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Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. Les exempiairas originaux dont la couvarture en papier est imprim*e sont film*s en commenpant par la premier plat at en terminant soit par la dnnected re ready a mere 1893.] . The Fnr-Seal and the Award, 747 problem in zoology. As it was, each side held a brief for its own country, and from the very outset difficulties arose. Lord Salisbury's instructions were to the effect that the British commissioners should " investigate, conjointly with the commissioners of the other Govern- ment, all the facts relating to seal- life in the Bering Sea." But no conjoint investigation properly so called appears ever to have been made, and the only joint report ever submitted was of almost laughable brevity. Divested of its preamble, it consisted of three lines. " We find," it states, " that since the Alaska purchase a marked diminution in the number of seals on, and habitually resorting to, the Prybilov Islands has taken place ; that it has been cumulative in effect ; and that it is the result of excessive killing by man." The conclusion expresses, in the lan- guage of politeness and diplomacy, the bald fact that agreement on any other point was impossible. Each side was, naturally enough, anxious to make out as strong a case as possible. The one held " pelagic " sealers as enemies of mankind ; the other, scorning half measures, suggested the interdic- tion of all killing upon the islands. The result was the submitting of a vast mass of contradictory data to the tribunal, from which it must have been more than diffi- cult to disentangle the skein of plain fact. Much more satisfac- tory would it have been could the arbitrators, instead of the two in- terested parties, have nominated the commissioners. They would then have had as a basis for ad- judication a well-ascertained and unimpeachable series of facts. Upon the award, strictly so called, we need not here dwell. The five points upon which the arbitrators had to decide resolved themselves, practically, into two, — the first, whether Bering Sea could be held to be mam c/austim — the second, whether the fur-seal when at large is res nullius. On each of these points the American contentions were disallowed. With regard to the first, the lawyers have spoken with no uncertain voice, and it would probably be conceded by almost every one that our ad- versaries' position was untenable. The second is a more debatable question, and there may still be some who remain unconvinced by the decision of the tribunal. It is rendered extremely difficult by the fact that in habit and mode of life the fur-seal is absolutely unique in the animal world. Moreover, the term fera iiaturo' has never been satisfactorily de- fined ; and the question of the right of property that man may have in animals of this descrip- tion is still more complicated. Blackstone, treating of the quali- fied property which may subsist in an.mals /ercr naturiv, states : — " These are no longer the property of a man than while they continue in his keeping or actual possession ; but if at any time they regain their nat- urrl liberty, his property instantly ceases, unless they havi animum re- verteiuli, which is only to he hiou-n by their usual custom of returning. . . . The law, therefore, extends this pos- session farther than the mere manual occupation ; for my tame hawk thtat is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property, for he hath animum revertendi. So are my pigeons that are flying at a distance from their home, ... all which remain still in my possession, and I still preserve my qualitied property in tliem. But if they stray without my knowledge, and do not return in the usual manner, it is then lawful for any stranger to take them." It would appear then, from this. lG3b36 748 The Fur-Seal and the Award. [Nov. that the animus reverleniH is to be regarded as a sufficient qualifica- tion in wild animals in which man can claim property, and this char- acteristic the fur-seal undoubtedly possesses to a most remarkable degree, so that its case might with justice be considered as closely analogous to that of pigeons in a large dovecote, whose every flight into the country in search of food the owner could not be supposed to accompany or even be cognisant of, and of whose number and iden- tity he would be ignorant. It was contended on the British side that the voluntary return of the seals to the islands does not make them the subject of property, for their intention must be not only to return to the islands, but to return to the control and care of their owner. But there is no ground for such contention, and it might, on the other hand, be argued that the pigeons, once es- tablished, would always return to their dovecote whether they had an owner or not. These argu- ments, it is evident, might be ex- tended to fill volumes without being anywhere nearer finality, and the subject has only been in- troduced here with the object of showing how futile it would be to attempt to arrive at any satisfac- tory solution of the question on these lines. Even were it defi- nitely decided that the fur-seal should be held to be private prop- erty of the United States Govern- ment, its safety could hardly be considered more assured than in times past. Such vast preserves as the North Pacific it would be quite beyond the power of that nation effectually to guard, and she could scarcely look to the other Powers to act as her game- keepers. The profits of the seal- ing schooners are so large that almost any risk would be braved by them. If " pelagic " sealing is to be suppressed at all, it can only be by the concurrence and aid of the nations interested in the survival of the animal ; but such aid could only be afforded on the understanding that the seal is res nullius. The award itself, however, does not concern the zoologist so much as the regulations thereto appended lor the future management of what is conveniently, if inaccurately, termed the " seal-fishery." As to the capability of the arbitrators to adjudicate upon difficult points of international law almost all are agreed. How far they were qualified to draw up a series of regulations on such a difficult and technical subject as the manage- ment of a seal - fishery is quite another question. None of these gentlemen, it may be hazarded, have been at any period of their career either professed seal-hunters or naturalists. It is even possible that, in some instances, their know- ledge of the animal upon whose fate they had to decide may have Ijeen limited to the admiring con- templation of ladies' jackets com- posed of their skins. Without a somewhat larger stock-in-trade of experience it is difficult to see how any conspicuous success could be anticipated. Moreover, the task was rendered still less easy by the fact that the regulations affected two nations only, while the rest of the world were at liberty to act as they pleased. But, considering that their powers were thus limited, it may be said that the arbitrators have not been unsuccessful, and that their regulations ought to be attended with marked benefit to seal-life if properly enforced. Ex- ception might no doubt be taken to many of them, and they are by no means conspicuous for lucidity of expression ; but if universally [Nov. sealing |l) it can pnce and Bsted in ml; but forded on le seal is er, does so much appended of what urately, As to [bitrators t points nost all ley were series of t5ult and manage- is quite of these lazarded, of their -hunters possible sir know- n whose ay have ■ing con- 3ts com- ithout a trade of see how ould be le task ' by the aflected he rest f to act lideriijg imited, itrator.-. il, and i to be lefit to . Ex- taken are by icidity ersally 1893.] The Fur-Seal and the A ward. U9 adopted by all nations, it is pos- sible that they may even suffice for a permanent settlement of the Bering Sea difficulty. It is worthy of remark that no regula- tions limiting, or in any way in- terfering with the island "take" of '^kins occur. Almost all are directed to the partial restriction of " pelagic " sealing, and thus the verdict of this part of the award may be regarded as a more or less complete victory for the United Stales — at all events upon paper. The regulations are embodied in nine articles. They run as follows, and will be commented apon separ- ately in their order : — "Artide I. The Governments of the United States and Great Britain shall forbid their citizens and subjects re- spectively to kill, cajjture, or pursue at any time, and in any manner what- ever, the animals commonly called fur-seals, within a zone of sixty geo- graphical miles around the Prybilov Islands, inclusive of the territorial waters." Passing over the fact that " a zone of sixty miles" is by no means the same thing as a circle with a radius of sixty miles, which appears to be what is meant, it will be noted that, since the agree- ment is only between the two Powers, vessels under the flag of all other nations, by whom the universal three-miles limit is the only one recognised, will be at liberty to take seals as they please within this area. Unless, there- fore, the other Powers be willing to accept the regulations, it is manifest that immediate advan- tage will be taken of this loophole. Canadian and American capital will doubtless cross the Pacific to assist the Japanese schooners, and beyond the fact that the red ensign and the stars and stripes will be conspicuously absent from the protected area, there will prob- ably be no change in "pelagic" sealing, except it be in the shape of increase. The frequent im- possibility of judging with any accuracy of the boundary in a sea so persistently beset with dense fog is likely to entail innumerable difficulties, and disputed seizures will probably become even more frequent than heretofore. The protected area is too large to be efficiently guarded without diffi- culty, and boi.h for this reason and on account of the establish- ment of an inadvisable precedent might well have been substituted by a further extension of the close season. ^^ Article II. The two Governments shall forbid their citizens and subjects respectively to kill, capture, or j)ur- sue, in any manner whatever, during the season extending each year from the Ist May to the 31st July, both inclusive, the fur-seals on the high sea, in that part of the Pacific Ocean, inclusive of the Bering Sea, which is situated to the north of the 35th degree of N. latitude, and eastward of the 180th degree of longitude from Greenwich, till it strikes the water boundary described in Article I. of the Treaty of 18()7 between the United Stivtes and Russia, and following that line up to Bering Straits." This article, in plainer words, decrees a close season throughout the whole extent of American waters occupied by the fur-seal. In principle and practice a close season is much to be preferred to a protected area. It is in accord- ance with what is known to be beneficial in similar cases, and is more easy of enforcement than the latter. We still have to do, of course, with the same inability to compel foreigners to comply with the regulation as in Article I. ; but if this disturbing element be dis- regarded, this article will affect '"■ pelagic " sealing not a little, if it can be strictly carried out. For, rno The Fur-Seal and the Award. [Nov. w since the schooners commence operations tolerably early in the year, and are usually laid up about the beginning of October, the close season comes not only in their best months but also in the middle of their commission. At the time of its commencement the seals are beginning to enter Bering Sea, and the vessels are consequently an enormous distance from their ports, to which they have no alter- native but to return. A second commission on its termination would be impossible, and hence the pelagic catch would end with April. This should have a good effect as regards the protection of pregnant females, which do not land on the Prybiiovs until about the first week in June. The close season might with advantage have commenced earlier within the limits of Bering Sea, but in that case " pelagic " sealing would practi- cally have been put an end to, and this it was evidently not the inten- tion of the tribunal to permit. The " take " of the schooners will now be more or less limited to the "grey pups" or young seals found off the American coasts in the earlier part of the year, which are for the most part males, or, if females, do not carry young. ^^ Article III. During the period of time and in the waters in which the fur-seal fishinc is allowed, only sail- ing-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 such canoes or undecked boats, propelled by paddles, oars, or sails, as are in common use as fishing- boats." This clause was imperatively necessary, unless it was desired to stultify all others, for the general adoption of steamers by the pelagic sealers would at once do away with all hope of enforcing the laws re- lating to boundaries. The foga of Bering Sea and the size of the pro- tected area will already render this a matter of difficulty ; but if the guard-vessels had also to contend with steam-power, even if inferior to their own, their task would become impossible. The phrase " take part in " seems of doubtful interpretation. If it should be held to include the receiving steam- ers that perform the same office for the sealing-schooners as do similar vessels for the North Sea iishing- lleet — namely, taking their catch and affording them supplies — the sealers will be put to considerable and unnecessary inconvenience ; but it is more probable that the prohibition will be restricted to the vessels actually engaged in fishing. Article IV provides that "each sailing-vessel authorised to fish for fur-seals must be ])rovide(l with a special licence issued for that purpose by its Goveriunent, and shall be re- ([uired to carry a distinguishing flag to be prescribed by its Government," and calls for no comment. '^Article V. The masters of the vessels engaged in fur-seal lishing shall enter accurately in their official log-book the date and i)lace of each fur-seal fishing operation, and also the number and sex of tlie seals cap- tured upon each day. These entries shall be conuuunicated by each of the two Governments to the other at the end of each fishing season." Could such a regulation be ac- curately carried out, it would in time definitely settle the many dis- puted questions as to the distribu- tion, migration, and sex -propor- tion of the fur-seal during its ocean existence, and would thus be of the greatest assistance to naturalists, for whom otherwise the complete life - history of the animal must always remain an in- [Nov. he fogs of i the pro- ■eiuler this but if the contend if inferior sk would le phrase doubtful should be ing steain- e office for do similar a iishing- eir catch (plies— the msiderable ivenience ; 9 that the tricted to 1893.] The Fur-Seal and the Avmrd. 751 igaged in hat i-ised to fish ided with a !iat purpose shall be re- usliing fla>^ )verniuent/' ,t. ;ers of the leal fishing heir otHcial ice of eaeli , and also i seals cap- lese entries each of the ;her at the on be ac- would in many dis- ' distribu- x-propor- luring its ould thus stance to otherwise •y of the ain an in- soluble problem. The acquisition of this definite information woi.ld, moreover, materially lessen the difficulties of future legislation. But unfortunately, from the na- ture of things, the data thus ol)- tained could never be accepted as trustworthy. The "pelagic " sealer has as enemies both his own kind and the revenue cruisers of the United States Government, and the pelagic sealer is not immacu- late. Should the excitement -f the chase lead him across the boundary, and bring him to a happy hunting-ground, he could scarcely be expected to record the details of the operation with strict geographic accurrcy. Were a raid upon the isl mds to be suc- cessfully carried out — and he would be a bold man who would affirm that no raided skin has as yet found its way into a sealing- schooner's hold — it is hardly likely that the event would be entered in the ship's log. Nor is it prob- able that a captain, having once discovered a good locality, would be desirous of publishing its where- abouts to the world at large. Even granted the bona fides of the re- corder, th.e fogs of Bering Sea are such as to render his records at best conjectural. As regards place, sex, and date, therefore, the re- turns are nob likely to be unim- peachable. "Article VI. Tlie use of nets, fire- arms, and explosives shall be forbid- den in the fur-seal fishing. This restriction shall not apply to shot- guns when such fishing takes place outside of Bering Sea during the season when it may be lawfully car- ried on." This may be described .s one of the most important of the nine regulations. In former days the seals were almost always taken by the spear, or in rare cases, like the sea-otters, with the bow and arrow. Until quite lately Aleutian and other natives were always em- ployed on the sealing-vessels, but since the general adoption of fire- arms this has not been the case. The weapon most frequently used is not the rifle, but the gun, and 'ew sportsmen will be found to deny that by its use a very con- siderable percentage of the ani- mals fired at must get away more or less severely wounded. With the spear and throwing - stick hardly a single seal escapes if struck. If missed it is clean missed, and gets ofi" unharmed. The Tt^gulation then is both wise and sportsmanlike, but it is very far from being acceptable to the sealer. For to admit of the use of the harpoon the animal must bo closely approached, necessitat- ing a noiselessness and caution that are the special property of the native hunter, and the number thus approachable is of course far below that of those offering possible shots. Only the "sleepers," as they are termed, will thus for the most part be obtained ; the " travellers," or swimming seals, will more rarely be brought to bag. Outside Ber- ing Sea the use of the shot-gun is to be permitted. Why the rifle should not equally, or preferably, be allowed it is not easy to un- derstand, for it can claim in many ways the same freedom from ob- jection as the spear. "Article VII. The two Govern- ments shall take measures to control the fitness of the men authorised to engage iu fur-seal fishing. These men shall have been proved fit to handle with sufficient skill the weap- ons by means of which this fishing may be carried on." This clause has no doubt aflbrded considerable amusement to every 752 The Fur-Heal and the Award. [Nov. ;i 1 , one with any knowledge of the subject, with the exception, pre- Buniably, of the arbitrators. It has met with unsparing ridicule on both sides of the Atlantic, and it is suggested, with some show of probability, by a writer in the ' Field,' that it " has been inserted at the instigation of some well- meaning person who has his mind filled with stories of the cruelties inflicted by the Aleuts intrusted with the slaughter of the animals in the Alaska Company's islands," stories whicli have been conclu- sively shown to lie incorrect. It is unnecessary litre to point out the vagueness, inutility, and general ineptitude of the clause. Wo need have no fear that tiie sealing cap- tains will endeavour to select the worst men, those least " fit to handle with sufficient skill the weapons by means of which this fishing may be carried on." "Article VIII. The regulations con- tained 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 carry- ing on fur-seal fishing in canoes or undecked boats not transported by or used in connection with other vessels, and propelled wholly by paddles, oara, or sails, and manned by not more than five persons each, in the way hitherto practised by the Indians, provided such Indians are not in the employment of other persons, and provicled that, when so hunting in canoes or undecked boats, they shall not hunt fur-seals outside of terri- torial waters under contract for the deliv3ry of the skins to any person. This exemption shall not be construed to affect tlie municijMil law of either country, nor shall it extend to the waters of Bering Sea, or the waters of the Aleutian Passes. Nothing herein contained is intended to inter- fere with the em])loyment of Indians as hunters or otherwise in connection with fur -sealing vessels as hereto- fore." The meaning of this would seem to be that permission to kill seals for their own use at any period of the year, and by any weapon, is extended to all Indians, except such as are unfortunate enough to inhabit the Aleutian Islands : a regulation which seems to bear hardly on the latter, although it must be admitted that the temp- tation to make the most of the ad- vantages that their position affords, and to embark upon sealing as a trade would be probably too strong to be resisted. In past days the toll taken of the herd by the natives during the yearly migra- tions was comparatively insignifi- cant. Since the value n* the skins has become known to them, it is no longer so, and it is per- haps only fair that it should be checked. This article is the list dealing with the question of the protection of the fur-seal ; Article IX. merely providing that the regulations " shall remain in force until they L.ive been, in whole or in part, abolished or modified by common agreement between the Governments of the United States and of Great Britain. The said concurrent regu- lations shall be submitted every five years to a new examination, so as to enable both interested Goverimients to consider whether, in the light of past exi)erience, there is occasion for any modification thereof." Before submitting their case to arbitration it was agreed that the two interested parties " should consider the result of the proceed- ings of the tribunal of arbitration as a full, perfect, and final settle- ment of all the questions referred to the arbitrators," and the same assent may be held to be implied with regard to the concurrent regu- lations. But this assent should be dependent upon Lord Salisbury's previous contention that they should be universally adopted by [Nov. to kill seals iny period of ' weftpon, is ians, except te enough to Islands : a nis to bear although it at the tenip- )8t of the ad- dition affords, sealing as a y too strong ast days the lerd by the early migra- ely insigniti- ilue n* the wn to them, nd it is per- it should be last dealing he protection e IX. merely ^ulations ^e until they or in part, by common Governments and of Great current re<(u- ted every five ation, so as to Governments I the light of is occasion for f." bheir case to eed that the ies " should the proceed- f arbitration final settle- ions referred nd the same ) be implied current regu- mt should be 1 Salisbury's that they adopted by 1893.] Tha Fur-Seal and the Award. r53 all nations. Upon this point their success or failure may be said to hang. Until the adoption is a fait accompli the award is so much waste paper, for it is hardly prob- able that the Unitay be regarded as a verdict given upon the evidence, and the outcome of a careful and lengthy investiga- tion. The most important of these points are thosp connected with the killing of seals at sea. The Americans contended, among other thingb. that the greater number VOL. CLIV — NO. Dccocxxxvn. of those so killed w(Te females, of which most were carrying ' oung ; that of those tired at in the usual manner with buckshot or "loopers" many got away wounded, to perish uselessly and painfully ; that of those killed many sank before they could be picked up hy the boats ; and that the system of " pelagic " sealing thus caused considerable and un irriessary waste of life. All the.'; points may be said to have b( in sufficiently proved. Th" evidence with regard to the f is ovt;rwhelming. The lead- ing Loni'on carriers, those of America, the Canadian Minister of IVt.'.rinb and Fisheries, Rear- Admiral Hotham, the Canadian I'isherirs Report of 188C, and a host of trustworthy witnesses, — all testify to its truth. It is not even denied by those who support sea sealing, who are reduced to the plea that the killing of females is necessary for the preservation of the normal proportion of the sexes ! This was in reality the crucial point. Passing to the question of the waste of life alleged to be inseparably con- nected with sealing on the high seas, it may boldly be asserted that such waste of life, to a greater or less extent, is self- evident. It is unnecessary to take into serious consideration the vague statements of sealers, which were brought forward to support the contention that no seals get away to die of their wounds. One witness, for example, declares that "not more than one in fifty wound- ed seals will die afterwards ; " and another states that as he " always gets badly wounded seals, those that escape are not likely to die." Numerous other affidavits of a like character were advanced in evi- dence, but need not be repeated here. Their only possible use would be to amuse sportsmen. o D mmmmmmm "54 The Fur-Seal and the Award. [Nov. 1893. It cannot be meant seriously to suggest that the seal differs from every other animal shot by man in this respect. So, too, with re- gard to the sinking of seals when shot. Plenty of them, no doubt, do not sink ; and it is quite pos- sible that the number of those that do has been exaggerated. That none do so, no one who has seen a 1 2-foot sealing-gaff believes. It was presumably, then, a con- pideration of these and similar points which led the arbitrators to adopt the last of the alter- natives above mentioned, and to decide on a partial restriction of " pelagic " sealing. That it was a wise and at the same time a fair decision, almost every zoolo- gist or sportsman who has given any consideration to the subject will allow. If it be granted, as it is, that both sea and island killing cannot coexist without certain ex- tinction, then one or other must go to the wall ; and it is evident that the worst method should suffer. A system whereby a large pre- ponderance of females are killed and an unnecessary waste of life takes place is manifestly inferior to one which carries on its opera- tions on the best principles of stock-farming, and has a direct pecuniary interest in keeping up the number of the breeding ani- mals. The arbitrators deserve the thanks of all those interested in the question for having realised, and given expression to, this fact. F. H. H. GUILLEMARD. Printed by William Blackwood and Sons. [Nov. 1893. ;o the subject ) granted, as it I island killing out certain ex- ' other must go :s evident that should suffer, a large pre- iles are killed waste of life ifestly inferior 's on its opera- principles of has a direct in keeping up breeding ani- Drs deserve the interested in iving realised, n to, this fact. irUILLKMARD.