealing as a business matter and a 'liv-
ing' will soon cease by the full extermination of this useful animal."
U. 8. Case, Vol. 1, App. 133.
The abundance of fur seals at the Island of Juan Fernandez two
hundred years ago is shown by Dampier, who visited that island in
1083. In his Voyage Around the World, 5th ed., 1713, Vol. 1, pp. SS,
90, it is said:
"Seals swarm as thick about this island (of John Fernando, as he
terms it) as if they had uo other plat^e in the world to live in; for there
is not a bay nor rock that one can get ashore on but is full of them*
* * * Those at John Fernando'' s have tine, thick, short fur;
the like I have not taken notice of anywhere but in these seas. Here
are always thousands, I might say possibly millions of them, either
sitting on the bays or going and coming in the sea around the island,
which is covered with them (as they lie at the top of the water playing
and sunning themselves) for a mile or two from the shore. When
they come out of the sea they bleat like sheep for their young, and
though they pass through hundreds of other young ones before they
come to their own, yet they will not sutler any of them to suck. The
young ones are like puppies, and lie nuuih ashore, but Avhen beaten by
any of us they, as well as the old ones, will make towards the sea, and
swim very swift and nimble, tho' on shore they lie very sluggishly, and
will not go out of our way unless we beat them, but snap at us. A
blow on the nose soon kills them. Large ships might here load them-
selves with sealskins and traneoyl; for they are extraordinarily fat."
129
Another writer, referring to the destr notion of far seals in the south-
ern seas, says: "These vahiable creatures have often bewi found Ire-
quentin<^' some sterile islands in innumerable multitudes. By way of
illustration we shall refer only to the fur seal, as oceurihii; in South
Shetland. On this barren spot their numbers were such that it has
been estimated that it could have continued pernuineiitly to furnish a
returji of 100,000 furs a year; which, to say nothing- of the public bene-
tit, would have yielded annually, from this spot alone, a very handsome
sum to the adventurers. But what do these men do? In two short
years, 182 L-2, so great is the rusli, that they destroy 3-;0,000. They
killed all and spared none. The moment an animal landed, tliough
big with young, it was destroyed. Tiiose on shore were likewise imme-
diately despatched, tliough the cubs were but a day old. These, of
course, all died, their number, at tlie lowest calculation, exceeding
100,000. No wonder, then, at the end of the second year the ani-
mals in this locality were nearly extinct. So it is, we add, in other
localities, and so with other seals; so with the oil-seals and so with the
whale itself, every addition oidy making bad worse. And all this
might easily be prevented by a little less barbarous and revolting
cruelty, and a little more enlightened selfishness. Fishermen are by
law restrained as to the size of the meshes of their net in taking many
of our valuable fish; and in the Islaud of Lobos, in the Kiver Plata,
wliere, as we have seen, there are quantities of seals, their extermina-
tion is prevented by the governor of Montevideo, who t\irms out the
trade under the restriction that the hunters shall not take them but at
stated periods, ages, etc." ]^ataralist''t'i Library, 1)5.
Giving due weight to all the evidence adduced by the respective
Governments, including the opinions of eminent naturalists in various
countries, it is absolutely certain —
That this race has been conceived, and 1ms come into existence, upou
the islands of the United States in Bering Sea, which, by formal legis-
lative enactment, have been set apart as a land home for these animals,
where they can breed, and rear their young, and renew their coats of
fur, and to wliich they nuiy return, and for more tlian a century have
regularly returned, from their annual migration into the high seas;
That these animals, from the necessities of the race, must come into
existence, and for a large i^arl of each year must abide, upon land;
That the United States, in every form in which it coulcl be done,
consistently with the nature and habits of these animals, has taken
possession of, and appropriated, this race as its ijroperty;
11492 9
130
That the taking of fur seals for commercial purposes at tlieir breeding
grounds on the St. Paul and St. George, where alone there can be a
discrimination between the sexes, will not itself endanger the existence
of the herd if — as was done by Kussia and has been done by the United
States — the killing is restricted to such proportion of available vialcs as
will leave a sufficient number for purposes of rei)roduction ;
That the killing of these animals in large numbers at any other place
than their land home or breeding grounds will speedily result in the
loss of the race to the world;
That unrestrained pelagic sealing in Bering Sea or in the North
Pacific Ocean, even if no seals he taJcen on the islands by the United
States or its lessees, Avill result in the exterminatioUj within a very few
years, of the entire race frequenting those islands;
That but for the care, supervision, and protection bestowed upon
these animals at their land home by the United States, the race would
long ago have become extinct;
That if such care, sui)ervision, or protection be withdrawn, the race
would be destroyed; and,
That the United States, by its ownershij) of the breeding grounds of
these animals is alone, of all the nations of the earth, in a position to
take or control the taking of these animals, so that their increase may
be regularly obtained for use without at all impairing the stock.
In the light of the above facts, which can not be disputed by any-
one familiar with the record, let us inquire as to the principles of law
and justice applicable to the case.
The particular question now under consideration involves two propo-
sitions, to be separately examined:
First, as to the right of property which is asserted by the United
States in the Pribilof lierd of seals;
Second, as to the protection of the herd by the United States while
the seals are outside of the ordinary three-mile limit.
Much was said in the course of the argument as to the classification
of these fur seals among animals. One theory is, that while not strictly
domestic auinuils, they are so nearly like animals of that class that,
in determining whether under any circumstances they can become the
subject of property, and if so, under what circumstances, they should
be classed as domestic animals, or, at least, as domesticated animals.
Another theory is, that they are animixls ferw natiirw, and not subject to
exclusive appropriation as property, except in conformity to the prin-
ciples of law ax^plicable to aninuils of that class. The first theory has
131
beeu carefully and elaborately examined and enforced by Senator Moi-
gan. Nothing- can be added to what the learned Senator has said
npon that subject. I propose to consider the subjects of property
and protection in tlie other aspect named, and will, therefore, inquire
whether the claim of the United States to own these seals is supported
by any principles of law universally recoi^uized as controlling- upon the
question of property in animals commonly classed as wild, ratlier than
domestic animals.
The main contentions of the United States, in support of its claim
of property, are these :
That while the general rule is that no one can have an absolute
jDropertyin things, ferw naturw, there are animals so near the boundary
drawn by the terms wild, tame, and reclaimed, that the question
must be determined by a consideration of their nature and habits in
connection with the grounds upon which the institution of prox^erty
stands;
That, according- to the established rules of law prevailing- in all civ-
ilized countries, the essential facts that render useful animals, classed
as wild animals, the subjects of property, when in the custody or con-
trol of, as well as while temporarily absent from, their masters, are the
care, industry, and supervision of man so acting on the natural dispo-
sition of the animals as to encourage their habitual return to a particu-
lar i)lace and to his custody and power at that place, whereby he is
enabled to deal with them as a whole, in a similar manner, and so as
to obtain from them similar benefits, as in the case of domestic animals;
that for all purposes of property, animals so acted upon and dealt
with may be assimilated to domestic animals, even if they be not
strictly of that class;
That to this class the Pribilof fur seals belong:, because at the same
season in every year they return to the same place, the islands of St.
Paul and St. George, wliere they become so far subject to the power of
the United States that its agents or licensees can treat them in many
ways as if they were domestic animals; that all that is needed to en.sni-e
their return to and remaining upon tliose islands from year to year,
whereby the benefits of an increase of their numbers can be obtained,
is that such agents and lessees shall abstain from repelling them
as they approach the land, defend them after they have arrived
against pursuit by hunters, disturb them as little as possible when
making selections for commercial purposes, and take males only for
purx^oses of commerce; and
132
That tlie United States, its agents and lessees, do all tliat is neces-
sary to secnie their return each year to, and their remaining at, the
Pribilof Islands for all the purposes for which they must come to, aud
for a time abide, upon land.
These considerations, it is contended — assundng that these fur seals
are of the class commonly called animals ferm natarw — rest upon a prin-
ciple fundamental in the institntion of propsirty, that in-inciple beingthat
whenever any useful wihl animals, the supply of which may be exhausted
by indiscriminate slaughter, or by reckless handling, '^so far submit
themselves to the control or dominion of particular men as to enable
them cxclasiceUj to cultivate such animals and to obtain the annual
increase for the sux)ply of human wants, and, at the same time, to pre-
serve the stock, they have a property in them; or, in other words, what-
ever may be justly regarded as the product of hunum art, industry, and
self-denial, must be assigned to those wdio make these exertions, as their
merited reward."
In opposition to this claim of ijroperty by the United States, Great
Britain contends that these seals are strictly animals/erflewttt^rcB; that
the only iiroperty in them known to the law is dependent on actual, physi-
cal possession ; that the United States or its licensees have the exclusive
right to take possession of them only while they are on the islands of
St. Paul and St. George, but that such right is lost w^hen they leave
the Islands and go into the high seas, for the purpose of obtaining tish
for food, even if they have, when so leaving, the intention to return
to their breeding grounds; that the citizens or subjects of all nations
have equally the right to kill or take possession of them in the high
seas; that while on the Islands neither the United States nor their
lessees take manual possession of the seals other than of those
actually killed; that, even if it be true that the care, industry, self-
denial, and i)rotectiou bestowed upon these animals while on their
breeding grounds has secured, does now secure, and will alone secure,
this race from extermination by pelagic sealing, that fact can not
give a right of property to the United States; and that the right of
pelagic sealers to capture aud kill these. seals in the ojien seas, for
I)rofit, by any methods they choose to euii)loy, even by such as will
certainly or soon destroy the entire race, is supported by the estab-
lished principles of international law.
While, in a sense, all property has its root in municipal law, I agree
that the question as to the ownership) of these animals when they are
ill tlie open waters of the ocean, the highway of all peoples, is to be de-
termined ultimately by the public law of nations — that is, by those prin-
ciples common to, and recognized as binding by, all civilized countries
in their intercourse and relations with eacli other. No other law can be
appealed to for the settlement of a dispute between sovereign nations
as to the ownership of animals when found on the seas beyond their
resi)ective territorial limits. But by what considerations are we to be
governed in ascertaining what the law of nations recognizes, allows, or
forbids?
The counsel for the United States contended, in argument, that in
determining what rights are recognized by the law of nations, the Tri-
bunal is not to ignore, but must give effect to, tliose principles of riglit
reason, justice, humanity, and morality which have their foundation in
the law of nature as applied to the institution of property. This view
was earnestly combated by the counsel of Great Britain, and it was,
in effect, said that the teachings and precepts of the law of nature
were of no importance in the present inquiry; that the riglits of these
two nations could not be made to depend, in any degree, upon abstract
prin('ii>]es founded only on reason, justice, humanity, or morality, but
must be determined upon grounds of positive law, resting in the aflirm-
ative assent of the nations, independently of ethical considerations aris-
ing out of distinctions which the conscience of the world makes between
what is morally right and wliat is morally wrong, or between wlnit is
supported by sound reason and justice and what is not so supported.
Of course, if there be any settled, recognized rules of the law of nations
governing tlie particular question under consideration, they must con-
trol our decision whatev^er may be our view of their justice. The two
nations interested are bound by such rules and the Tribunal may not
disregard them, or refuse to give effect to them. But if the precise
case before it is not covered by some positive rule, decision or prece-
dent, fonnded on the conventions or established usages of the civilized
nations of the earth, and expressly set forth in the writings of public
urists, we are not, for that reason, to liold that it is not pro-
vided for by the law of nations. As a court sitting under mnnicipal
authority would be bound, in the absence of precedent, to give judg-
ment according to the principles of right derived from the whole
body of the law to which it may properly refer, so this Tribunal,
constituted for the determination of questions depending upon the law
of nations, may, and if it fulfills the objects for which it was constituted,
nmst, look into the recognized sources of that law and seek in the
134
(loiiiniii of o-cneral jnrispnidciice for the rule of decision in the ease
before it. One of the recognized sonrces of the law of nations are tlie
principles of natnral reason and justice applicable to the relations
and intercourse of independent political societies. Those princi-
ples may be said to have their origin in the Law of Nature, or in
what is sometimes called the Natural Law of Eqnity, because ap-
proved by the moral sense of mankind. No earthly tribunal, adminis-
tering Justice between individuals, or b(^tween nations, if unfettered by
statute, or by binding precedent, may rightfully disregard the rules of
reason, morality, humanity, and justice derived from that law. Those
rules are not the less binding because not formulated in some book,
ordinance, or treaty. Certainly, this Tribunal of Arbitration must
regard the rules of international morality and justice, applicable to the
subject, and fairly to be deduced from the rights and duties of States
and from the nature of moral obligations, as nn integral i^art of the
law of nations by which the matters submitted to it are to be deter-
mined. The institution of property is ordained by society for its
improvement and preservation. And there are certain rules, aris-
ing out of the very necessities of that institution, which are com-
mon to the jurisprudence of all civilized nations. While these rules
may be more frequently found recognized in municipal law, they
are so grounded in the well-being of man, and so thoroughly sujiported
by right reason, and natural justice, as to have become universally rec-
ognized, and, therefore, must be regarded as part of the common law of
civilized countries. Nations, no more than individuals, may disregard
those rules, for upon their observance depends the existence of organized
society and the security of government among civilized peoples.
That I am not in error in supposing that these views have been gen-
erally accepted and are enforced where action is not controlled by stat-
utes or by the provisions of treaties, will a|ipear from the decisions of
courts and from the works of writers upon international law.
Chief Justice Marshall, delivering thejudgment of the Supreme Court
of the United States, after obsei'ving that the law of nations is in
part unwritten and in part conventional, said that "to ascertain that
which is unwritten we resort to the great principles of reason and .
justice; but as these principles will be diflf'erently understood by
difterent nations under different circumstances, we consider them as
being, in sojue degree, fixed and rendered stable by a series of judicial
decisions." Thirty Ilhds. of Sugar vs. Boyle, etc., 9 CrancWs BejJorts,
191, 197,
135
In tlie case of The Helena, Lord Stowell, considering the principles
of international law, observed "tliat some people have foolishly im-
agined that there is no other law of nations bnt that which is derived
from positive compact and convention." 4 RoMnsoii's Admiralty^
Rep. 7.
Bacon, in his Dissertation on the Advancement of Learning, says
that "there are in nature certain fonntains of jnstice, whence all civil
laws are derived but as streams; and like as waters do take tinctures
and tastes from the soils through which they run, so do civil laws vary
according to the regions and governments wliere they are ]ilauted,
though they proceed from the same fountain." Blc. 5, chap. 33, see. 44.
Blackstone declares that the law of nature being coeval with man-
kind, and dictated by God himself, "is binding all over the globe in all
countries, and at jiU times," and that "no human laws are of any validity
if contrary to this, and such of them as arc valid derive all their
force and all their authority, mediately or immediately, from this
original." And he also says: "As it is impossible for the whole race of
mankind to be united in one great society, they nmst necessarily divide
into many, and form separate states, commonwealths, and nations,
entirely independent of each other and yet liable to mutual intercourse.
Hence arises a third kind of law to regulate this nuitual intercourse,
called the 'law of nations,' wliich, ns none of these states will acknowledge
a superi<nity in the other, can not l)e dictnted by an}-, but depends en-
tirely upon the rules of natural laiv, or upon mutual comiyacts, treaties,
leagues, and agreements between those several communities; in the
construction, also, of which compacts we have no other rule to resort to
but the laid of nature, ))eing tlie only one to which all the communities
are equally subject, and therefore, the civil law very justly observes
that quod naturalis ratio inter omnes homines constituit vocatur jus gent-
iwm." Bk. 1, p. 41, 43.
In his Commentaries on International Law Sir Robert Phillimore
says : "Grotius enumerates these sources [of international law] as being
^ipsanatnra, leges divincv, mores, et pacta.'' In 1753 the British Govern-
ment made an answer to a ]nemorialof the Prussian Government, which
was termed by Montesquieu reponse sans replique, and which has been
generally recognized as one of the ablest expositions of international
law ever embodied in a state paper. In this memorable document the
law of nations is said to be founded upon justice, equity, convenience,
and the reason of the thing, niid confirmed by long usage." 1 Phllli-
more, ch. 3, sec. 20. In the judgment delivered by him in Queen vs.
136
Keyn^ Laic Rep.^ 2 Excli. Dili. 314, Dr. Pliillimore states that tliisanswer
was framed by Lord Mansfield and Sir George Lee. The same learned
author declares that the sources from which international jurisprudence
is derived embrace not only the universal consentof nations, as expressed
by positive compact, and as implied by usage, custom, and practice,
as disclosed by iirecedents, treaties, public documents, marine ordi-
nances, the decisions of international tribunals, and the works of emi-
nent writers upon international jurisprudence, but, also, "the Divine
law, embodying the principles of eternal justice, implanted by God on
all moral and social creatures, of which nati(uis are the aggregates and
of which governments are the international organs," as well as "the
Eevealed Will of God, enforcing and extending these principles of
natural justice," and " Eeason which governs the application of these
principles to particular cases." ] rhUUmorc, p. 67, c. -9, § 58. In the
above case of Queen vs. Keyn, Sir William Baliol Brett, now Lord Esher,
Master of the Bolls, after observing that the authorities made it clear
that the consent of nations was requisite to make any proposition a
part of the law of nations, well said: "Tlicir consent is to be assumed
to the logical application to given facts of the ethical axioms of right
and wrong. Such an application is the foundation of every system of
law, including necessarily the law of nations." L. R., 2Exeli. Div, 131.
Chancellor Kent, whose writings are known to the jurists of all
nations, states in his Commentaries, that the most useful and practical
part of the law of nations is, no doubt, instituted or positive law,
founded on usage, coiisent, and agreement, and that it would be improper
to separate this law entirely from natural jurisprudence and not to
consider it as deriving mu(;h of its force and dignity from the same prin-
ciples of right reason, the same views of the nature and constitution of
man, and the same sanction of Divine revelation, as those from which
the science of morality is deduced, and he says: "There is a mitural
and a positive law of nations. By the former every state, in its relations
Avith other states, is bound to coiuluct itself with justice, good faith,
and benevolence; .and this application of the law of nature has been
called by Vattel the necessary law of nations, because nations are
bound by the law of nature to observe it; and it is termed by others
the internal law of nations, because it is obligatory upon them in point
of conscience." "We ought not, therefore." that areat iurist continues,
"to separate the science of public law from that of ethics, nor encour-
age the dangerous suggestion that governments are not so strictly
bound by the obligations of truth, justice, and humanity, in relation to
137
olher powers, as tlicy are in tlie manngemont of their own local con-
cerns." States or bodies politic, lie observes, "are to be considered as
moral persons, having a public will, capable and free to do right and
wrong, inasmuch as they are collections of individuals, each of whom
carries with him into the service of the community the same binding
law of morality and religion which ought to control his conduct in private
life. The law of nations is a complex system, composed of various
ingredients. It consists of general principles of right and justice,
equally suitable to the government of individals in a state of natural
equality and to the relations and conduct of nations; of a collection
of usages and customs, the growth of civilization and commerce
and a code of conventional or positive hiw." Tlis conclusions upon
this subject are thus stated: "In the absence of these latter regula-
tions, the intercourse and conduct of nations are to be governed by
principles fairly to be deduced from the rights and duties of nations
and the nature of moral obligation; and we have the authority of the
lawyers of antiquity, and of some of the first masters in the modern
school of public law, for placing the moral obligations of nations and
of individuals on similar grounds, and for considering individual and
national morality as ])arts of one and the same science. The law of
nations, so far as it is founded on the principles of natural law, is
equally binding in every age and upon all manldnd." Kenfs Commcn-
iaries, Part 1, Leef. 1, pp. 2-4. These views of Chancellor Kent seem
to be approved by the instructed judgment of Sir Travers Twiss, the
eminent publicist of Great Britain, who has himself divided the Law
of Nations into Natural or Necessary Law, and Positive or Instituted
Law. The Law of JSfationSi cJ'- vi, sees. 82 and 105, ed. 1S8-J, pp. 145, 176.
Ortolan, in his work on International Eules and Diplomacy of the
Sea, thus states his views: "It is apparent that nations not having'
any common legislator over them have fi-equently no other recourse for
determining their respective rights but to tliat reasonable sentiment of
right and wrong, to those moral truths already brought to light, and to
those which are still to be demonstrated. This is what is meant when
it is said that natural law is the first basis of international law." Vol.
1, hi: 1, ch. iv.,p. 71.
Vattel, in the preface of his celebrated work, states that the moderns
are generally agreed in restricting the a])polhition of the law of nations
to that system of right and justice whicrt ouglit to prevail betwe<?n
nations or sovereign states. And in the body of his work he says:
"As men are subject to the law of nature, and as their union in civil
138
society can not have exempted tliem from the obligation to observe
those laws, since by that nnion they do not cease to be men, the entire
nation, whose common willis bat the result of the united wills of the
citizens, remains subject to the law of nature, and is bound to respect
them in all her proceedings." We must, therefore, he says, apply to
nations the rules of the law of nature, where they can be applied in a
manner suitable to the subject, "in order to discover what their obli-
gations are, and what their rights; consequently, the hue of 7iations is
originally no other than the law of nature applied to nations." Gli. 50,
sees. 5, 6.
Wheaton, whose authority is recognized by all publicists, says:
"International law, as understood among civilized nations, may be
defined as consisting of those rules of conduct which reason deduces, as
consonant to justice, from the nature of the society existing among
independent nations, with such definitions and modifications as may be
established by geueral consent." Tnternational Laic, Pi. 1, eli. 1, sec.
414. Pomeroy, an American writer of distinction, observes: " VV^hat is
called international law in its geueral sense, I would call iuternatioual
morality. It consists of those rules founded upon justice and equity,
and deduced by right reason, according to which independent states
are accustomed to regulate their nuitual intercourse, and to which tliey
conform their mutual relations." International Law, ed. 1886, G. 1, S.
29. Woolsey, anotlier American writer, cited by both sides in argu-
ment, says: "It would be strange if the state, that power which defines
rights and makes them real, which creates moral persons or associa-
tions with rights and obligations, should have no such relations of its
own — should be a physical and not a moral entity. In fact, to lake the
opposite gr(mnd would be to maintain that there is no right and wrong
in the intercourse of states, and to leave their conduct to the sway of
mere convenience." Ed. of 1892.
r>urlamaqui, in his Priucii)les of Natural and Politic Law, (p. 14),
after quoting witli a]>proval the observation of Ilobbes that natural
law is divided into the natural law of man and the natural law of
states, and that the latter is wiiat is called tlie law of nations, ]>resents
the same general view: "Thus natural law and the law of nations
are in reality one and the same thing, and ditfer only by an external
denomination. We must, therefore, say that the law of nations, prop-
erly so called, and considered as a law proceeding from a superior, is
nothing else but the law of nature itself, not applied to men, considered
simply as such, but to nations, states, or their chiefs, in the relations
they have together, and the several interests they have to manage
139
between each otlier." Ed. 1S33, Pi. II, c. 6, pp. Llo, 6. In tMs view
Puffendorfexpi'essed his concurrence, observing that he recognized "no
other liind of vohmtary or positive international hiw, at least none
having force of law, properly so called, and binding upon nations as
emanating from a superior." Vol. 1, book 5, c. 5, § 33, p. 243, 5th. ed.;
ed. 1729, Englifih, 149.
Heinnecius: " The law of nations is the law of nature itself respect-
ing or applied to social life and the affairs of societies and independent
states. * * * Hence, we may infer that the law of nature doth
not differ from the law of nations, neither in respect of its foundation
and first principles nor of its rules, but solely with resi^ect to its object,
Wherefore their opinion is groundless who speak of, I Icnow not what,
law of nations distinct from the law of nature." Vol. I, Ed. 1763, Sec.
21, p. 14.
Hautefeuille: " What is true, and in my opinion, incontestable, is
that notions of what is just and right, and what is unjust are found in
all men; it is that all individuals of the human race that arc in the
enjoyment of reason have these notions graven upon their hearts, and
that they bring with them into the world when they are born. These
notions do not extend to all the details of law as do civil laws, but they
have reference to all the most prominent points of law. It cannot
be denied that the idea of property is a natural and innate idea. * *
The natural or divine law is the only one that can be applied among
nations— among beings free from every bond ami having no interest
in common. * * International law is, therefore, based upon the
divine and primitive law;' it is all derived from this source." Vol. i,
p. 46, 1818.
Martens: "Each nation being considered as a moral being, living in
a state of nature, the ol)ligations of one nation towards another are no
more than those of individuals, modified and applied to nations; and
tliis is what is called the natural law of nations. It is universal and
necessary, because all nations are governed by it, even against their
will." Laic of Xations, German, 4th ed. 1820, p. 2 of Introduction.
Ferguson : " International law, being based on international morality,
depends upon the state of x^rogress made in civilization. * * * in-
vestigating thus this spirit of law, we find the definition of International
Law to consist of certain rules of conduct which reason, prompted by
conscience, deduces as consonant to justice, with such limitations and
modifications as may be established by general consent, to meet the
exigencies of the present state of society as existing among nations and
which modern civilized states regard as binding on them in their rela-
140
tions with one another, with a force comparable in natnre and degree
to that binding the conscientious person to obey tlie laws of his country."
Manual of International Law, Dutch, 1SS4, Vol. 1, PL II, chap. 3, sec.
21, p. 66.
Carlos Testa : "This application of the precepts of natural law, which
obliges nations to practice the same duties that it prescribes for
individuals, constitutes the law of nations, which, when considered
according to its origin (which is based upon natural law), is also called
the primitive or necessary law of nations. * * * The origins of inter-
national law are therefore three in number: (1) The reason and the
conscience of what is just and unjust, independent of any prescription;
(2) custom; (3) public treaties. The principles, practices, and usages
of the law of nations, in accordance with these limits, reguhitc the
conduct of nations, and it is for this reason that in their generality they
constitute international law. Conventional law may abrogate the law
of custom, but it loses its character as a law if it establishes provisions
at variance with natural law." Le Droit International Maritime
{Fortngucsc), translated by II. Boutiron, 18S6, Pt. 1, eh. 1, p. 46.
Looking, then, to the reason of the thing, and to the concurrence of
views upon this point, among jurists and publicists, I must withhold my
assent from the proposition that this Tribunal, in ascertaining whether
the law of nations sanctions and supports the claim of property made
by the United States, may not consider — the question not being con-
cluded by treaties or precedents — what is demanded in respect to the
subject of controversy by the law of nature, that is, by the principles of
justice, sound reason, morality, and equity, as recognized and approved
by civilized peoples.
The question was propounded in argument whether any precedent
precisely in point was recorded in the writings of ])ublicists, or in the
judgments of the courts, or in the statutes or ordinances of maritime
nations, tlmt supports the claim of the United States to own these
seals and inotect them when they are in the seas, beyond territorial juiis-
diction. This question must, of course, be answered in the negative, be-
cause, so far as is known, the case has never before arisen. And it would
not now be a ])ractical one but for the intervention of pelagic sealing,
the prosecution of which involves the very existence of this i-ace
of animals. It has not heretofore been asserted in behalf of any
nation tJiat the doctrine of the freedom of the seas recognized it as a
right^ in iiulividuals, even by methods barbarous and cruel, to exter-
minate a race of useful animals, found by them in the high seas, and
thereby deprive the world of all benefit to be derived from them. It
141
is more pertinent to inquire wlietber this claim of i^roperty is sup-
ported by ])riuciples of morality, reason, e(inity, and justice every
wliere recognized as vital in orj;ani/cd society. It is still more j^er-
tiueut to inquire whether the law of nations furnishes anj'^ i)i'ecedent
opposed or hostile to the claim made by the United States of property in
these animals, which are conceived, and, if the race is to exist at all,
must be born and reaied, on land, and which, altliough passing- much
time on the high seas, periodically return to, and, for a time, abide upon
the terretory of the United States. And they return to and abide up-
on that territory, under such circumstances, that the United States,
the sovereign and owner of the land, and it alone, of all other nations,
can, by the exercise of care, industry, and self-denial take the increase
for the benefit of the world, without, in any degree, diminishing or
impairing the stock. If there is no recorded ])recedent based upon
actual dis])ute between nations, which would determine such a case,
we may properly inquire whether there is such an agreement among
civilized nations, in respect to the institution of property and the
rules goverr.ing the acquisition of property, as will justify us in
adjudging that the present claim of the United States rests upon
principles universally recognized. If the rules embodied in the con-
curring municipal law of the different countries of theearth, audfounded
in reason, justice, and the necessities of organized society, will sustain
this claim, our judgment to that effect will be in accordance with the
law of nations; for nothing to the contrary appearing in positive enact-
ments, binding upon this Tribunal, it must be assumed when dealing
with a question of property, that the nations assent to such rules in
the law of property as are common to the jurisprudence of civilized
countries. It has been well observed by Sir James Mackintosh, in his
famous Discourse on the Law of Nature and Nations, that the two in-
stitutions of property and marriage constitute, preserve and improve
society; that upon their gradual development depends the progressive
civilization of mankind; that on them rests the whole order of civil life;
that the duties of men, subjects, princes, lawgivers, and States are all parts
of one system of universal morality; and that " the principle of justice,
deeply rooted in the nature and interest of man, pervades the whole
system, and is discoverable in every part of it, even to its minutest
ramification in a legal formality, or in the construction of an article in
a treaty." When, therefore, a Tribunal, adnunistering the Law of
Nations, is required to consider a question of property, it may not dis-
regard what the principles of justice, right reason, and the necessities
142
of society, evidenced by the coucurriug municipal law of the world^
demand at its hands.
Any other view is, I submit, inadmissible. The law of self-defense
is a part of the law of nations, not so much because it is declared
to be so by legislation or treaty, but because it is founded in prin-
ciples of justice and right that are recognized among all peoples.
Murder and theft are crimes against society, Avhether so declared by
statute or not, and they would be so regarded by any Tribunal ad-
ministering the law of nations, if its judgment depended ui)on its
estimate of those acts, not because they are made crimes by any
statute or convention binding upon the world, but because all nuiu-
kind, in recognition of the principles of eternal and natural justice,
implanted in man by the Creator, regard them in that light. It is said
that even if there be grounds of reason and justice, that is of natural
law, why it might be i)roj)er and desirable that these far seals should
be held to be the subject of property, such considerations are of no
weight whatever in the absence of the general assent of luxtions that
they may be so regarded. Such an argument leads to this strange
conclusion: That in the absence of any affirmative assent of nations
to a right decision, that is, to a decision conformable to the principles
of sound reason, justice, and the necessities of mankind, we must,
for the want of such assent, make a wrong decision, that is, one
forbidden by sound reason and justice and hostile to tlie best inter-
ests of society. Thus, according to the argnment presented, a Tribunal
administering international law must, in the absence of the express
assent of the nations, reject every new affirmative proposition, however
strongly supported by reason, justice, and morality, and thereby
establish the contrary as the rule that should govern the condnet of
nations. Tiue wisdom, indeed, the Treaty and public law, I sub-
mit, require that this Tribunal accept the doctrine that whatever is
demanded by right reason, justice, and morality has the sanction of
the law of nations, unless it has been otherwise determined by the gen-
eral assent of mankind. This was the principle declared by Mr. Justice
iStory, when he said: "I think it may be unequivocally affirmed that
every doctrine that may be fairly deduced by correct reasoning from
the rights and duties of nations and the nature of moral obligations,
may theoretically be said to exist in the law of nations; and unless it
be relaxed or waived by tlie consent of nations, which may be evidenced
by their general practice and custom, it may be enforced by a court
of justice wherever it arises in judgment/ La Jcunc Eayciuc^ 2 Mason's
Bc^ortSj 449,
143
There are rules governing tlie acquisition of i)roi)Crty, not always
sanctioned by legislation, but yet common to the jurisprudence of all
countries, and Avhich we may not ignore or refuse to recognize. I can-
not conceive it to be possible that the Tribunal, in deciding a question
of property in animals, found in the high seas, may disregard the rules
of property which are imbedded in the concurring municipal law of
civilized nations. That must be deemed the law of all to which all
have assented. And so if the Tribunal should hold that these fur
seals are the property of the United States when found in the high seas,
it would thereby recognize the right of that country to protect them
against pelagic sealing, not because that right is secured by statute or
treaty, but because by the universal judgment of nations, the owner of
property may employ for its protection and preservation such means,
not forbidden by law, as may be necessary to that end. It is true, in
fact, that the recognized doctrines as to possession, detention, right of
possession, and right of property, as they have been applied in cases
which have arisen between independent states, arc derived from tlie
]H'inciples of natural law as understood and as expounded by states-
men and public jurists.
While there are wild animals whose nature and habits preclude the
possibility of their being appropriated as property, except when they are
confined or are otherwise in actual custody, there are others, valuable
to mankind and usually assigned to that class, which, by the common
law of the world, may, under given circumstances, become the property
of nuiii, without being held in continuous, actual possession.
Attention will first be given to the Koman law, because Keason, which
governs the application of the principles of justice to particular cases, is
itself " guided and fortified by a constant reference to analogous cases
and to the written reason embodied in the text of the lioman law, and in
the works of commentators thereupon." 1 FhilUinorc, c. 8, sec. 58.
The same author observes that "the Eoman law may, in truth, be
said to be the most valuable of all aids to a correct and full knowledge
of international jurisprudence, of which it is indeed, historically speak-
ing, the actual basis." Again : "Independently of the historical value
of the Roman law as explanatory of the terms and sense of treaties
and of the language of jurists, its importance as a repository of decisions,
the spirit of which almost always, and the letter of which very fre-
quently, is applicable to the controversies of independent States, can
scarcely be overstated. From this rich treasury of the principles of
universal jurisprudence, it will generally be found that the deficiencies
144
of precedent, usage, «aucl exjuess interiKitioiial antliority may be sup-
plied. Tliroiigliout the greater purtiou of Ohri.steiidoiii it presents to
each State what may be fairly termed their own consent, bound ui) in
the municipal J urisprndence of their owu conntry; and this not merely
to the nations of Enrope, whose codes are built on the civil law, but to
the numerons colonies and to the independent States which have sprang
irom those colonies, and which cover the globe." 1 FIdlllmore sees. bG
and 37. Lord Stowell said that a great part of the law of nations was
founded on the civil law. The Maria, 1 llohlnson^s Adin. Hep., 303.
"A great i^art, then, of international law," Henry Sumner Maine says,
"is Roman law spread over Enroi)e by a process exceedingly like that
which a few centuries earlier had cansed other portions of lionnin law
to filter into the interstices of every European legal system. * * *
In a book j)ublished some years ago on Ancient Law, 1 made tliis remark :
'Setting aside the Treaty Law of Nations, it is sur^jrising how large a
part of the system is made up of pare lioman law. Wherever there is
a doctrine of the Koman jurisconsults, allirmed by them to be in har-
mony with the jus f/entium [natural lawj, the Pnblicists have found a
reason for borrowing it, however i>lainly it may bear the mark of a
distinctive lioman origin.' * * * The greatest function of the law
of nature was discharged in giving birth to modern international law.
* * * j^iiy impression that the Koman law sustained a system of
what would now be called interiuitional law, and chat this system was
identical with the law of nature, had undoubtedly much iuduence in
causing the rules of what the liomans called natural law to be engrafted
on and identitted with the modern law of nations " Maine'^s Interna-
tional Law, pp. 13, 17, 28. Van Leeuwen: "The lionnin law is at the
I)resent day almost everywhere, and by every nation upheld as a com-
mon law of nations, and adopted in cases where particuilar laws or
customs fail." Koman-DuteJi Laic, Vol. 1, Blc. 1, Ch. 1, sec. 11, p. 3,
Ed. 18S1, Kotze''s Translation. And, "it will generally be found," says
Halleck, "that the dehciencies of precedent, usage, and express inter-
national authority may be supi)lied from the rich treasury of the Roman
civil law. Indeed, the greater number of controversies between States
would find a just solution iu this comprehensive system of practical
equity, which furnishes principles of universal jurisprudence applicable
alike to individuals and to States." 1 HalleclvS International Law, c.
2y see. 21.
These authorities justify recourse to the Roman law, as expounded
by jurists and commentators, fur those principles of equity, right,
and justice that constitute a part of the law of nations.
145
It is said iu tlie Institutes of Justinian:
"11. Things become tlie property of individuals m many ways;
for we obtain the ownersliip of some b}^ the natural law, which, as we
have said, is styled jus r/oiti/xm; and of some by the civil law. It is
most convenient, then, to commence with the more ancient law, and it is
clear that the more ancient is the natural law, since the nature of things
brought it into existence simultarieously with the human race itself;
whilst civil laws began to exist when states were first founded, magis-
trates appointed, and laws written. 12. Wild beasts, therefore, ar,d
l)irds and fislies, that is to say, all animals that live on the earth, in
in the sea or in the air, a^ soon as they are caught by any one, become
his at once by virtue of the law of nations. For whatever has previ-
ously belonged to no one is granted by natural reason to the first
taker. Nor does it matter whether the man catches the wild beast or
bird on his own ground or on another's; although a person purposing
to enter on another's land for the purpose of hunting or fowling may,
of course, be prohibited from en.tering by the owner if he perceive him.
Whatever, then, you have caught of this kind is regarded as yours, so
long as it is kept in your custody; but when it has escaped from your
custody and reverted to its natural freedom it ceases to be yours, and
again belongs to the first taker. And it is considered to have recov-
ered its natural freedom when it has eitlier escaped out of your sight,
or is still in sight, but so situated that its pursuit is difficult, 13. It
has been debated whether a wild beast is to be considered yours at
once, if wounded in such a manner as to be capable of capture; and
some have held that it is yours at (mce, and is to be regarded as yours
so long as you are pursuing it; but that if you desist from pursuit it
ceases to be yours and again belongs to the first taker. Others have
thought that it is not yours until you have actually caught it. And
we indorse the latter opinion, because many things may happen to pre-
vent your catching it. 14. Bees, too, are naturally wild. Therefore,
any bees which vsettle upon your tree are no more considered yours, until
you have hived them, than birds which have made their nest in that
tree of yours; if, therefore, any one else hives them he will be their
owner. The honeycomb, too, which they have made, anyone may take
away. But undou])tedly if you see a X)erson entering upon your land
before anything has been removed {in mtcfjra re) you may legally for-
bid him to enter. A swarm which has flown from your hive is consid-
ered to be yours, so long as it is in your sight and its pursuit not
11492 10
146
difficult; otherwise it belongs to the Urst taker. 15. Peacocks and
pigeons are naturally wild, and it is not material that they get into
a habit of Hying away and coming back; for bees do the same, and
their nature is admitted to be wild. Some peojile, too, have deer so
tamed that they habitually go into the woods and come home again,
and yet no one denies that these animals also are naturally wild. Still,
with regard to animals of this sort, ivhich go and come recjularly^ the
rule has been adopted, that they are regarded as being yours so lo7ig as
they have the intent of returning j for if they cease to have that
intent they also cease to be yours and become the property of the first
taker. And they are held to have lost the intent of returning Avhen
they cease from the habit of returning." Boole II, Title I, Abdy &
WaRerh ed., pp. 82, 83, 84.
To the same effect is Gains, who, in his Commentaries, says:
<'GG. But not only those things which become ours by delivery are
acquired by us on natural principles, but also those which we acquire
by occupation, on the ground that they previouslj' belonged to no one;
of which class are all things caught on laud, in the sea, or in the air.
G7. If, tlierefore, we have caught a wild beast, or a bird, or a fish, any-
thing we have so cauglit at once becomes ours, and is regarded as
being ours so long as it is Icept in our custody. But when it has escaped
from our custody and returned into its natural liberty, it again becomes
the property of the first taker, because it ceases to be ours. And it is
considered to recover its natural liberty when it has either gone out of
our sight or, altboug'h it be still in our sight, yet its pursuit is difiicult.
08. With regard to those animals which are accustomed to go and
return habitually, as doves, and bees, and deer, which are in the habit
of going into the woods and coming back again, we have this rule
handed down: that if they cease to have the intent of returning they
also cease to be ours, and become the i)ropeity of the first taker, and
they are considered to cease to have the intent of returning when they
have abandoned the habit of returning." Blc. II, Sees. 66, 67, and 68.
Abdy & Wal]cer\s ed. p. 98. See, also, Munter^s lioman Laio, 2d ed., p.
346.
Van Leeuwen, in his Commentaries on Roman-Dutch Law, enumer-
ates among res nullius those Avhich, " although not belonging to any-
body, may yet be brought under the dominion or possession of another;"
and while stating that there are some wild animals, '' as birds, fish,
and beasts inhabiting the sea or other waters, the air, or the earth,"
which "may, according to the original institution of laws, be captured
147
and owned by everyone without distinction," he says, in respect to
others:' "For tlie iinimals that are acGustomcd to go out and return^ as
bees, pigeons, ducks, geese, and the like, altliough wild by nature, and
frequently roaming very far, are considered to remain our property, and
may not bo acquired by anybody unless they have continued absent,
and have been abandonedby ns ivithout hope of their returning.''^ Bh. 3j
chap. 3.
Bowyer, in his treatise on Modern Civil Law, while stating the gen-
eral rule to be that wild animals, birds, and fish, and all animals that are
produced in the sea, the heavens, and the earth become the property,
by natural law, of whoever takes possession of them, the reason being
that whatever is the property of no man becomes, by natural reason,
tlie property of whoever occupies it, says: "Bees, also, are of a wild
nature, and therefore they no more become the property of the owner
of the soil by swarming in his trees than do the birds which build in
tlicm; and they are not his unless he inclose them in a hive. Conse-
quently, whoever hives them makes them his own. And while they
are wild anyone may cut oft" the honeycombs, though the owner of the
land may i)revent this by warning off trespassers. And a swarm flying
from a hive belong to the owner of the hive so long as it is within his
sight, but otherwise it is the property of whoever takes possession of
it. With regard to creatures which have the habit of going and return-
ing, such as pigeons, they remain the property of those to whom they
belong so long as they retain the animus revertendi, or disposition to
return. But when they lose that disposition they become the property
of whomsoever secures them. And they must be held to have lost the
animus revertendi as soon as they have lost the habit of returning,"
p. 72.
It will not be questioned that these authorities show that, according
to the Roman law, and under certain circumstances, property may exist
in some animals admittedly fercc naturoi. What those circumstances
are will be presently considered.
The law common to both of the nations here represented, except
where some statute has intervened and established a different rule, is
in harmony with the rules established in the Roman law. Bracton, after
showing that dominion over things by natural right or by the right of
nations may be acquired, or lost, in various ways, says : " Occupation
also includes shutting up, as in the case of bees, which are wild by
nature, for if they should have settled on my tree they would not be any
the more mine, until I have shut them up in a hive, than birds which
148
have made a nest in my tree, and therefore if another person shall shut
them up, he will have the dominion over them. A swarm, also, wliich
has flown away out of my hive, is so long understood to be mine as
long as it is in my sight, and the overtaking of it is not impossible,
otherwise they belong to the first taker; but if a jierson shall
cjiptme them, he does not make them his own if he shall know
that they are another's, but he coinniits a theft unless he has the
intention to restore them. And tliese things are true, unless some-
times from custom in some parts the practice is otherwise. What
has been said above applies to animals which have remained at all
times wild; and if wild animals have been tamed, and they hy habit
go out and return, jiy aicay, and fly haclc, such as deer, sican, sea
foivls, and dovej, and such Wee, another rule has been approved, that
they are so long considered as ours as long as they have the disposition
to return; for if they have no disposition to return they cease to be
ours. But they seem to cease to have the <lisposition to return
when they have abaridoued the habit of returning; and the same is
said of fowls and geese which have become wild after being tamed."
Br acton, bic. 2, eh. 1.
Comyn observes that although in things ferce natura', no one can
have an absolute i)roperty, as in deer and conies, in hawks, doves,
herons, pheasants, i)artridges or other fowls at large and not
reclaimed, or in fish at large in the water, yet a man may have "a
qualified or j)Ossessory proj^erty in them," as in deer, pheasants, par-
tridges, or hawks, tamed or reclaimed, or doves in a dovecot, or young-
herons in their nest, or fish in a tank. " But," he says, " if deer, fowls^
etc., tame or reclaimed, attain their natural liberty, and have no incli-
nation to return, the property shall be lost," implying that the right
of property is not lost, so long as the animal or fowl reclaimed or
tamed, has, when leaving the i)remises of the owner, the inclination to
return. Digest, Tit. Biens, F. Vol. 2, p. 135.
In Bacon's Abridgment it is said: "-The wild animals, such as deer,
hares, foxes, et(;., are understood to be those which by reason of tlieir
swiftness or fierceness fly the dominion of man, and in these no x>e]son
can have property, unless they be tamed or reclaimed by him; and as
proi^erty is the power that a man hath over any other thing for his otvn
use, and the ability that he has to apply it to the sustentation of his being,
when the power ceases his property is lost; and by consequence an
animal of this kind, which, after any seizure, escapes into the wild
common of nature and asserts its own liberty by its swiftness, is no
149
more mine tlian any creatine in llie Indies, becanse I Lave it no lonjijer
in my power or disposal. Hence it appears tliat by the common law
every man has a.n equal right to such cieatnrcs as were not naturally
under the power of man, and that the mere capture or seizure created
a i^roperty in them." But, says the author: "By taking and taming
them they belong to the owner, as do all the other tame aninnils, so
long as they continue in this condition; th;vt is, rrs long as thctj can he
considered to have the mind of returning to their masters; for whiJe they
appear to he in this state they are plainly the owner'^s and ought not to he
violated; but when they forsake tlie houses and Imbitations of men, and
betake themselves to the wood, they are then the prox^erty of any man."
Bouvier's Ed., Title, Game, Vol. 4, pp. 431, 432.
Blackstoue says:
"II. Other animals that are not of a tame and domestic nature are
either not the objects of property at all, or else fall under our other
division, namely, that of qualilied, limited, or special property, which
is such as is not in its nature i^ermaneut, but may sometimes subsist
and at other times not subsist. In discussing which subject, I shall,
in the first place, show how this species of property may .subsist in
such animals as are ferce naturw, or of a wild nature, and then how it
may subsist in any other things when urider particular circumstances.
"First, then, a maa may be invested with a qualitied, but not an
absolute property, in all creatures that are fera^ naturw, either ^jer
industriam, propter impotentiam, or propter privileginm.
"1. A qualified i)roperty may subsist in animals /er ft' naturw., per
industriam hominis, by a man's reclaiming, and making them tame by
art, industry, and education, or by so confining them within his own
immediate x)ower that they can not escape and use their natural liberty.
And under this head some writers have ranked all the former species
of animals we have mentioned, apprehending none to be originally and
naturally tame, but only made so by art and custom, as horses, swine,
and other cattle, which, if originally left to themselves, would have
chosen to rove up and down, seeking their food at large, and are only
made domestic by use and familiarity, and are, therefore, say they,
called mansueta, quasi mayiui assueta. But, however well this notion
may be founded, abstractly considered, our law apprehends the most
obvious distinctions to be between such animals as we generally sec
tame, and are, therefore, seldom, if ever, found wandering at large,
which it calls domitw naturw, and such creatures as are usually found
at liberty, which are therefore supposed to be more emi)hatically fcrw
150
naturae, though it may liappen that tlie hitter shall be sometimos tamed
and couliued by the art and industry of man — such as are deer in a
park, hares or rabbits in an inclosed warren, doves in a dove house,
pheasants or i^artridges in a inew, hawks that are fed and commanded
by their owner, and fish in a i)rivate pond or in trunks. These are no
longer the i)roperty of man than while they continue in his keeping or
actual possession ; but if at any time they regain their natnral liberty his
property instantly ceases, unless they have animum revertendi., ichich
is only to he Jcnotcn by their usual custom of returning. A maxim
which is borrowed from the civil law, revertendi animum mdentur desi-
nere habere tunc, cum revertendi consuetudinem deseruerint. The law,
therefore, extends this possession further tiiau the mere manual occu-
j)atiou; for my lame hawk, that is pursuing his quarry in my presence,
though he is at liberty to go where he i:>leases, is nevertheless my prop-
erty, for he has animum revertendi. So are my i^igeons that are flying
at a distance from their home (especially of the carrier kind), and like-
wise the deer that is chased out of my park or forest, and is instantly
ixirsued by the keeper or forester; all which remain still in my jiosses-
sion, and I still preserve my qualified lU'operty in them. * * * Bees
also are ferce naturoi, but when hived and reclaimed, a man may have
a qualified property in them by the law of nature, as well as by the
civil law. * * * In all these creatures, reclaimed from the wildness
of their nature, the property is not absolute, but defeasible; aprojierty
that may be destroyed if they resume their ancient wildness, and are
found at large." Bh 3, p. 391.
Kent, in his Commentaries, says:
" Animals /<3r(ie naturce, so long as they are reclaimed by the art and
power of man, are also the subject of a qualified property; but when
they are abandoned, or escape, and return to tlieir natural liberty and
ferocity, without the animus revertendi, the property in them ceases.
While this qualified property continues, it is as much under tlie pro-
tection of law as any other property, and every invasion of it is
redressed in the same manner. The diflioulty of ascertaining with pre-
cision the application of the law arises from tlie want of some certain
determinate standard or rule by which to determine when an animal
is/era', vel domitic natnrw. If an animal belongs to the class of tame
animals, as, for instance, to the class of horses, slieep, or cattle, he is
then a subject clearly of absolute property; but if he belongs to the
class of animals which are wild by nature, and owe all their temporary
151
doeility to the discipline of man, such as deer, fish, and several kind
of fowl, tlien the animal is a subject of qualified property, and which
continues so long only as the tameness and dominion remain." Kcfer-
ring to the difference of opinion among- naturalists and writers, as to
whether all animals were originally tame, and owed their wildness or
ferocity to the violence of man, the autlior says : "The common law has
wisely avoided all perplexing questions and refinements of this land,
and has adopted tlie test laid down by Puffendorf (Laws of jS'ature and
I^ations, Bk. 4, 0. 6, Sec. 5), by referring the question whetlier tlie
animal be wild or tame to our knowledge of his habits derived from
fact and experience." 2 Kenfs Gomm.^ 348.
Has there been any departure from these principles in the judicial
tribunals of Great Britain or the United States'? No case was cited in
argument showing that animals feroe naturcc could not, under any
circumstances, become the subject of property. On the contrary, our
attention has been called to cases distinctly proceeding upon the
ground that the inquiry whether particular animals, naturally wild,
were to be regarded as property, defjended ujion a consideration of
their nature and habits, and the extent to which man, by acting upon
their natural instincts or disposition, and by care and watchfulness,
has established an industry in respect to them, and induced them to
remain so far under his control or power, as to permit him, by means of
such control or power to obtain the benefit of their increase, without
injuring the stock. This is illustrated by Bavies vs. Poioell, Willes Eep.,
40, where the principal question was whether deer, in a park of 000 acres,
which did not confine them so they could be taken atijlcasure, were dis-
trainable for rent. They were not in i)ossession, by actual confinement,
and could only have been taken by shooting, or with dogs. The case went
off upon the pleadings, but Chief Justice Willes, among other things,
said: "It is expressly stated in Bro. Ahr. tit, 'Property,' pi. 44, and
agreed in all the books, that if deer or any other things feroe naturm
become tame a man may have a i^roperty in them. * * * Upon a
supposition, therefore, which I do not admit to be the law now, that a
man can have no property in any but tame deer, these must be taken
to be tame deer, because it is admitted that the plaintiff had a property
in them. * * * Fourth. The last argument, drawn ab inusitato,
though generally a very good one, does not hold in the present case.
When the nature of things changes, the rules of law must change too.
152
When it was lioldeii that clccr were not distrain able, it was because
they were Icept principally for j)leasure aud not for profit, and were not
sold and turned into money as they are now. But now they are become
as much a sort of husbandry as horses, cows, sheep, or anj' other cattle.
Whenever they are so, and it is universally known, it would be ridic-
ulous to say that when they are kept merely for profit they are not dis-
trainable as other cattle, though it has been holden that they were not
so when they were kept only for pleasure. The rules concerning per-
sonal estates, which were laid down when personal estates were but
small in proportion to lauds, are quite varied, both in courts o^' law and
equity, now that personal estates are so much increased and become so
considerable a part of the property of this kingdom "
The case of Morgan, etc., Executors of Abergavenny vs. Williams, Earl
of Abergavenny {8 C. B., 768), has a distinct bearing on some aspects
of the question under consideration. Tiiat was an action of trover
to recover damages for the conversion of deer, a considerable number
of which had the range of a park, consisting of upwards of 1,100 acres
of land, and, in many parts, of a very wild and rough description.
Some of the deer were described by witnesses as tame, others as wild,
meaning thereby, as the court said, that some were less shy and timid
than others. The case appeared to have been tried upon the issues,
whethe-r the deer were in what was called a legal park, and whether,
in view of the state and condition of the animals, the luxture of the
place where they were kept, aud the mode in which they had been
treated, they could be regarded as tamed or reclaimed. The jury
found that the park had all the incidents of a legal park, and that the
animals had been originally wild, but had been reclaimed. Upon the
hearing of a rule nisi for a new trial before Lord Chief Justice Wilde
and Justices Maule, Goltman, and Cresswell, the court, referring to the
objection that the jury had been misdirected, said: "That it was
proper to leave the question to the jury in the terms in which the issue
is expressly joined can not be disputed, and the direction that that
question must be determined by referring to the place in which the
deer were kept, to the nature and habits of the animals, and to the
mode in which they tvere treated, appears to the court to be a
correct direction; and it seems difficult to ascertain by what other
means the question should be determined, whether the evidence in the
case was such as to warrant a conclusion that the deer were tamed and
reclaimed. The court is, therefore, of opinion that the rule can not be
153
supported on the gromul of misdirection. It is not contended that
there was no evideiiceiittobe submitted fo tiie jury, and tliat, therefore,
the plaintiff ougiit to have been nonsuited : but it is said tluit the weight
of evidence was against the verdict. In considering wlietlier the evi-
dence warranted the verdict upon the issue, whetlier the deer wave.
tamed or rechiimed, the observations made by Lord (ihief Justice Willes
in tlie case of Danies vs. Powell^ are deserving of attention. Tlie dif-
ference in regard to the mode and object of lieeping deer in modern
times from that Avhich anciently prevailed, as pointed out by Lord Chief
Justice Willes, can not be overlooked. It is truly stated that ornament
and profit are the sole objects for w4iich deei- are now ordinarily kept,
whether in ancient legal parks, or in modern inclosures so called; the
instances being very rare in which deer in such places are kept and used
for sport J indeed, their whole management differing very little, if at all,
from that of sheep, or of any other animals kept for profit. And in tlds
case, the evidence before adverted to was that the deer were regularly
fed in the winter, and does with young were watched; the fawns taken
as soon as dropped, and marked; selections from the herd made from
time to time, fattened in places prepared fur them, and afterwards sold
or consumed, with no diii'erence of circumstauce than what attached, as
before stated, to animals kept for profit and food. As to some being
wild and some tame, as it is said, individual animals no doubt differed,
as individuals in almost every race of animals are found, under any
circumstances, to differ in the degreeoftameness that belongs to them
Of deer kept in stalls, some would be found tame and gentle, and others
quite irreclaimable, in the sense of temper and quietness. Upon a
question whether deer are tamed and reclaimed, each case must depend
upon the particular facts of it; and in this case the court think tliat
the facts were such as were projDcr to be submitted to the jury; and, as
it was a question of fact for the jury, the court can not perceive any
sufficient grounds to warrant it in saying that the jury have come to a
wrong conclusion upon the evidence, and do not feel authorized to dis-
turb the verdict; and the rule for a new trial must, therefore, be dis^
charged."
In Blades vs. ITiggs, {13 C. B. N. 8., Si4), in Exchequer Chamber, on
api)eal, which was an action for the conversion of rabbits, witli a count
for assault, and which, strictly, only involved the question whether
game found, killed, and taken by a trespasser upon the land of another
became the property of the owner of the soil, ratione soli, oi was the
154
proi)erty of tlic trespasser, Baron Wilde, an Eng:lish judge of liigh
authority, Mellor, J., concurring, said: "It has been urged in this case
that an animal /era' iiatiiroe could not be tliesubject of individual prop-
erty. But this is not so; for the couiinou law affirmed a right of proj)-
erty in animals even though they were fcrw naturcc, if they were
restrained either hy habit or inclosure witliin the lands of the owner.
We have the authority of Lord Coke's reports for this right in respect
of wild animals, such as hawks, deer, and game, if reclaimed, or swans
or fish, if kept in a private moat or pond, or doves in a dove cote. But
the right of property is not absolute; for, if such deer, game, etc.,
attain their wild condition again, the property in them is said to be lost.
The principle of the common law seems, therefore, to be a very reason-
able one, for in cases where either their own induced hahits or the con-
finement imposed by man have brought about in the existence of wild
animals the character of fixed abode in a particular locality^ the law does
not refuse to recognize in the owner of the land which sustained them
a proi^erty coextensive with that state of things."
In Amoryys.Flynn {10 Johns., New Yorlc, 102), which was an action
of trover for two geese of the wild kind, but which had become so tame
as to eat out of the hand, the court said: "The geese ought to have
been considered as reclaimed, so as to be the subject of property. Their
identity was ascertained; they were tame and gentle, and had lost the
power or disposition to fly away. They had been frightened and chased
by the defendant's son, with the knowledge that they belonged to the
plaintiff, and the case affords no color for the inference that the geese
had retained their natural liberty as wild fowl, and that the property
in them had ceased."
So in Goff vs. Is^ilta {15 Wend., 550), which -was trespass for taking
and destroying a swarm of bees, and the honey made by them, it
appeared that the swarm left the plaintiff's hive, flew off, and went into a
tree on the land of another. The plaintiiT (according to the report of
the case) kept the bees in sight, followed th.em, and marked the tree
into which they entered. Two months afterwards the tree was cut
down, the bees killed, and the honey found in the tree taken by the
defendant and others. The plaintiff recovered judgment in the court
of original jurisdiction. Upon writ of error the higher court, speaking
by Mr. Justice Nelson, an eminent jurist who, at a subsequent date,
became a justice of the Supreme Court of the United States, said:
"Animals ferce naturce, when reclaimed by the art and power of man,
155
are the subject of n qualified pioi)erty; if tliey return to tlieir iiaturnl
liberty and wildness, without the animus revcrtendi, it ceases. Dining-
the existence ot the qualified property, it is under the protection of
the law the same as any other i^roperty and every invasion of it is
redressed in the same manner. Bees are /era; naturw, but when hived
and reclaimed a person may have a qualified property in them by the
law of nature, as well as the civil law. Occupation — that is, hiving- or
inclosing them — gives property in them. They are now a common spe-
cies of property and an article of trade, and the wildness of their
nature, by experience and practice, has become essentially subjected to
the art and power of man. An unreclaimed swarm, like all other wild
animals, belongs to the first occupant — in other words, to the person
who first hives them 5 but if the swarm fly from the hive of another,
his qualified property continues so long as he can keep them in sight,
and possesses the power to pursue them. Under these circumstances,
no one else is entitled to take them 2 Blade. Comm., 393; 2 KenVs
Comm., 391.) The question here is not between the owner of the soil
upon which the tree stood that included the swarm, and the owner of
the bees; as to him the owner of the bees would not be able to regain his
property, or the fruits of it, without being guilty of trespass,- but it by no
means follows, from this predicament, that the right to the enjoyment of
the property is lost; thatthebees therefore become again fcrwnaturw and
belong to the first occnpant. If a domestic or tame animal of one person
should stray t'o the inclosure of another, the owner conld not follow and
retake it without being liable for a trespass. The absolute right of prop-
erty, notwithstanding, would stillcontinue in him. Of this there can be
no donbt. So, in respect to the qualified property in the bees. If it con-
tinued in the owner after they hived themselves and abode in the hollow
tree, as this qualified interest is under the same protection of the law as if
absolute, the like remedy existed in thecase of an invasion of it. It can
not, I think, be doubted thatif the property in the swarm continues while
within sight of the owner — in other words, while he can distinguish and
identify it in the air— that it equally belongs to him if it settles upon a
branch or in the trunk of a tree, and remains there under his observation
and charge. If a stranger has no right to take the swarm in the former
case, and of which there seems no question, he ought not to be per-
mitted to take it in the latter, when it is more confined and within the
control of the occupant."
Tliere is nothing to the contrary of this in Gillett vs. Mason (7 Johns.
IG), cited by the learned counsel for Great Britain. In that case a
156
mere finder of bees claimed, as against one interested in the soil, the
rigiit to take tlieni, upon the ground alone that be had marked tlie
tree in whicli the boes were found. Unt the court decided that he
could not acquire ownership by merely marking" the tree, observing
that "the land was not his, nor was it in his possession,"
In Smith's Treatise on Personal Property, a work recently ])ublished,
the law is thus stated: "Another mode of obtaining title to personal
property by original acquisition, through occupancy, is by reclaiming
animals wild by nature, fercv naturcv. Wild animals belong to nobody
in particular ; yet they become the qualified property of any one who sub
jects them to his possession or power. The qualified property thus
acquired continues in the captor while possession or control is main-
tained, or until the animal becomes so far domesticated that it will not
vokintarily leave without the animus revcrtciidL When this i^oint is
reached, the qualified has riijened into ahsolute property, the nature of
the animal being changed from /me naturm to domiUc naturae, wikl to
tame. Until thus changed, and while in the possession or power of the
captor, his qualified property will be fully under the cognizance and pro-
tection of law; but if the animal escape and regain its natural freedom,
witlnmt the animus revertcndi, the captor's title is wholly lost, and any
other person may rightfully take the fugitive, thereby acquiring the
same qualified property i)ossessed by the first captor; and so on indefi-
nitely." After observing that the speculations of writers who attempt
to draw the dividing line between the two classes of ivnimals. wihl
and tame, and referring to animals that are classed as wild, the
author proceeds: "Belonging to the latter [wild] class, are, hovv'cver,
some of an exceptionally mild tyj)e that frequently become domesti-
cated, and hence absolute property in their owners; among which are
deer, horses, rabbits, doves, and others of like character. Honej bees
areferw naturw; but, when reclaimed and hived, they become the sub-
jects of qualified property. * * If bees when hived escape, or a
swarm departs from the hive, the owner does not lose his property in
them so long as he irarsues and is able to identify them. While prop-
erty in wild animals can be acquired only by occupancy, actual or con-
structive, an actual taking is not always necessary to create title; it is
sutficient if the pursuer bring the animal within Jiis power or control^
Sec. 37.
Fiom the princi]>les thus announced by courts and Jurists, this rule,
at least, may be fairly dediu;ed as resting in sound reason, in natural
157
justice, and in a wise i)nblic policy: Tliat alt1u)uj;li animals fercv
natnra', however valuable to tlie world, are not the subjects of jirop-
erty, while in their original condition of wildness, hvyond the control
of man for any purpose whatever, the law will yet recognize a right of
X)roperty in them in favor of one who, by acting upon their natural
instincts, and by care, watchfulness, self denial, and industry, induces
or causes them to ahide for stated periods in each year, ujion his
premises, so that he, and he only, is in a position to deal with the race
as a ichole, talcing its increase regularly for commercial purposes
tcithout impairing the sfocl: The authorities i^roceed upon these
grounds: That '' occupation," as it is called, is the foundation of prop-
erty in animals fercv nat^irw; that the right of property is not lost
when the animals are away from their accustomed habitation provided
for them upon the premises of the owner, as long as their absence
is accompanied Avith the iutention to return; and that such inten-
tion is deemed to exist while they have the habit of returning.
Occupation is a fact to be determined Avith reference to the nature
and habits of each particular race of animals. What is sufficient
occupation in respect to some animals may be wholly inadequate to
give a right of iiroperty in others. While each case must depend
upon its own facts, there must be, in every case of animals /(?/•«; naturwi
in ^hicli a right of property is asserted, such an occupation as will
enable the owner or controller of the premises to which they habitually
resort to establish a husbandry in respect to them — an occupation which
gives, at least, such certain, continuous control of them that their
increase can be regularly taken for man's use without impairing
the stock. Of course, without occupation, the animus revertcndi will
not alone, or in itself, avail to give a right of property in wild animals.
But the animus revertendi will continue a right of i)roperty acquired
effectively by occupation. The intention or habit of returning to the
premises of the occupier must coexist, at all times, with the fact of
occupation. If that intention or habit ceases, that is, if the animals
permanently dej)art from the premises of the owner, the rights acquired
by occupation are lost, and they will become the property of the first
taker. It is this liability to change in ownership resulting from the loss
of control by man, to which writers refer when they speak of qualified
property in animals ferce naturcc, as distinguished from that full, com-
plete, aI>solute ])roperty tliat may be lost only by the consent, express
or implied, of the owner.
158
Let us see what are tlie analogies between tlie case of these fur seals
and the case of certain animals, y'erflc naturw, which, according to uni-
versal law, may become the subject of individual j^roperty. This mode
of reasoning, although pronounced in argument to be unsafe and likely
to mislead, has the sanction of experience. A very large prox)ortion
of the judicial decisions in both the United States and Great Britain
rest upon the application that has been made in cases, new in their
circumstances, of the ijrinciple of rules announced in prior cases. Parke,
J. in Mirehouse vs. Eenncll,SBingJM7)i,\). 51o, declared it to be of import-
ance to keep this principle of decision steadily in view, not merely for the
determination of the particular case, but for the interests of the law as
a science. And Dr. Phillimore has well said that analogy has great
influence on the decisions of international as well as of municipal
tribunals. 1 Phillimore, § 39. Another writer declares analogy to be
the instrument of the progress and development of the law. Bowtjers
Headings, p. 88. If the conditions, which courts aud jurists have held
to be suCticient to give a right of property in certain useful animals
ferce natiirw, substantially exist in the cases of other wild aninmls,
valuable to mankind, and in respect to which no ruling has been made,
then the principle of the j)rior cases, so far as applicable, may well be
recognized and enforced in subsequent cases.
In what way, according to the authorities, may property be acquired
in a swarm of bees'? All that need be done by man, as a condition of
acquiring i)roperty in them, is to provide, on his premises, a place or
hive where they may abide, to which they may come and go at will,
and at which a proper proportion of their honey can be obtained from
time to time. While in some countries bees are fed, as a general rule
they gather, here and there, without man's aid, all that is necessary to
nourish them. The owner never puts his hand upon the swarm, or
upon individual bees, though he might shut them up, from time to time,
in their hive. It has never occurred to any writer or court to consider
whether ownership of the swarm depended upon the ability of theownerto
identify, and prove ownership of, each individual bee. The question
of proi)erty does not arise as to individual bees, but only in respect to
the swarm. All that the owner need do is to i^rovide a jilace for the
swarm, abstain from taking all the honey made by the bees, but leaving
enough to sustain them until the next year, and protect them against
disturbance while in the hive. That being done, as long as they occupy
that hive for their abiding place, when not moving through the air, and
159
a% long as tlicy are in tlic liabit of rctui iiing to it, or can bo pursued
and identified wlien absent from their liive, tlie law gives to tlie owner
of the premises a right of propertj^ in the swarm. Possession, in fact,
of the swarm, or of the individual bees, is not otherwise necessary.
Possession, in .law, exists, if the swarm regularly abides in the hive
so that the product can be regularly obtained for man's use. And
when the swarm flies abroad the right of property is not lost as long as it
can be pursued and identified, and does not establish another habitation.
And this right attaches not only to the swarm that has continuously
occupied the hive jirovided for it, but to new swarms which go out
from overpopulated hives in search of another home. The latter,
equally with the original swarm, remain the i)roperty of the OAvner
of the hive, Avherever they may go, as long as they can be identified
and until all hope of their being recovered is abandoned.
In the case of wild pigeons, what must man do that he may acquire
property in them ? Nothing more than to provide a place or box in
which they can take shelter, and where they can breed and rear their
young in safety. There is no possession in the owner other than that
coming from his occupancy of the laud, and from his ownershij) and
control of the place provided for the use of the flock. There is no
handling (as there could not be) of individual pigeons constituting the
flock. But the owner holds such relations to the flock that he can reg-
ularly take its increase without diminishing the stock, so long as they
continue to fi-equent the place provided for them. While the capac-
ity to do that exists, the original "occupation," the fouiulation of the
right of iiroperty, remains in full force.
In the case of deer, naturally wild, all that is essential to the acquisi-
tion of property in them by man is that he provide or keep a place for
them, to which, by reason of his care, industry, and forbearance they
habitually resort, and where they remain with such regularity under his
general super\dsion, control, and protection that he can, without impair-
ing the stock, reap the benefit of the i ncrease. In the cases cited from the
English courts, it does not appear that the deer were taken into actual
custody. Their owner simjily built a fence around a forest of vast
extent, in which the deer roamed at will. Their owner could not lay
his hands upon the deer at pleasure. They could be actually taken
only as other deer of the forest were taken, by shooting, or with dogs.
The owners simjDly protected them and made a husbandry of them.
Similar observations may be made in respect to geese and swaus. If
160
by care and industry a place is provided for them, wli ere tliey can abide
iu safety for the purposes of breeding, to whicli they habitually coine,
and where they are protected from disturbance, so that their ijierease
may be regularly taken for man's use, all is done tlrat is required to give
property in them. While these conditions exist, the right of property
remains.
The instinct of a wild animal to resort, for the first time, to a par-
ticular place is not, in the case of bees, pigeons, deer, wild geese, or
swans, the creation of man. But, in a substantial sense, their subse-
quent return to and remaining at that place from time to time, so
that a Iiusbandry can be established with res}>ect to tliem,isdue to the
self denial, care aud industry of the person who j)rovides for them a
place which he maintains and protects for their use. They do not,
under the circumstances stated, become tame, within the literal mean-
ing of that word, and so as to lose all their original wildness of naturej
but, in the eye of the law, they are so far reclaimed from their natural
condition of wildness that they do not always flj" from the presence of man,
or escape from his dominion and control, but, as the result of his art and
industry, remain so far in his pawer, that their product can be utilized
with the sauie regularity, and almost as readily, as the product of
domestic animals may be utilized.
It has been said that the coming of these fur seals to the Pribilof
Islands, from year to year, for the purposes already indii^ated, is not
to be attributed to anything that the United States, as the owner of
the islands, has done, or has refrained from doing. Is this true? Pre-
mising that it is not the number of things done, which determines
the value of what is done, let me ask, whether the United States
has done all that is necessary in order to utilize this race, with-
out destroying it, or imperiling its existence. Would the seals
continue to come to Pribilof Islands, from year to year, if, by
the direction or with the assent of the United States, they were
met, as they might be, at the shore of the islands, and driven back into
the water! Would tliey remain on the islands during the breeding
season except for the care taken, under regulations prescribed by the
United States, to induce them to do so, and except for the protection
afforded them, while on the islands, against the pursuit of seal hunters
having in view immediate profit for themselves rather than the
l)reservation of these animals for the benefit of mankind? These
questions must receive an answer in the negative. In view of the
161
habits of the seals, aiul of the absohite necessity of their being upon
hind, for several mouths in each year, for purposes, at least, of
breeding- and of rearing- their young, it cannot be doubted that the
very existence of the rai;e depends npon their being cared for and
protected at the place to which they habitually resort, and to which,
when going back into the sea, they aviII certainly return the suc-
ceeding s])ring and suuiiner. It will not do to say that these animals,
if not allowed to occupy the Pribilof Islands, would seek some other
breeding grounds; for, if any change of location should ever take
[)lace, the same questions would arise between the owner of the new
breeding grounds and pelagic sealers that are presented in this case.
But the j)ossibility that these seals, if driven to that course, might
seek a new location, can not be made the basis of action by this
Tribunal or alfect the principles involved in the question submitted
for determination; for, we know that these seals, with abundant oppor-
tunities to select other breeding grounds, have, for more than a cen-
tury past, occupied Pribilof Islands as their land home. And there
is no reason to believe that they will go elsewhere, as long as the
United States keeps those islands exclusively as their breeding-
grounds, and takes care that they are not disturbed by merciless
pelagic sealers who kill without regard to sex, and slaughter mother
seals about to deliver their young without the slightest concern
on that account. The presumption is conclusive that there are no
coasts, near or on the migration-route of these animals, which present
the same climatic and other conditions as are found by them at
Pribilof Islands.
In respect to the fur seals frequentiiig the Pribilof Islands, what did
Russia do, and what has the United States, succeeding to its rights,
done, in order to bring them within the rules of property ai)plicable to
animals ferca naturcu which may be the basis of a periuanent hus-
bandry"? Neither hive, box, park, nor other enclosure, has been pro-
vided for them, as in the case of bees, pigeons, antl deer, respectively,
because such a provision is forbidden by the nature and habits of the
animals, and would be absolutely useless for any jiractical purpose.
But an abiding place for all the purposes for which they must, of
necessity, come to and remain u[)on land, has been provided for them.
U"l)on the discovery by Russia of the Pribilof Islands it was ascer-
tained that this race made it their land home, Russia desired this
condition of things to continue in order that these animals might be
11492 11
162
utilized for public and coimncrcial purpose:^, and to that end regula-
tions were established restricting the number to be taken annually
for such purposes. That system has been perpetuated and improved
by the United States, with the result that the return of these seals
to the Pribilof Islands, from year to year, in the same months, and
their remaining upon the islands &r stated periods, and so that a
due j)roportion of males may be taken without at all disturbing the
herd in its entirety, is absolutely assured, provided only the extermi-
nation of the race by pelagic sealing is prevented.
But this is not all. We have seen that by an act of Congress, passed
soon after the United States acquired Pribilof Islands, the islands of St.
Paul and St. George were set apart as the land home of these animals.
A place was thus provided for them where they could abide while
breeding, and rearing their young, and while their coats of fur were
undergoing a change. Only a limited number of persons are allowed
to go to or remain on the islands. Regulations have been estab-
lished i)reventiug the herd from being unduly disturbed while
there. Enormous expense has been incurred in providing vessels to
guard the breeding grounds against marauding parties engaged in seal
hunting; and the Government of the United States protects the race
against indiscriminate slaughter while on land. The precautions thus
taken for the preservation of the herd may sometimes have been evaded,
but it is not to be doubted that if raiders were permitted, without restric-
tion, to capture and kill these seals while on the islands, the race would
be speedily exterminated as other animals of like kind have been
destroyed in the waters of the Southern Ocean. Further, the United
States, recognizing the value of this race of animals to itself and to com-
merce, forbears to impair the stock throngh indiscriminate killing, and
not only forbids, under severe penalties, the killing of female seals, but
limits the taking on the islands eacli year to such a proportion of
males as can safely be taken, for commercial purposes, without
destroying the race.
If these animals, from their nature and habits, needed an actual
shelter over their heads while at the breeding grounds, and such a
shelter was, in fact, provided for them by the United States, could
human ingenuity distinguish the case, in principle, from that of other
valuable animals fcrw naturw, in which, by the law everywhere, prop-
erty may be acquired by the care and industry of man? Instead of
such shelter for their x^'otcctiou during storm and rain the United
163
States i^rovules tlieiii with what their natures and necessities require,
namely, a hind home where, without disturbance, they breed and rear
•^heir young", and where the safety of the race from pursuit and destruc-
tion, while at that home, is assured. All this 1ms been done at great
expense, and by the exercise of care and supervision. To say that the
United States, by providing upon its land a hive for a swarm of bees,
or a box for a flock of pigeons, or a place for a lot of deer, in which
those animals respectively may abide while breeding and rearing their
youug, or for other purposes required by their nature, will become tlie
owner of such animals as long as they have the habit of returning to
the places so provided for tbem, whereby their product nniy be regu-
larly taken for man's use, and yet that it cantiot become tlie owner of
a herd or family of fur seals born and reared upon its islands, and
for which it i^rovides a land home where they breed and rear their
young, where they abide in safety, during stated periods, and to which
they regularly return, so that the increase may be taken for com-
mercial purx)oses without impairing the stock, is, I submit, repugnant
to sound reason and inconsistent with recognized i)rincix)les in the law
of i)roperty.
It is said that these islands, before their discovery by Russian navi-
gators, were the land home of these animals, and, consequently; that
the seals were ngt provided with that home by Bussia or by the United
States, which succeeded to Russia's rights. The answer is, that after such
discovery the islands of St. Paul and St. George have continued, for
more than a century, to be the land home of these animals only be-
cause Russia, and subsequently the United States, so ordered. If the
United States desired to establish a naval post on Pribilof Islands,
or to use those islands for any other public purpose different from
those for which they have been used since 18G7, it could easily drive
the seals back into the sea when they attempted to "haul up" on the
islands during the breeding season. Such treatment might result in
the destruction of the race, as we cannot be sure from any evidence
before us that any other islands would be suitable for their purposes.
But no such treatment is, in fact, accorded to them. On the contrary,
the islands are preserved for their use as a land home. It is as if the
United States had said, upon the acquisition of the islands of St. Paul
and St. George: "These valuable animals have their breeding grounds
here; other animals of like kind have been exterminated by indiscrim-
inate slaughter, or for the want of governmental protection; this race
164
shall be preserved from destruction so that mankind can get the ben
elitof them for food and for raiment; to that end these ishiDds shall not,
as is the case in respect to other parts of the pnblic domain, be subject
to settlement, but shall be sot apart as the habitation of these animals
exclusively, where they may breed and rear their young; and they shall
be protected from molestation by seal-hunters while on the islands,
and only such portion of males allowed to be taken, annually, as will
not endanger the integrity of the herd as a whole." All this, it is
argued by counsel for the British Government, is not equivalent to
"occupation," as that word is understood in the law regulating the
acquisition of property in animals /'era' nalurcv, and is of less con-
sequence, as a means of acquiring property in these seals, than that
which is done when a hive is i)rovided for bees, or boxes for pigeons,
or a place for deer. The fact is, the case of these seals is made stronger
in consequence of their peculiar nature and habits of life; their home
on American soil is a permanent home, necessary to their existence,
and in respect to which they never lose the animus revcrtendi.
Again, it has been suggested that these animals pass much of their
time in the high seas, which are free to all, for purposes of food. But
that is (piite as immaterial as to say, in the case of bees and pigeons,
that they pass the most, or much, of their time in the open air, which is
free to all. The circumstance that these fur seals go- great distances
from the Pribilof Islands in search of food can not affect the princi[)le
involved. Suppose they passed each day in the sea, just beyond the
outer line of territorial waters, but returned each night to the islands;
the question of ownership would be i)recisely the same, in respect to
the principles governing it, as is now presented, because we know that
while these seals go regularly, at stated periods, each year, over the
same route, into the North Pacific Ocean, they return by the same route
substantially, at the same time in each year, to their breeding grounds on
the islands of St. Paul and St. George. The length of time which they
pass in the high seas, in search of food, is wholly immaterial, in view
of the fact that they will return at a particular time to their land home.
They are unlike in their habits any other known animal that passes its
time partly on land and partly in the high seas. They are not produ(;ts
of the sea. They can not breathe under the water. They are, in every
substantial sense, as much appurtenant to the islands on which they
are born, and where they breed and rear their young, as if they never
165
passed beyond territorial waters. Notwitlistaiiding they frequent the
sea for purposes of food, they are strictly land, rather than marine,
animals, because they are conceived and are born and reared on land,
could not be conceived nor come into existence in the waters of tlie
ocean, and must, from the necessities of their natnre, abide upon laiul
at stated periods.
Next, it is said that some of the seals which have been on the islands
of St. Paul are known to have gone the succeeding year to the island
of St. George. The proof on that point is too slight and unsatisfactory
to be regarded. But if the fact be as suggested, it would bo wholly
immaterial in the present inquiry; for both islands, taken together, are
the property of one nation, and that nation only is in a position to deal
with the race as a whole and save it from extermination.
I have not understood learned counsel to dispute the proposition
that, according to the jurisprudence of all civilized nations, some
animals ferce naturae are susceptible of ownership. Nor do they
insist that the principles recognized in the Eoman law, and equally
iu England and the United States, in respect to the acquisition of
property in bees, pigeons, deer, etc., do not obtain in all civilized coun-
tries. We have not been referred to any instance in which it has been
otherwise declared. But it is earnestly contended that the differences
between fur seals on one side and bees, pigeons, deer, and the like,
on the other side, are such as to i)rechide the application to the former
of the rules determining the acquisition .of proi)erty in the latter
class of animals. That all these animals are unlike in many respects
no one will dispute. But this circumstance is not of legal conse-
quence, unless the differences are such as to prevent the application
of the general rule prescribing the conditions on which property may
be acquired iu wild animals. There are no two classes of domestic
animals exactly alike in their nature and habits, but there are qualities
common to all such animals which justify the law not only in declar-
ing them to be the subject of ownership by man, but in declaring
that the right of property in them is not lost while they are absent
from the owner, even without the intention of returning to his ])osess-
siou. Now, upon what ground rests the general rule that animals
fcrm natarcjc may not become the subject of property? And why does
the law recognize exceptioiis to that rule in the case of some animals
which admittedly belong, in their original coudition, to that class*?
166
TLe j;'cneral rule tlint wild auimals become tlie proi^erty of tlie first
taker proceeds upon the giound, stated iii the lustitutes of Jiistinian,
that "natural reason ftives to the first occupant that which had uo])re-
vious owner." But there are exceptions to the general rule that arise
from the necessary wants of society. To the end that it maj
not lose the benefit of valuable animals, exhaustible in quantity,
society, in other words, the law speaking for organized society, stinni-
lates the exercise of care, industry, and self-denial, by permitting
ownership in such wild animals as can be induced to come and
remain so far under human control and supervision that their prod-
uct can be regularly utilized for the use of mankind without injury to
the stock. And this right of property is under the protection of the
law. If the law did not so declare the inevitable result would be
the extermination, by waste or consumption, of many animals that
the world needs and with which it would not willingly part.
With respect to wild aninials which by universal assent come within
the exception to the general rule, the law, I repeat, has prescribed certain
conditions as essential to the acquisition of property in them. These con-
ditions all point to such occupation or control of the animals by man — the
result of his care, industry, and self-denial — as indicates his capacity
to rea]>, regularly, their product without materially diminishing the
race itself. And as such conditions may all be performed in the
case of bees, pigeons, deer, and the like, the law, in the interest of
society, that its wants may be supplied, recognizes a right of property
in such animals in every case where the conditions have, in fact, been
performed and can be maintained. The only quality common to all of
these animals is that man by art and industry may acquire such pos-
session and control as will enable him to render to society the useful
service, necessary to human life, of reaping from them their regular
increase without destroying the stock. This benefit society cannot
have, unless it rewards the industry and self-denial so practiced with the
right of property ; and, therefore, it does so reward those qualities. No
man would cultivate bees and furnish the market with honey unless he
was promised property in both the original and new swarms. No man
would furnish a place for and "cultivate" wild geese, swans, and pig-
eons, unless they were protected as property, while they are temporarily
out of his ])ossession. No man would care for wild deer by enclosing
the forest, watching the does when they dropped their fawns, making
167
selections for sliuiglitcr, unless lie was awarded tlie riglit of pvoj)-
erty in respect to such deer. Out of this condition of things arises the
rule, to which I have adverted, that whenever, by the art and industry
of man, useful wild animals come so far under control that they can be
and are so dealt with by him, that he may carry on this species of
husbandry with them, take their whole annual product for human con-
sumption and yet preserve the stock, he has, by universal jurisprudence,
a property in them, and when he can not, or does not do this, he has no
right of property. This is the true teaching of the cases and authorities
to which reference has been made. The property which they recognize
is that most approjiriately described by Blackstone as projierty ^^er
inclustriam. Expressed in its simplest and most general form, the truth^
which the authorities cited enforce, is that whenever any useful thing,
not already approp}-iated, is dependent for its existence on the art and
industry of man — whenever man can truly say of a particular useful
thing that it is the product of his care and labor, or would not exist
without his care and labor — then he may claim that thing as his prop-
erty.
Do not all these conditions exist in the case of the fur-seals fre-
quenting the Pribilof Islands? Are they not met more certainly in
respect to these animals than in the case of those wild animals which
the authorities uniformly declare may be ai^propriated by and become
the property of man'? Are not these fur seals, when on the Pribilof
Islands, so comi)letcly in the power of the United States that the entire
herd could be taken in anyone breeding season? Is it not due to the
care, self-denial and supervision of the United States that these ani-
mals regularly return, at stated times, to those islands, and remain
there, for such long periods, and under such circumstances, that a
proper proportion of their increase can be readily taken for purposes
of revenue and commerce without at all endangering the race? Must
not the race perish — would it not long since have perished from the
earth — except for the care and self-denial practised towards it by
the United States'? Is it not beyond dispute that pelagic sealing is
certainly and rapidly destructive of this race? Can this race be
preserved for the world unless it is recognized as the property of that
nation which, alone of all the nations, can protect it from extermina-
tion? The care a? id labor which the United States exerts m respect
to these animals is to withdraw the Pribilof Islands from all other pos-
1G8
sible uses and devote tlicm to these seals; to guard tliein, at enormous
expense, from outside depredation; and to refrain from taking any
females, and only a due proportion of males, thereby leaving the stock
unimpaired. If either one of these forms of care be withdrawn the race
would be swept away with a rapidity only commensurate with the
neglect. Human society can have no other interest in useful animals,
bestowed for the comfort and sustenance of man, except to jireserve the
race so that its product may be perpetually enjoyed. If it can obtain
this service from one nation only it must of necessity employ that
nation and decree to it the ax)propriate reward. The United States
is in a position to render that service. Other nations and their subjects
can touch these animals on the sea alone; but they can touch them
only to destroy, because the animals cannot possibly be taken on the
sea, to any material extent, without speedily exterminating the race.
The divine law, reason, justice, and the municipal jurisprudence of all
civilized nations, and therefore, as I submit, international law, all con-
cur in declaring that the right thus to destroy that which all mankind
is interested in preserving does not exist.
The suggestion has been earnestly pressed that there can be no
such appropriation or occupation of these animals, as is requisite to
give property, except in respect to such of them as are ca])tured and
taken into actual, physical possession. The idea underlying this
suggestion is, that there cannot be any legal possession of these fur-
seals until they are confined or shut up in an inclosure of some kiiul.
But this view entirely ignores all consideration of what, in view of the
nature and habits of the particular animals, is essential to be done
in order that they may come under such control that their increase
may be regularly taken for use, leaving the stock unimpaired. As to
some animals /ercB naturw, no such result can possibly be attained
unless they are effectively restrained in their liberty by actiial confine-
ment. In cases of that kind the right of property is of course lost
when manual custody ceases, for the obvious reason that the
increase of such animals can never be obtained for the use of
man in the absence of thch^ actual continuous coTifinement.
AVhen, therefore, the right of property rests, as in the case of
some animals it unquestionably does, alone on actual physical
custody, such right is lost Avhen the custody ceases. But, when
continuous confinement or custody is not essential in order that the
product may be regularly and certainly obtained, then such control as
169
is consistent witli tlie nature of tlie animals and as will snffice to
enable man to establish a husbandry in respect to them, whereby
the pri)duct may be regularly secured, is all that the law requires in
ortier to give property. Hence, in the cases of bees, pigeons, and deer,
actual manual custody is not vital, but ownership and legal possession
coexist when there is such control that the annual increase, by means
of the owner's care and industry, can be readily taken. Whether
boxing- up, or fencing, or actual confinement in some mode, of animals
fercc naturw, is essential, as a foundation of the right of property,
nnist always depend upon the nature of the particular animal.
Actual, continuous possession of the entire race is never necessary to
accomplish the ends for which society instituted property. The funda-
mental inquiry, in every case, I repeat, is whether the person claiming-
a right of property in particular valuable animals ferw naturw has
such general custody or control of the race, such capacity to deal u-ith it
as a ivhole, that he is capable of regularly taking their increase at the
l)lace to which they habitually, regularly resort, and which his care and
industry has provided as their habitation. This inquiry is the oidy
one at all consistent with, or that will certainly secure, those beneficial
ends for the accomplishment of which the law wisely enables man to
acquire, under given conditions, a property in such animals, and
protects his rights in that regard, as long- as he is capable of utilizing-
their increase for commercial purposes. Such right of i^roperty is
qualified only in the sense that it may be lost by the act of the
animal in leaving the premises of the owner and never returning-.
As illustrating their view of the question of possession, the learned
counsel for Great Britain quote this passage from the treatise of Pollock
and Wright on Possession in the Common Law: "On the same ground
trespass or theft can not at common law be committed of living- animals
ferce naturae unless they are tamed or confined. They may be in the
■park or pond of a person who has the exclusive right to take them, but
they are not in his possession unless they are so confined or so power-
less by reason of immaturity tliat they can be taken at pleasure with
certainty." p. 231. But the authors add, in the next succeeding para-
graphs, these significant words: "An animal once tamed or reclaimed
may continue in a man's possession although it fly or run abroad at
will, if it is in the habit of returning regularly to a place wJiere it is
under his comple control. Such habit is commonly called animus
rcvcrtcndi.^^ The same authors say: "To determine what acts will bo
170
sufiBcicut iu a particular case we must attend to tlie circumstances, and
especially to the nature of the thing dealt with, and the manner in
which things of the same kind are habitually used and enjo])ed.
* * * Again, tliere is another and quite different way in wliicli
possession in law may be independent of de facto possession. We
may find it convenient tliat a possessor shall not lose his rights merely
by losing physical control, and we may so mould the legal incidents of
possession once acquired that possession in law shall continue though
there be but a shadow of real or apparent physical power, or no such
power at all. This the Common Law has boldly and fully done. * * *
Legal possession, in our law, may continue even though the object be to
common apprehension really lost or abandoned." P. 13, 18.
The whole subject of possession, as distinguished from ownership, is
fully examined in Hunter's Eoman Law. " Possession," that author
says, "is the occupation of anything with the intention of holding it as
owner," aiid " a thing is said to be occupied or held when the occupier
is in a position to deal tcith itP Again, " In acquiring possession of
objects not before owned or possessed by others, the question is whether
the intending possessor has so far overcome the physical difficulties as
to he aUe freely to deal ivith the suhjecf'' I a reference to possession of
things not before owned {res nullius) or possessed, the author says that
"in such cases to acquire possession is, at the same time, to acquire
ownership." Among the examples given by him are those given in the
institutes of Justinian and in the Commentaries of Gaius, to which refer-
ence has already been made, namely, animals ferw naturm which habit-
uallj^ go away and return to the place provided for them. If while they
are absent the occupier has not abandoned the intention of dealing with
them to the exclusion of all other persons, so as to take their increase
regularly at the places provided for them, his possession remains
while they have the habit of returning. Under such circumstances, and
although the animal is for a time out of the view of the occupier, the
law holds that neither "occupation" nor the intention to exclude others
— both of Avhich are necessary to constitute possession — have ceased to
exist. Huntcrh Roman Laic, 2d ed., pp. 341, 344, 345, Title Possession.
Of course it is not to be disputed in this case that the United
States, by what it has done and can do on the islands of St. Paul and
St. George, is in a position where it can deal M'ith this entire race of
animals so as regularly to take their increase without materially affect-
ing its existence or integrity, nor that it has intended to appropriate
or "occupy" this herd to the exclusion of all other nations or peoples.
171
Speculate as we may about some aspects of this case, or differ as we
may about the weight of evidence upon some points, this is abso-
lutely certain: If the United States had actual manual custody of
each of these animals, at all times in the year, it could not jjrojj^r/y deal
with them in any other mode than that pursued by it, namely, to take
only such part of the males each year as will leave the race or herd unim-
paired in its entirety for the use of man. And they can not possibly be
dealt with in that manner, and with such results, except hy the United.
States or its licensees, or at any other place than at the breeding grounds
on its islands. All this is so clearly established that no one, having the
slightest regard for the evidence, will assert the contrary.
I have referred to the self-denial practiced by the United States in
restricting the taking of seals at the Pribilof Islands to males of proper
age and in such limited numbers as will not cause a substantial impair,
ment of the stock. The Government of that countrj^, let me repeat, has
the power, if it chooses to exercise it, of taking in any one year such an
undue proportion of the seals, male and female, which frequent its
islands as would give the United States an immediate profit of large
amount. Its power over the seals while on the islands is so absolute
that, as counsel suggest, it could practically exterminate the race
almost at one stroke. But it recognizes a moral obligation resting
upon it to preserve, not to destroy, a race of animals useful to the world.
In order that the si^ecies may be preserved for itself and for mankind it
abstains from sacrificing the race for the sake of temporary or in-esent
profit. This abstinence is industry under another name. And this
principle of abstinence, or saving, is recognized by all writers upon
economic questions as a potent agency in the creation of wealth and in
the progress of the world.
John Stuart Mill, in his Principles of Economy, has said that "as the
"wagesof the laborer is the remuneration of labor, so the profits of the
capitalists are properly the remuneration of abstinence." Vol. 2,
p. 484.
A recent writer upon the ethics of usury and interest has said: "On
the hypothesis that all have equal ()])portunities of social progress, the
social destroyers of its wealth deserve condemnation, while those who
have served the cause of progress by saving from personal consumption
a part of the earth's produce and devoting it to the improvement of
national mechanism have a claim to an award proportioned to their
service and to the efforts which they have made in rendering it. These
172
arctlic conditions of advance in civilization in tlicarts and sciences, in
literatnre, and religion. For comnnmd over nature differentiates
the civilized man from tlie savage. * * * It appears, hence, how
accurate is the common phrase which calls thrift 'saving.' Economists
favor such other words as 'abstinence,' deferred 'enjoj'ment,' and the
like; but to 'save' expresses the primary idea that something has been
sav^ed from the destruction to which mere animal instinct would devote
it. In such salvage lies the progress of the human species from sav-
agery to godhead. By how much has been thus saved has the salva-
tion, material, mental, and moral, of the race been achieved." Bliss-
ard's Ethics and Usury^ 1892, p. 26 et seq. "The origin of all capital,"
says another writer, "is abstinence, and the reward of this absti-
uence is profit." Perry^s Introduction to Political Economy, p. 115.
If it be said that a diflBculty in the way of awarding to the United
States a right of property in these seals is theimpossibility of identify-
ing any particular body of seals as frequenting or habitually resorting
to the Pribilof Islands, the answer is that no such description of the
situation is justified by the evidence before us. It may be that here
and there, in the great ocean separatingthe American and Asiaticcoasts
may be found stray, scattered fur seals, of which it might be difficult
to say, while they are in the M^ater, and not immediately under the eye,
that they belong to a particular herd of northern fur seals, just as it
would be difficult to identify a wild pigeon as belonging to a particular
flock, or individual bees as belonging to a particular swarm hived at a
named \)la(,'C. But such facts can not affect the principle involved in
such cases. The evidence is overwhelming that the migratory routes
of the northern fur seals frequenting the islands on the Asiatic and
Japan coasts are separated by more than 800 miles from the migration
routes of the fur seals habitually resorting to Bering Sea and frequenting
the Pribilof Islands. Tliere is no appreciable intermingling of the Pri-
bilof seals with other fur seals of the same general species. If there are
any excei)tions to this rule they are so rare and relate to so few seals as
to be of no consequence in the inquiry whether the fur seals frequenting
or habitually resorting to the Pribilof Islands do not constitute, substan-
tially, a collective body or herd separate and distinct from every other
herd of the same species. That they do constitute a separate and dis-
tinct herd is so clearly established that a statement to the contrary
might well cause surprise to any one at all familiar with the evidence
submitted to us, or who is able to consider it without regard to special
173
interests depending upon the action of this Tribnnnl. The treaty identi-
ties the herd to wliichregnhitions are to apply by the fact of their habitu-
ally resorting to the waters and islands of Bering Sea. If the award so
describes them there will be no uncertainty in the decree. National
legislatures and courts will find no difficulty in following the award,
either in making laws or in api)lying them to the proi)er seals.
The only possible objection that can be urged against the claim of
ownership of these fur seal animals by the United States is the general
rule that animals feroc naturce are not subject to individual owner-
ship. But we have seen that, according to settled principles of
law, an excei)tiou to this rule has been handed down to us, and is
everywhere recognized, which admits of individual ownership of
useful wild animals, the supply of which is limited, and which, by
reason of their nature and habits, and the control or j)ower which
man may acquire over them, are susceptible of ownership, that is, are
capable of exclusive appropriation. All of these conditions are ful-
filled in the case of the Pribilof fur seals. It is not denied that they
are useful animals, or that the supply is limited. The experience of
the past proves that the race can be easily exterminated if man is
allowed to hunt and slaughter them wherever they may be found, on
tlie land or in the high seas. It is equally beyond dispute that they
may be exclusively appropriated, because they come, at stated i^criods,
to the islands of the United States, where they remain under such con-
trol that the increase can be obtained for the benefit of the world with-
out any injurious diminution of the stock.
The reason why the doctrines to which I have adverted, have been
taught more directly and fully in municipal jnrisiu'udenceis that ques-
tions of property more frequently arise between individuals. Nations
do not often engage in judicial controversy with each other upon (jues-
tions of this character. But there are some things which from their
situation are susceptible only of national ownership. These have been
considered by writers upon international law, and where the same
grounds and reasons exist for the recognition of property, as between
nations, that are found in the cases determined by concurring munici.
pal law, they have conceded national ownership. Illustrations of this
rule are the cases of pearl and other oyster beds, coral reefs, etc., situ-
ated on the sea outside of territorial waters, in some instances thirty
or more miles. These gifts of nature are exhaustible, and would be
^ oon exhausted if treated as res nulUiiSj and left open to the indiscrimi-
174
iiate enjoyment of tlie i)eople of ;ill nations. Tlicy cannot ^Yell be
enjoyed unless tliey are under particular control, so tliat tlie product
may be taken at tlie riglit season and in limited amounts. In other
words, they require that sort of care, restraint, and self-denial which
is induced only by a recognition of property in those who bestow such
care, and practice such restraint and self-denial. I am relie^'ed from
the necessity of showing that these things, even when beyond territorial
waters, maybe appropriated asproperty by the nations in whose neigh-
borhood they lie, and Avho choose to exercise the restraint and control
required for tlieir preservation ; for, the opinions of great writers upon
international law are explicit and concurring to that effect. "And Great
Britian in its counter case and by its counsel in argument, distinctly
admit that they are the subject of property. Great Britian, in its Coun-
ter Case, referring to the legislation affecting the pearl fisheries of Cey-
lon, says that "the claim of Ceylon is not to an exceptional extent of
water forming part of the high seas as incidental to the territorial
sovereignty of the island, but is a claim to the products of certain sub-
merged portions of the land, which have been treated from time imme-
morial by the successive rulers of the islaiul as subjects of property and
jurisdiction." The counsel for the British Government, enforcing the
theory that international law recognizes the right of a state to acquire
the soil under the sea, and consequently the products attached to it,
and referring to theCeylon and other fisheries, say that this claim "may
be legitimately made to oyster beds, i^earl fisheries, and coral reefs."
But looking at the grounds upon which j)roperty in pearl and other
oyster beds, coral reefs, and the like, rest, it immediately appears that
those things are incapable of occupation or possession in the ordinary
sense of those words. That they are attached to the soil under the sea
is not, it seems to me, at all controlling in the inquiry as to property. No
such reason is assigned by the writers upon international law. What
they do say on the subject has reference to social utility and to the right
of the nation, near whose territory, these things are found, to enjoy the
advantayes of its peculiar relation to them. Such things are exhaust-
ible j there is not enough for all; if left open to indiscriminate and
unregulated attack they would be destroyed; whereby a particular
nation would be injured.
Puffendorf says: "As for fishing, though it hath much more abund-
ant subject in the sea than in lakes or rivers, yet 'tis manifest that it
may in part be exhausted, and that if all nations should desire such
right and liberty near the coast of any particular country, that country
175
must bo very mncli prejudiced in this respect; especially since 'tis very
usual tliat some particular kind offish, or perliaps some more precious
commodity, as pearls, coral, amber, or the like, are to be found only in
one part of the sea, and that of no considerable extent. In this case,
there is no reason why the borderers should not rather challenge to
themselves this happiness of a wealthy shore or sea than those who
are sealed at a distance from it." Law of Nature and Nations, Bk. i,
Chax>. 5, Sec. 7.
Vattel, upon the same general subject: "The various uses of the sea
near the coasts render it very susceptible of property. It furnishes
tish, shells, pearls, amber, etc. Now, in all these respects, its use is
not inexhaustible; wherefore the nation to whom the coasts belong may
appropriate to themselves, and convert to their own prolit, an advan-
tage which nature has so placed within their reach as to enable them
conveniently to take possession of it in the same manner as they pos-
sessed themselves of the dominion of the land they inluibit. Who can
doubt that the pearl fisheries of Bahren and Ceylon may lawfully
become property'? And, though, where the catching of fish is the
only object, the fishery appears less liable to be exhausted; yet, if a
nation have on their coast a particular fishery of a profitable nature,
and of which they may become masters, shall they not be permitted
to appropriate to themselves that bounteous gift of nature, as an
appendage to the country they possess, and to reserve to themselves
the great advantages which their commerce may thence derive in case
there be a sufficient abundance of fish to furnish the neighboring
nations'?'' Again: "A nation may appropriate to herself those
things of which the fiee and common use would be i^rejudicial or
dangerous to her. This is a second reason for which governments
extend their dominion over the sea along their coast as far as they
are able to i)rotect their right." Law of Nations, Bk. II, Chap. 23,
Sees. 217, 2S8. This passage from Vattel is quoted by Sir Travers
Twiss, who says: "The usns of all parts of the open Sea in respect
to navigation is common to all nations, but the fructns is distinguish-
able in law from the usus, and in respect of fish, or zoopliites, or fossil
substances, may belong in certain parts exclusively to an individual
nation." Cli. XI, Sec. 191.
The essential grounds upon which the doctrine is placed in these
extracts is precisely that upon whicli the similar decisions have been
made in the instances from numicipal law of bees, pigeons, and the like.
It is that these i)ropcrties would he destroyed and lost unless they
176
were protected by that care, industry, and self-denial wliich can be
called into activity only by the reasons which the institution of property
offers. It is because the Liei.i;hboring nations and none others can ex-
ercise these qualities and thus perform the service of preservation. It
is because they fall under the general propositiou that where any useful
thing is dependent for its existence upon the care and self-denial of
particuhir men, those men have a proi)erty in the thing.
That the United States, by its ownership of Pribilof Islands, is in a
condition to reap the benefit of these animals, and preserve the race, and
that no other nation, by any action it may alone take, can acconjplish
these beneficial results, and that the preservation of the race does not
admit of their being taken at any other place than at their breeding
grounds, are conclusive reasons why the law should recognize its claim
of property.
Blackstone, observing that there are things in which a permanent
property may subsist, but which would be found without a proprietor
had not the wisdom of the law provided a remedy to obviate this in-
convenience, says that "the legislature of England has universally pro-
moted the grand ends of civil society, the peace and security of individ-
uals, by steadily pursuing that wise and orderly maxim of assigning
to everything capable of ownersliip a legal and determinate oivnerj'
Chapter on Property.
Sir Henry Maine, in his Treatise on Ancient Law, ch. 8, p. 319, thus
states the principle: "It is only when the rights of property gained a
sanction from long practical inviolability, and when the vast majority of
objects of employment have been subjected to private ownership, that
mere possession is allowed to invest the first possessor with dominion
over commodities over which no prior pro[)rietorship has been asserted.
The sentiment in wliich this doctrine originated is absolutely irreconcil-
able with that iufre(][uency and uncertainty of proi)rietary rights which
distinguish the beginning of civilization. The true basis seems to be
not a distinctive bias towards the institution of property, but a i)resump-
tion, arising out of the long continuance of that institution, that every-
thing ought to have an owner. When possession is taken of a h'es
nullins,'' that is, of an object, which is not, or has never been, reduced
to dominion, the possessor is permitted to become proprietor from a
feeling that all valuable things are naturally subjects of an exclusive
enjoyment, and that in the given case there is no one to invest with
the rights of iiroperty, excoiit the occupant. The occux)aut, iu short,
177
becomes the owner because all things are presumed to be somebody^s
propert}^, and because uo oue can be pointed out as having better right
than he to the proprietorship of this particular thing." Of course, as
we have seen from the authorities cited, the possession of which the
learned writer speaks, is not necessarily actual manual possession, con-
tinuously held, which iu many cases is impracticable, but that posses-
sion in law, that general control, which may exist, although the thnig
possessed is temporarily absent from its OAvner with the animus rever
iendi.
So, Mr. liowyer, in his Commentaries on the Constitutional Law of
Emjland, 2d Ed., London, 1846, p. 127: "III. The third primary right
of the citizen is tliat of property, which consists in the free use, enjoy-
ment, and disposal of all that is his, without any control or diminution,
save by the law of the land. The institution of property — that is to
say, the ai^iiropriation to particular i)ersons and uses of things which
were given by God to all mankind — is of natural law. The reason of this
is not difficult to discover, for the increase of mankind must soon have
rendered community of goods exceedingly inconvenient or impossible
consistently with the peace of society; and, indeed, by far the greater
nnmber of things cannot be made fully subservient to the use of man-
kind in the most beneficial manner unless they he governed hij the laws
of exel usive appropriation.^'
The suggestion has been much pressed that the authorities cited in
support of the claims of property by the United States refer to animals
ferw naturw that have been either tamed or reclaimed by the art or
industry of man. And it was said that these fur seals are neither
tamed nor reclaimed. But upon careful attention to the reasons
assigned by courts and writers for the recognition of property, under
given circumstances, in bees, pigeons, deer, wild geese, and swans, it
Avill become manifest that there was no purpose to declare in respect
to any of these animals that they had lost all of their original wild-
ness. Some wild animals may be so tamed, or become so subdued
by the treatment accorded to them or by the circumstances attending
their situation, as to exhibit very little timidity or shyness in the pres-
ence of man. Other animals, usually called wild, but not gentle in
their nature, are more difficult to approach. Still others retain, under
all circumstances, so much of their original wildness, and so much of
their innate fear of man, tliat it is imi)ossil)le to handle them as can
often be done in the case of some strictly domestic animals. When,
11492 12
178
therefore, the authorities speak of bees, pigeons, deer, wihl geese, aud
swans, as tamed or reclaimed, they mean, and could mean only, that
their original wildness had, by the art and power of man become so
far dimished, modified, or controlled, that man is able to establish a hus-
bandry in respect to them, and obtain the benefit of their increase with-
out impairing therace. If animals, originally wild, come under the power
and control of man to such an extent that they can be thus "culti-
vated" and utilized; if such power can be acquired over them that
nuin is able, to use the words of Bacon, to apply tbem " to the sustcn-
tation of his being," then they are "reclaimed" within the meaning of
the authorities that recognize a right of property, under named condi-
tions, in animals /era' naturcv. Are not these fur seals in every sub-
stantial sense, so far "reclaimed" from their original wildness that
they can be utilized by nniu, with quite as much ease as if they were
strictly domestic animals'? They are peculiarly gentle and docile, and
easily approached, although they can be so alarmed as to fear the ap-
proach of man. While on their breeding grounds, protected against
indiscriminate slaughter at the hands of seal hunters, they are as
completely within the control and power of the United States as if
they were so numy horses, cows, or sheep. And they remain there, for
several months in every year, under the power and control of man,
without any disposition, under ordinary circumstances, to flee from, or
even to become disturbed by his presence. There is, consequently,
every reason why in the interests of society, that its increasing wants
may be supplied, they should be regarded, for all purposes of property,
as reclaimed animals.
In the course of the argument the question was often propounded
whether a recognition of the claim of the United States to own this
herd of seals would not seriously impair the right which, by universal
consent, belongs equally to all, to take and appropriate to their own
use such wild animals as have not been previously appropriated by
actual confinement, or by some other mode that deprives them of their
natural liberty. To this it may be answered, that the principle which
I have maintained has no application to those useful animals in
respect to which the care, industry, and labor of man is ineffect-
ual or unnecessary to utilize their increase, while preserving the
stock. Some of them cannot be brought within the reach or efforts of
man ; some have not the sure instinct of returning to the same place so
that they can be identified; and in respect to others, nature has made
such liberal provision for the needs of mankind, and for such an enor-
179
moiis increase in the number of the aninuiLs, that there is no occasion
for a recognition of property, eitlier as a reward of man's industry or
for the presevation of the race. A recognition in favor of the United
States of property in tlie Pribilof herd of seals does not by any means
place all wild animals in the same category. The conditions which
exist in the case of those wild animals which are admittedly subjects
of appropriation as property do not exist in the case of all animals
ferce natm-w. And we need only inquire whether those conditions ex-
ist in the case of these fur-seals. If they do, our duty is to apply the
principle which those conditions suggest, whatever may be the difii-
culty of applying it in the case of some wild animals to which counsel
have referred in argument.
It is scarcely necessary to say that these principles, in the judgment
of some courts, have no application to noxious animals, that can sub-
serve no useful purpose and may be dangerous to the community,
except, perhaps, when they are actually conlined and are kept for
amusement or for scientihc purposes. An illustration of this distinc-
tion is found in Hannan vs. Moclcett decided by the court of King's
Bench, and reported in 2 Barn. i& Cress., pp. 931, 937-8,943-4, 38, 43,
44. The declaration in that case stated that the plaintiff was pos-
sessed of a close of land with trees growing thereon, to which rooks
had been used to resort and build their nests and rear their young
by reason whereof he had been used to kill and take the rooks
and the young thereof, from which great profit and advantage had
accrued to him ; yet the defendant, wrongfully and maliciously, intend-
ing to injure the plaintiff and alarm and drive away the rooks, and to
cause them to forsake the trees of the plaintiff, wrongfully and injuri-
ously caused guns loaded with gunpowder to be discharged near the
plaintifi"'s close and thereby disturbed and drove away the rooks, in
consequence of which the plaintiff was prevented from killing the
rooks and taking the young thereof. The plea was not guilty. Bayley,
J., said: "The plaintiff does not state any special right in him to have
the rooks resort to his trees; he relies upon that general right which
all the King's subjects have, and he describes the profit to arise to him,
not from the eggs, but from killing the birds and their young. To
maintain an action the plaintiff must have had a right, and the defend-
ant must have done a wrong. A man's rights are the rights of personal
liberty, personal security, and private property. Private property is
either property in possession, property in action, or property that an
individual has a sj^ecial right to acquire. The injury in this case does
180
not nfT'ect any right of personal security or personal liberty, nor any
property in possession or in action; and the question then is, whether
there is any injury to any property the plaintitf had a special right to
acquire. A man in trade has a right in his fair chances of profit,
and he gives up time and capital to obtain it. It is for the good of the
public that he should. But has it ever been held that a man has
a right in the chance of obtaining animals /erte natiirw, where he is
at no expense in enticing them to his premises, and where it may be
at leas*: questionable whether they will be of any service to him, and
whether, indeed, they will not be a nuisance to the neighborhood!?
This is not a claim pro])ter impotcntiam, because they are young, propter
solum, because they are on the plaintiff's land, or propter iu(lust)-i((m,
because the plaintiff has brought them to the place or reclaimed them,
but propter usum et eonsuetudenem of the birds. Tiiey, of their own
choice, and without any exi^enditure or trouble on his part, have a pre-
dilection for his trees and are disposed to resort to them. But has he
a legal right to insist that they shall be permitted to do so? Allow
the right as to these birds and how can it be denied as to all others?
In considering a claim of this kind the nature and properties of the
birds are not immaterial. Tlie law makes a distinction between ani-
mals fitted for food and those which are not; between those which are
destructive to private property and those which are not; between those
which have received protection by common law or by statute and those
which have not. It is not alleged in this declaration that these rooks
were fit for food; and we know in fact that tliey are not generally so
used. So far from being protected by law they have been looked ui)on
by the legislature as destructive in their nature, and as nuisances to
the neighborhood where they are. That being so, surely a party can
have no right to have them resort to his lauds, to the injury of liis
neighbors; and, consequently, no action can be maintainable against
a person who prevents their so doing. * * * They certainly answer
tlic descrii)tion of animals /era* naturw. They are not protected by any
statute, but on the contrary have been declared by the legislature to
be a nuisance to the neighborhood where they are. That being so, it
is quite clear no i)erson can claim a right to have them resort to his
lands, nor can any person become a wrongdoer by preventing their so
doing. Keehle v. Hiclceringlll bears a stronger resemblance to the pres-
ent than any other case, but it is distinguishable. There it was decided
that an action on the case lies for discharging guns near the decoy
181
pond of aiiotlior, with design to damnify tlie owner by friglitening'
away the wihl fowl resorting tlicreto, by which the wild fowl are fright-
ened away and tlio owner damnified. But in the first place it is observa-
ble that wild fowl are protected by the statute (25 H. 8. cii.): that they
constitute a known article of food, and that a person keeping up a
decoy expends money and employs skill in taking* that which is of use
to the public. It is a profitable mode of employing his land, and was
considered by Lord Holt as a description of trade. That case, there-
fore, stands on a different foundation from this. All the other instaiices
which were referred to in the argument on the part of the plaintiif, are
cases of animals sjiecially protected by acts of Parliament, or which
are clearly the subject of pro])erty. Tluis hawks, falcons, swans, i)ar-
tridges, pheasants, pigeons, wild ducks, mallards, teals, widgeons, wild
geese, black game, red game, bustards, and herons are all recognized
by different statutes as entitled to protection, and consequently, in the
eye of the law, are tit to be preserved. Bees are property, and are the
subject of larceny. Fisheries are totally different. The fish can done
harm to anyone and constitute a well-known article of food. Upon the
ground, therefore, that the i)laintiff had no iH'operty in these rooks,
that they are birds/era' naturw, destructive in their habits, and not
protected either by comm<xii law or by statute, and that the plaintiff is
at no expense with regard to them, we are of opinion that the plaintiff
had no right to insist upon having them in his neighborhood and that
he can not maintain this action."
The case of Keeble v. Hiclter'nujill {11 East, 574), above referred to,
illustrates the rule in respect to animals ferae naturae that are useful.
That was an action on the case. The plaintiff was the owner of a
decoy pond to which wild fowl used to resort. At his own costs and
charges, he prepared and procured divers decoy ducks, nets, machines,
and other appliances for the decoying and taking of wild fowl, and
enjoyed the benefits in taking them. Tlie defendant, knowing these
facts, and intending to injure the plaintiff in his vivary, and to
fright and drive away the wild fowl, used to resort thither., and to
deprive him of his profit, frequently discharged loaded guns at the
head of the pond and vivary, whereby he drove away the wild fowl
then in the pond. There was a verdict for the plaintiff. Chief Justice
Holt said: "I am of opinion that this action doth lie. It seems to
be new in its instance, but is not new in the reason or i)rinciple of it.
For, first, this using or making a decoy is lawful; secondly, this
18^
employmcTit of liis ground to that use is profitable to the plaintiff, as is
the skill and management of that employment. As to the first, every
man that hath a property may enjoy it for his pleasure and profit, as
for alluring and procuring ducks to come to his jioiul. To learn the
trade of seducing other ducks to come there in order to be taken is
not prohibited either by the law of the land or the moral law; bat it
is as lawful to use art to seduce them, to catch them, and destroy them
for the use of mankind as to kill and destroy Mild fowl or tame cattle.
Then, when a man useth his art or his skill to take them to sell and
dispose of for his profit, this is his trade; and he that hinders another
in his trade or livelihood is liable for an action for so hindering him.
*******
" And when we do know that of long time in the Kingdom these arti-
ficial contrivances of decoy ponds and decoy ducks have been used for
enticing into these ponds wild fowl in order to be takeu for the profit of
the owner of the pond, who is at the expense of servants, engines, and
other management, whereby the markets of the nation may be fur-
nished, there is great reason to give encouragement thereunto, that
the peoi)le who are so instrumental by their skill and industry so to
furnish the markets should reap the benefits and have their action.
But, in short, that which is the true reason is that this action is not
brought to recover damage for the loss of the fowl, but for the dis-
turbance." In the report of the same case in {11 Modern, 75), the Chief
Justice says: "Suppose the defendant had shot in his own ground;
if he had occasion to shoot it would be one thing, but to shoot on pur-
pose to damage the plaintiff is another thing and a wrong."
The two cases last cited are alike in that in each the plaintiff sought
to recover damages for a malicious injury to an alleged industry. In
Hannam vs. Moclcett, the alleged industry was based upon what the
plaintiff had done to secure the coming of the rooks to his lands. But
as these animals were fercc naturw and were held not to be useful, the
X^laintiff'had no property in them which could be the basis of an indus-
try that the law would protect against such acts as those complained
of. In Keehle vs. HicJceringill, although the action was not brought to
recover damages for the loss of the ducks frightened away from the
plaintiff's land by the defendant, its foundation was. necessarily, that
the ducks, althongh ferce naturce, were useful, and could be the basis of
an industry which the law could protect against the wrongful acts of
others to the injury of the person who owned the place to which, by
his care, they habitually resorted.
183
It was suggested in argument tliat if the claim of tlie United States
to own the Pribilof far seals be sustained, the result would be to
establish a monopoly in its favor, by excluding the citizens and subjects
of other nations from engaging iu the business of taking seals in the
open Avaters of the sea. But surely this can not constitute any reason
wliytheclainishouldnotbesustainedifitbe well founded in law. Such an
objection could be made to property in anything; for all property is mo-
nopoly. The world has no interest in permitting the destruction of a race
of animals bestowed for the well-being and subsistence of mankind. It
so happens that the United States, by its ownership of the Pribilof
Islands, is in a situation to care for and preserve these seals for the
benefit of the world and to furnish the means of government while
taking the annual increase, which ultimately goes into commerce. If
its claim be denied, and pelagic sealers are unrestrained in the taking
of these animals in the o])(iii seas in the destructive mode i^racticed by
them, the species will soon be exterminated. It is idle to say that the
existence of these fur seals can possibly be secured, if pelagic sealing
to any material or i)rolitable extent is permitted in Bering Sea, or
in any part of the North Pacific Ocean where they may be found while on
their way back to their home on the Pribilof Islands. If, therefore,
pelagic sealing is suppressed and the taking of these seals is restricted
to their breeding grounds, where alone it is possible to make a discrimi-
nation as to the sex of the animals and as to the number killed for use,
the result will be the preservation of the race to the world. The object
of the treaty under which we are proceeding was, as the learned Attor-
ney-General of Great Britain conceded in argument, to secure these
fur seals against extermination, without reference to any special inter-
ests possessed either by the United States or by pelagic sealers. And
as they may be preserved by the United States, under the regulations
it has established for the taking of male seals at their breeding grounds,
and ca)mot be preserved at all if unrestrained pelagic sealing continues,
that fact is of conclusive weight in determining whether the right of
proi)erty in them should be awarded to the United States ; for, according
to all the authorities, a right of pro^ierty in animals/erce naturw depends
upoij the capacity of the party asserting such a right, exclusively to
take the increase of such animals from time to time without destroying
or impairing the stock. If, therefore, an award of property in favor of
the United States will give that country, practically, a monopoly in the
business of taking these fur seals for use, it will be a monopoly which
all civilized nations are interested in fostering-. When a monopoly iu
184
a particular nation is the only or tlie best mode of preseivinc^ to mr.n a
gift of nature, then the world is not interested in breaking it down in
order simply that a iew, whose methods of utilizing that gift will
surely destroy it, may realize slight temporary gain. Tlie natioi.s do
not begrudge the enjoyment by Great Britain and some of its colonies
of a monopoly in pearl and other fisheries off their respective coasts,
far out in the open sea beyond territorial waters. And so of the coral
in which France and Italy are interested, and of the fisheries on
which the prosperity of Norway so nmch depends.
This case, then, although new in its special circumstances, because
relating to animals wliich, in many respects, are unlike all other
known animals, is not, to use the words of Chief Justice Holt, new in
the reason or principles of it.
Bringing together tlie principal facts, and the conclusions arising
from them, the case presented by the United States, and upon which it
asks a judgment at the hands of this Tribunal sustaining its claini to
own these seals, not only while they are at their breeding grounds, bat
when temporarily absent therefrom in the high seas in quest of food, is
as follows:
{a) This race of animals is exhaustible in number and is valuable for
imrposes of raiment and food. They are not a ])rodu('t of the sea, for
they are conceived on land, can not be conceived in the ocean, and must,
of necessity, come into existence, and for a considerable part of each
year abide, upon land.
(b) When away from their land home it is for temporary purposes,
and with the absolute certainty that, unless waylaid and killed by pela-
gic sealers, while they are beyond territorial waters, they will return to
that home at a particular time, and remain there for several months,
in every year, during which a proper proportion of their increase
can be readily taken, leaving the herd unimpaired in its integrity.
(c) The land on which they were born — tiie islands of St. Paul and St.
George — became tlie property of tlie United States in 18G7, and has
been maintained for more than a century, fiist, by Eussia, and after-
wards by the United States, exclusively as the habitation of this race,
to which they could resort, in safety, and to which for a period so long-
that tbe memory of man runneth not to the contrary, they liave
regularly resorted, for the purpose of breeding and rearing their young,
and of renewing their coats of far.
{d) While on the islands, during the breeding season , they nre protected
185
at great expense ai^i^inst indiscriminate slangliter bj^ raiders and seal-
hunters In addition, and that tliey may not be nncUily disturbed
while on the breeding' grounds, the United States exebules all persons
from the islands of St. Paul and St. George, except sueh as are required
in connection with the industry there conducted under its authority or
license — that iiulustry being the taking, for puri)oses of revenue and
commerce, such proportion of males as cau be safely taken without
Impairing tlie stock, and forbidding the killing of all female seals. .
(e) On the islands of St. Paul and St. George, during the season, and
at no other place, nor at any other time, cau discrimination be made in
respect to the sex of seals taken for use. Such discrimination is im-
possible when the seals are taken in the ocean.
(/) The taking of these seals in thehigh seas to any extent that isj^rofit-
able to those engaged in it involves the very existence of the race,
because the killing by pelagic hunters of seals heavy with young, or
suckling mothers, or impregnated females, willinevitably result in the
speedy extermination of the race.
(</) So that the taking of these animals at the breeding grounds for
commercial purposes, under regulations that e;iable a proper proportion
of umles to be taken for use, and the killing of them in the open waters of
the ocean, where no discrimination as to sex is possible, is the difference
between iireserving the race for the benefit of the world and its speedy
extermination for the benefit of a few Canadian and American sealers
prosecuting a business so barbarous in its methods that President
Harrison fitly characterized it as a crime against nature.
(/t) Tlie coming of these aninmls from year to year to the Pribilot
Islands and their abiding there, so that their increase can betaken for
man's use without impairing the stock, being due entirely to the care and
supervision of the United States, if that care, industry, and supervision
be onntted or withdrawn, the speedy destruction of the race will cer-
tainly follow. The same result will inevitably follow if pelagic seal-
ing be recognized as a right under international law, to be restrained,
if at all, or effectually, only by a convention to which all the great mari-
time nations of the earth are parties — a convention which all know
could never be obtained; and which, if i)ossible to be obtained under
a:iy circumstances, could not be had until its object, the preservation
of these animals for the use of the world had been defeated in the
meantime by the extermination of the race.
(*) On the other hand, a recognition of the right of property asserted
186
by tlic United States in these animals wonld secure, beyond all qnes-
tion, the preservation of these animals. Natural justice, right reason,
and the interests of mankind, demand that this recognition be given
by this Tribunal; for the United States, alone of all the nations, holds
such relations to these animals, that it can preserve the race from ex-
termination while utilizing it for the purposesfor which it was bestowed
upon man. No possible harm, but only good, can come from a Judg-
ment to that effect. Such a judgment will declare that the law of
nations is adequate to preserve valuable animals whose existence is
endangered by the acts of a few who seek temporary profit for them-
selves in the extcnuiiiation of the race.
For the reasons stated, I am of opinion that these fur seals, con-
ceived, born, and reared on the islands of St. Paul and St. George, be-
longing to the United States, are, when found in the high seas on their
way back to their land home and breeding grounds on those islands,
the property of the United States, and that this right of property is
qualified only in the sense that it will cease, when, but not before, they
cease to have the habit of returning to the Pribilof Islands after their cus-
tomary migration into the open waters of Bering Sea and the North
Pacific Ocean.
If the claim of the United States to own these fur seals rests, in law,
upon a sound foundation, the next inquiry is whether it may protect its
property"? There caw be but one answer to this question. Manifestly it
would have the same authority to protect its proi)erty that an individual
has for the protection of his property. The United States may, to that
eiul, employ any means Avhich the law, under the like circumstances,
permits to an individual for the protection of his property. No one
questions its right to afford protection, to that extent, while the seals
are on its islands, and while they are within territorial waters. That
right — if the United States owns the seals — is not lost while they
are temiiorarilly absent in the high seas, beyond territorial waters;
for, they are rightfully in the high seas, and the United States is right-
fully present Avherever its ships may be in the high seas. It is
scarcely necessary to cite authorities in support of this position.
The Attorney-General of Great Britain concedes that "if the fur seal
is to be treated as an article of property, there is the right to defend
it on the high seas if attacked" — "the ordinary right of defense of x)os.
session which belongs to an individual owner of property.*^
187
But does the riglit of tbe United States to protect tliis race of animals
from extermination b}' pelagic hunters depend upon its o\Miership of
the herd, while the seals are beyond jurisdictional limits in the high
seas'? Does that country have such special iiccuniary interest in the
l)reservation of the race that it may, consistently with the law of
nations and independently of any right of i)roperty in the herd itself,
interpose, if need be by force, to prevent their wanton destruction while
absent from the Pribilof Islands? 1 say wanton destruction, because
110 one can for a moment doubt that pelagic sealing, if it continues to
the extent practiced within the past live years, will soon exterminate
this race.
The principal facts upon which the United States rests the contention
that, independently of property in this herd of seals, it may use such
means as are necessary to prev^ent the destruction of the race by pelagic
sealers, are summarized in the following extracts from the printed argu-
ment of the counsel of the United States:
''Here is a herd of amphibious animals, half human in their intelli-
gence, valuable to mankind, almost the last of their species, which from
time immemorial have established their home with a constant animus
revertendi on islands once so remote from the footsteps of man that
these, their only denizens, might reasoiuibly liave been expected to be
permitted to exist and to continue the usefulness for which the benefi-
cence of the Creator designed them. Upon these islands their young-
are begotten, brought forth, nurtured during the early months of their
lives, the land being absolutely necessary to these x>rocesses and no
other land having ever been sought by them, if any other is, in fact,
available, Avhich is gravely to be doubted.
"The Russian and United States Governments, successively proprie-
tors of the islands, have by wise and careful supervision cherished aiul
])rotected this herd, and have built up from its product a permanent
business and industry valuable to themselves and to the world, and a
large source of public revenue, and which at the same time preserves
the animals from extinction or from any interference inconsistent with
the dictates of humanity.
"It is now proposed by individual citizens of another country to lie
in wait for these animals on the adjacent sea during the season of repro-
duction, and to destroy the pregnant females on their way to the islands,
the nursing mothers after delivery while tem})()rarily off the islands in
pursuit of food, and thereby the young left there to starve after the
188
motliers liave l)een slanglitercd; tlic unavoidable result being tlie
extenniiiation of the whole race and the destruction of the valuable
interests tliercin of the United States Government and of mankind;
and the only object being- the small, uncertain, and temporary profits
to be derived while the i)rocess of destruction lasts, by the individuals
concerned.
^'And it is this conduct, inhuman and barbarous beyond the power
of description, criminal by the laws of the United States and of every
civilized country so far as its municipal jurisdiction extends, in respect
to any wild animal useful to man or even ministering to his harmless
l)leasure, that is insisted upon as a part of the sacred rights of the
freedom of the sea, which no nation can repress or defend against,
whatever its necessity. Can anything be added to the statement of
this proposition that is necessary to its refutation?
''What precedent for it, ever tolerated by any nation of the earth, is
Itroduced? From what writer, judge, jurist, or treaty is authority to
be derived for the assertion that the high sea is or ever has been fiee
for such conduct as this, or that any such construction was ever before
given to the terms 'freedom of the sea' as to throw it open to the
destruction, for the profit of individuals, of valuable national interests
of any description whatever?"
The general proposition deduced from these statements is, that no
individual can be said to liave a right, under international law, to exicr-
minate a race of valuable animals, for the sake simply of the temporary
l)rolit realized from such practices while the process of destruction goes
on ; consequently, it is argued, the United States may, upon the principles
of self-protection or self-i)reservation, employ, even upon the high seas,
such force as is necessary to prevent that destruction and thereby i)ro-
tect the industry which is maintained on its islands for purposes of rev-
enue and commerce as well as for the comfort and maintenance of the
native inhabitants of those islands — the existevcc of which industry dc-
l)ends ahsoliUcly upon the existence of this race of animals.
This proposition is disputed by Her Britannic Majesty, who insists,
by counsel, that her subjects, unless forbidden by the laws of Great
Britain, or by some treaty or convention to which that country
is a party, are entitled under the law of nations to capture and kill
lor use or profit, any atiimals, however valuable, found in the high
seas; that this rigat does not depend in the slightest degree upon
the inquiry whether the particular methods employed in cai)turiug and
189
killing- the animals are or are not barbarous, or whether the prosecu-
tion of the business will or will not result in the speedy extermina-
tion of the race, or in the destruction of the fur seal industry maintained
by, or under the authority of, the United States on its islands; and
that any interference whatever by other nations with the exercise of this
right by British subjects is forbidden by the doctrine of the freedom
of the seas as recognized by international law.
In respect to that branch of the general proposition advanced by the
United States which assumes that pelagic sealing, conducted according-
to the destructive methods and to the extent now practiced, involves the
speedy extermination of the race, and, consequently, the destruction
of the fur seal industry established on the Pribilof Islands, I do not
care to add anything to what has already been said by me; for it can
not be disputed, under the evidence, that such results will speedily
follow from unrestrained pelagic sealing. But is it not equally clear
that the subjects of Her Britannic. Majesty are not entitled, of rU/ht,,
under the law of nations, thus to exterminate a race of useful animals"?
Certainly no such right is recognized in the municipal law of any civ-
ilized country, much less in the law of nations which, all writers agree,
rests i)rimariiy upon those i)rinciples of natural justice and morality, and
those distinctions between right and wrong which, in the words of
Cicero, are "congenial to the feelings of uature, difl'used among all
men, uniform, eternal, commanding- us to our duty, prohibiting eveiy
violation of it — one eternal and immortal law, which can neither l>e
repealed nor derogated from, addressing itself to all nations and all
ages, deriving- its authority from the common Sovereign of the universe,
seeking no other lawgiver and interpreter, carrying home its sanctions
to every breast, by the inevitable punishment He inflicts on its trans-
gressors."
There is fair room for discussion as to whether the annihilation of this
race of useful animals by individuals or associations of individuals,
while such animals are in the high, seas, can be legally prevented in
any other mode than by a treaty or convention that will control equally
the citizens or .subjects of all nations. But the mind instantly recoils
from the suggestion that such practices are in the exercise of a right
protected by the law of nations, and must be submitted to by the United
States, however injiuious they may be to its material interests. A
declaration by this Tribunal, in express words, or by the necessary effect
of its awardj that the destruction, from mere tcantonnessj of useful aui-
190
iiials, is in the exercise of a right secured or protected, by tlie law of
nations, would shock the moral sense of mankind. But, in principle,
there can be no difference between the destruction from mere wantonness
of these useful animals, and their destruction, for temporary gain, by
methods that are inhuman and barbarous, and which will surely result
in the speedy extermination of the entire race, thereby defeating the
beneficent purposes for which they have been bestowed by the Creator
upon man.
If it be said tliat these animals are given to mankind for their use, and
that the taking of them in the high seas is only one mode of utilizing
them, the answer is, that the obligations arising from the relations which
men and states must sustain to each other forbid any mode of taking
them that is plainly incompatible with tlie existence of the race, and,
therefore, destructive of such use. Paley says that from reason or reve-
lation, or from both together, " it appears to be God Almighty's intention
that the productions of the earth should be applied to the sustentation ot
human life;" and, "consequently, all waste and misapplication of these
productions is contrary to the divine intention and Avill, and therefore
wrong, for the same reasons that any other crime is so." Among the
illustrations given by the author of such wrongs or crimes is the "dimin-
ishing the breed of animals by wanton or improvident consumption of
the young, as of the spawn of shellfish or the fry of salmon, by the use
of unlawful nets or at improper seasons." Paleifs Moral Philosophy^
c. XI. Ahrens, in his Course of Il^atural Law, states, as the result of
rational principles to which the right of ])roperty and its exercise are
subjected, "that property exists for a rational purpose and for a rational
use; it is destined to satisfy the various needs of human life; conse-
quently all arbitrary abuse, all arbitrary destruction, are contrary to
right. " Vol. 2, ed. 1876, Blc. J, div. 1, 61; ed. 1860, p. 356. Schouler, in his
Treatise on the Law of Personal Property, says: " Nature teaches the
lesson, doubly enforced by revelation, that the right of the human race
to own and exercise dominion over the things of this earth in successive
generations carries with it a corresponding moral obligation to use,
enjoy, and transmit in due course for the benefit of the whole human
race, not for ourselves only, or for those who preceded us, but for all
who are yet to come besides, that the grand purpose of the Creator
and Giver may be accomplished."
Thiers, in his Treatise on Projierty, says that experience demonstrates
the absolute necessity of the institution of proi^erty, its appropriateness,
191
its usefulness; that property is a general, constant, universal fact, as
indispensable to tlie existence of man as liberty is to his welfare; that,
in all ages and in all countries, man has instituted property as the nec-
cessarj^ reward of labor, and that property has become a law of his
species. Bl: ii, cltopters 1, 2, 3, and i. But no writer has ever main-
tained the monstrous proposition that society when instituting prop-
erty, recognized the wanton, reckless extermination of a race of useful
animals as one of the rights inherent in man, or as tolerated by the prin-
ciples of justice, benevolence, and right which constitute the basis of
the law of nations. All will concede that one of the great objects, if
not the supreme object, which society exi)octedto accomplish by the
institution of property, was to preserve and increase those things, ani-
mate and inanimate, that are bestowed upon man for his use. Man-
kind is entitled to participate in the enjoyment of the things thus be-
stowed upon the world, and that it may do so, society recognizes the
right of every one to ajipropriate to his own use such things as suscepti-
ble of ownership, have not been appropriated by others. He is allowed,
under given circumstances, to appropriate to himself, exclusively, val-
uable animals ferce natiirw, but he may not, of right, exterminate the
race itself.
If, by care, industry, and self-deuial, he can bring the race under
such control that he, and he alone, is able to deal with it as a wlioJe^
taking the increase without diminishing the stock, then as I have
alread endeavored to show, a lecognitiou of a rigiit of property in
him is not only a fair and just return for the care, industry, and self-
denial bestowed by him, but is consistent with the objects for which
property has been instituted. But he cannot, without committing a
wrong against society, exterminate the race itself, either from mere
wantonness or by the employment of methods that inevitably lead to
that result.
With entire truth, therefore, it may be said that the extermination
of tbis race of animals by the destructive methods of pelagic sealing,
involving necessarily the killing in vast numbers of female seals heavy
with young or nursing their pups, or impregnated, is a crime against the
law of nature, and consequently without any sanction whatever in thelaw
of nations. That law, indeed, recognizes the freedom of the seas for the
peoples of all nations, and no nations have stood more firmly by that
doctrine or are more interested in its enforcement than Great Britain
and the United States. But I have not found in any treatise upon in-
192
teruational law, or iu the judginciit of any court, a hint even that this
doctrine confers njion individuals or associations a right to enii)loy
methods for the taking of useful aiiiuinls found in the high seas which will
exterminate the race, when all know, or may easily know, that such
animals maybe readily taken at their breeding grounds, and not else-
where, by methods that regularly give their increase for man's ut^e
without at all imi)airiug or diminishing the stock. One method results
in the extermination of the race, whereby the object of its creation is
entirely defeated ; the other results in its preservation, whereby that
object is secured. It is inconceivable that the law of nations gives or
recognizes the right to employ the former.
No civilized nation does or would permit, within its own territory, the
destruction or extermination of a race of useful animals by niethods at
once cruel and revolting. And yet it is said that such conduct, if
practiced on the high seas, tlio common highway of all peoples, is
protected by international law which rests, as jurists and courts agree,
primarily ui)on those principles of morality, justice, right, and humanity,
by which the conduct of individuals and states are, and ought to be,
guided. Tlius the law to which all civilized nations have assented
is made, by the contention in question, to cover and protect acts wliich
110 one oj those nations woidcl, for an instant, tolerate icithin its limits.
It is beyond all comprehension that an act which every civilized man
must condemn can be justified and sustained as having been done in
the exercise of a right given or secured by a law based upon the assent
of. nations.
That I am correct in saying that no nation would permit, witliin its
territory, any methods for the taking of useful wild animals that would
result in the speedy exterminatioii of the race is shown by reference
to the legislative enactments and regulations in different countries for
the luotection of valuable animals, the basis of important industries,
against the reckless conduct of those who consult temporary gain for
themselves at the expense of the rights of the general public.
But it is said: " Grant that the taking of these animals in the high
seas, by methods destructive of the race, is not a right under the law
of nations J grant that the employment of such methods is inhuman and
injurious to the best interests of mankind; grant that the fur seal
industry maintained at the Pribilof Islands depends absolutely upon
these animals not being killed while they are temporarily in the high
seas m search of food, or while they are on their way back to their
193
breeding grounds; by wliat autlionty does the United States interfere
with the niovenicnts of the subjects of other countries on the high
seas, and by tlie use of force prevent them from taking these animals
while they are beyond the jurisdictional limits of that country?"
This question proceeds upon the ground — propounded, not, indeed, in
words, but, in effect, by the argument of counsel — that, without support
from treaties or conventions between the maritime nations of the world,
the United States is powerless, undei- the law of nations, to preserve the
industry established and maintained by itat the Pribilof Islands against
the lawless acts of individuals upon the high seas. These acts are so
characterized, because the killing of these fur seals in the high seas,
as now practiced, wliere no discrimination as to sex is possible, and
when the extermination of the race will be the inevitable result of such
killing, is forbidden by every consideration of humanity, reason, and
justice. And, in view of the facts disclosed by the record, it is clear
that the killing of these animals by pehigic sealers, while they are in
the high seas, on their migration-route, is as certainly destructive of
the industry maintained by the United States at the Pribilof Islands
as if the X)elagio hunters came personally to the islands^ during the breed-
ing season^ and engaged' therein the indiscriminate slaughter of the ani-
mals, without regard to their sex or age.
That the United States can rightfully contr<d the killing of these
animals both on the Pribilof Islands and witliin its territorial waters will
not be disputed. This much, all admit, may be done in virtue of its
sovereignty over such country and waters. But as the important
industry maintained on the islands can be preserved only by preventing
tiie destruction of these animals after they have passed beyond terri-
torial waters into the high seas, n-ith the intention of returning to
their breeding grounds the succeeding spring and summer, does not
the right of self-protection or self-preservation, which belongs to every
independent luxtion, entitleit to protect these animals while temporarily
absent from their land home ? Vattel says : " In vain does nature prescribe
to nations, as well as to individuals, the care of self-preservation, and
of advancing tlieir own perfection and happiness, if she does not give
them aright to preserve themselves from everything that might render
this care ineffectual. * * * K very nation, as well as every man, has,
therefore, aright to prevent otlier nations from obstructing her preser-
vation, her perfection, and hap[)incss — tliat is, to preserve herself from
all injuries; and tliis right is a perfect one, since it is given to satisfy
11492 13
194
ii natural indispensable obligation; for wLcn we can not nse constraint
in order to cause onr rights to be resi)ected their etfccts are very un-
certain. It is this right to preserve itself from all injury that is called
theriffkt of security ." BJc.2,c. 4. Dr. Phillimore, in his Commentaries on
Internationiil Law, says: "The right of self-preservation is the first
law of nations, as it is of individuals. A society which is not in a con-
dition to repel aggression from without is wanting in its principal duty
to the members of which it is composed and to the chief end of its in-
stitution. All meaus which do not affect the independence of other
nations are lawful for this end. ISTo nation has a right to prescribe to
another what these means shall be, or to re(iuire any account of her
condnct in this respect." Again, the same author: "We have hitherto
considered what measures a nation is entitled to take for the i)reserva-
tion of her safety icithin her dominions. It may happen that the same
right may warrant her in extending precautionary measures ivithout
these limits, and even in transgressing the borders of her neighbor's
territory. For international law considers the right of self-preserva-
tion as prior and i)aramouut to that of territorial inviolability, and,
where they conflict, justifies the maintenance of the former at the
expense of the latter right." 1 Phillimore, 252-253, c. 10, §§ 211, 214,
2d eel. Hall says : " In the last resort almost the whole of the duties
of states are subordinated to the right of self-protection. * * *
There are, however, circumstances falling short of occasions upon
which existence is immediately in question, in which through a sort of
extension of the idea of self-i^reservation to include self-protection
against serious hurt, states are allowed to disregard certain of the
ordinary rules of law, in the same manner as if their existence were
involved." Hall Int. Law, PI. II, (J. 7, 2 ed., p. 244.
It has been suggested that the doctrine of self-protection, referred
to by writers upon international law, has application only where tlie
acts against which the state defends itself involve its existence, inde-
pendence, or safety, or the inviolability of its territory, and do.not justify
in time of peace, any exercise of authority or i;)ower by a state, beyond
its jurisdictional limits, in order merely to prevent the doing of that
which, in its direct effects, will work injury to its material interests.
A familiar illustration of the extent to which a State may go in
defending its existence or providing for its safety, is that of a blockade
which interferes with the commerce of neutral nations. " The greatest
liberty," Manning says, "which law should allow in civil government
-S the power of doing everything that does not injure any other person,
195
and the greatest liberty wliicli justice among nations deinaiuls is that
every state may do anything that does not injure any other state with
which it is at amity. The freedom of commerce and the rights of war,
both undoubted as long as no injustice results from them, hecome ques-
tionable as soon as their exercise is grievously injurious to any independ-
ent state, but the great difference of the interest concerned malces
the trivial nature of the restriction that can justly be placed upon
neutrals appear inconsiderable when balanced against the magnitude
of the national enterprises which unrestricted neutral trade might com-
promise. That some interference is justifiable will be obvious on the
consideration that if a neutral had the power of unrestricted commerce
he might carry to a port blockaded and on the point of surrendering,
provisions which would enable it to hold out and so change the whole
issue of a war; and thus the vital interests of a nation might be sacri-
ficed to augment the riches of a siugle individual." Manning'' s Laio
of Nations, Bl\ 3, c. 3.
The force of this principle is not lessened by the suggestion that it
relates to a time of war, to the riglits of belligerents. The right of self-
protection or self preservation is as complete and perfect in time of
peace as in time of war. The means employed when war prevails may
not always be used in a time of peace. The test, both in war or in
peace, is whether the particular means used are necessary to be employed
for purposes of self-protection against wrong and injury.
Undoubtedly, the general rule that a state may employ such means for
its self-preservation as are necessary to that end, is subject to the quali-
fication stated by Mr. Chitty in his notes to the 7th American edition
(1849) of Vattel, namely, that a nation has the right, in time of peace or of
war, to diminish tlie commerce or resources of another by fair rivalry and
other means not in themselves unjust, precisely as one tradesman may by
fair competition undersell his neighbor and thereby alienate his cus-
tomers. P. 142. But this qualification is wholly inapplicable to the
present case, for the reason that the killing of these animals iu tlie
high seas, by seal hunters, is in itself unjust, and as I have attempted
to show, does not rest upon any right secured by the law of nations to
those who are engaged in that mode of taking them. It is equally true
that the commonest and simplest form in which the doctrine of self-
l^reservation is illustrated is in cases where a nation employs force
beyond its own limits, either on the high seas or within the limits of
another state, in order to meet a threatened attack upon its existence
or a threatened invasion of its territory. But 1 am aware of no author-
196
ity for tbe broad statoiTient that a nation may not use, npon tlie higb
seas, in time of peace, sucli force as is necessary to prevent the com-
mission of acts which liave no sanction in the hiws of nations, are in
Themselves wrong, and, if committed, will inevitably destroy imjiortant
industries established and maintained by that nation within its territory
for purposes of revenue and commerce. The nation thus employing
force for the protection of its lawful industries does not thereby appropri-
ate to itself any part of the ocean, or extends its dominion, or inter-
fere with an innocent use of the sea for purposes ot navigation or
fisliing. It only prevents the doing of what can not be rightfully
done, and thereby i^reserves what no one has a right to dcotroy. The
doctrine of the freedom of tlie seas does not authorize or sanction tlie
destruction of the material interests of a nation by means of acts done
on the high seas which are in themselves unjust and wrong, l)ecause
hostile to the interests of mankind, and contrary to those rules of mor-
ality, justice, and right reason which govern the conduct of individuals
and nations witli each other. Mr. Blaine well said: "The law of the
sea is not lawlessness. Nor can the law of the sea and the liberty
which it confers and which it jirotects be perverted to justify acts
which are immoral in themselves, which inevitably tend to results
against the interests and against the welfare of mankind."
As declared by Mr. Justice Story, speaking for the Supreme Conrt of
the United States, in the case of the Marianna Flora [11 Wlieatoii, 1, 42) :
" Upon the ocean, then, in time of peace, all possess an entire equality.
It is the common highway of all, appropriated to the use of all 5 and no
one can vindicate to himself a sn^ierior or exclusive prerogative tliere.
Every ship sails there with the unquestionable right of pursuing her
own lawful business without interruption; but, whatever be that busi-
ness, she is bound to pursue it in such a manner as not to violate the
rights of others. The general maxim in such cases is sic utero tuo, ut
non alienum Iceclas." Observe, that the business upon the high seas, the
uninterrapted prosecution of which is protected by the doctrine that
the free use of the ocean for navigation and fishing is common to all
mankind, is that which is " lawful." This doctrine can not be invoked
to support the use of the high seas for the perpetration of wrongs or
injuries. On the contrary, the principal ground on which that doctrine
rests is that the sea is so vast in extent, and so inexhaustible in its pro-
ducts, that its free use for purposes of navigation and fishing can do no
harm to any one.
Twiss, in his work upon the Law of iTations, after observing that
197
tlie open sea is by nature not capable of being reduced into tlie posses-
sion, or being effectively occupied, or brouglit under the empire of one
nation, says: "But independently of these iiiaurmountablo difificnlties,
the use of the open sea, which consists in navigation, is innocent and
inexhaustible; he who navigates upon it does no harm to any one^ and
the sea in tlrs respect is sufficient for all mankind. But nature does
not give to man a right to appropriate to himself things which may be
innocently used by all, and tchich are inexhaustible and sufficient for
all. For since those things, whilst common to ^all, are sufficient to
supply the wants of each, whoever should attempt to render himself
sole proprietor of them (to the exclusion of all other participants) would
unreasonably wrest the bounteous gifts of luiture from the parties ex-
cluded. Further, if the free and common use of a thing, which is in-
capable of being aijpropriated, was likely to be prejudicial or dangerous
to a nation, the care of its own safety would authorize it to reduce that
thing under its exclusive empire, if possible, in order to restrict the use
of it on the part of others, by such precautions as prudence might dic-
tate. But this is not the case with the open sea, upon which all i^er-
sons may navigate without the least prejudice to any nation whatever,
and without exposing any nation thereby to danger. It would thus
seem that there is no natural warrant for any nation to seek to take
possession of the open sea or even to restrict the innocent use of it by
other nations." Again, the same author: " The right of fishing in the
open sea or main ocean is common to all nations, on the same i)rinciple
which sanctions the common right of navigation, namely, that he who
fishes in the open sea does no injury to any one, and the products of
the sea are in this respect inexhaustible a)id sufficient for alV^ 2\ciss,
Law of Nations, Title, Right of the Sea G. 11, §§ 172, 185. So Gro-
tius: "It is certain that he who would take j)ossession of the sea by
occupation could not prevent a peaceful and innocent navigation; such
a transit can not be interdicted even on land, though ordinarily it would
be less necessary and more dangerous." Blc. 2, c. 3, § 12, page
445. Vattel: "It is manifest that the use of the open sea which
consists in navigation and fishing is innocent and inexhaustible :
that is to say, he who navigates or fishes is sufficient for all man-
kind." Chap. 33, Sec. 291. Azuni, in his work on the Maritime
Law of Europe, well says that the sea is intended by Providence
to be common to the different nations of the world, "to contribute
to the wants, the commerce, the well-being and the prosperity of ail who
198
liavetlie means of n a vi grating' its surface" — not that it may be used of
right to the injury of mankind in order that a few may reap a temi)orary
profit from the destruction of that which has been bestowed for the
benefit of all. Pt. 1, c. 1, § 11. In view of these authorities^how can it be
said that the doctrine of the freedom of the seas justifies and protects
the use of the seas for the purpose or with the inevitable effect of destroy-
ing a race of valuable animals, limited in numbers, easily exhaustible
by waste, and in the preservation of which all mankiiul is interested"?
If the United States does not own this herd of seals, and if, in order
that they may reap temporary jiroflt, British subjects may, of right,
exterminate it when found in the high seas, and temporarily absent
from its land home, and thus destroy an important industry maintained
for more than a century within the present territory of the United States,
then, I admit, that any interference by the United States with the hunt-
ing and killing of these animals in the high seas by British subjects would
be a marine trespass of which their country could rightfully complain.
But I deny that any use of the seas for the purpose, or with the cer-
tainty, of producing that result, is a lawful use of the ocean, or that
the right of the United States to preserve its material interests, thus
directly attacked, depends upon the consent of other countries to be
manifested by treaty or legislation. The nation, whose interests are
thus assailed may stand upou its inalienable right of self-protection,
and by force, if need be, prevent the commission of such acts, even if
it may not in its own courts inflict jiersonal punishment for such wrongs
upon the subjects of other countries who commit them. If it employs
for its self-protection more force than is reasonably necessary it will be
responsible therefor to the country upon whose subjects such force is
used. But its inability to inflict such jDunishment, in its own courts,
can not affect its right, by such force as is necessary, to preserve its
material interests by repressing the acts of wrongdoers directly injurious
to those interests. When the books speak of the equal rights of all people
to use the ocean for purposes of navigation they mean navigation for
purposes that are innocent and lawful, and not for purposes which are,
in themselves, unjust and injurious to others.
These views are not at all in conflict with the general rule that a
state may not exercise sovereign authority or jurisdiction beyond the
line of territorial waters, whether that line be a marine league from its
shores, or at such distance as may be measured by cannon shot. That
rule has its origin in the necessity which every state is under to provide
for the safety of its own people and interests. But the right of self-
199
protection or self-prcservntioii dcics not end with tlie outer line of mar-
ginal or territorial waters. In tlie very nature of tilings it eould not
end with that line without rendering the right valueless.
Rutherford, in his Institutes oflSTaViiral Law, gives expression to views
upon the doctrine of self-protection which are universallv accepted.
He says: "In short, the true principles upon which our right of
defending either our persous or our goods depends is this: The law of
nature does not oblige us to give them up when any one has a mind to
hurt them, or to take them from us; and that the law of nature does
not oblige us thus to give them up, is evident; because our right to
them would be unintelligible, or would, in etiect, be no right at all if
we were obliged to suffer all mankind to treat them as they pleased,
without endeavoring to prevent it. If this, then, is the principle upon
which the right of defense depends, we can not expect to find that the
law of nature has exactly defined how far we may go, or what we may
lawfully do, in endeavoring to prevent an injury which anyone designs
and attempts to do us. The law allows us to defend our persons or
our property; and such a general allowance implies that no particular
means of defense are prescribed to us. We may, however, be sure
that whatever means are necessary must be lawful, because it would
be absurd to suppose that the law of nature allows of defense, and yet
forbids us at the same ^ime to do what is necessary for this purpose."
Blc. 1, c. IG, 2(1 American ed.
An illustration of these principles is furnished by the case in
the Supreme Court of the United States of Church vs. Huhhart [2
CrancKs Reports^ ISO, 231), decided in ISQl. That was an action upon
policies of insurance upon the cargo of a vessel, which contained pro-
visions exempting the insurance company from liability in case of a
seizure of the vessels by the Portuguese for illicit trade. During the
life of the policies the vessel was seized by the Portuguese and con-
demned iu one of its municipal tribunals for a violatiou by it of the
laws of Portugal prohibiting commercial intercourse between its colo-
nies and foreign vessels. On behalf of the insured it was contended,
among other things, that the policy of insurance did not exempt the
company from liability, unless the seizure was justified by the laws of
Portugal and by the law of nations. His counsel said: "The sentence
does not go on the grouiul of illicit trade. At most it only expresses a
suspicion. The vessel was seized five leagues from the land, at anchor
on the high seas. The seizure was not justified by their [Portuguese]
laws. She was not within their territorial jurisdiction. By the law
200
of nations territorial jurisdiotioii can extend only to the distance of
cannon sliot fiom tlie sliore. Vattel, B. 7, c. 33, s. 280, 289. A vessel
lias a ri^i;ht to hover on the coast. It is no canse of condciiinatioii. It
can, at most, justify a seizure for the purpose of obtaining- security that
she will not violate the laws of the country. The law which is pro-
duced forbids the vessel to enter a port, but does not authorize a seiz-
ure upon the open sea. Great Britain, the greatest commercial nation
in the world, has extended her revenue laws the whole length of the
law of nations, to prevent smuggling. But she authorizes seizures of
vessels only within the limits of her ports, or within two leagues of
the coast; and then only for tlie purpose of obtaining security". 4 Bac.
Abr., 543. Counsel for the insurance company, referring to the rule
cited from Vattel, and observing that it had reference only to the
rights of a neutral territory in time of war, said: "It is a very indefi-
nite rule indeed, even for the purjiose to which it extends, for it makes
the extent of a nation's territory depend upon the weight of metal or
projectile force of lier cannon. It is a right which must resolve itself
into power, and comes to this, that territory extends as far as it can be
made to be respected. But this principle does not apply to the right
of a nation to cause her revenue and colonial laws to be respected.
Here all nations do assume at least a greater extent than cannon shot;
and other passages from Vattel show the distinctions which are
acknowledged on this i^oiut."
I have given these extracts from the arguments of counsel to show
that the question was distinctly presented whether the seizure of the
vessel by the Portuguese autliorities, outside of its territorial waters
five leagues from land, was, for that reason merely, illegal under
the law of nations. Uiion this question the Supreme Court of the
United States, speaking by Chief Justice Marshall, said:
"That the law of nations prohibits the exercise of any act of authority
over a vessel in the situatiou of the Aurora, and that this seizure is,
on that account, a mere marine trespass, not within the exception, can-
not be admitted. To reason from the extent of protection a nation will
afford to foreigners to the extent of the means it may use for its own
security does not seem to be perfectly correct. It is opposed by princi-
ples which are universally acknowledged. Tlie authority of a nation
within its owu territory is absolute and exclusive. The seizure of a
vessel within the range of its cannon by a foreign force is an invasion
of that territory, and is a hostile act which it is its duty to rex>el. But
201
its i)ower to secure itself from injury may certainly be exercised beyond
the limits of its territory. Upon this principle the riglit of a belligerent
to searcli a neutral vessel on the hia'h seas for contrabrand of war is
universally admitted, because the belligerent has aright to prevent the
injury done to himself by the assistance intended for his enemy; so too
a nation has a right to prohibit any commerce with its colonies. Any
attempt to violate the laws made to protect this right is an injury
to itself which it may prevent, and it has a right to use the means
necessary for its prevention. These means do not appear to be limited
witiiiu any certain marked boundaries, which remain the same at all
times and in all situations. If they are such as unnecessarily to vex
and harass foreign lawful commerce, foreign nations will resist their
exercise. If they are such as are reasonable and necessary to secure
their laws from violation, they will be submitted to.
"In different seas, and on different coasts, a wider or more contracted
range, in which to exercise the vigilance of the government, will be
assented co. Thus in the channel, where a very great part of the com-
merce to and from all the north of Europe passes through a very narrow
sea, the seizure of vessels on suspicio4i of attempting an illicit trade must
necessarily be restricted to very narrow limits; but on the coast ot
South America, seldom frequented by vessels but for the purpose of
illicit trade, the vigilance of the government may be extended some-
what further; and foreign nations submit to such regulations as are
reasonable in themselves, and are really necessary to secure that
monopoly of colonial commerce which is claimed by all nations holding-
distant posessions.
"If this right be extended too far, the exercise of it will be resisted.
It has occasioned long and frequent contests, which h?.ve sometimes
ended in open war. The English, it will be recollected, complained of
the right claimed by Spain to search their vessels on the high seas
which was carried so far that the guarda castas of that nation seized
vessels not in the neighborhood of their coasts. This practice was the
subject of long and fruitless negotiations, and at length of open war.
The right of the Spaniards was supposed to be exercised unreasonably
and vexatiously, but it never was contended that it could only be
exercised within tlie range of the cannon from their batteries. Indeed,
the right given to our own revenue cutters, to visit vessels four leagues
from our coast, is a declaration that in the opinion of the American
Government no such principle as that contended for has a real exist-
ence." Church vs. Huhhart, 2 Cranch, 187, 231, 235.
202
The diligence of learned counsel lias not brought to light any ad-
judged case, either in England or in America, which is in conllict with
or modifies to any extent the principles announced in Church vs. Huh-
hart. If the judgment in that case is consistent with the settled prin-
ciples of international law, it must follow that the right of the United
States to prevent the extermination of a race of animals upon whose
existence depends an important industry maintained within its limits —
an industry which is a source of revenue, and is directly connected
with the government of the native inhabitants of the Pribilof Islands —
is not to be denied upon the ground merely that such force, to be effect-
ive to accomplish that end, must be used on the high seas beyond its
territorial waters.
It is a fact, not without interest, that the decision in Church vs.
Huhhart was referred to with approval in the opinion of Lord Chief
Justice Cockburn (concurred in by Lush and Field, J. J. and Pollock B.)
in the great case of The Queen vs. Keyn [L. B. 2 Uxch. Div., 63,
214). The principal question in that case was whether an English
criminal court had jurisdiction to try a foreigner, charged with the
offense of manslaughter committed by him on his vessel, a foreign ship,
while it was passing within three miles of the shores of England on a
voyage to a foreign i^ort. In the course of his opinion, the Loixl Chief
Justice said : "I pass on to the statutory enactments relating to foreign-
ers within the three-mile zone. These enactments may be divided, 1st,
into those which are intended to protect the interests of the State and
those which are not; 2d, into those in which the foreigner is expressly
named, and those in which he has been lield to be included by impli-
cation only. Hitherto legislation, so far as relates to foreigners in
foreign ships in this part of the sea, has been confined to the main-
tenance of neutral rights and obligations, the prevention of breaches
of the revenue and fishery laws, and, under particular circumstances,
to cases of collision. In the first two, the legislation is altogether irre-
spective of the three-mile distance, being founded on a totally differ-
ent principle, namely, the right of a state to tal^e all necessary meas-
ures for the protection of its territory and tights and the i)revention
of any breach of its revenue laws. This principle was well explained
by Marshall, 0. J., in the case of Church vs. Hubbart (2 Cranch, 234)."
After quoting what appears in the above extract from the opinion of
Chief Justice Marshall, the Lord Chief Justice proceeds: "To this
class of enactments belong the acts imposing penalties for the viola-
203
tion of neulriility and tlie so-called 'Hovering Acts' and acts relating
to the customs."
I have not understood counsel to question the validity, under the
law of nations, of the statntes of either England or the United States,
commonly 'known as hovering acts, by which those countries assume
to exert their authority (if need be, employing force) beyond the line of
territorial waters, when that becomes necessary for the protection of
her revenue against those who intend to violate their customs laws
and regulations. This is done, to repeat the words of Lord
Chief Justice Cockburu, in the exercise of "the right of a state
to take all necessary measures for the protection of its territory and
rights and the prevention of any breach of its revenue laws." Suppose
individuals should organize in England a plan for smuggling goods
into the United States in violation of its revenue law, and to that end
should load a vessel at Liverpool with the goods thus intended to be
introduced clandestinely into the United States aiul sail from one of the
ports of that country in direct execution of their illegal scheme. Would
any one doubt the right of the United States, if the circumstances
made that course necessary, to authorize the seizure of the goods in
mid ocean and confiscate them? Must the United States, in such a
case, forbear to take any steps whatever for the protection of its rights
and its revenue until the vessel gets near to its coasts'? Ui)on what
pririciple can the right to cause such seizure outside of territorial waters
and within the distance from the shore fixed by hovering acts, be any
gi-eater than that of seizing, under the circumstances stated, in mid-
ocean ?
Supi)0se, again, that a vessel laden with rags infected with yellow
fever were on its way to one of the ports of the United States. Can any
one doubt that the government of that country would be entitled, under
the law of nations, to cause the seizure of the infected rags in mid ocean
and their destruction, if that mode of proceeding were, under all the cir-
cumstances, necessary to protect its people against the danger of yellow
fever ?
It seems to me that the question as to the extent to which a nation
may go in protecting its rights depends entirely on the circumstances of
each particular case. If the rights assailed are such as the nation may
defend and preserve against the wrongful acts of others, then it may
employ, ft^ the iilace of attach, from tvhich the injury proceeds, certainly, if
that place he notioithin the exclusive jurisdiction of another poiver, all the
204
means necessary to prevent the commission of tliose acts. In the case
before us it appears, by overwhehning evidence, that if prelagic sealing
continues to any material extent, the important industry which the
United States has established and maintains, at great expense, on the
Pribilof Islands, for purposes of revenue and commerce, and for the
benefit of all countries, must perish by the acts of individuals and as-
sociations of individuals committed beyond its jurisdictional limits, on
the high seas, where the ships and peoples of all nations are upon an
equality — an industry which has never been interfered with until pelagic
sealers devised their barbarous methods for slaughtering female seals,
some impregnated, some heavy with young, and others suckling mothers
in search of food for the sustenance of themselves and their offspring.
If, as already suggested, these acts are done in the exercise of a right
recognized and secured by the law of nations, then they can not be
prevented or restrained by the United States, however injurious they
may be to any business conducted within the territory of that nation.
But if those acts are not recognized and protected by the law of nations;
if no one can claim that all the nations have assented to the doing of that
on the high seas which no single nation would permit to be done within
its own territory; in short, if no one has the right, for mere temporary
gain, to destroy useful animals by methods that will inevitably and
speedily result in the extermination of the race, then the United States,
whose revenue aiul commerce are directly involved in the preservation of
that race, may, consistently with the law of nations, protect its interests
by preventing the commission of those wrongful acts.
If the views which I have expressed are shared by a majority of the
Arbitrators, the answer to the fifth question of Article VI of the treaty
should be
That the herd of fur seals frequenting the islands of St. Paul and St.
George in Bering Sea, when found in tlie ocean, beyond the ordinary
three-mile limit, are the property of the United States, and as long as
these animals have the habit of returning from their migration-routes
to, and of abiding upon, those islands, as their breeding grounds,
so that their increase may be regularly taken there, and not elsewhere,
without endangering the existence of the race, that nation, in virtue of
its ownership of such herd and islands, may rightfully employ, for the
protection of those animals against pelagic sealing, such means as the
law i)ermits to individuals for the protection of their property; and,
That independently of any riglit of i^roperty in the herd itself, the
205
United States, siini)ly as the owner of the fur seal industry inaintained
by its authority on the ishiuds of St. Paul and St. George, and under
the doctrine of self- protection, may employ such means, including force,
as may be necessary to i^revent the commission of acts which will
inevitably result in the speedy extermination of this race of animals,
the basis of that industry, while they are in the high seas beyond terri-
torial waters, and temporarily absent from their breeding grounds or
land home on those islands.
4.
COIVCITRKENT REOUT. ATIOIVS.
The Tribunal having determined that the Government of the United
States has no authority or jurisdiction in Bering Sea, beyond the ordi-
nary limit of territorial waters, except such as appertains equally to all
nations, and that it has no right of property in, nor any right toi)ro-
tect, the fur seals frequenting its islands in that sea, when they are
found outside of the ordinary three-mile limit, what is our duty in
respect to Concurrent Eegulations for the protection and preservation
of these animals?
We have seen that by the Seventh Article of the Treaty, under
which the Tribunal is proceeding, it is provided:
"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 Eegulations for the proper protection and preservation of the fur
seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall
then determine what con<;urreat Eegulations outside the jurisdictional
limits of the respective Governments are necessary, and over what
waters such Eegulations should extend, and to aid them in that deter-
mination the report of a Joint Commission to be appointed by the
respective Governments shall be laid before them, with such other
evidence as either Government may submit.
"The High Contracting Parties furthermore agree to cooperate in
securing the adhesion of other powers to such Eegulations."
It is unnecessary to determine whether the words " foregoing ques-
tions" in this Article refer to the questions specifically mentioned in
Article VI, or to those of a more general character enumerated in
Article I of the Treaty. In either case, we must proceed to consider
the subject of Eegulations; for, if the United States has no "exclusive
jurisdiction" over the waters traversed by these seals in their annual
migrations (as clearly it has not); if, as the majority of the Arbitrators
206
have declared, that I^ation does not owu tliis lierd of seals when they
are in the high seas, beyond jurisdictional limits, and can not, in
virtue of any power it possesses, protect them against pelagic sealing;
and if, as the same majority hold, British subjects at any time, or by
any methods they choose to employ, may, when unrestrained by the
laws of their own country, capture and kill these animals, while they
are in the open waters of the ocean, and witliout limit as to the num-
bers so taken, it is too clear to admit of discussion that the concurrence
of Great Britain is necessary in the establishing of regulations appli-
cable to its own subjects and to waters outside the jurisdictional lim-
its of the respective Governments. So that it must now be decided
by the Tribunal, whether concurrent regulations are necessary for "the
proper protection and preservation" of the seals while they are in the
high seas, beyond territorial waters? If so, over what waters shall
such regulations extend, and to what extent must pelagic sealing be
restricted ?
If I have not misapprehended what has been said by Arbitrators
during this Conference, we are all agreed that regulations of some kind
are necessary; indeed, that an adjournment of this Tribunal without
its having prescribed regulations "for the proper protection and preser-
vation of the fur seal in, or habitually resorting to, the Bering Sea,"
would be regarded as a violation of duty upon the ijart of its members.
It has been suggested thnt the Tribunal is without power, under the
treaty, to establish any regulations that will have the effect to suppress
altogether the business of taking these animals, in the high seas, by
the citizens of the respective countries here represented; and that
the duty of this Tribunal — it having been decided that pelagic sealing
is not forbidden by the law of nations — is to prescribe regulations
that will not injure, to any material extent, much less destroy, the
business of pelagic sealing. I had occasion, at one of the early sessions
of this Tribunal, to express my views as to its powers or competency,
under the treaty, in respect to regulations. My opinion then was, and
is now, that the Tribunal has the power, and is under a duty, from
the discharge of which it may not shrink, to prescribe whatever regu-
lations are necessary for the protection and preservation of these seals
when in the high seas. If that end can not be accomplished otherwise
than by regulations, which either expressly or by their operation, pro-
hibit all pelagic sealing, then it is our duty to prescribe regulations of
that character.
207
But it is said tbat, as the two governments have agreed "to coop-
erate in securing the adhesion of other powers to such regulations" as
may be established, the Tribunal must do notlung likely to defeat any
effort that may be made to obtain this adhesion of other nations. If
we lind from the evidence — and, in my opinion, the evidence conclu-
sively shows — that this race can not be preserved, but will be entirely
destroyed for all commercial purposes if pelagic sealing is permitted to
any material extent, then our duty is to make regulations that will
protect the race against such an attack. We must assume that civilized
nations will approve and make apidicable to their peoples any regula-
tions which have for their object, and which plainly will secnre, the
preservation of this race for the benefit of numkind. Surely, there
can not be "proper" protection and preservation of these seals, when
in the high sens, if the regulations adopted by the Tribunal admit of
pelagic sealing to an extent that will serionsly endanger the existence
of the race. If that mode of taking these seals for nse can be permitted
to an extent that does not materially endanger the integrity of the race,
then I concede that to that extent — the Tribnnal having determined
the questions of i)roperty and protection against the United States — it
may be allowed. I protest against any interpretation of the treaty
which assumes that other nations will refuse to give their support to
any regulations except such as are based upon a mere comjji'omise, as
between Great Britain and the United States, which leaves this race of
animals unprotected against destruction.
In view of the diplomatic correspondence which has been i)laced in
our hands, there is ground for surprise at the earnestness with which
is contended that other nations could not be expected to assent to
regulations that would suppress pelagic sealing, and that this Tribunal,
when considering the subject of regulations applicable to the peoples of
the United States and Great Britain, should permit the inquiry as to
what regulations are in fact necessary to be controlled by conjecture
as to what might be agreeable to other nations than those who made
the Treaty. From that correspondence (some of which is given in
the margin*), it will distinctly appear that Lord Salisbury proposed
* What is now the seventh article of tlio Treaty was proposed by President Har-
rison as early as Juno 25, 1891. (U. S. Case, Vol. I, App., .319.)
It having been proposed that the two Governments should sign the text of tho
seven articles to be inserted in the Arbitration Agreement, and of the .Joint Commis-
sion Article, as settled in the diplomatic correspondence, in order to record the
208
to sign the articles which the two Governments agreed should be
inserted in tlie Arbitration Agreement, with a reservation that the
Eegnlations woukl not become obligatory on Great Britain and the
United States "until tliey have been accepted by the other maritime
powers." President Harrison refused, through Mr. Blaine, to permit
any such reservation. Lord Salisbury, subsequently, stated that his
progress made in the negotiations, Sir Julian Panucefote wrote to Mr. Blaine,
under date of November 23, 1891, expressing tlie assent of Lord Salisbury to that
conrse. But for the purposes of obviating any doubts that might arise as to the mean-
ing of Article VII, Sir Julian said, in that letter:
" His lordship understands, first, that the necessity of any regnl.ations is left to
the Arbitrators, as well as the nature of those regulations, if the necessity is in their
judgment proved; secondly, that the regulations will not become obligatory on
Great Britain and the United States until they have been accepted by the other
maritime powers. Otherwise, as his lordship observes, the two Governments would
be simply handing over to others the riglit of exterminating the seals.
"I have no doubt that you will have no difficulty in concurring in the .above
reservations, and, subject thereto. I shall be prepared to sign the articles as pro-
posed."
To this letter Mr. Blaine, November 27, 1891, replied :
"You inform me now that Lord Salisbury asks to make two reservations in the
sixth article. His first reservation is that 'the necessity of any regulations is left
to the arbitrators, as well as the matter of those regulations if the necessity is in
their judgment proved.'
"What reason has Lord Salisbury for altering the text of the article to which ho
had ao-reed? It is to bo presumed that if regulations are needed they will be made,
if they are not needed the arbitrators will not make them. The agreement leaves
the arbitrators free upon that point. The iirst reservation, therefore, has no special
meaning.
"The second reservation which Lord Salisbury makes is that 'the regulations
shall not become obligatory on Great Britain and the United Statcjs until they shall
have been accepted by the other maritime powers.' Does Lord Salisbury mean thiit
the United States and Great Britain shall refrain from taking seals until every mari-
time power joins in the regulations, or does he mean that scaling shall bo resumed
the 1st of May next, and that we shall proceed as before the arbitration until the
regulations have been accepted by the other 'maritime powers?'
" 'Maritime powers' may mean one thing or another. Lord Salisbury did not eay
the principal maritime powers. France, Spain, Portugal, Italy, Au.itria, Turkoy,Russia,
Germany, Sweden, Holland, Belgium, are all maritime powers in the sense that they
maintain a navy, great or small. In like manner Brazil, the Argentine Confedera-
tion, Chile, Peru, Mexico, and .Japan are maritime powers. It would require a long
time, three years at least, to get the assent of all these i)owcrs. Mr. Bayard, on the
19th of August, 1887, addressed Great Britaiu, Germany, France, Rus.sia, Sweden
and Norway, and Japan with a view to securing some regulatioxia in regard to the
209
Government would retain the right of raising the point suggested
" when the question of framing the regulations came before the Arbitra-
tors." He wished it understood that the Arbitrators would have full
discretion in the matter, and might attach " such conditions to the reg-
ulations as they may a priori judge to be necessary and just to the two
powers, in view of the difficulty pointed out." But to this suggestion
seals in Bering Sea. France, Japan, and Russia replied with languid indifference ;
Great Britain never replied in writing; Germany did not reply at all; Sweden and
Norway said the matter was of no interest to them. Thus it will be again. Such a
proposition will postpone the matter indefinitely.
"The President regards Lord Salisbury's second reservation, tlierefore, as a
material change in the terms of the arbitration agreed upon by this Government;
and he instructs me to say that he does not feel willing to take it into consideration.
He adheres to every point of agreement which has been made between the two
powers, according to the text which you furnished. He will regret if Lord Salis-
bury shall insist on a substantially new agreement. He sees no objection to sub-
mitting the agreement to the principal maritime powers for their assent, but he can
not agree that Great Britain and the United States shall make their adjustment
dependent on the action of third parties who have no direct interest in the seal
fisheries, or that the settlement shall be postponed until those third parties see fit
to act."
Sir Julian Pauncefote, December 1, 1891, in acknowledgment of Mr. Blaine's
letter, said :
"As regards the first reservation, Lord Salisbury observes that the statement con-
tained in your note that the clause leaves the arbitrators free to decide whether
regulations are needed or not, assures the same end as the proposed reservation,
which therefore becomes unnecessary and may be put aside.
" With respect to the second reservation, his lordship states that it was not the
Intention of Her Majesty's Government to defer putting into practical execution any
regulations which the arbitriitors may prescribe. Its object is to prevent the fur-
seal fishery in Bering Sea from being placed at the mercy of some third power.
There is nothing to prevent such third power (Russia, for instance, as the most
neighboring nation), if unpledged, from stepping in and securing the fishery at the
very seasons and in the very places which may be closed to the sealers of Great
Britain and the United States by the regulations.
" Great circumspection is called for in this direction, as British and American
sealers might recover their freedom and evade all regulations by simply hoisting the
flag of a nonadhering power.
"How is this difficulty to be met? Lord Salisburj^ suggests that if, after the
lapse of one j^ear from the date of the decree of regulations, it shall appear to either
Government that serious injury is occasioned to the fishery from the causes above
mentioned, the Government complaining may give notice of the suspension of the
regulations during the ensuing year, and in such case the regulations shall be sus-
pended until arrangements are made to remedy the complaint.
"Lord Salisbury further proposes that, in case of any dispute arising between the
11492 14
210
President Harrison refused his assent, and expressly denied the right
of the British Government to appeal to the Arbitrators to decide any
point not embraced in the articles of Arbitration. Mr. Blaine, speak-
ing for the President, announced his willingness to sign the articles of
agreement "without any reservation whatever." And the rejiresenta-
tive of Great Britain at Washington, by the direction of Lord Salis-
two Governments as to tlie gravity of the injury caused to tlie fishery or as to any
other fact, the question in controversy shall be referred for decision to a British and
an American admiral, who, if they should be unable to agree, may select an umpire.
" Lord Salisbury desires me to ascertain whether some provision of the above
nature would not meet the views of your Government."
Mr. Blaine, under date of December 2, 1891, in reply:
''The President is uuable to see the danger which Lord Salisbury apprehends of a
third nation engaging in taking seals regardless of the agreement between Great
Britain and the United States. The dispute between the two nations has now been
in progress for more than five years^ During all this time, while Great Britain was
maintaining that the Bering Sea was open to all comers at any time as of right,
not another European nation has engaged in sealing.
"A German vessel once made its appearance in Bering Sea, but did not return,
being satisfied, I suppose, that at the great distance they have to sail, the Germans
could not successfully engage in sealing. Russia, whose interference Lord Salisbury
seems to specially apprehend, will not dissent from the agreement, because such dis-
sent would put to hazard her own sealing property in the Bering Sea. On the con-
trary, we may confidently look to Eussia to sustain and strengthen whatever agree-
ment Great Britain and the United States may conjointly ordain.
"It is the judgment of the President, therefore, that the apprehension of Lord
Salisbury is not well grounded. He believes that, however the arbitration between
Great Britain and the United States may terminate, it will be wise for the two
nations to unite in a note to the principal powers of Europe, advising them in full
of what has been done and confidently asking their approval. He does not believe
that, with full explanation, any attempt will bo made to disturb the agreement.
If, contrary to his firm belief, the agreement shall be disturbed by tbe interference
of a third power, Great Britain and the United States can act conjointly, and they
can then far better agree upon Avhat measure may be necessary to prevent the
destruction of the seals than they can at this time.
"The President hopes that the arbitration between Great Britain and the United
States will be allowed to proceed on the agreement regularly and promptly. It is
of great consequence to both nations that the dispute be ended, and that no delay
be caused by introducing new elements into the agreement to which both nations
have given their consent."
Sir Julian Paunceforte, December 8, 1891:
" The Marquis of Salisbury, to whom I telegraphed the contents of your letter of
the 2d instant on the subject of the sixth article of the proposed Bering Sea Ai-bi-
tratiou agreement, is uuder the impressiou that the President has not rightly under'
211
biirj^, signed tlieni, distinctly stating that they were signed as proijosed
in Mr. Blaine's note, that iwS, " ivithout any reservation ivhatever.^'' And,
now, it is contended that while this Tribunal may not make the adhe-
sion of other maritime powers to our Kegulations a condition precedent
to their being obligatory upon the United States and Great Britain, it
may, nevertheless, properly refuse to prescribe regulations that will
stood his lordship's apprehension with reference to the reguhitions to be made by
the Arbitrators under that article. His fear is not that the other powers will reject
the regulations, but that they will refuse to allow the arrest by British and Amer-
ican cruisers of ships under their flag which may engage in the fur seal fishery in
violation of the regulations. Such refusal is liigiily probable in view of the
jealousy which exists as to the right of search on the liighseas, and the consequence
must iucvitably be that during the close season sealing will go on under other
flags.
''It can not be the intention of the two Governments, in signing the proposed
agreement, to arrive at such a result.
"I do not understand you to dispute that should such a state of things arise the
agreement must collapse, as the two Governments could not be expected to enforce
on their respective national regulations which are violated under foreign flags to
the serious injury of the fishery.
"I hope, therefore, that on further consideration the President will recognize the
importance of arriving at some understanding of the kind suggested in my note of
the 1st instant."
Mr. Blaine, December 10, 1891, in reply :
"In reply to your note of the 8th instaut I have the following observations to
make:
"First. Ever since the Bering Sea question has been in dispute (now nearly sis
years) not one ship from Franco or Germany has ever engaged in sealing. This
affords a strong presumption that none will engage in it in the future.
"A still stronger ground against their taking part is that they can not afford it.
From France or Germany to Bering Sea by the sailing line is nearly 20,000 miles, and
tliey would have to make the voyage with a larger shiji tliau can bo profitably em-
ployed in scaling. They would have to start from home the winter j^receding the
sealing season, and risk an unusually hazardous voyage. When they reach the fish-
ing grounds they have no territory to which they could resort for any purpose.
"Third. If Ave wait until we get France to agree that her ships shall be searched
by American or British cruisers we will wait until the last seal is taken in Bering
Sea.
"Thus much for France and Germany. Other European countries have the same
disabilities. Russia, cited by Lord Salisbury as likely to embarrass the United
States and England by interference, I should regard as an ally and not an enemy,
Kor is it probable that any American country will loan its flag to vessels engaged in
violating the Bering Sea regulations.
"To stop the arhitratiou a whole month ou a question of this charo.ctor promises
212
suppress or materially diminish j)elagic sealing', liowever necessary
siich regulations may be for the protection and preservation of this race
of animals, if, in view of all the probabilities of the situation we con-
jecture— it can be nothing more than conjecture — that other nations
will not approve them. This would enable Great Britain to accomplish
precisely what it could have accomplished had it been permitted to
sign the Treaty with a reservation of authority for the Arbitrators to-
make the assent of the maritime jjowers a condition of our regulations,
ill for its snccess. Some other less important question even than this, if it can be
found, may probably be started. The effect can only be to exhaust the time allotted
for arbitration. We must act mutually on what is probable, not on what is re-
motely possible.
"The President suggests again that the proper mode of proceeding is for regula-
tions to be agreed upon between the United States and Great Britain and then sub-
mitted to the principal maritime powers. That is an intelligent and intelligible
process. To stop now to consider the regulations for outside nations is to indefi-
nitely postpone the whole question. The President, therefore, adheres to his ground
first announced, that we iniist have the arbitration as already agreed to. He sug-
gests to Lord Salisbury that any other process might make the arbitration imprac-
ticable within the time specified."
Sir Julian Pauncefote, under date of December 11, 1891 :
"I have the honor to inform you that I telegraphed to the Marquis of Salisbury
the substance of your note of yesterday respecting the sixth article of the proposed
Bering Sea arbitration agreement, and that I have received a reply from his lord-
ship to the following effect: In view of the strong opinion of the President, reiter-
ated in your note of yesterday, that the danger apprehended by Lord Salisbury, and
explained in my note of the 8th instant, is too remote to justify tlie delay Avhich
might be incurred by guarding against it now, his lordship will yield to the Presi-
dent's appeal and not press for further discussion at this stage.
"Her Majesty's Government of course retain the right of raising the point when
the question of framing the regulations comes before the arbitrators, and it is under-
stood that the latter will have full discretion in the matter, and may attach such
conditions to the regulations as they may a jyriori judge to be necessary and just to
the two powers in view of the difficulty pointed out.
" With the above observations Lord Salisbury has authorized me to sign the text
of the seven articles and of the joint commission article referred to in my note of
the 23d ultimo, and it will give me much pleasure to wait upon you at the State
Department for that purpose at any time yon may appoint."
Mr. Blaine, December 14, 1891, in reply :
"I have the honor to advise you that I submitted your note of the 11th instant to
the President. After mature deliberation ho has instructed me to say that he objects
to Lord Salisbury's making any reservation at all, and that he cannot yield to him
the right to appeal to the arbitrators to decide any point not embraced in the arti-
cles of arbitration. The President does not admit that Lord Salisbury can reserve
213
whether self-executing or not, becoming obligatory upon Great Britain
and the United States. I can not believe that this Tribunal will pro-
ceed upon any such ground as that now suggested by the Counsel for
Great Britain.
During the argument much was said about the mode in which the
business of taking fur seals on the Pribilof Islands had been conducted
by the licensees of the United States. It was said then, and the sug-
the riglit in any way to affect the decision of the arbitrators. We understand that
the arbitration is to proceed on the seven points which are contained in the articles
which yon and I certify were the very points agreed upon by the two Governments.
"For Lord Salisbury to claim the right to submit this new point to the Arbitra-
tors is to entirely change the arbitration. The President might, in like manner,
submit several questions to the Arbitrators, and thus enlarge the subject to such an
extent that it would not be the same arbitration to which we have agreed. The
President claims the right to have the seven points arbitrated, and respectfully
insists that Lord Salisbury shall not change their meaning in any particular. The
matters to be arbitrated must be distinctly understood before the Arbitrators are
chosen. And after an arbitratiou is agreed to, neither of the parties can enlarge or
contract its scope.
*'I am prepared now, as I have been heretofore, to sign the articles of agreement
without any reservation whatever, and for that purpose I shall be glad to have you
call at the State Department on Wednesday the 16th instant, at 11 o'clock a. m."
Sir Julian Pauncefote, December 17, 1891:
" I have the honor to inform you that I conveyed to the Marquis of Salisbury, by
telegram, the substance of your note of the 14th instant, respectiug the sixth article
of the proposed Bering Sea Arbitration agreement, and that I have received a reply
from his lordship in the following sense:
"Lord Salisbury is afraid fhat, owing to the difficulties incident to telegraphic
communications, he has been imperfectly understood by the President. He con-
sented, at the President's request, to defer for the present all further discussion as
to what course the two Governments should follow in the event of the regulations
prescribed by the Arbitrators being evaded by a change of flag. It was necessary
that in doing so he should guard himself against the su])position that by such con-
sent he had narrowed the rights of the contending parties or of the Arbitrators under
the agreement.
"But in the communication which was embodied in my note of the 11th instant,
his lordship made no reservation, as the President seems to think, nor was any such
word used. A reservation would not be valid unless assented to by the other side,
and no such assent was asked for. Lord Salisbury entirely agrees with the Presi-
dent in his objection to any point being submitted to the Arbitrators which is not
embraced in the agreement and, in conclusion, his lordship authorizes me to sign
the articles of the arbitration agreement, as proposed at the close of your note under
reply, whenever you may be willing to do so." (U. S. Case, vol. 1, App. 339 to 3-15).
214
gestioii has been repeated here, that the present depleted condition of
this race is due largely, if not principally, to unreasonably large drafts
made, for many years past, upon male seals while they were on the
breeding grounds, whereby vast numbers of that sex, competent for
service, and which ought to have been preserved for purposes of repro-
duction, have been killed. This suggestion is unsup])orted by any fair
view of the evidence. What has been said on that subject by some wit-
nesses, notably by Prof. Elliott, is in gross exaggeration of the facts.
j^o complaint can be justly made of the rules that have been prescribed
by the United States in regulation of the taking of these seals on the
islands. And it must be conceded that those rules, if observed, do not
admit of the taking of an undue proportion of males. Tlie killing of
female seals on the islands is absolutely prohibited. While in particular
years there was mismanagement to some extent on the islands, nothing-
done or omitted to be done there, at any time within the past fifteen or
twenty years, accounts for the recent and extraordinary diminution in
the number of seals frequenting those islands during the breeding sea-
son. There is, in my judgment, no possible escape from the conclusion
that such diminution is the direct result of pelagic sealing.
What has or has not been done or omitted on the islands, or what
may hereafter be done there, can not be made an element in the i)resent
inquiry. This Tribunal has no authority to deal with the management
of the seals while at their breeding grounds on the islands of St. Paul
and St. George, any more than with the mode of taking them within
the territorial waters of Canada. The United States would never have
submitted to this or to any other Tribunal a question involving its
complete control over these seals while on its islands or within its ter-
ritorial waters. It would not brook any interference with the authority
which appertains to it within its own territorial limits. Proper respect
for the Government of that nation compels us to assume that it has
the desire to correct, and will correct, any abuses that have existed,
or that may hereafter exist, in the conduct of the fur seal industry
on the Pribilof Islands; just as we must assume, that the Govern-
ments of Great Britain and of Canada, after this Tribunal has made
its award, will properly control the taking of seals within territorial
waters.
The two nations here represented took care to exclude from the con-
sideration of this Tribunal all matters afifecting their sovereign authority
within jurisdictional limits, and therefore restricted inquiry touching
the proper protection and preservation of these seals "to concurrent
215
regulations outside tlie jurisdictional limits of the respective Govern-
ments." The irrelevancy, when considering the subject of reguhitions,
of any inquiry as to what has been done or omitted to be done on tlie
islands, is apparent in view of one fact clearly established by the evi-
dence, namely: That pelagic sealing to any material extent — that is, to
such extent as will be x)i'ofitable to sealers — will speedily exterminate
this race, even if the talcing of seals is entirely suspended on the islands,
and the United States should expend time and money in protecting the
seals during the breeding season, in order simply that pelagic sealers
may not be disturbed in their occupation of killing suckling females
while in the ocean in search of food for the sustenance of themselves
and their young, or in their business of cai3turing and cutting open
the bodies of mother seals, heavy with young, and throwing the unborn
pups into the ocean.
Our manifest duty is to inquire what, under the evidence, is the
effect of pelagic sealing, in and of itself; and, according to the result of
that inquiry and without any reference whatever to what has occurred
or may occur on the islands in respect of this race of animals, and
without regard to the special interests eitlier of the United States or
of pelagic sealers, we should establish, or by our award impose upon
the two nations here rejiresented the duty of establishing, such regu-
lations, "outside the jurisdictional limits of the respective Govern-
ments " as are ne(;essary for the jn'oper i)rotection and preservation of
tliis herd of fur seals. Anything less from this Tribunal will shake the
confidence of the world in the efficacy of arbitration as a means of com-
posing differences between nations in respect to matters of great mo-
ment and interest.
I now come to the important practical question as to what regula-
tions, in view of all the evidence, are necessary for the proper protec-
tion and preservation of this herd of seals.
We have seen that these seals begin to leave the islands in Septem-
ber, and by I^ovember substantially all of them are in the North Pacific
Ocean, south of the Aleutian Islands. During December tbey may be
found off the coasts of the United States, north of the 35th degree of
north latitude. In January they turn their faces northward, and move,
generally in small schools or bands, along, but some distance from, the
coasts of the United States and British Columbia. Those in advance
go through the passes of the Aleutian Islands, on their way back to the
Pribilof Islands, early in June. They are moving through those passes
216
during tlie wliole of that inontli. By the 1st or 10th of July, the entire
herd has left the North Pacific and reassembled at their breeding
grounds on the islands of St. Paul and St. George. As soon as the
mother seals reach the islands, or within a very few days thereafter, they
give birth to their pups, and take position with the bulls by whom they
have been appropriated. According to the evidence, the pups require
sustenance from their mothers for about eight or ten weeks. During
that period, say, during July and August, the mother seals, in vast
numbers, go out into the sea, in every direction, often to the distance of
100 and 150 miles, in quest of food to sustain themselves and their young.
Seals have been taken in the North Pacific in January, February, and
March, but not to any great extent. The opportunity for taking them
improves as the season advances. The last half of April and the
months of May and June are favorable for pelagic sealing, particularly
the two months last named. In Bering Sea the months of July and
August are also very favorable for seal hunting. While seals may be
taken in that sea duriug September, it is not, as a general rule, profit-
able to pursue the business there after August, or, at any rate, after
the middle of September. The principal mischiefs from pelagic sealing
have come from the killing of the seals in May and June, in the North
Pacific, while the herd is moving northward to their land home, and
from the killing in July and August, in Bering Sea, of breeding females
which have left their pups on the islands for a time and gone into the
sea in search of food.
Our attention has been called to various schemes of regulations. In
1888 Mr. Bayard proposed a closed season for the period between April
15 and November 1 of every year, during which the citizens or sub-
jects of the United States and Great Britain should be prevented from
killing fur-seals with firearms or other destructive weapons, " north of
50° of north latitude, and between 1G0° of longitude west and 170° of
longitude east of Greenwich." But a much better scheme was agreed
upon, provisionally, as a basis of negotiations, at the conference subse-
quently held, in London, April 16, 1888, between the representb/tives of
the United States, Great Britain, and Eussia. By that scheme, if it
had been put into operation, a closed season, extending from April 15
to November 1 would have been established, during which no seals could
be killed in " the sea between America and Eussia, north of the 47*^ of lat-
itudeP But this scheme failed of adoption because of the intervention
and protest of Canada, which was effectual to prevent Lord Salisbury
217
from adhering to it as a final settlement of the controversy. At a later
stage of the negotiations between the United States and Great Britain,
Mr. Blaine expressed the willingness of the United States to accept
a settlement upon the basis of a zone of 20 marine leagues, within which
no ship should hover around the ishxnds of St. Paul and St. George
from the 15th of May to the 15th of October of each year. U. 8. Case,
Vol. I, Apj)., 284.
It is said that the scheme of regulations now proposed by the United
States is far more stringent than that proposed by Mr. Bayard and
Mr. Blaine, on behalf of the United States. That is true. But it
should be remembered that at the time the schemes of Mr. Bayard
and Mr. Blaine were proposed, the facts of seal life were not so well
known as now, so full have been the recent investigations made by
the two Governments, with direct reference to the present controversy,
and for the purj)ose of ascertaining what was required in order to
preserve this race of animals from extermination. In view of the
fuller knowledge all now have on the subject, no one would be so
wanting in frankness as to say that this race of useful animals could
possibly survive pelagic sealing under the scheme proposed by Mr.
Bayard, or under that proposed by Mr. Blaine. While the British
Government has contrasted, to the disadvantage of the United States,
the scheme now proposed by the latter, with the propositions made
by Mr. Bayard and Mr. Blaine, the United States Government con-
trasts, to the disadvantage of Great Britain, the scheme now pro-
Ijosed by Her Britannic Majesty with that acceded to, provisionally,
by Lord Salisbury in 1888. I am of opinion that the determination
of the question before us should not depend upon considerations of
this kind. It is of no consequence, in the present inquiry, that the
respective governments were willing, at one time, to accept regulations
different from those now proposed. We must determine the question of
regulations in the light of the facts now disclosed. If we prescribe
regulations that are inadequate, we will not stand acquitted in our own
consciences, or before the world, by the circumstance that that which
is done may have been approved by the two Governments or either of
them at sometime in the past, when the facts were not fully developed.
At a former meeting of this Tribunal I presented a scheme of reg-
ulations which, in the judgment of my colleague, Senator Morgan, and
myself, are adequate for the proper protection and preservation of these
seals outside the jurisdictional limits of the respective Governments.
That scheme provides that no citizen or subject of either country should
218
kill, capture, or pursue these fur seals anywhere in the waters of
Bering Sea or of the i^orth Pacific Ocean, outside the jurisdictional
limits of the respective governments, north of the 35° of north lati-
tude (south of which this herd have never been known to go in its
migrations) and east of the 180° of longitude from Greenwich. It also
provides that offending vessels may be seized by the naval or duly-
commissioned officers of either Government, and handed over, as soon
as practicable, to the anthorities of the nation to which tliey respec-
tively belong, to be dealt with by that nation — the witnesses and proof
necessary to establish the offense or to disprove the same being also
sent with the vessel seized. It further provides that every x>erson
guilty of violating these regulations should, for each offense, be fined
not less than $200 nor more than $1,000, or imj^risoued not more than
six months, or both; such vessels, their tackle, apparel, furniture, and
cargo to be forfeited and condemned.
Only regulations of this character, which prohibit pelagic sealing
altogether, in all the waters traversed by these seals, will, in my
judgment, make the preservation of this race of animals ahsolutely
certain. Of course, a closed season, covering all of such waters and all
the months of the year when the weather admits of pelagic sealing,
will give, practically, the same security as regulations of a prohibitory
character covering the whole year.
(Mr. Justice Harlan here ontcrod upon an examination of the evidence in detail for
the purpose of showing that he had not overstated the eifect of pelagic sealing upon
the Pribilof herd of seals. He read, at length, from the depositions, reports, tables
of ligures, etc., introduced by the respective Governments, to show the disastrous
results of pelagic sealing. It is unnecessary to encumber this opinion with the
details of the evidence to which he referred.
When the subject of Kegulations was under consideration in the Conference, Mr.
Justice Harlan offered the following resolution, as embodying the views of Senator
Morgan and himself on the question of the competency of the Tribunal:
"Eesolved, That the purpose of Article VII of the Treaty is to secure in any and
all events, the proper protection and preservation of the herd of seals frequenting
the Pribilof Islands; and in the framing of Eegulatious, under the Treaty, no ex-
tent of pelagic sealing should be allowed which will seriously endanger the accom-
plishment of that end."
He subsequently presented, with the concurrence of Senator Morgan, the following
motion :
"This Tribunal has power, and it is its duty, nnder the Treaty, to prescribe such
concurrent Regulations, covering the vaters, outside the jurisdictional limits of the
two countries, of both Bering Sea and the North Pacific Ocean, traversed by the fur
seals in, or habitually resorting to, Bering Sea, as may be found necessary for the
proper protection and xjreservation of such seals, even if such Regulations, when
219
sanctioned by tlie legislation of the two Governments, slioukl, by reason of tlieir
express provisions, or by their practical operation, resalt in preventing the hunting
and taking of these seals dnring the seasons when the condition of said waters
admits of fur seals being taken by pelagic sealers.")
The scheme i^roposed by myself may he objected to upon the ground
that the reguhxtions which it embodies are self-executing, whereas it is
argued this Tribunal lias only the power to recommend the adoption of
regulations, leaving it to the two Governments to enforce them by legis-
lation. I do not assent to this view of the competency of this Tribunal.
The two (j-overnments contemplated, and we are so informed by the
Treaty, that the result of our proceedings should be considered " as a
full, perfect, and final settlement of all the questions referred to the
Arbitrators." (Article XIV.) Our final decision or award, when made,
will become, in legal effect, a part of the Treaty, as much so as if it was
embodied in it. But the Treaty, when thus perfected, will not be a full,
perfect, and final settlement of the controversy, if the decision or award
is so framed as to amount to nothing practically until the two nations
shall have had further negotiations and agreed upon such additional
concurrent legislation as will be required in order that tlie award shall
become oi)erative for the proper protection and preservation of this race.
I find nothing in the Treatj^ looking to such a condition of things as the
result of our proceedhigs. Under the Constitution of the United States,
a treaty, made pursuant to that instrTinu^.nt, and duly ratified, becomes
"the supreme law of the land," without the aid of legislation, except
that legislation will be required where the treaty provides for the pay-
ment of money. This exception arises from the provision in that Con-
stitution tliat "no money shall be drawn from the Treasury but in con-
sequence of appropriations made by law," Of course, if, under the
British Constitution, regulations established by the Tribunal, providing
for the seizure of vessels and the punishment of i)ersons offending
against such regulations, can not be made applicable to British vessels
and British subjects, without legislative sanction, we must rely upon
the good faith of the two Governments interested to give effect to our
decision by appropriate enactments. But I do not understand the
British Constitution to require legislative approval of the regulations
prescribed by the Tribunal before they can become operative against
British vessels and British subjects. We have been invested by the
two Governments with full power, as Senator Morgan has well said, to
write into the Treaty of February 29, 1892, such regulations as we find
necessary and such as will be immediately effectual for the proper pro-
tection and preservation of these fur seals when they are outside the
220
jurisdictional limits of tlie respective nations. The engagement of the
two Governments with resi^ect to regulations was that they would coop-
erate in wSecuring the adhesion of other powers "to such Eegulations"
as this Tribunal should prescribe. This could have referred only to
regulations which by their own force, without further action of the two
Governments, would j)roperly protect and preserve this race of ani-
mals. The adhesion of other nations to Eegulations which did not, in
themselves, secure the protection and preservation of this race, would
be of no value.
One of the schemes before us is that proposed by Sir John Thompson.
I mean no disrespect to its distinguished author, whose good faith is not
questioned, wlien I say that, in view of all the evidence, that scheme
maybe fairly entitled "A plan for the certain and speedy extermina-
tion of the Pribilof herd of fur seals." Under regulations such as are
embodied in that i)lan all the seals, iucluding gravid females, would be
exposed to attack by pelagic sealers during the months of May and
June in the North Pacific Ocean; and during July, August, and Sej)-
tember in Bering Sea, outside of a zone of thirty miles around the
Pribilof Islands, nursing female seals could be slaughtered in vast
numbers. The use of rifles and nets are prohibited by this scheme,
while it saves to pelagic hunters the nse of the destructive shotgun
now in general use by them. A prohibition of rifles is of no value
whatever if the shotgun is allowed. Nor is it of the slightest conse-
quence that this scheme prohibits the killing of seals in Beriny Sea
(east of the line of demarcation adopted in the Treaty of 1867 between
Russia and the United States) he/ore the 1st of July and after October
lln each year; for, the seals can not be found in Bering Sea in any
numbers worth mentioning after October 1 and before July 1. I
object to this scheme upon the further ground that it allows either
Government upon notice to i)ut an end to our reguhitions after a named
time. Whatever this Tribunal may do in this matter, let that which
is done be final and permanent, subject only to such modifications
or change of policy as the two governments, in their wisdom, may
mutually agree to make. I see no objection to a reexamination from
time to time, by the two governments, of the subject of regulations but
there are many reasons against a reservation to each government of
the right to set aside the regulations after the lapse of any given time.
This whole subject has been a source of disturbance between these
nations for so long a period that the controversy should be now settled
221
and forever put aside. That is what these countries had in view when
the Treaty of 1892 was concluded. If we put it in tlie power of each
Government, after a named date, to set aside our regulations, the de-
cision we make will not be a "full, perfect, and final settlement" of
these questions. The wisdom and patriotism of the two great nations
here represented is a sufficient guarantee that all will be done, by
mutual agreement, which further investigation and developments
show to be necessary.
Without further elaboration, I must say that the scheme of Sir John
Thompson can not be aj)proved if we accept, as justified by the evi-
dence, what Sir Richard Webster said in his very able argument, when
he declared that " no gravid female ought to be killed, so far as it can
be reasonably avoided," and that " no nursing female upon whose life
that of the pup depends ought to be slaughtered or injured in any
way." The same eminent counsel also frankly observed: "It seems
to me that upon the simple i^rinciple 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 indorse by recom-
mendation, and that, therefore, the contrary of that would recommend
itself to the mind of this Tribunal."
(After tlie general discussion in conference upon the subject of regulations was
concluded— the Arbitrators named by the Governments of Great Britain and the
United States having alone participated in that discussion — the matter was taken
under advisement by the Arbitrators from Franco, Italy, and Norway, and they
submitted a scheme of regulations for the consideration of the Tribunal. A copy of
that scheme is appended to this opinion, and it became the subject of discussion
among the Arbitrators.)
I confess some disappointment in finding that the majority of the
Tribunal do not favor regulations which, in terms or by their necessary
operation, will put an end to all pelagic sealing in the waters traversed
by these fur seals. It is very much to be feared that the theory of
compromise has had more weight than, as I submit, it ought to have
upon the determination of the pending question. A compromise,
between conflicting views, which leaves the preservation of this race
in doubt, as far as their preservation depends upon regulations, ought
not be favored. It seems to me that the supreme object of regulations,
the protection and preservation of this race of animals, could not be
certainly accomplished except by regulations of the kind proposed by
me, with the concurrence of Senator Morgan.
222
But, as our views are not accepted by the Tribunal, the question is
presented whether the report made by Baron de Courcel, Marquis Yis-
conti-Venosta and His Excellency M. Gram, shall receive our support.
UlDon mature reflection, we have concluded to vote in favor of the scheme
of regulations recommended by those Arbitrators, although it contains
some provisions not acceptable to us. It establishes a zone of 60 miles
around the Pribilof Islands, inclusive of territorial waters, within
which the taking of seals at any time by the citizens or subjects of
either country is to be prohibited. It establishes a closed season, between
April 15 and July 31, both inclusive, for all the waters, both of the
North Pacific Ocean and of Bering Sea, north of the thirty-fifth degree
of north latitutie. It allows only sailing vessels to take -pnvt in fur
seal fishing operations. It forbids the use of nets, firearms, and
explosives in fur seal fishing, with the exception of the shotgun in
the North Pacific Ocean prior to April 15. While it permits a new
examination, by the two Governments, every five years, of the proiiosed
regulations, to ascertain whether there is any occasion to modify them,
the regulations now proposed, if adopted, are to remain in force until
they shall have been, in whole or in part, abolished or modified by "com-
mon agreement" between the two nations. The features of this scheme
that are chiefly objectionable are these: (1) It permits pelagic seal-
ing with shotguns, in the North Pacific Ocean, prior to April 15; (2)
it allows pelagic sealing, after July 31, in Bering Sea, with harpoons
and si^ears. Notwithstanding these defects in the scheme, there is a
hope, though not a certainty, that this race may under the regulations
so proposed, escape destruction at the hands of pelagic sealers. For
that reason, and in the interest of peace between the two nations. Sena-
tor Morgan and myself have determined to give our votes in support of
this scheme, as the best solution likely to be obtained from the Tribunal
of the question of regulations.
(Protocol LIV will show the votes in Couferonce upon the several resolutions, mo-
tions, aud plans presented by Arbitrators, relating to regulations, and also votes
upon different amendments made in the scheme of Eegulatit)ns proposed by Baron
de Courcel, Marc[ui8 Visconti-Veuosta and His Excellency M. Gram.)
223
fiEGULATIONS PROPOSED BY MR. JUSTICE HARLAIV, CONCURRED IN BY SENATOR MORGAN.
Article 1. No citizen or subject of the United States or Great Britain sliall in any
manner kill, capture, or pursue anj'wliere upon the seas, within the limits and
boundaries next liereiuafter prescribed for the operation of this regulation, any of
the animals commonly called fur seals.
Art. 2. The foregoing regulation shall apply to and extend over all those waters,
outside the jurisdictional limits of the above-mentioned nations, of the North Pa-
cific Ocean and Bering Sea which are North of the thirty-fifth parallel of north lati-
tude and east of the one hundred and eightieth meridian of longitude from Green-
wich.
Art. 3. Everj"^ vessel or person offending against these regulations may be seized
and detained by the naval or duly commissioned officers of either the United States
orGreat Britaiu, but they shall be handed over as soon as practicable to the authori-
ties of the nation to which they respectively belong, who alone shall have jurisdic-
tion to try the offense and impose penalties for the same. The witnesses and proof
necessary to establish the otieuse or to disprove the same found on the vessel shall'
also be sent with them.
Art. 4. Every person guilty of violating these regulations shall, for each offense,
be fined not less than $200 nor more than $1,000, or imprisoned not more than six
months, or both; and vessels, their tackle, apparel, furniture, and cargo, found en-
gaged in violating these regulations shall be forfeited and condemned.
REGULATIONS PROPOSED BY SIR JOHN THOMPSON.
Article 1. No sealing except by licenses which are to be issued at two United
States and two Canadian ports on the Pacific coast.
These licenses to be granted only to sailing vessels, and not to be granted earlier
than a date that would correspond with the 1st of May in the latitude of Victoria,
British Columbia.
Art. 2. Each vessel carrying such license to use a distinctive flag and to keep a
record in the official log of the number of seals killed or wounded, and the locality
in which the hunting takes place, from day to day ; all such entries to be tiled with
the collectors of customs on the return of the vessels.
Art. 3. The use of rifles and nets in seal fishing is xirohibited.
Art. 4. The killing of seals to be prohibited within a zone of 30 miles from the
Pribylov Islands, and within a zone of 10 miles around the Aleutian Islands.
Art. 5. The killing of seals to be prohibited in Bering Sea (east of the line of
demarcation adopted in the treaty of cession from Eussia to the United States) before
the 1st of July and after the 1st of October in each year.
Art. 6. The forgoing regulations shall be brought into force from and after a day
to be agreed upon by Great Britian and the United' States, and shall continue in
operation for ten years from the above day ; and, unless Great Britain or the United
States shall, twelve months before the expiration of the said period of ten years, gi ve
notice of intention to terminate their operation, shall coutinuo iu force one year
longer, and so on from year to year.
224
EEGULiTIONS PROPOSED BT BARON DE COURCEL, MARQUIS VISCOIVTI-YENOSTA, AND
HIS EXCELLENCY M. GRAM.
Article 1. The Governments of the United States and of Great Britain shall for-
bid tlieir citizens and subjects respectively to kill, capture, or pursue at any time
and in any manner whatever, the animals commonly called fur seals, within a zone
of 60 miles around the Pribylov Islands, inclusive of the territoral waters.
The miles mentioned in the preceding paragraph are geographical miles, of 60 to a
degree of latitude.
Art. 2. The two Governments shall forbid their citizens and subjects respectively
to kill, capture, or pursue, in any manner whatever, during the season extending
each year from the 15th of April to the 31st of July, both inclusive, the fur seals on
the high sea in the part of the Pacific Ocean, inclusive of the Bering Sea, which is
situated to the north of the thirty-fifth degree of north latitude.
Art. 3. During the period of the time and in the waters in which the fur seal fish-
ing is allowed only sailing vessels shall be permitted to carry on or take part in fur-
seal fishing operations. They will, however, be at liberty to avail themselves of
the use of canoes or small boats, propelled wholly by oars.
Art. 4. The sailing vessels authorized to fish for fur seals must be provided with
a special license issued for that purpose by its Government and shall be required to
carry a distinguishing flag to be prescribed by its Government.
Art. 5. The masters of the vessels engaged in fur seal fishing shall enter accu-
rately in their official log book the date and place of each fur seal fishing operation,
and also the number and sex of the seals captured, upon each day. These entries
shall be communicated by each of the two Governments to the other at the end of
each fishing season.
Art. 6. The use of nets, firearms, and explosives shall be forbidden in the fur seal
fishing. This restriction shall not apply to shotguns when such fishing takes place
outside of Bering Sea.
Art. 7. The two governments shall take measures to control thefitnessof the men
authorized to engage in fur seal fishing; these men shall have been proved fit to
handle with sufficient skill the weapons by means of which this fishing may be car-
ried on.
Art. 8. The regulations contained in the preceding articles shall not apply to
Indians dwelling on the coasts of the territory of the United States or of Great
Britain, and carrying on in their canoes, at a small distance from the coasts where
they dwell, fur seal fishing.
Art. 9. The concurrent regulations hereby determined with a view to the protec-
tion and preservation of the fur seals shall remain in force until they have been, in
whole or in part, abolished or modified by common agreement between the govern-
ments of the United States and of Great Britain.
The said concurrent regulations shall be submitted every five years to a new
examination, so as to enable both interested governments to consider whether, in
the light of past experience, there is occasion for any modification thereof.
225
FIXAL DECISIO\.
Now we, the said Arbitrators, having impartially and carefully examined the said
questions, do iu like manner by this our award decide and determine the said ques-
tions in manner following, that is to say, we decide and determine as to the five
points mentioned in Article VI, as to which our award is to embrace a distinct
decision upon each of them :
As to the first of the said five points, we, the said Baron de Courcel, Mr. Justice
Harlan, Lord Haunen, Sir John Thompson, Marquis Yiscouti Venosta, and Mr. Gregers
Gram, being the majority of the said Arbitrators, do decide and determine as follows :
By the Ukase of 1821, Russia claimed jurisdiction in the sea now known as the
Bering Sea, to the extent of 100 Italian mik>s from the coasts and islands belonging
to her; but, in the course of the negotiations which led to the conclusion of the
treaties of 1824 with the United States, and of 1825 with Great Britain, Russia
admitted that her jurisdiction in the said sea should be restricted to the reach of
cannon-shot from shore, and it appears that, from that time up to the time of the
cession of Alaska to the United States, Russia never asserted in fact or exercised
any exclusive jurisdiction iu Bering Sea or any exclusive rights in the seal fish-
eries therein beyond the ordinary limits of territorial waters.
As to the second of the said five points, wc, the said Baron de Courcel, Mr. Justice
Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr.
Gregers Gram, being a majority of the said Arbitrators, decide and determine that
Great Britain did not recognize or concede any claim, upon the jiart of Russia, to
exclusive jurisdiction as to the seal fisheries in Bering Sea, outside of ordinary
territorial waters.
As to the third of the said five points, as to so much thereof as requires us to
decide whether the body of water known as Bering Sea was included in the phrase
"Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia,
we, the said Arbitrators, do unanimously decide and determine that the body of
water now known as the Bering Sea was included in the phrase "Pacific Ocean,"
as used in the said treaty.
And as to so much of the said third point as requires us to decide what rights, if
any, in the Bering Sea were held and exclusively exercised by Russia after the said
Treaty of 1825, we, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen,
Sir John Thompson, Marquis Visconti Venosta and Mr. Gregers Gram, being a ma-
jority of tlie said Arbitrators, do decide and determine that no exclusive rights as to
the seal fisheries therein were held or exorcised by Russia outside of ordinary terri-
torial waters after the Treaty of 1825.
As to the forth of the said five ])oints, we, the said Arbitrators, do unanimously
decide and determine that all the rights of Russia as to jurisdiction and as to the
seal fisheries in Bering Sea, east of the water boundary, in the Treaty between the
United States and Russia of the 30th of March, 1867, did pass unimpaired to the
United States under the said Treaty.
As to the fifth of the said five points, we, the said Baron de Courcel, Lord Hannen,
Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a ma-
jority of the said Arbitrators, do decide and determine that the United States has not
11492 15
226
any riglit of protection or property in the fur seals freqnenting the islands of the
United States in Bering Sea, when such seals are found outside the ordinary three-
mile limit.
REGULATIONS PROPOSED BY BARON DE COURCEL, MAR(JCIS VISCONTl VEXOSTA, AND HIS
EXCELLENCY M. ORAM, AS AMENDED AND ADOPTED BY A MAJORITY OF T!IE TRIBUNAL.
AUTICLE 1.
The Government of the United States and of Great Britain shall forbid their cit-
izens and subjects respectively to kill, capture, or pursue, at any time and in any
manner whatever, the animals commonly called fur seals, witliiu a zone of 60 miles
around the Pribilov Islands, inclusive of the territorial waters.
The miles mentioned in the preceding paragraph are geographical miles, of 60 to
a degree of latitude.
Article 2.
The two Governments shall forbid their citizens and subjects respectively to kill,
capture, or pursue, in any manner whatever, during the season extending, each
year, from the 1st of May to the 31st of July, both inclusive, the fur seals on the
high sea, in the part of the Pacific Oceau, inclusive of the Bering Sea, which is
situated to tlie north of the 35tli degree of north latitude, and eastward of the
180th degree of longitude from Greenwich till it strikes the water boundary de-
scribed in Article 1 of the Treaty of 1867 between the United States and Eussia, and
following that line np to Bering Straits.
Article 3.
During the period of time and in the waters in which the fur seal fishing is allowed,
only sailing vessels shall be permitted to carry on or take part in fur seal fishing
operations. They will however bo at liberty to avail themselves of the use of such
canoes or undecked boats, propelled by paddles, oars, or sails, as are in common use
as fishing boats.
Article 4.
Each sailing vessel authorized to fish for fur seals must be provided with a special
license issued for that purpose by its Government, and shall be recxuired to carry a
distinguishing flag to be iirescribed by its Government,
Article 5.
The masters of the vessels engaged in fur sral fishing sliall enter accurately in
their ofticial log book the date and place of each fur seal fishing operation, and also
the number and sex of the seals captured upon each day. These entries shall be
communicated by each of the two Governments to the other at the end of each fishing
.season.
Article 6.
The use of nets, firearms, and explosives shall be forbidden in the fur seal fishing.
This restriction shall not apply to shotguns when such fishing takes place outside
of Bering's Sea during the season when it may be lawfully carried on.
227
Article 7.
The two Governments shall take lueasnres to control the fitness of the men author-
ized to engage in fur seal fishing; these men shall have heen proved fit to handle
■with sufficient skill the weapons by means of which this fishing maj^ he carried on.
Ai;ticle 8.
The regulations contained in the preceding articles shall not apply to Indians
dwelling on the coasts of the territory of the United States or of Great Britain, and
carrying on fur seal fishing in canoes or undecked boats not transported by or used
in connection with other vessels and propelled wholly by paddles, oars or sails, and
manned by not more than five persons each in the way hitherto practiced by the
Indians, provided such Indians are not in the employment of other jiersons, and
provided that, when so hunting in canoes or undecked boats, they shall not
hunt fur seals outside of territorial waters under contract for the delivery of the
skins to any person.
This exemption shall not be construed to affect the municipal law of cither
country, nor shall it extend to the waters of Bering Sea or the waters of the Aleu-
tian Passes.
Nothing herein contained is intended to interfere with the employment of Indians
as hunters or otherwise in connection with fur sealing vessels as heretofore.
AnTiCLE 9.
The concurrent regulations hereby determined with a view to the protection and
preservation of the fur seals, shall remain in force until they have been, in whole or
in part, abolished or modified by common agTcemeut between the Governments of
the United States and of Great Britain.
The said concurrent regulations bhall be submitted every five years to a new
examination, so as to enable both interested Governments to consider whether, in
the light of past experience, there is occasion for any modification thereof.
DECLARATIOXS MADE BY THE TKIBUXAL OF AUBITRATIOX A\D REFERRED TO THE GOT-
ERXMEXTS OF THE UNITED STATES AND GREAT BRITAIN FOR THEIR CONSIDERATION.
The Arbitrators declare that the concurrent regulations, as determined upon by
the Tribunal of Arbitration, by virtue of Article A^'II of the treaty of the 29th of
Februai'y 1892, being applicable to the high sea only, should, in their opinion, be
supplemented by other regulations applicable within the limits of the sovereignty
of each of the two powers interested and to be settled by their common agreement.
II.
In view of the critical condition to which it appears certain that the race of fur
seals is now reduced in consequence of circumstances not fully known, the Arbi-
trators think fit to recommend both Governments to come to an understanding in
order to prohibit any killing of fur seals, either on laud or at sea, for a period of
228
two or tlirco j^oars, or at least one year, subject to such exceptions as the two Gov-
ernmeuts might think proper to aduiit of.
Such a measure might be recurred to at occasional intervals if found beneficial.
III.
The Arbitrators declare moreover that, in their opinion, the carrying out of the
regulations determined upon by the Tribunal of Arbitration, should be assured by a
system of stipulations and measures to be enacted by the two powers, and that the
Tribunal must, in consequence, leave it to the two powers to decide upon the means
for giving effect to the regulations determined upon by it.
BERING SEA TRIBUNAL OF ARBITRATION.
OPINION
OF
SENATOK MOEGAN
AT THE
CONFERENCE IN PARIS
OF THE
BERING SEA TRIBUNAL OF ARBITRATION, CONSTITUTED BY THE
TREATY OF FEBRUARY 29, 1892, BETWEEN HER BRITANISIC
MAJESTY AND THE UNITED STATES OF AMERICA, AND
COMPOSED OF THE FOLLOWING MEMBERS:
BARON DE COURCEL,
Senator and Ambassador of France, President of the Tribunal;
THE RIGHT HONORABLE LORD HANNEN,
Of Great Britain;
THE HONORABLE SIR JOHN THOMPSON,
Minii,ter of Justice and Attorney-General of Canada;
MR. JUSTICE HARLAN,
A Justice of the Supreme Court of the United States;
SENATOR MORGAN,
A Senator of the United >'^tates;
MARQUIS EMILIO VISCONTI VENOSTA.
Former 2(iirister of Foreign Affairs, and Senator of the Kincjdom if Ital]/;
And HIS EXCELLENCY GREGERS GRAM,
Minister of State of Norway.
WASHINGTON, D. C:
GOVERNMENT PRINTING OFFICE,
1893.
THE TRIBUNAL HAVING UNDER CONSIDERATION THE MOTION OF
MR. JUSTICE HARLAN, SET FORTH IN THIS TAPER, SENATOR
MORGAN SUBMITTED THE FOLLOWING STATEMENTS AND REMARKS.
From the time when the controversy, which is the subject of this arbi-
tration, assumed the form of treaty engagements between the United
States and Great Britain, it became a matter that invoked the sovereign
powers of both Governments, and the rights of the United States and
of the subjects of Great Britain were merged in those of each sovereign,
as they are fixed by that treaty.
Each Government, in its own way, and according to its own will,
witLout legal responsibility to its citizens or subjects, undertook to
control the entire subject in its capacity as a sovereign. These powers
were exerted in their broadest form in the modus mvendi of 1891,
which was fully executed, and in that of 1892, which is made a part of
the Treaty of February 29, 1892. In the creation of this Tribunal of
Arbitration, and in the definition and limitation of its powers, this
arrangement was continued in force. It results from this attitude of
the two Governments toward the fur-seals referred to in the treaty
that any dealing with them on the high seas by any person lawfully
bearing the flag of either Government is an act for which that Govern-
ment must be responsible to the other Government if any question
of resiionsibility arises.
It was (piite as competent for the two Governments to prohibit the
taking of fur-seals as far to the south as the equator as it was to pro-
hibit it in Bering Sea, so far as their citizens or subjects are concerned ;
and it was as competent for them to make the prohibition perpetual
as it was to confine it to two or more fishing seasons. The two Gov-
ernments forebore to prohibit pelagic sealing in the North Pacific
Ocean pending this arbitration, in the evident hope and belief that the
award in this case would be made in time to prevent any seriously
mischievous effects of that pursuit, by a decision that would settle the
3
question whether the right and duty ot protecting seal life would rest
exclusively with the United States, or would require to be accom-
plished through the concurrent action of both Governments.
No power was conferred on this tribunal to protect the seal herd,
the xDreservatiou of which is the great leading jiurpose of the arbitra-
tion, while the proceedings are in xJrogress. The result is that unre-
strained pelagic fur-sealing is now being carried ou in the North
Pacific Ocean, and if the experiences of the years 1891 and 1892 are
repeated in 1893, the destruction of the species is now progressing
with fatal rapidity.
In view of these facts, it is of vital importance that the humane and
wise i)urpose of both Governments to preserve and protect these fur-
seals should not be defeated by any objection to the jnrisdiction of this
tribunal that is based on technical grounds, and is held back by the
objector to meet the views of counsel, or others, upon a question of the
order of our proceedings. Especially is this true when one of the
Governments is solemnly denying to this tribunal the right to consider
a vital feature of the subject submitted to the tribunal, which the
other government, with equal force and firmness, asserts to be clearly
within their competency. Under such conditioiis no one can foretell
with certainty whether the award that this tribunal shall make will
result in protecting and preserving seal life, or will only invite, here-
after, a wider and more determined controversy between the two Gov-
ernments.
For my part I regard the present situation as being dangerous and
deplorable, and I most earnestly desire that this tribunal shall, in the
outset, determine its responsibilities and meet them in whatever way
it may think its duties require.
To relieve this embarrassing situation Mr. Justice Harlan has offered
the following motion:
Mr. Justice Harlan moved that the tribunal, before entering upon the
matters submitted by the treaty, determine its competency so far as it
may be involved in the following questions:
1. Is it competent, under the treaty, for this tribunal to prescribe
regulations ai)plicable to such parts of the North PavaHc Ocean, out-
side the jurisdictional limits of the two Governments, as are traversed
by the seals frequenting the Pribilof Islands, if, upon the facts, regu-
lations of that character are necessary " for the proper protection and
preservation of the fur-seal in, or habitually resorting to, Behriug
Sea."
2. Is it competent, under the treaty, for the tribunal to prescribe
reguUiticms for a " closed season " covering such waters of both Behring
Sea and the North Pacific Ocean, outside the jurisdictional limits of
tlie two coinitries, as are liabiiually traversed by tliese fur-soal, and
embiaciug- the luontlis duiing wbicli fur-seal may be taken in the open
seas, and during wbicli "closed season" all hunting of seals in such
waters shall be forbidden, provided the facts show tbat regulations of
that character are necessary " for the proper protection and preserva-
tion of the fur-seal in, or habitually resorting to, Behring Sea."
The motion of Mr. Justice Harlan that I have just read was sub-
mitted to the Tribunal of Arbitration on Saturday, July 15, at the first
meeting of the Arbitrators for consultation, after the close of the oral
arguments of counsel.
This motion relates to two disputed questions as to the powers of
the tribunal, which were raised and formally presented by the Govern-
ment of Great Britain, in its counter case, on February 3, 1893, as
follows (page 162) :
The position here taken on the part of Great Britain is that already
taken in the original case. It is there stated:
"Finally, that while Great Britain has from the first strenuously and
consistently opposed all the foregoing exceptional x>retensions and
claims, she has througliout been favorably disiwsed to the adoption of
general measures of control of the fur-seal fishery should these be
found to be necessary or desirable with a view to the protection of the
fur-seals, provided that such measures be equitable and framed on
iust grounds of common interest, and that the adhesion of other potccrs
be secured as a guaranty of their continued and impartial execution."
For the correspondence on this point the Arbitrators are respect-
fully referred to the appendix to tlie United States Case.
A claim is made in tlie concluding words of the United States Case
that such regulations be "prescribed by this high tribunal as will
effectually prohibit and prevent the capture anywhere upon the high
seas of any seals belonging to the said herd."
Her Majesty's Government respectfully protests that no power to
impose on the contra(!ting ijarties a total prohibition of pelagic sealing
is conferred on the tribunal by the arbitration treaty, whether the
assent of other nations be or be not made a condition of such prohi-
bition.
Article vii empowers the Arbitrators to "determine what concur-
rent regulations outside the jurisdictional limits of the resi)ective gov-
ernments are necessary, and over what waters such regulations should
extend."
The power thus conferred relates to the only area in dispute, viz,
the waters of Behring Sea eastward of the line of demarcation spec-
ified in the Treaty of Cession of 18G7, and excludes the supposition
that prohibition could have been intended.
I have copied the full statement of the British Government as to its
position on this subject, both in the Case and Counter Case, that w^e
may have the whole subject before us in the connected form in which
it is thus presented in the British Counter Case.
It wiU be seen that Great Britain in stating its objections and pro-
test against the existence of tliese l)0^\ ers nndcr tlie treaty of Febrnary
29, 1892, and tlieir exercise by tlie Tribnnal of Arbitration, makes no
reference to anything except the text of the treaty. No anibignity in
any part of the treaty is suggested and, consequently. Great Britain
had no occasion to go outside of the text of the treaty in order to pre-
sent distinctly the grounds of objection to the power of this tribunal
to make such regulations as are stated in the foregoing extracts from
the British counter case. This tribunal must for that reason, and for
every reason that could exist in respect to its warrant of authority to
take any valid action in this proceeding, look to the text of the treaty
alone for its powers.
There is, then, no occasion for delay in responding to the objection
and protest of Great Britian as above stated, for it is not possible that
any further facts can be presented that would throw any light upon
the subject.
This challenge of the powers and authority of the Tribuiml of Arbi-
tration, and this protest against their action in determining any regu-
lations to restrain, or prohibit, pelagic fur-sealing outside the waters of
Bering Sea, was not presented as a diplomatic (|uestion to the Gov-
ernment of the United States, but is now for the tirst time presented
as a protest to the tribunal, to warn it against the usurpation of unwar-
ranted powers, and a statenient that the powers mentioned in the
l)rotest are not conferred upon the tribunal.
Under no circumstances is it to be assumed that these objections to
the powers of the tribunal are lightly suggested to excite inquiry or to
awaken the attention of the tribunal, coming as they do from a most
enlightened and powerful Government, or that their effect will not be
felt in subsequent inquiries by Great Britain into the question whether
the tribunal has acted ultra vires, if its award should injuriously atfect
the interests of the subjects of Great Britain. Moreover, these objec-
tions and protests were repeated in the most earnest way by the
attorney-general of Great Britain, and by each of the able counsel who
assisted him, in the written and oral arguments made before the tribunal.
It is not necessary to call attention, in detail, to these arguments,
for the record of them is preserved, and their ability and learning is so
conspicuous that their inlbience can not be ignored.
These objections to the powers of the Tribunal, as to the regulation of
pelagic sealing, were first t'Aken in the British Counter Case.
In the original Case, on page IGO, in paragraph 19 of the "Eecapitu-
lation of Argnment," the following is the position taken by the British
Government:
19. — No regulations atlecting British subjects can be established for
the protection and preservation of fur-seals in the nonterritorial waters
of Bering Sea without the concurrence of Great Britain.
That statement is quite in line with the power of this Tribunal to
declare either that it accorded with tlie legal rights of British subjects,
or that it did not. That was not an assault on the powers of the
Tribunal, but a strong appeal to its judgment on an alleged right of
British subjects.
The other statement on this subject, found in the British Case, I
have already quoted, but will repeat. It is taken from an outline of
argument on page 9, and is as follows :
Finally, that while Gl-eat Britain has from the first strenuously and
consistently opposed all the foregoing exceptional pretensions and
claims, she has throughout been lavorably disposed to the adoption of
general measures of control of the fur-seal fishery, should tliese be
found to be necessary or desirable with a view to the protection of the
fur-seals, provided that such measures be equitable and framed on just
grounds of common interest, and that the adhesion of other poivcrs be
secured as a guarantee of their continued and impartial execution.
The objections raised in the British counter case (above cited) to the
jurisdiction of the Tribunal of Arbitration are far more urgent in their
demand for diplomatic settlement than the question, that was settled
in that way, relating to the matter of the determination of Great
Britain to abide by and perform the award of the tribunal.
If, however, the Tribunal of Arbitration shall determine to proceed to
a final award without referring this vital question, as to their powers,
to the two Governments for their further consideration they must incur
the risk of having their award rei)udiated by the one Government or
the other.
The case of the United States is based in a large part, if not most
largely, upon the fact that the Tribunal of Arbitration has the powers
that are indicated in the two propositions stated in the motion of Mr-
Justice Harlan. Much more .than half of the testimony offered and
cited by the counsel for the respective Governments was adduced in
elucidation of the subject of the regulations that are proper for the
protection and preservation of fur-seals in the Korth Pacific Ocean.
It is, taken together, an immense mass of facts and expert opinions.
The argument of counsels on the part of the United States were
addressed at great length and with untiring industry and the highest
8
ability to point out the powers of tliis tribunal to regulate pelngic fur-
sealing in tlie North Pacific Ocean and in Bering Sea. No motion
was made or intimated on the bearing tliat this tribunal should refuse to
admit such evidence on the ground that it had no jurisdiction to make
regulations to protect and preserve the fur-seals in the North Pacific
Ocean.
After all this, is it a reasonable expectation that the United States
will accept an award that ignores the greater part of its case? Can
we assume that the United States has consented to a treaty, and made
this earnest effort to present its rights in accordance with it, and
will be content that this tribunal shall find that it has no power even
to consider those rights?
Moreover, we are called upon to decide that the powers of the tri-
bunal to regulate pelagic sealing are confined to the area of Bering
Sea; and to base that finding on the alleged fact that this is "the only
area in dis])ute." To find this alleged fact we are invited to quit the
text of the Treaty and to go into the diplomatic correspondence that
led to its adoption for our authority so to construe that instrument.
That process of construction might be adopted by this tribunal as a
means of clearing up an ambiguous expression in the Treaty, under
which a right is claimed in favor of either party, but no such proceed-
ing can be res(n-ted to in order to limit or enlarge our powers as a
Tribunal of Arbitration. That would be to make a treaty by con-
struction, and then to proceed to administer rights under it.
Much less can this tribunal create its powers by merely declaring
them. Our powers are to be found in the clear meaning of the text of
the treaty, or they do not exist. If we find them in the treaty we can
not refuse to exercise them.
1 will not now present an argument in support of the existence of
the powers stated in the motion of Mr. Justice Harlan further than to
make some quotations from the text of the treaty, premising that I
understand it to be fully admitted on all hands that a great and lead-
ing purpose of both governments in making this treaty is to protect
and preserve the fur-seals in, or that habitually resort to, Bering Sea.
The fur-seals to whicli this treaty relates comprise a family or herd
of animals that are in Bering Sea, or habitually resort to those waters
and the islands in that sea. As the protection and preservation of
these animals is the real result sought to be accomplished by the
treaty, the only accurate method of defining the scope of the powers
9
of tliis tribinial for tlieir protection, as to its appLVation, was to
describe the herd; but the restrictions upon tlie limits of the jurisdiction
are defined by the territorial boundaries of the two countries that own
all the shores and islands that are washed by the waters in which these
animals are found that resort to Bering Sea.
In the light of these facts, disclosed on the face of the treaty, the
following quotations from the treaty make it clear that this tribunal
possesses the powers stated in the motion of Mr. Justice Harlan :
Article I.
The questions whicli have arisen between the Government of Her
Britannic Majesty and the Government of the United States concerji-
ing the jurisdictional rights of the United States in the waters of Ber-
ing Sea, and concerning also the preservation of the fur-seal in or habit-
iiaUy 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 habitually resorting
to the said waters, shall be submitted to a tribunal of arbitration, to
be com^josed of seveu arbitrators.
• ••••••
Article III.
The printed case of each of the two parties, accompanied by the doc-
uments, the official correspondence, and the evidence on which each
relies, shall be delivered in duplicate to each of the arbitrators and to
the agent of the other party as soon as may be after the appointment
of the members of the tribunal, but within a period not exceeding four
months from the date of the exchange of the ratiiications of this treaty.
Article IV.
Within three months after the delivery on both sides of the printed
case either party may, in like manner, deliver in duplicate to each of
the said arbitrators and to the agent of the other party a counter case
and additional documents, correspondence, and evidence, in reply to
the case, documents, correspondence, and evidence so presented by the
other jjarty.
Article VI.
In deciding the matters subinitted to the arbitrators it is agreed that
the following five points shall be submitted to them, in order that their
award shall embrace a distinct decision upon «ach of said five points,
to wit :
1. What exclusive jurisdiction in the sea now known as the Behring
Sea, and what exclusive rights in the seal fisheries tlierein, did Kussia
assert and exercise prior and up to the time of the cession of Alaska
to the United States ?
******
5. Has the United States any right, and, if so, what right, of pro-
tection or property in the fur-seals frequenting the islands of the United
10
States in Behring ISea iclicn such seals are found outside the ordinary
Smile limit H
Article VII.
If the deternnnation of the foreg-ciug questions as to the exchisive
jnrisdi(^tion of the United States shall leave the subject in such position
that the concurrence of Great Britaiu is necessary to the establishment
of liegulations for the ])roper protection and preservation of the fur-
seal in, or habitually resorting to, the Behring Sea, the Arbitrators
shall then determine what concurrent Regulations outside the jurisdic-
tional limits of the respective Governments are necessary, and over
what waters such Regulations should extend, and to aid them in that
determination, the report of a Joint Commission, to be appointed by
the respective Governments, shall be laid before them, with such other
evidence as either Government may submit.
The High Contracting Parties furthermore agree to cooperate in
securing the adhesion of other Powers to such Regulations.
Article IX.
Each Government shall appoint two Commissioners to investigate,
conjointly with the Commissioners of the other Government, all the
facts having relation to seal life in Behring Sea. and the measures
necessary for its proper protection and preservation.
The four Commissioners shall, so far as they may be able to agree,
make a joint report to each of the two Governments, and tlicy shall also
report, either jointly or severally, to each Governmenton any points on
Avhich they may be unable to agree.
These reports shall not be made public until they shall be submitted
to the Arbitrators, or it shall appear that thecontingency of their being-
used by the Arbitrators can not arise.
Article XIV.
The High Contracting- Parties engage to consider the result of the
proceedings of the Tribunal of Arbitration as a full and linal settle-
ment of all the questions referred to the Arbitrators.
MODUS VIVENDI OF 1892.
Article I.
Her Majesty's Government will prohibit, during the pendency of the
arbitration, seal killing in that part of Behring Sea lying eastward of
the line of demarcation described in Article 1, of the Treaty of 1807
between the United States and Russia, and will ])rom]>tly use its best
efforts to ensure the observance of this prohibition by British subjects
aiul vessels.
Article II.
The United States Government will prohibit seal killing for the same
period in the same part of Beliring's Sea and on tlie shores and islands
thereof the property of the United States (in excess of seven thousand
fiv(^ hundred to be taken on the islands for the subsistence of the
natives), and will prom|)t]yuse its best efforts to ensure the observance
of this prohibition by United States citizens and vessels.
11
Article III.
Every vessel or person offending" against this proliibition in tlie said
waters of IJelning tSea outside of the ordinary territorial limits of the
United States may be seized and detained by the naval or other duly
connnissioned officers of either of the Higii Contracting Parties, but
they shall be handed over, as soon as practicable, to the authorities of
the nation to which they respectively belong, who alone shall have
jurisdiction to try the offence and impose the penalties for the same.
The witnesses and x)roof necessary to establish the offence shall also
be sent with them.
ARTICLE Y.
If the result of the arbitration be to affirm the right of British seal-
ers to take seals in Behiing Sea within the bounds claimed by the
United States under its purchase from Ilussia, then coini^ensation
shall be made by the United States to Great Britain (for the use of
her subjects) for abstaining from the exercise of that right during pen-
dency of the arbitration, upon the basis of such a regulated and limited
catch or catches as in the opinion of the arbitration might have been
taken without an undue diminution of the seal herds; and, on the other
hand, if the result of the arbitration shall be to deny the right of Brit-
ish sealers to take seals within the said waters, then compensation
shall be made by Great Britain to the United States (for itself, its cit-
izens, and lessees) for this agreement to limit the island catch to seven
thousand five hundred a season, upon the basis of the difl'eience
between this number and such larger catch as in the opinion of the
Arbitrators might have been taken without an undue dimiuution of the
seal herds.
There are no italics in the text I have just quoted. The regulations
proposed by the United States for adoption by the Tribunal of Arbi-
tration are in keeping with the suggestions contained in the motion
presented by Mr. Justice Harlan; but, while the British Government
denies to the tribunal the powers therein stated, the regulations offered
by that Government for our adoption would necessarily depend on the
assertion of the same powers.
They are as follows, the regulation numbered 8 having been pre-
sented to the tribunal and then withdrawn:
REGULATIONS.
1. All vessels engaging in pelagic sealing shall be required to obtain
licenses at one or other of the following ])orts:
Victoria, in the i)rovince of British Columbia.
Vancouver, in the province of British Colund)ia.
Port Townsend, in Washington Territory, in the United States.
San Francisco, in the State of CalitV)rnia, in th(; United States.
2. Such licenses shall oidy be granted to sailing vessels.
3. A zone of 20 miles around the Pribilof Islands shall be estab-
lished, within which no seal hunting shall be permitted at any time.
4. A close season from the lath of Septeuiber to the 1st of July shall
12
be ostablislied, during which no pelagic sealing shall be x)crnnttcd in
Bebring Sea.
5. No rities or nets shall be used in pelagic sealing.
G. All sealing vessels shall be required to carry a distinguishing flag.
7. Tlie masters in eharge of sealing vessels shall Iceep accurate logs
as to the times and places of sealing, the number and sex of the seals
captured, and shall enter an abstract thereof in their official logs.
8. Licenses shall be subject to forfeiture for breach of above regula-
tions.
Whence comes the power of this tribunal, asserted in this programme,
to bind Great Britain and the United States to enact laws requiring
all vessels engaged in pelagic sealing to obtain licenses at one or the
other o^ the following jiorts, viz: Victoria, Vancouver, Port Townsend,
and San Francisco? All o.f these are seaports on the Pacific Ocean,
and San Francisco is below the waters in which fur-seals are found or
hunted.
To make this regulation the tribunal must go 2,000 miles south of
Behring Sea, with its authority, and enter the seaports of both Govern-
ments.
Our authority, thus conceded, to make regulations to protect and
preserve the fur-seals in or habitually resorting to Bering Sea, must
not only enter within the ordinary 3-mile limit of each of these
sovereign powers, under this programme, but, while there, it must
destroy the pelagic hunting rights of all owners of steam vessels and all
the persons who hunt seals in canoes, by denying to them a license for
pelagic sealing. We must, while in these ports, disarm pelagic seal
hunters of rifles and nets while leaving to the licensees the use of the
deadly double-barreled shotguns, repeating pistols, and swivels. While
there w^e are expected to regulate navigation by creating a new inter-
national flag for the benefi t of the four i)orts that are given the monop-
oly, by these proposed regulations, of outfitting all licensed sealers
and, consequently, of handling the great spring catch.
Tlien when we are engaged in establishing a close season during which
no pelagic sealing shall be permitted in Bering Sea, we must also fix
the boundaries of that sea, not yet fixed by any law or treaty. Othei--
wise, we can not define the boundary that shall separate innocence
from guilt in pelagic sealing.
Inside Bering Sea, we must fix and demark a zone of 20 miles around
the Pribilof Islands within which the seals shall live and pelagic
sealing shall perish.
None of these various regulations — which would destroy some private
13
riglits of the people and build up others; would create monopolies for
some towns, to the great disadvantage of others; would build up some
railroads and cripple others — are so clearly within the power of this
tribunal to protect and preserve the fur-seals as the determination of
a close season in the Pacific Ocean, or of the prohibition of all pelagic
sealing would be.
The British Government, through its attorney- general, can give
authenticity to any plan we may adopt for carrying out the purposes
of the treaty, so as to bind that Government at least, and although the
regulations thus presented to the tribunal may involve an award by
the tribunal that would be ultra vires, if they should be adopted, the
award would have the valid and binding consent of Great Britain.
The United States cannot be thus pledged to any consent decree and
must accept what we award without question, except that the tribunal
must act within its just powers under the treaty.
The regulations thus authentically proposed by Great Britain, being
entirely inconsistent with its contention that the powers of this tribu-
nal are confined to the area of Bering Sea, it is justly to be considered
that the objection to the exercise of a more extended field of jurisdic-
tion is waived, or abandoned, by that Government.
The examination and decision of the questions of the right of property
in the fur-seals in, or habitually resorting to, Bering Sea, and the right
to protect them claimed by the United States necessarily extends the
jurisdiction of this tribunal on that question to the North Pacific
Ocean.
In every important feature the case is an entirety, and all its parts
must be construed in pari materia. It is beyond my comprehension
that the jurisdiction of the tribunal should require us to make an
investigation into a great variety of facts and the laws governing the
rights of the United States as to property and protection in the Pacific
Ocean, and tliat, when the protection of its rights is reached, the
jurisdiction of the tribunal should suddenly cease.
Yet, if the objection of Great Britain is still urged, it is apparently
the only method of avoiding a very embarrassing condition, that the
Tribunal of Arbitration should present to both Governments the pres-
ent attitude of the question and ask them, by a formal agreement, to
remove the difficulty.
Mr. Justice Harlan and myself have stated to the tribunal our con-
viction that the United States would regard the decision of the tri-
14
bunnl as being in violation of tlic plain provisions of the treaty if tliey
should hold that they have no i)ower under the treaty to extend what-
ever regulations they may find to be necessary for the i^roper protection
of the fur-seals into the Northern Pacific Ocean.
As we fully concur in that view of the treaty and believe that the
seal herd will be speedily destroyed if proper regulations for their pro-
tection in Behring Sea and in the North Pacific Ocean are refused, we
feel compelled to seek a full opportunity to present the subject to our
colleagues without tlie embarrassment that must attend its investigation
in the presence of a pending and undecided objection on the part of
Great Britain that we have no right to consider the subject of regula-
tions applicable to the North Pacific Ocean, because this tribunal has
no power to award any regulations to apply outside the area of Behring
Sea.
We believe that the proper way and, indeed, the only way to secure
an unembarrassed consideration of this subject on its merits is to
take up the objection of Great Britain to the jurisdiction of this tri-
bunal and dispose of it. I believe that every consideration of just and
proper procedure in this case requires that this vital question as to the
powers of this tribunal should be disposed of before any other question
in the case is taken up. The questions of extending regulations beyond
the area of Behring Sea into the North Pacific Ocean and of prohibit-
ing pelagic sealing in Bering Sea can never be fairly considered upon
their merits under the pressure of a pending objection made by Great
Britain that, whatever convictions an Arbitrator may have as to the
necessity of such regulations, the tieaty forbids such action by the
Tribunal of Arbitration.
The justice of the request that this question shall be disposed of in
limine, aside from its logical propriety, is manifest, when it is considered
that Great Britain has made this serious objection to the powers of
the tribunal and yet insists that its objection shall not be heard until
the case has been heard and decided, in all other respects, upon the
merits.
Can it be justly claimed that, if the case should be decided in favor
of the contention of Great Britain on every other point, on the merits,
that Government could at its pleasure, peruiit or prevent regulations
from being adopted applicable to the North Pacific Ocean, however
necessary they may be, on the ground taken in its objection to the
jurisdiction of this tribunal that it has no j)ower under the treaty to
make such regulations ?
15
It should be determined, now, Avlietlier, in the judgment of this
tribunal, ii i)ower of this dangerous magnitude can be wisely or justly
left in the control of either party.
If this power to extend regulations to include an area in the North
Pacific Ocean does not exist, as Great Britain asserts that it does not
exist, no concession on the part of that Government could create the
power, without the consent of the United States. It would require a
change in the treaty to create that power if it does not exist.
The only ground that can be taken, in the situation presented by the
objection of Great Britain, is that the Tribunal of Arbitration will
decide the question and leave it to the respective Governments to deter-
mine what course they will pursue in view of the decision. It will result
in tins, at last, for they are sovereign Governments and there are none
who can compel either of them, by any peaceful means, to accept and
perform an award which they may believe violates the treaty under
which this tribunal is acting.
I disclaim all authority to speak for the United States and I deny
the riglit of any other person to bind that Government by any declara-
tion or act that is not clearly authorized by the treaty.
I only speak for myself when I state my conviction, that the objec-
tion urged by Great Britain to the power of this tribunal to mjike reg-
ulations to protect the fur-seals, which shall have full operation out-
side of Bering Sea, if it is sustained by this tribunal, will destroy a
loading and most important feature of the treaty.
From some observations of Lord Hannen, when Mr. Justice TTarlan
IHcsented the propositions I have been discussing, I find that his objec-
tion to the second proposition is to some extent based on the point
that there is in that proposition a delimitation of the area of waters
in the Pacific Ocean, over which the regulations, if adopted, will extend.
I understand Mr. Justice Harlan to say that such is not his intention,
or his construction of that resolution.
ISTow, in order that the question of the power of the tribunal to make
regulations that will extend to the Pacific Ocean, outside of Bering Sea,
and outside of territorial limits, may be presented in a more distinct
form, if possible, I will ofter the following as a substitute for the two
propositions offered by Mr. Justice Harlan, which, I think, covers the
substance of both the propositions he has offered, and I hope it may
remove the objections that are made by Lord Hannen to the form of
those prox)ositions:
16
"This Tribunal of Arbitration is empowered by tlie treaty of Febru-
ary 29, 1892, between tlie United States and G-reat Britain, to determine
what concurrent regulations are proper to be adopted and enforced by
the action of the respective Governments, applicable to their respective
citizens or subjects, outside of their respective territorisil limits and
outside of Bering Sea, for the protection and preservation of fur-seals
in, or habitually resorting to, Bering Sea."
At the conclusion of the foregoing remarks Mr. Justice Harlan
accepted this declaration, oifercd by Senator Morgan, as a substitute
for those proposed by him, and moved the ado]jtion of the same.
A QUESTION BEING UNDER DISCUSSION AS TO THE PROPER ORDER IN
WHICH THE MATTERS SUBMITTED TO THE TRIBUNAL FOR EXAMI-
NATION SHOULD BE TAKEN UP AND DISPOSED OF, AND AS TO THE
GENERAL POWERS AND DUTIES OF THE TRIBUNAL, SENATOR
MORGAN MADE THE FOLLOWING PRELIMINARY REMARKS TOUCH-
ING THE SAME :
TIic subject with which the tiibiuial is to deal is a practical one
of the highest importance. On the part of Great Britain a claim
asserted, as a sovereign power, on behalf of her subjects, to the right
of pelagic hunting of fur-seals in, or habitually resorting to Bering
Sea, iu all the waters of the North Pacific Ocean that are not inc^hided
within ordinary territorial limits, without any restriction^ or quali-
fication, as to the time, place, or manner of their destruction.
In the Case of Great Britain, as it is stated to the Tribunal of
Arbitration in conformitj^ with the requirements of the treaty, this
claim is presented in the broadest form and the present method of
l^elagic hunting is justified as being within that claim of right, under
international law.
Great Britain has cited the principles of international law, and
certain analogies relied upon to support her case. The Government
of the United States, under the same requirement of the treaty, has
presented its case upon the law and evidence iu like manner.
The claim of the United States is made in the name and on behalf of
that Government, which asserts that it is the sovereign owner of the
fur-seals that habitually resort to the waters of Bering Sea and to the
islands within that sea that are east of the water boundary between
Russia and the Ujiit-ed States of America, and that it owns these fur-
seals as property, as a source of revenue, and as an instrumentality of
government.
In one aspect of this claim, the ownership of the animals is alleged
to be complete. In another aspect, the alleged ownership is stated as
a right to have and enjoy the usufruct of these seal herds, for the sup-
17
11495 M 2
18
port oP a logitimato indnstry established by the United States on the
islands of St, Paul and St. George, in Bering- Sea.
Two distinct '^ cases" are thus presented to the Tribnnal of Arbitra-
tion for consideration and decision, and, while they are not consolidated,
as cross actions arc often set down by the conrts as comprising one
case, they are to be heard at the same time and the same evidence may
be used.
Eacli "case" must stand upon its own merits, and it does not neces-
sarily result that a decision in favor of either Government upon the
case presented by it is a denial of all that is claimed in the case of the
other Government.
While the award to be made by the Tribunal of Arbitration may
aflirm in whole or in part the claims so asserted by either Govern-
ment, it is not a finding in the nature of a recovery of property or
judgment for money, as damages or otherwise, in favor of either party
as against the other, but is an assent by both to a settlement of con-
troversies between them in accordance with the terms of the award
which the Tribunal of Arbitration shall malve. When the award is
so made, tlie result is the same as if both Governments had stipulated
in the Treaty, in terms, that which shall be e:>v pressed in the award.
In this sense, and to this effect, whatever shall be declared in the
award will he a findimj in favor of both Governments.
ISTo rule is given or intimated in the treaty to indicate whether the
tribnnal is to take the international law, or a just view of the comity
of nations, or the peculiar relations of the two Governments to this
subject, as a guide to their decisions, or whether the rigid rules of law,
or equitable considerations are to govern, and whether the tribunal is
held to an unbending rule of law, or whether there are exceptions to
it growing out of long usage or governmental necessities which should
qualify the right claimed by either party.
Another important consideration was in view when the treaty Avas
made, namely, the necessity for a declaration on their part, reaching
beyond the mere question of the inteiests of the United States and the
subjects of Great Britain in the Alaskan herd of fur-seals, that the
ultimate assertion of governmental control over the subject by all the
countries to which fur-seals resort in their breeding season should be
established by the consent of the United States and Great Britain.
It was a. just expectation that all such countries would find, in the
results of this investigation, suflicient reasons for adopting the rules,
19
or principles, that this tribunal would establish for the protection of
fur-seals.
The destruction of the fur-seal species in the southern lieniisphere,
in a commercial sense, had already resulted from iiuliscriminate
slaughter on land and sea. The slaughter had been conducted as a
matter of right upon the idea that none of those countries had treated
the fur-seals as domestic animals, or animals that were attached to
the soil, or as domesticated animals entitled to protectit)n as property,
but had permitted them to be treated as wild animals, subject to cap-
ture by everyone at his pleasure. The people of the United States
and of Canada, and of many other countries, had exercised this
assumed right of capture of fur-seals in tbe Antarctic Seas until
within a recent period.
After the southern herds had been virtually destroyed, the coloniza-
tion of Europeans in extreme southern latitudes led to the investigation
of this subject and the enactment of laws for the prote(^tion of fur-
seals in the hope that their numbers could be thus restored. These
efforts are most noteworthy in the British colonies of Kew Zealand and
the Cape of Good Hope. These legislative ijrovisions were tentative
rather than conc^lusive in their operation upon the right of i)elagic
hunting, within the prescribed limits of protection, by the people of for-
eign countries. While foreigners were included in the general terms
of the statutes enacted to protect fur-seals, room was left for the ques-
tion whether they could be rightfully included within the protection of
the intern atioiurl law if the pelagic hunters chose to mate objection.
In the a,bsence of such statutes, the right of pelagic sealing was not
questioned, except in seas and bays that were claimed as being closed
for such ]uirposes, such as Behring Sea, the sea of Okhotsk, and the
waters in and around the Jai)ancse archipelago.
By insisting upon peculiar rights and powers of protection over fur-
seals in such waters Kussia and Japan had, in a large measure, pre-
served their herds from destruction. But there was then, and until
recently, no one to assert, in the name of any Government, that pelagic
sealing was an invasion of national interests, or rights of property, in
fur-seals. The question was not raised by any serious dispute, by other
powers, of the right of protection of fur-seals as asserted by Eussia;
and her policy stood opposed to the alleged right, in a negative way
rather than by an active assertion attended with serious controversy
or force. Such respect was paid to her well-known attitude on the sub-
20
ject that uo occasion offered to test the question wlietlier a riglit of
X)elagic hunting cxistetl, under the laws of nations, which was superior
to Eussia's right to protect the fur-seals against tresptissers on the
high seas, or within Bering Sea, when they were found more than
3 miles from her coasts and islands.
This question was never, in fact, raised in any practical way as a
matter of international dispute, until the present controversy between
the United States and Great Britain.
The question is, therefore, entirely new, without any actual prece-
dent for its control, and also Avithout analogy for its illustration, because
no other animals yielding valuable products to commerce have the habits
of the fur-seal, and none are compelled by the necessities of existence to
place themselces so entirely within tJw dominion of man. This award,
therefore, dealing with questions that are entirely new, will com})lete
the treaty between these two great powers, and establish between
them fixed rules of conduct in respect to the protection and preserva-
tion of fur-seals in waters outside the limit of the jurisdiction of the
respective Governments. These rules will be a new compact ot inter-
national agreement, based on rights and duties that are, as yet, without
accurate definition and without regulation.
The interests of peace and good will being the great moving causes,
and the benefit of mankind and the requirements of humanity being
included in the results of this arbitration, it is seen at once that it was
necessary and proper to entrust these great powers to a Tribunal of
Arbitration having very broad discretion and liberty of action.
The proper understanding of the scope and purpose of this treaty is
to be gathered, also, from the diplomatic corresi)ondence that attended
its negotiation, and from the various projiositions and agreements that
took final shape in the text of the treaty.
The agreement between the two Governments in the convention trents
thei)reservationandprotectionof the seal herds in a broad and rational
way, and assumes that both Governments will freely and cordially
exercise their powers for that purpose.
This is not a controversy in which the award will fix the title to spe-
cific chattels in either of two claimants, or give compensation, in dam-
ages, as for the conversion of such chattels. It is not a lawsuit
between the United States and Great Britain. There are no special
issues joined between them. All the questions are put to the tribunal
interrogatively, and the award will settle principles and regulations
21
that will need to be enforced by the concurrent action of the two Gov-
ernments. There can not be any self-executing powers included in the
award. The rights and duties that are ascertained by the award will
remain to be enforced by the sovereign powers of the Governments
concerned.
The right of property in a herd of seals within tlie meaning of this
treaty can not depend on the question whether every animal of the
herd was born on land belonging to the claimant. If this question
could arise, in any practical sense, it could only arise between Eussia
or Japan and the United States, and not between Great Britain,
claiming no seal herds, and the United States, that claims a herd that
habitually resorts to the Pribilof Islands. The questions submitted in
this treaty for arbitration do not hinge upon the place of nativity of
individual seals, but relate to those seals that resort habitually as herds
to the islands of the United States, and they turn upon that fact as to
their identitication. This question of the intermixing of the heras
with those of Eussia was not raised in the correspondence that led up
to this treaty, nor is it referred to in the treaty, unless it is included in
the inquiry as to the right of property in the seals. That inquiry relates
to the right of property in the seals in, or resorting to, Bering Sea,
without reference to the place of their nativity. If they have that
habit, Great Britain and the United States have agreed in this treaty
that such a resorting to Bering Sea is the fact that identities them as
the subject of the award to be rendered in this case.
If the award is that the United States have a property in the seals
so resorting to Bering Sea, or found in that sea, it fully covers the
question that the Arbitrators are required to settle on the subject of
property in seals. If there are other questions beyond this as to
the title of the United States to individual seals, while living, the
decision of tliem does not fully dispose of any right claimed by Great
Britain to kill them when found singly or in small parties far out in the
ocean; nor will it diminish any right claimed by tlie United States to
protect and preserve them if they can be identified as belonging to the
Alaskan herd, though they may have been born upon Eussian soil.
All the rights claimed by the United States in this treaty relate to
the protection and preservation of the lives of seal herds. All the rights
claimed by Great Biitain and so submitted for arbitration, relate solely
to the right of the destruction of individual seal life in order to secure
the pelts. There is no right of property in any single, living seal.
22
w'lietlier it is found on slioro or swiniiniiig' in tlie sen, tliat is m oontro-
versy bet\A'eeii tliese Powers under the provisions of tliis trcnty.
The controversy submitted to the Arbitrators is in respect to the
preservation of an entire body of fur-seals. It is impossible that the
Arbitrators could declare in favor of Great Britain, on the case here
presented and upon the questions submitted in the treaty, that living
seals found at sea are the property of that Goveriuucnt or of its
subjects.
The case submitted by Great Britain is a general and special denial
of all proj;)crty hi seals until they are hilled. But the Arbitrators can
make an award of the "rights of property" in a herd of living- seals to
the United States, because such rights are included in the submission
and are claimed in the case of the United States.
The United States claim the property interest in the seals under
this arbitration, not for their justification in destroying them at sea or
on the land, but for the sole purpose of protecting them against pelagic
hunting, while Great Britain denies all such property rights until the
seals are killed, and claims the right to kill them anywhere that a
British ship can lawfully go. And the treaty, being framed to settle
these claims, on its face admits that, if the seals resort to Bering Sea,
that fact x>resents fully and sufficiently the question of the property
right on which the claim of the United States to protect and preserve
the seals is to be founded, and leaves the question to be settled by the
Arbitrators whether there is vested in the United States, as between
these parties, a right of property in the seals that are in, or habitually
resort to Bering Sea.
The distance of 150 miles from the eastern coasts of the North Pacific
Ocean is the extreme limit, to the westward, of i)elagic hunting in that
part of the ocean that bordeis on the North American continent.
Between February and June, when the seals are approaching Bering
Sea, the Japanese and Kussian herds are moving along the coasts of
Japan and Kussia, not less than G,OUO miles away from tlie Alaskan
herds. If any stray Russian or Japanese seals have found their way
across the Pacific Ocean to the American coast and into the Alaskan
herd, that fact could not affect any riglit of property that the United
States may have in the body of the herd. And when that right of
property is asserted for the protection and preservation of the estrays
it is sufficient to justify all proper ef(V)rts and force that may be requisite
to that end. Even tJiough Russia or Japan may have a higher prox)erty
23
right tlian that of the United States in individnal seals, yet, if their seals
are gone estray and are found in the Ahiskan lieids, the United States,
if tlieyown those herds, or have the power to protect tlieni, may also
lawfully and justly protect the estrays against everybody except the
owner.
Two questions of right are presented in point o of Article VT, viz:
The right of property in the fur seals and the right to [>rotect them.
These rights are not identical under all circumstances.
The right to protect property may exist in one who neither has nor
claims to have any absolute ownership of the property, and this right
has a peculiar force and value on the high seas, where the exposure of
property to destruction is great and tlie persons are few who may be
able to protect and preserve it. The right to protect property is an
element of its ownership, but that right does not always depend on
ownership. In this treaty care is taken to submit to the Arbitrators
the separate rights of property and of protection as to the seals in or
resorting to Behring Sea.
It musu be admitted tinit these questions in all their beaiings are
entirely new. It is their novelty tliat has led to this Arbitration, If
thej^ had been capable of solution under the rules and pi'ecedents of
international law it must be assumed that two great Governments,
equally desirous to protect and i^reserve the fur-seals, would bave
readily agreed as to wbich of them was charged with or entitled to per-
form that duty. In the absence of such rules and precedents of inter-
national law it was wise and just to submit these questions, as new
ones, to arbitration.
The tact that both Governments are required by the treaty "to
cooperate in securing the adhesion of other Powers to such Reguhitions"
as shall be established by the tribunal, is an indication tliat is really
conclusive of the fact that they both expected that the award might be
based on new principles or on newly stated exceptions to old rules.
If the award could not properly be based on well-settled ])rinciples of
international law, the reason for securing the adhesion of other powers
would be obvious, whereas that would be ah unnecessary act if the
award could be based only upon the concrete principles of internatiomil
law, for other nations must be understood as knowing and abiding by
the international law. Why should they be asked to give their adhesion
to an award that would hold the United States and Great Britain oidy
to a faithful observance of international law?
24
This is a controversy between two Governnionts tliat hold a pecnliar
relation to tlie fur-seals in the eastern waters of the North Pacific
Ocean. The peculiarities of that situation must, larj^ely, control or
modify the equitable rights of the parties in their dealings with the
subject and in the establishment of regulations to secure their obedi-
ence to the rules of right and justice that pervade all laws.
The two Governments resorted to arbitration for the peaceful settle-
ment of their controversy, because the strict and unbending rules of
international law, or their meager treatment of such subjects, were not
equal to the emergency of the case, nor offered a precedent for the
satisfactory adjustment of the right claimed by the United States. The
settlement of this matter does not, necessarily, establish any rule
of international law, or declare any such rule. It will establish a
rule, inter partes, which they, by agreement, may rescind at pleasure.
It can only become a rule of international law by the general adhesion
of other powers.
So, I hold that the duty is included within the scope of the powers
of this tribunal to determine what are the just and equitable powers
and rights of the respective Governments that should be exercised
severally, or concurrently, in maintaining and executing the avowed
purpose of both, to protect and i3reserve the fur-seals. The question
of the right of property, or protection, has this relation, and none
other, to the great and novel subject submitted to this tribunal.
OPINION DELIVERED BEFORE THE TRIBUNAL OF ARBITRATION
BY SENATOR MORGAN, JULY 22, 1893, AS TO THE PROPER TIME
FOR THE CONSIDERATION OF THE HISTORICAL QUESTIONS
SUBMITTED TO THE TRIBUNAL.
July 20, 1893, Mr. Morgan submitted the folio wiug answers to points
1, 2, 3, and 4, of Article VI of the treaty, for the consideration of the
tribunal:
1. From the time that Eussia first discovered and occupied Behring
Sea and the coasts and islands thereof until she ceded a portion thereof
to the United States she claimed the seal fisheries in Behring Sea,
and exercised exclusively tlie right to the usufruct and to own the prod-
uct of such seal fisheries, and to protect the same against being inter-
fered with in those waters by the people of any other country; and also
the exclusive jurisdiction that was found necessary for those purposes;
and also the exclusive jurisdiction to regulate the hunting of fur-
seals in those waters and to grant the right of hunting them to her
own subjects.
2. The attitude of Russia toward tlie fur-seal fisheries in Behring
Sea, as described above, being known to Great Britain, she acquiesced
in the same without objection.
3. The rights of Russia, as above stated, remained unaffected by
the treaty of 1825 between Russia and Great Britain, and were held
and exclusively exercised by Russia after tho date of said treaty as
they were before said date. The phrase "Pacific Ocean," as used in
said treaty, did include the body of water now known as Behring Sea.
4. All the rights of Russia, as described in point 4 of Article VI of
the treaty of February 29, 1892, passed unimpaired by the treaty of
March 30, 18G7, between Russia and the United States.
The following statements submitted to the tribunal by Lord Hannen
and by Baron Courcel, respectively, while coinciding in the same find-
ings as to the conclusions drawn from the facts of history, differ as to
the facts upon which their respective conclusions are rested.
STATEMENT BY LORD HANNEN, SUBMITTED JULY 21, AS ANSWERS TO
QUESTIONS CONTAINED IN ARTICLE VI OF THE TREATY.
To question 1. — Russia never exercised exclusive jurisdiction in
Behring Sea, outside the ordinary 3-mile limit. In 1821 she asserted
exclusive jurisdiction over a part of Behring Sea, viz: For 100 miles
along its coasts, by imperial ukase. But she witlidrew tlie assertion
of jurisdiction expressed in the ukase, on tho demand of Great
Britain and the United States, and never afterwards asserted or exer-
cised such jurisdiction.
25
26
Eiissia never exercised exchisivo riglits in tlic seal fislieries in Beliring
Sea outside tlie aforesaid limit. In 1821 she claimed, by tlie aforesaid
ukase, exclusive ri<j;lits of all kinds (as included in her claim of juris-
diction), extending for 100 miles along- the coasts of Uehring Sea; but
she withdrew the assertion on the dejnand of Great Britain and the
United States, and never afterwards asserted or exercised such rights.
The only exclusive right which Russia subsequently exercised as to
the sea was the ordinary right conceded by international law for 3
miles from land.
To qve.Htio)i 2. — Great Britain never recognized or conceded any claims
of Kussia of jurisdiction as to the seal fisheries, except as to the ordi-
nary 3 mile limit.
To question 3. — The body of water known as Behring Sea was in-
cluded in the ])hrase "Pacific Ocean, "as used in the treaty of 1825 be-
tween Great Britain and Russia.
Russia neither held nor exercised any rights in Behring Sea after
the treaty of 1825, save only such rights as were allowed to her by
international law within the ordinary 3-nnIe limit.
To question 4. — That Russia liaving had no rights as to jurisdiction
or as to the seal fisheries in Behring Sea, except as to the lands ceded
and the ordinary 3niile limit bordering the same, it follows tliat
no other rights passed to the United States under the treaty between
the United States and Russia of March 30, 1807.
STATEMENT PRESENTED BY BABON DE COVIICEL, JULY 25, IN ANSWER
TO POINTS 1, 2, 3, AND 4 OF THE TREATY.
I. The extent of authority asserted and exercised by Russia in
Behring Sea, previously to the negotiations which led to the conclusion
of the treaty of February 10-28, 1825, between Russia and Great
Britain, does not appear with historical certainty, but it results from
a dispatch of Count Nesselrode to Count Lieven, in date of St. Peters-
burg, the 2(>th of June, 1823, communicated to the London cabinet on
the lltli of August ensuing, that the surveillance of the commanders
of the Imperial Russian navy was to be exercised henceforth, under
their instructions, in the region of Behring Sea over an extent of water
that should be within cannon shot from shore; and although those
instructions were stated as being provisional in the dispatch of Count
IsTesselrode, it does not appear tliat since that time n]) to tlie time of
the cession of Alaska to the United States the Imperial Government
of Russia exercised or asserted in Ijchring Sea, outside of tlie limit
aforesaid, any exclusive jurisdiction either of a general character or in
connection with the seal fisheries.
II. Great Britain has not recognized or conceded any jurisdiction of
Russia as to seal fishery beyond the limit of territorial Avaters.
III. The body of water now known as the Behring Sea was included
in the phrase "Pacific Ocean," as used in the treaty of 1825 between
Great Britain and Russia, and alter said treaty Rnssia neither held
nor exercised in the Behring Sea, outside of territorial waters, any
exclusive rights.
IV. All the rights of Russia as to the jurisdiction and as to the seal
fisheries in Behring Sea east of the water boundary in the treaty
between United States and Russia of the 30tli of March, 1807, passed
unimpaired to the United States under that treaty.
27
These variances, if not disagreements, as to tlie historical inquiries
submitted to the tribunal in the first four i)()ints of xVrticle VI of the
treaty, in my judgment, furnish a conclusive reason in snpport of a
raotion I intend to submit for the postponement of a v^ote on points 1,
2, 3, and 4 in Article VI of the treaty, uutil the tribuiuil shall liaA^e
reached a conclusion as to the rights of the United States, as to prop-
erty and protection in the fur-seals.
On July 22, when tlie subject of the answers to be made to points 1,
2, 3, 4, of Article VI of tlie treaty, was under consideration, I ha-d the
honor of submitting the following motion and remarks:
"I move that no decision be made upon the first four points in Article
VI of the treaty, at this time, but that this historical matter be laid
aside until the tribunal has considered and decided the legal questions
submitted for award in the treaty, in whatever order may be adopted.
I will state the grounds for this motion:
"Prior to March 30, 1807, Kussia owned all the coasts and islands
washed by the waters of Bering Sea, and yet owns all west of the
water boundary fixed in her treaty of that date witli the United
States.
"Eussia has the same rights of jurisdiction in the western portion of
Bering Sea that the United States has in the eastern portion. If we
could reach an agreement as to what tliose rights are it would be lar
better, if it was possible, that it should not be formulated into an award
in the absence of Eussia from tliis hearing.
"Eussia alone can state what exclusive jurisdiction she asserted and
exercised and what exclusive rights in the seal fisheries she asserted
and exercised in the sea now known as Bering Sea prior to 1825, or
since that date and until 1867, so far as such statements can att'ect or
describe her attitude as a sovereign with reference to that sea and
the surrounding coasts and the islands washed l)y its waters. These
matters rest in intention and are established by assertion and are
proven, where ijroof is needed, by the exercise of authority over
Behring Sea and its islands and surrounding coasts, and, where the
sovereign rights of Eussia are challenged and put upon trial, Eussia
should be present if the decision is to have any bearing, immediate or
remote, upon her rights or any effect on her sensibilities, so important
to be regarded in the comity of nations.
"Eussia has retained rights and interests in the fur-seals and fisheries
of every kind in the western part of Bering Sea and on the coasts and
28
islaTuls tliereof, wTiicli are the same as to origin, assertion, and exer-
cise, and as to all sovereign powers, as tliose tliat are claimed and
exercised by the United States. Eussia is still guarding her rights
in tlie form and to the extent that she is making a claim or assertion
of them with sedulous care, and Great Britain is actively engaged in
treating with her for the definition and settlement of those rights.
While treating with Eussia she is arbitrating with the United States
about the identical questions that equally concern both countries."
A nmin feature that seems to control the opinions of the Arbitrators
in determining what are the rights of the United States is the action
of Eussia, its conduct in fact, as it is alleged, j9ro and con, in first assert-
ing, and then abandoning the assertion that Bering Sea is mare
clausum; in issuing her ukase in 1709 and abandoning some of its vital
features and adding others by a later ukase in 1821 ; in wiping out
all of the pretensions set up in both ukases by the treaty concluded
with the United States in 1824 and with Great Britain in 1825: in
instructing her minister at Washington to deliver to the United States
an explanatory protocol, defining more clearly her construction of the
treaty of 1824, which instructions were violated under impressions made
upon him by the Secretary of State, and, after this w^as done, proceeding
under the text of the treaty as if no qualifying statement would ever
be relied upon by Eussia; and in renewing her charter to the Eussian
American Company in 1831 with the same exclusive i)rivileges as were
granted to it in 1821. In the opinions of the arbitrators, now aelivered,
these questions, so closely related to the conduct of Eussia for a j)eriod
little short of a century, are dealt with and are to be decided by this
tribunal.
Whether Eussia had any right under international law, or any other
law, to assert and exercise exclusive rights or exclusive jurisdiction in
Bering Sea, can not alter the fact that she did, or did not, assert and
exercise them. Neither can these facts be altered by Eussia's con-
structive modification or abandonment of the attitude she had previ-
ously held to these subjects. The only question is, what did Eussia
intend to assert in respect to these matters, and whether she executed
that intention in dealing with these subjects. In the opinions deliv-
ered, strict history, as to facts, seems to have received a coloring of
legal and diplomatic opinion in the effort to ascertain what Eussia did
and intended to do, by first ascertaining what it was her duty to do
under the international law and the comity of nations.
29
In my judgment, if Russia chose to violate tlie international law and
to repudiate all comity, her attitude was not altered because it may
have exposed her to unfi-ieudly criticism provoked by the pressure of
adverse interests on the part of the United States or Great Britain.
At all events, any such departures of the tribunal from the strict duty
of stating this history, confined to the subject of fur-seal fisheries in
Bering Sea, without reference, deduction, conjecture, opinion, gloss,
or comment, will only provoke the prompt dissent of Russia, or will
cause Great Britain and the United States, whenever their policies so
require, to declare that our decision is not warranted by the strict
nature of the inquiry submitted to us, and is obiter dictum.
I consider it a happy circumstance that in the opinions delivered
on this subject there is such contrariety and conliict that, if they are
adhered to, we are obliged to show that a majority of the tribunal
are unable to agree upon an identical answer as to the historical facts
submitted for inquiry and decision in the first point and in the last
clause of the third point of Article VI.
And inasmuch as an agreement of a mnjority of the tribunal as to
the historical facts so required to be stated is the essential basis of
the decision of the other matters presented in points 2 and 3, I resi)ect-
fully insist that we have not been able to reach a decision ujion them,
and for this reason a majority of the tribunal can not actually decide the
inquiry stated in points 1, 2, and 3 of Article VI.
The matters presented for historical inquiry and decision in points
1, 2, 3, and 4, of Article VI, relate only to a derivative right of the
United States to the fur-seal fisheries, as they are termed, in Bering
Sea, and the exclusive jurisdiction over that sea to control and protect
such fisheries. These questions are presented and may be considered
and decided, upon the facts and law that must control our decision,
under the submission of questions of a judicial nature, in points, of
Article VI, and in Articles I and VII of tiie treaty. In so consider-
ing and deciding them we need find no occasion to express, in oar
award, any conclusions that may impinge upon any right of Russia,
or call it in question, or that may unnecessarily wound her sensibilities.
It may also turn out that a final award will be reached as to the
rights of property and protection claimed by the United States, or the
rights of pelagic sealing claimed by Great Britain, based upon consid-
erations entirely apart from any derivative rights of the United States
that may have come to that Government from Russia.
30
At all events, the disngrcenients already developed among^ tlie mem
bers of tbe tribunal, as to the matters with wliicli the interests of Russia
axe so closely bound up, admonish us that we should lay this matter
aside until we have considered the subject before us under Article I,
and point 5 in Article VI, Article VII, and any others that open up an
inquiry into the juridical features of the questions that are submitted
to the tribunal.
The opinion and summary of facts presented by Lord Hannen is con-
curred in by Sir John Thompson. The opinion of Marquis Visconti
Venosta is concurred in by Mr. Gram. These opinions, whatever the
conclusions of fact to be drawn from them may be, are not identical
in statement or reasoning. In the absence of copies of these opin-
ions, I am not able now to compare and contrast them as I would feel
it my privilege to do. These opinions deal with the rights and con-
duct of Russia in different lights. I do not say that they purposely
deal with the present rights of Russia, but that effect is unavoidable
if any weight is to attach to our findings.
Four Arbitrators will agree upon these historical facts, if four
agree to Lord Hannen's syllabus, while three dissent. This is not a
secure basis of historical decision of facts that concern a living and
great nation and her riglits, in matters that are now the subject of her
anxious care that are under diplomatic consideration in correspond-
ence with Great Britain. An opposing view of this history, presented
by me, has the concurrence of Baron de Courcel and Mr. Justice Har-
lan, to a considerable extent. There is a divided opinion in several
directions, and this chapter of history, if it is written, will go forth
encumbered with serious doubts and objections.
After further discussion, the answers to be made to the first four
points in Article VI of the treaty were informally laid aside to enable
Mr. Justice Harlan to formulate his answers.
THE TRIBUNAL HAYING AGREED TO CONSIDER THE EIRST FOUR
POINTS STATED IN ARTICLE VI OF THE TREATY, IN CONNECTION,
AS A GROUP OF QUESTIONS, SENATOR MORGAN SUBMITTED HIS
VIEWS OF THE CLAIMS OF RUSSIA, AND OF THE UNITED STATES
DERIVED FROM RUSSIA, UNDER THE TREATY OF 1807, AS THE SAME
ARE PROPOUNDED IN THE TREATY OF 1892 IN THE WORDS FOLLOW-
ING:
1. What exclusive jurisdiction in the sea now known as Bering Sea,
and what exclusive rights in the seal iisheries therein did Russia as-
sert and exercise ])rior and up to the time of the cession of Alaska to
the United States"^
2. How far were those claims of jurisdiction as to the seal fisheries
recognized and conceded by Great Britain?
3. Was the body of water now known as the Behring Sea included in
the phrase ''Pacific Ocean," as used in the treaty of 1825 between
Great Britain and Ilussia; and what rights, if any, in the Behring
Sea were held and exclusively exercised by Russia after said treaty?
4. Did not all the rights of Russia as to jurisdiction and as to the
seal fisheries in Behring Sea east of the water bonndary in the treaty
between the LTnited States and Russia of the oOth March, 1807, pass
nnimpairedto the United States nnder that treaty'?
As the tribunal seems to agree unanimonsly in giving an afiSrma-
tive answer to the fourth point I will not discuss it.
A like unanimity seems to exist as to the answer to the first inquiry
under question 3, which makes it unnecessary that I should comment
upon that question.
All the questions submitted under the four points of Article VI are
historical rather than judicial in their character as to the facts to be
ascertained and as to the conclusions to be based upon them, except
the question presented in the second point, which 1 consider a mixed
question of law and fiict. It is upon this view of the duty of the
tribunal in the consideration of these questions that my opinions are
rested.
The situation of the western aud northwestern coast of North Amer-
ica in 1824 was practically that of an unoccupied and uninliabited
country to the north of Puget Sound. A few scattered tribes of
Indians inhabited the vast reach of coast, from San Francisco to the
31
32
frozen ocean, not less than 4,000 miles in length. The claims of
Great Britain, Russia, Spain, and the United States to certain
boundaries along this great reach were based on alleged discoveries
and occupation, all of the most iudefinito character, and all ditiputcd,
except that Russia held and occupied the islands and coasts on all
sides of Bering Sea and this claim was not disputed by any country.
This claim was thus held and recognized for many years before ISli-l,
reaching back to the discovery and exploration of Bering Sea.
The interest of Russia in these wild and inhospitable regions was
not agricultural, for they are unfit for such pursuits. It was not an
ambitious desire for territorial aggrandizement on the American con-
tinent, for Russia took no steps to increase her population there
beyond the numbers necessary to secure and handle the fur trade; and
when she found it inconvenient to incur the expense of governing a
colony so far away from her capital, that yielded so small a revenue,
she sold all her possessions and dominion in that region east of 170°
of west longitude to a power that had always been friendly and was
not in any sense her rival.
Fishing was not so profitable in Bering Sea as to induce fishermen to
encounter the unpleasant and short summer season when it was prac-
ticable to fish there and establish any regular business in taking fish.
The markets were too distant to justify them to transport their catch
fresh on ice, and there was not suflBcient sunshine to enable them to
properly cure the fish. In consequence the business of fishing was
never permanently established in Bering Sea, and is not until this time.
Russia directed the energy and capital of her people to the collection
of furs as the only really valuable industry in that region, and created
monopolies in their favor and gave them large powers of legislation,
all directed to the same end., and all protected by her naval power in a
thoroughly systematic and effectual way.
These privileges were retained and exercised exclusively by Rus-
sian subjects under her laws until the Alaskan region was sold to the
United States in 1807, with all the rights and dominion that Russia
had therein. In order to extinguish in thiit region all claim of rights
existing under Russian authority it was stipulated in the treaty of
cession that all former grants of exclusive privileges to any of the
Russian subjects should be abrogated.
It was in pursuance of the same authority and manifestly for these
reasons that the right of trading with the natives and of taking and
33
collectiug fars was withheld from the concessions made by Russia to
Great Britain and the United States in 1824 and 1825.
In accordance with what was then the practice of the great powers as
to the right of declaring the closure of extensive areas of sea as territo-
rial appurtenances, Russia claimed that Behving Sea was marc clausum,
and in practice this claim was carried into effect as to the control of
the fur trade.
Her iieople did not hunt whales at that period to any great extent,
nor did they condnct fisheries for commercial purposes. It was the
double purpose of protecting her fur trade and yet permitting whaling
and other fishing within safe limits that caused the Emperor, Alexan-
der I, to issue the ukase of 1821. The whalers and fishermen had
begun to deal with the natives for furs and to catch seals in Behring
Sea. Russia resented this as a wrong and an invasion of her territorial
rights, and the ukase was issued to prevent its increase or continuance.
The ordinary three-mile limit was as fully recognized then as it has
been since that time, generally, as to coasts bordering the open ocean,
or even more fully recognized. But Russia paid no attention to it in
Bering Sea, and for her own security in respect of her only industry
in those waters — the fur trade — and to keep down insurrection, she
fixed a line of prohibition to navigators at 100 Italian miles from her
coasts. In doing this, and in opening Bering Sea to whalers and
fishermen and other navigators in the parts not included in the 100-
mile limit, she asserted and exercised an exceptional jurisdiction over
that sea and claimed that her power extended over the entire sea,
but waived her rights at the distance of over 100 miles from the coasts.
In 1799 the interest ot Russia and her subjects in the fur trade had
become so important tliat on July 8, 1799, nearly twenty-five years
before the date of the treaty with the United States of April, 5-17,
1824, the Einjieror Paul issued his ukase, in which he declared
that —
The benefits and advantages resulting to our Empire from hunting
and trading carried on by our loyal subjects in the northeastern seas
and along tlie coasts of America Iiave attracted our Imperial attention
and consideration; therefore, having taken under our injmcdiate pro-
tection a comi)any organized for the above-named ])urpose of carrying
on hunting and trading, we allow it to assume the appellation of
"Russian American Company, operating under our higliest protection ;"
and for the purpose of aiding the corai)any in its enterprises, we allow
the commanders of our land and sea forces to employ said forces in the
company's aid if occasion requires it, while for further relief and assist-
ance of said company, and having examined their rules and regulations,
H495 M 3
34
Are licrfiby declare it to be onr highest Imperial will to grant to this
conipaiiy for a period of twenty years the following rights and privi-
leges :
I. By the right of discovery in past times by Eiissian navigators of
the northwestern part of America, beginning from the fifty-fifth degree
of north latitnde and of the chain of islands extending from Kam-
tchntkatothe north to America, and. southward to Japan, and. by right
of possession of the same by Russia we most graciously permit the
company to have the use of all hunting grounds and establishments
now existing on the northeastern coast of America, from the above-
mentioned fifty-fifth degree to Bering Strait, and also on the Aleutian,
Kurile, and other islands situated in the Northeastern Ocean.
There could not have been a more distinct assertion of rights of sov-
ereignty and dominion, in virtue of discovery and possession, than is
made in this State paper. Neither could it have been more formally,
or completely stated that the sovereign will and power of Russia was
exerted by this Imperial ukase to secure to the '' Russian- American Com-
pany under (Russia's) highest protection" "the benefits and advan-
tages resulting * * * from the hunting and trading carried
on * * * in the northeastern seas and ailong the consts of Amer-
ica." There can be no reasonable doubt that this ukase covered Bering
Sea and all hunting and trading in those waters. The rights conferred
by this ukase were supported by the power of the army and navy of
Russia, pledged for that purpose.
The exclusive character of these rights, as to all the world, is stated
in Article X of the regulations embodied in this ukase, as follows:
X. The exclusive right is most graciously granted to the company
for a period of twenty years, to use and enjoy, in the above-described
extent of country and islands, all profits and advantages derived from
hunting, trade, industries, and dis<'Overy of new lands, prohibiting the
enjoyment of these profits and advantages not only to those who
would wish to sail to those countries on their own account, but to all
former hunters and trappers who have been engaged in this trade and
have their vessels and furs at those places; and other companies which
may have been formed will not be allowed to continue their business
unless they unite with the present company with their free consent,
but such private companies or traders as have their vessels in those
regions can either sell their property or, with the company's consent,
remain until they have obtained a cargo, but no longer than is required
for the loading and return of their vessel; and after that nobody will
have any ])rivileges but this one company, which will be i)rotected in
the enjoyment of all the rights mentioned.
The rights thus exclusively granted relate to huntinrj and trading.
The rights of free navigation and of fishing are not granted exclusively
to this company, but " all profits and advantages derived from hunting^
trade, industries, and discoveries of now lauds" are so granted.
35
Tliat the privilege of liniitiiig" fur-bearing animals in the northeastern
sea, and on land, was "the exclusive right" of the greatest importance
that was granted in this ukase is made entirely clear in the jn^ohibi-
tion stated in Article X in these words, '' pi'ol'il^iting the enjoyment of
these profits and advantages not only to those who wonld wish to sail
to those countries on their own account, but to all former hunters and
trappers who have been engaged in this trade and have their vessels and
furs at those places."
This company conducted its operations in reference to the fur trade
at great cost and with niucli i)rolit during the twenty years of its char-
tered existence, and then ai)plied to Kussia for a renewal of its charter
for an additional term of twenty years.
The ukase of 1790 tvas found to he insufficient for the protection of
the privileges granted by it, and an additional ukase was necessary
for that purj^ose, which was issued Se])tember 4, 1821. There could
be no need to again assert the right of Russia to grant the exclusive
privilegeto its snhjects of " hunting and trading.^'' " which had been carried
on by (her) loj^al subjects in the northeastern seas and along the coasts
of America" for many years anterior to 1799, and for a quarter of
a century since that date; but Russia, through its Emperor and
directing senate, in the most solemn manner, declared that the free
right of navigation, which 7cas not restricted by the uhase of 1799, had
been abused, to the detriment of " the trade of our subjects on i\\Q.
Aleutian Islands and on the northwest coast of America, appertaining
unto Russia."
This necessity for an additional ukase could not be expressed more
distinctly, or more tersely, than it is in the terms of that ukase, which
are as follows:
The directing senate raaketh known unto all men : Whereas in an
edict of His Imperial Majesty, issued to the diie(;ting senate on the
4th day of September, and signed by His Imperial Majesty's own hand,
it is thus expressed :
Observing from reports submitted to us that the trade of our sub-
jects on the Aleutian Islands and on the northwest coast of America
appertaining unto Russia, is subjected, because of secret and illicit
traftic, to oi)pression and impediments, and finding that the principal
cause of these difficulties is tiie want of rules establishing the bounda-
ries for navigation along these coasts, and the order of naval commu-
nication as well in those places as on the whole of the eastern coast of
Siberia and the Kurile Islands, we have deemed it necesary to deter-
mine these communications by specific regulations, which are hereto
attached.
In forwarding these regulations to the directing senate M'e command
that the same be pnblislied for universal information, and that the
proper measures be taken to carry them into execution.
36
That ukase is directed to tlie suppression of a "secret and illicit
trafific" aud " oppression and impediments" to wMcli the trade of Eus-
sian subjects on tlie Aleutian Islands on the northwest coast of
America was subjected. "The principal cause of these difficulties" is
stated in the ukase. It "is the want of rules establishing boundaries
for navigation along these coasts," not through Bering Sea, "and the
order of naval communication as well in these places as on the whole
of the eastern coasts of Siberia and the Kurile Islands."
In renewiug the charter of the Russian- American Company in 1821,
all these abuses were dealt with in the ukase, published on September
7, 1821. That was a complete code of laws consisting of 63 sections,
regulating and setting apart, as an exclusive and additional right
"granted to Russian subjects" of "the pui'suit of commerce, whaling,
and fishery, and all other industries on all islands, ports, and gull's,
including the whole of the northwest coast of America," from Bering
Straits to the 51° of north latitude, and 45° 50' on the Siberian side of
Bering Sea.
In this ukase, following this exclusive grant of rights and privileges
to Russian subjects, section 2 ordains that:
It is therefore prohibited to all foreign vessels not only to land on
the coasts and islands belonging to Russia as stated above, but also
to approach them within less than a hundred Italian miles. The trans-
gressor's vessel is subject to confiscation, along with the whole cargo.
The second charter of the Russian-American Company was based
upon the ukase of 1821, which was based upon and amended the ukase
of 1799. The first and second articles of that charter are as follows:
I.
The company established for carrying on industries and trade on the
mainland of I^orthwest America, on the Aleutian and on the Kurile
Ishmds remains, as heretofore, under the highest protection of His
Imiicrial Majesty.
II.
It enjoys the privilege of hunting and fishing, to the exclusion of all
other Russian or foreign subjects throughout the territories long since
in the possession of Russia on the coasts of JSTorthwest America, begin-
ning at .the northern point of the Island of Vancouver, in latitude 51°
north, and extending to Bering Strait and beyond, as well as on all
islands adjoining the coast and all those situated between this coast
and the eastern shore of Siberia, as well as on the Kurile Islands, where
the company has engaged in hunting, down to the south cape of the
Island Urupa, in latitude 45° 50'.
37
The term "liimting" in Article II necessarily includes tlie same
"hunting' * * * carried, on by our loyal subjects /n ^/ic /tor^AcY^ster/i
seas and along the coasts of America" that is reserved, exclusively, to
Russian subjects by the ukase of 1 799.
The right of fishing is not mentioned specifically in the ukase of
1799, for the reason, doubtless, that it then had no importance. It is
specifically mentioned in the ukase of 18151, and is therein classed as
follows, viz, " the pursuits of commerce, Avhaling, and fishery, and of
all other industry on all islands, ports, and gulfs."
In the ukase of 1821 all these ])ursuits, including hunting in the
northeastern seas, are embraced in ''the trade of our subjects (who are)
on the Aleutian Islands and on the Northwest coast of America apper-
taining to Russia," are covered by the protecting power of the Russian
Empire. And in order to make the ])rotection eftectual the right of
navigation was in that ukase restricted to 100 miles from the coasts, etc.
In 1824 the United States held the Spanish title to its possessions
on the Pacific coast north of latitude 42°. and had no other substan
tial claim to that coast. In the treaty of 1824 between the United
States and Russia nothing was settled that had not been claimed by
Russia in these two ukases of 1799 and 1821, and in Article I of the
treaty (the rights of) " the respective citizens and subjects of the High
'Contracting Powers" are "neither distnrbed nor restrained either in
navigation or in fishing, or in the power of resorting to the coasts, upon
13oints that nmy not have been already occu])ied, for the purpose of trad-
iny with the natives, saving always the restrictions and conditions de-
termined by the following articles."
Articles 2, 3, and 4 are as follows:
Akticle II.
With a view of preventing the rights of navigation and of fishing-
exercised upon the Great Ocean by the citizens and subjects of the
high contracting powers from becoming the pretext for an illicit trade,
it is agreed that the citizens of the United States shall not resort to
any point where there is a Russian establishment without the permis-
sion of the governor or commander; and that, reciprocally, the sub-
jects of Russia shall not resort without permission to any establishment
of the United States ui^on the Northwest coast.
Article III.
It is moreover agreed that hereafter there shall not be formed by
the citizens of the United States, or under the authority of the said
States, any establishment u^jou the Northwest coast of Ameiica, nor in
38
any of the islands adjacent, to the north of fifty-four degrees and forty
minutes of north latitude; and that, in the same manner, there shall
be none formed by Eussian subjects, or under the authority of E-ussia,
south of the same parallel.
Article IY.
It is, nevertheless, understood that during a term of ten years,
counting from the signature of the present convention, the shijis of
both powers, or which belong to their citizens or subjects, respectively,
may reciprocally frequent, without any hindrance whatever, the inte-
rior seas, gulfs, harbors, and creeks upon the coast mentioned in the
preceding article for the i)urx)ose of fishing and trading with the
natives of the country.
This treaty was designed to settle all the questions involved in the
ukases of 1799 and 1821, in which the United States claimed any
interest, under international law, and there is no mention made of any
change or modification of the exclusive right of the Eussians (made so
prominent in the ukase of 1799) of "hunting and trading carried on
by our loyal subjects in the northeastern seas and along the coasts of
America," except that the right of "trading with the natives of the
country" is granted to Americans for ten years, and after that time
they "shall not resort to any i)oint where there is a Eussian establish-
ment without the per7nission of the governor or commander."
Aside from the question whether " the Great Ocean " included Be-
ring Sea, or is distinguished from it in the treaty of 1821, the right
of " hunting in the northeastern seas and along the coasts of America,"
which, with the right of trading, was considered so replete with " ben-
efits and advantages resulting to our emj)ire," as to be made the sole
grounds of the ukase of 1709, was not touched by the treaty of 1824
with the United States, or the treaty of 1825 with Great Britain.
That right stands to-day as a right asserted by Eussia and reserved
out of all treaties with the United States and Great Britain.
That is quite a sufficient assertion of the right, to support a prescriptive
title to the fur-hearing animals in Behring Sea.
The right of "resorting to the coasts, upon points which may not
already have been occupied for the purpose of trading" which is agreed
upon in Article I of the treaty of 1824 is altogether distinct from the
right of hunting "in the northeastern seas" or along the coast.
The rights of "fishing" and "hunting" are not anywhere alluded to
in these ukases or treaties as being the same: on the contrary, the right
of hunting is reserved to Eussian subjects "in the northeastern seas
and along the coasts of America," while the treaty of 1824 forbids citi-
39
zens of the United States from resorting to the coast of Eussia at any
point where there is a Eussian establishment witliout the permission
from the governor or commander. Those were the points along the
coasts where hunting was most i^rofitable, where the fur-seals were
, mostly hunted, and where, for that purpose, Eussian establishments
were located.
If the "fishing" mentioned in the treaty of 1824 meant seal "hunt-
ing," why was this "hunting" or "fishing" forbidden to the i)eople of
the United States at the places where the Eussians found it most
profitable*? The Indians at that time hunted seals in Bering Sea out-
side the limit of 3 miles fiom the coast, and the Eussians hunted them
on the Pribilof Islands. Why should American citizens be excluded
from "hunting" seals on shore where the Eussians had establishments
and yet be admitted to the right of "fishing" for seals in the sea,
"along the coasts" where the Indians "hunted" them'? These words,
"hunting" and "fishing," have each a natural and c]ear signification,
Avhich is most strongly emphasized in these ukases and in the treaty
of 1824 as being entirely distinct, and there is no warrant in the con-
text of either of these ukases, or treaties, or in the circumstances that
led to them, for construing "hunting" and "fishing" as identical or
synonymous terms.
The ratification of the treaty of Ai)ril 5-17, 1824, with Eussia was
proclaimed on the 12th day of January, 1825. Until then it was not
in force. As early as June 12, 1824, Baron Tuyll, Eussian minister at
Washington, was instructed by his Government "to the effect that the
Northwestern Coast of America, along the extent of which, by the provi-
sions of the convention, free trading and fishing are permitted subjects
of the North American States, extends from 54° 40' northv/ard to
Yakutat (Behring) Bay."
The understanding of the treaty by Eussia is in accord with the
policy stated in the note of the minister of finance to ]>irector Uva-
rof of April 2, 1824, in which it is ordered that "the carrying on of
trade with foreign vessels arriving there (harbor of New Archangel,
now Sitka) established regulations at otie designated port."
A conference of Eussian notables was held in St. Petersburg on July
21, 1824, by order of the Emperor, to "again examine" the eliect of the
treaty of April 5, 1824, upon Eussian rights and interests, "and also
the means which the Imperial ministry thinks best calculated to pre-
vent all injurious and unjust interj)retations,"
40
In tbe fifth resolution of this conference it is claimed that the treaty
secures to Eussia this advantage, viz, "that after the expiration of
ten years the subjects of the United States of America will abstain
entirely from visiting tlie tcaters of the North American coasts beyond
540 40' and from fishing and from trading there with the native inhabi-
tants.^^
The majority of the members of that committee stated as their
opinion —
That the treaty of April 5-17 must be ratified, and that for the
prevention of any incorrect interpretation of that act Gen. Baron
Tuyll may be instructed at the proper time to make the declaration
mentioned in the draft of the communication read by Count Nessel-
rode.
The minister of finance and Acting State Councillor Drushinin,
while admitting the necessity of ratifying the treaty of April 5-17,
express and i>lace on record the special opinion hereto annexed in the
protocol, to the effect that Baron Tuyll should be instructed at the
exchange of the ratifications of that treaty to stix)ulate that the right
of free hunting and fishing granted by tlie second article of the said
treaty shall extend only from 51° 40' to the latitude of Cross Sound.
The majority of the members of the committee could not but observe,
on the one hand, that as the Ilussiau-Americau Company has founded
many settlements in the said latitude, article 2 of the treaty of April
5-17, gives it the desired security on this subject; that even if it
had simply organized hunting and fishing in those regions it is
extremely doubtful whether American subjects would undertake the
expense necessary for voyages to those Northern latitudes in which
they can enjoy their j)rivileges for only ten years, and whether in that
case they would expose themselves to dangerous competition aud would
visit those waters for hunting and fishing where they had long been
anticipated by the company, as there would be little hope for them of
indemnifying themselves for their expenses and losses.
These proceedings show that the Eussian claim at that time and
under their construction of the treaty of April 5-17, 1824, was that the
assertion of the exclusive right of fishing and hunting north of 59° 30'
was reserved to Eussian subjects even during the x)eriod of the privi-
leges that were granted to United States citizens under article 4 of the
treaty, for ten years.
This attitude of Eussia towards the exclusive right to the fur trade
in Bering Sea was maintained in practice down to 18G7, no one object-
ing. The close care of the fur-seal industry on the islands, the policeing
of the seas for the i)rotection of fur-bearing animals, the arrest of sus-
pected or offending ships, and the basing of civilization and govern-
ment on that traffic upon all her coasts and islands in Bering Sea by
careful legislation, all prove that Enssia admitted no common, or part-
nership rights of any people or government in any of those privileges
41
or industries. There is no evidence but the silence of other gov-
ernments, if any objection to these claims of Eussia existed.
In every stage of the negotiations between the United States and Great
Britain and in every declaration of right by Russia, up to the exchange ■
of ratifications of the treaties of 1824 and 1825, and in every declaration
of Eussia since that time, the protection and security of her fur trade
in Bering Sea has been an object of her solicitude. Every govern-
mental act instituted and performed by Eussia in that connection has
been exactly in correspondence with her assertion of dominion over
Bering Sea as a preserve for taking furs through hunting "in the
northeastern seas" and "in the gulfs" thereof, and of the South Sea,
or Pacific Ocean, and along her coast line, south as well as north of
the Aleutian Islands and peninsula.
It was this assertion of dominion that the United States and Great
Britain yielded to when they, respectively, accepted the restrictions
ux)on the rights of " fishing and trading with the natives," which are
limited to the period of ten years, in Articles III and IV of the treaty
with the United States, and Articles III and VII of the treaty with
Great Britain.
In the treaty of 1824: with the United States, Articles III and IV
are as follows :
in.
It is moreover agreed that, hereafter, there shall not be formed by
the citizens of the United States or under the authority of the said
States, any establishment upon the northwest coast of America, nor
in any of the islands adjacent to the north of fifty-four ' degrees and
forty minutes of north latitude; and that, in the same manner, there
shall be none formed by Eussiau subjects or under the authority of
Eussia, south of the same parallel.
IV.
It is, nevertheless, understood that during a term often years, count-
ing from the signature of the present convention, the siii])S of both
powers, or which belong to their citizens or subjects respectively, may
reciprocally frequent, without any hindrance whatever, the interior
seas, gulfs, harbors, and creeks, upon the coast mentioned in the pre-
ceding article, for the purpose of fishing and trading with the natives
of the country.
In the treaty with Great Britain, Articles III and VII are as follows:
III.
The line of deraarkation between the possessions of the High Con-
tracting Parties, upon the coast of the continent, and the islands of
America to the northwest shall be drawn in the manner following:
Commencing from the southernmost point of the island called Prince
42
of Wales Island, whicli point lies in the parallel of fifty-fonr decrees
and forty minutes north latitude, and between the one hundred and
thirty-hrst and the one hundred and tliirty-third degree of west longi-
tude (meridian of Greenwich), the said line shall ascend to the north
along the channel called Portland Channel, as far as the point of the
continent where it strili^es the fifty- sixth degree of north latitude; from
the last-mentioned point the line of demarkation shall follow the sum-
mit of the mountains situated parallel to the coast, as far as the point
of intersection of the one hundred and forty first degree of west longi-
tude (of the same meridian) ; and finally from the said point of inter-
section, the said meridian line of the one hundred and forty-first degree
in its prolongation as far as the frozen ocean, shall form the limit
between the Eussian and British x)osscssions on the continent of Amer-
ica to the northwest.
VII.
It is also understood that for the space of ten years from the signa-
ture of the present convention the vessels of the two i)owers, or tliose
belonging to their respective subjects, shall mutually be at liberty to
frequent, without any hindrance whatever, all the inland seas, gulfs,
havens, and creeks on the coast mentioned in Article III, for the pur-
l)Ose of fishing and of trading with the natives.
If Great Britain had understood that the treaty of 1824- Avith the
United States gave to their citizens the perpetual right of fishing and
trading with the natives in '"interior seas, gulfs, harbors, and creeks,
upon the coast" — "the northwest coast of America" — and "in the
islands adjacent " thereto^ " to the north of oio 40' north latitude," that
Government would not have accepted a limitation of this right to a
period of ten years. Under such a construction of the treaty of 1824
with the United States it would have been sheer folly for Great Britain to
have given Eussia the same privilege for ten years from Prince of Wales
Island, along Portland Channel up to 56° of north latitude, for Great
Britain asserted, with absolute confidence, that Eussia would not make
terms with her that were less liberal than she had made with the United
States.
If Eussia yielded her dominion over her preserve of fnr-seal hunting
in i)erpetuity to the United States, and then to Great Britain, what
could have been the necessity that prompted them to insert these by-
provisions for the same rights for a period of ten years in their
treaties'? It is too clear for disputation that Eussia intended to
yield these rights, reciprocally, for ten years, because she was not will-
ing that they should extend beyond that period, except at her option.
A more forcible statement of the claim of Eussia to the exclusive right
of fishing and trading with the natives in those waters could not well
have been made.
43
Yet even tliese concessions did not include tlie right of " hunting " fur-
bearing animals, which liu.ssUi ivan never asked to yield. For tliese pur-
poses her dominion over Bering Sea and all the gulfs, bays, inland
seas, and creeks on all her coasts was reserved.
The rights of whaling, fishing, hunting, and trading, conducting
commerce and navigation, are all referred to in these ukases and
treaties as separate and distinct rights. In their nature they are
distinct, and none of them includes the others, though they are closely
related. When each of these rights is expressly and distinctively
mentioned iu one part of these treaties and ukases, as a substantive
right or i)ursuit, it is not a proper construction of these solemn instru
ments to say that those rights are intended to be included in those parts
where they are not mentioned, or that "hunting" is telescoped into
"fishing" and "fishing" into "whaling" and all of them into "navi-
ation," or that the use of that word or the assertion of that right
includes all these other rights.
Dominion of Bering Sea could have been exercised for the exclnsive
enjoyment and protection of either of those rights, without including
any other, though, as in the case of the 100 miles limit, which was a
modification of the claim of the exclusive right of navigation, the full
exertion of that power would have closed that sea to all navigators
Avhether they were whalers, fishermen, or hunters. The ukase of 1799
asserted this dominion, so as to protect the right of "hunting in the
northeastern seas" and of trading with the natives, and no other ukase
or treaty ever yielded the exclusive right of hunting, under any con-
dition, or the right of fishing to any other extent, than under the ten
years limit i)rovided in the above quoted articles of tliose treaties of
1824 and 1825.
Dominion in one country over land or sea, is entirely consistent
with easement or x)rivilege in another.
Navigation is a universal easement to be enjoyed by all vessels sail-
ing on lawful voyages upon the high seas, but it has no element of
dominion to support it, except within territorial waters. Fishing, law-
fully conducted, is also an easement equally universal, and the right
is also exclusive in territorial waters.
The dominion that protects fisheries is more exclusive than that
Avhich limits the free right of navigation. Within territorial limits,
fishing is a property right, while navigation Avithin those limits is, for
innocent i)urposcs, an easement that no nation denies to another.
44
Hunting is an easement that is still more under the control of national
dominion, because it is conducted with firearms and is, therefore, a
more dangerous practice where the people are savages or are rebel-
lious, because it furnishes a pretext for introducing among them arms
and ammunition. And hunting and trapping are different pui'suits.
Eussia had powerful inducements for keeping hunting on land or sea
and trading with the natives under her exclusive dominion.
What is dominion'? Sir Robert Phillimore, in his "Commentaries
on International Law, Vol.1, p. 26G, Ed. 1871, says: "Dominion is the
fullest right which can be exercised over a thing : the right of property,
so called.''^ On page 207 he says : "As dominion is acquired by the com-
bination of the two elements of fact and intention, so, by the dissolution
of these elements, or by the contrary fact and intentioUj it may be lost
or extinguished."
On page 274 he says :
But when occupation by use and settlement has followed upon dis-
covery, it is a clear proposition of law that there exists that corporal
possession {corporalis quaeclam f>osse.ssio (a) detentio corporalis (b) ) wliicli
confers an exclusive title u])on the occupant, and the dominium emi-
nens, as jurists speak, u^jon the country whose agent he is.
On page 285 Jie further says:
COXLII. The nature of occupation is not confined to any one class or
description; it must be a beneficial use and occupation (le travail d' ap-
propriation); but it nuiy be by a settlement for the purpose of prose-
cuting a particular trade, such as a fishery, or for working mines, or
pastoral occupations, as well as agriculture, though Bynkershoek is cor-
rect in saying, cultura utique et aura agri possessionem quam maxime
indicat.
Vattel justly maintains that the pastoral occupation of the Arabs
entitled them to the exclusive possession of the regions which they
inhabit.
It has been truly observed that, agreeably to this rule the ]N"orth
American Indians would have been entitled to have excluded the Britisli
fur-traders from their hunting-grounds; and not having done so, the
latter must be considered as having been admitted to a joint occupa-
tion of the territory, and thus to have become invested with a similar
right of excluding strangers from such portions of the country as their
own industrial operations pervade.
CCXLIII. A similar settlement was founded by the British and
Russian fur companies in North America.
The chief portion of the Oregon Territory is valuable solely for tlie
fur-bearing animals which it produces. Various establishments in dif-
ferent parts of this Territory organized a system for secniring the preser-
vation of these animals, and exercised for these purposes a control over
the native population. This M'as rightly coTitended to be the only exer-
cise of proprictari/ right of which these ]3articular regions at that timet
45
were susceptible, and to -work that a hencficud use was made of tlie
whole Territoiy by the occupants.
CCXLIV. It should be uieiitioned that the practice of uatious in
both hemispheres is to acknowledge in favor of any civilized nation
making a settlement in an uncivilized country a right oi^ preemption
of the contiguous territory from the native inhabitants as against any
other civilized nations. It is a right claimed by Great Britain with
respect to her Australian settlements, especially New Zealand; and by
the United States of America with respect to the Indians in their back
States.
In the claim of Eussia to the exclusive "hunting in the Northeastern
seas," to say nothing of the rights of fishery and navigation, as such
rights are defined in the international law, there is enough in the highest
legal authority to support thefouudation of theright, which is the hand-
maiden of peace, namely, the right which is "a mode of original acqui-
sition which is effected by the operation of time,'* and is "what the
English and French jurists term prescription."
On page 298, Vol. 1, Sir EobertPhillimore says:
The doctrine of immemorial prescription is, from the very necessity
of the case, indispensable in the system of imblic law. Accordingly
we find it mentioned more than once in the constitutions of the ancient
German Empire and as a mode of acquiring public rights.
On pages 299 and 300 the same author says:
Having discussed the position of prescription in the systems of pri-
vate and ]mblic law we nov,' approach the consideration of a matter,
holden by the master mind of Grotius to be one of no mean difficulty,
namely, international prescrijition. Does there arise between nations,
as between individuals, a presumption from long possession of a terri-
tory or of a right which nuist be considered as a legitimate source of
international acquisition 1
In seeking an answer to this important question it is necessary to
keep clear of all subtle disquisitions with which this subject has been
perplexed -, whether, for instance, itbe the creatureof natural or civil law,
or Avhetlier it must be always founded upon a presumption of voluntaiy
abandonment or dereliction by the former owner. Through these meta-
physical labyrinths we cannot find a clue for questions of international
jurisprudence. The effect of the ln2ise of time upon the property and
right of one nation relatively to another is the real subject for our con-
sideration. And if this be borne steadily in mind it will be found, on
the one hand, in the highest degree irrational to deny that prescription
is a legitimate means of international acquisition; and it will, on the
other hand, be found both inexpedient and imjiracticable to attem])t to
define the exact jieriod within which it can be said to have become
established — or, in other words, to settle the precise limitation of time
which gives validity to the title of national possessions.
Again, on pages 301, 302, and 303, he says:
CGLVIII. It is true that some later writers on the law of nations have
denied that the doctrine of prescription has any place in the system of
international law. But their opinion is overwhelmed by authority, at
variance with practice and usage, and inconsistent with the reason of
the thing. Grotius, Heiueccius, Wolfi", Mably, Vattel, Eutherforthj
46
"WhcatoTi, and Bnrke constitute a greatly preponderating^ array of
authorities, both as to number and weight, upon the opposite side.
The practice of nations, it is not denied, proceeds upon the presump-
tion of prescription, whenever thereis scopefor the admission of thatdoc-
trine. The same reason of the thing- which introduced this principle
into the civil jurisprudence of every country, in order to quiet posses-
sion, give security to property, stop litigation, and prevent a state of
continued bad leeling and hostility between individuals, is equally
powerful to introduce it, for the same purpose, into the jurisprudence
which regulates the intercourse of one society with another, more
especially when it is remembered that war represents between States
litigation between individuals. It is very strange that the fact that
most nations possess in their own municipal codes a positive rule of
law upon the subject, has been used as an argument that tlie general
doctrine has no foundation in international law.
It is admitted, indeed, that immemorial prescription constitutes a
good title to national possession; but this is a perfectly nugatory
admission, if, as it is sometimes explained, it means only that a State
which has acquired originally by a bad title, may keep jjossession of
its acquisition as against a State which has no better title. If it liad
been merely alleged that the exact number of years prescribed by the
Eoman law, or by the municipal institute of any particular nation, as
necessary to constitute ordinary prescriptions, is not binding in the
affairs of nations, the position would be true. It is, perhaps, the
difficulty attending the application to nations of this technical part of
the doctrine which has induced certain writers to deny it altogether;
but incorrectly, for, whatever the necessary lapse of time may be, there
unquestionably is a lapse of time after which one State is entitled to
exclude every other from the property of which it is in actual posses-
sion. In other words, there is au international prescription, whether
it be called immemorial possession or by any other name. The peace
of the world, the highest and best interests of humanity, the fulfillment
of the ends for which States exist, require that this doctrine be firmly
incorporated in the code of international law.
Will this tribunal shrink fro7n the rccogniiion of this (loctrine, note that
an opportunity, distinctly given, calls for a firm declaration f
The importance of prescription as a basis of title, or right, to any
property, or exclusive privilege, is thus stated by Sir Eobert Philli-
more (p. 305) :
But that prescription is the main pillar upon which the security of
national property and peace depends, is as incontrovertable a proposi-
tion as that the ijroperty and peace of individuals rest upon the same
doctrine.
To these remarks should be added the observation of another great
modern jurist:
The general consent of mankind has established the principle that
long and uninterrupted possession by one nation exchules the claim of
every other. Whether this general consent be considered as an implied
contract or as positive law, all nations are equally bound by it, since
all are parties to it, since none can safely disregard it without impugn-
ing its own title to its possessions, and since it is founded upon mutual
utility, and tends to promote the general welfare of mankind. ( Wheaton .)
47
In one of those treatises which show how deeply the mind of the
writer was imbncd with the princii)les of general jiuis])rudence, Mr.
Burke uses the following admirable expressions:
If it were permitted to argue with power, might one not ask one
of these gentlemen whether it would not be more natural instead of
wantonly mooting these questions concerning their property, as if it
were an exercise in law, to found it on the solid rock of prescription?
The soundest, the most general, the most recognized title between man
and man that is known in municipal or public jurisprudence; a title in
which not arbitrary institutions, but the eternal order of things gives
judgment; a title which is not the creature, but the master of positive
law; a title which though not fixed in its term, is rooted in its principles
in the law of nature itself , and is indeed the original ground of all
known property; for all property in soil will always be traced back to
that source, and will rest there. * * * These gentlemen, for they
have lawyers amongst them, know as well as I that in England we
have always a prescrii)tion or limitation, as all nations have against
each other. * * * All titles terminate in prescription; in which
(differently from time in the fabulous instances) the son devours the
father, and the last prescription eats up all the former.
These citations from very eminent British authority establish the
right of a government by prescription, based on occupancy and claim
of title, to any dominion, on land or sea, of anything in the nature of
property, whether corporeal, or incorporeal, as firndy as if the right
were established by grant or as the result of conquest or cession.
The true doctrine of the international law is stated in the extract
above quoted from Wheaton (Vol. 1 p. 207) that " The general con-
sent of mankind has established the principle that long and uninter-
rui)ted possession by one nation excludes the claim of every other."
This rule is fully applicable to the dominion of Kussia over the fur
industry and trade in Bering Sea, which was never yielded or trans-
ferred to any government until it was sold to the United States.
Dominion also includes the right of a government to the soil beneath
tlie territorial and adjacent waters. The claim of territorial waters
over an area of the sea that is clearly demarked by land boundaries,
though not entirely inclosed by the land is, a valid exercise of power
by the government that owns the land which forms the coasts and
islands that define the boundary. It may not be sufficient to destroy
the easements that other nations may have in those waters, yet, it is
dominion or ownership of the land beneath those waters, and it is clearly
sufficient to support the municipal jurisdiction of the government over
its own citizens, and, also, to support a claim to any pearl or oyster beds
beneath such an area of waters, or any mines that may be found there.
Such a claim and assertion of ownership may not be sufficient reason
48
for denying to other nations in tliat area the privilege of navigation
or fishery, but that fact does not negative the dominion that may be
thus lawfully exercised. To illustrate: If an island should be thrown
up by volcanic action or the action of the water within the limits of
Bering Sea it would beloug to the United States, without first discovery
or occupation, in virtue of its dominion already exercised over tliat sea.
And, so, if it became necessary that the United States should close
Unimak Pass with obstruction, for any purpose, even to the great
inconvenience of navigators or fishermen, the question of the right to
do this would be resolved, linder the international law, by the other
question whether the easement of navigation through that i)ass was of
such importance to the world that the owner of the soil beneath the
water would, in justice, be compelled to yield its rights.
In all such cases, where the exercise of the privilege of navigation,
fishery, or other easement is injurious to the owner of the soil above
which it is exercised, the privilege must yield to the higher right of the
dominion of the owner of the soil.
The right of dominion in a sea like Bering Sea or the sea of Okhotsk
does not depend on its being separated from water communication with
the ocean. If the configuration of the land surrounding it is such as
to make it necessary to the peculiar commerce of the country within
which it is embayed, or to the defense of such country, or to the jjroper
administration of its powers of government over its own people, it is a
right ex debito justitice that there should be dominion over such sea.
This is the right that is now the foundation of the exclusive right of
several nations to dominion over seas that are not inclosed by the land
on their shores, as stated by Sir Kobert Phillimore, page 225, as follows :
The exclusive right of the British Crown to the Bristol Channel, to
the channel between Ireland and Great Britain (Mare Hibernicum,
Canal de St. George), and to the channel between Scotland and Ire-
land is uncontested. Pretty much on the same category are tlie three
straits forming the entrance to tlic Baltic, the Great and the Little
Belt, and the Sound, which belong to the Crown of Denmark; the
Straits of Messina (il faro di Messina, /return Siculum), once belonging
to the kingdom of the Two Sicilies; the straits leading to the Black
Sea, the Dardanelles and Hellespont; theThracian Bosphorus, belong-
ing to the Turkish Empire. To narrow seas which flow between
separate portions of the same kingdom, like the Danish and Turkish
Straits, as to other seas common to all nations, like tha Straits of
Messina and, perhaps the St. George's Cliannel, the doctrine o^ innocent
use is, according to Vattel, strictly applicable.
In the case of the seas here mentioned other nations have the right
to the innocent use of them, hut it must rest with the nation claiming
49
fhcm fo (Jvtcrmhw irJicfher the use fJitit hmttdeofiltcm hy another nntlon is
innocent. This is all that the United States claim of "dominion''
over Bering Sea in respect to tlie protection and preservation of tlie
fnr-seals resortin.u' to those waters and the industry in the i)elts and
oil so long established on their islands, which have no valne for any
other industrial pnri)ose.
This claim, when these waters are invaded by a destructive method
of hunting the seals, is a right of self preservation. That light is thus
stated by Sir Kobert Phillimore:
OCX. The right of self preservation, by that defense which ])revents,
as well as that which re])els, attack, is the next intei iiati(»iial riglit
which ])resents itself for discussion, and wliich, it will be seen, may
under certain circumstances and to a certain extent modify the right
of territ(n-ial inviolabdity.
(JCXI, The right of self-preservation is the lirst law of nations as it
is of individuals. A society which is not in a cnndition to repel aggres-
sion from without is wanting in its principal duty to the members of
which it is composed and to the chief end of its institution.
All means which do not atfect the indei)eudence of other nations
are lawful for this end. No nation has a right to prescribe to another
what these means shall be, or to require any account of her conduct in
this res])ect.
CCXII. The means by which a nation usually i)rovides for her safety
are: (1) By alliances with other States; (2) by maintaining a military
and naval force; and (o) by erecting fortifi{*ations and talcing measures
of the like kind within her own dominions. Her full liberty in this
respect (;an not as a general principle of international law be too boldly
announced or too tirndy maintained, though some modifu^ation of it
api)ears to flow from the equal and corresjjonding rights of other
nations, or at least to be required for the sake of the general welfare and
peace of the world.
The United States have the right to treat the sudden and dangerous
increase of the number of vessels engaged and the nundjer of seals
taken in pelagic hunting as an im])ending thr<'at of the destructi(m of
the seal herd that habitually resorts to tlu'lr islands. These appre-
hensions are more directly excited, because they are actually justified
by the attack made on the seal herd, than those which are legarded
as a just (;ause of war in relation to ainniments by neighboring nations.
Of these Sir Kobert riiillimore says, on page 253:
CCXIII. Armaments suddenly increased to an extraordinary amount
are calculated to alarm other nations whose liberty they appear, more
or less according to the circumstances of the case, to menace.
In the seizure of shii)s within the eastern waters of Bering Sea the
United States resisted, in the beginning, a raid upon her industry which
suddenly threatened its destruction, and this resistance, which was
timely and necessary, was made within her own dominion — a dx>min-
11495 M 4
50
ion established by prescription :is to the fur-seal industry, and which
also has for its support the priiici[)h's of the iiiteruatioiial law which
apply to the Britisli waters, above quoted, and to other seas that are
not entirely inclosed by the hind mentioned in the follow ing quotations
from Phillimore, vol. 1, p. 243:
COV. With res])ect to seas entirely inclosed by the land, so as to
constitute a salt-water lake (maria clansa; mers feimees, encloses: Bin-
nenmeer, geschlossene inuereMeere), the general piesurn]>ti()n of law is
that they belong to the surrounding territory oi- territories in as full
and complete manner as a fresh-Avater lake. The Caspian and Black
seas naturally belong to this class. Upon the former sea Kussia had
by treaty with Persia, the exclusive right of navigation Avith shi[)S of
war, and by the treaty of the Dardanelles the Black Sea Avas practically
confined to Russian and Tuikish shi])S of war. But by the treaty of
Paris of 185(1 this sea is neutralized and open to the merchant ships of
all nations and closed to ships ot war of any State.
CCVI, There is another class of inclosed seas to which the same
rules of law are applical)le — seas which are land loi'ked, though not
entirely surrounded by land. Of these, that great inlet wliich washes
the coast of Denmark, Sweden, Kussia, and Prussia, the Ostsee as the
(Ternums call it, the Baltic Sea according to its usual api)ellation, is
the principal.
But the right of self [)reservation of the United States, in respect to
the fur-seal industry, naturally and without reference to the actual
])roperty in tlie animals, extends beyond her dominion. As to such
riglits Phillimore says:
CCXIV, We have hitherto considered what measures a nation is
entitled to take for the preservation of her safety within her own
dominions. It may happen that the same right may warrant her in
extending precautionary measures tvitliont these limits and even in
transgressing the borders of her neighbor's territory. For international
law consideis the right of self-preservation as prior and paramount
to that of territ(U'ial inviolability, and, where they conflict, justifies
the maintenance of the former at the expense of the latter right.
If this right of self-preservation is ])rior and ])aramount to territo-
j'ial inviolability, it must lie superior to any right or easenuMitof tishiuf^
and hunting-, and better entitled to the protection of international law.
The necessity for protecting' this right is now as manifest and indis-
putable beyond Bering Sea as within its limits. When a source of
revenue or a necessary instrumentality of government is attacked, or
seriously threatened, the occasion arises for the interposition of the
right of self defense.
The eonliguration of Bering- Sea, its coasts and islands, is such as to
give it an exce])tiona! relation to the outside world. It is inclosed on
all sides by land and frozen waters, except through thei)asses of the
51
Aleutian and Kaintscliatkan islands. A blocl^ade of the Aleutiau
passes would close every i^ort in Bering' Sea and, wliere a nation may
be tlius locked in, it is not too much to claim that it lias the right of
dominion over such interior waters and, for purposes of self-preserva-
tion, to lock other nations out.
It is a just right that is tluis claimed by the United States, aud when
it is used lor purjjoscs of sclfi)reservatiou it is sustained by inter-
uatioual law.
WHEN rOINT FIVE OF ARTICLE VI OF THE TREATY WAS UNDER CON-
SIDERATION SENATOR MORGAN DELIVERED THE FOLLOWING
OPINION:
I beg' leave to submit the following' additional statements and argu-
iiieuts which i think are sufficient to establish that the i)i'cscii[)tive
rights of Kussia and the United States, in respect of the fur-seals that
liabituiilly resort to liering Sea, are to be safely based upon the continued
aud unquestioned usage of both countries, as well as upon the peculiar
characteristics of these animals.
And I will endeavor to state the reasons that conii)el nie to hold, on
these and some other grounds, that the United States have a riglit
of property and i)rotection in these animals.
I have already presented to the tribunnl, on a previous day, the views
I entertain as to the true history of the claims set up by Kussia relat-
ing to the exclusive right to control and protect the fur industry in
Bering Sea, and have endeavored to state generally the foundations in
law and fact upon which Eussia rested her claims. I will now again
brietiy review some of those facts as 1 believe they exist, and will refer
to others, and endeavor to connect them with the doctrines of the law
which I think are clearly applicable to establish a right of pioperty in
the fur-seals that is well founded, both as a right by prescription and
a right growing out of the useful aud domestic nature of these aninuils.
The Kussian Government exercised the right to own and control the
seals that resorted to Bering Sea, and made temporary grants to its
subjects of the right to take them in those waters.
It may be said that this was an assumption of riglit on the part of
Eussia not suppcntcd by any rule of international law. It was not
more distinctly an assumption of right than was the title to the islands,
based on the discovery of them by a Ilussian sulyect. In both cases
a. native sovereignty was displaced to make room tor the claims of
Biussia, bficked by superior force. The processes of appropriation Avere
the same in refcrejice to the seals and seal fisheries as they were in
52
53
reference to the islands, viz, discovery, claim, occiijiatioTi, and develop-
ment. Exclnsive use and the acquiescence of other civilized powers
were the attendant facts that established the right of projjerty in both
cases.
As all international laAV grows out of custom and has no other root,
it can not be denied that the right of Kussia to appropriate and protect
this herd of fur-seals has been established by citstom and maintained
by constant and exclusive use. Certainly no other nation in its sov-
ereign character has claimed these seals or denied the right of Russia
to their exclusive ownership. When Great Britain, in 1825, was treat-
ing with Russia for an ojien sea, free navigation, and the rights of fish-
ing in those waters, she set up no claim to a commou right of hunting-
seals or fur-bearing animals in those regions. Russia went on renewing
her charters for these purposes to her subjects, and Great Britain stood
by and made no assertion of such right for herself or her subjects for
about a half century. Nearly a century elapsed after the colonization
of the islands by Russia before any Britisli subject opposed the claim
of Russia and the United States, her vendee, to a property right in the
seals that habitually resorted to Bering Sea. There are few custom-
ary rights that have a surer foundation in usage or upon the doctrine
of acquiescence than the world has accorded to Russia in respect of
the right to the fur-seals resorting to Bering Sea.
The long acquiescence of Great Britain in this claim of ownership in
seals by Russia was not only without objection, protest, or diplomatic
suggestion to the contrary, but that Government has encouiaged her
own people to base an extensive and valuable industry upon the
material provided by Russia and regularly supplied to them from her
fur-seal husbandry.
It is now too late for Great Britain tosay that Russia and the United
States mistook the law of nations when they set up rights of proj)erty
in fur-seals. Ninety years of acquiescence attended with no harm to
British people or interests, but with great benefits to both, is time
enough in wliicli to establish the consent of Great Britain that live
seals resorting to Bering Sea are property, as much so as dead ones are
that are slain by Biitish subjects. But the acquiescence of Great
Britain is not needed to establish the proposition that there is property
in live seals and that it exists ratioiie soli.
54
THE TnmD QUESTION IN ARTICLE I OF THE TREATY SEEMS TO HAVE
BEEN AVOIDED.
One of tlie tliree questions submit ted to arbitration in Article I is so
dependent for its decision upon the question of property in fur-seals
that it should be considered in connection witli it. It is concerning
^'the rights of the citizens and subjects of either country as regards
tlie taking of fur-seal in or resorting to said waters." The founda-
tion of such a right could be none other than a right of property in
the seals when captured or hilled in nonterritorial waters— a right
acquired by the capture of the seal, dead or alive. The final analysis
of this question is whether a right of property can attach to a living
seal that is found swimming in the ocean. This question is nowhere
presented in the treaty or allnded to as a question to be submitted to
the Arbitrators, except in the first article. It is the postulate stated
by Great Britain in these contentions, around which every fact and
every principle of law asserted by Great Britain is grouped.
If British subjects have the right of taking fur-seals in, or habitually
resorting to, Bering Sea, it makes little difCerence what the rights of
the United States may be, for they would amount to nothing prac-
tically, and, in theory, such a right would destroy all the grounds
on which the United States could rest a chiim to the right of protect-
ing the seals outside the ordinary 3-mile limit.
This question is submitted for decision in such broad form as to
include "the rights of the citizens or subjects of either country, as
regards the taking of fur-seals in, or habitiuilly resorting to said
waters."
' The statutes of the United States, following the unqualified asser-
tions of Kussia while she was owner of these islaiuls, assert the owner-
ship of the United States in the fur-seals found in the Bering Sea, and
base upon that ownership a governmental industry of great value to
the revenues. They punish with severity any person who destroys
this property or interferes with the agents or lessees of the United
States in its management, and they provide for the lease, to their own
citizens under careful regulations, of the privilege of taking seals.
Great Britain has not assumed and could not assume such a relation
as that to the fur-seals in, or resorting to, Bering Sea, because it can
not claim them raiione soli. It sets up no claim of ownership in the
fur-seals, but denies that ownership in them is possible until the ani-
mals have been captured or killed.
55
Tlio respective comitries o('cn])y, tliovefore, veiy (liffcioiit relutions to
tliis subject. A declcaration of tlie riglit in fovor of tlic citizens of tlie
United States to take fur-seals in Bering Sea, if made by this tribunal,
is a declaration that the statutes of the United States that forbid such
taking are of no validity and should be repealed, while the same
declaration when made in favor of British subjects is in perfect accord
with the laws, policy, aud contentions of that country.
This obvious impediment to a decision as to the right of pelagic seal-
ing in Bering Sea, under which the power of the United States over her
own citizens would be called in question, confines the inquiry to the
simple proposition whether the United States have a property in the
seals in, or habitually resorting to Bering Sea, and tlie nature of that
property.
The crucial test of the right of the United States to property in fur-
seals that resort to Bering Sea, whether that right implies a perfect
ownership of the seals or an interest in the usufruct of the herd for the
support of a legitimate and useful iiulnstry, is made by the treaty to
turn upon the question whether British subjects have the unrestricted
right to take seals on the high seas as free-swiranring animals tliat are*
ferw naturcv. This, therefore, is the main question in the case, and
draw^s within its influence every other question presented to the Tribu-
nal of Arbitration, except those questions that relate peculiarly to
Bering Sea, I have already discussed.
This claim of right to take fur-seals on the high seas is asserted as a
private and personal right of every person who goes upon the high seas
under a recognized national tlag; and the employment of the tiag for
that purpose is not required to be legitimated by a license to fish.
No gov^ernnient has asserted, or ever will assert, the right, as a gov-
ernment, to employ its sovereign powers, or its war fleets, in this busi-
ness, for the i)nrpose of increasing its levenues. Such conduct by a
government would be regarded as a disieputable invasion of the high
seas for i ts own aggrandizement and, wlien it shonld come in conflict
with the interests of the peo]>le of other countries, the invasion would
be regarded as a national offense.
The case would be quite different if the ])nrpose of the govei'j-nent
was to protect a bona fide claim of proiierty in seals, against destruc-
tion. If in quest of seals to whicli no claim of property was asserted by
a government it should send out its fleets to gather revenue, or to
destroy such property, claimed by another government, the necessary
56
result would be a disturbance of tlie peace and probably a hostile col-
lision. The case is altered in degiee, but not in its nature, Avhen a
government sustains and adopts the rights of its people to destroy a
property or industry claimed by another nation. If such government
could not, under the nsage of nations or just principles of interna-
tional law, thus enrich its treasury, it is difficult to see on what prin-
ciple it could support its peo^de in such conduct for tlieir private gain.
In either case the sentiment of justice entertained by the civilized
nations would sustain the power that, in good faith, claimed the right
to own and protect the fur-seals for the bencht of the commerce of the
world, rather than the nation that denied the right of property in
seals, until they are cai)tured and killed, and claimed the right to make
property of them only by indiscriminate and destructive slaughter.
In this treaty, and in all the diplomatic contentions that have led to
its conclusion, botli Governments have admitted that property in seals
may be acquired, protected, and preserved, at least to the extent of
protecting and i) reserving- them by their concurrent regulations, and
they have agreed to ai^ply thet e conceded facts to certain seals that
habitually resort to the waters of Bering Sea. These questions are vir-
tually removed from the field of doubt or disputation by the terms
of the treaty undei- which the Tribunal of Arbitration is acting.
Great Britain now asserts that the ])roperty in seals can be acquired
only by capture, which, under the xiractice of pelagic hunting, as con-
ducted by its subjects, means that such i)roperty can be acquired only
by killing the animals.
The United States asserts that property in seals may be acquired
while they live, and without actual cai)ture. As to the right of prop-
erty in the individual animals, this is the only form of issue that is
joined between the parties to this treaty.
As to the proper protection and preservation of seal life to which
the Governments are both solemnly pledged in this treaty Great
Britain contends that taking them at sea is a better method than
taking them on land, and is, therefore, the proper method; while the
United States claim that the only method of taking seals that can
properly protect them is by selecting the animals for slaughter, and
that this can be done on the land and can not be done in the water.
The killing of tlic animals is included in each of these contentions as
the only way in which tliey can be made useful to mankind; and the
iime, place, and vtetJiod of Idllbuj Iher.i that is hcst adapted to the protcc-
57
twn and prescrratwn of deals hi the class or Jterd that lial)itn{\lly resort
to the waters of Bering Sea is the real inquiry "concerning- the pres-
ervation of the fur-seal in, or liabitnally resorting to," Bering Sea that
is submitted to the Arbitrators. All the other questions i^resented for
consideration or decision by the Arbitrators relate alone to the powers
that either Government may employ and their jurisdictional rights to
enforce their respective contentions, or that both should employ con-
currently, to i^rotect and preserve seal life, outside of their territoria
limits.
Is it true, as it is asserted by the United States, that property in
fur-seals may be acquired while they are alive and without actual
capture? That depends to a great degree upon the value of the uses
to which they are put and the certainty and regularity with which
they may be subjected to those uses, and these considerations relate
to animals as classes, and to their habits as a class, and not to the
peculiarities of the individuals. Some individuals are frequently found
among animals that are everywhere classed as domestic which are as
wild and fierce (or timid as the case inny be) as the wildest of animals,
such as horses, cattle, sheep, swine, poultry, and dogs. And some of
the wildest and most ferocious animals have been so domesticated by
training as to become hnrndess, and even serviceable, or profitable in
a high degree, sucli as hunting ]eo[)ards, hawks, cormorants, elephants,
and even bears, lions, and tigers. But these exceptional instances of
domestication by training prove nothing as to the general nature or
habits of the classes of animals in which they are found.
If a class of animals is valuable for the uses of mankind and is, by
habit, drawn within reach of man periodically, with regularity and
certainly, the nation that thus acquires a settled and peculiar power
of control over it on land may base a legitimate industry upon the mate-
lial it affords, and may decilare the animals to be its property. A
nation so situated may certainly make such an assertion and declara-
tion of ownership) in the entire class of such animals as against the
right of its own people to treat them as being wild animals and res
nuUius, and in that sense and to that extent at least it may exercise
ownership over them without capturing them. Animals that are classed
as being domestic, are protected by a legal presumption of ownership,
liowever wild they, in fact, may be. Aiumals domesticated by train
ing are sheltered by the same presumption of law, until they have
resumed their wild condition.
Wild aninnils, calkal game, are iKjt protected by legal fictions but
58
by legislative ennctnients. Tlioir protoption, -wlien it is accorded,
must be b}^ law, because it trendies upon tbe natural rights of the
people to capture and appropriate theiri. The State assumes a right
of public appropriation, and deprives its subjects of the right to
appropriate such animals and regulates or prohibits its exercise. If
the State takes the further step of declaring- by law that it has
appropriated these wild animals to the uses of Government and that
its possession and ownership aiie complete by legal construction and
without taking actual possession of them, they become the prop-
erty of the State wherever those laws are in force. Thus all
game laws are based on the sovereign right to appropriate wild
animals by the state. This right of government, lor it is such a
right, is illustrated in a forcible way by laws giving bounties for the
destruction of Avolves and other predatory animals. If a man, for
reasons of his own, shcmld claim that he was, rationc soli, the owner of
a cave that sheltered Avolves and tlierefore of the wolves, he could not
resist the rigiit of the state to cause their destruction in accordance
with law, even in the cave where they were bred but left uncon-
fined to go fortJi at will and maraud ui)on the property of others.
The power of the state in such case is not based on its judicial
function of suppressing nuisance, but on its ownership, when it chooses
to assert it, over wild animals.
It may be and, in a general sense, it is true that the private owner
of the soil on which a wild animal is bred can only acquire actual
property in such animal by its capture, but that is far from being true
as to the sovereign power in a state. A state that can not dispose of
what is res nuUins, within its own jurisdiction, is wanting in an essen-
tial power of sovereignty. It could not otherwise dispose of escheats,
waifs, derelicts, or forfeitures that occur without judicial procedure, as
many do occur. If these propositions are true it is unquestionable
that a state may acquire property in anything susceptible of ownership
that is res nullius, found within its jurisdiction, by a simple declaration
of law and without taking it into actual possession. The property so
acquired is the creature of municipal law.
The United States has done all that is necessary to establish its
ownership of fur-seals by municipal laws that are operative against
everybody within the limits of their jurisdiction, whether those limits
include all the waters of Bering Sea or oidy the land and waters with-
in the ordinary 3-mile liuiit. Within those limits this declaration of
69
the snpreino logisilatnre csfnWislies property in fnr-scals and appropri-
ates it to the United States while the seals are living and without the
necessity of capturing- them. When this in'operty is found outside the
limits of the jurisdiction of the United States the question arises for
the tirst time as to how far the people of other countries are bound to
respect the title asserted by the United States. As to the peoi)le of the
United States, they are bound to respect this title of their Government,
if so required by law, where\'(^r their allegiance binds them, and the
law does bind them to respect the property of the United States^ wher-
ever it may be found.
^o rule, code, or system of law, munici[»al <n- international, is pre-
scribed or alluded to iu the treaty as the guide of the tribunal iu
determining any question submitted to them.
The only allusion that is nnule in the treaty to laws or jurisprudence
is that the Arbitrators " should be jurists of distinguished reputation
in their respective countr'os." This requirement, as well as the nature
of the subject, questions, and points submitted to the tribunal for exam-
ination, is a sufficient indication that where the recognized principles of
international law or the municipal laws of the respective countries
furnish a basis and guide to ascertain and admeasure the rights of the
respective treaty powers, they shall be followed. But if there are
not such precedents and enactments the declaration of their respective
rights, outside the limits of their exclusive jurisdiction, is within the
competence of the tribunal, and also the declaration of tlieir duty
concerning the xu'otectiou and preservation of the fur-seals iu question.
The United States assert their right of jjroperty m the fur-seal in
question while they are alive and without the incident of actual caj)-
ture :
First, as a right by prescription derived from Hussia, and acquiesced
in by Great Britain; and their usefnlness to the Government and the
people.
/Second, as a right established by law within its domain, that is not
impaired by the necessary and temporary absence of the seals in search
of food, either while they are inhabiting the seal islands, or when they
retreat from them on their winter excursions into the Pacific Ocean;
Third, as a right of property that is the necessary result of the
habits of the animals, and tlieir natural and compulsory relation to the
Pribiloff" Islands;
Fourth, as a right of proi^erty growing out of the necessity of gov-
60
ernmental control of the fiir-seals, to prevent tlieir destruction, and the
alleged fact that such control can be elliciently exercised onlj^ by the
Government whose territory is occupied by them at their birth, and
while they are their x^roperty, ratione impotcntia;
Fifth, as a right of property based on the fact that, with the acquies-
cence of all nations, established by the fact that no objection or jn'otest
was made or adverse action was taken by any nation for a period of
ninety years, an industry was established, depending for its support
ui)on the preservation of the stock of fur-seals, which will be destroyed
if indiscriminate pelagic hunting is further permitted.
This is the lirst international controversy that has arisen as to the
right of property in or protection of fur-seals, and there is no case, in
point, to which reference can be made as settling the law of nations on
the subject. But there is no right, recognized by international law,
that is opposed by the case of Great Britain to either of these claims of
the United States to the ownership of the fur-seals in question, except
the right of free fishing in the open sea. This right is claimed for its
subjects by the Government of Great Britain, and is made to include
fur-seals, as free swimming animals, /ertc naturcv.
The universal right of free fishing in the open sea is established in
the custom of nations, which is the law of nations, and is not disi)uted
by the United States when it is conducted in a just and reasonable
manner and against fishes or aninmls that are res nnllius.
The free right of fishing can not be exercised to make a lawful cap-
ture of fur-seals if they are not wild animals, or if they are animals
wild in their nature, but have been lawfully appropriated by a govern-
ment and are at large in the ocean with the i)urpose of returning to
the dominion of the owner, or under the compulsion of an instinctive
necessity for returning to the dominion of the owner, which the ani-
mals habitually and periodically obey.
The right claimed by Great Britain is in every sense a right to hunt
and to kill game. The seals are luwer taken, as sometimes fishes are,
for purposes of propagation, but only for their value when they are
killed. The arts of fishing with hook and line and bait are never prac-
ticed as to fur-seals" and would be utterly without success. Catching
them with seines or nets is impracticable as an industry and, when prac-
ticed, only small animals are captured and none are taken alive. That
is only a method of capturing them by drowning. The death of tiie game
is the only means of capture at sea, an*d that is conducted with the liar-
61
poon and the gun — deadly Aveai)()ns. The linnter attaclcs evc^ry seal
within range of his weapons without discrimination or forbearance. His
success depends entirely upon indiscriminate attack and slaughter, for
he can do no less than that if he hunts with any success. His forbear-
ance, after he has captured his game with seine or hook, may release it
aiive if it is found to be under age or size and it will grow to its full
size; but capture of the fur-seal in the open sea is sure and instant
death, and, as to the herd or species, it is swift and inevitable destruc-
tion.
If this is "free fishing" it is such lishing as no civilized nation would
tolerate within its own territory in respect to any fish or wild animal
as useful and as helpless as fur seals. No civilized nation that has
seal rookeries within its territory has omitted to provide laws for their
protection against such hunting to the full extent of its powers. The
indiscriminate Jcilling of fur-seals is not, and never will be, sanctioned by
the statute latvs of any civilized country.
This right of indiscriminate slaughter of fur-seals on land and sea
can only be traced, and, in this case, has only been traced, as to its
origin, to a custom of the savage Indians, who were forced to adopt it
as a means of living. It is said to have thus gained its root in the law
of nations. Civilized nations that have gained dominion over these
savage tribes have taken control of the subject and have reversed these
laws of the savages in their application to their civilized subjects, and
have forbidden them to enjoy this unrestrained privilege. But, in some
instances, they have permitted the savages to continue the i)ractice,
because it is confined to short distances from the shores, and is con-
ducted with such weapons and in such manner as is not seriously det-
rimental to the fur-seal species. Moreover, the fur-seals are a source
of food supply and of raiment, to deprive them of which would imperil
tlieir existence. It is also cheai)er to permit their slight raids on the
fur-seals than it would be to feed and clothe them.
Finding this right, of savage origin, thus forbidden or restrained by
the municipal laws of all nations interested in the subject, and that the
uniform course and current of public opinion of the nations is directed
to this end for the purpose of preserving the fur seal species, are we to
conclude, in the absence of any direct or conclusive rule of interna-
tional law, that there is a principle or rule to be found in the laws of
nations that sustains and upholds the unrestrained right as it existed
among the savages to hunt or fish for fur-seals iu the open sea in a
62
way and at times and i)laces Avbeie the practice insures the speedy
destruction of the species'?
The international hiw is a growtli, and it is directed and shaped by
the experience and the sedate judgment of mankind. In its growth it
hasdisi)hiced many rules and dogmas tliat have proven to be impedi-
nients to tlie inarch of civilization. Among the most important of these
concrete rulesthat have thus been dethroned is thatlaw of nations which
gave to Eussia the right to declare the Sea of Okhotsk and Bering
Sea to be closed seas. Tliat was the internatiosial law when they were
discovered and occupied by that power. It has since been changed.
Bussia, in 1824, yielded that claim to the advancing growth of inter-
national law, but did not yield to pelagic hunters the right, in those
waters, to destroy fur-seals indiscrimiiuitely. IJussia saw that the
sentiment of the world, to which she surrendered the right of free
fishing and free navigation in Bering Sea, -would i)rotect hej" against
the then unmentioned and unclaimed right of visiting destruction upon
her seal herds and the industry they supported, ujion the i)reteiise of
the right of free fishing accorded to the United States and Great Britain.
In this formative and progressive growth of international opinion it
may well be asserted that the right of pelagic hunting, with its attend-
ant right of indiscriminate slaughter of fur-seals, has lost the authority
of its ancient origin among savages and is no hmger a concrete rule
or principle or even a reputable dognui of international law, in the
application that Great Britain makes of it. International law is based
on the same recognized elements of right government that are at the
foundation of nearly all the municipal laws of the great civili/ed
powers. This concordance in the elements and strm-ture of the two sys-
tems of law is established by many rules that are common to the munic-
ipal laws of such nations. In none of them is there a clearer or more
distinctly recognized doctrine than that of rights acquired by prcscri[)-
tion.
In the English common law an abso'ute title is acquired to any prop-
erty after it has been in the open possession of the occu])ant and those
holding under him for the period of twenty years. This is a rule of re-
pose adopted for the peace of society. In those features it is even more
useful between nations than it is between individuals. So jxttent is this
rule that the courts of both countries have "uniformly declared that any
grant, will, deed, or statute, will be conclusively presumed to exist, that
is necessary to sui)port the title of the party who has held uninterruxited
possession for twenty years.
63
No just reason can be stated Avhy this wholesome rule, founded in
the public policy of both countries, should not apply to theinternatioiial
rights in controversy between them, and should not include every
interest in any ijroperty, industry, or privilege that has been, for the
period of prescription, in the exclusive control and enjoyment of the
clainnint. The opposing rights, whatever they may be, are lost under a
conclusive presumption of a superior title in the actual o(;cupant.
I'or more than seventy years GreatBritain stood by and fully understood
that Ikussia had the exclusive usufruct of the Alaskan seal herd and
the exclusive control over them without making any question of that
right. If the property had been an island in the sea, to which (Ireat
Britain had the actual prior right by discovery and occupation, her
title would have been lost if she had suttered Russia to occupy, claim,
and hold the island for twenty years under an open and uninter-
rupted possession.
The theater on which these conflicting rights are enforced has much
to do with the limitations and restrictions under which they are to be
exercised, if the animals are fera naturce and are so classed by this
tribunal. If such animals leave the land on which they were raised
and are found and killed on the land of another, they belong to him on
whose land they are killed, because tliey are presumed to have escaped
to a new place of habitation, and the owner of that place takes them
ratione soli, as if they had been born and raised on his land. But if
they are kiHed on the highway they are the property of him on whose
land they were born and raised, unless they are shown to have escaped
from his land in quest of their former freedom or under the wild
instinct of going at large, free from man's control.
If seals are made property by the laws of the United States, and are
found on the ocean traveling in search of food, the owner has the
right to be there and to take care of them. If his presence is not nec-
essary, because it is useless for the purpose of protecting tlieni, and if
they are identilied as the seals that habitually resort to the Pribilof
Islands by their being found in the eastern ])art of the ocean, tiie
law regards the animals as being in tlie constructive possession of
the owner. Upon this rule of constructive ])ossession the security of
all commerce and all personal chattels most largely depends. It is an
all-pervading element of property. Possession of a bill of lading, or
even an oral contract for freighting cari'ies with it the possession of a
shix>'s cargo of fur-seal skins that the owner has never seen, and attends
64
them aroniMl tlie e:irtli. on land and sea. All he is required to do to make
his possession complete is to identify his property in any way he can.
And, so, if the United States own the fur-seals before they cross the 3-mile
limit, and have a constructive legal possession of them up to that line,
and if the seals are, for instance, nursing mothers going after food to
nurture their pups on shore, with a fixed purpose of returning to it,
the constructive possession of the animals is secured to the United
States after tliey cross the 3-mile limit. Without this there could
be no security for property in animals when they are not on the own-
er's land, even when they are within his view and he is guarding them
in the best way he can.
If the seals are wild animals belonging to the United States by tlie
declaration of positive law, or ratione soli, or ratione im;potentia, or by
actual cax)ture, and if this property is not lost when the animal goes
into the ocean for food or pleasure, with the intent to return, or under
an instinct that dominates its movements and leaves it without an
option as to returning, one who captures it when thus atlarge deprives
the United States of their property. If the cai)tor is a citizen of the
United States he is guilty of the double wrong of breaking the pre-
serve of the United States, which is closed as to him, and of taking its
property. That is poaching. If the captor is a British subject he
commits a tresi)ass on the jiroperty of the United States, because he
found it at a place in the open sea to which it went lawfully and
where it was constructively in the lawful possession of the United
States.
The case might be different, would be different under the English
common law, if the seal, being a wild animal, should enter within
British territorial limits and there be slain or captured. In that case
the possession would change so as to give the right of property, ratione
soli to that Government, and that right, or that lawful i)ower over the
animal would continue while it remained on British territory. But this
is the only instance in which the United States would lose its right of
property in the Ahiskan fur-seal, born on its soil, while the aininns
revertendi Gontinned to control its movements in its visits to the ocean.
The indefinite right of private fishing in the open sea, in favor of an
individual, is too slight and ill-founded to overcome the right of prop-
erty in a nation that is trying to prevent the pelagic hunter from
destroying a great production of commercial value, a source of revenue,
and ah instruaientality of government. Kot that the property rights
65
or lawful privileges of any man arc less sacred tliaii those of a State,
but government implies the subordination of private riglits, in a neces-
sary degree, to the general welfare, and this is tlie first view of all
rights taken by international law. It is on this principle that these
two Governments have, in this treaty, substituted their international
rights and powers as sovereigns over their people, and all their rights
respecting fur seals, and over the seals and the rookeries, islands,
waters, and their lessees, and compel them all to yield to a rule of inter-
national law, that the sovereign nations alone can deal with the inter-
national rights of their people. If they should extend the existing modus
Vivendi perpetually, no citizen of either country could be heard to make
complaint tliat his private rights had been thus destroyed, or that they
were protected by any law that could save them from the power of their
own government.
If all the facts presented in this case establish that seals are property
to be classed as domestic or domesticated animals, the claim of the
right to hunt and destroy them anywhere against the consent of the
owner is without foundation. If cattle on the boundary line of
Canada, where they are grazed in vast herds, and are almost as wild
as buffalo, should wander across the border of the United States, that
Government could not seize them without a violation of international
law. The case would be stronger under that law if the cattle were
owned by tlie Government of Canada, or Great Britain. The right of
property, rationc soli, would not accrue to the United States, for the
reason that they are domestic animals in their universal classification,
and that fact is notice to the world that they are the property of some-
body, and are not res nullius.
Whether fur seals arc fishes, or domestic animals, or wild animals, is
to be determined, first, by the question whether the most essentiiil tacts
of their existence occur during the period of their lives, on thehmd. It
is possible to nurture them on hind, by using inoper aitpliances and
food, and they can thus be made to increase in numbers, but that pos-
sibility only proves that they are not fishes. This is demonstrated in
Paris and London, and elsewhere, by daily experience. It is not ])os-
sible that a seal can be born and reared in the sen. It is, therefore, to
be classed as a land animal, as its creation and birth can only occur
on land, and these facts are essential to the existence of this animal.
A singular faculty of the male seals, at least, o^ living for months
on land without taking food, showsthattl'.ey may be kept out of the sea
11495 M 5
GG
for one-tliird, at least, of their lives, without iiijuiy to them. If dur-
ing that period they were siiilieieutl}' fed, there seems to be no reason
to sn])i)ose thata visit to the sea eould not be entirely dispensed with.
Indeed, this is done in menageries tliat travel inland, where far-seals are
kept far years in good condition without once entering tlie sea. While
the sea is the i)laee where their food is sought and found, it is no more
the exclusive haunt for such imrposes than the wild mountains and
plains in America are for the nurture of cattle, and sheej), or swine,
or turkeys, or than the open Avaters of the sea are for the nurture of
ducks and geese that are classed as domestic animals. It can not
be the food or feeding grounds that distinguish between animals as
land or sea animals, or as being Avild or tame.
In the case of all these animals the essential and controlling fact as
to their classification as land auinuils or as fishes is that they can only
have birth on the land, and are not fishes either in form, structure,
.instincts, habits, or the necessities of e:xistence. They can not breathe
beneath the water.
If they are essentially land animals the question of their domesticity
is a very simple one. That fact depends upon their usefulness toman,
their inability to escape from his control, and the certainty and regu-
larity of the forces that operate to subject them to his absolute dis-
posal, lu these respects the seal has an adaptation and fitness for
domestic use that is not so obvious and so certain and easy of control
in any other animals. Domestication of other animals that are allowed
freedom to come or go at pleasure depends, in a large measure, on their
consent. In the case of the fur-seal, the nature of the animal and the
conditions of its existence through a series of years, and also of its
increase, coni]!el it periodically and Avitli certainty to submit itself to
the ])ower of those who own and occupy two small islands in Bering Sea.
A similar climate, similar shores and coasts, and the same food have
for many ages invited them to select other homes on the islands and
vshores of the same sea. They have never done so, and there is no
ground for the conjecture that they ever will. The Pribilof Islands bear
the marks of a long-continued residence of the seals in vast numbers
upon their shores. The rough rocks are worn smooth from their haul-
ing Over them. What are called the parade grounds of the hollus-
chickie are described as being large areas of sandy soil Avorn and com-
])actcd to the snniothness of a floor. The carpet of fur and hair felted
together in the interstices of the rocks and in the sand could only have
67
been produced by many years of shedding seasons in wliicli it was
deposited. ]n all tlie close examinations tliat Lave been made by
many observers and experts sent to tbe coasts and islands of Bering
Sea and to the soutli and east of it, along the shores and islands of
the Aleutian cliain and the coast of the North American continent,
not a sign or trace of any rookery or hauling ground has been fcmnd
except upon the two islands of St. George and St. Paul. J^either the
evidence nor any rational deduction from it conveys the least conjec-
ture that they ever had any other home.
No two distinct classes of aninuilshave been or can be domesticated
by the same means. Some have the social instinct strongly developed,
as dogs, horses, cattle, and sheep. Others are simply obedient to
superior power and skill, as the elei)hant, ass, buffalo, llama, and
reindeer. Others are domesticated through their greed for food and
need of protection, as swine and poultry. Others do not look to man
for any of these means of control or for food, as the fur-seals. Yet, in
this lowest condition of the power of enforcing or indncing domestica-
tion by the art of man, the result of domestication — tlie dominion of
man over them — is the most certain and the easiest of enforcement.
Filling the most exact requirements of domestication, as to their sub-
jection to the will of man, no reason exists why they should not be
classed as domestic animals. In the legislation of the United States,
Eussia, Japan, Chile, and the British colonies, where fur-seals go
ashore to breed and to shed their coats of hair and fur, the utmost pos-
sible protection is given them that can be efCcctcd by municipal law.
These acts of protection assume the rightful and full control of the
animals, within these respective jurisdictions, disregarding all claims
of citizens or subjects to rights of property in the animals, or rights
of chase for the jjurpose of converting them into x>i'opcrty. These
acts go further and forbid hunting on land and sea during certain
seasons, and in certain areas of the ocean, and the seals are appro-
priated by these Governments for revenue purposes through leases
and licenses, for which a tax is paid. And even these privileges are
confined only to the citizens of the respective countries and colonies.
In the British system of fur-seal i)rotection, the oidy country
omitted from the list of colonies where seals are found is Canada.
It has no coasts or islands on which fur-seals habitually land, and
has, therefore, no interest in any rookery that requires protection.
Canada lays broadside on the Pacilic Ocean, near to the liighway of
68
the fur-seals iu their ainiual initiations in search of food, aud causes
them to be \\ayLaid when they are bearing the future product, on which
the preservation of the species depends, to that phxce where, for all
time, so far as we know, they have gone to beget, deliver, and nurture
their ofi'spring. It has also a location near to the narrow passes
through which these seals must pass on their journey to and from the
Pribilof Islands. Tliere they are waylaid and captured without dis-
crimination as to age or sex and while they are at the absolute mercy
of the hunters. They can easily concentrate there, in the open ocean,
with vessels enough to exterminate the species by an ambuscade that
the seals can not possibly avoid.
If Canada sl'.ares the zeal for the preservation of the fur-seal species
professed by Great Britain in her correspondence with Eussia and the
United States, and should exhibit practically her concurrence in the
legislation of all the other British colonies that are directly interested
in fur-seals, she would find ample opportunity to legislate for their protec-
tion. The earliest practice of pelagic sealing in the waters of the North
Pacific of which anything is definitely known, was conducted by Indians
in the Straits of San Juan de Fuca, one-half of which ocean highway
belongs to Canada under a treaty with the United States. Pelagic
hunting is still conducted in these straits; and it is from those waters
that nearly every sealing vessel is fitted out. It is there that the protec-
tion of the British flag is afforded to citizens of the United States to
shelter them in violating the laws and i^ublic policy of their own coun-
try. It is in those waters that the pelagic catch of seal skins are assem-
bled and sent to market. The hunting of fur-seals on the ocean at the
Xiasses into Bering Sea, and in that sea and in Russian and Japanese
waters, is a great leading industry of the inhabitants of Vancouver
Island. If the Pacific ports of the British possessions in America were
closed to such trafiic the seal herds would scarcely need other protection.
With all these opportunities, Canada takes no part in any legislation
for protecting fur-seals in the Pacific Ocean and is wholly out of sym-
pathy with the professions of Great Britain of favor for these just and
high purposes. Canada seems to have no respect for the opinion
expressed in the legislation of other countries, and especially by all
British provinces interested in the preservation of fur-seals; but, to
maintain its hold on the seal herds, it urges Great Britain to insist that
her people have the right, under the pretext of fishing, to appropriate
to themselves any fur-seals found in the sea.
69
Great Britain, for political reasons, applies the doctrines of protec-
tion of fur-seals to all her other colonies, and quotes from the interna-
tional law the established right of "free fishing" iu justification of
Canada for a practice that will result iu the wholesale destruction of
the species. While such contentions are insisted upon by this great
power, it would be only injurious to the honest portion of the people of
the United States for Congress to enact laws to punish pelagic hunting
on the Pacific Ocean. Such laws would only cause a repetition of the
practice on the ocean that was rife iu Bering Sea before the modus
mvendi of 1891 was established — that is to say, it would invite dishonest
and unpatriotic citizens of the United States to seek the shelter of the
British flag, while in its name and under its power they would defraud
and dishonor their own country. It was not until Bering Sea was
closed, i)artially, to pelagic hunting of fur-seals iu 1891 and 1892 that this
new source of danger to the seal herd was understood or appreciated.
The results of closing Bering Sea to iielagic sealing caused sealers
from Canada and the United States to concentrate their greatly
increased forces in hunting tlie herd on the Pacific and in intercei^ting
them in the Aleutian passes. This was not known until after the
treaty of February 29, 1892. This is a new and dangerous condition
which the treaty expressly included iu the purview of the powers of the
Tribunal of Arbitration. It was iu the last days of the negotiation that
this important phase of the case was brought to notice and provided
for.
The question as to the justification of this plan of "fishing," if it is
fishing, is as new in international law as the occasion that gave rise to
it. If it is "fishing," the method of it is new, and was wholly uidcnown
when the right of tishing anywhere in the open sea was recognized in
the law of nations. If the right now claimed to be lawful under this
new method is a total departure from fishing, as it was practiced when
the rigiit to fisli was establi.shed, and is fatally destructive of the spe-
cies of "fish" against which it is employed, there is no warrant for
saying that it is sanctioned by international law.
The abuses to which this i)ractice must lead, as already developed in
two years of experience, show that the claim set up by Canada of a
right to "fish" for fur-seal with fleets of vessels and boats, armed with
shotguns and prepared cartridges, and to kill them indiscriminately,
has but one element of the established right of free fishing, namely,
that it is conducted on the high seas. Fishing with shofuuus u the
70
ocean is i\cvr. It. is an innovation that destroys tlie snbject to which
it applies. If this is a right which the international law must recog-
nize, although it is almost universally denounced by municipal law, it
must be limited to a reasonable use, as all privileges are limited. As
it is practiced by pelagic sealers at this day it receives the condemna-
tion of international law, because it sacriiices and destroys the benefits
of the seal herds to the commerce of the world and imposes on the
United States very serious burdeiis in preserving the seals for the
private advantage of persons engaged in an organized hunt, while
denying the right of her own citizens to take them.
The United States must protect the seals against her own people or
else they will be speedily destroyed. If in doing this all her care and
expense are turned to naught by a rule of international law, she can
only abandon the seals to their fate, let the islands become barren
of all value, and console herself with the reflection that her sacrifice
adds a i^ower to the international law that is more authoritative than
the judgment of all the nations of the earth, except Canada.
It is a new and very dangerous phase of the riglitsof fishermen that
they can lawfully combine to destroy fish and use the agencies that
are necessarily destructive of a given species of fish under the pro-
tection of international law. It is still more dangerous if they can
lawfully waylay the fisli at nariow passages between islands and
destroy them as they approach the shores and bays of a neighboring
nation, and yet more dangerous if they can lawfully form a cordon -of
vessels, with great numl)ers of men aimed with shotguns, just outside
the 3-mile limit, and can kill seals that are fiee breathing as well as
free-swimming animals, wheneverthey rise to the surfacefor air and come
in range of their guns, while they are passing to and fro in search of sus-
tenance for themselves and their offsju-iiig. Yet all these combiinitions
and practices are lawful, if the right of pelagic hunting of fur-seals is
the same — no more and no less — with the right of fishing in the liigh
seas.
It is not surprising, in view of such serious results as would follow
the practice of jiclagic sealing, and have already resulted fiom it,
where it is placed on the same footing with the right of fishing in the
open sea, that the power to ordain concurrent regulations for its con-
trol, or prohibiti<m, was given to a Tribnnal of Arbitration.
It is only by regulations, and not by advice, or by the statement of
the principles of law that govern the case, that these matters can be
settled.
71
The conclusions T Imve reacliod are:
1. That the United States have a property in the Koals in and habit-
ually resorting to their islands in Bering- Sea.
2. That this property is in the lawful possession and control of the
United States when it is found on their islands, or within the limits of
their territorial jurisdiction, and they have the exclusive jurisdiction
to i^rotect and preserve them within those limits.
3. That this property is also in the lawful possession of the United
States when the seals are found in the open ocean and, in such waters,
they have such rights of jurisdiction over these fur-seals as any owner
of land animals would have over domestic or domesticated animals,
when fonnd on the public highways.
4. That, as a sovereign poAvcr, the United States may punish its
citizens for appropriating or destroying its property on the high seas;
but they can exercise no higher powers over property so situated, when
it is being appro])riated or destroyed by the citizens of other countries,
tliau a private owner could exert under like circumstances.
IN THE DISCUSSION OF THE GENERAL SUBJECT OF THE AWARD TO "BE
RENDERED BY THE TRIBUNAL, AS TO WHICH LORD HANNEN SUB-
MITTED A FORM OF AWARD, SENATOR MORGAN SUBMITTED THE
FOLLOWING REMARKS :
I supposed that the debate on tlie questions arising under the
treaty had been closed, and that the members of the tribunal would
now deliver their opinions, seriatim, in the order agreed upon. But Lord
Hannen has made some criticisms on the attitude of the United States
and the arguments of its counsel, that seem to open up the discussion
of the whole subject, and I must not allow them to pass without notice.
As I have had occasion several times to remark, during the progress
of the discussion before the tribunal, this is not a litigation between
the United iStates and Great Britain in which a judgment can be ren-
dered by this tribunal in favor of one party and against the other for
a right asserted, or for property or damages which one party must
gain and the other must lose.
The treaty, which is a law to the tribunal, provides that each party,
at a certain time, shall deliver its printed case to the arbitrators, and
to the agent of the other party, in which its claims shall be fully stated.
Thus two independent cases are required to be stated and submitted
for decision. This was done, and when it was done, the attitude of the
two Governments, as to the claims they respectively submitted, was
fixed and determined. This requirement was not observed by Great
Britain, but other evidence not presented and submitted either in its
case or counter case, was offered during the progress of the oral argu-
ment and was received and considered by the tribunal.
I insist tliat these proceedings do not comprise one case, but sepa-
rate cases. They are to be heard together, but they are not cross
actions, neither arc they co:isolidatcd actions, as is sometimes the
72
73
case, under tlie orders of a court luiving jilennry powers. This tribu-
nal has no such powers, but must decide each case, as it is stated
and submitted, upon its merits.
The simplest analysis of the cases, to which all other questions are
merely incidental, is this: that Great Britain claims for its subjects the
unlimited, unrestricted, and unqualified right of hunting and killing
fur seals of all ages, sexes, and conditions at any ])lace in Bering Sea
and in the North Pacific Ocean, that is outside the ordinary territorial
limit of 3 miles from the islands and coasts of the United States. That
is the entire claim of Great Britain, as it is submitted to this tribunal
in the British case.
The United States claim the ownership of the fur-seals that arc in,
or that habitually resort to Bering Sea, and the right to protect
them wherever they are found, outside the territorial limits of Great
Britain. The tribunal should, in my opinion, have taken up these cases
separately and have decided them, giving due consideration to the ob-
jections raised in the couuter case of either i^arty to the case of the other
party. The decision of the rights claimed in either case, does not, nec-
essarily, dispose of the rights that are claimed in the case of the other
party. A decision ihat the United States has the ownership of the seals
or the herd of seals does not afhrm its power to extend its statutes into
the Pacific Ocean and enforce them there against the subjects of Great
Britain in any and every case of trespass ui)on that property that may
occur, or may have occurred, even recently and \i])on hot pursuit of the
offender.
Neither would a decision to the contrary entitle the subjects of Great
Britain, or of the United States, to hunt fur seals, up to the borders of the
Pribilof Islands, in such force, and by such methods as would seri-
ously endanger, disturb, or thieaten the industry and the revenue
system that the United States has established there for the purpose
of maintaining government on the islands and of encouraging the
natives there in earning a support and in raising themselves to better
conditions.
It is claimed here, as it was claimed in the arguments of counsel for
Great Britain, that the right of ]ielagic sealing exists, as to fur seals,
under tlie inteinational law, in favor of the subjects of Great Britain,
and also in favor of the citizens of the United States, without any restric-
tions whatever. Tluit no conditions of time, or manner of hunting the
seals, or as to the age, sex, or other condition of the animals, or as to the
74
numbers engaged in limiting tliem, or tlint tlieir purpose is to destroy
them, or that tlieir implements of warfare are most deadly, can operate
to control tlie pelagic sealer outside tlie limits of territorial waters.
This view of their rights is not disposed of by deciding that the United
States either has or has not the right to protect the fur seals, but that
question is pertinent in considering whether, under tliis treaty or iii
the international law, the right of pelagic hunting of fur seals exists
and whether it is an unlimited and unrestricted right.
Lord Hauuen has expressed the opinion that all animals found swim-
ming in the sea, whether they are birds, tishes, or beasts, if they are not
within territorial waters, are the subjects of rightful pelagic hunting.
Under such a law an animal that is domestic, such as a hunting or
ducking dog, or a tlock of tame geese, or ducks, or swans, would forfeit
the protection of the law, and their owner would lose his property in
them ill favor of the better right of the first taker, if tliey, in search of
food or prey, should swim out on the Avater, as they often do, beyond
the ordinary 3-mile limit, or that such fowls would be liable to the
free H])ort of the hunter if they should fly through the air in their
excursions beyond that limit.
In the effort of Lord Hannen to apply to the fur seals a rule of i>rop-
erty and the right of protection that would ai)ply to wild ducks and
geese, and to swallows whose nests are taken and used for food in
China, he neglects to give due weight to the cardinal fact on which, in
one aspect, the case of the United States is based. It is the fact that
the fur seals that are in, or that habitually resort to Bering Sea, are
swi <7eHcris, and that no other fishes, birds, or animals that visit the
ocean for food or pleasure have a certain fixed abode or home on
land.
His lordship omits to give due weight to the fact that no other animal
visits its place of abode with such unvarying certainty, and tliat, wlien
they are assembled they live upon very limited areas of land, and in
compact masses, only se])a.rated from each other by the distance of a
few feet and arranged uiion adjacent grounds in classes entirely dis-
tinct from each other, Avhereby the animals that are fit for slaughter
for their pelts are kept entirely separate from those engaged in the
duties of procreation and the nurture of the young. So peculiar is this
trait that the young pups collect in groiqis, (tailed pods, and separate
themselves from all other classes of seals, and keep up the separation
until they return to the islands the next summer after they are born.
75
Nature lias not given to i\uj otlier class of animals, wild or domestic,
this clear indication of their serviceable quality for the use of man and
their unavoidable destiny to become subject to his complete dominion.
The wdd geese and ducks and the swallows mentioned by Lord
Hannen never lose the instinct of escape from man, which the seals
have not except when they are in the water, and even there it can
scarcely be called an instinct or habit, until it has been created in them
by the ill usage of pelagic hunters.
When swallows, geese, and ducks wish to escape from the presence of
man they have, at all times, the means of escape on the wing, which is
their effectual method of avoiding capture.
The seal on land are almost entirely incapable of escaping death at
the hands of man. The breeding i)laces of the wild ducks and geese
are scattered around the whole earth, above certain latitudes, and many
species breed in all latitudes. They are res nuUiiis because man can
not lay either his destructive or preserving hand on them at pleasure.
Would it be so as to their nests or eggs, which may be taken at pleas-
ure, or their young that can not escaj)e, and are, rationc soli, the property
of the owner of the soil 1
There is nothing in the eviden(;e relating to Chinese swallows or
their nests, but if they build their nests on the rocks along the sea-
coast, as I am informed they do, the nests belong to the owner of the
soil as much as the honey collected by bees and stored in a tree that
stands upon his land. But it is needless to seek for rules that will
govern the rights of the United States in respect to fur seals by citing
those that may militate against those rights when applied to fishes,
birds, or beasts, that differ from them in their essential and elementary
instincts and do not invoke the duty of preserving them by laws, be-
cause they can not escape from man or protect themselves.
I do not intend to examine the question of property, or the right of
protecting it, with reference to the bearing and authority of cases de-
ciiled in England or the' United States. As far as analogies may be
useful in reaching just conclusions, they are found to support the con-
tention of the United States ux)on the authorities that have been so
ably discussed.
Mr. Justice Harlan's very clear and cogent opinions on this view of
the case, in which he quotes with^ approval from the text books upon
municipal and international law, really leave -nothing for me to say.
I fully concur in what he has said on these topics. But I feel war-
76
ranted and required to add some other views, arising' npon the wliole
treaty, as to the matters now under special examination.
This being now a controversy between Governments, the ques-
tions submitted are to be decided according to the duty of the high
contracting parties toward each other, both having the x)urpose of
protecting aud preserving the fur seals. This duty arises out of the
treaty aud a community of purpose, as it is solemnly avowed; and
it is not admeasured by the international law, as would be the
case where a controversy existed that involved the ownership of the
seals, for instance, if they were claimed to belong to each Government,
and the tribunal was required to decide as to which of them has the
better title.
The tribunal is intrusted with the power and has accepted the duty
of i^roviding for such concurrent action of the two Governments as
will protect and preserve the fur seals, when it shall determine that
the United States, in virtue of its own sovereign powers, and acting
alone, can not preserve them.
If the decision of any of the questions in this case is made to depend
solely upon what is the declared international law, there could be no
need for asking other nations to accept and ratify the award. Their
acceptance of the award, as the correct ruling upon questions of inter-
national law, would simply amount to an affirmance of the legal propo-
sitions involved in it. All nations are bound by the international law,
and, to accept a decision of this tribunal, by convention, that is merely
in accordance with that law, would only be to agree to do that, by
treaty, which they are already bound to do under the international law
It is because no one can say that the international Liav determines
these questions, that it is proposed hereafter to establish by treaty,
in which all the States are requested to concur, what is their duty in
giving protection to the fur seals.
All property originat(>s in municipal law or recognition, and no prop-
erty is created, or defined, by international law. I admit the influence
properly to be exerted by the judicial decisions on analogous questions
by the courts of England and the United States, not as authority, but
as argument, or precedent.
I understand that the right and duty of protecting fur seals against
indiscriminate slaughter is mu(;h more distin(;t and obligatory, than is
the right and duty of protecting animals that are less valuable and
are not i^laced so entirely within the dominion of man.
77
I understand tlie treaty to make it the duty of the tiiluiunl to con-
sider the entire subject, in the light of the desire of the two nations to
l)rotoct and preserve the fur seals, and to have it determined whether
the United States lias the right and power to deal, single-handed, with
th.o subject of proper regulations to protect and preserve the seal herd.
In this view, the attitude of the two governments towards the inqui-
ries submitted to the tribunal is special and exceptional, and this is
evidently a cardinal feature in the cases submitted to the tribunal.
JS^o other such situation ever existed, or ever can exist, between two
nations and it must be x)rovided for, if at all, by a special award, upon
special facts, and not merely by seeking analogies in the decision of ques-
tions, in municipal courts and between private litigants, about wild
animals as to which a private right of property is in question. In either
view of the subject, the right of property in fur seals is well founded.
The rule of the common law, and the Roman law, as to the acquisition
of property in animals that nveferw naturcc, when applied to fur seals,
show conclusively that these animals are capable of specific ownership
while living.
This is a great iDublic matter that has engaged the attention of two
Governments, and all their geographical, industrial, maritime, and gov-
ernmental relations enter into the proper consideration of the questions
submitted to the tribunal. The peace between the nations is also a
grave consideration for the tribunal, as well as the eflect of the award
upon the interests of Eussia and Japan. The power to ordain regula-
tions and to make them an essential part of the treaty is so interlaced
with questions that are judicial, as to give to the powers of the tribunal
and the award that it shall make, only such eflect as the treaty pro-
vides— an eifect peculiar to this case and not such as follows the judg-
ment of a court.
When the fur seals are properly protected and preserved by the award
of this tribunal, the purpose of its creation Avill have been accom-
plished and the full limit of its duties will have been reached. Then the
appeal of these two great powers to other nations, to accept the award,
will contain no assertion that the award is a correct finding u])on the
international law, to which all nations are bound, without convention,
but an affirmation that it is a just and salutary arrangement, reached
by treaty, and suited to the purpose, in the Paeific Ocean and in all
other seas, of preserving seal life and of restoring it to its condition
before it was so nearly destroyed in the Antarctic Ocean, and so
seriously threatened with extermination in the iJ'orth Pacific Ocean.
78
I believe tliat in every step we take, and in every decision we make
in tliis matter, we slionld avoid abstract questions and inquiries tliat
can have no practical ell'ect u[)on the avowed purpose of tlie parties to
protect and preserve tlie fur seals. Tlie attitude of tlie two Govern-
ments towards the admitted duty of preserving tlie fur seals in the
future; the powers tliey liave exercised jointly and severally, over tbe
subject in tbe past and in tbis treaty; tbe configuration of tbe Aleutian
peninsula and tbe islands of tbat arcbipelago; tbe peculiarities of seal
life, and tbe destructive nietbods of seal bunting in tbe open sea; tbe
proi)er restriction, or necessary probibition to be imposed upon i)elagic
sealing; tberigbtof tbe United States to defend and protect its powers
of government, its revenues, aiul to preserve its industry on tbe islands;
are all brougbt witbin tbe scope of tbis inquiry, by tbe provisions of
tbis treaty, and are all to be considered in determining wbat are tbe
just and equitable rigbts and tbe duties of tbe bigb contracting i^owers.
ISTot merely tbe rigbts tbat would result in a judgment for one party
or tbe otber in a suit by tbe United States in a municipal court for tbe
recovery of tbe value of a seal killed by a pelagic bunter on tbe bigb
seas, but tbat tbe just and bonorable international obligation resting by
agreement upon botb Governments, will find autbentic and final expres-
sion in tbe award of tbis tribunal.
On all bands it is admitted tbat tbe award, wbeii rendered, will
constitute a stipulation of tbe treaty in tbe same sense as if it bad
been written in tbe text of tbe agreement by tbe bigb (;outracting powers.
Tbis being so, and tbe power of tbis tribunal to determine and estab-
lisb concurrent regulations hciiuj a power to ordain, and not a juridical
power to decide, and botb being united in tbe tribunal and subject
largely to its discretion, tbe facts tbat bear upon tbe judicial inquiries
and upon tbe powers of ordination are tbe same, are made identical by
tbe treaty, and are to be considered as one entire body of evidence, in
respect of botb classes of powers.
Xo abstract question of law is submitted to tbis tribunal. Tbe
law that is intended to govern tbis case in all its j)arts and i)liases
is tbe law of justice, comity, trade, commerce, bumanity, good will, and
peace, in carrying out a common i)urpose of protecting and preserving
tbe fur seal species in tbe interests of commerce upon tbe facts pre-
sented to tbe tribunal and sucb as are within tbe reacb of its judicial
knowledge. It is ujion tbis view of tbe duties of tbe tribunal and of its
powers and of tbe rigbts of ibe iiarties and the complexion tbey have
79
given to these iiiquiiicy and questions by tlie treaty that I will examine
the subject.
Tiie very general manner in wLicli tlie questions submitted to arbi-
tration are stated in tlie treaty, and the iiidetlnite statement of the
claims of the respective governments, the absence of direct issues of
fact or law in the submission, and the unlimited range of inquiry as
to all facts, wLietlier historical or judit-ial in character, the general
form in which all questions are stated in the treaty, seem to demand
a broad and just award by the tribunal that will cover a great con-
troversy that is entirely new. In the treaty of ISOli, differing from all
former treaties on like nnitters, the facts Mhich constitute the foundation
of the claims of the respective parties are not stated hypothetically, or
in any form, nor are the questions that arise on those facts stated in
any issuable form, nor are the rules of law or justice stated under
which the tribunal shall ascertain and admeasure the rights of the
parties.
In this treaty everything is left to the ascertainment and the deter-
mination of the tribunal within very broad limits of inquiry upon cer-
tain topics. The only separate and specific duty iniposed on the tri-
buiml is that they will ascertain and declare the facts, and apply the
law that, in their opinion, gives a true answer to certain sweeping-
inquiries stated in Article VI of the treaty. This is an exceedingly
broad and comprehensive grant of power and discretion to this tribunal
of arbitration, in reference to a subject in which all civilized countries
are interested, and is, to many uncivilized people, a source of supply
of food and raiment.
These great nations found occasion to project, if not to foimulate and
to establish by imi)artial arbitration, new rules of right and convenience,
and also of jurisdiction, that are not distinctly stated in the international
law, for the protection and preservation of the fur seal, to be enforced
outside the jurisdictional limits of the two governments and of all other
governments. In doing this they agreed to bind themselves to accept
and abide by the rules that this tribunal shall adoi)t, and to coo])erate
in securing the adhesion of other powers to them. A course somewhat
similar was followed by them in the Treaty of Washington, of 1.S71.
When the nature of this splendid fur is considered, and the fact that
it is the only source of supply of large i)elts that is available for the
uses of mankind; and that the fur seal is the only fur-bearing animal
that can bei)reserved by law, on the i>riuciple of domestication; and that
80
its value, and the ea.sy prey it offers to a combination of vessels and
weapons for its capture Lave destroyed the species, in a commercial
sense, in the southern hemi.spliere, and are rapidly destroying it in the
waters of the north Pacific, it would only be surprising if Great Britain
and the United States, whose people are alone engaged in this work
of destruction, should not have agreed to provide some effectual means
for the protection and preservation of this valuable animal.
In the confident expectation that all the countries where fur seals are
bred will adopt the methods of protection and iireservation that this
tribunal shall provide, to operate outside the acknowledged limits of
exclusive, sovereign, national jurisdiction, if they are found to be wise,
just, and practical; and that the Governments concerned will take
projier care of these valuable animals, on their islands and coasts;
these two Governments have instituted a plan for securing these ends,
which is well aidai)ted to that purpose. That result Avill be secured if
the tribunal will exert, firmly and wisely, the high powers confided to
them.
The confidence felt by these Governments in the beneficial results of
arbitration, is fully justified by their past experience, and has led, doubt-
less, to the increase of powers and discretion given, in the treaty of 1892,
to this tribunal of arbitration.
The whole civilized world is interested in the result, and many justly
expect that the award, when made, will cover the great question of tiie
proper inotection and preservation of the fur seal species in such
manner that the regulations may win the approval and secure the
adhesion of all the maritime powers.
It would be a serious dereliction of duty on the part of the tribunal
if they should fail to deal with this great question in the broadest way,
included iu the purview of their powers, and should confine their decla-
rations and award to narrow or technical grounds, or to a simple decla-
ration of rights of property in fur seals, or to the powers, or jurisdiction
to preserve or protect them in Bering Sea, and should provide no reg-
ulations under which these rights, powers, and jurisdiction should be
enforced, or exerted, wherever the seals are found.
The necessity for protecting this property, Us pendens, was not fully
understood, and could not be, until the close of the sealing period for
1892, after the treaty had been concluded. In 1891 the destruction of
seal life, resulting from the catch of 30,000 seals in Bering Sea, by
pelagic hunting, was estinuited as being at least equal to the number
81
killed on the seal islands. xViid this was tlie result despite tlie fact
that the modus vivoidl for that year was siguei^l on June 15.
The modus viveudi for 181)2 was signed ou the 18th of April, befoie
the pelagic huutiug had occurred for that year. In both these agree-
ments of 1891, and of 18'J2, wliich were intended, in the first one, to
carry out the proposed treaty, and the treaty as agreed upon and
signed, in the second one, a prohibition of pelagic sealing was agreed
ux)on and enforced against the people of each Government. These
were "concurrent regulations," and tlic necessity for them was thus
admitted by both Governments. They were not extended to the North
Pacific, because the destructive effects of i^elagic hunting there were
not then known to the United States.
Now, it is ascertained that the seal hunting in the oi)en ocean and
at the entrances to Bering Sea is even more destructive beyond the
jurisdictional limits of both countries than it ever was in Bering Sea.
These facts have been develojied since the cases of the jjarties were
delivered to the arbitrators.
I am led to restate these facts in part and to repeat arguments I have
had the honor to submit upon jjrevious pliases of this discussion, because
of my earnest desire that the award of the tribunal should measure
uj) to the opportunities and demands of a great occasion and should
recommend itself to general acceptance by the civilized nations.
The question stated in " point " five, of Article VI, of the treaty, re-
lates to the right of property and the right of protection of that jirop-
erty, which the tribunal may fully decide without touching the ques-
tion of the exclusive jurisdiction of Russia and the United States to
provide for the protection of that property, if the right to it is found to
exist. Those questions — "points" — as to the exclusive jurisdiction of
the United States arose out of claims that Russia is alleged to have
asserted and exercised "prior ami uj) to the cession of Alaska to tbe
United States," without reference to the question whether those claims
were well-founded in custom, in Jiatural or moral law, or in the law of
nations.
The claim, or question, stated in point 5 of Article VI has a wholly
different foundation. It is a claim of "property in the fur seals fre-
quenting the islands of the United States in Bering Sea," and the cor-
relative right of protecting them when such seals are found "outside
of the ordinary three-mile limit," to the same extent that such right
11405 M 6
82
exists and may be protected wlicii tlie seals are found inside tlio
acknowledged territorial limits of the islands.
This claim of property in the United States, if it exists and so far
as it is not affected by prescription, is based npon tlie habits of the
animals which make them domesticated property and subjects them
absolutely to the possession, dominion, and use of the United States
by an irrevocable law of nature, which supplies a just foundation for
its protective legislation.
The right of "exclusive jurisdiction of the United States'^ to protect
the seals "found outside the ordinary three-mile limit" is a right that
is based on moral, or municipal, or international law, or upon all those
laws combined in support of justice, the protection of commerce, and
in aid of humanity and the peace and good will of nations.
The right of the United States to this property is neither greater nor
less, when it is based on the nature and habits of the seals, because
Russia may have asserted or exercised " exclusive rights in the seal
fisheries ^^ in Bering Sea; nor is the right to protect the property
necessarily dependent upon the answer to the question, " What exclu-
sive jurisdiction in Bering Sea did Eussia assert and exercise?" While
this right and this jurisdiction are correlated, they are not identical,
nor do they depend necessarily upon each other in the form in which
they are stated in the five points of Article VI.
If the arbitrators find that the United States have no " exclusive
jurisdiction" to protect "the fur-seals in, or habitually resorting to the
I'ering Sea," such a decision must mean that, as between the United
States and Great Britain, whose subjects claim the right to take the
seals wherever found " outside the jurisdictional limits of the respective
Governments," the consent of Great Britain is necessary in that area
of the sea, to supply such lack of jurisdiction by "concurrent regula-
tions" to suppress, or control, pelagic hunting. And, if the Arbitra-
tors hold that they have no power, in that event, to protect the seals
by ordaining concurrent regulations for that puriiose, and if the United
States have no lawful power to protect them, and, if Great Britain will
not consent to a joint protection of them, they will perish utterly.
If the arbitrators hold that the United States have the "exclusive
jurisdiction" to protect and preserve the fur seals "outside their juris-
dictional limitSy^^ (which is a solecism), because they are the exclusive
owners of the seals: or, if they hold that pelagic hunting outside the
ordinary territorial limits of three miles around the seal islands does
83
not so affect seal life as to make it necessary to establish regulations for
the siipi-)ression or control of that practice, they will liave no need to
make any award further than to dismiss all tliat part of the submission
and leave the questions submitted to them undecided.
This would not be a "result of their proceedings" tli at would be final,
"as a full and perfect settlement of all the questions referred to the
arbitrators," but would leave the Governments confronted to each
other, with no barrier between them to prevent hostilities in future.
If the arbitrators should hold that the United States "has exclusive
jurisdiction" to protect the fur seals on the open ocean, because the
seals are their exclusive property, and if they should stop at that decla-
ration, many questions as to the manner of exerting that right or
power, which lie beyond that determination, would arise; such as the
right of visitation, search, and seizure; and also questions as to the
effect of statutes of the United States beyond the limits of their ter-
ritorial jurisdiction, and also the question of the condemnation of ships
belonging to Great Britain, in the courts of the United States.
Proper concurrent regulations, established by this tribunal, would
result in establishing the peace of nations, and the protection and pres-
ervation of a valuable species of animals, the destruction of which
would seriously injure commerce, woidd deprive many thousands of
people of remunerative employment, and would leave a blot on the
civilization of the age.
To hold that there is no necessity for the regulation of pelagic sealing
by some power or some authority is to ignore the evidence in the case
and the joint report of the commissioners appointed under this treaty,
and the statement and opinions of the diplomatic representatives of
both countries and of Eussia and Japan.
Canada alone has formerly contended that no necessity exists for
regulating pelagic sealing, but that the Government has so far modified
its views as to agree to the draft convention submitted to Mr. Blaine by
Lord Salisbury, which proposed a close time for pelagic sealing in the
North Pacific Ocean and in Bering Sea. If Canada has not gone ftir
enough in the right direction she has, at least, admitted the necessity
of some progress, and has shown her willingness to conform her action
to the views uniformly expressed by the Government of Her Majesty,
that the seals in Bering Sea and the North Pacific should be preserved,
and that unrestricted and indiscriminate sealing should not be allowed.
There is no dispute that this has been the avowed purpose of both
84
Governraents in their long and exliaiistive diplomatic correspondence
and negotiations, and in agreeing to arbitration ni)on the whole " sub-
ject" of ijrotecting and preserving the fur-seal in Bering Sea, and re-
sorting to or frequenting that sea. But I think this matter is of sufficient
importance in its bearing upon the duties of this tribunal to justify me
in a concise statement of my views as to how the questions of dittbrence
arose between the United States and Great Britain, and how their
treatment gave rise to the questions formulated in the treaty.
The United States seized some of the sealing vessels employed in
Bering Sea and they were condemned in their courts in Alaska, and
thereux^on the Government of Great Britain assumed the x>rotection of
vessels so emjiloyed under her flag, and made protest to the Govern-
ment of the United States against their seizure and confiscation and
against the arrest and punishment of her subjects sailing under the
British flag, and made a claim for damages in their behalf.
The first seizure was an American vessel, August 1, 1886. Thus it
was this dii^lomatic controversy had its origin in the insistence of
Canada upon the claim of an unrestricted right of pelagic sealing
without regard to the preservation of seal life, or the rights of the
United States, or their interests; and it was, at first, confined to
pelagic hunting of fur seal in Bering Sea. It was the abuse that grew
up under the asserted right of pelagic sealing, as it was practiced by
the Canadians, and not the arrest of the vessels that gave origin to
this controversy. The initial point of the negotiations that resulted in
the treaty of February 29, 1892, was established in 1887. It was ex-
panded into this treaty and has drawn after it, as an incident, the
contention relating to jurisdiction over Bering Sea.
The contentions of the two Governments were confined to questions
that affected their respective claims of rights, within Bering Sea, when
Mr. Phelps, minister to Great Britain, on November 11, 1887, brought
the subject to the attention of Lord Salisbury, and then proposed, on
the part of the Government of the United States, "that by mutual
agreement of the two Governments, a code of regulations should be
adopted," etc., for the preservation of the seals in Bering Sea, " entirely
irrespective of any question of conflicting jurisdiction in these waters."
Mr. Phelps wrote to Mr. Bayard, as follows :
His Lordship promptly acquiesced in this proposal, on the part of
Great Britain, and suggested that I should obtain from my Govern-
ment and submit to him a sketch of a system of regulations which
would be adequate for the puri>ose.
85
On April 10, ISSS, Lord Salisbury, with a view to meeting tlie wishes
of the Russian Government respecting the waters surrounding Eobben
Island, suggested to Mr. White "that besides the whole of Bering
Sea those portions of the Sea of Okhotsk and of the Pacific Ocean
north of latitude 47 degrees should be included in the proposed arrange-
ment." (See Appendix, Vol. i. to Case of the United States, p. 179.)
This fixed the area of the " close time" 200 miles south of the northern
border of Washington State. He also suggested that the close time
extend from April 15 to October 1.
Mr. Bayard, through the plenipotentiaries of the CTnited States, pre-
sented the proposal made to Great Britain and the assent of Lord
Salisbury to the same, to the Governments of Japan, Russia, Germany,
and Sweden-Norway, and asked their concurrence in an international
convention to settle the question of pelagic fur-seal hunting, on the
general basis of the informal agreement reached by the two Govern-
ments. Both Japan and Russia cordially assented to such a negotia-
tion, and Sweden and Norway said:
The Royal Government having no interest in the seal fisheries. His
Majesty tliinks there is no need to take part in any treaty in reference
tliereto on the part of tlie United Kingdoms. He, however, expresses
tlie desire that a mutually beiieiicial accord maybe arrived at between
tlie interested powers, and that the same may be maintained, with a
reservation that the powers not at present interested may join in such
an arrangement in future, if they desire.
Japan replied to the note of the United States October 8, 1887, and
said:
The unregulated and indiscriminate slaughter of the sea otter as
well as the fur seal on the coasts of Japan and in their coterminous
waters is a subject which has for many years engaged the attention of
the Imperial Government. The experience of His Majesty's Govern-
ment justifies the belief that the end sought to be obtained can be
best secured by means of a cooperaUre interyiational action^ and they
therefore cordially approve of the suggestions of the honorable the
Secretary of State.
The Russian Government on November 25, 1887, said:
Mr. Wurts, under date of August 22 (September 2), was good
enough to communicate to me the views of the Government of the
United States of America ui)on the subject of the desirableness of an
understanding, among the Governments concerned, for the regulation
of the taking (la cliasse) of the fur seal (loutres) in the Bering Sea, in
order that an end might be put to those inconsiderate practices of
extermination which threaten to dry x\\), at their source, an important
branch of international commerce.
We concur entirely in the views of the Government of the United
States. Like it, we also have been for a long time considering what
means could be taken to remedy a state of things which is prejudicial
86
not only to comiueree and to revenne, but wliicli "will soon work disas-
tions results, not only to the icellbeing hut even to the existence of our
people in the extreme N'orthwest. The establisliment of a reasonable
rule, and of a lawful system in the use (I'exploitation) of the resources
which furnish their only industry, is for those people of vital impor-
tance.
The pressing interest which the Imperial Government has been thus
called to consider had already suggested to it the idea of an interna-
tional agreement^ by which this interest might find its most efficient pro-
tection. It is by this way that the different questions involved can be
best resolved, and among which there exists, in our opinion, a close
connection.
The proposition of an accord emanating from the Government of the
United States, and which we take pleasure in considering as a step
tow^ard that general solution, must, of course, but meet the sincere
sympathies of the Imperial Government and its active support; and
this I pray you to make known to the cabinet at Washington. Please
receive, etc.
Tlius the four powers that include between their respective territorial
possessions all the waters of the North Pacific Ocean and of the seas
in Avhich the Alaskan fur-seal is found, were in complete accord and
agreement that pelagic sealing should be regulated hy their mutual consent.
And Lord Salisbury, as late as February, 1888, informed Mr. Phelps
that he assented to Mr. Bayard's i)ro])osition for a close time for fur
seals between April 15 and November 1 in the Bering Sea, and stated
that he wHinld "join the United States in any preventive measure it may
be thought best to adopt, by orders issued to the naval vessels in that
region of the respective Governments." (See Api)endix to American
Case, vol. 1, p. 175.)
The negotiations progressed thus favorably until Canada interposed
to i^revent the settlement of the question as to which four great powers
had practically agreed, and asserted that no close time was necessary.
Canada, without diplomatic power or responsibility, still had power,
through her political relations with Great Britain, to control and em-
barrass the diplomacy of the Imperial Government, even in antagonism
with the interests of the British jieople, as stated by Lord Salisbury.
Without questioning the right or duty of Great Britain to consult the
interests or wishes of her colony in the nnitter, it is a serious and dan-
gerous embarrassment to the United States that they must deal only
with Great Britain in settling difficulties that relate to the comliu-.t of
the Government of Canada. She issues fishery clearances to vessels
belonging to her pe{)])le, and under them the citizens of the United States
are sheltered in their violations of United States statutcsj and, when
87
they are arrested for tlie wrong, Great Britain is caUed upon to inter-
pose, at the moment when she is negotiating with the United States for
its suppression. This is a very embarrassing situation.
On the 13th of August, 1888, Mr. Phelps held a conversation with
Lord Salisbury, and urged the completion of a convention between the
United States, Great Britain, and Russia, which had previously been
the subject of discussion between these Governments. (See Appendix,
vol. 1, to Case of the United States, p. 182.) Mr. Phelps says:
This convention bad been virtually agreed on, except in its details;
and the Russian as well as the United States Government were desir-
ous to have it completed. The consideration of it had been suspended
for communication by the British Government with the Canadian Gov-
ernment, for which imrpose an interval of several months had been
allowed to elapse. Lord Salisbury's attention was repeatedly recalled
to the subject by the United States, and, on those occasions, the answer
was that no reply from the Canadian authorities had arrived. During
this interval, Canada was aiding with all its powers, as a Government,
in supporting and aggravating the practices which Great Britain de-
sired to repress, and thus left her in a most doubtful and disagreeable
attitude in her relations with the United States.
Mr. Phelps states further that —
In the conversation on the 13th August, above mentioned, I again
pressed for the completion of the convention, as the extermination of
the seals by Canadian vessels was understood to be rapidly proceeding.
His lordship in reply did not question the i^ropriety or importance of
taking measures to prevent the wanton destruction of so valuable an
industry, in which, he remarked, England had a large interest of its
own, but said that the Canadian Government objected to any such
restrictions, and that until its consent could be obtained, Her Majes-
ty's Government was not willing to enter into the convention, that
time would be requisite to bring this about, and that meanwhile the
convention must wait.
It is very apparent to me [says Mr. Phelps] that the British Govern-
ment will not execute the desired convention without the concurrence
of Canada. And it is equally apparent that the concurrence of Canada
in any such arrangement is not to be reasonably expected. Certainly
Canadian vessels are making profit out of the destruction of the seal
in the breeding season in the waters in question, inhuman and waste-
ful as it is. That it leads to the speedy extermination of the animal is
no loss to Canada, because no part of these seal fisheries belong to that
country, and the only profit oj)en to it, in connection with them, is by
destroying the seal in the open sea during the breeding time, although
many of the animals killed in that way are lost, and those saved are
worth much less than when killed at the proper time.
Under these circumstances the Government of the United States
must, in my opinion, either submit to have these valuable fisheries
destroyed or must take measures to prevent their destruction by
capturing the vessels employed in it. Between these alternatives it
does not appear to me there should be the slightest hesitation.
It was thus that Canada was permitted to intervene, as a Govern-
ment, to prosecute the right of Canadians who were British subjects,
88
and not CanadiaTi subjects in tlie international sense, and in a matter
as to wliieli Lis lordship remarked that '' England had a large
interest of its own," and that ''until its (Canada's) consent could be
obtained Her Majesty's Government was not willing to enter into the
convention."
The propriety of that intervention by Canada was a matter between
those Governments, but the embarrassment and damage to the United
States was increase'd by the fact that Great Britain thus changed her
attitude on these questions without changing Iter vieics of irJiaticaft right
in the matter, as to the preservation of the fur seals. Tlie United States
were thus forced to abandon further efforts at cooperation with Great
Britain and to vindicate their separate rights, and tlie diplomatic dis-
cussion was then directed to the property rights of the United States
in the fur seals and the " fisheries," and to their rights of jurisdiction to
protect and preserve them.
It was in theinannerl have just stated and under these circumstances,
that the United States was forced to yield her efforts for a joint arrange-
ment with Great Britain for the x)rotection of the fur seals in Bering
Sea, and to fall back upon lier rights as owner of the seals, and of the
industry based upon the security of these animals against indiscrimi-
nate slaughter.
The situation was emergent, and the United States acted upon it to
save the seal herd and to protect her rights and powers of government,
which were indispensable to that high duty, in that remote and pecul-
iar region. The sei)arate and independent rights which the United
States was thus driven to assert, were:
First. That she had derived from Eussia, Avith the acquiescence of
Great Britain, the exclusive jurisdiction to control and protect the fur
seals in Bering Sea.
This claim has been virtually decided by the tribunal, adversely to
the United States, and I will not now discuss it further.
Second. It was claimed by the United States Government that it is
the OAvner of the fur seals that are in Bering Sea or that habitually
resort to its waters and islands.
Tinrd. Thatifits claim of ownershipof the sealscannotbe maintained
it has a right of protection of seal life, to be exerted, as far as may be,
under its separate powers of sovereignty, and if these are inadequate
lor their protection then it has a just claim that Great Britain will
restrain her subjects, in conformity with concurrent regulations which
89
tliis tribunal shall dcterniine in its award, from acts that are in hostil-
ity to seal life and destructive to it, taken as a whole.
On these questions, I now propose to state my opinion as an arbitra-
tor. I will discuss tliis matter further in connection with the right of
pelagic hunting" of fur seals, which is the only human agency that wars
upon seal life in the wafers of the ocean, and is the right claimed by
the British Government as being free and unrestricted, in favor of her
subjects.
The claim of protection of and for seal life set up by the TJnited
States is, in its most enlarged sense, simply a question of jurisdiction as
to which Cxovernment shall exercise the power to protect the seal herds
outside the territorial limits of both countries. The right of the United
States to have such protection is not more real or necessary if it is
held to be the owner of the property, than it is, as the owner of an
industry which can not exist if the seals are destroyed.
The industry on the islands, as it is conducted by the United States,
is, in every sense, legitimate ; it is useful to commerce and to other great
industries in other countries; it is luTmane in its methods, and is the
only means by which seal propagation can be practiced successfully.
It is the only method that is in accordance with the avowed purpose
of both Governments, expressed in this treaty, and in various other
solemn utterances, of protecting and preserving seal life in the North
Pacific Ocean. But above all this the industry based on seal life is the
only valuable resource of living for the people on the islands and coasts
of Bering Sea, and if this is lost they must perish, if they remain in
their native country, or else they must be fed and clothed from the
Treasury of the United States. The preservation of the seals is, there-
fore, a right and duty of government on the part of tlie United States,
which it owes to and must exercise in behalf of those citizens and
can not abandon. The seal industry also yields a reve»ue to the United
States that is valuable and necessary for the sux)port of government
in that inhospitable region.
If that country can enjoy the advantage of its only valuable re-
source— its only production of commercial value — without material in-
terference with the positive rights of the British or any other people,
it is the duty of the United States to protect such means of existence
and civilization for the benefit of the people there. In the efforts to
do this, which have been crowned with the most honorable success, the
United States liave f<uind it necessary as a measure of government,
90
to protect tlie seal herd and to iiidenniify its Treasury by levying a tax
ui)on the pelts of the seals taken under their laws and regulations.
This public and governmental necessity and right is not denied, but
if it was, the United States would still be the sole and sovereign judge
of that duty. Tn fact, the revenues so derived are not sufficient to pay
all the expenses of administration in the perihius and costly police of the
islands and the seas around them for the protection of seal life and the
conduct of this industry.
If we turn to the photographic plates produced in evidence, those
historians that can not use words to abuse the truth, we see at a glance
what it must have cost the United States already to have converted
these desolate islands into places of decent abode, and those wretched
savages into self-repecting people worthy of a place and a name among
civilized and Christian i^eoples. The United States can not aftbrd
to allow these people to relapse into savage barbarity. It can not
abandon them to a cruel and destructive fate, and this tribunal
can not afford to search for some reason for assisting such a relapse,
alone in legal decisions made under municipal laws in England or
elsewhere in private lawsuits between private litigants about pheas-
ants and rooks and rabbits. These two Governments have found it
necessary, in order to secure justice and peace between their people iind
to repress a slaughter of useful animals, which is wasteful, destruc-
tive, unnecessary, and inhuman, to remove the controversy beyond the
reach of the influence of the mere cupidity of men eager for private
gain, into the higher plane of a contest between nations. It is no longer
a case in which men who are citizens of the United States can accuse
their Government of a mean purpose of making illicit gains for its revenues
by a tax on fur-seal pelts, or of aiding a monopoly granted to favorites;
or in which renegade citizens can be allowed to abuse the laws ot the
United States by the surreptitious use of the flag of Great Britain.
These Governments are pledged to find a way, by means of the award
the tribunal shall make, to protect and preserve these seals, and they
can not and will not permit them again to become the prey of private
cupidity. It is only the private greed for gain at any sacrifice of great
public interest and duties that calls in question the imblic right and
duty of protecting the seals by international action. To dignify this
opposition of the seekers for private gain into a business that rises above
the duty of nations towards the peace and prosperity of the world, the
reckless and destructive methods of the pelagic hunter are raised to
91
the plaue of the honorable and nsefnl industries of mankind. This is
called in the British case and in the arguments of British counsel "the
industry" of pelagic hunting or fishing; and it is claimed that it is
legitimate trade, in competition with the trade and industry conducted
on the Pribilof Islands by the United States. An iiulustry that
destroys and exterminates the subject to which it is applied is not
deserving of tliis honorable definition.
But, treating it as a just and honorable industry, will Great Britain,
iu)w that it has raken up the duty of preserving and i)rotecting this
fur seal industry on ijublic account, publicly license and conduct fur-
seal hunting, in the way and with the destructive eifect that it is being
prosecuted by its own subjects, and by citizens of the United States
who abuse its flag by making it a shelter to protect them against
criminal responsibility to their own Government?
Is it true that under this treaty, which leaves this tribunal to deal
with these questions as matters that concern justice, peace, and comity
between nations, and not as mere private rights, the Government of
Great Britain claims for itself, as a government, or for its people, the
right to pursue this industry in the present destructive and cruel way
in which it lias been and is being conducted?
If the strict legal right of pelagic sealing attends and legitimates this
industry in all waters outside actual territorial limits, and makes it law-
ful to surround tlie seal islands with ships and to kill the animals as
they come and go from the islands to the open sea, does Great Britain,
under this treaty, claim that the right now exists in this unqualified
extent, in favor of its subjects, or that it comports with the i)ledges of
this treaty that the seals are to be preserved and protected?
Great Britain has taken the right to pursue this industry from the
hands of its subjects, on the grounds of i^ublic policy and of duty to
the United States, and has submitted them to this tribunal for de(;ision.
If the "industry," as it is ])ursued, is legitimate fishing, and if it
could have received the sanction of the British Government, this seri-
ous wrong to her subjects in depriving them of it could not have been
done.
It is said by counsel of Great Britain that, in the case supi)osed, of a
cordon of ships drawn up around the seal islands, waylaying the seals
in the breeding season as they come from and go to the sea for food
and killing them indisciiminatcly, that such an act would be malicious
and the United States would treat it as a casus belli, within the right
of nations under the international law.
92
The riglit to give sucli an interpretation to sncli conduct means that
the industry of pelagic hunting, like all other pursuits, however legiti-
mate, is qualified by the demands of justice that are due to all other
nations. The international law neither requires nor sanctions a resort
to war for the protection of the plainest rights, if they can be peace-
fully maintained without detriment or dishonor.
Tliis tribunal cannot, injustice to itself, adopt the suggestion that it
must leave the industry of pelagic sealing, in view of this treaty and
its great purj)oses, so loosely defined and so free in its privileges and
so licensed to maraud upon the rights of the United States, that an
assemblage of sealing vessels in Bering Sea, sufficient to destroy the seal
herd in one or more seasons, is lawful. If it is malicious it is admitted
to be unlawful and that in such case the only remedy is war. In such
case the United States, being forced to judge of the evil and to provide
the remedy, would, as any court of justice must do, impute the malice
to the nature and consequences of the act. This tribunal is authorized
to act upon the same presumption in prohibiting this evil.
Following up this right in all parts of the Bering Sea and in the
Pacific Ocean, the United States would justly imi^ute malice — a pur
pose of wrong-doing — to all acts that warred upon its revenues, in
respect to fur-seals, during the period of resort to the islands. This
action of the United States would find its full justification in the doc-
trines stated by counsel, which should be adopted in the award in this
case. If it would be right to resort to war to prevent or redress such
wrongs, the more peaceful remedy can not be contrary to the law ol
nations.
If we follow the British contention as to the rights of pelagic sealers^
and refuse to put any restraints upon pelagic sealing, instead of mak
ing an amicable settlement of the controversies that called us together
we would leave new and burning questions open between these Gov
ernments to be settled by war. It is not to be expected that the United
States, if left by this tribunal to the duty of defending itself against
the abuse of rights accorded to pelagic hunters, without any restric
tions being imposed upon them, will fail to availitself of the necessary
means of doing that duty.
I now turn to other views of this subject which I think are made nee
essary by what has occurred in this case.
Tlie unrestricted right of pelagic sealing has been supported by the
assertion that it is tlie only way in Avliich a monopoly in the fur seal
93
trade, growing out of the ownersliip of the seal islands by the United
(States, can be counteracted.
The commercial attitude of the United States towards the supply of
the markets of the world with the pelts of the fur-seal, is the same
that all countries hold in respect of any valuable commodity that is a
l)eculiar product of the soil or climate. The incentive of commercial
interchange, the necessities of the consumers, and the laws of supply
and demand are simply left to regulate the outflow of such productions
into the open channels of commerce.
If the United States, alone, produced fur seals, the Constitution of
that Government, which prohibits all duties on exports, aflbrds a
guaranty that no other nation has given against the possibility of a
monopoly in the pelts of that animal.
But Eussia and Japan yet remain as active competitors in this and
other branches of the fur trade, and their care of this industry and the
distance of their sealing islands from the coasts of Canada and of the
United States and the difficulties of navigation in their seas are likely
to i)reserve a large proportion of their seal herds from destruction for
many years to come. Many peltries will be thus supplied to commerce,
in comi)etition with those that are taken by the United States.
If the regulations of seal hunting, that are found necessary by this
tribunal to i^reserve the si)ecies, are adopted by those Powers along
whose coasts and islands the fur-seal formerly abounded, the number
of these animals will again increase in the southern hemisj)here until
the world will have, again, an abundant supply.
The course of the United States in reference to the care and nurture
of seal life is directly opposed to the engrossment of this product in
the way of monopoly. On the contrary, that Covernment has shown
its anxiety to preserve and increase the stock by its regulation of kill-
ing on land, by forbearing, during three seasons, from taking seals in
excess of 7,500 which were reserved for the support of the natives, and
by reducing the number of seals that the lessees were entitled to kill
from 100,000 to 00,000 per annum, at the possible risk of i^ecuuiary lia-
bility to the lessees.
Besides this, the expense of agents and superintendents of the islands
and of guarding them from the raids of poachers, is very considerable.
It is difficult to conceive that a government could have done more, or
could have acted in better faith towards other powers, in a matter where
there is an acknowledged public trust arising from its possession of the
seal islands.
94
Tariff duties that probibit or strongly tend to the exdusion of ini-
l)orts, so as to benefit the special industries or productions of a country,
are in the nature of monopolies of tlie liome markets and are generally
enforced by enlightened governments. And they do not stop to inquire
as to the injuries that such laws may entail upon other countries.
Tobacco is not extensively produced in Europe, and several of the
European governments purchase the stock, chiefly from America, and
manufacture and sell it on government account, and tix the prices that
consumers, in those countries, must i)aiy for the manufactured article.
This monopoly works an injury to manufacturers in America, but no
one has thought to nmke complaint against the governments that create
it, in respect to an American production. Jn this important matter
the Congress of the United States has no power to protect the pro-
ducers of tobacco or the manufacturers by an export duty on tobacco.
Many other instances of monopoly of trade could be cited to show
that it is essentially a power of government Avhich any nation may
rightfully employ to i>rovide for its revenues and the welfare of its
people.
There is, really, no conceivable case or condition connected with the
industry of the tur-seal fisheries in which the United States could
monopolize this trade, excei^t by destroying, as rapidly as possi-
ble, the seals on the islands. When a government finds it necessary
to i^rotect these animals against its own people, as well as against
those of other countries, by assuming to itself their exclusive owner-
ship, a monoj)oly is the invitable result and it is indispensable to the
safety of the property. This sort of monopoly is a part of the duty of
government and of its legitimate powers.
It is both the right and the duty of the United States to assume and
to exert ownership over these animals, in order to extend to them
the protection that is due to useful do lesticated animals. The legis-
lation of nearly every government upon whose shores or islands fur
seals resort habitually for breeding j)urposes assumes over them a gov-
ernment control for their protection and the right to raise revenue out
of them, which is based on the right of appropriating them to govern-
mental uses and i)urposes, so that all those governments are in that
sense, monopolists. Such control can not be less than an assertion
of a right of property, for it prohibits all persons from asserting a
claim to them on private account, and it makes them a source of revenue.
These may be justly called laws for the domestication of the fur seals—
95
laws for converting tliem iuto property as domestic animals. Tliey ditfer
from game laws, which protect wild animals in order to secure a greater
supply for the common use.
All this legislative tendency indicates, in the plainest manner, a con-
census of opinion and a common movement in the direction ot' classify-
ing fur seals as domestic animals in respect to their protection by posi-
tive laws. Why this universal sentiment should only be resisted by
Canada for purpose of assisting her people in making selfish gain, is
an inquiry that only gives point to the suggestion that the interna-
tional law should conform to the general nuinicipal law on this subject.
The careful examinations and reports of many eminent naturalists,
supported by a general and distressing experience as to the extinction
of the fur seals, lirst in the southern hemisphere and now in the northern,
has set the local lawmakers to work in contriving statutes to stop these
destructive practices and to restore the herds to their former status.
All these laws are based on the fact that government control of the seals
is necessary for their preservation, and that the seals are entitled to the
same protection of the law, suited, to their nature, as other domestic animals.
As this subject is now presented for the first time to an international
tribunal, and in a controversy between two great powers, and as the
origin of the questions so presented is of a very recent date, and as no
direct precedent or discussion exists to guide or control the judgment
of this tribunal, a proper occasion is presented for declaring that these
animals should have the same classification under the international
law that they have under the municipal laws of all countries that fur-
nish a resort for the fur seals during their period of compulsory living
on land. Such a declaration would not create a new rule of inter-
national law; it would only apply the rules that may now be termed
universal law, in municipal legislation, to that area of the earth's sur-
face in which there is no supreme law, because there is equal sov-
ereignty in all nations, and would include in those rules the preserva-
tion on the high seas of animals that are so serviceable to man as to
deserve to be classed as domestic animals. All useful animals are sub-
jected to domestication by the divine decree that gave to man the
dominion over the beasts of the field and the birds of the air.
Laws for the protection of animals are elaborately provided and are
made cardinal features of all civil codes and of the moral code of the
Pentatench. This benign system has expanded from age to age so as
to admit within the circle of domesticated animals, that are i^rotected
96
by laws, all that have been Iburid of common use for food or raiment,
and are, by their habits, capable of identiticatiou with reference to sep-
arate ownershij), such as shellfish yielding pearls, oysters, clams,
corals, sponges, etc., and a large number of animals that were not so
classed until within a recent period.
The tendency has been uniform to enlarge the scope of the laws so
as to include all animals within the classification of domestic animals, as
occasion has presented, and no animals have been permitted to be rele-
gated to a classification as wild animals, that have been once included
in the protection extended by the laws to domestic animals. Any
other rule of action would deny to all new conditions that are valu-
able, the i^rotection of the principles of international law.
The domestication of animals by general usage, or by law, attaches
to them the presumption that they are exempt from slaughter at the
will of anyone who may choose to kill them. Within the field of oi^er-
ation of such laws, such animals are protected as all domestic animals
are protected. Outside that jurisdiction, they are protected by comity,
or by the application of principles of international law, derived from
municipal laws, or else from the sentiment or the necessity that lies
at the foundation of municipal laws.
Those principles are justly founded on the general usefulness of the
animals to mankind, and the consequent necessity for giving them i^ro-
tection. The international law should attach to them the same pre-
sumption of domesticity that is attached to them in such cases by the
municipal law.
In matters like those submitted to us the opportunity occurs for a
formal declaration, which, by treaty agreement, is made obligatory ujion
two great powers, of the relation that these animals should bear to the
question of their x^reservation, in the international law. That relation
is uniform and unbroken, except in the laAvs and usages of Canada, in
all the legislation of all the municipalities that have any interest in the
subject. It is nothing less, in effect, than a declaration of those legis-
latures that fur seals, by reason of their value, their helplessness to resist
or escape from the power of man during a large part of every si)ring,
summer and autumn, their docility and the absolute necessity of giving
them that protection by i^ositive law that nature has denied to them,
should be classed and are entitled to be classed in favorcm vitcc, as
domesticated animals.
I can not understand how it can be possible, in view of the facts, that
97
this Tribunal slionld declare that they are wild animals in contempla-
tion of law, and shall have no more siielter against the greed of man,
asvsisted by his genius in the invention of instruments of destruction,
than they liave against tlie killer wliale. That their only protection
shall be their capacity, in the water, to escape i^ursnit, out of whicli
element they must spend nearly half the period of their lives, is too
imiierfect a shelter for such a valuable contribution to commerce as
these animals yield, to receive the sanction of the great commercial
nations.
11495 M 7
REGULATIONS.
THE TRIBUNAL, nAVING DECIDED THE OTHER QUESTIONS SUBMITTED
TO THEM UNDER THE TREATY, PROCEEDED TO THE CONSIDERATION
OF THE SUBJECT OF PROPER REGULATIONS FOR THE PROTECTION
AND PRESERVATION OF FUR SEALS IN THE NORTH PACIFIC OCEAN,
INCLUDING BERING SEA.
On this topic Mr. Senator Morgan delivered the following opinion:
I have heretofore insisted that when concurrent regulations are
adopted they will be the result of the power of the Triljuual to agree
ujion and stipulate a feature of the treaty, in respect of i^elagic hunt-
ing of fur-seals, as between the two Governments 5 as much so, as if
tlie regulations had been formally agreed upon and written into the
body of the convention under which we are acting. I understand that
this point is agreed to on the part of all the Arbitrators, and I so
state it.
(2) The Arbitrators, in the exercise of these powers, must net as
impartial negotiators, as they hold their authority from both the High
Contractiug Parties, under the treaty; and, their award being final, it
is sanctioned and sustained, if it is within the purview of their author-
ity, by the sovereign powers of both Governments, j)ledged in the
treaty in advance of the decision of the Arbitrators. I also under-
stand that this i^oint is not disputed.
(3) The regulations we shall adopt are in no sense judicial decisions,
though they are based upon principles of law declared by the Tribunal,
nor is the power, or duty, of making them, so as to protect and preserve
the fur seals, restrained or controlled so as to conform to the personal
interests of pelagic hunters or the national interests of the United
States. The two Governments have removed such considerations from
the scope of our duties by assuming absolute control of the entire
subject, which was found necessary to be done in order to properly
protect and preserve the fur-seals in the interests of commerce and
humanity. In like manner they have excluded from our consideration,
98
99
according to tlie decision of the Tribunal, tlic question of gain or
advantage to the United States, as a Government, resulting from the
preservation of seal life.
The modus vivcndi, established for three consecutive sealing seasons
took the highest possible governmental authority over the fur-seals in
Bering Sea, and during those seasons prohibited all pelagic sealing in
those waters. This is a virtual declaration that fur-seals, while swim-
ming freely in the ocean, are capable of being treated as property and
are subject to the care of the two Governments.
The last of these agreements is incorporated with and made a part
of the treaty of February 29, 1892.
(4) The true attitude of the question we are now to consider is
simply this, to use the language of the treaty: "The arbitrators shall
then determine what concurrent regulations outside the Jurisdictional
limits of the respective governments are necessary, and over what
waters such regulations should extend," "for the i^roper protection ami
preservation of the fur-seals in or habitually resorting to the Bering
Sea."
It is not possible that the power to determine regulations to operate
outside the jurisdiction of tlie two Governments, which can oidy include
pelagic sealing in the waters of the Pacific Oceaii and Bering Sea
outside the territorial limits, can be so stretched, without a bold usurpa-
tion, as to include the killing of seals on the land.
It is quite as impossible to suppose that either government intended
that by concurrent regulations this Tribunal could provide laws for
either Government that should operate as laws within the actual bound-
aries of the other.
When the power is given only to determine "over what waters such
regulations should extend," it is not i)ossible to conceive that the Tri-
bunal has the power to determine over what lands 'or islands they
shall extend. This power is so clearly withheld from this Tribunal by
the treaty that its exercise would be ultra vires, in any form or for any
conceivable purpose.
So that we have in the body of this treaty the statement and a(;tual
enforcement of the power of the British Government to dismiss from
consideration the personal rights of its subjects, under international
law, in respect to pelagic hunting, and the assnm[)ti()n by that Govern-
ment of supreme and absolute control over them and their rights. All
this was done for the purpose of making the matter of concurrent »eg-
100
Illations a question between the two Governments, to he controlled hy
the mutual international policy of protecting and preserving the Alaskan
seals, as to which purpose both Governments are in accord. They agree
as to the national duty of both Governraents to protect and preserve
these fur-seals, and have only disagreed as to the rightful and best
inetliod of executing this duty.
(5) There is no mistaking the exact nature and extent of the power
conferred on this Tribunal. It is simi)ly the power to determine con-
current regulations for the proper protection and preservation of the
fur-seals in or habitually resorting to Bering Sea, and to designate
the waters that should be included in such regulations.
If this Tribunal bases its award upon the effect that such regulations
are to have on the rights or i)rofits of pelagic sealers, they rebuke both
Governments for havingassumed the whole responsibility of that subject,
and for having retired from view the private rights of their citizens
under the international law, and for having subjected them to such
municipal laws of the respective Governments, to be enacted in con-
formity with the awarf", as shall accord with the avowed public policy
of those Governments to preserve and protect the fur-seals.
These Governments have not invited us to decide how far this
policy, mutually agreed to and declared in the most unequivocal terms,
shall be obstructed by our efibrts to take care of the interests of their
citizens engaged in pelagic sealing. They have assumed that duty
and will doubtless rcsjxmd to it.
Both Governments would rejoice if the preservation and protection
of the seals in question would admit of the greatest extent of pelagic
hunting by their citizens consistent with the prudent and humane
treatment of these useful animals. But they carefully considered that
question and appointed a joint Commission to make examination into
all its bearings. That Commission made a joint report before the
treaty, signed February 29, 1892, had been ratified by either Govern-
ment, in which they say: "5. We are in thorough agreement that, for
industrial as well as for other obvious reasons, it is incumbent upon all
nations, and ])articularl y uj)on those having direct commercial interests
in fur-seals, to i)rovide for their protection and preservation;" and
further, they declare that — "7. We find that, since the Alaskan pur-
chase, a marked diminution in the number of seals on, and habitually
resorting to, the Pribilof Islands has taken place; that it has been
cumulative in effect, and that it is the result of excessive killing by man."
101
TLese two Nations, acting* on tliis report and upon other ascertained
facts of the gravest character, toolc tJie subject into their oicn hands and
provided for the determination of concurrent reguhitions by this Tribu-
nal, to operate outside the jurisdictional limits of the two Governments,
on the water and not on the land, for the protection and preservation
of these fur-seals.
Tlie subject of regulating the seal herds on Lmd was not mentioned
between the Governments in their negotiations, nor in the treaty;
doubtless for the reason that Great Britain saw that it was the interest
of the United States to protect and preserve the seals and to promote
their increase, and liad no cause then or since to doubt the good faith
of the United States in the use of every means that would contribute to
that end,
"Tlie excessive killing by man" that the Commissioners agreed to
rex^ort could not have been the killing by the United States on the
islands of St. Paul and St. George; otherwise, that fact would have been
mentioned and nuide the subject of negotiation.
The protection and preservation of the seals against excessive kill-
ing, is tlie killing upon the waters outside the jurisdictional limits of
both countries. It is beyond a reasonable doubt that it was i)elagic
kilUng that was considered by the United States and Great Britain
as being- so destructive to seal life as to make it incumbent upon all
nations to provide for their protection and preservation, and was especi-
ally the duty of these two powers. To do this, these Govern ineuts
agreed with each other to place this question upon the high and just
ground of international duty, disregarding the profit that might accrue
to the subjects and citizens of both countries from the indiscriminate
slaughter of the fur-seals, or to the United States from preserving and
increasing the number of fur-seals.
(6) This Tribunal is to make regulations that apply to this herd in
its ^yresent condition, niid not with reference to some former condition.
The most conspicuous fact in the present situation, and the danger-
ous fact of the inevitable future, is this, that the fur-seals will disap
pear rapidly if the ])elagic hunter is able to makethat business profitable
on the sea and to make it unprofitable on the Pribilof Islands, Either
of these results will destroy the fur-seals rapidly, and both of them ivould
make the destruction sudden, and that ivithout remedy. And if one result
ensues, the other must follow speedily.
This treaty also requires this Tribunal to consider and decide concern-
102
iiig the rights of the subjects and citizens of either country as regards the
taking of fur-seals in or habitually resorting to Bering Sea. Whether
this question has been decided or remains to be decided the Tribunal
has not yet come to any resolution. That subject, though I have
demanded its separate examination and decision, has been passed over
by the Tribunal, but in either case I will assume that their rights
must be equal and that there will be no discrimination between the
people of the two countries as to such rights.
If the right is given them by this award to scour the Korth Pacific
Ocean and Bering Sea at all seasons of the year, with all descriptions of
firearms except rilles, and with such number of vessels as may be
tempted into the business by its profits, assisted by steamers to carry off
the catch so as to keep the hunters steadily employed in killing seals, it
will not be j)ossible for the Congress to prevent the citizens of the
United States from sharing in the raids upon the seals equally with
British subjects. I mean that the people of the United States would
withdraw their support, as they should do, from any body of representa-
tives that would tolerate such an injustice, and all seal hunters and
many thousands who are not, would rush in to destroy them as they
did in 18G8.
We can not expect to impose upon the United States the duty of
keeping up this expensive and harassing plan that it now maintains in
good faith and perfect honor for the preservation of the fur-seals when
we condemn the seals to certain destruction in tlie face of the avowed
Ijolicy of both countries that they should be protected and preserved.
We can not exi)ect the United States to maintain its prohibition of
pelagic sealing in Bering Sea as to its own citizens when we enjoin
it upon that Government, as a moral duty and a treaty obligation, to
repeal her laws as to restrictions upon British subjects in that sea.
This is what the United States must do, under concurrent regula-
tions framed ui)on the plan of Sir John Tliompson, or else it must vio-
late the spirit of the treaty, if not its letter, as it is to be declared in
such an award, because of the disadvantage to its own people. We
can not thus condemn the policy of the United States in its faithful
efforts to preserve seal life, and expect that Government to maintain
its rigorous laws against its own citizens.
If we extend an invitation to other nations to enjoy equally with
Great Britain and the United States the looting of the seal herd in
the North Pacific and in Bering Sea, we pledge the honor of these
103
Governments tliat they will sustain tlie rights of all nations, both in a
moral and national sense, in like invasions of the herds of liussia and
Japan.
The flag of the most insignificant power in the world will have the
pledge, through such an award, of perfect immunity and protection
while raiding the North Pacific Ocean and Bering Sea with all imple-
ments of destruction, not excei)ting any, and in such number of ves-
sels and of such tonnage and descrix>tion as they choose, not excluding
steamers, and without having a license or a distinctive flag.
A recent event has demonstrated the fact, if it needed any demon-
stration (as it does not), that the little kingdom of Hawaii will, through
the help of renegades ot the United States and Canada, grow rich in
renting her flag to them in order to take advantage of the scheme
liresented here by Great Britain as her project of regulations. Why
these two Governments should thus create such a destructive fatality
to seal life through the award of this Tribunal while j)rofessing the wish
and purpose of i)rotccting it is quite beyond my ability to comprehend.
The regulations submitted by the respective Governments for the
consideration of this Tribunal must be regarded as their official state-
ments of the basis and ])lan of settlement proposed by each, and not as
the ultimatum of each Government, between which we are to choose by
accepting the one and rejecting the other. And, as no plan or formula-
tion of regulations is stated in the treaty or alluded to, this subject is left
to the judgment of this Tribunal, which is at liberty to discard both
schemes or to adopt regulations that neither Government has sug-
gested. The only limitations on the power of the Tribunal in this
regard is, that the regulations shall be concurrent and, therefore,
uniform as to both Governments, that they shall relate to waters
that are outside the jurisdictional limits of either Government, and
that they shall be "necessary * * * for the proper protection and
preservfition of the fur-seal in or habitually resorting to Behring Sea."
The treaty also furnishes a guide as to the general nature of the reg-
ulations, that they should be such as to claim, for their international
supi)ort,the adhesion of other powers to such regulations.
It will be observed that the invitation of the two Governments to
other powers, that they will give their adhesion to this treaty, relates
only to the regulations we are to provide. It has no relation to any other
part of the treaty. The object of this invitation was not so much to
I)revent other powers from encouraging pelagic sealing in Bering Sea,
104
m the Nortli Pacific Ocean, as it was to obtain their consent to regu-
lations that would preserve and protect fur-seals in the waters in which
they are found anywhere in the world, if they are generally adherred to.
No nation except Great Britain has found itself interested in the
huntiug of the seal herd that resorts to Bering Sea. The x>eople of
other nations have not carried on pelagic sealing in that herd, or in
the waters of the North Pacific or Bering Sea. If the regulations
that we adopt are founded upon or modified by the peculiar interests
of Canada, or the United States (as is proposed in the British case),
the other powers will find that they are in no sense internatioiuil, but
are entirely local; that they adox)t no general principle of action for
the i^rotection and preservation of fur-seals, but are only an expedient
devised to get rid of a particular controversy between the United
States and one of the provinces of Great Britain. We could not ask
other powers to adhere to regulations based on grounds so narrow and
selfish. It would be in effect only a request that they wonld agree
not to interfere with this herd of seals while they are being divided,
according to an award of this Tribunal which apportions them between
the United States and Canadian sealers.
The regulations presented by Sir John Thompson appear to be based
upon the recent modus vivcndi agreed u^^on between Russia and Great
Britain, to which the attention of the Tribunal has been called. Russia
appears to have accepted that arrangement as a mere temporary check
upon the aggressions of the pelagic sealer, and has accompanied it
with reservations and protestations that show her extreme unwilling-
ness to adopt it as the final definition of her rights.
If the award of this Tribunal should thus conform to the plan
adopted in the Anglo-Russian modus vivendi, it will either force Russia
into terms of final agreement with Great Britain that she would not
otherwise ado])t, or it will show a wide distinction between Russia and
the United States in treating with Great Britain about a subject of
the same character, and in reference to the same body of waters.
Russia could not finally adhere to the regulations proposed in the pro-
gramme presented l)y Sir John Thomi^son, without agreeing to all that
Great Britain is demanding of her, against much of which she is
firndy protesting.
Before stating the form of regulations to which I wonld prefer
to give the support of my voice in this Tribunal, I will state some
conclutdons of fact that I have drawn from the evidence as to the
105
character of tlie regulations winch are necessary to execute the pur-
pose of both Governments to preserve and i)rotect the fur-seals of the
Alaskan herd, and that would also answer a bcne(u;ent purpose in
accomplishing the universally declared wish of all nations interested
in the subject of protecting and preserving seal lile, and in rexjairing
the daaiage that has been indicted upon it by raiders in the absence
of governmental protection. Tliis, 1 take it, is tlic real ground upon
which other x)owers are to be invited to give tlicir adiiesion to the reg-
ulations that this Tribunal may determine and award as between
Great Britain and the United States.
The regulations, like all enactments of laws that are remedial in
their character, are to be framed with a view to giving relief against
an existing evil, and this (;an oidy be wisely and Justly accomi)lislied
when the nature and extent of the evil is lirst asccitained. When that
is done, the nature of the evil suggests the charaeter of the remedy,
and we can not frame the remedy that we are to preside so as to merely
check the evil for a time, leaving it to burrow and work its havoc at a
date that is more acceptable only because it is more distant from us.
The occasion requires a just, serious, and firm attitude as to a ques-
tion of great importance to the whole world.
I will now state, as I gather from all the evidence before us, what is
the evil that these Governments have found to be so threatening to
seal life in the Alaskan herd as to draw them into an agreement that
it should be repressed by their commrrent action.
I will not attempt to examine again the details of the evidence, so
thoroughly presented and with such judicial iuq)artiality, by Mr.
Justice Harlan. I can find no flaw or omission in his careful state-
ment of the evidence, or in the conclusions that he drew from it as to
matters of fact. I believe that he stated the exact truth of the situa-
tion, and I fully concur in his treatment of the subject and in the
conclusions that he has reached.
The present situation, as I understand it, is as follow^s, as shown by
a comparison of the Pribilof and pelagic catches:
Tear.
I'lil.ilof
Ishiiids.
Total
])pliif;io
catch.
1800
21,234
12, (171
7,500
7,500
51,f;55
r;8, (100
7.'!, :iit4
*80, ouo
1891
1802
180;i
Total
48, 305
273, 049
* Estimated.
106
In 1889 the Piibilof catch was 102,617, which fell off to 21,234 in
1890, and this was all that the islands would yield of killable seals,
leaving a deficit, as compared with the previous year, of 81,379 seals
upon the islands. If this contrast in the number of seals that could
be taken on the islands in 1889 and 1890 was due to the overkilling
of males on the islands, and not to pelagic hunting, the falling off of
numbers would have been indicated in each of the six years prior to
1889. No one has asserted such a fact, and we know that a male seal must
be 6 years old before he is able to take uj) and maintain a harem on
the rookeries. So that this sudden falling off between 1889 and 1890,
if it was due to an excessive killing of males, must have occurred at
least as early as 1882. This is not true, and no one pretends that it is.
The killing of 51,655 seals that the pelagic hunters got, aiul at least
three-fold that number, including those that were lost, must have
reached 300,000 seals that were destroyed. Of this number, three-
fourths were females, that are not killable seals on the islands, and are
not counted in the Pribilof catch.
The verification of this calculation is almost perfect in 1892, when
the pelagic sealers took 73,000 seals, and in 1891 when they took
68,000. The close approximation of these figures shows that the loss
of the seals on the islands was due to pelagic sealing, and not to
the want of virility in the bulls on the breeding grounds, or to any other
cause.
That the process which has actually depleted the seal herd in four
years to the extent of 509,065 (273,000 of which were females), is an evil
that re<iuires to he remedied, for the saJce of the protection and presertm-
tion of seal life, no one can douM, as it seems to me. This progressive
depletion of this herd of seals can not fail to destroy them very soon,
and, in the meantime, to deprive the United States of all possible
advantage and compensation derived from its efforts to save the species.
What the United States has done, or omitted to do, to deserve treat-
ment at the hands of this Tribunal that will expose its lawful indus-
tries to ruin, its revenues to depletion, and its wards on the Pribilof
Islands to the loss of their only valuable industry will be an inquiry
that will seriously challenge the. justice of su(!h an award, in the esti-
mate of the civilized world.
The evil to be provided against by this Tribunal is, clearly, pelagic
sealing with firearms.
If there is, or has been, any detriment to the seal herd from the
107
treatment of tlie United States, on the islands, tlie facts on this subject
were not unknown to Great Britian wlien the treaty was made and
before ratifications were exchanged. This subject was not referred to
in any of the correspondence between the Governments, and the treaty
is silent as to this sujiposed mismanagement.
Will the Tribunal, in such a case, make an objection to iirotecting
and preserving the fur-seals on the water because Great Britain has
not thought it proper or necessary to call the methods into question,
or the United States into account, for its manner of dealing with that
subject on hind? True, if it can be shown that the depletion of the
herd is due to that cause, and not toi)elagic hunting, that is a just and
proper inquiry. If it is due to both causes, this Tribunal will deal with
the pelagic evil, that is suhmitfed to its consideration, and leave it to the
nations concerned in the protection of seal life to deal ivith the evil on
land.
If the United States are not so wise in caring for the seals on land
as the pelagic hunters are in caring for them at sea, as seems to be
asserted, they are (piite as earnest in the wish to do so. They destroy
no female seals; while the pelagic linnter never spares one. They do
not fire upon the breeding rookeries when the seals are massed, many
of them asleep, with double-barrelled shotguns and buck-shot car-
tridges. They do not kill indiscriminately all seals that come in sight.
The United States pennit no female seals to be killed; while 75 per
centum of those killed by the pelagic hunter are females heavy with
young and almost helpless.
In that condition, as well as in accordance with a law of their nature,
whichisan im])ortantfactin connection with theirdomesticity, thefemale
fur-seal require a great deal of sleep. When asleep, they turn upon
their backs, fold their flipi)ers over their breasts, and curving their hind
fliljpers ui)wards, they form of their bodies a sort of boat, the spinal
column representing the keel. They can only breathe the upper air;
they can not, like a fish, extract air from the water. While sleeping
their noses are above the water. After inhaling the air the nostrils
close firmly together, and the air, heated by their bodies, expands and
buoys them up. They seldom breathe often er than once in fifteen min-
utes, and, when diving, they need not return to the surface for air
oftener than every thirty minutes. We know nothing of their habits
at night while in the ocean. On land tlvey are so boisterous at night
with their bowlings that sleep would seem to be impossible, except
108
from sheer exliaustiou. They Lave not a keen vision, and the sunlight
is painful to them, so that they leave the land and go to sea on days that
are bright. This causes them to seek a summer home in a place where
fogs and rains prevail. Yet they must have warmth. Kature has ami)ly
provided for this necessity by giving them a double coating of thick,
strong hair, and of the thickest and finest fur that was ever bestowed
upon any species of ainmals. It is as impervious to water as the down
of an eider duck. The pups are born without this fur, and hence their
aversion to swimming until it has grown out; and this detains them on
land for four months, at least, during which period they can subsist
only on the milk of the cow seals. While their vision is not keen, their
auditory organs and sense of smell are exceedingly acute. They are
attracted by sounds as few other animals are. In this faculty they
make a close approach to the endowments of mankind. Sir John
Tliompsou is amused at an account, read by Mr. Justice Harlan, of the
seals being attracted in great numbers near to the shore at Hoy by the
ringing of a church bell. In his incredulous sport over this incident
Sir John forgot that it is the personal observation of Mr. Low, one of
the greatest naturalists who ever lived, the friend and companion of
Cuvier, and is more than confirmed by M. Peron, whom France has
honored in the most conspicuous way. His abilities as a naturalist,
acquainted intimately with seal life, are as far in advance of those ot
Prof. Elliott, from whom Lord Hannen quotes with much satisfaction,
as Nax)oleon was in advance of the Sioux chieftain, Sitting Bull, as a
military genius.
1 will i)resently quote something further about fur-seals from IMr.
Peron.
I know Mr. Elliott, whom the British Government has dubbed '^ pro-
fessor." I have respect for his character and sprightliness. He is a
painter in water colors of no mean pretensions, but his use of color
does not stoj) with his canvas. It enters into all he says, and makes
him too vivid an enthusiast for a safe reliance on questions of measure-
ments, statistics, and cold facts. Mr. Elliott was out on the Pribilof
Islands on the 10th of July, 1890, taking field notes, which, to be of any
value, should be free from all romantic conjecture. The following is
one of his highly colored extracts taken from his report of that day:
In company with Mr. Goff aiul Dr. Lutz, I made my jdotting of the
breeding seals as they lay on the Eeef and Garbotch to-day.
Here at the very height of the breeding season, when the masses
109
were most compact and uniform in their distribution in 18G2-'74, 1 find
the animals as tliey lay to day, scattered over twice and thrice as much
ground as a rule, as the same number would occui)y in 1872 — scattered
because the virile bulls are so few in number and the service which
they render so delayed or impotent. In other words the cows are rest-
less; not being served when in heat, they seek other bulls by hauling
out in green jagged points of massing (as is shown by the chart), up
from their landing belts.
This unnatural action of the cows, or ratlier unwonted movement,
has caused the pups already to form small pods everywhere, even where
the cows are most abundant, which shadows to me the truth of the
fact that in five days or a week from date, the scattering completely of
the rookery organization will be thoroughly done; it did not take place
until the 2bth-25th July, 1872.
In 1872, these cows were promptly met with the service which they
craved on the rookery ground. The scattering of these old bulls to day
over so large an area, is due to extreme feebleness and combined in
many cases to a recollection of no distant day when they had previ-
ously hauled thus far out on this very ground surrounded by bareness,
though all is vacant and semi grass grown under and around them now.
The fur-seals, so well provided against cold, are yet so sensitive to
its effects that they go south at the approach of winter and seek their
food in the great river of warm waters that comes from the tropical
coast of Asia and pours its flood across the Pacific Ocean. It bears
enormous treasures of fish food, and swarms with schools of herring,
salmon, and squid. The migratory fishes, that naturally feed against
the current, pursue the track of this warm river in the ocean and
ascend it. This leads them to tlie northern coast of the United States,
and thence around the great curve which this river has formed on the
coast, past British Columbia, to the south of the Alaskan peninsula.
Tlie fur-seals, finding warmth and food in this ocean current, enter it
wlien they quit the breeding islands and Bering Sea, in Novend)er, and
must stay in the broad expanse of warm waters, where it ceases to
flow, during a considerable part of the winter. There they remain in
search of the herring and other vast schools of migratory fishes that
are surface swimmers and feeders, and they follow them on their way
to the spawning grounds, as the seals return to their summer abode on
the islands to the north of the Aleutian i^eninsula, where the Arctic
current and the Asiatic river meet.
Around the great curve I have mentioned, this ocean current sets in
close to the shore, flowing southward, and its warm waters make the
winter climate in those high latitudes and altitudes nearly as soft and
genial as that of Ireland, and for the same reason. The seals are thus
drawn into numerous large assemblages or schools near to the western
110
coast of North America, and are iu easy reach of the "industry" o/
pelagic sealers.
They must travel a great deal in the night time. In tliis they are
guided and protected by their sense of hearing and smell, and, like
the cat, they are provided with several rows of whiskers that are very
sensitive and that admonish them of danger in places where they can
not see thvir way.
The gravid females must necessarily spend a large part of each day
in seeking food, and do not travel so fast as the male seals. Their exer-
tions are necessarily very taxing to their strength and require them
to sleep frequently during the day.
I have made this statement of facts and conclusions, as T draw them
from the evidence, to support the further conclusion of fact, which, I
think, is unavoidable, that the war upon the gravid female seals is
like a war upon the women and children of a nation, which all, except
the most depraved of savage nations, abhor. True, these are beasts;
but they are harmless, docile, useful beasts, and very helpless, and
when they are denied any more protection by the supposed law of
nations against the mercenary ferocity of the pelagic sealer than is
given to tigers or serpents, while I am empowered to vote in this Tri-
bunal, which is now their only protector, I must vote at least to
disarm the jiebigic sealer of his double-barreled shotgun, or else to
confine his warfare to an area of waters and to a close season where
his powers of destruction will not exterminate the race.
If I could find no better reason for restraining tlie pelagic hunters
from the use of double-barreled shotguns in their "sportsmanlike"
business of killing gravid females and nursing mother seals in order to
earn $10 a i^iece from each pelt, I would join my voice with that of every
respectable legislature in the world in their careful and highly penal
enactments for the prevention of cruelty to animals, and wonld at least
put the female seals under the protection of proper regulations to be
awarded by this Tribunal.
On this point I will quote fi'om The ISTaturalist's Library (p. 81), which
thus describes the cruelties inflicted upon these valuable, docile, and
harmless animals :
Before proceeding to make the few remarks which our limits allow
on the valuable products derived from these animals, we would say a
word or two upon their capture. They are exceedingly tenacious of life,
and many cruelties have been perpetrated upon tbem, which most who
have witnessed declare to be too horrible for description, and over
which we willingly draw a veil. If life is to be sacrificed, there is a
Ill
right way of taking it as well as a wrong, and we insist that the former
should be followed and the latter avoided. Before, however, entering
upon this topic, we take leave to remark that it is impossible to inves-
tigate, as we have done, the natural history of these animals without
discovering how much their capture has been made a matter of mere
amusement and, as it is familiarly but emphatically called, of sport.
We venture to denounce all such sports as both indefensible and wrong.
Animals have been given to provide for the necessities and comforts of
man, but not that he may gratify himself with their dying agonies; and
he is Avholly inexcusable if even here he breaks the golden rule of doing
as he woukl be done by. Sporting with the feelings, and pains and lives
of these creatures has a strong tendency to lead to cruelty and wicked-
ness; and, therefore, this inherent tendency should be checked in the
bud and invariably opposed. When we witness, says Peron, a thought-
less sailor hastening for his amusement, club in hand, into the midst
of a great herd and surrounding himself with their dead bodies, we
can not but sigh over this improvidence and cruelty which lays low so
many peaceful, gentle, and unhaj^py beings.
While I have the book in hand, I will read other extracts in relation
to the docility of the seals, on pages 73 to 77 :
At a particular season of the year, every male, inflamed with lust,
and jealous almost at its shadow, lords it over his numerous harem
with even more than eastern despotism, and thereby throws the whole
community into a state of the highest excitement and agitation. Dur-
ing this period, which continues for months, nniny a jealous Bashaw,
as these animals have not inaptly been designated, engages in fearful
strife with a rival; the contest is often long and obstinate, as well as most
sanguinary and fatal. Nor does it end with these doughty champions.
Other males soon imagine that their interests are involved, or their
rights invaded, and the strife spreads from family to family, till at
length the whole community is involved in one general melee of pas-
sion and rage, of fierce cries and groans, of blood and death; and,
after all, short is the trium])h of the conqueror, and deep and poignant
the chagrin and malice of the vanquished.
Originally, and therefore we are disposed to liold that naturally,
these amphibia, far from having a dread, have rather a reposing con-
fidence in man. When a young one by an accident is separated from
its parents and comes in contact with man, instead of shunning it
courts its company. It will follow him, and if the finger be held out
will suck it like many domestic animals. Through the kindness of
Prof. Trail we can illustrate this trait in their mental constitution by
an interesting incident of which he was a witness, and wliicli, with
several other anecdotes, we can, through his polite attention, record in
his own words: "A little islet in Orkney, called the Holm of Papa
Westray,had long been a favorite haunt of numerous seals, which had
become more than usually tame from the care of the proprietor of the
adjoining island to prevent their being molested. On visiting that
gentleman in 1833 I found the seals exhibited their wonted confidence
in those who approached their protected haunt. Several of them swam
along the shore as a party of six or eight persons walked along the
beach, and did not in general keep farther from us than 30 or 40 yards.
When we turned so did they, and when we reentered our boat they
followed it in the narrow channel that divides Holm from the island of
Papa. Seals are said to relish uuisic, and a seal hunter once informed
112
me tliat the sound of a flute will allure them to a boat; but in the
above instance it was merely the conse(][uence of uo gun being ever
lifted against them in that islet which has won tlieir confidence in
man." Nor is this characteristic less strikingly exemplified by an
observation made by Mr. Dunbar, the present incumbent of the parish
of Applegarth, during his residence at a former period in one of the
Hebrides. In a letter to Mr. Lizars, which appeared in the last volume
of the ISTatura lists' Library, we find the following statement: "While
my pupils and I were bathing, which we often did, in the bosom of a
beautiful bay in the island named, from the circumstance of its being
a favorite haunt of. the animal, Seal Bay, numbers of these creatures
invariably mauc their appearance, especially if the weather was calm
and sunny and the sea smooth, crowding around us at the distance of
a few yards, and looking as if they had some kind of notion that we
were of the same genus with themselves. The gambols in the water
of my i^layful companions and their noise and merriment seemed, to our
imagination, to excite them and to make them course round us with
greater rapidity and animation. At the same time the slightest attempt
on our part to act on the ottensive, by throwing at them a stone or
shell, was the signal for their instantaneous disappearance, each as it
vanished leaving tlie surface of the water beautifully figured with a
wavy succession of concentric circles."
In the previous paragraph allnsion is casually made to the notion
that these animals are not indiflerent to the charms of music, whilst
we believe it may be safely affirmed that this assertion is more frequently
made than credited. The statement, however, appears to be perfectly
correct; and the following quotations, the former from the celebrated
Orkney naturlist. Law, and the latter irom Mr. Dunbar just quoted,
are sufticient to banish all skepticism on the point. "If people are
passing in boats the seals often come close up to them and stare at
them, following for a long time together; if people are speaking loud
they seem to wonder what may be the matter. The church of Hoy is
situated near a small sandy bay much frequented by these creatures,
and I ob^served when the bell rang for divine service all the seals
within hearing swam directly for shore, and kept looking about them,
as if surprised rather than frightened, and in this manner continued
to wonder as long as the bell rang."
And again Mr. Lizars's corresi)ondent: "The fondness of these ani-
mals for nuisical sounds is a curious peculiarity in their nature, and
has been to me often a subject of interest and amusement. During a
residence of some years in one of the Hebrides I had nniny opportu-
nities of witnessing this peculiarity, and in fact could call forth its
manifestation at pleasure. In walking along the shore in the calm of
a summer afternoon a few notes of my flute would bring half a score
of them within 30 or 40 yards of me; and there they would swim about,
with their heads above water, like so many black dogs, evidently de-
lighted with the sounds. For half an hour, or, indeed, for any length
of time I chose, I could fix them on the si)ot; and when I moved along
the water edge they would follow me with eagerness, like the dol-
phins who, it is said, atteiuled Arion, as if anxious to proloug the
enjoyment. I have frequently witnessed the same effect when out on
a boat excursion. The sound of a flute or of a common fife blown by
one of the boatmen was no sooner heard than half a dozen would start
up within a few yards, wheeling round us as long as the music played,
and disappearing one after another when it ceased."
113
Again I read from the same volume to prove what I have said about
the sense of hearing, touch, and smell that seals possess (pages 05 and
66) :
The truth is, the eye of the Amphibia is a perfect study and would
well repay a lengthened description. It is very large and quite spher-
ical; sclerotic or outer membrane is very peculiar, inasmuch as it has a
soft and thin zone around its middle, thickly covered with muscles,
whilst both before and behind it is thick and almost caitilnginous.
The precise use of this structure lias not yet been discovered, though
Blumenbach has thrown out the idea that it may enable the seal to see
both in air and water. Kosenthal so far confirms this opinion by hav-
ing observed that the mechanism is peculiar to those animals which
live in a dense medium, such as water; that the remarkable thickness
of the coat is found in those animals in which the orbit is not wholly
osseous, and that some fishes have the sclerotic nearly cartilaginous.
With regard to the ear, it ought not to be forgotten that fishes, with
no external ear or aperture, have in their native element an acuteness
of hearing which, according to some respectable authorities, far exceeds
our own, and Eosenthal states that the auditory nerve of the seal is
very large. Eespecting the sense of touch, we shall here quote M. F,
Cuvier, who well remarks : "The whiskers are very sensible portions
of the sense of touch. Those hairs placed on each side of the mouth
and at the corner of ohe eye communicate with nerves which are
remarkable for their size, and to which, as I have'often convinced myself,
the slightest impression communicates an immediate sensation." So
it is, we believe, with the other senses, which we consider wonderfully
adapted to both elements. Thus Bufibn remarks of the monk seal on
land* "It has a very acute hearing, since even at a distance it never
failed to obey or respond to its master's voice ; " and thus Capt. Scoresby :
"Seals appear to hear well under the water. Music or particularly a
person whistling draws them to the surface and induces them to
stretch out their necks to the utmost extent, so as to prove a snare by
bringing them within the reach of the shooter;" and Weddell: "Their
sense of hearing is acute, and also their sense of smell." It is on
account of this last sense that the Greeidanders always endeavor to
api^roach them against the wind. And were we to judge of their taste
by the keenness with which they relish their food — few animals possess
it in equal perfection. The greatest gourmand's teeth do not water at
the anticipation of the richest feast as do theirs in expectancy of their
common food. "A copious saliva," says M. P. Cuvier, "fills and flows
from their mouth during deglutition, and not less so the moment the
seal perceives its prey."
As to their breathing, I will read from pages 56, 67, and 58, where
the following is stated :
Having thus noticed that the external structure of these Amphibia is
admirably adapted for their watery element, and yet made wonderfully
conformable to their requirements on land, we proceed to remark that
their vital functions also are strikingly fitted for their peculiar exigen-
cies. Their respiration, as might readily be inferred, differs consider-
ably from what is observed in most other animals. Even the air i^as-
sages undergo a change which ought not to be overlooked. We refer
particularly to the nostrils, whose state, unlike that of other qiiad-
11495 M 8
114
rupeds, is that of being habitually closed, instead of being uniformly
open. This was first noticed, we believe, in a walrus domesticated in
England, of which, as will appear in our account of that animal, it was
said: "It can open and shut its nostrils at pleasure." The Count
BufPon again pointed out the peculiarity in a tame seal which he
examined : " In the intervals of breathing, the nostrils were accurately
closed, and, on the act of inspiration being completed, they were shut
as before." M. F. Cuvier, at a later period, made a similar observation,
so that we apprehend we may safely affirm that this peculiarity exists
in the air passages as their ordinary condition. This state of parts of
course supplies ready means of judging of the frequency of respiration,
and here, too, there appears to be a marked difference, even on land,
from what obtains among other animals. Thus Bufifon, in the instance
already alluded to, remarks: "The period between its several inspira-
tions was very long; the creature opened its nostrils to make a strong
expiration, which was immediately followed by an inspiration, after
which it closed them, often allowing them minutes to intervene without
taking another breath." In connection with this peculiarity, M. F.
Cuvier makes an additional and important remark : " Notwithstanding
the slow and irregular breathing of these animals, the regular supply
of air to the lungs is in no degree diminished, if we may judge from
the very free motion of the ribs, and the great quantity of air expelled
at each expiration. In truth, the quantity of air taken in makes up
for the small number of the respirations; for few of the Mammalia
have appeared to me to l«ive so high a natural temperature as the seals.
But, however great the peculiarity as exhibited on land may be, it is
trifling when compared to its singularity in water, where it is not
uncommon for these animals to remain for a quarter of an hour at a
time under the surface (the usual period even for whales); and we are
not prepared to state what the extreme limit may be. Thus, Crantz
states that when harpooned they must come up in about a quarter of an
hour to take breath; and Mr. Edmonston informs us that he once saw
one of the bearded seals entangled in a net, which struggled with
amazing force for more than twenty-five minutes without once inspiring,
and yet was brought to the surface alive. An observation of M. F.
Cuvier is still more remarkable. He states, concerning those Avhich
were preserved in the menagerie at Paris, that he has seen them while
asleep keep their heads under water consecutively and consequently
without breathing for an hour at a time. This is an extraordinary
phenomenon, even allowing that the animal was in that somewhat
lethargic condition to which we shall ere long allude.
As to their destruction, by unrestricted hunting, the following pages
may be referred to : pp. 93, 95, 96, and 97, where it is said :
The time was when cargoes of those skins yielded $5 or $6 apiece in
China, and the present price in the English market averages from 30
to 50 shillings per skin. The number of skins brought off from Georgia
can not be estimated at fewer than 1,200,000; the Island of Desolation
has been equally productive, and in addition to the vast sums of money
which these creatures have yielded it is calculated that several thousand
tons of shipping have annually been employed in the traffic.
* * * These valuable creatures have often been found frequent-
ing some sterile islands in innumerable multitudes. By way of illus-
tration, we shall refer only to the fur-seal, as occurring in South Shet-
land. On this barren spot their numbers were such that it has been
115
estimated that it could have continued permanently to furnish a return
of 100,000 furs a year; whicli, to say notliing of tlie public benefit, would
have yielded annually from this spot alone a very handsome sum to the
adventurers. But what do these men do? In two short years, 1821-
'22, so great is the rush that they destroy 320,000. They killed all and
spared none. The moment an animal lauded, though big with young,
it was destroyed. Those on shore were likewise inmiediately despatched,
though the cubs were but a day old. These of course all died, their
number, at the lowest calculation, exceeding 100,000. No wonder, then,
that at the end of the second year, the animals in this locality were
nearly extinct. So it is, we add, in other localities, and so with other
seals; so with the oil seals, and so with the wljale itself, every addition
only making bad worse. And all this might easily be prevented by a
little less barbarous and revolting cruelty, and a little more enlightened
selfishness. Fishermen are by law restrained as to the size of the
meshes of their nets in taking many of our more valuable fish; and in
the Island of Lobos, in the Eiver Plata, where, as we have seen, there
are quantities of seals, their extermination is prevented by the governor
of Montevideo, who farms out the trade under the restriction that the
hunters shall not take them but at stated periods, ages, etc. * * *
With regard to the seal fishery of the south the English and Ameri-
cans have exclusively divided it between them, and witli very great
profits. It has lately been stated that they together employ not fewer
than sixty vessels in the trade of from 250 to 300 tons burden. These
vessels are strongly built and have each six boats, like those of the
whalers, together with a small vessel of 40 tons which is put in requi-
sition when they reach the scene of their operations. Tlie crew con-
sists of about twenty-four hands ; their object frequently being to select
a certain fixed locality from which they make their various battues.
Thus it is very common for the ship to be moored in some secure bay
and to be partially unrigged, whilst, at the same time, the furnaces,
etc., required for making the oil are placed on shore. The little cut-
ter is then rigged and manned with about half the crew, who sail
about the neighboring islands, and send a few hands on shore when
they see seals, or where they wish to watch for them. This vessel can
bold about two hundred seals rudely cut up, which will yield about
lOU barrels of oil. This is transported to the headquarters and melted.
The campaign frequeiitly lasts for three years, and in the midst of
unheard of privations and dangers. Some of the crew are sometimes
left on distant barren spots, and the others being driven off by storms,
they iire left to perish or drag out for years a most precarious and
wretched existence.
This evidence, from the highest English and French authorities, was
stated to the scientific world more than fifty years ago, as a plea for
the preservation of these valuable and docile animals. If we calculate
the values they would have added to commerce, had Great Britain
and the United States then agreed, as they do now, to adopt regula-
tions for their protection, we must reproach ourselves if tMs Tribunal
is not now equal to this important duty and if tlie regulations we adopt
are not effectual to stop this great wrong.
116
The following pages, 275, 276, and 277, contain a description of .fnr-
seals in the Antarctic, taken from tlie writings of Gapt. Weddell:
Kotliing regarding tlie fur seal is more astonishing than the dispro
portion in the size of the male and female. A large grown male, from
the tip of the nose to the extremit}^ of the tail, is 6 feet 9 inches, while
the female is not more than 3.^ feet. Tliis class of the males, however,
is not the most numerous, but being physically the most Y)owerful they
keep in their possession all the females to the exclusion of the younger
branches; hence, at the time of parturition, the males attending the
females may be computed as one to twenty, which shows this to be,
perhaj)S, the most polygamous of large animals.
They are in their nature completely gregarious; but they flock
together and assemble on the coast at diU'erent periods and in dis-
tinct classes. The males of the largest size go on shore about the
middle of November to wait the arrival of the females, who of necessity
nuist soon follow for the purpose of bringing forth their young. These
in the early part of December begin to land, and they are no sooner out
of the water than they are taken possession of by the males, who have
many serious battles with each other in procuring their respective
seraglios and by a peculiar instinct they carefully protect the females
under their charge daring the whole period of gestation. By the end of
D.'cember all the female seals have accomplish the purpose of their land-
ing. The time of gestation may be considered nearly twelve mo.ths, and
they seldom have more than one at a time, wliich they suckle and rear
apparently with great affection. By the middle of February the young
are able to take to the water, and after being taught to swim by
the mother they abandon them on the shore, where they remain till their
coats of fur and hair are completed. During the latter end of February
what are called the dog-seals goon shore; these are the young seals of
the two preceding years, and such males as, from the want of age and
sti ength, are not allowed to attend the pregnant females. These young
seals come on shore for the purpose of renewing their annual coats,
which being done by the end of April they take the water, and scarcely
any are seen on shore agaiu till the end of June, when some young
males come up and go off alternately. They continue to do this for six
or seven weeks, aiul the shores are then again abandoned till the end of
August, when a herd of small young seals of both sexes come on shore
for about live or six weeks, and then retire to the water. The large
male seals take up their places on shore, as has been before described,
which completes the intercourse all classes have with the shore during
the whole year. The young are at first black; in a few weeks they
become gray, and soon alter obtain their coat of hair and fur.
When these iSouth Shetland seals were first visited they had no
apprehension of danger from meeting men; in iact, they would lie still
while their neighbors were killed and skinned; but latterly they had
acquired habits for counteracting danger by i^lacing themselves on
rocks, from which they could iu a moment precipitate themselves into
the water. The agility of this creature is almost greater than, from its
a]^pearance, an observer Avould anticipate. I have seen them, indeed,
often escape from men running fast in pursuit to kill them.
These statements, collated in volume 12 of the Naturalist's Library,
which Lord Hannen tells us is a standard work, were written about
1820 to 1830, and some of them earlier, by the most scientific natural-
117
ists who gathered the facts from personal observations. They rehite to
the same race of fur-seals at the antipodes that we are inquiring about
in this case.
These able scientists enter minutely Into all the characteristics of the
fur-seals and other carnivorous amphibia and give exact descriptions
of their actual and comparative anatomy. Their accounts furnish
accurate data, iu strong contrast with the guessing and conjectures of
the tyros, many of them without previous experience, who were sent
out to make a brief and necessarily superficial study of the Pribilof
herd, chiefly with a view to bolster up special theories that are made
the bases of the contentions that the Tribunal is now examining.
Although these books were written more than a half century ago,
they are as accurate as a photograph as to the physical characteristics
and the habits of the fur-seals of the oSTorth Pacific, and show that they
are exactly now what the same species was one hundred years ago iu
the South Pacific Ocean.
I rely upon these exact and scientific statements of these learned and
trained naturalists to clear up the doubts and reconcile or remove the
conflicting conjectures of the numerous witnesses in this case who dis-
agree chiefly because they are not well informed as to the subject. In
the matter of the virility of the harem masters, the alleged barrenness
of cows killed in July, August, and September, and the possible dis-
eases that may have swept ofl" large numbers of pups on the island,
oinnious are advanced with bold freedom by men whose opinions are
not entitled to any weight whatever. I do not remember that any one
of the many statements of the hundreds of witnesses who si^eak so
confidently on these suojects is based either upon actual skill or actual
examination, by dissection or in any practical way, of the characteristics
of fur-seals. All the evidence shows that the breeding cows are fer-
tilized within a few days — about ten days — after parturition, and that
until that is accomplished the harem masters control their movements
with the most jealous care, and none of them are permitted to go into
the sea until they are impregnated. Tbey then set out to get food to
nourish the pups they have borne, carrying in their bodies the living
germ of the next creation. In these early days the fact of fertilization
is not discernible even on close examination to the unskilled eye; yet
such examinations were not made, and these seal-hunters and so-called
professors unhesitatingly testify that a cow seal, having milk in her
breasts, is barren because there were no external signs that she was
gravid with young.
118
And so it is in respect of tlie virility of tlie bulls, a fact that would
probably defy the movst exact scientific examination to prove, is stated
with sublime confidence by Prof. Elliott and other like guessers. He
finds the bulls at peace on the rookeries, and though they are not
irritated by being crowded together as formerly, he concludes that
because they have their domestic enjoyments without the necessity of
jealous warfare that they have lost their virility. Among all polyg-
amous animals endowed with fighting capacity nature provides for
destroying the excess of males by the wars they wage upon each other.
Breeders of animals reach this result without the necessity of permit-
ting them to fight and kill each other. It requires very simple reason-
ing to reach the conclusion that, if this waste of physical energy is
saved to breeding males by their separation from each other and the
suppression of their warfare, that it will supply the virility to meet a
greater demand upon their powers of procreation.
Ko dissections seem to have been made of dead pups found on the
islands on one occasion to ascertain whether they had died of starva-
tion or of disease, or were swept off by tempests and drowned and
were thrown upon the coasts in " winrows" by the waves of the sea.
Yet each witness gives his opinion as to what killed the pups with as
much confidence as if he really knew what he was talking about.
The eftbrt to account for the disparity of 81,000 killable seals on the
islands between 1889 and 1890 by any of these mere conjectures is
founded upon this sort of testimony and can not break the force of the
fact that in 1890 the pelagic hunters got 51,655 seals, while on the
islands, where 102,017 killable seals were taken in 1889, only 21,238
could be found the next season " by scraping the rookeries," as Lord
Hannen observed.
The crucial test of the necessity of forbidding pelagic sealing with
firearms in parts of the ocean where seals abound is the fact that it
results necessarily and without doubt in the killing of great numbers
of female seals, because of their disposition to sleep when gravid.
They are more easily approached than the males, and the result is the
destruction of a nmch larger proportion of females than of males.
The encouragement of this indiscriminate killing of females, or its tol-
eration, will establish a practice that violates every idea of the protec-
tion and preservation of the species. It legitimates a war upon the
race that can not be restrained.
If we first deny to this race of valuable and docile animals (that have
119
less dread of the presence of man, wLetber on land or sea, than any
other animal that is classed as a wild animal) all the protection that
the law gives to animals that are domesticated, and for no other end
than to protect the merely technical, cruel, and unrelenting claim of
rights by its worst enemy, the pelagic sealer, we should never take to
ourselves the credit of protecting and preserving them. When we arm
those enemies with double-barreled shotguns, with cylinder cartridges
charged with buckshot, and tarn them in upon the herd to kill them
indiscriminately after they have congregated in great numbers and
are making their way to their only place of resort for the purposes
of procreation, we, their only protectors, become their destroyers.
This is not a hypothectical case or an exaggerated statement, but is
the simple and undeniable truth.
This Tribunal, by such a decree, will deny to the fur-seal species, all
over the world, that protection which themunicipal law has always freely
and even eagerly extended to all harmless, docile, and useful animals that
are valuable to man for food and raiment. We will put upon them the
ban of outlawry only because they must go into the sea for food, and
because they do not need to be converted from their natural condition or
disposition by the discipline or the temptations of the skill of man that
must be used in taming savage beasts. Nature having dispensed with
all necessity for such inducements and manipulations to overcome any
avei-sion of the fur-seals to the dominion of man, and having delivered
them into his hands as a free gift, to be used at his pleasure and to
meet a want that no other animal can supply, the law steps in and
declares that because nature has done this, and has so placed it out
of man's power to make the seals any more docile and tame by induce-
ments and manipulations than they are by nature, the fur-seals can
never, as a class, become domestic or domesticated animals, and can
receive no legal protection in the sea. They are forever excluded on
such grounds from the legal possi])ility of domestication, and are handed
over to the most formidable enemy that ever hunted any animal, tame
or wild, doomed to inevitable destruction.
I dissent from such opinion as being contrary to the laws of God and
the often-expressed legislative intentions of man; but I yield to it as
the sincere judgment of this Tribunal, and refer to it to show how much
greater is the necessity now resting upon this Tribunal in the amplitude of
its powers supplied to them, for this occasion and for that purpose, to afford
substantial protection for the preservation of the species. I will explain
120
my iiieaning wlien I say that the outlawry of the fur-seal species is con-
trary to tbe laws of God. Hundreds or thousands of years ago these
animals and the Aleuts were brought iu contact by the directing hand
of Providence along the shores and on the islands of Bering Sea.
No tree, no fruit, or grain, or grass, or cattle were there to sup-
Xiort human life; but men were there, who subsisted on these fur-seals
and were clothed in their skins. This was nearly the only food and
raiment tliey could obtain in a climate as inhospitable and in a country
as rugged and dreary as any on the habitable globe.
Only one hundred and fifty years ago, a powerful nation, Russia,
came with her great ships and armaments and took the country and
the people and the seal herds, by right of discovery, and supported its
right by the title known to the law of nations as title by discovery — a
most tyrannical and fraudulent maxim of international law which the
civilized world has now practically abandoned. If this had never been
done, the Aleuts would now be the owners and rulers of that country j
and the question we are now discussing would be whether, under
internaticnal law as it is now, the food and raiment — the only valuable
resource of these poor and helpless people — could be taken by any great
1)0 wer and the people left to ])erish. In that case the consensus of the
civilized powers would be that those animals should be considered the
property of the Aleuts, the owners of the breeding islands, and when
they left the coasts with the intention to return and visited the ocean
for food, that they should at least be attended with the protection that
is given by the law of all civilized nations to domesticated animals.
This is the law of God, who first gave these animals to those northern
tribes and made them the staff" of life to them by reason of their docil-
ity, the regularity of their coming into the service of those people, and
their complete submission to that service.
That law is not changed because the United States, a powerful and
wealthy nation, has assumed to make provision for these people while
lifting them into a higher civilization and finds in the fur-seals the reve-
nue that is needed for these jnirposes. For more than one hundred
years Great Britain and her subjects have known the fact that Eussia
and the United States have made these fur-seals the basis of a valuable
industry; a means of providing for the Aleuts; an instrumentality of
government; and almost the only source of revenue that country pos-
sessed. It was not until 187G that any pelagic sealer entered Bering
Sea, and that was a United States vessel that was captured and con-
fiscated by that Government.
121
The seal hunters had depopulated the Antarctic Ocean of fur-seals,
and had made many successful raids on the islands and coasts of
Japan. Their poaching grounds had been exhausted and the hope of
gTeat profits drew them to Bering Sea. They found govertnnental
resistance in Japan, Eussia, and the United States, but they found in
Canada a Government that would give countenance to their raids, and
despite the best efforts of the United States and Great Britain, and of
their ordinances closing Bering Sea to them, they now sMarm upon
the known route of the migration of the seals, which they follow with
immense fleets. It was this sudden and dangerous movement that
caused these nations to agree that this Tribunal should settle the ques-
tions that stood in the way of concurrent action between these Govern-
ments j and should then determine regulations for the proper protection
and jjreservation of the fur-seals in the water, and not regulations to be
provided for the protection of the pelagic hunters, who are the only
human destroyers of the fur-seals that can not be otherwise completely
restrained.
If we will take a correct view of the number and the power of these
destroyers we shall see in the dangerous aggregation of those enemies a
demand that we can not reasonably resist for preventing them from
destroying the fur-seals placed under our protection by this treaty.
In view of the very heavy forces that are and have been marshalled for
this ruinous purpose, and that are really invited to increase their num.
bers and strength by the regulations offered for our adoption on behalf
of Great Britain, we shall find a just and sufficient reason for firm
action, without being left to conjecture upon a meager statement of
facts, and abundant statements of loose, ignorant, muddy, conflicting,
and partial opinions as to how much wanton and needless injury lias
already been done to seal life, and in what months of the year it has
been done.
In 1892, the sealing fleet in the North Pacific Ocean numbered 122
vessels, 69 of which were under the British flag, and 53 under the flag
of the United States. No other nations were participating in the hunt.
Allowing to each vessel 8 sealing boats, though none had less than 5,
and many of them had 15, there were 976 boats. There could not have
been less than 1,000 boats. Giving to each boat a hunter and oarsman,
there were 2,000 men employed in hunting. They also liad the ship
and its crew as a base for supply of ammunition andjirovisions, and to
give assistance in skinning the seals after hoisting them into the ship^
122
and ill disposing of tlie carcasses and salting and stowing tlie pelts.
These crews, allowing 10 men and oflicers to each vessel, though the
numbers were much greater, numbered 1,220; in all, 3,220 men. I
place this estimate below that of both Governments because I believe
that is a full allowance of the men needed, and this business requires
no great investment of capital to make it profitable.
Each hunter has a rifle, and a double-barreled shotgun, and takes
100 rounds of ammunition on each excursion from the ship, which he
usually expends in a day's work. The guns are breech-loading, rapid-
firing weapons, and have fixed ammunition, made waterproof; and are
fired by the impact of the hammer upon an explosive that is fixed in
the base of each cartridge. The powder and the explosive for igniting
it are charged into a copper cup or cylinder that forms the base of the
cartridge, and the lead is imbedded in the cylinder, in front of the
powder. A slight flange around the exterior of this cylinder at its
base prevents its escape from the gun in firing, and when it is emptied
a very simple contrivance removes the shell from the breach of the gun.
Fifteen buckshot, each a deadly missile, is usually the charge of lead
placed in each cylinder cartridge, and if a hunter fires 100 shots in a
day, he discharges 1,500 of these missiles at, or into, the seals.
In 10 days of good sealing in the North Pacific out of 60, the single
hunter would fire 15,000 deadly shots at close range; and in 15 days
out of 90, in the Bering Sea, he would fire 22,500 deadly missiles at or
into the seals, even under the more apparently forbearing and humane
scheme of regulations offered by Sir John Thompson. But under the
British scheme his opportunities would be much greater. In a seal-
ing campaign of two months in the North Pacific and three months in
Bering Sea — continuous months — the single hunter, during twenty-five
days of good sealing out of one hundred and fifty -three days (Sundays
included), would fire at and into the seals 37,500 deadly cartridges.
One hunter with that opportunity, if he was moderately skilled in
shooting seals, would destroy 2,000 or more seals in 153 days of hunt-
ing.
It is idle to suppose that out of 153 days of hunting he would not
fiud 25 days of good sealing, in which he would fire 100 shots each day.
The average for the entire period would be 24 shots each day for each
hunter. Now multiply these figures by the number of hunters in the
entire fleet of 122 vessels — 967, and in the 25 days of good sealing
weather out of the 153 days spent in the North Pacific and Bering
123
Sea, they wonlcl fire at and iuto the seals 3,550,824 cartridges, each
loaded with 15 bnclcshot, all deadly missiles, and nninbering 53,262,360.
Now, let us suppose that three-fourths of these shots failed to hit the
seals and that only half of the number that hit them either killed the
seals or wounded them mortally, and we expose this herd of seals to
an annual loss of 443,853 seals at the very lowest possible estimate
and upon a basis of facts tbat no one can safely dispute. This shows
that not more than one seal is taken out of every five seals shot. This
seal herd in its present depleted condition can not continue to exist if
half that number of seals is taken from it in each of the years from
1894 to the end of the century. And if the percentage of female
seals killed is equal to two-thirds or even half the whole number, the
speed and certainty that must attend the destruction of the herd will
be very greatly increased under the plan of Sir John Thompson.
If we expect that a less number of vessels will hereafter assemble for
seal hunting than came in 1892, on what ground can w^e safely base
such a conjecture?
The skins of seals are worth $10 apiecej they were worth that much
in 1821, and if the average catch of each vessel is only 250 for five
mouths, or 50 seals a month, it is a very large earning, and it leaves
half the year for other voyages. If the attack on the seals is iiei initted
when they are herded together in Bering Sea in one vast body, or
when traveling in large parties up the Pacific coast, the limiting of
the hunting season to a brief period will only increase the activitj^ of
the pelagic sealers, and as much killing will be done with 200 vessels
in one month as would be done with 100 in two months, if the open
season was two months instead of one. We could no more safely
assume that the sealing fleet in 1894 or 1895 will not exceed the number
assembled in 1892 than we could have assumed in 1876 that pelagic
hunting would be limited to a single vessel and could not possibly
reach the number of 122 vessels by the year 1892. The experience of
the last seventeen years on this subject is not to be disregarded.
It is a living lesson of truth that the legerdemain of minor and astute
calculations can not conceal under a cloud of doubt. The fact remains
that in the year 1892, 122 vessels assembled in the North Pacific and
took 73,394 skins of dead animals, killing or fatally wounding at least
twice that number — 146,788 — in all, 220,182 seals, of which two thirds
were females, numbering 146,794.
There can be but little doubt, on all the evidence, that the number
124
of female seals killed and wounded was more than double tlie number
of skins that were taken. There is also as little doubt that two-thirds
of the females killed or fatally wounded were gravid, and on their way
to the islands to be delivered of their young; and each seal in that
condition was then the repository of two lives that were thus destroyed;
the unborn pups being 99,862.
This number, addin.f? the number taken 73, 394
And the number killed and wounded, but not taken 220, 182
And the unborn pups of the 146,794 females killed or fatally wounded 99,862
Givesa total of 393,438
How can it be said that, on the evidence in this case, this is not a
true and safe estimate of the result of the work of destruction wrought
by 122 sealing vessels in 1892, in the North Pacific while they were
limited to those waters by the modus vivendi of 1891?
Reduce this estimate if you will by one-half and make it only
196,714 seals of all conditions and sexes that are killed, and the num-
ber destroyed is nearly twice as great as the number of seals that
were killed and recovered in 1892. Until these facts are changed or
expunged from the record, I can find no occasion for examining in this
opinion the minor details that relate to other seasons. These facts,
if they are to be repeated indefinitely, destroy all hope of preserving
these seals.
The year 1892 with its actual experiences stands nearest to 1893, and
is the safest, as it is the most complete, guide to the truth of the situ-
ation. I therefore take that year, with its ascertained facts and
results, as the chief basis of my objections to the schemes of regu-
lations proposed by Great Britain and departed from and modified, but
scarcely improved, by the plan of Sir John Thompson.
That Sir John has found it necessary to depart from the British
proposals is a grave concession, especially in the point so earnestly
contested by Great Britain, that this Tribunal has no jurisdiction out-
side of Behring Sea. He proposes a zone of absolute prohibition of
pelagic sealing of 10 miles around the Aleutian Islands.
In considering regulations as they may be shaped and modified by
other considerations than the method that will best protect and pre-
serve the particular class of fur-seals placed under the protection of
this Tribunal by the treaty (if we are to take such liberties with our
powers), the Tribunal must, in justice, examine into the rights of the
pelagic sealers of the United States, in the Pacific Ocean and in Ber-
125
mg Sea, as they will be when the statutes of tlie United States shall
permit them to euter with the Cauadiaiis and also with the people of
other nations into that harvest field, and to have equal rights in the
spoils that we are asked to place within their reach.
Although we have not yet considered the British case on its
merits, which covers only the claim of right to unlimited and un-
controlled pelagic sealing, and have only considered the objections
to the case of the United States that are stated in the British counter
case, I must assume that the citizens and subjects of the respective
Governments everywhere on the high seas are to have equal rights
and privileges. If it is the right and privilege of the pelagic sealers of
Canada to waylay the seals in May and June at Unimak Pass or any
other j)ass, and in July, August, and September to waylay them in
Bering Sea near the passes or near the breeding islands, the same
right must be accorded to the citizens of the United States who for
personal gain choose thus to violate the declared public policy of their
Government.
If it must be that this Tribunal will inflict upon the United States
the double indignity of having her wise and honorable policy of
preserving the fur-seal species disregarded by her own people, under
the suggestions of the award, and of requiring the concurrent action
of Great Britain in the principles, if not in all the details of laws and
of administration, in guarding the proposed 30 mile zone against intru-
sion by citizens of the United States, we should at least be careful
to protect the United States against a definitiou of the rights and
powers of pelagic sealers that is so radical as to break down the
admitted rights and principles of self-defense.
The same necessity does not exist for guarding Great Britain with
protective regulations, because no pelagic hunting is done within thou-
sands of miles of any place where she has any sealing industry, and
the interest of the i)elagic hunters is in accordance with her present
policy of giving them free rein in the destruction of fur-seals if they can
make any money by the operation, as her policy is now disclosed in the
regulations she has submitted.
As to citizens of the United States who would be thus encouraged
by such an award policy to raid upon the industries and revenues of
their Government during five months of the year and to defy its public
policy, it may turn out that the United States will abandon them to
their own devices for protection while they are engaged in this selfish,
cruel, and unjpatriotic work.
126
And liere comes to view the most dangerous and difficult task and
the most irritating that the two Governments will have to perform in reg-
ulating as between these pelagic sealers their rights while they are pur-
suing and capturing fur-seals with double-barreled shotguns. The
pelts are worth $10 each, a much larger sum than is the average yield
of the richest gold mine per diem to the gold hunters; and we know
how impossible it is to restrain by law the violence that has attended
their struggles for "diggings," where none of them own the soil or
any privilege in it except to discover new leads and to dig for gold.
On the high seas 30 miles or more from any land there are no courts
and can not be any efficient police by either or both nations. Conced-
ing to them the best intentions and the most honorable zeal in protect-
ing the rights of all concerned, they will fail to prevent those personal
oonflicts between the ravenous pelagic sealers around the 30-mile zone,
especially, which in the end will embroil the two countries.
The United States, as I have observed, may not choose to take up,
as an international question, the quarrels of her citizens with Canadian
subjects while they are both engaged in doing a great national wrong
to that Government; but they will be, naturally, very chary of the
dealings of Great Britain with such controversies. There will be no
international court for the hearing of such controversies between
private persons engaged in sealing in boats and canoes on the high
seas, and they will probably be settled by the vis major. The fact that
both parties will be heavily armed for assault upon the seals will make
such collisions very dangerous, and their occurrence almost certain.
A United States sealer finds a school, or party of seals and goes to the
leeward to get in gunshot of them ; and a party of Canadians desiring to
kill them, approaches the seals from the windward and shoots one with
a rifle before the other hunter can get in range with his shotgun. A
quarrel ensaes and results in bloodshed. By a fiction of law, they are
each upon the territory of their respective countries, and the settlement
of that case, without the intervention of the Governments, would tax
the wisdom equal to that of Solomon. If one sealer in his boat
shoots at a seal that another is approaching from the other side,
and wounds or kills the hunter, what is to be done in that case?
That conflict will result from such occasions is almost certain, and how
it can be settled is most uncertain. Illustrations are feeble to portray
the difficulties and conjectures are far short of the reality as to the
conflicts that must occur in the wild hunt for seals that the British
regulations invite.
127
Sir John Thompson spoke of the generosity of the British Govern-
ment in treating with the United States for the preservation of the
fur-seals. There was as much generosity on one side as on the other,
and none on either. It was a business matter relating to material in-
terests and, I may well assert, of equal importance to both high con-
tracting powers, which took its origin in what Sir John has aptly termed
the "bursting in" of the Canadians into Bering Sea in 1886. It was
a sudden "bursting in," and had the appearance of a violent and de-
fiant experiment — a raid. Canada and the United States since 1818
have had many severe contentions over the fisheries of the northeastern
coast, in which arrests of ships and of persons have led to very earnest
discussion. The United States, claiming certain treaty rights there,
have not burst into any of the waters that Canada has claimed as her
fishing preserve, although her people have been treated there with
severe inhospitality.
That Government has preferred to prevent collision and strife by
restraining her people from bursting into places where they believed
that their rights entitled tliem to go. It was an easy matter for Canada
to have propounded its claim of rights to the United States, and to have
had them decided upon without permitting her citizens to go into
Bering Sea with their vessels and hunters armed with double barreled
shot guns and hunt seals up to the 3-mile limit, which she now admits
should be 10 miles as to such hunting. It was quite as easy for Can-
ada to restrain her citizens from bursting into Bering Sea as it was to
enact her system of very stringent laws to protect her preserve of hair
seals 1,000 miles from Canada, in the open ocean off the coast of Green-
land. If Canada had passed any reasonable laws for protecting these
interests of the United States, even during negotiations, a serious dis-
turbance of neighborly feeling could have been avoided, and fearful
havoc in the seal herds passing her coasts would have been prevented.
The enactment of such a law would have enabled the United States
to have controlled her own people as to hunting seals in the North
Pacific without incurring the reproach from them of denying to them
the privileges that Canadian subjects enjoyed on the high seas, and of
allowing them to reap all the profits of the massacre of the fur-seals.
The policy of Canada has made it impossible for Congress to restrain
the people of the United States from participating in this reckless
destruction, and from this defiance of her public policy and laws. Yet,
in the presence of this obvious legislative impossibility, it seems equally
128
impossible to answer the thrust that is always made at the United
States ill argument, in censure of her condu(;t, that Congress has not
enacted laws to prevent citizens of the United States from pelagic hunt-
ing in the North Pacific Ocean. • The fact which no one seems to deny,
that citizens of the United States took shelter under the British flag
and Canadian registry to evade the laws of the United States exclud-
ing them from sealing in Bering Sea, seems to have been forgotten.
That fact alone shows how impotent woukl have been the laws of the
United States to protect and preserve the fur-seals agaiuwst the depre-
dations of its own peoi)le while sealing under the shelter of the British
flag. Canada controls the registry, licensing, and clearance of sealing
vessels in her sea-ports, as is shown by her statutes relating to the
hair- seal fisheries. A simple regulation would have saved the fur-seals
from this exterminating raid tliat the evidence in this case has disclosed.
But Canadian subjects seem to have a double allegiance and a two-
fold protection under their colonial system. The Canadian government
ean permit them, without control, to burst into' Bering Sea and prevent
the seals from reaching the islands of the United States, and when
such 1 aids are followed by arrests they can claim the imj)erial power of
Great Britain to protect them.
Whatever censure, therefore, may be visited upon the United States
for her dealings with her own people, it must be admitted that the
difiiculties of the situation have been caused by the iDolicy that her
neighbor has seen proper to pursue. If such censures had been
just they would have been made by Great Britain when negotiations
in respect to this treaty were pending. That Government did not
venture to allude to the subject. It seems to have been held back as
a make weight for the argument and considerations of this case.
When the United States shall have an opportunity to consider that
question in her future discussions of such matters, should that be
unhappily necessary, her vindication will be found to be complete. Mr.
Bayard, who first pointed out the rights of the United States, which
included, in substance, the five points we have just been discussing,
and which were advanced subsequently with great earnestness by Mr.
Blaine, proposed to leave those matters out of consideration, and to
proceed at once to establish the regulation of pelagic hunting by des-
ignating an area within which a close season should be enforced. And
afterwards, when arrests were made of the Canadian vessels that were
killing seals in Bering Sea, Mr. Bayard ordered their release. This
129
was done, not because Mr. Bayard had receded from the attitude he
held, as was contended by the British counsel in oral argument, but for
the reason that a negotiation was pending for the settlement of all the
controversy, and he did not think that it would promote good will be-
tween the nations to push the claims of the United States by the exercise
of force while it was negotiating with Great Britain about the validity
of those claims. After such example of considerate action on the part
of the United States, it is not doing justice to either party to claim that
the other was treating with it in a spirit of generosity or of forbearance.
Does anyone doubt that the United States acted, in all this con-
troversy, upon a firm belief in the justice of its claims in every
particular ? If those claims were just, or made in that firm belief, it was
a matter of as much concern to Great Britain as it was to the United
States, both in the view of justice and as to the preservation of the
peace, that they should be fairly considered and settled.
Great Britain has never, until the scheme of her regulations were
presented to this Tribunal, asserted that the United States had not a
special and peculiar interest in the fur-seals frequenting Bering Sea.
In the diplomatic correspondence that Government conceded such a
peculiar interest in the United States, but has at last got its consent
to dwarf the concession to an area that would conform only to the inter-
ests of the Canadian sealers.
It was these men who compelled Great Britain to interpose for their
protection, and when that Government found that their practices were
destroying a great and valuable element of commerce, they demanded
an investigation of the necessity for restraining pelagic hunting by a
joint commission, and this is the initial point of this Arbitration.
Having touched on the general questions or subjects now presented
for our consideration, and leaving to Mr. Justice Harlan the task he
has chosen of making a closer examination of the evidence bearing on
these questions, I will take up the plans or schemes of regulations, so
far laid before the Tribunal, and endeavor to state my understanding
of what they are and what will be the results if any of them are
adopted.
The further remarks of Senator Morgan on this topic related to the
comparative merits of the several schemes or projects of regulations
presented to the Tribunal, and are not here given.
11495 M 9
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