THE 
 
 BEHIiING SEA A^ITpiON, 
 
 Letters to ZEbC tCtmea by its Special 
 Correspondent: 
 
 TOGETHER WITH THE AWARD. 
 
 REPRINTED BY PERMISSION OF THE PROPRIETORS. 
 
 PRICE HALF-A-CROWN. 
 
 LONDON : 
 
 WILLIAM CLOWES & SONS, Limited, 27, FLEET STREET. 
 
 TORONTO : THE CARSWELL CO., Limited. 
 
 VICTORIA, B.C. : T. N. HIBBEN & CO. 
 
 AND 
 
 Wlfl. Cimcs PUBLISHING OFFICE, PRINTING HOUSE SQUARE, LONDON. 
 
 1893. 
 
THE BEHRING SEA ARBITRATION, 
 
THE 
 
 BEHIIING SEA AllBITMTION, 
 
 Letters to I be ZXVXZ^ by its Special 
 Correspondent : 
 
 TOGETHER WITH THE AWARD. 
 
 REPRINTED BV PERMISSION OF THE PROPRIETORS, 
 
 LONDON: 
 
 WILLIAM CLOWES & SONS, Limited, 27, FLEET STREET. 
 
 TORONTO: THE CARSWELL CO., Limited. 
 
 VICTORIA, B.C. : T. N. HIBBEN & CO. 
 
 AND 
 
 arijr rimes PUBLISHING OFFICE. PRINTING HOUSE SQUARE. LONDON. 
 
 1893. 
 
LONDON: 
 PRINTED BY WILLIAM CLOWES AND SONS, Limitep, 
 
 STAMFOUD STKEET AND CIIAIIINO CK088. 
 
CONTENTS. 
 
 List of Arbitrators, Counsel, and Skcretaries ., 
 
 Introduction 
 
 Letter L The Preliminary Motions .. 
 
 tf II, The Case for the United States, as Presented 
 BY Mr. Carter 
 
 „ III. A Chapter in Natural History 
 
 „ IV. A "Twopenny Justice"; and a Villain .. 
 
 „ V. The Attorney-General's Argument 
 
 „ VI. The Attorney-General's Argument, continued . 
 Regulations Proposed by the United States 
 Regulations Proposed by Great Britain .. 
 Letter VII. Regulations 
 
 „ Vin. The Award 
 
 Text of The Award .. .. .. .. .. .. . 
 
 FAQB 
 
 7 
 11 
 15 
 
 23 
 32 
 37 
 43 
 52 
 58 
 59 
 60 
 66 
 74 
 
LIST OF ARBITRATORS, COUNSEL, AND 
 
 SECRETARIES. 
 
 The Tribunal of Arbitration was constituted us foUov/s : — 
 
 H.E. the Baron Alphonse de Courcel, Senator of France, 
 nominated by France : President. 
 
 H.E. the Marquis E. Vjsconti Venosta, Senator of Italy, nomi- 
 nated by Italy. 
 
 H.E. Monsieur Gregers Gram, Minister of State of Sweden 
 and Norway, nominated by Sweden and Norway. 
 
 The Right Hon. Lord Hannen, Lord of Appeal ; and 
 
 The Hon. Sir John Thompson, K.C.M.G., Prime Minister of the 
 Dominion of Canada, nominated by Great Britain. 
 
 The Hon. John M. Harlan, Justice of the Supreme Court of 
 the United States ; and 
 
 The Hon. John T. Morgan, Senator of the United States, 
 nominated by the United States. 
 
 The Agents were — 
 
 The Hon. Charles H. Tupper, Minister of Marine and Fisheries 
 of the Dominion of Canada, on behalf of the Government 
 of Great Britain. 
 
 The Hon. John W. Foster, on behalf of the Government 
 of the United States. 
 
 The British Behring Sea Commissioners were — 
 
 Sir George Baden-Powell, K.C.M.G., M.P. 
 Dr. George Dawson, C.M.G. 
 
8 THE BEHRING SEA ARBITRATION. 
 
 The United States Behring Sea Commissioners were — 1 
 
 Mr. Thomas C. MENDENHA.LL. . 
 
 Mr. C. Hart Merriam. ; 
 
 The British Counsel and Staff were as follows : — 
 
 Sir CHARLES Russell, Q.C, M.P., Her Majesty's Attorney 
 General. 
 
 Sir EiCHARD Webster, Q.C, M.P., late Attorney-General. 
 
 Mr. Christopher Robinson, Q.C. (of the Canadian Bar). 
 
 Mr. M. H. Box, Barrister-at-Law. 
 
 Mr. E. P. Maxwell, of the Foreign OflBce, Assistant Agent. 
 
 Mr. John Anderson, of the Colonial Office. 
 
 Mr. Charles Russell (of the firm of Messrs. Day and Russell), 
 Solicitor to the Agent. 
 
 Mr. Ashley Froude, C.M.G., Secretary to the British Behring 
 Sea Commissioners. 
 
 Mr. J. Pope, Secretary to the Agent. 
 
 Mr. F. T. PiGGOTT, Barrister-at-Law, Secretary to the Attorney- 
 General. 
 
 Mr. J. Macoun, Secretary to Dr. Dawson. 
 
 The United States Counsel and Staff were as follows : — 
 
 The Hon. Edward J. Phelps. 
 
 Mr. John T. Carter. 
 
 The Hon. H. W. Blodgett. 
 
 Mr. F. R. Coudert. , 
 
 Mr. Lansing, Associate Counsel. 
 
 Mr. William Williams, Associate Counsel. 
 
 Major Halford, Executive Officer. 
 
 Mr. Stanley Browne, Secretary to the United States Behring 
 
 Sea Commissioners. 
 Mr. Hubbard Smith. 
 Mr. F. CouDERT, Jun. 
 
 Mr. COUQHLIN. 
 
LIST OF ARBITRATORS, &c. 8 
 
 The Secretaries of the Tribunal were as follows :— 
 Mens. Imbert, Secretary. / 
 
 Mr. A. Bailly-Blanchard, and 
 
 Mr. H. CuNYNGHAME, Barrister-at-Lav ; Co-Secretaries. 
 Mons. le Chevalier Bajnotti, 
 Mons. Henri Feer, 
 
 Mons. le Vicomte de Manneville, and 
 Mons. LiEBERT ; Assistant Secretaries. 
 
 The Private Secretaries to the Arbitrators were as follows : — 
 Mons. le Vicomte de Manneville, to the Baron de Courcel. 
 Mons. le Chevalier Bajnotti, to the Marquis Venosta. 
 Mr. H. CuNYNGHAME, and 
 Mr. H. Hannen, to the Lord Hannen. 
 Mr. Douglas Stewart, to Sir John Thompson. 
 Mr. Lewis, to Mr. Justice Harlan. v '. : 
 
 Mr. F. Jones, to Senator Morgan. 
 
 Messrs. Cherer, Bennet, and Davis, of London, were appointed 
 
 Shorthand-writers to the British Agent ; and 
 Messrs. Chamerot, of Paris, were appointed Printers. 
 
( 11 ) 
 
 INTEOUUCTION. 
 
 In August, 1886, without any previous protest or warning, the 
 Government of the United States seized the British schooners 
 " Carolena," " Onward," and " Thornton " in Behring Sea, which 
 were then engaged in pelagic sealing there. 
 
 The "Carolena" was seized in latitude 65** 60' north, longitude 
 1680 53' west; the" Onward "in latitude 54<> 52' north, longitude 
 167° 56' west, and the " Thornton " in about the same latitude and 
 longitude as the " Carolena." These schooners were, at the time 
 of their respective seizures, at a distance of more than 60 miles 
 fi'oni the nearest land, St. George and Unalaska Islands. After 
 capture they were taken by the United States' revenue-cutter 
 " Corwiu " to Unalaska. They were tried before Judge Dawson, 
 of the United States' District Court of Sitka, and the masters and 
 mates of the vessels were fined in a considerable sum, and, in 
 addition, sentenced to a teni of imprisonment. The vessels, 
 meanwhile, were detained. 
 
 On receipt of intelligence of these seizures. Sir L. S. Sackville 
 West, British Minister at Washington, at once made enquiries ; 
 and by the instructions of Her Majesty's Government, on the 2l8t 
 October, 1886, he entered a formal protest against these seizures of 
 British vessels. 
 
 Mr. Bayard, the Secretary of State, wrote, on the 3rd February, 
 1887, to Sir L. S. Sackville West, announcing the discharge of the 
 vessels, and the release of all persons under arrest, adding that 
 this order was issued " without conclusion of any questions which 
 may be found to be involved in these cases of seizure." 
 
 The men in custody were released under circumstances of great 
 hardship, being turned adrift, without means, in a place many 
 hundreds of miles from their homes. 
 
 On the 12th April, 1887, Mr. Bayard wrote that Regulations 
 
li . THi: BEHRING SEA ARBITRATION. 
 
 and Instructions to Government vessels wore being framed, and 
 that he would, at the earliest possible date, communicate with 
 Sir L. West; but without any such communication being made 
 fresh seizures took place in July and August of 1887, and renewed 
 protest was made by Great Britain. 
 
 No seizure was effected in 1888, though pelagic sealing by 
 British vessels was pursued in that year in Behring Sea. 
 
 In 1889 five British ships were seized in Behring Sea, and three 
 others were peremptorily ordered out of the Sea. 
 
 In 1890 no seizures were made, though pelagic sealing was still 
 carried on in Behring Sea. 
 
 The Government of the Queen remonstrated against the high- 
 handed action of the United States as without warrant of law, 
 and as an unjustifiable invasion of the rights of British subjects. 
 But the correspondence has been carried on by them with an 
 earnest desire to avoid recourse to measures of force in retaliation 
 for those adopted by the United States, and in the confident belief 
 that their rights would be surely and effectively vindicated by 
 pacific methods, and just redress obtained for the wrongs committed. 
 
 As the result of prolonged negotiation and discussion the Treaty 
 of Arbitration, from which this Tribunal derives its authority, was 
 entered into, and on the 18th of April, 1892, the Convention or 
 modus vivendi (intended to cover the period which might elapse 
 before the award of the Arbitrators) was concluded. 
 
 Hence it is that now, and for the seventh time in the course of 
 the present century, the Governments of Great Britain and 
 of the United States appear before an International Tribunal 
 of Arbitration. 
 
 The position which Her Majesty's Government have consistently 
 maintained on the subject of Regulations may be briefly stated as 
 follows : — 
 
 So long as the claim of the United States to impose Eegulations 
 on pelagic sealing is based on the assertion of a legal right, that 
 claim is strenuously opposed, and the right as strenuously denied. 
 
 But when the question is put on the lower and practical plane 
 of common benefit to all the nations interested, on the recognition 
 of the right of the pelagic sealer as well as of that of the island 
 
INTRODUCTION. J8 
 
 sealer, then the British Government will cordially co-operato in 
 giving oflFcct to such measures as may be found necessary for the 
 preservation of the fur-seals. ■ 
 
 On this basis the question assumes the negation of the right 
 which the United States now claim, and admits the necessity for 
 the concurrence of Great Britain. Her Majesty is, and always has 
 been, ready to concur in Eegulations just and equitable in the 
 interests of all concerned ; but she has been unable to join in the 
 consideration of Eegulations based on the principle that the United 
 States have a legal right to the protection which those Regulations 
 are intended to give. 
 
 Should any Regulations be the outcome of this Arbitration, it is 
 confidently expected by Her Majesty's Government that they will 
 be such as not to protect only the United States in the manner 
 which their present contention urges, but to protect an industry in 
 which all the nations of the world have an interest. 
 
 It were useless to make Regulations which should bind only the 
 citizens and subjects of the United States and Great Britain. As 
 in the case of the Jan Mayen fisheries, so in the case of the Pacific 
 fisheries, the subjects of all the nations who now participate in 
 them, or who may be reasonably expected to do so, ought to be 
 equally bound. 
 
 Her Majesty's Government cannot leave this subject without 
 expressing regret and disappointment at the position apparently 
 assumed by the United States on the question of Regulations. It 
 is discussed by the United States as if the exclusion of all the 
 other nations of the world from a share in the fur-seal industry in 
 the western seas were to be the aim and purpose of such Regula- 
 tions. Her Majesty's Government absolutely dissent from this 
 view, and feel confident this Tribunal will not approve it. If the 
 existing rights of nations are to be abridged, they can justly be 
 abridged only in the interests of all, and the United States of 
 America must be prepared to do their part by the adoption of 
 Regulations and improved methods on the islands to preserve the 
 fur-seals. 
 
 Finally, the broad contentions of the respective Governments, 
 stated in popular language, are these : — 
 
 1. The United States claim dominion, and the right to legislate 
 
U THE BEHRING SEA ARBITRATION. 
 
 against foreigners, in two-thirds of that part of the waters of the 
 Pacific Oct an called Behring Sea. 
 
 2. They claim a right of property in wild animals which resort 
 for a certain season of the year only to their territory, derive no 
 sustenance therefrom, and, during the greater part of the year, 
 live many hundreds of miles away from that territory in the 
 ocean. 
 
 3. They claim the right to protect that alleged right of property 
 by search, seizure, and condemnation of the ships of other nationn. 
 
 4. Failing the establishment of the right of property, they claim 
 a right to protect the fur-seals in the ocean, and to apply, in 
 assertion of that right, the like sanctions of search, seizure, and 
 condemnation. 
 
 6. And lastly, failing these assertions of right, they claim that 
 Bules shall be framed in the interests of the United States alone 
 which shall exclude other nations from the pursuit of fur-seals. 
 
 On the other hand, Her Majesty's Government claim — 
 
 1. Freedom of the seas for the benefit of all the world. 
 
 2. That rights of property, and rights in relation to piop»erty, 
 be confined witliin the limits consecrated by practice, and founded 
 on general expediency in the interests of mankind. 
 
 3. That, apart from agreement, no nation has the right to seize 
 the vessels of another nation on the high seas in time of peace for 
 oflfences against property excepting piracy. 
 
 4. That any Regulations to be established should have just and 
 equitable regard to all interests afl^ected. 
 
 (Extract from tlie Preface to the Printed 
 Argument of Her Majesty's Oovernment.) 
 
( 15 ) 
 
 /. — The Preliminary Motions. ' 
 
 As the telegraphic reports of the proceedings in the Behring Sea Arbitration 
 which have hitherto reached the British public have been necessarily brief 
 and wholly out of proportion to the great importance of the subject, I propose 
 to lay before your rejiders a connected account of the material facts and 
 arguments as they are adduced before this august international Tribunal. 
 1 shall endeavour to follow the established usage in regard to judicial 
 proceedings, and to treat the whole question, as far as possible, as a 
 matter suh judice. 
 
 The preliminary motions on both sides occupied the first four days of the 
 Arbitration. It is matter for congratulation that, in the first decisions which 
 were given — in a case involving issues not less important than those which 
 were decided in the Alabama Arbitration, and covering, indeed, an almost 
 greater range of principles — England has not come out second best. Fur the 
 United States, indeed, it was, perhaps, somewhat unfortunate that the 
 position which she had maintained, and which her Counsel had to contend for 
 in these motions, was directed towards the exclusion of evidence or informa- 
 tion which Great Britain considered ought to be, or ought to have been, 
 before the Tribunal. But, in justice to the United States, it must be said 
 that, although the Arbitration Tribunal cannot, from its nature, be bound by 
 too strict rules of procedure, there must be some limit to steps which savour 
 of departure from formal rules. And, therefore, if the United States could 
 have made good her attitude by argument, that attitude would have been 
 amply justified. 
 
 On Tuesday, April 4, after an adjournment of ten days, during which all 
 parties were busily perusing the voluminous printed arguments which had 
 been presented on March 23 by the two Governments, the business sittings 
 of the Tribunal commenced. The Attorney-General immediately rose to 
 present a motion on behalf of Great Britain calling on the United States to 
 furnish either the original or an authentic copy of an important report 
 bearing upon seal life, which had been prepared by Mr. H. W. Elliott» 
 an American expert on the subject. Mr. Elliott is, indeed, something more 
 than an expert ; he is one of the few standing authorities on the habits of the 
 fur-seal, and, as Sir Charles Russell justly said, had, in tbe diplomatic 
 correspondence leading up to the Treaty of Arbitration, been vouched by 
 wiccessive Ministers of the United States as an authority without equal. Tlie 
 
16 THE BEHRING SEA ARBITRATION. 
 
 history of the report in question is interesting. A special Act of Congress 
 was passed in April, 1890, authorising the Secretary of the Treasury to 
 appoint some person, well qualified by experience and education, as a special 
 agent for the purpose of visiting the various trading stations and native 
 settlements on the seal islands, and for the purpose of collecting and report- 
 ing to him all possible authentic information upon the present condition of 
 the seal fisheries of Alaska. Mr. H. W. Elliott was the gentleman chosen, 
 for the obvious reason that he was one of the most competent persons, i*" not 
 the most competent, to whom the task could be intrusted. It was no strain- 
 ing of language, therefore, to call the document a " statutory report." But it 
 did not form part of the United States Case, and, strangely enough, was not 
 referred to in it. But the British Commissioners had early got wind of it. 
 It had appeared in the columns of an American paper, the Cleveland Leader 
 and Morning Herald of May 4, 1891. A document of such interest, signed 
 "H. W. Elliott," naturally excited considerable interest in the Commis- 
 sioners' minds ; the perusal of the newspaper version of it seemed to have 
 invested the document with even greater interest, and the strange omission of 
 any reference to it in the American Case raised the interest in it to the 
 highest point. An application was thereupon made to the Agent of the 
 United States for its production. The answer was a refusal, the Agent 
 declining to produce the report, on the ground that the Treaty did not 
 warrant the application for its production. The right to its production 
 seemed too clear for argument; and it excited no little surprise when it was 
 understood that the matter was to be argued, and the position assumed by 
 the United States was to be defended. 
 
 The ground taken was a purely technical one. Article TV. of the Treaty 
 provides as follows : — ;" ■ ' v- 
 
 "If in the Case submitted to the Arbitrators either party shall have 
 specified or alluded to any report or document in its own exclusive possession, 
 without annexing a copy, such party shall be bound, if the other party 
 thinks proper to apply for it, to furnish that party with a copy thereof ; and 
 either party may call upon the other, through the Arbitrators, to ])roduce 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." 
 
 To put the matter concisely, the American argument resolved itself into 
 this. The first part of the above article did not apply to the report in 
 question. The case mentioned there was that where one party had specified 
 or alluded to a report " in its own exclusive possession " the other party 
 might then apply for a copy. Obviously these words had nothing to do with 
 the case. The document in question had, indeed, been very distinctly 
 specified and alluded to by Great Britain, but it was not in Great Britain's 
 " exclusive possession." Quod est demonstrandum. So far as the report was 
 concerned, so far as the newspaper extract was concerned, Great Britain could 
 
THE PRELIMINARY MOTIONS. 17 
 
 produce that as much and as often as she pleased. And if the first part of 
 the article of the Treaty did not apply, no more did the second. What 
 document was it tbat had been "adduced as evidence"? No other than the 
 Cleveland Leader and Morning Herald ; certainly not Mr. Elliott's report ; 
 and therefore it was still further proved to domonstration that the position 
 taken up by the Agent of the United States was perfectly sound, and that the 
 Tribunal could make no order. These points Mr. Pheli^s set forth in graceful 
 language and with much insistence. More especially did he dwell on the fact 
 that the case was closed and that the application was too late ; but the i)oint 
 he wished so specially to bring to the notice of the Tribunal was that, if it 
 were produced from the exclusive keeping of the United States at this time 
 of day, the United States would have no opportunity of answering it I 
 
 But it meant nothing after all. So astute a diplomatist as Mr. Phelps could 
 not fail to see that the position was a false one. lie spun a web of words and 
 argument, quite skilfully it must be confessed, to cover the ♦' backing down " ; 
 but he indicated in his first sentence that the States did not intend to insist 
 any longer. There was just one touch of unconscious humour about the 
 argumei. t. In insisting no longer on their original position, the States would 
 now insist on another ; if the report is admitted as evidence, it must be as 
 evidence for both parties. Senator Morgan wanted to know whether it was 
 possible for Counsel to do this sort of thing, and at this sort of time make 
 little arrangements among themselves for the admission of evidence into the 
 cause. The same idea had occurred to Mr. Phelps, but . . . . ; in short the 
 United States would produce the document. Mr. Carter then once more 
 attempted to make it perfectly clear that America was right after all. Surely 
 there was one curious point, he remarked, about this report. Everybody 
 knows what happens to reports when they are made to Governments. They 
 are published; that is what they are written for; yet this one was not 
 published. ,How was that ? There must have been some r^^ason for it. A 
 scientific gentleman selected for his knowledge and attainments, selected 
 under a special Act of the Legislature, selected to ascertain all sorts of truths, 
 makes his report to the Government who selected him, and that Government 
 does not publish it. There must have been something wrong somewhere. 
 Mr. Carter was not going to inform the Tribuna' why this thing, this " com- 
 mon p'-actice of nations'' (a phrase we shall often hear before the caae is 
 over), was not followed in this particular case. He was not at liberty to say; 
 it was doubtful even if he kijew. But he might suggest, merely suggest, a 
 possible reason or two. Congress (which is a body conversant with the 
 manners and customs of the seal) may have conceived the report to be wholly 
 erroneous, or unworthy of credit; or it may have been inspired by bad 
 motives ; or it may have been inspired by motives hostile to the interests of 
 the United States and to their management of the Pribylof Islands ; or . . . 
 Advocates who will drop their guard must expect to suffer the consequences 
 
 B 
 
18 THE BEHIUNG SEA ARBITRATION. 
 
 of bad fencMng. The riposte came swiftly and with unerring effect. Said the 
 Attorney-General in his reply, — My learned friend suggests hyiwtheses to 
 account for the non-publication of the report ; let me suggest another, and 
 perhaps a more natural reah,on — that it was not deemed to be favourable to 
 the view for which it was originally designed. Then, after some dispute as 
 to whether the reixjrt was produced " by order " or " by consent," the Tribunal 
 *' directed " that the document should be regarded as before the Tribunal, to 
 be made such use of as the Tribunal should see fit. And so the first round 
 ended in favour of Great Britain. - ., . 
 
 The Tribunal next proceeded to the consideration of the motion of the 
 United States to dismiss from the case, and to return to her Majesty's Agent, 
 a certain "Supplementary Keport" of the British Commissioners appointed to 
 inquire into seal life in Behring Sea, which had been presented to the Arbitra- 
 tors on March 25. The ground taken was that it was presented at a time 
 and in a manner not allowed by the Treaty ; that it was, in fact, out of time. 
 Much misconception as to the result of the decision of the Tribunal on this 
 motion seems to have prevailed in England, it being interpreted adversely to 
 Great Britain. One of the features of the settlement of the dispute as to the 
 rival claims of the island and of the pelagic sealers, arranged between Sir Julian 
 Pauncefote and Mr. Blaine, was that a joint commission of experts should be 
 appointed, two from each side, to meet and proceed to the Behring Sea, there 
 to gather information from all sources as to the doings of the fur-seal, to 
 make their own observations, and to report. We must now turn to the 
 Treaty of Arbitration to see what use was to be made of the labours of these 
 four experts. The machinery of the Arbitration was determined by Articles 
 III., IV., and V. Then came Article VI., which contains a statement of the 
 questions which the Arbitrators were to decide. *' In deciding the matters 
 submitted to the Arbitrators it is agreed that the following five points shall 
 be submitted tQ them in order that their award shall embrace a distinct 
 
 decision upon each of the said five points ." So that from the preamble 
 
 of this section it was clear that the five points did not cover the whole 
 ground of the Arbitration, but, for an object which is perfectly clear, these 
 five points of dispute were to be distinctly decided before any other matters 
 were taken up. The five points were grouped into two — the first raised the 
 historic question, the second the protection and property question. The due 
 sequence of every stage of the proceedings was, in fact, arranged with logical 
 precision. Nor does it at all appear that this precision had been disturbed by 
 Article VII. It runs thus : — 
 
 " If the determination of the foregoing questions as to the exclusive juris- 
 diction of the United States shall leave the subject in such position that the 
 concurrence of Great Britain is necessary to the establishment of regulations 
 for the proper protection of the fur-seal in or habitually resorting to the 
 Behring Sea, the Arbitrators shall then determine what concurrent regulations 
 
THE PRELIMINARY MOTIONS. 19 
 
 outsido tho junadictinnal limits nf tho rospcctivo Governments are necessary, 
 and over what waters such regulations should extend." 
 
 Everything still seems plain. The other matter submitted to the Arbitrators 
 has now been referred to — it is the question of what regulations are to bo 
 made. In the preamble to the Treaty jurisdictional rights were mentioned as 
 lieing to be determined ; but the preservation of the fur-seal was also referred 
 to, and is, indeed, the chief object to be attained — only, as to the method of 
 preserving the animal, tho United States claimed to undertake it by herself. 
 To this the pelagic sealer raised strong objections, and therefore the right of 
 the States to undertake it had to be put directly in isstie ; and it was in fact 
 put in issue by the two groups of questions propounded to the Arbitrators in 
 Article V. Had the United States any such right derived from history? 
 Had the United States any such right derived from the law of property ? 
 
 Still we may pursue the even tonour of our reading:— If the determina- 
 tion of these questions leaves the subject in such position that the 
 
 concurrence of Great Britain is necessary, . . . ^ . id est. If the States have 
 no exclusive right to regulate sealing and sealers when the seals arc found 
 outside the ordinary three-mile limit, then the concurrence of Great Britain 
 must be necessary before she can allow her sailors to be interfered with. So 
 it is clear that " if" something is settled the Arbitrators shall "then "determine 
 what regulations are necessary. ' 
 
 But the question of regulations is obviously very different in its nature 
 from the questions of history and of property already alluded to. Documents 
 drawn from the archives of the two nations would detennine the one; 
 principles drawn from the law books apjilying to the right of property in, or of 
 protection of, migratory wild animals when they are on the high seas, would 
 determine the other. No special knowledge or information was necessary. 
 But with the question of regulations, which the Arbitrators were " then to 
 determine," it was far otherwise. They, in common with the rest of the 
 world, know nothing about the habits of the seal — knowledge which is 
 obviously essential to the settlem-nt of regulations for the sealing industry. 
 It is not ourprising, therefore, to nnd that this seventh article continues 
 thus : — " And to aid them in that determination, the report of a joint com- 
 mission, to be appointed by the respective Governments, shall be laid before 
 them, with such other evidence as either Government may submit." Here, 
 then, as Great Britain contended, was the simple machinery by the aid of 
 which the Arbitrators were to enter upon the second part of their labours. 
 All questions of right, of national history, of the contents of documents 
 written in the early years of the century ; all questions of common law, of 
 international law, being put on one side, and the questions depending upon 
 them being answered in a certain way, the Tribunal were to undertake an 
 inquiry of a very different nature ; of a nature so diflDrent, indeed, that it was 
 not surprising that the formal machinery devised for the first part of the case, 
 
 B 2 
 
20 THE BEHKING SEA ARBITRATION. 
 
 which had indeed beeu baseil upon the legal procedure of an action, should bo 
 considered inapplicable to it ; and that, questions of right being no longer 
 involved, the simplest method for gathering reliable information should bo 
 resorted to, and all formalities and tecimical questions of time and place 
 should be discarded. 
 
 The Commissioners were appointed ; they met, and explored the utmost 
 recesses of the Aleutian Islands and the Behring Sea. But the joint rei)ort 
 was a very short affair. The Commissioners jointly reported that, having 
 utilized all sources of information available, they were " in thorough agree- 
 ment that, for industrial as well as for other obvious reasons, it is incumbent 
 upon all nations, and particularly upon those having direct commercial 
 interests in fur-seals, to provide for their proper protection and preservation." 
 They further stated that they had found that, since the Alaska purchase, a 
 marked diminution in the number of seah on, and habitually resorting to, 
 the Pribylof Islands had taken place ; that it had been cumulative in effect, 
 and that it is the result of excessive killing by man. But, on certain funda- 
 mental propositions, a considerable difference of opinion existed, and it was 
 therefore thought necessary to state the conclusions arrived at by the two 
 sets of Commissioners respectively in separate reports. 
 
 But quite early in the proceedings a grave difference of opinion arose 
 between the two Governments as to the object of these reports and the 
 purposes to which they could be put. To state the matter very concisely, 
 the views taken by England and the United States were as follows: — 
 England considered that these reports, called into being by the Treaty for a 
 special purpose, were only to be used as evidence when the contingency for 
 their use should arise — that is to say, when the Arbitrators should proceed to 
 consider the subject of regulations : that they were immaterial and irrelevant 
 to the determination of the questions of right, the simple facts necessary to 
 determine the question of property in the seals as animals/erw naturm resort- 
 ing to the American islands being already known. And, this view being 
 acted upon, the Case for Great Britain was prepared without reference to the 
 report of the British Commissioners, or to any of the interesting facts relating 
 to seal life which it contained. The United States, however, took a diamet- 
 rically opposite view. The American advisers considered that all the hundred 
 and one details of the habits of the animals had a material bearing on the 
 question of property as well as on the question of regulations, and the report 
 of the United States Commissioners was included in their Case, and was 
 frequently referred to in it. A diplomatic corresiX)ndence followed, and, after 
 some consideration. Lord Rosebery consented to forward to the United States 
 the British Commissioners' report, and consented further that it should bo 
 treated as part of the British Case. lie maintained, however, the position 
 which had been taken up by the British Government as the only possible 
 interpretation of the Treaty of Arbitration. The United States thereupon 
 
THE PRELIMINARY MOTIONS. 91 
 
 accepted the report ns part of the British Case; but the Government still 
 insisted on its former position, and reserved the right of taking any further 
 steps by way of objection that it should deem proi^er. It denied altogether 
 the British position that the two stages of the Arbitration were to be kept 
 quite distinct, and maintained that the machinery for all parts of the case, 
 whether involving questions of right or questions of regulations, was provided 
 by the third, fourth, and fifth Articles of the Treaty, that the two questions 
 could not be separated so clearly as was contended by Great Britain, that 
 there would be otherwise no possibility of replying to a report held back as it 
 had been the intention of Great Britain to hold back this report, and that 
 any other view of the matter would involve two arbitrations, two hearings, 
 two decisions, two awards. 
 
 But the British Commissioners had been indefatigable, and were still 
 drawing conclusions from the facts they had obtained, were still trying to 
 fathom the mysteries of the seals' existence. On th'j Slst of January, 1893, 
 they sent a supplementary report to the Secretary of State for Foreign 
 Affairs. This in due course was printed, and in due course — namely, on the 
 25th of March — it was sent to the other side, and presented to the Arbitration. 
 And then General Foster, the Agent of the United States, sent it back again 
 "imread," with an intimation that he would move to have all the copies 
 which had been distributed returned to the British Agent. It seemed a pity 
 that so interesting a document, a report which was the result of so much 
 labour and thought, and which, if it had bi^en read, instead of remaining 
 "unread," by the learned Arbitrators and American Counsel might have 
 thrown so much light on many of the dark passages of the life and doings of 
 the pinnepedia, should not be made available "to aid the Arbitrators in 
 determining" what concurrent regulations were necessary for the protection 
 and preservation of the fur-seal. That was all that the British Agent desired : 
 merely to aid the Arbitrators ; but the Agent of the United States desired 
 otherwise, and that was how the battle came to be fought. 
 
 Underlying the motion there was obviously the question whether or not 
 the questions of right and of regulations were to be kept distinct, as England 
 contended ; or to be treated concurrently, as the United States contended. The 
 Attorney-General argued that the questions were so distinct, the machinery for 
 obtaining evidence for determining the questions of right so severed from that 
 of obtaining inl'ormation in aid of the settlement of regulations, that, if it were 
 thought advisable, any information of sufficient value which came to hand, even 
 at the last moment, might be submitted to, and ought to be received by, the Tri- 
 bunal. And when we consider what the question of regulations means, that if 
 they are found to be unsatisfactory after the Arbitrators have ceased from trou- 
 bling about them, any amendment will be found impracticable unless the two 
 parties can agree to it, it is not to be wondered at that the Attorney-General 
 should not shrink from taking up a position which is apparently impregnable. 
 
S2 THE BEHRING SEA ARBITRATION. 
 
 The TJnited States argument resolved itself into this. The case was closed ; 
 the Commissioners were fundi officio ; there would be no means of replying 
 to, or testing the accuracy of, the report ; and if the British contention were 
 sound it would involve "two arbitrations, two hearings, two discussions, two 
 awards." The absence of opportunity for reply is a strong point, but the 
 United States argument is vitiated by the fact that their view of the question 
 of regulations is tinctured by their view on the question of right. For Great 
 Britain, when the question of regulations is reached, the conflict of right and 
 wrong is over, and she wishes only for the best and most equitable regula- 
 tions which can be devised for all parties and all nations concerned. And to 
 that end, whether it be viewed as an official communication from the Com- 
 missioners, or as statements and opinions of specially competent men, sho 
 I)rosent(d this supplementary report to aid the Arbitrators in determining the 
 question of regulations, and to be taken by them for what they mipht think \i 
 to bo worth. 
 
 The (Question took three days and a half to argue. The Arbitrators held a 
 long secret sitting, and on April 12 the President read the following order: — 
 
 *' It is ordered that the document entitled a Supplementary Report of the 
 British Behring Sea Commissioners, dated January 31, 1893, and signed by 
 George Baden-Powell and George M. Dawson, and delivered to the individual 
 Arbitrators by the Agent of her Britannic Majesty on the 25th day of March, 
 18'J3, and which contains a criticism of, or argument upon, the evidence in 
 the dociuiieiits and papers previously delivered to the Arbitrators, be not now 
 received, with liberty, however, to Counsel to adopt such document, dated 
 January 31, 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 31, 1893, is reserved 
 for furtlier consideration, without prejudice to the right of Counsel, on either 
 side, to discuss that question, or the contents of the appendices, in the course 
 of the oral arguments." 
 
 IIow such a decision can have been construed in England as a palpable hit 
 for the United States it is difficult to conceive. It was not more, nor any 
 less, than the course which the Attorney -General had intimated in the coursQ 
 of his argument that he would be perfectly willing to adopt. 
 
 The United States had yet another motion to make — to strike out certain 
 portions of the British Counter-Case, as not being strictly in reply to the United 
 States Case. On this motion the Tribunal made the following order : — 
 
 " It is ordered that the argument and consideration of the motion made by 
 the United States of America on April 4, 1893, to strike out certain parts of 
 the Counter-Case and proofs of Great Britain, be postponed until such time as 
 may bo hereafter indicated by the Tribunal." 
 
 Thus the ground was cleared for action, and in the clearing Crrcat Britain 
 had the advantage. 
 
( 23 ) 
 
 //, — The Case for the United States y as presented by 
 
 Mr. Carter. 
 
 It would be manifestly impossible to present your readers with anything like 
 a complete summary of Mr. Carter's long speech ; but as it has covered the 
 whole ground, and has presented the case for the United States in its final 
 form, I shall endeavour, with such succinctness as may be possible, to put it 
 in the short compass of a readable article. With its many inevitable omis- 
 sions this will not, I fear, do full justice to the oration, but it will serve at 
 least to throw some light on a case which has hitherto been presented to the 
 world in a somewhat kaleidoscopic fashion. 
 
 The early days of the argument were naturally devoted to an examination 
 of the historical question, and not the least curious point about the conduct 
 of the case has been the gradual minimizing of the imiwrtance of the question 
 of derivative descent from Eussia. It was perfectly true, Mr. Carter said, 
 that much time and energy had been devoted to the unravelling of this 
 question. Mr. Blaine had written two, if not more, lengthy despatches on the 
 point, in which an accurate position had undoubtedly been taken up. But it 
 was quite an unnecessary labour, and was only undertaken by Mr. Blaine 
 because Lord Salisbury had raised the question so emphatically, and Mr. 
 Blaine was thereupon constrained to answer and demonstrate the inaccuracy 
 of his Lordship's position. 
 
 But it was quite unnecessary and, strictly speaking, irrelevant. Mr. Carter 
 contended that the United States had from the first asserted the claim of 
 property which she asserted now, and Mr. Blaine himself — even in the dis- 
 traction of the historical argument which Lord Salisbury had forced upon him 
 — never lost sight of the property claim, and continually reverted to it and 
 asserted it. " The disposition of Lord Salisbury seemed to be to draw away 
 the discussion from the substantial ground taken by Mr. Blaine, that of 
 inherent essential right, and to engage him in a discussion in reference to the 
 validity of Russian pretensions in Behring Sea." 
 
 It was an unwise step of Mr. Blaine, Mr. Carter thought, to allow himself to 
 to be drawn away from the impregnable attitude upon which he stood, " im- 
 pregnable, as it seems to me, and which Lord Salisbury had undertaken, as I 
 think, to avoid ; and to pass over to that region of controversy to which Lord 
 
24 THE BEHRING SEA ARBITRATION. 
 
 Salisbury had invited him." " That waa an imprudent step. The wiser course 
 would have been to say to Lord Salisbury, * I do not think you have answered 
 the positions which I took, and the positions which I have taken are the main 
 grounds upon which the United States bases its contention, and I shall 
 expect a further and more satisfactory answer to them, if it can be made. 
 But he did accept the invitation of Lord Salisbury, and he took up this 
 question of Russian exercise of authority in Behring Sea, and he wrote a long 
 letter in relation to it." Thus Mr. Carter explained Mr. Blaine's attitude ; 
 but it need not longer detain us, for we have now a full exposition of the 
 American position as it relates to the Eussian position. 
 
 The contention of the United States, as far as it depends on the condition 
 of affairs during the time when the Russian Tsar was Consul of Behring Sea, 
 is, we are told, to be interpreted thus. It does not '* rest upon any assertion 
 that Russia had an original right to an exclusive enjoyment of the fur-seal 
 fishery in Behring Sea. It was not an assertion of that kind — it was an 
 assertion that, in point of fact, she had enjoyed that right without interruption 
 and without interference by other 6 ovemments during the whole period of 
 her occupation, and that the United States, since they had acquired the 
 territory of Alaska from Russia, had enjoyed, as a matter of fact, without 
 interruption from other nations, the exclusive right of seal fishery in Behring 
 Sea." The two questions were therefore put forward as matters of fact — the 
 fact that Russia had the exclusive possession of these fisheries, and the fact that 
 the United States had the exclusive possession of these fisheries ; " and it was 
 no answer to the argument to say that the Governments of several countries, 
 while acquiescing in this exclusive possession in fact, had in language denied 
 the validity of pretensions which had been made." 
 
 But the interest in the question — so far, indeed, we may agree with Mr. 
 Carter— centres not in the historical question, involving as it does an exami- 
 nation of antiquated Russian Ukases, difiQcult to translate, and a critical study 
 of the French originals of Treaties signed in 1824 and 1825, but in the claim 
 of property and protection in the seals, which heretofore, in common with 
 the rest of mankind outside the United States, we had been prone to consider 
 wild animals roaming at lai^e in the high sea. 
 
 And this question is very properly introduced by a paragraph of Mr. 
 Phelps's, which has indeed become memorable in the annals of this remark- 
 able controversy. It is not too much to say that it is the keynote of the 
 American argument. He brushes aside all the superfluous questions which 
 Lord Salisbury, as Mr. Carter says so positively, had introduced into the dis- 
 cussion, and lays the foundation for the argument on property and protection, 
 to which Mr. Carter has devoted himself for so long a space. 
 
 "Much learning has been expended upon the discussion of the abstract 
 question of the right of mare clausum. I do not conceive it to be applicable 
 to the present case. Here is a valuable fishery, and a large and, if properly 
 
THE CASE FOR THE UNITED STATES. 95 
 
 manage*^, permanent industry, the property of tho 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 neighbouring sea, during the period of gestation, when the 
 common dictates of humanity ought to protect them, were there no interest 
 at a.l involved. And it is suggested that we are prevented from defending 
 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 that cannot be allowed co be done on the open sea with impunity, and 
 against which every sea is mare clausum; end the right of self-defence as to 
 person and property prevails there as fully as elsewhere. If the fish upon 
 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 such a case ? 
 Yet that process would be no more destructive, inhuman, and wanton than 
 this. If precedents are wanting for a defence so necessary and so proper, it is 
 because precedents for such a course of conduct are likewise unknown. The 
 best international law has arisen from precedents that have been established 
 when the just occasion for them arose, undeterred by the discussion of abstract 
 and inadequate rules." 
 
 Herein lies the germ of the whole American argument. It sometimes happens 
 that a long, complicated, and elaborate argument can be shorn of its super- 
 fluities and redundancies, and reduced to a comprehensible compass. Seldom, 
 however, has a text been laid down so concisely before, and the superfluities 
 and redundancies added, superimposed, afterwards. This statement of Mr. 
 Phelps's is the irreducible minimum of the United States argument, but the 
 elaboration has come afterwards; the natural order of arguing has been 
 inverted. 
 
 And now it is time to trace in outline the superimposed mass of argument 
 of which Mr. Carter has unburdened himself. 
 
 The first question to which the argument was naturally addressed was, 
 "What law is to govern the decision?" — a simple question enough; and 
 the outline of the answer was as follows. The determination must be 
 grounded on principles of right, for the arbitrament of force can only be 
 replaced by the arbitrament of right. Tho decision of the Tribunal must be 
 a just conclusion of law. This is a juridical proceeding ; the parties have 
 chosen jurists learned in the law as their judges ; they intended that the law 
 should determine their rival claims. So far, all goes well. The Government 
 of the Queen had, in written argument, itself submitted the same answer 
 to this question — the law. But from this point the American argument 
 digresses into lines which were familiar once, but which (though we refrain 
 from criticism at i^resent, in accordance with the tradition of dealing with 
 
26 THE BEHRING SEA ARBITRATION. 
 
 matters sub Judice) we thought had passed into the limho round the moon. 
 The law governing the decision must be a moral rule— a rule dictated bj the 
 moral sense. It must be adjudged on principles which both nations and all 
 the Arbitrators alike acknowledge ; in other words, those dictated by a general 
 standard of justice upon which civilized nations are agreed. For law to which 
 there is such an agreement is international law. 
 
 But there is another law involved in international law ; it is for the most 
 part derived from the law of nature, " a term very common with writers on 
 international law." " This law of nature is sometimes designated by different 
 terms, sometimes as a natural law, sometimes as natural justice, sometimes 
 as the dictates of right reason ; but by whatever name it is described, the 
 same thing is always intended. It means, in short, those rules and principles 
 of right and wrong which are implanted in every human breast, and which 
 men recognize in their intercourse with each other, because they are men 
 having a moral nature, and brought into conditions with each other which 
 compel the application of moral rules." And then followed quotations from 
 Sir James Mackintosh, Mr. Justice Blackstone, and Sir Robert Phillimore, 
 and many others who have in times past and present discoursed on Lord 
 Bacon's text, that " there are in nature certain fountains of justice whence 
 all civil laws are derived, but as streams and like as waters do take their 
 tinctures and tastes from the soil through which they run, so do civil laws 
 vary according to the regions and Governments where they are planted, 
 though they proceed from the same fountain." 
 
 In this fashion Mr. Carter proceeded to lay the foundations of his argument 
 and it was, perhaps, not surprising that he should cap this branch of it by a 
 reference to Justice Story's vague dictum in the case of " La Jeune Eugenie " : 
 
 " But 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 the 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." 
 
 Passing to the subject of property, Mr. Carter propounded two questions. 
 First, whether the United States have a property interest in the seals them- 
 selves, not only while they are upon the breeding islands, but also while they 
 are on the high seas. Secondly, whether, if they have not a clear property 
 in the seals themselves, they have such a property interest m the industry 
 long established and prosecuted on the Pribylof Islands of maintaining and 
 propagating the herd, and appropriating the increase to themselves for the 
 purposes of commerce and profit, as entitles them to extend their protection 
 to such herd against capture while it is on the high seas, and to require and 
 receive from other nations an acquiescence in reasonable regulations designed 
 to afford such protection. 
 
THE CASE FOR THE UNITED STATES. if 
 
 In finding the answers to these questions the threads of moral, natural, and 
 international law were taken up and ravelled in dexterous fashion. 
 
 " It is to be observed that, although the established doctrine of municipal 
 law may be properly invoked as affording light and information upon tho 
 subject, the question is not to be determined by those doctrines. Questions 
 respecting property in lands, or movable things which have a fixed situs within 
 the territorial limits of a nation, are, indeed, to be determined exclusively by 
 the municipal law of that nation ; but the numicipal law cannot determine 
 whether movable things like animals are, while they are on the high seas, the 
 property of one nation against all others. If, indeed, it is determined that 
 such animals have a situs upon the land, notwithstanding their visits to and 
 migration in the sea, it may then be left to the Power wliich has dominion over 
 such land to detennine whether such animals are property ; but the question 
 whether they have this situs must be resolved by international law." 
 
 Blackstone and Kent were next cited as authorities for the following 
 proposition : — 
 
 " That the essential facts which render animals commonly designated as 
 wild the subjects of property not only while in the actual custody of their 
 masters, but also when temporarily absent therefrom, are that the care and 
 industry of man, acting upon a natural disposition of the animals to 
 return to a place of wonted resort, secure their voluntary and habitual 
 return to his custody and power, so as to enable him to deal with them in 
 a similar manner, and to obtain from them similar benefits, as in the case of 
 domestic animals. They are thus for all the purposes of property assimilated 
 to domestic animals." 
 
 And the Alaskan fur-seals are typical examples of the application of this 
 doctrine ; for by the imperious and unchangeable instincts of their nature 
 they are impelled to return from their wanderings to the same place ; they 
 are defenceless against man, and in returning to the same place voluntarily 
 subject themselves to his power, and enable him to treat them in the same 
 way and to obtain from them the same benefits as may be had in the case of 
 domestic animals. And therefore the proposition independently laid down 
 above must apply. Therefore these fur-seals thus become the subjects of 
 ordinary husbandry as much as sheep or any other cattle. All that is needed 
 to secure this return is the exercise of care and industry on the part of tho 
 human owner of the place of resort. He must abstain from killing or 
 repelling them when they seek to return to it, and must invite and cherish 
 such return. He must defend them against all enemies by land or sea. And 
 in making his selections for slaughter he must disturb them as little as 
 possible and take males only. All these conditions are jierfectly supplied by 
 the United States, and their title is thus fully substantiated. It is indeed 
 altogether an idyllic picture, both in fact and in law ; and, if it were not for 
 an undue disregard of the laws oi itropler and /;os<, it might be quite sufficient 
 
28 THE BEHRING SEA ARBITRATION. 
 
 to establish the ease of the United States. But those laws are inexorable, 
 and will not be tampered with. 
 
 But there was another string to the American bow. If authority and 
 principle thus clearly defined their rights and made their case so strong, how 
 much stronger would it be if the grounds and reasons on which the insti- 
 tution of property stands also pointed clearly in the same direction ! " If we 
 knew what these reasons were, we might no longer entertain even a doubt 
 upon the question whether the Alaskan seals are the subjects of property." 
 The attention of the Tribunal was therefore invited to a somewhat careful 
 inquiry into the original causes of the institution of property and the prin- 
 ciples upon which it stands ; "and the Counsel for the United States will be 
 greatly disappointed if the result of the investigation should fail to satisfy 
 the Tribunal that there is a fundamental principle underlying that institution 
 which is decisive of the main question now under discussion. That principle 
 they conceive to be this — that, whenever any useful wild animals so far 
 submit themselves to the control of particular men as to enable them 
 exclusively to cultivate such animals and obtain the annual increase for the 
 supply of human wants, and at the same time to preserve the stock, they 
 have a property in them ; or, in other words, whatever may be justly regarded 
 as the product of human art, industry, and self-denial must be assigned to 
 those who make these exertions as their merited reward." Space is not avail- 
 able to follow Mr. Carter's excursions into the realms of social economics. 
 Suffice it to say that the conclusion of the whole matter was this — that it was 
 a fundamental law that everything — that is, everything susceptible of owner- 
 ship — must have an owner, and that the institution of property embraces all 
 tangible things, subject only to these three excepting conditions. First, they 
 must have that utility which makes them objects of human desire ; secondly, 
 the supply must be limited ; thirdly, they must be susceptible of exclusive 
 appropriation. " This conclusion is a deduction of moral right drawn from 
 the facts of man's nature and the environment in which he is placed*; in other 
 words, it is a conclnsion of the law of nature ; but this, as has been heretofore 
 shown, is international law, except as far as the latter may appear, from the 
 actual practice and usage of nations, to have departed from it, or to speak 
 more properly, not to have risen to it." 
 
 Need it be said that these conditions are found to fit the case of the seals ; 
 and that the case of the seals is found exactly to fit into the prescribed 
 conditions? 
 
 Mr. Carter then dealt with certain other propositions, the correct epithet 
 for which — whether " new " or " old " — it is somewhat difficult to determine. 
 Property is not absolute ; it is given to men by the benign Giver of all good, 
 coupled with a trust; man the owner has but the usufruct; but, whether 
 this usufruct alone, or the corpus of the property, is included in the trust, a 
 beneficial interest in which may be claimed by man the non-owner, is not 
 
THE CASE FOR THE UNITED STATES. Bt 
 
 exactly clear. But trust there is, and use alone is granted ; abuse, waste, and, 
 Hl)ove all, non-use are strictly prohibited; nay, more, may be punished. 
 Nay, more, if such things happen, man the non-owner, the cestui qite trust, 
 may enter [sed quaere by force of arms] upon his own again. And as it is 
 with men so it is with the nations. If it were not so, how could we say that, 
 if one nation in all the earth held all nature's supplies of, say, that gift of 
 Divine Providence — india-rubber — and refused to cultivate it, and let its 
 plantations go to rack and ruin, the other nations could come in and possess 
 the land, and make it flow again with the dew of the india-rubber plant, and 
 compel the refractory nation to do its cultivation quickly and while there is 
 yet time, lest, if the markets of the world were deprived of their commodity 
 and necessity, worse things happen to her — such things as war, the condign 
 chastisement, or complete absorption or annihilation, or the establishment of 
 a protectorate, or of consular jurisdiction, that blessing in disguise, or any of 
 the many forms of civilization's benefits ? How, indeed ? Look at history — 
 and geography. See the wild Indian on the plains, the white man's *' ward " ; 
 sec the poor African, and the Chinaman — and the Egyptian * ; see the hand of 
 England everywhere executing her Divine duty, but in a new character — that 
 of the cestui que trust, claiming with much insistence to enjoy the blessings 
 of nature which those negligent trustees are withholding from her. 
 
 Once more within the domain of law, one feels more at home in following 
 Mr. Carter's argument, although criticism of it is necessarily withheld for the 
 present. The subject of his final appeal to law proper as distinguished from 
 sources of law was the right of protection and self-defence. Legally the 
 question is somewhat inchoate, and, by reason of the few actual precedents, 
 allows some latitude, not merely for theoretical speculation, but for more 
 solid analogical argument. Of this latitude Mr. Carter has, properly I venture 
 to think, availed himself to the utmost. When the Attorney-General has 
 completed his reply to this branch of the case it will be possible to discuss the 
 
 * Mr. Carter : . . . Why is Great Britain in Egypt maintaining a control over 
 the destinies of that region ? What ground has she for asserting a dominion over 
 these poor Egyptians ? Weak and feeble they are indeed, and incapable of resistance. 
 Is that the only defence ? No. I fancy those who are in charge of the defence of 
 the interests of Great Britain can make out a better case for her than that. 
 It is because Egypt is the pathway of a mighty commerce; it is because 
 it is necessary that that commerce should be free and unrestrained. That great 
 avenue of the world's traffic must be made to yield its benefit to mankind ; and 
 if the Government of Egypt is not capable of making it thus yield its utmost 
 benefit, if she is incapable, in other words, of performing her trust, other nations 
 have a right to interfere and see that the trust is performed. 
 
 The President: Mr. Carter, you are taking a very high point of view, because 
 you seem to me to anticipate, in some measure, the judgment of history. I will not 
 say more to-day. 
 
30 THE BEHRING SEA ARBITRATION. / 
 
 difficult problems involved in the question of jurisdiction on the high seas, 
 outside the territorial waters ; such jurisdiction as is involved in the Hovering 
 Laws and the Quarantine Act. For the present, however, I must content 
 myself with giving briefly the propositions which, on behalf of the United 
 States, Mr. Carter advanced. 
 
 In the just defence of its existence, or its rights, a nation may employ, 
 anywhere upon the high seas, such force as may be necessary and reasonable. 
 
 The action of the officers and agents of a nation, in exercising this right of 
 necessary self-defence, may, and should, be governed by rules in the form of 
 executive instructions or municipal laws. But neither are necessary to the 
 existence of the power, though they serve to govern the exercise of it. In 
 Constitutional Governments, where the Sovereign power is distributed among 
 different departments, such rules may be necessary ; other Governmenta 
 cannot insist on them. 
 
 In the exercise of this power of self-<iefence the nation is responsible to 
 other nations whose citizens may have suffered from its exercise. If a 
 necessity is shown for its exercise, and the limitations of such necessity 
 have been observed, the act is justified. If otherwise, a wrong has been 
 committed and reparation must be made. 
 
 Capture of vessels for carrying contraband of war, or for running a blockade, 
 are familiar instances of the exercise of this right of self-defence. 
 
 The notion that this right of self-defence is a purely belligerent right not 
 to be exercised in time of peace is unfounded. It proceeds upon the 
 manifestly erroneous assumption that the rights of a nation upon the seas 
 cannot be attacked or endangered except in time of war. That the instances 
 calling for the exercise of the right in time of war are more frequent, and that 
 they are comparatively rare in time of peace, is true ; but that they may, and 
 do, arise in time of peace is equally true. 
 
 If it were true that a nation could not exercise in time of peace any act of 
 force to protect its rights, it would follow that a nation could not interfere 
 with a vessel under a different flag which was hovering on her coast, outside 
 the three-mile limit, with an openly avowed intention of evading the 
 revenue laws of the nation, or of engaging in illicit trade with a colony, 
 or of running in at a favourable moment and rescuing convicts ; nor could a 
 nation prevent a foreign ship with an infectious disease on board from coming 
 within a distance of four miles from a port. Such a conclusion would be 
 repugnant to reason as well as to the actual practice of nations. 
 
 The municipal rules adopted by nations to govern the exercise of the right 
 of self-defence are not always rigidly limited to a regulation of that right ; 
 but they sometimes seek to exercise a limited legislative power beyond the 
 territorial limits of the nation. As far as they have the latter purpose in 
 view they are exceptional, and can be defended only upon grounds of special 
 necessity. 
 
THE CASE FOR THE UNITED STATES. U 
 
 It is not necessary for the United States to insist, nor do they insist, upon 
 a right to punish individual citizens of other nations who have been engaged 
 in pelagic sealing, nor upon a right to seize and condemn vessels for having 
 in the past been guilty of pelagic sealing, nor upon a right to establish any 
 area of exclusion around any part of its territory. It insists only that, if it 
 be determined that it has a property in the Alaskan seal herd, or a property 
 interest in the industry which it maintains upon the Pribyloff Islands, it 
 follows, as a necessary consequence, that it has the right to prevent the 
 invasion and destruction of those property interests, or either of them, by 
 pelagic sealing, by the employment of such force as is reasonably necessary 
 to that end. 
 
 The United States insist that, if their contention on the subject of property 
 be well founded, they have the right to prevent the taking of seals in the neigh- 
 bourhood of the Pribylof Islands in the only manner in which it would be 
 possible to prevent it — namely, by the capture of the vessel : and that it can 
 make no difl'erence whether such vessel be three or four or more miles from 
 the islands : and that, if such capture may be made anywhere within four 
 miles of the islands, it may lawfully be made at any distance from the islands, 
 where such right may be invaded in the same manner. And that to this end 
 the right exists without the necessity for any municipal law to secure it or 
 govern it. But that the passage of a law regulating the exercise of such right, 
 and providing for a mode of condemnation of vessels seized, would be entirely 
 proper, and one of the reasonable duties of the Government. 
 
 As to the seizures themselves, and the decrees of condemnation thereon, 
 the United States perceive no particular in which they are irregular, unjust, 
 or not defensible as an exercise of the right of necessary self-defence. They 
 do not defend any sentence of fine and imprisonment imposed upon any 
 citizens of other nations for engaging in pelagic sealing, but insist that any 
 invalidity with which such sentences may be affected has no tendency to 
 impair the validity of a sentence of condemnation otherwise valid. 
 
 Finally, the Government of the United States bases its claim to defend its 
 property interest in the seal herd and in its industry maintained upon the 
 Pribylof Islands by such force exerted upon the high seas as may be reason- 
 ably necessary to that end upon the following grounds : — 
 
 1. The reason and necessity of the thing, there being no other means 
 adequate to the defence of such rights. 
 
 2. The practice and usage of nations, which always employ this means of 
 defence. 
 
( 32 ^ 
 
 ///. — A Chapter in Natural History. 
 
 " I AM sure you would all like to know at the start what a seal is ! " Thus 
 Mr. Coudert, following Mr. Carter, on behalf of the United States. Yes, it 
 would bo most interesting to know what a seal is, for, truth to tell, we have 
 but a feeble notion. We are little disposed even to keep the distinction 
 between seals and sea-lions clearly in our minds ; and when that distinction 
 has at last been fully realised, we raise the anger of the naturalist hotly 
 against us, refusing to see clearly the manifest differences between the hair- 
 seal and the fur-seal. For us they are seals generically, which is not as it 
 ought to be. But we are wiser now after these many days of argument : we 
 fully realise that the hair-seal is quite an ordinary beast, in not much danger 
 of extinction, whose coarse-haired skin is made into busbies and c tlior such 
 inelegant articles of wear; whereas the fur-seal (since, at least, Frank 
 Buckland discovered the method of removing the long hairs and leaving the 
 fur intact, and since the estimable Mons. Worth has compelled Fashion in its 
 favour) is, save only the too-scarce true peau de Voutre, the softest and most 
 valuable fur known for those purposes of grace and beauty to which it is put. 
 To know, therefore, what a fur-seal is, to know how at a glance to distinguish 
 it from its brother the hair-seal, would be, therefore, to bo well versed 
 in a very interesting branch of natural history. But, before we submit ourselves 
 to Mr. Goudert's guidance in this matter, we must be quite clear as to what he 
 is driving at. He is about to " lay the foundation upon which the super- 
 structure " of his brother Carter's argument rests. " My brother Carter has 
 gone so elaborately over the whole case, with the exception of the facts, and 
 he has visited and taken possession of, occupied, adorned, and fortified [as in 
 my last letter I showed you] all the lofty grounds in such a way, that there 
 is very little left of that part of the case for those who follow him in the 
 argument. But," continued Mr. Coudert, " it is a comfort to me that he 
 cannot stand unless I now come and give him some help. He has assumed, 
 and most properly, certain facts to exist in the case. If those facts exist, his 
 argument is perfect " : it was for him to show that they do exist. So to support 
 Mr. Carter's argument on the law of wild animals, this chapter of natural 
 history was unrolled, the drift of it being to show that the fur-seal is not a 
 wild animal at all, but that it is a " tame animal " I Yet stay, is not this 
 going too far ? Is it necessary to Mr. Carter's argument, with its divisions of 
 animals into tame and wild, with an intermediate class which so approaches 
 to domestic that it is in fact and in law domestic — is it necessary to this argu- 
 
» A CHAPTER IN NATURAL HISTORY. 33 
 
 tnent to show that the seal is " not only a domestic animal, but one of the most 
 profitable of domestic animals " ? Does it not go just a little too far ? Let that 
 pass; we seek at Mr. Coudert's feet knowledge only of what a fur-seal is. 
 As for the consequences of that knowledge, and the legal effect of it, those arc 
 matters for the Tribunal to deal with : they are not for me. 
 
 Here, then, is the key-note of Mr. Coudert's teaching : " It is a tame 
 animal : it is easily taken : it is handled as readily as a lamb." " The process 
 of selection for slaughter on the islands is a simple one. The animals are 
 driven precisely as sheep, but apparently with more ease. They are so tame, 
 so gentle, so easily killed, that they can be driven into a pen by the hundred — 
 those that ought to be killed may be selected, and the rest may be dismissed." 
 
 " Dismissed !" What a pretty word.* It is the correlative to that other pretty 
 word the Counsel for the United States were so fond of using — " invited." The 
 seals are " invited " to the islands (as Mrs. Bond invited her ducks, and as her 
 prototype the Spider invited the Fly into that prettiest of parlours), and when 
 the superfluous males have been selected they are " dismissed " from further 
 attendance. But the language throughout was beautifully and systematically 
 chosen. The seals were " invited " to the islands ; when they accepted the 
 invitation they " voluntarily submitted to the control " of the United States ; 
 of a "gentle and confiding disposition," they "committed themselves to" — 
 nay, " implored the protection of" — the Great Republic ; and when they come 
 to the islands they were " cherished " — exceptir'^ of course the superfluous 
 males who submitted to the indignity of being knocked on the head. 
 
 And the climax, what a touching picture it is of the relations which ought to 
 exist between man and the lower animals. The seals — presumably the wily 
 " see-catch ies," fathers of the so-called " herd," whose skins were old and value- 
 less — so semi-human are they, have made a " pact "to render a sort of tribute 
 (by way of rent for the Pribylof Islands) to the United States of a certain 
 number of skins annually, on condition that they are taken from the bodies 
 of the superfluous males alone.f 
 
 The seal indeed is an intelligent animal. It recognises the beneficence of 
 the methods of killing adopted on the islands, and woe betide those hunters 
 who adopt other methods. The spear, too, of the Indian the seal admits as a 
 necessary evil of its civilization ; even the musket it tolerates, for " you must 
 bear in mind that these seas are agitated ; that the seal, the sleeping mother, 
 even when she sleeps confiding in the humanity of man, because the instinct 
 of the mother tells her to confide, may escape a musket because of this 
 
 ♦ As to the true meaning of the word, see note on p. 36. 
 
 t " Polygamous in its nature, compelled to breed upon the land, and confined to 
 that element for half the year, gentle and confiding in disposition, nearly defenceless 
 against attack, it seems almost to implore the protection of man, and to offer him as 
 a reward that superfluity of increase which is not needed for the continuance of the 
 race." — U. S. Printed Argument^ p. 92. 
 
 
 
14 THE BEHRING SEA ARBITRATION. 
 
 motion ; and when the pelagic sealer has missed, he has to go through the 
 old-fashioned process, which the older members of the Court are familiar with, 
 of loading through the muzzle and missing fire half the time." The seal, you 
 gee, put up with the musket ; but now the shot gun has replaced it, its anger 
 has been kindled against the hunter, it will tolerate him and his ways no 
 longer, and "when the poor animal is shot dead he revenges himself by 
 dropping like a shot. That is the only revenge that he has." Could intelli- 
 gence go farther ? 
 
 We gather— or perhaps we have misunderstood the drift of the evidence — 
 that this intelligence is implanted in the animals by the "cherishing" care of 
 the United States, that it is part of the scheme of " domestication," or that 
 it is the result of it : but on this point we confess to having some doubt. 
 We cannot indeed venture to say how far the " tame " and the " tamed," the 
 "domestic" dind the "domesticated," evidence is intended to be seriously 
 advanced : whether " the seal is born tame " is not a flight of exuberant 
 rhetoric representing the phocal " I was born free." 
 
 One example of attempted domestication however the archives of the 
 Arbitration afford us, in tKe melancholy history of little "Jimmy." He — a 
 seal pup — was the child of adverse circumstances, as his mother happened 
 accidentally (id est: contrary to the rules of "driving," which decree that 
 " superfluous males " alone shall be selected — a thing easy to be done) to 
 be caught in a large drive, and could not be separated from the herd until 
 the killing-ground was reached. After she was allowed to go free, on her 
 way to the water she hurriedly gave birth to this pup and continued on 
 her journey. When it was found to have been deserted, it was brought 
 to the village. For the first few days nobody could make him eat, and 
 as he would generally get the best of the friendly fingers which attempted 
 the feeding, he was left severely alone. Spoons and bottles were tried in 
 vain : till at last the operation of injecting cow's milk down its throat was 
 successfully performed by means of a syringe and a long tube. " Jimmy " 
 was then left to his own devices. He immediately showed unmistakable 
 signs of the greatest of seal-delight — lying down in the various positions of 
 seal-comfort, on his back and side, waving and fanning himself with his 
 flippers, scratching himself, bleating, et cetera. The operation appeared 
 to be successful, and he seemed to be doing finely. But the next morning 
 he was found dead. So much for " domestication " and " rearing." 
 
 The case was, however, put on a lower plane, which did not need flights of 
 fancy. " We are raising seals on the Pribylof Islands as sheep are raised in 
 Australia, as cattle are raised in the far West." Yet even here on this plane — 
 that they are domestic animals only " in the broad sense of the term " — which 
 needs, if it were true, no hyperbole to convey it to our intelligence, the words 
 used bear no relation to the fact described. The assertion that they may be 
 tended like sheep was shown by the fact that a drove of three thousand seals 
 
A CHAPTER IN NATURAL HISTORV. Ma 
 
 linvc been loft unilor the control of ono smnll boy : * the oviJcnce of the lm;t 
 WftH equally consistent — perhaps more confiistent — with the sup^estion that the 
 three thousand seals were asleep upon a hauling-ground, and the small boy wnR 
 looking on. Then they " soon grow accustomed to the sight of man (and 
 Ixty), and in the absence of offensive demonstration on his part quickly learn 
 to regard his proximity with indifference." But then, mirabile dictti, owing 
 to the small boy's negligence, these three thousand seals escaped from hia 
 control, and they all plunged over a cliff, failing sixty feet upon broken 
 «tone8 and rocks along the shore. The fact that only seTen were killed may 
 «how the wonderful vitality of the seal : but it seems (" seems, madam " ) to 
 make against that other contention with which we set out. And then the 
 word " raising " : it has in the case of cattle some definite meaning. But here 
 it means absolutely nothing more than getting out of the way.. If the seals 
 return to the Pribylof Islands by the " imperious and unchangeable instincts 
 of their nature," it is obvious that man has done nothing in the past, and does 
 nothing in the present, towards securing their return. What goes on now 
 Jias gone on since seals were, and would go on still if the islands were 
 abandoned. They simply come back as the sea-gull comes back to the guano 
 islands, as the salmon to the river, and as the turtle comes back to the sands 
 where it lays its eggs ; and that is an end of the whole matter. 
 
 There is something humorous about "raising" a fish which has its home in 
 deep waters ; but the ingenuity of Counsel had already provided against this 
 criticism. The fur-seal, in spite of the frequent use of the word " fisheries " 
 in official documents, is not a fish : it is essentially a " land animal," although 
 all its food is derived from the sea, and on an average it spends at least 
 eight months of the year without setting a flipper upon the land. The 
 pups become amphibious only as a result of education and n© essity. The 
 mother seal — the "cow" — is indeed the sternest of parents; s'le takes the 
 pup to the sea with her teeth or her flippers, " compels it lo swim, and 
 chastises it if it does not." The chastisement is evidently part of the 
 " raising," which, indeed, is so complete that it is necessary to use the terms 
 of the art of the cattle-raiser. The seals are, or could be, " rounded up " : 
 they could be, but are not, " branded " ; and to make ths picture of the 
 Pribylof fann-yard quite complete, a half-humorous enquiry from the 
 
 * The Hon. B. F. Tracy has an article in the " North American Review " which 
 adds considerably to the comic side of the subject. On this question of control, he 
 says, " But it is not alone by the act of nature that the seals have been reduced into 
 possession. While here they are in the direct charge and under the certain control 
 of the keepers on the islands. The control of these keepers, and, through them, of 
 the proprietor of the soil, is complete. No one would deny that if the herd wore 
 walled up in an enclosure, or if the animals were tied individually with rope, they 
 would be reduced to possession. But so restricted are their powers of locomotion, 
 that, if these measures were adopted, control would not thereby be rendered more 
 perfect." Comment is needless : sarcasm superfluous. 
 
36 THE BEHRINQ SEA ARBITRATION. 
 
 President as to whether seal milk had ever been collected by man was treated 
 as qiiite a serious possibility : " There is no evidence," said Mr. CJoudert, 
 ** that I have seen that it ever has been. Probably for some reason or other 
 it is not palatable." And these are gravely stated to be the actual facts in 
 the life of the fur-seal. 
 
 It seems extraordinary that it should have been possible so to over-draw the 
 picture of an animal's habits. Some points, indeed, are in legitimate dispute: 
 how far, for example, the American suggestion is true that the cows go two 
 hundred miles to sea to feed while thty are nursing ; that the cow will only 
 suckle her own pup, and that therefore if a cow is killed at sea the pup on 
 shore perishes inevitably. There is not a little evidence indeed to ahow that 
 the cows killed in Behring Sea in milk at so great a distance from the islands 
 are taken after the nursing is over, and while the milk is in process «<f drying 
 up. Then on another all-jmportaut point — the migration — there is a con- 
 siderable body of testimony to show that after they are born many of the 
 seals do not return to the islands — though they return to the Behrirg Sea — 
 till the third year, when the sexual instinct compels them thither; so that the 
 necessity of land, during its early years at least, is mythical. 
 
 These points, and many others, are, as I say, in legitimate dispute ; but it 
 goes no distance at all towards their elucidation to present a picture in 
 which fancy so largely takes the place of fact. And all to prove what ? That, 
 the seal is an animal sui generis. Well, so are they all ; each anim{>l under 
 the sun is sui generis : for were they not all of them created " afl er their 
 kind" ? But for the law a few things only are profitable for enquiry : whether 
 an animal be tame or wild ; and whether by art and industry man has con- 
 fined it so that it cannot escape; or, after ho has taken possession ov it and 
 reclaimed it from its wild state, has so acted upon its nature that it has 
 become domesticated and subject to his control, and will return to hiscoi *roll- 
 ing hand when it has left it for awhile. It is not too broad a generalization to 
 say that no legal conditions, other than those attaching to wild animals, are 
 fulfilled by animals which go down in their migrations to the great deep. 
 
 The meaning of the word " dismissed " may bo gathered from these few extracts 
 from Mr. Macoun's report: — "A seal, with apparently a broken shoulder, was 
 allowed by the natives to escape [from the killing grounds], though they noticed its 
 condition. . . . 14.1 per cent, of the whole number of seals driven at this time 
 were killed, while among those that escaped I counted seventeen that were badly 
 enough bitten or wounded to bleed considerably. . . , One seal, about six years old, 
 that had been wounded in the belly, was allowed to escape. . . . Another seal had a 
 gash in its back about five inches long. ... A wounded or bleeding seal was to be 
 seen in nearly every small pod of from thirty-five to fifty that passed through the 
 hands of the clubbers. . . . One young seal escaped with a broken nose, and another 
 with an eye hanging out. Such things attracted no attention from either the natives 
 or the olHcer of the Government or Company, being ajipareutly considered by them 
 to bo quite matters of course." 
 
( 37 ) 
 
 IV. — A *' Twopenny Justice"' ; and a Villain, 
 
 In the Comedy of ** The Pelac^ic Sealer ; or, the Crimes of Behring Sea," now 
 being performed in Paris, there are two characters to whose merits justice has 
 not as yet been fully done. 
 
 'J'hey were men of widely different characters, hut both of an ability of a 
 high order ; and one was a Twopenny Justice, and the other was a double- 
 dyed villain. 
 
 The Justice sat in liis District Court at Sitka, in the remote regiot^ 
 of Alaska; and there were haled before him two men, Gutormsen and 
 Norman — men who owed no allegiance to the star-spangled banner. They 
 were the captain and tlie mate of the Canadian sealing schooner " Thornton," 
 and they, with their catch of seal-skins and their schooner, had been seized by 
 the commander of the United States revenue cutter " Corwin " upon the high 
 sesLS— videlicet, 67 miles from the Prihylof Islands, in Behring Sea, for the 
 offence of killing seals " in the waters of Alaska," contrary to the section 
 1,956 of the Revised Statutes relating to Alaska therein made and provided. 
 
 Then Dawson, Justice, charged the gentlemen of the jury that they were 
 " called upon to determine, or rather to find, the facts in a controversy of 
 unusual importance," and that they might with the greater care and zeal for 
 the truth approach the consideration of the case, he spoke to them in words 
 of solemn warning of their high duties and of his. 
 
 And then the skipper and his mate, and the gentlemen of the jury, and, in 
 due course, her Britannic Majesty's representative at Washington, and the 
 gentle Secretary of State for Foreign Affairs, the late Lord Iddesleigh, and, 
 later still, the world at large, all learnt from the mouth of the learned Justice 
 the why and the wherefore of this violation of the freedom of the high seas. 
 
 The charge was long, and it was followed in the cases of other captains and 
 mates by considered opinions ; and from nil of these we learn in brief the 
 following facts : — That the "waters of Alaska" in the statute meant that 
 part of Behring Sea lying to the east of a boundary line which had been 
 drawn in the Treaty of Cession of 1867, when the States bought Alaska 
 territory from Russia ; that this line, instead of being used, as the plain man 
 might have thought, to indicate (or convenience sake that all the islands in 
 the Behring Sea lying to tho cast of it had been included in the cession, had 
 
38 THE BEHKLNG HEA AUblTUATlON. 
 
 in fact been used to partition off, as between Russia and the United States, 
 tliat broad expanse of water, some 800,000 square miles in extent, as part of 
 tlieir resixjctive territorial dominions. 
 
 In the opinion given as to the grounds on wliich the condemnation might 
 be supported, the learned Justice dived into the depths of history and roamed 
 through the realms of international law. It was, taking it all round and with 
 attendant circumstances, not so bad for a Judge of an out-of-the-way District 
 Court down away in the Aleutian Islands. The conclusions were indeed 
 unsound, but the worthy Judge knew his history as well as all good Alaskan 
 Judges ought to know it. He betrayed an intimate knowledge of facts which 
 occurred, and of documents which were written, quite in the eaily part of the 
 century, though a somewhat faulty logic in the arguments led to the sentence 
 of condemnation. The judgment of this learned Justice seems to have met 
 with approval in high quarters. It was cited in despatches as if it were the 
 embodiment of all the learning on the subject. His historical researches in. 
 the Sitkan archives became the basis of much diplomatic correspondence. 
 His arguments were reproduced, with some amplification it is true, but still 
 they were the Justice's arguments ; for surely no two human beings could 
 iiidt'peadently of each other have arrived by the same erroneous path at the- 
 same erroneous conclusion ; nay, more, his construction of the statutes was 
 the construction contended for, as it seemed, far down into the pleadings of 
 the two high litigating parties before the Arbitration Tribunal. Judge, then, 
 of the surprise when Mr. Carter said that the worthy Justice and his learned 
 opinions were to be thrown overboard ; the Government of the United States 
 was not to be bound by his judgment — opinions, conclusionsy all were 
 manifestly wrong, and the United States was going to adopt another line of 
 argument, which was indeed, according to the British argument, still more 
 manifestly wrong. It was not put quite wo crudely us this, of course. The 
 new argument was indeed the same as had always been advanced, and it was 
 nobody but Lord Salisbury who had diverted Mr. Blaine into historical 
 disquisitions, and prevented him from stating his propositions with his 
 customary lucidity. 
 
 Yet this throwing overboard of Dawson, Justice, was somewhat harshly 
 performed. Ruthless, remorseless, logically legal, and legally logical, Mr^ 
 Carter declared that the Judge in stating that Russia by this Ukase had 
 acquired a territorial dominion in Behring Sea, had but stated it as his 
 opuiion. But, and this with some emphasis of indignation and some 
 glimpse at a deep constitutional question, has a Judge in the United States 
 District Court of Alaska an authority to speak in an international controversy 
 on behalf of the United States ? Certainly none whatever. The position of 
 the United States cannot be gathered from what a Judge of a United States 
 Court happens to say in a charge to the jury. If it can, the United States 
 would b« responsible lor the utterances ol.' every twopenny Justice of the 
 
A "TWOPENNY JUSTICE"; AND A VILLAIN. 8» 
 
 Peace throughout the land, which sh« would be very sorry to do. What ! all 
 the pretty chickens gone at one full swoop. Premisses, argument, conclusion, 
 all swept away as the baubles of a Justice's empty brain by this autocratic 
 Counsel for the Government he tried to servo so well. Only a " Twopenny 
 Justice" after all. Yet they got the ships, and got the men, and got the 
 money too. Only a twopenny Justice sitting out yonder in the wilds of 
 Alaska. Yet, nothing that he had said was intended, said Mr. Carter on the 
 following sitting of the Court, to apply to or disparage that very worthy 
 and distinguished Judge. Mr. Carter wished merely to emphasize the irre- 
 sponsibility of Governments for the utterances of their Judges. Strangely 
 enough, Mr. Carter " did not Say that his judgment was incorrect. On the 
 contrary, so far an it related to the condemnation of the vessel it was 
 a sound and correct judgment." The curious part of the story follows. 
 
 The lawyer mind in reading thus far may have thought that there was some 
 incident missing. Condemnations do not come about of the mere motion of 
 twopenny Justices. Suits for condemnation, even out there in Alaska, are 
 regularly commenced on behalf of the Government; the case for the 
 prosecution is laid before the Court by Counsel learned in the law. In the 
 United States a "brief" is filed in Court, and in this brief all the facts and 
 arguments on which the prosecutor intends to rely are set out at length. 
 And in the case of the seizure of the " Thornton " sealing schooner, this practice 
 had not been departed from ; and — for Great Britain can fight squarely when 
 she pleases — a verbatim copy of the brief was read to the Tribunal. It had 
 been published in the New York Herald. The preface to the publication 
 of this brief was short and to the point : — 
 
 " The Government here are in receipt of advices from Sitka, which contain 
 the brief which is understood to have been prepared at Washington and 
 recently filed in the Court at Sitka by Mr. A. K. Delaney, as Counsel for the 
 United States Goveriiment." 
 
 And then, with remorseless insistence, the pages and paragraphs of this 
 interesting document were read as published by the New York Herald ; and 
 there was the old, old story, neatly cut and dried, for the Court to help itself 
 from. All the historical facts, all the jurisdictional arguments, all the old 
 mare clatmim arguvnents, all about British acquiescence in the claim (as if 
 Great Britain ever acquiesced in anything in those days, especially with 
 George Canning at one end and Stratford Canning at the other end of the 
 communications). Everything set out under neat sub-heads — " Behring Sea 
 Inland Water," " Russia's Title and Dominion," " Possession and Supremacy," 
 and it wound up with a conclusion of fine language : — 
 
 " Enough has been said to disclose the basis of Russia's right to jurisdiction 
 of the Behring Sea luider^^the law of nations, viz., orisinal possession of teh 
 Asiatic coast, followed by discovery and possession of the Aleutian chain and 
 
40 THE BEHRING SEA ARBITRATION. 
 
 the shores of Alaska, north, not only to Behring Strait, but to Point Barrow 
 and the Frozen Ocean, thus enclosing within its territory, as within the 
 embrace of a mighty giant, the islands and waters of Behring Sea, and with 
 this the assertion of dominion over land and sea. Such is our understanding 
 of the law ; such is the record. Upon them the United States are prepared 
 to abide the judgments of the Courts and the opinions of the civilized world." 
 
 And so the great Snark was no Snark after all, but only a twopenny 
 Boojum who had learnt his lesson well. 
 
 After the reading, the leading Counsel for the United States rose with some 
 gravity, and said that ** it was only fair to my learned friends to state that 
 upon any investigation we have been able to make we have no reason to 
 suppose that that case was prepared by anybody connected with the Govern- 
 ment of the United States in Washington or used in that case. It is 
 telegraphed from Ottawa, and tliat is the first and all that we know about 
 it." Well might the Attorney-General exclaim, "Then it is the most 
 extraordinary case of forgery that the world has ever known." 
 
 Afterwards the Attorney-General stated that the gentleman who had 
 procured the copy of the brief for the journal in question had it " in direct 
 descent " from the American Counsel engaged in the case, and, being present 
 in the room at that moment, could testify to the fact in such manner as the 
 Tribunal might think fit. . ,, , 
 
 ♦ ♦ * « " ' • 
 
 The scene changes. No longer are we in the little Court-house at Sitka, 
 presided over by the amiable Judge Dawson. An astute but unscrupulous 
 artist sits in his chamber, gloomy, sombre, fit for the deed he had to do. The 
 man is Ivan Petrof. The deed, forgery. 
 
 Events have passed, swiftly as diplomacy will let them. Other skippers 
 and other mates have been condemned to fine and imprisonment. One, they 
 Bay, on regaining his liberty, but cast helplessly adrift in the inhospitable 
 Alaskan regions, wandered into the woods and died miserably. A quarrel 
 has arisen between two great and friendly nations. Angry correspondence 
 of inordinate Igngth has passed. There seemed, indeed, a time when words 
 might have given way to blows. But all this has changed. The two great 
 and friendly nations, each alleging that the other has committed a great and 
 unfriendly act, have appointed a Tribunal of Arbitration ; and the preparation 
 of- the pleadings of the nations proceeds apace. The translation of certain 
 Bussian documents — Ukases, Charters, correspondence, in fact all the archives 
 of the old Russian Trading Company which opened up under Imperial 
 patronage the resources of the Alaskan territory (resources in which, 
 curiously enough, the fur-seal was hardly counted) — was confided to a 
 Russian scholar, Ivan Petrof. Now, Ivan Petrof was an astute and 
 txnscrupulous artist. 
 
 The mere fact that he interpolated certain passages into the originals shows 
 
A "TWOPENNY JUSTICE"; AND A VILLAIN. P- 
 
 that he wa^J nnscrnpnlous ; that he should make these translations so useful 
 that he could palm them off on his unsuspecting employers and get them 
 incorporated into their Case shows him to have been astute. But his title to 
 be called an artist is justified by the fact that when these documents went 
 into his hands in Russian they contained no trace of anything which could 
 support the contention that Russia had claimed and continued to claim 
 dominion over Behring Sea or had persisted in her Ukase, but when they left 
 his hands in English they literally teemed with suggestive sentences, and all 
 running so naturally and flowing so easily that if such documents had been 
 written under the circumstances supposed they would have been couched in 
 no other language than in fact they seemed to be.* 
 
 Photographic copies of the original documents had been printed, perhaps 
 triumphantly printed, in the United States Case. But others besides Ivan 
 Petrof, both in the States and in Great Britain, were versed in the Russian 
 tongue; and simultaneously on both sides of the Atlantic the discovery was 
 made of the most extraordinary and impudent forgery of modern times. He 
 had been too zealous for the cause ; all his artistically executed interpolations 
 had to go by the board, and all the structure of claim of derivative title from 
 Russia to which they had lent such powerful support crumbled to pieces, and 
 was ruthlessly swept away by the hands of the United States Agent. And 
 then there was nothing left of that interesting claim, based on so much 
 historical research, and founded on so much learning in international law, 
 
 which had so fascinated the Justice of Sitka. •• - • 
 
 * * * * « 
 
 Some facts are denied and some are admitted, and the Tribunal will weigh 
 the pieces justificatives in the balance and pronounce. With some insistence 
 
 * e.(j. In a letter of April 9, 1820, from th« Russian Minister of Finance to the 
 Minister of Marine, this sentence occurred : — 
 
 "Two Russian sliips were to be despatched, one to cruise from Sitka, westward and 
 northward, the other ship, however (sailing from Petropaulovsk), having examined 
 the eastern coast of the Kamchatka peninsula up to Gi'^ of northern latitude, and 
 the west coast of America from this latitude to the Island of Unalaska, should 
 proceed to Kadiak, and from there to Sitka for the winter." 
 Mr. Petrof made the last sentence read thus : — 
 
 " From this latitude to the Island of Unalaska and the intervening waters (Behring 
 Sea) should pi'oceed to Kadiak . . . ." 
 
 And in another letter, of March 15, 1821, from the Board of Administration of the 
 Russian American Company in St. Petersburg to the Chief Manager of the Colonies 
 at Sitka, this little sentence : 
 
 " By a strict observance of such rules, we may hope to make this industry a 
 permanent and reliable source of income to the Company," 
 became 
 
 " By a strict observance of such rules, and a prohibition of all killing of fur- 
 seals at sea or in the passes of the Aleutian Islands, we may hope to make 
 this industry a permanent and reliable source of income to the Company." 
 
 K. T. A. 
 
42 THE BKHRING SEA ARBITRATION. 
 
 the United States Counsel protest that the case of derivative title was never 
 set up at all as the British lawyers have declared ; that the only part which 
 the Russian question plays in the dispute is by way of strengthening the 
 allegation of a property interest made by the United States, by showing that 
 Russia had done at the beginning of the century precisely the same thing 
 that the States were doing at the end of it — namely, asserting a property 
 interest and protecting it, Great Britain meanwhile bemg acquiescent ; and 
 that their true case was " propputty, propputty " only. To which the retort 
 obvious: Why, then, W(ie the first four questions about Russia's title to the 
 Behring Sea propounded in Article VI. of the Treaty of Arbitration ? On 
 the other hand, and also with some insistence, the Counsel for Great Britain 
 protest that the matter " rests, and must rest, for its justification upon the 
 grounds taken in the diplomatic correspondence, and the grounds taken in 
 their libel in the Court." Let the twopenny Justice and the villain fade 
 into the background. The unsoundness of the Justice's judgment matters 
 little. Even the inaccuracy of the villain's translations might go for nought. 
 A deeper question lies behind, in which is involved that constitutional 
 question referred to by Mr. Carter, of the irresponsibility of Governments for 
 the utterances of their Judges when they act upon them to the detriment of 
 the subjects of other Powers. 
 
 The proposition is, as the Attorney-General said, somewhat startling that a 
 defendant should be libelled for one offence and be afterwards told that he 
 had committed another offence of which he was never informed, and which 
 he was never called upon to answer. And the proposition is still more 
 startling that a Government should appeal to its Judge to put a municipal 
 statute in force on certain definite grounds, and should then proceed to justify 
 the condemnation on grounds which neither the Judge nor they had ever 
 dreamed of. 
 
( -^3 ) 
 
 ^ .1 ■ . if ■ 
 
 V. — The Attorney-GeneraVs Argument. 
 
 " To all this shadowy claim the Government of the Queen submit but one 
 answer: — the law. . . . The whole case, and every part of it, and every form 
 in which ingenuity can frame it, are covered by the law. And to this law 
 her Majesty's Government most confidently appeal." 
 
 Such was the text on which the printed argument of Great Britain was 
 based. I propose now to trace in outline the massive ten days' argument 
 which the Attorney-General built upon it. If the area of law covered by the 
 case was, speaking in all soberness, prodigious, so also was the area of historic 
 fact — 1799 to 1867 — with a fringe at either extremity : with Ukases, Charters, 
 Treaties, and diplomatic correspondence to be unravelled, explained, and 
 discussed. Again, there was the area of present fact, specially pertaining to 
 the cause of quarrel; four years of busy diplomacy, in which, so far as sheer 
 talking went, the verbosity of the late Mr. Blaine had the pre-eminence. 
 And yet, again, there was a third area of fact to be covered, which was a^so 
 historic and was of considerable extent. The stress of Mr. Phelps's argument 
 is on the " great principle of self-defence " (the case, as you have seen, seems 
 to engender grandiloquence). At a later stage of this article we shall be 
 able to judge how thin a shadow this great principle is ; but it was necessary 
 
 . for the advocate who built it up as a wall against which he set his back to 
 shore it up alike with fact and fancy lest it should give way and let him drop 
 iaito the quagmire of false analogies which he had prepared. There is an 
 abundance of fancy, and eloquent fancy, about Mr. Phelps's methods; 
 *' elegant diplomacy " is a term one of his own colleagues bestowed upon it ; 
 
 , he will not be oifended if I repeat it. This third area of fact included 
 occurrences which the present generation of newspaper readers have never 
 
 ':,. heard of; they were fashioned into glib paragraphs, and being pieced and 
 paged together furnished forth a somewhat appalling addition to the argu- 
 ment. The case of Amelia Island and the adventures of the bold buccaneer 
 M'Gregor in 1817, when Buenos Ayres and Venezuela were insurgent colonies 
 of Spain ; the case of the " Caroline," which in 1838 was seized by the Canadian 
 authorities in a United States port, set on fire, and sent over the Falls of 
 Niagara ; the punishment of the Pensacola Indians in 1815, and the destiTic- 
 tion of forts on the Appalachicola River ; the case of Greytown ; the British 
 Urders in Council of 1809 — all these, and many other it cidcnts of the times« 
 
44 THE BEHRING SEA ARBITRATION. 
 
 when there was stir and movement in the world, when nations rose and fell, 
 and men fought more and spoke less — all these, and many more, were referred 
 to to build up the "great principle" Mr. Phelps contended for. These 
 incidents added a little glow of romance to an otherwise somewhat ponderous 
 argument ; the reading of them took one back to the time when first one 
 read the text-books and was grateful for any dash of local colour. They are 
 dangerous guides, those text-books, in a fight like this. However, the wall 
 had been built of these incidents, and it was necessary to meet them ; and the 
 only way to meet them was to take them one by one and to show that 
 individually they had no bearing either on the case or the argument, and 
 that, therefore, collectively they were worse than useless. (This, by the 
 way, is a premiss and conclusion on which some doubt has been thrown in 
 these last days, for in order that you may possess, own, and enjoy flocks and 
 herds it is not necessary that the possession and ownership should extend 
 to the particular animals of which they are composed.) And, in order to 
 show that individually these and a dozen other instances were either quite 
 irrelevant or depended on some other principle, it was necessary to have a 
 mass of original documents and information ready to hand, so that the real 
 facts might be laid before the Tribunal. Seldom, if ever, has the subordinate 
 area of fact in any case been so extended ; never has it been grappled with 
 with such conspicuous success. To those who, with some knowledge of legal 
 detail, and from behind the red cord, have followed the conduct of this 
 stupeudous case, the manner of its conduct has appeared, in all seriousness, 
 beyond praise. A banality must serve ; it reflects the highest credit on the 
 pviblic offices concerned, and (remembering the premiss and conclusion which 
 has been in such jeopardy) higher credit still on those public officers on 
 whose shoulders the burden of the work has fallen. 
 
 In order fully to understand the Attorney-General's argument it is 
 necessary to state very briefly the legal positions taken up by the United 
 States. Putting on one side the question of derivative descent from Russia, 
 with which I have already dealt, the property question comes next in 
 order of importance, and this is presented in three forms — propn-ty in the 
 individual seal ; failing that, property in the herd collectively ; failing these, 
 property in the industry, any or all of which properties are said to be 
 recognised alike by the common law, the civil law, by international law, the 
 moral law, the law of nature, and by every other law under the sun. Then 
 follows the question what right there is to protect such property interest as 
 may be found to exist : if there be but an industry and no property in the 
 seals, the right of protection being claimed to extend nevertheless to the 
 subjects of the industry, the seals ; the nett result of the contention being that 
 the right to prevent otlers from killing the seals is claimed, whether there is 
 a property in them or vdiether there is not. In justification of the seizures, 
 another crabbed question was raised — that the statute, though it may have 
 
THE ATTORNEY-GENERAL'S ARGUMENT. 45 
 
 teen designed to operate over the eastern part of Behring Sea, yet was not a 
 claim of dominion thereover, but conformed to the rule that statutes are 
 confined in their operation to the territory of the nation ; if they do in tact 
 extend outside, they do so, with regard to foreigners, not as statutes, but as 
 ** defensive regulations"; that this form of quast-\egisla.tion is justified by 
 the analogy of many enactments of other countries ; and, further, that it may 
 take the form of a statute, or may, without legislative form, be ordered by 
 the Executive. » 
 
 Such is the structural outline of the case which the ingenuity of the United 
 States Counsel has reared. And it cannot be doubted that the Attorney-General 
 was well advised in taking the line laid down in the sentence from the printed 
 argument which stands at the head of this article. To the claim of the 
 United States Great Britain has but one answer — the law. And ho 
 proceeded to elaborate with extreme care every branch of the known law 
 which had any bearing on the American claim and the propositions advanced 
 to support it And to the question Is the claim good ? there came from every 
 branch of the law he touched upon the same answer — a decisive, emphatic No. 
 The question of property was perhaps the easiest to clear of fallacies and put 
 upon a firm legal basis. The United States argument ran thus : — " Have wo 
 any rights of property at all in the seals? Here, fortunately, we all concede 
 that we have, and it is said that upon the islands these are as much our 
 property as though they were sheep or calves." " Certainly not," interposed 
 the Attorney-General. " Well," said Mr. Coudert, " I gave you credit, and 
 I will take it back. I supposed that when we held the seal in our hands — I 
 supposed when we slit its ear — I supposed that when we could put a brand 
 upon it, that it was our own, as much as it was if it were a sheep or ewe. 
 Where it comes in I am absolutely incompetent to say. I have read the 
 argument on the other side with interest, and I supposed that it was 
 conceded that upon our land, in our hands, under our flag, in our waters, 
 they were as absolutely our property as this book is mine." Shades of 
 Bracton and Blackstone I Shade of Savigny ! it was under the wings of your 
 teachings that that interesting argument of " the other side " was written. 
 Do not, gentle spirits, believe of the English lawyers who drafted it that that 
 concession was ever made. The " certainly not " was sharp and crisp enough 
 to dissipate the illusion, and it must have brought peace to you perturbed. 
 From whose ignorance then sprang the supposition ? The short dialogue gives 
 the answer ; it contains within itself as many and great fallacies as it is possible 
 to cram into the short space of a single phrase. The great underlying fallacy 
 —the seal is like a sheep : videlicet a domestic animal. And from this false 
 premiss all the rest followed. The possibility of the seal not being domestic 
 was, it is true, admitted, and here it was argued that the habits and nature of 
 the fur-seal were such as to bring it within the class domesticated, if not 
 the class " domestic " ; and that there was no diflerence between the two, 
 
46 THE BEHRINO SKA AHIilTRATION. 
 
 because there is nn exceedingly clear proposition, which is drawn from nil 
 the authorities, from the municipal law of many tlifferent nations, and which 
 is confirmed by the ancient Roman law : and the proposition is this — that 
 " if by the art and industry of man, wild animals may be made to return 
 to a particular place that the possessor of that place has a power and control 
 over them which enables him to deal with them as if they were domestic 
 animals, they are in law likened to domestic animals, and are matle property 
 just as much as if they were domestic animals." And so, it being all so 
 exceedingly clear, Mr. Phelps insisted that ** the complete right of property 
 in the Government while the animals are upon the shore or within the 
 cannon-shot range which marks the limit of territorial waters cannot be 
 denied." Is it the law of Wonderland, and is Alice the Queen laying down 
 the law to the Hatter ? Propositions stated to be *' exceedingly clear," which 
 are clear in nothing but their wrongness ; propositions which *' cannot be 
 denied " which no lawyer ever heard of before. What does it all mean ? 
 Are ive at the back of the looking-glass ? No, the argument is the argument 
 of learned lawyers of the United States. Let us therefore go solemnly back 
 with the Attorney-General into the regions where law is still of three 
 dimensions. 
 
 The complete law as to animals ferm naturm derived from the text-books 
 and certain well-known leading cases was presented by the Attorney-General 
 succinctly in the following way : — 
 
 In domestic animals, treated by Blackstone and Kent, as a distinct and 
 well-known " class " of animals, property is absolute. 
 
 Animals which are not in this class are wild animals, animals /er« naturte, 
 and in these property is never under any circumstances absolute. 
 
 This hard and fast rule is mitigated in several ways. The law does recog- 
 nise a temporary, or, as it is sometimes called, a " qualified " property in them 
 if a certain condition is fulfilled ; that condition is that they should be in 
 possession. During possession the property continues, and is protected by 
 the law ; to violate the possession of them is theft. But when possession 
 ceases the property is at an end. 
 
 The use of the word property is unfortunate, for it connotes " perpetu- 
 ality"; hence the effort to qualify it by such words as "qualified" or 
 " temporary." So long as the meaning intended to be conveyed is kept in 
 mind it does not much matter what words are used ; but if this meaning 
 is lost sight of many troublesome things follow inevitably — such things, for 
 instance, as the United States argument. 
 
 But here the law defines the manner of obtaining this qualified property 
 with some precision. It may be acquired by the two well-known methods 
 of dealing with, or obtaining possession of, wild animals — confinement and 
 reclamation. The former is obviously possession pure and simple. The 
 latter is domestication in its early stages. These two methods are combined 
 
THE ATTORNEV-GKNEUAL'S ARGUMENT. 47 
 
 by Blackstono into one, which ho calls proiiorty per induatriam. Possession 
 once obtained, it may be preserved in law although in fact it may have 
 been lost. Pursuit, hot pursuit, is suflicient to preserve it, while the pursuit 
 lasts and the animal is in sight of the pursuer. This point had to bo 
 considered in dealing with the analogy of the bees which Mr. Cartor, the 
 lawyer, had set up. Animus revertendi is also sufficient to preserve 
 possession, and on this doctrine all the hopes of United States argumentiition 
 were based, for did not the seals, year in, year out, return to the Pribylof 
 Islands, there to submit themselves to the beneficent care, &c. 
 
 Now here was a pitfall straight in the way, into which, to my thinking, 
 Mr. Phelps and his colleagues straightway stumbled, thus : reclamation of wild 
 animals means the implanting, developing, training the spirit of return ; and 
 seeing that this is the whole and sole feature of domestication, and seeing 
 that it recains possession in law, though in fact possession is lost, and seeing 
 further that when once it is implanted the animal will certainly return from 
 its wanderings abroad .... therefore that follows which has already been 
 stated — the class " domesticated " equals in law the class " domestic," and 
 therefore the property in the seals is complete. 
 
 Alas for the hiatuses of human argument. The conclusion is unsound. 
 Be the domestication, reclamation, training what they may, assuming that 
 the seals were all fed from a bottle, as little " Jimmy " once was, wherefrom 
 he died, yet the property is never absolute. 
 
 But the law has not exhausted its provision for the human hunter. There 
 is a further development in favour of the owners of land. The United States 
 premiss is, as appears from the extracts already given, that the owner of 
 land has an absolute property in the animals on his land. What the law 
 recognises is a right ratione soli; which, being translated into legal English 
 language, means the exclusive right to take possession of the animals. And 
 for a very simple reason. People who go upon my land are trespassers, 
 and their act of taking on my land animals alive or dead shall inure to 
 my benefit. This is absolutely all the right which owners of lands or 
 islands, be they Governments, or lessees, or common landlords, have. And 
 this law is to be found carefully stated by the Law Lords in " Blades v. 
 Higgs" as clearly as any law on any subject has ever been stated. So 
 clearly, indeed, that the wonder is how the argument of the United States 
 can have proceeded further. They have greater advantages than others to 
 do what — to reduce into possession, to establish property per industriam, 
 greater facilities for confining, greater facilities for reclaiming; but the 
 condition paramount to the establishment of this temporary or qualified 
 property is that these facilities should have been enjoyed, that the confine- 
 ment or reclamation shall have taken place. The distinction, so fundamental 
 to the law, cannot be better pointed than by the common examjilo given 
 by the learned Corny ns of fish in a pond and fish in a stew. In my jKind 
 
48 THE BEHRINQ SEA ARBITRATION. 
 
 I havo tho exclusivo right to tako ; in my stow I have already taken. So 
 the whole thing resolves itself into this — that possession is just as necessary 
 to give property to the owners of land as it is to non- owners of land. 
 
 And then comes the question, What is possession ? Savigny, with marvel- 
 lous care and learning, has told us. And truly it is a wonderful thing that 
 the extract from Savigny, which Great Britain would quote in support of her 
 argument, was to be found set out and printed in the United States argu- 
 ment. Was an articled clerk turned loose into tho Supreme Court library ? 
 ** Well, it was set out in fairness," said Lord Hannen. Well . . . but 
 with what a strange bedfellow ! Here was the law set out, and here was 
 the United States argument. Here was the law insisting on possession not 
 as nine points of the law merely, but as the whole law ; and there on the 
 Pribylofs was neither possession, nor anything approaching possession, nor 
 anything like possession, but the seals left to roam the high seas at their 
 own sweet will. 
 
 Surely to all this there is an obvious corollary ; animus revertendi main- 
 tains possession once taken; the right ratione soli is no more than the 
 exclusive right to take possession ; therefore animus revertendi has of itself no 
 effect on the right ratione soli. It cannot give a greater right to animals off 
 the land than would exist if they were on the laud. There is no possession 
 to preserve, and the exclusive right to take is gone. 
 
 Has not the question fallen to the ground yet ? No. The United States 
 argument dwelt on the force of animus revertendi by itself. The string 
 of its virtues was harped on ; but, continuing the musical analogy, the tonic, 
 the possession string, was wanting, and the key of property remained 
 undetermined. 
 
 But if the United States argument was sound, that old case of the coney- 
 burrows was wrongly decided, or must be ignored, and the case of the grouse, 
 that curious case of "Ibbotson v. Peak," and other cases of like nature. 
 The coneys in my burrows must be mine, though they wander abroad ; the 
 pheasants I hatch and breed must bo mine, and my unneighbourly neighbour 
 the farmer may not shoot them when they fly across his land; and all 
 things wild are tame, and things are not what they seem. And wider 
 consequences still wotild wait upon this wonderfully strange "award of 
 property " which the United States demand. The penguin and the turtle, 
 the salmon and the guano-gull all would become subjects of property, for 
 they, too, come imperiously upon some nation's shores, and seek protection, 
 and " submit " themselves, and all the rest of it, to the gentle sway of tho 
 great killer man. 
 
 Though it is so clear, this question of property in the individual, yet it is 
 not necessary to the United States case. Property in the herd, as a whole, 
 is quite enough, and this, again, is clear past all doubting. " The conception of 
 a property interest in the herd, as distinct from a particular title to every seal 
 
THE AlTORNEY-GKNKRAL'a ARGUMENT. 49 
 
 composing the herd, is clear and iDtelligible : and a recognition of this would 
 enable the United States to adopt any reasonable measures for the protection 
 of such interest. . . . Wliile the United States Government asserts and 
 8tands upon the full claim of property in the seals which we have attempted 
 to establish it is still to be borne in mind that a more qualified right would 
 yet be sufiicient for the actual requirements of the present case. The ques- 
 tion here is not what is the right of ownership in an individual seal, should it 
 wander in some other period into some other and far distant sea — that is an 
 inquiry not essential to be gone into — but what is the right of property in 
 the herd as a whole, in the seas and under the circumstances in which it is 
 thus availed of by the United States Goverameut as the foundation of an 
 imix>rtaut national concern ? " 
 
 Undoubtedly, the recognition of an impossible proposition would render 
 possible a whole series of imix)S8ibiliiies. But surely the answer to all this is 
 comprised in the short sentence : — " But the whole is made up of parts, and 
 if there is no projerty in the paits, how is there proiierty in the whole V " 
 And yet, again, the ground of argument, this very quicksand of argument, 
 is slipping, slipping slowly away. When it is attacked, even by so 
 simple a method of dimonstiation, lo! that arch-wizard Mr. Phelps, who is in 
 charge of the United Slates dissolving views, presents another — not that 
 l)roposition at all, quite another. That is not necessary at all ; but this 
 one — this which I will now show you. If there is no " individual seal 
 property," nor yet any '• seal-herd property," yet still the real ground remains, 
 property in the industry. 
 
 'Ihen comes the *• husbandry argument," introduced as so identical with 
 the ** property in the individual seal argument " already noticed as to be 
 almost indistinguishable. " You may state another proposition fully 
 substantiated by these authorities " (those authorities, that is to say, 
 which so fully demonstrate the essentiality of possession). "It is 
 scarcely another proix)sition ; it is almost the same thing, but the language 
 is in a diflerent form — tl at whenever man is capable of establishing a 
 husbandry in respect of an animal commonly designated as wild, such a 
 huabandry as is established in reference to domestic animals, so that it can 
 take the increase of the animals and devote it to the public benefit by 
 furnishing it to the markets of the world, in such cases the animal, although 
 commouly designated as wild, is the subject of property, and remains the 
 property of that person as long as the animal is in the habit of voluntary 
 subjecting himself to the custody and control of that person." Well, well, 
 well, let us be serious and talk " law." What docs it mean, property in an 
 industry? And what is this precious industry? Waiting till the seals 
 come to the islands, and then knocking them on the head. In doing this 
 they are exercising their right as owners of the islands ; nobody disputes 
 their right. They may knock the seals on the head in their territorial waters, 
 
 D 
 
5^ THE BEHRING SEA ARBITRATION. 
 
 and may exclude all others from that area. In common with all others they 
 may catch the seals upon the liish seas. But beyond these, what ? And 
 if the answer is, as it must be, " Nothin'i," then comes the fatal question — 
 " Where, then, is the legal right invaded by the pelagic sealer?" Show 
 first your legal right, and then you may proceed to show the invasion of it. 
 Fu-st the injuria, then the damnum; or, if you will, first your damnum, 
 and then the injuria ; but the one or the other by itself shall not suffice 
 you, for the sake of that old maxim of our law, ex damno sine injuria non 
 oritur actio. The whole thing resolves itself, therefore, into a question of 
 rival trading, and, no malice being either alleged or shown — ^as how, indeed, 
 could there be alleged that a "certain class or set of men had, for the 
 malicious purpose of injuring the lessees of the Pribylof Islands, and not in 
 regard to their own profit and industry and in exercise of their own supposed 
 rights, committed a series of acts injurious to the tenants of the Pribylof 
 Islands " ? — the case, had it been a common law action between the owners 
 of two neighbouring islands, would have been at once withdrawn from the 
 jury; for the rights of rival traders have been settled long ago — were settled 
 in law, indeed, when Mr. Keeble and Mr. Hickeringill were fighting over 
 the rights of an owner of decoy ponds ; and Lord Chief Justice Holt in 
 deciding that dispute put the matter neatly, after his manner, in a nutshell : 
 — "Suppose the defendant had shot in his own ground; if he had occasion 
 to shoti it would be one thing, but to shoot on purpose to damage the 
 plaintift' is another thing and a wrong." 
 
 But, after all, this was but the appeal to the ordinary principles of common 
 law, the law as laid down in the cases — those cases cited for some occult 
 purpose by the United States, for they all supported or seemed to support 
 the British ]X)sition. But they were bottomed, all these great principles for 
 which the United States so vigorously contended, also in international law; 
 and international law is moral law, and international law is natural law (for 
 did not PufTcndorf write on the Law of Nature and Nations?), and again we 
 slide off into the infinite; again we ascend with Mr. Carter "into the mists 
 and clouds of metaphysical and ethical discussion." But the question may 
 well be asked. What has international law to do with the question in dispute? 
 Rights of pro]>erty dependent on international law! A substantive inter- 
 national law of property ! One must keep one's juristic gravity. What is the 
 internatiunal law of property as distinguished from the municipal law of 
 property? Is there an international law of contracts? Is there an inter- 
 national law of torts ? Where is all this law to be found ? Are things getting 
 dissolved in view again ? Is it possible that the senl is an aniTual/era; natural 
 l)y common law, but mansuetai naturie by international law ? Surely, this was 
 the drift of the Attorney-General's argument, if this apjHjal to international 
 law means anything, it must mean this. If the ]iossibility were to be admit- 
 ted fur a moment that such a ju-uposition could come within the range of 
 
THE ATTORNEY-GENERAL'S ARGUMENT. 61 
 
 international law, the test of Grotius would be sufficient for an immediate 
 solvent : placuitne gentibus f Have the nations agreed to treat the fur-seal as 
 an animal, or as belonging to a class of animals, the subject of property ? 
 The question will not bear serious consideration for a moment. " Title in 
 things," said the Attorney-General, " must take its root in municipal law," 
 and the demonstration is complete " that municipal law does not support this 
 claim, but negatives it." 
 
 The appeal to international law was perhaps the weakest part of the United 
 States argument : conflicts between nations do not of necessity draw with 
 them the application of international law, and this case could not be treated 
 otherwise than as a claim would be treated by a private owner of the islands 
 to assert a right of property in the seals while they were in the adjoining 
 ocean. "Is there any ground conceivable for treating the question in a 
 different way because the United States happen to be the owners of the 
 sovereignty over the islands, and have given to their lessees the right to take 
 these seals on the islands ? It is impossible that property should exist in 
 one cascand not exist in the other, or that property should be non-existent 
 in one case if it is not also non-existent in the other." 
 
 International law was an ignis fatuus which led the United States Counsel 
 dancing over the morasses in which, unfortunately, the foundations of institu- 
 tions and of things in general seem to be laid. The "Book of Nature" was 
 quoted long ago in Court; and since Lord Ellenborough ruthlessly asked for 
 chapt^jr and verse, page and edition, none have dared in Courts of Law to cite 
 that authority again. The heresy too of Pufftndorf and his kind was exposed 
 long ago ; Bentham, Ortolan, and Austin have blown it to the winds ; the 
 nut scarcely needed such heavy hammers for the cracking, yet the Attorney- 
 General could not but use them : — " They substitute for the reason of ex- 
 perience all the chimeras of their own imagination They have 
 
 conl'ounded positive international morality, or the rules which actually 
 obtain amongst civilized nations in their mutual intercourse, with their 
 own vague conceptions of international morality as it oujiht to be, with 
 that indeterminate something which they conceived it would be if it 
 conformed to that indeterminate something which they called the law of 
 nature." Do we not once more hear the sound of the vanished master's 
 voice ? Once more the great student puts a weapon into the hand of the 
 great advocate, and the weapon pierces the bladder wi' h remorseless effect. 
 
 D 2 
 
( 52 ) 
 
 ■ ''■: ':..'-V> . '. 
 
 y/. — T/te Attorney-GeneraV s Argument, Continued. 
 
 And now we reach the zenith of the United States argument ; assume we 
 have established something, even though it be but an " industry,'' and assum- 
 ing further that it is injuriously affected by the pelagic sealer, we have a 
 right to protect that industry and prevent that injury from happening. 
 
 The Attorney-General's attack on this position was directed at first, of 
 course, against the first assumption. " It is obvious that if I have succeeded 
 in establishing that there is no right to protect, it becomes quite unnecessary 
 to consider what are the rights of protection." But though the case might 
 have been rested there, it was impossible to pass by Mr. Phelps's elaborate 
 argument contemptuously, and therefore the question had to be seriously 
 argued. 
 
 Now what was the claim of protection which the United States made ? To 
 search, to seize, to condemn to confiscation the ships, and to imprison the sub- 
 jects of a friendly Power in the piping times of peace. A claim so large must 
 necessarily be supported by precedent ; and that long list of cases already alluded 
 to was brought out to support the claim. It is true that many things have 
 been done in the almighty name of war at many stages of the world's history ; 
 nay, more, that some have been and do stand justified before those Tribunals 
 which have the deeds of war in charge : that there is a law which those 
 Courts administer and which deals with war, and which it may justly be said 
 is bottomed on, recognizes indeed the principle of, self-defence. The funda- 
 mental fallacy in this connexion is found in the proposition that a State has 
 in time of peace a right under international law, and in its full rights of self- 
 defence and self-preservation, to do on the high seas whatever it may conceive 
 to be necessary to protect its property or its interests. That I conceive to be 
 an un80un<l proposition. It makes the rights in time of peace the same as the 
 rights in time of war." But the fundamental fallacies do not end here ; a 
 vicious trail of fallacious analogy raa through the application of all the cases 
 cited. The argument " confused a variety of actions upon the part of States, 
 and treats them as if they were all of the same character, to be explained and 
 defended upon the same grounds, although, in fact, they are different in 
 character and are defensible or are explicable by very various reasons." 
 
 It would be impossible to condense the answer into a neater or happier 
 sentence than the Attorney-General's short summary : — " My learned friend 
 
THE AITORNEY-GENERAL'S ARGUMENT. 53 
 
 in his argument has confounded acts done in a state of belligerency with acts 
 done ill time of peace ; and, further, he has confounded acts which a nation 
 will do in defence of what it conceives to be its interest with what it may 
 legally do under the sanction of international law." The nut cracked, here 
 was the kernel of the whole matter. Some things are lawful for belligerents 
 to do; the stern necessities of war impose duties even on neutials, duties 
 which the Tribunals of war will enforce. And some things are not lawful ; 
 yet there is an imperious necessity which impels nations, and men too, to do 
 them and stand the racket. If there is no other way out of the difficulty, the 
 thing will be done and the consequences taken so long as the imminent danger 
 be averted. Could a better example be found than the case of the " Trent " ? 
 The seizure of Messrs. Mason and SUdell on board the neutral " Trent" was as 
 wrong, as unlawful by international law, as a thing could be. The coaling 
 of Her Majesty's ships of war would have been the inevitable consequence had 
 not the men been released. There cannot be, nor ever was, any pretence for 
 saying that there was any doubt about the illegality of the seizure, but the 
 Federal Government did it deliberately, running the chance of war, in view 
 of something which seemed to them an imminent peril, and when the peril 
 had passed away they the more willingly released the men. " It is an illustra- 
 tion," said the Attorney-Genernl, "of the case in which a nation puts itself 
 outside international right, and where the only defence of its position must be 
 that it considers itself morally justified in doing the thing, and is prepared, if 
 necessary, to fight in defence of having done it." 
 
 But the law takes regard of imminent peril, and justifies certain acts where 
 something which may properly be regarded as instant action is necessary to 
 avert it. The old Italian writer Azuni cites as exami)les of this princii)le 
 jettison, the demolition of a house to prevent the spread of fire, taking one's 
 neighbour's timber to raise the bank of a stream which is on the point of 
 overflowing. In such and similar cases it is enough to repair the damage in 
 order to prevent complaint. And the same rule may be applied to nations. 
 The principle was, indeed, laid down by Mr. Webster in the correspondence 
 between the United States and Great Britain in the case of the "Caroline"; 
 there must be " a necessity of self-defence, instant, overwhelming, leaving no 
 choice of means and no moment for deliberation ; . . . an act justified 
 by the necessity of self-defence must be limited by that necessity and kept 
 clearly within it." But apply this principle to the Behring Sea seizures, 
 nothing can be clearer than the fact that it wv» a case *' \vh«ire there was no 
 such instant overwhelming necessity of sell-defence, where there was time for 
 choice of means, where there was time for deliberation, where there was time 
 for diplomatic expostulation and representation. 
 
 And the corollary of the principle is that cut-and-dried rules, the haling 
 before the Courts to receive sentence of fine and imprisonment, the whole 
 procedure laid down by statute, were utterly at variance with the notion of 
 
64 THE BEHRING SEA ARBITRATION. 
 
 that instantaneous, spontaneous, almost automatic act of self-defence which 
 the law recognizes; for otherwise, how could the act be limited by the 
 necessity and kept clearly within it ? 
 
 And if the case is deprived of any help from this principle it falls, and must 
 fall, outside the domain of law altogether. The United States might choose 
 to regard the interests of fur-sealing as of so much importance that they 
 would assert, right or wrong, their claim against the world to protect the fur- 
 seals in Behring Sea. But that would be war. And so, too. Great Britain 
 might consider the interests involved in this question as of so great an im- 
 portance, not merely to the interests of the Canadians, but in view of the 
 broader and greater principle involved — the equality and freedom of nations 
 on the high sea — that she would defend her ships by force. But that, again, 
 is war. That is not international law ; that is not international right ; and 
 that is not the character of the question which this Tribunal has been invoked 
 to determine. 
 
 This question glides almost imperceptibly into the next, which is the most 
 curious, not to say original, part of Mr. Phelps's argument. The interpretation 
 put by Judge Dawson upon the Alaskan statute involved two points — first, 
 that the term *' waters of Alaska," within which the killing of fur-seals was 
 prohibited, comprised all the waters of Behring Sea to the east of the line of 
 demarcation drawn by the Treaty of Cession of 1867 ; secondly, that the pro- 
 hibition applied to foreigners. 
 
 In dealing with this interpretation two principles stared Mr. Phelps in the 
 face — legislation never is extra-territorial unless it is so expressed in definite 
 terms; ifit is so expressed it is limited to subjects. Now here were the horns 
 of a dilemma. If the Judge was right as to the construction of " waters of 
 Alaska," an unwarranted assumption either of dominion or of jurisdiction was 
 involved. If the limit of territorial waters was observed, the statute, though 
 it could apply to subjects, could not apply to foreigners without violating a 
 principle fundamental to legislation. How, then, were foreigners to be included 
 in the punishment imposed by the law and yet preserve these two principles 
 intact, the clearness of v^hich the United States admitted — nay, wondered why 
 they were ever referred to? And this was the seat which Mr. Phelps found 
 for himself between tbj horns. As to these statutes, " within the territory 
 where they prevail, and upon its subjects, they are binding as statutes, 
 whether reasonable and necessary or not. Without, they become defensive 
 regulations, which, if they are reasonable and necessary for the defence of a 
 national interest or right, will be submitted to by other nations, and if not, 
 may be enforced by the Government at its discretion." Was ever so strange 
 a proposition propounded by learned Counsel or Professor ? If it were not 
 irreverent it might be put in the form of an ancient conundrum — When is a 
 statute not a statute ? To which the answer. When it is a defensive regula- 
 tion. But even taking it au plus grand serieux it is only a proposition to be 
 
• • THE ATTORNEY-GENERAL'S ARGUMENT. 55 
 
 brushed aside as unheard of and unsound. Is there any precedent in any 
 book of authority or in any international controversy in which such a proposi- 
 tion has ever been advanced? Surely the Attorney-Geueial was right in 
 posing this as the first question which must engage tlie attention of his learned 
 friend, when the time came for him to answer. And then there is tlie 
 question already propounded in connection with the general subject of self- 
 defence, — Does not the very idea of defensive regulation, or defensive act, or 
 self-preservative act, repel the idea of cut-and-dried, formulated rules ? The 
 occtisions for acts of self-defence are occasions of sudden emergency. And, 
 further, how would a Court act if it were called upon to enforce such a 
 defensive regulation ? Would it not — for the iirinciple governing the law of 
 self-defence has already been laid down — would it not consider " the circum- 
 stances of the case, the character of the emergency, and the character of the 
 sanction which by international law would follow upon the act done if it were 
 not justified by the circumstances of the case ? But here is a cut-and-dried 
 statute, which tells the Judge that the consequences of the act on which he 
 has to adjudicate are confiscation of the ship, imprisonment of the men — 
 imprisonment not exceeding a definite term — or imposition of a fine not 
 exceeding a definite amount. This argument of a self-defensive regulation is 
 an ingenious after-thought, creditable to the subtlety of the minds which 
 have invented it." 
 
 Mr. Phelps, however, was not content with the more propounding of such 
 a theory; he insisted, as he insisted with regard to his major proposition on 
 the right of self-defence, that he was supported by analogy. And this time, 
 in search of analogies, he roamed from Ireland to the China seas ; glaneiog at 
 the White Sea and the Norwegian fiords, he passed rapidly to tlie ancient 
 pearl fisheries of Ceylon, and thence to the newer beche-de-mer fisheries of 
 Australia ; touching the nortliern island of Japan, he darted southward again 
 to Mexico, Uruguay, and Panama, then northward to the Jan Mayen fisheries 
 off Grenland, and so home to the islands of the Pehring Sea. And in tliis 
 rapid survey of the world he had noted specially how Legislatures under 
 difterent circumstances and difi"erent suns had dealt with fish of sorts, with 
 fisher-folk in general, and in special with foreigners who sought fish in the 
 deep waters adjacent to national territory. And the unanimity of action was 
 remarkable. Was it to be sugiiested even that where close times had been 
 enacted nationals were excluded from the fisheries while foreigners were 
 allowed to take with impunity, and this merely because of the hard-and-fast 
 rule as to the territoriality of legislation ? The thing was ridiculous, and the 
 answer so simple. Why, within the jurisdiction and for subjects the statutes 
 were statutes ; but without the jurisdiction for foreigners they became .. 
 defensive regulations. It seemed a pity to have to demohsh so pleasant and 
 pretty a theory, but it had to be done, and every brick of the edifice was 
 carefully takcu out, examined, and found absolutely useless for the paqmse 
 
56 THE BEHRING SEA ARBITRATION. 
 
 for which it had been used. As it had been with the Greytown and Appala- 
 chicola river analogies, so it fared with the legislative analojries. Some were 
 found to be strictly confined to territorial waters, others to national ships ; some 
 were to be found sanctioned by prescriptive claim to embayed waters, and some 
 few, which dealt with oyster, pearl, and coral beds, and which stretched a few 
 miles into the sea, found an ample justification in the nature of the subject- 
 matter of the legislation and the principle that the physical occupation of the 
 bed of the sea is justified. But of analogy with the great claim in Behring 
 Sea not a shred, and of support to this wonderful new principle of Mr. Phelps 
 not a vestige. 
 
 Mr. Phelps's analogical powers were not yet exhausted. The Hovering 
 Acts, the St. Helena Act of 1815, and the Quarantine Acts were pressed 
 into the service. A short argument sufficed to dissipate any faint resem- 
 blance which might have seemed to exist. The Hovering Acts, passed by 
 many nations for the prevention of smuggling, are, to a certain extent, 
 independent of the three-mile limit ; but beyond this all resemblance either 
 of fact or of principle ceases. They simply deal with the prevention of offences 
 within the jurisdiction, and with ships proceeding to the territory of the 
 country to commit them. The Quarantine Acts are of the same nature. 
 " Parliament," said Chief Justice Cockbum in The Queen v. Keyn, " has a 
 perfect right to say to foreign ships that they shall not, without complying 
 with British law, enter into British ports, and that if they do enter they shall 
 be subject to penalties unless they have previously complied with requisitions 
 ordained by the British Parliament." And as for the Act passed to prevent 
 the escape of Napoleon from St. Helena, and which to that end prohibited 
 hovering within eight leagues of the coast, the analogy was so far-fetched 
 that it was almost impossible to treat seriously all the bombastic nonsense 
 Mr. Blaine had written about it. But history is made up of many incidents, 
 and some drop out and are forgotten till the moment comes after many years 
 to call them to remembrance. This Act was the result of an understanding 
 between the allied Powers, which was embodied in a Treaty, by the second 
 article of which the custody of their prisoner was specially entrusted to the 
 British Government. The United States was not one of the allies, but a 
 Treaty of commerce was at that time being concluded between Great Britain 
 and the States ; and the ratifications were exchanged only after an express 
 understanding that the lil>erty which it granted to United States vessels of 
 touching for refreshment at the island was to be considered in abeyance so 
 long as it should continue to be the residence of the Emperor. 
 
 But it seemed lost labour to spend so much time sweeping away the 
 analogies with so much care that no speck of them remained, when behind 
 them all was that extraordinary contention, broadly, roundly, squarely stated, 
 that the rights of defence are the same in time of peace as in time of war — 
 that is, that they involve, if need be, search and seizure upon the high sea ; 
 
THE AITORNEY-GENERAL'S ARGUMENT. . ; 5f 
 
 condemnation before tribunals, which the United States Counsel persisted, 
 to show their I'gic, in calling " Prize Courts " (but for which the Attorney- 
 General substituted " War Tribunal ") ; imprisonment Have the 
 
 names of Sir William Scott and Chief Justice Marshall lest their power 
 to charm ? There is no mistaking their language : — " If it be asked 
 why the right of search does not exist in time of peace as well as in 
 war, the answer is prompt — That it has not the same foundation on which 
 alone it is tolerated in war — the necessities of self-defence. They introduced 
 it in war, and practice has established it. No such necessities have intro- 
 duced it in time of peace, and no such practice has established it." Such has 
 been the language of every Judge who has spoken on the subject. And as if 
 this was not fnouc^h, if it were necessary to pile Pelion on Ossa, there were the 
 utterances of Presidents and Secretaries of State (carefully arranged in chrono- 
 logical order right through the years of the century) resisting, or protesting 
 against search in time of peace, through which the words of the Judges echoed 
 and re-echoed : — " The right of visitation and search is a belligerent right, and 
 no nation which is not engaged in hostilities can have any pretence to exercise 
 it upon the open sea." "Any visitation, molestation, or detention of vessels 
 bearing the American flag by force, or by the exhibition of force, on the part 
 of a foreign Power is in derogation of the sovereignty of the United States." 
 What the United States protested against at the time of the Ashburton 
 Treaty it claimed to exercise in defence of some shadowy right which it was 
 not necessary to put higher than, nor indeed could be put higher than, the 
 right to an industry which every other industrial worker in the world 
 possesses ; in defence of this supposed right it asserted the legal power to 
 exercise "those acts of high authority on the high seas which are only per- 
 mitted by international law to belligerents, or only allowed to be exercised 
 against pirates, with whom no nation is at j.eace. " 
 
 The violation of the freedom of the seas has led, and will lead, nay, must 
 lead, to war; the submission to arbitration is a victory for peace. The 
 award will be a victory for peace, too, if, " it conform to and leave untouched 
 and undoubted the principles of that law which have been consecrated by long 
 usage and stamped with the approval of generations of men — that law which 
 has, after all, grown up in response to that cry of humanity heard through 
 all time, a cry sometimes inarticulate, sometimes drowned by the discordant 
 voices of passion, pride, ambition, but still a cry, a prayerful cry, that has 
 gone up through all the ages, for peace on earth and good will amongst 
 men." 
 
( .58 ) 
 
 REGULATIONS PROPOSED BY THE UNITED STATES. 
 
 " The Government of the United States, in the event that the 
 determination of the High Tribunal of certain questions descril)ed 
 in the Seventh Article of the Treaty as ' the foregoing questions as 
 to the exclusive jurisdiction of the United States' should, as 
 mentioned in said Seventh Article, 'leave the subject in such a 
 condition 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, Behriiig 
 Sea,' submits that the following Regulations are necessary and 
 that the same should extend over the waters hereinafter in that 
 behalf mentioned : — 
 
 "First: No citizen or subject of the United States or Great 
 Britain shall in any manner kill, capture or pursue an\ wheie 
 upon the seas, within the limits and boundaries next hereinafter 
 prescribed for the operation 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 the above- 
 mentioned natitms of the North Pacific Ocean or Behring 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 the 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 propelled wholly by paddles, and manned by 
 not more than two men each, in the way anciently practised by 
 such Indians. 
 
 " Third : Any ship, vessel, boat or other craft (other than 
 the canoes or boats mentioned 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 
 killing, pursuit or capture of said seals, or prosecuting a voyage 
 for that purpose, within the waters above bounded and described, 
 
REGULATIONS PROPOSED BY GREAT BRITAIN. )59' 
 
 may, with her tackle, apparel, furniture, provisions and any seal- 
 skins on board, be captured and made prize of by any public 
 armed vessel of either of the nations aforesaid ; and, in caKO of 
 any such capture, may be taken into any port of the nation to 
 which the capturing vessel belongs and be condemned by 
 proceedings in any court of competent jurisdiction, which 
 proceedings shall be conducted, so far as may be, in accordance 
 with the course and practice of Courts of Admiralty when sitting 
 as Prize Courts." 
 
 REGULATIONS PROPOSED BY GREAT BRITAIN. 
 
 1. All vessels engaged in pelagic sealing shall be required to 
 obtain licences at one or other of the following ports : — 
 
 Victoria, in the province of British Columbia. 
 Vancouver, in the province of British Columbia. 
 Port Townsend, in Washington Territory in the United 
 ■"■ States. ^' ■■■■-■■: ■:/>■:. ■•- • ':''./■ :■■■.--.-'.:. ■"■ ,-) v -■ " : 
 
 San Francisco, in the State of California, in the I'nitcd 
 States. 
 
 2. Such licences shall only be granted io sailing vessels. 
 
 3. A zone of twenty miles around the Pribylof Islands shall 
 be established, within which no seal hunti ag shall be permitted at 
 any time. 
 
 4. A close season, from the 15th September to the 1st of July, 
 shall be established, during which no pelagic sealing shall be 
 permitted in Behring Sea. , 
 
 6. No rifles or nets shall be used in pelagic sealing. 
 
 6. All sealing vessels shall be required to carry a distinguishing 
 flag. 
 
 7. The masters in charge of sealing vessels shall keep 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. Licences shall be subject to forfeiture for breach of above 
 regulations. 
 
( 60 ) 
 
 VII. — Regulations. 
 
 Complete prohibition of jK-lagic sealing within four million square miles of 
 sea. Such is the sim])le little regulation which the United States proposes to 
 the Tribunal as the solution of the whole matter. 
 
 Four million square miles of broad Pacific Ocean put under the ban! and 
 within that area it is contemplated that " if citizens or subjects of the United 
 States or Great Britain shall in any manner kill, capture, or pursue any of 
 the animals commonly called fur-seals, the ships found engaged in such 
 capture or pursuit, or prosecuting a voyacje for that purpose, may, with their 
 tackle, apparel, furniture, provisions, and any seal-skins on board, be captured 
 and made prize of by any public armed vessel of either of the two nations, 
 and may be taken into port and be condemned by proceedings conducted 
 so far as may be in accordance with the course and practice of Courts of 
 Admiralty when sitting as Prize Courts." 
 
 In order to consider the matter quite calmly and dispassionately, let us 
 first take a map and colour in the area red, just to realise the extent of it. 
 It is as big as Europe with the Mediterranean Sea thrown in. To this it is 
 necessary to add, for the benefit of those who have not had the pleasure of 
 studying seal-chartt», that the waters which are " north of the 35th parallel 
 of north latitude and east of the 180th '' ndian of lonuitude west from 
 Greenwich " include the whole migration route of the so-called Alaskan seal- 
 herd as laid down by the United States. 
 
 One further point only needs to be remembered in order fully to realise the 
 true nature of the United States proposal. The question of regulations is 
 to be considered only in the event of the questions of right being determined 
 in such a way that the concurrence of Great Britain is necessary to their 
 validity. So that the condition precedent to the consideration of this question 
 is the negation of the right of property or protection, which the United 
 States claims. 
 
 Now, if in the wilder moments of a dream it were possible to imagine that 
 this claim to property had found its warrant in law, it would carry with it, 
 if not an inherent right of protecting the property in its wanderings, at least 
 a right to claim from the Tribunal the protection of stringent regulations — 
 the complete prohibition of pelagic sealing. And the area of this protective 
 prohibition would obviously cover that area of sea through which the 
 
REGULATIONS. tt 
 
 wanderers regularly travel. At the very outset, thererore, the nature of the 
 United States demand is brought home to us. With property negatived, 
 they claim precisely what they would be entitled to demand if property had 
 been affirmed, with this addition, that Great Britain shall assist in enforcing 
 a regulation which can only inure to the sole benefit of the United Statis. 
 Mr. Phelps has made a great ix)int in his argument that the British case from 
 the first has been nothing more than an elaborate defence of the pelagic 
 sealer. £n revanche, the suggested regulation appears to be only a scheme 
 for the complete annihilation of the pelagic sealer. Now, if wo look at the 
 question merely from the point of view of the pelagic sealer, one point 
 inevitably comes uppermost. The dispute between the two countries was 
 about part of Behring Sea; qu'allait-il done /aire dana cette galere de 
 Pacifique f Is it not a little bewildering to find that the mouse has brought 
 forth the mountain ? 
 
 The Behring Sea dispute in many of its aspects needed serious disputation ; 
 but how could it engender regulations operating outside the area of the 
 dispute ; to put it technically, how comes it that the Tribunal has jurisdic- 
 tion to entertain, much less to adjudicate upon, any question which is not 
 confined, and rigorously confined, to Behring Sea? It seems strange that, 
 when a dispute has arisen about a given subject, the settlement of it should 
 deal with a much larger subject ; and yet this is precisely what the United 
 States have asked by their extraordinary scheme of regulations. The dispute 
 was as to the rightfulness or wrongfulness of pelagic sealing in Behring Sea, 
 and in Behring Sea alone ; that was the question, the whole question, and 
 nothing but tlie question. When Great Britain suggested that the modus 
 Vivendi of 1891 should include tiie western as well as the eastern part of 
 Behring Sea, it was from the United States that the answer came, that it was 
 never supposed that an agreement for a modus vivendi could be broader than 
 the subject of contention; and yet again on another occasion it was the 
 United States Minister who was " directed to say that the contention between 
 the United States and Great Britain has relation solely to the respective 
 rights of the two Governments in the waters of Behring Sea outside ordinary 
 territorial limits, and the stipulations for the co-operation of the two Govern- 
 ments during this season have, of course, the same natural limitation." And 
 so now, when this vast area of the Pacific is brought within the United 
 States claim, and under the condition which cannot be too often insisted on, 
 that they have no right or title at all to the seal, Great Britain replies that 
 the area of the dispute was Behring Sea, and that the area of its settlement 
 must be coincident. 
 
 So strange a proposition deserves repetition. A dispute as to the la vful- 
 ness of pelagic sealing in Behring Sea; an interminable discussion as to 
 whether the United States had any right to act as they had done in Behring 
 Sea ; no question as to the legality of pelagic sealing in the broad waters of 
 
G2 THE BEIIRINO SEA ARBITRATION. 
 
 tho Pacific south of the Aleutian Chain, for the very obvious roaeon that they 
 were tho broad waters of the Pacific and nobody had asserted exclusive juris- 
 diction over them ; and, for all the inhumanity, and barbarity, and shocking 
 cruelty, and all tho rest of it, tho Government of the United States had never 
 attempted, as they might have done, to stop their own citizens from perpetra- 
 ting these monstrous acts there, from acting as Jiostes humani generis; and 
 yet, when the question in dispute is submitted to arbitration, it is projwsed 
 that tho result of the settlement should extend outside Behring Sea, and 
 extend outside, too, when the "fatuous flame" of United States rights had 
 been extinguished. As the British Counsel pointed out, if the Court has 
 jurisdiction to make regulations outside Behring Sea, Great Britain would be 
 worse off if she won on the questions submitted to arbitration than if she had 
 never consented to the reference. And if on general considerations the pro- 
 l)osal seems impossible, on the special considerations arising from the terms 
 of the Treaty of Eeference it seems still more impossible, llegulations arc to 
 be made if the determination of the questions of right leaves the question in 
 such a position that the concurrence of Great Britain in them is necessary; 
 " concurrence necessary " — that is, by reason of the freedom of ship'i upon the 
 seas. What else could the words mean ? But as to Behring Sea there was a 
 dispute on this very subject; the question had been deliberately raised by tho 
 claim of exclusive jurisdiction in Behring Sea, whether ships were free in 
 Behring Sea. If that claim were upheld by the Tribunal there would be no 
 need for '* regulations," because then the United States could pass her own 
 laws for that area ; but if that claim were denied there would have to be 
 " regulations " made by tho Tribunal to which the concurrence of Great 
 Britain would then be necessary, and which she is in fact by the Treaty 
 pledged to give. The regulations article of the Treaty begins with an •' if"; 
 there was a contingency as to this concurrence of Great Britain being neces- 
 sary ; and the argument is that this limits to Behring Sea the area to be 
 made subject to regulations, for the simplest of reasons, that outside Behring 
 Sea there is no " if" at all about the matter ; the concurrence of Great 
 Britain would be necessary always, and under every circumstance. Tho 
 virtue of this "if" is, therefore, that it embodies the condition precedent for 
 diminishing the freedom of the Behring Sea for British 8hii)S. If the United 
 States' claim of exclusive jurisdiction is upheld, that freedom is at an end ; 
 if the claim is denied, her consent is required before that freedom can be 
 diminished. But, once more, if the regulations may be made outside Behring 
 Sea wherein there was no contingency to be determined on, the condition pre- 
 cedent of the regulation article becomes mere superfluity, mere absurdity. A 
 minor point on the construction of the article deserves a passing reference — the 
 regulations are to be made " for the proper protection and preservation of the 
 fur-seal in or habitually resorting to tlic Behring Sea." The American argu- 
 ment is that, because tlie seals in the Pacific " habitually resort " to Behring 
 
REGULATIONS. 9$ 
 
 Soa, therefore when thoy are in the Pacific tlicy may be protected. It is as 
 if power wore ^"[iven to the municipality of Paris to make re<;ulationH for the 
 health of people in or habitually resorting to that city. How could it bo 
 ari^ued that the regulations should extend to those habitual resorters while 
 they are yet in London ? 
 
 But the question of regulations must obviously be considered on a broader 
 ground, the necessity — admitted by both parties, by Great Britain as sin- 
 cerely as by the United States — of preserving the fur-seal from extermination. 
 The |)revioii8 discussion will have indicated clearly the British argument as 
 to what ought to be the key-note of any scheme of regulations which shall 
 ba "just and equitable" to both of the great disputing parties — parity of 
 interest. The object of the regulations is the preservation of the fur-seal, so 
 that both interests may continue to be exercised. It is this point, which, as 
 it would seem, the United States advisers have never brought themselves to 
 realise; the failure to recognise its just necessity is the vice which has dis- 
 figured all their arguments on the subject. 
 
 Tlie fact has already been insisted on that the alleged necesiiities of this 
 jjresei-vation are precisely identical with the admitted necessities of property 
 if it existed. It is impossible to resist the inference that interest in the fur- 
 seal's preservation is only the property claim in anotlier form; and, indeed, in 
 Mr. Phelps's argument, " preservation of the fur-seal " and " preservation of 
 the United States industry from injury " seemed almost interchangt-ablo 
 terms. The American argument seems, indeed, condensed in this single 
 sentence — "Give us regulations" — that is, "give the United States the 
 regulations for their .protection." And, indeed, the suggested regulation, 
 if it were imposed upon Great Britain, would create for the United States 
 just that monopoly in the fur-seal industry which the failure of their property 
 and exclusive jurisdiction arguments (the hypothesis, be it remembered,, on 
 which regulations come up for discussion) has prevented their establisliing. 
 The British suggestion has been criticised as insincere. Is tliere not a touch 
 of insincerity in the United States suggestion ? And, if the end for which 
 it was introduced is insincere, all the arguments used to advance that end are 
 tainted. All the sentiment about inhumanity, barbarity, slaughter of gravid 
 females and nursing mothers seems, to say the least of it, strained ; that lurid 
 picture of the schooner decks swimming in milk and blood seems to derive 
 some of its tints from the coloured fires of Mr. Carter's oratory. Is there 
 more inhumanity in pelagic sealing than there is in the chase of any other 
 wild animal ? Is not the tu quoque fully warranted, " What about the 
 buffalo and the passenger pigeon ? " And, if there is no real inhumanity, 
 and if all the natural history in the American case is too high-strung, the 
 noed for this extended area of protection vanishes at once, and we are left 
 face to face with the one necessity of this branch of the case, the regulations 
 which shall be just and cijuitablc, and which shall recognise parity of 
 
64 THE BEHRING SEA ARBITRATION. 
 
 interests; and, recognising parity of interests, shall not promote oi foster 
 directly, much less indirectly, an exclusive interest. 
 
 The object, then, which the regulations have in view is the preservation of 
 the fur-seal, and Great Britain has been as zealous in suggesting means to 
 this end as the United States. To the mere suggestion of this the United 
 States retort — How can you be sincere when you raise a technical objection 
 to regulations which are to operate in the very place where regulations are 
 most needed, the Pacific Ocean, where all the gravid I'emales, &c. ? It is a 
 serious objection on the face of it, but it is capable of the most direct and 
 complete answer. 
 
 In the first place, it entirely misconceives the British position. The 
 correspondence shows in the ckarest munner possible that, as soon as the 
 questions so deliberately raised by the United States were out of the way, 
 the desire of Great Britain was that the whole question of the preservation of 
 the fur-seal should be dealt with comprehensively, and without limit as to 
 any particular seas or islands. Clear away all the pretensions of exclusive 
 jurisdiction and property, and Great Britain was as desirous of attaining that 
 end as the United States ; she was willing on her side to submit the rights of 
 her sailois in the Pacific to regulations, if the United States, on the other 
 side, would submit to regulations on the islands. If either set of regulations 
 was omitted the preservation scheme would be incomplete, and, if incomplete, 
 how could i*' '^^ the scheme which was necessary to the occasion, apart 
 altogether from the ta^t that such a scheme would foster the monopoly which 
 the United States so much desires, and the right to which has, when regula- 
 tions are approached, been negatived. No, the simple position of Great 
 Britain has been all along that the rights of the two countries should be 
 brought into hotchpot; that the parity of interests should be subjected 
 to parity of rules. As it seemed to Great Britain, there could be no other 
 way ©f dealing with the only rights which remain when the rights claimed 
 by the United States were negatived — the right, that is to say, of the pelagic 
 sealer to catch what he can; the right, the exclusive right, of the island 
 scaler (that is, the Government of the United States or its lessees) to catch 
 tho seals while they are on the islands. Admit the necessity of regulations 
 to ix; great ; the necessity of enforcing them against the island sealer is all 
 the greater for his boast that he could utterly destroy the herd upon his 
 islands. 
 
 But the United States have resisted, and still resist, island regulations in 
 any form whatever. They have contended, not without some show of 
 plausible reason, that the Tribunal has no jurisdiction to make regulations 
 for the islands, for the words of the Treaty are clear — " The Arbitrators shall 
 then deteruiine what concurrent regulations outside the jurisdictional limits 
 of the respective Governments are necessary, and over what waters such 
 regulations should extend." But is not the answer complete? Be it so; 
 
■'■- ,V;--^ ■^■'^■'■:,. ;'-':• ■ REGULATIONS. 
 
 bo 
 
 ioeffecHve in l^^ the ™t> Sr^r^^ "" '' "^^ "" '*''^ '° •"■ 
 and they are not onlv ;;nliM„ T P'l^'f-"'^ preservation of the fur-Ml ; 
 
 they indud: r/e" plac t rtiot r ' ™;'' ''' *^^ "^"°°"° '' •» 
 that very place where n! vl? " :'™' '"*'■"' ' ""''^ "'<'y m=l"<i« 
 
 the islands ThTv^; It ^' ^°'' ™ ''""•"^ ""'^ »«" «^' monies on 
 
 the res etve'or r tr?r l^' ^r :; d r'f °'"''" '™"' "' 
 regulated within the Jurisdic iona L°° i^l o tt r 'T'°' ""'■ 
 
 not enough to sav thi «.lf ,-„t. . i "" Oc'irnnients. Jt is 
 
 the seals on the Wanfs U h t™ I "°T' *' ^'^'^ ^tetes to preserve 
 insuffleient „ t^ ?uLe Unferl'"'?'" "''".' " """ P^'' " ">»' P"™ 
 United States come iutoL s^wT ' » '*"'• f '^=''' ""^ f"* "'1 «>« 
 unnecessary; and a euj^!„!,r' ,""""" "* °"'^' *'"' toP<^rfect and 
 of the on,Ll TlTZ: rnfwSth "chGt't bT' T '"' °"""" 
 consented ,o rc-gulatious! w,^uld s"m to be ^ifA ''"' 1'?°*''"^ 
 
 Tribunal may consider itilrcompelW to adop, "' ' """^ "'""''.«"' 
 
( 66 ) 
 
 VIII. — The Award. 
 
 So, it is all over. And Great Britain may shout ** lo pcean ! " But though 
 she shout it somewhat loudly for awhile, she will not add to it "Woe to the 
 conquered ! " The gloves will be taken ofif, and put by to await the settlement 
 of the next cause of quarrel between the cousins. 
 
 And, speaking of cousins, it may be well to insist on a point which the 
 United States too persistently forgot throughout the whole of the proceedings. 
 The Counsel on the other side dwelt too much on the fact of its being a 
 "colonial cause of action"; one which Great Britain would not have been a 
 party to if she could have helped it, or, being a party, would have settled 
 quickly in the gate if she could have had her own way. There was too much 
 commiseration for Great Britain on the part she had to play. The United 
 States have to learn, nay, have already learnt, that the cause of the Colony is 
 Great Britain's cause, and Great Britain's cause the Colony's ; that the cousinly 
 relationship extends to the whole family, and that the British motto is "Any 
 number joined in one." 
 
 But, putting on one side this little matter of forgetfulness, it will be well, 
 before the Ukases, and the Charter.^, and the Treaties, and all the polite corre- 
 spondence are put back upon the shelves where dust and moth accumulate, 
 and where readers never pry — it will be well to glance lightly over the points 
 which the Award has settled. If only for this reason, that it is something to 
 think that here are certain questions which may never, while life remains, 
 be re-opened, diplomatically or otherwise ; that there are some matters which 
 are now, for good and all, definitely, finally, utterly, irretrievably settled and 
 past praying lor. 
 
 The now celebrated " five questions " have been so often stated that it is 
 needless to re-state them. The briefest summary of the answers will serve 
 my purpose. The first answer (Senator Morgan dissentiente) declares that, 
 save for that momentary assertion of jurisdiction in 1821, Russia never 
 asserted in fact nor exercised any exclusive jurisdiction in Behring Sea or any 
 exclusive rights in the seal fisheries therein beyond the ordinary limit of 
 territorial waters. This answer disposes at one fell swoop of some sixty- 
 eight years of history. It brushes away with a light hand the contention 
 that Russia ever persisted in that extraordinary claim which she made by the 
 Ukase of 1821, to a jurisdiction over a hundred Italian miles to seaward 
 
THE AWARD. 67 
 
 along the coasts of Asia and America and the Aleutian Islands, over wluch 
 she then asserted sovereignty. It declares that she abandoned that claim 
 entirely, and rested thereafter content with the territorial waters recognised 
 by international law. It disposes of the contention that the protest which 
 the United States made to that Ukase was limited to the shores south and 
 east of the Aleutian Islands, inferentially putting, so to speak, its finger upon 
 the weak spot of the contention — " What did John Quincy Adams mean by 
 saying that the United States could admit no part of a claim which extended 
 from Behring Straits, down to 51° north latitude, if he did, as you assert, in 
 fact admit so much of it as applied to the shores of Behring Sea?" And it 
 does something more ; it restores language to its normal meaning, and so gives 
 us back the breath which Mr. Blaine'? argument as to the meaning of this old 
 correspondence had fairly taken away. So much for the maritime jurisdic- 
 tion. Then as to the fur-seal fisheries, it deals in the kindest way imaginable 
 with that quasi-histovical fact, which Veniaminof recounts, that Captain 
 Pribylof tracked the seals to their home upon those islands which there- 
 after bore his name ; and as to Russia's exclusive rights in those fisheries, 
 either asserted or exercised, it brushes all the evidence (though indeed 
 there was very little which merited that name) away as not establishing 
 the point. It of course disposes also of that clever aliter which Mr. Phelps 
 produced, by way of argument, when it became only too apparent that the 
 derivative descent idea must be abandoned — that jwasi-prescriptive claim 
 which asserted as its basis of fact that Russia had done in all those years, 
 in the way of " cherishing " the fiir-seal and *' fostering" the industry and pro- 
 tecting it, preci&ol;' what the United States was doing, or endeavouring to 
 do, now. As the Award merely ignores this argument, of the two suppositions 
 —that the facts were not as stated, or that if they were as stated they were 
 irrelevant — we may choose the latter as being more consistent with the law 
 of the matter. So much for question number one. 
 
 Senator Morgan still breaks the harmonious unanimity by dissenting from 
 the answer to the second question which declares that Great Britain neither 
 recogn.sed nor conceded any claim of Russia to exclusive jurisdiction in the 
 seal fisheries outside territorial waters. If there were no claims, well " these 
 claims I cannot recognise because they were never made," seems sufiicient 
 to dismiss the matter from our minds. Of course there were further questions 
 wrapped up in this second question. Supposing the claims had been made, 
 and supposing Great Britain had recognised them and conceded them, what 
 then ? Or again, supposing the claims had been made, and supposing (what 
 was indeed the likelier if we can make the first supposition) Great Britain 
 had not recognised and conceded them, what then ? Speculation as to the 
 probable consequences is idle. But it is to be noted that this finding supports 
 what has been the British contention all along — that in those acts which 
 Russia in fact did, as well as in those alleged acts which Russia in fact did 
 
 R 2 
 
et THE bEHRING SEA ARBITRATION. 
 
 not, there was no special reference (Ivan Petrof's forgeries out of the way) 
 to fur-seals, or to fur-seal herds, or to fur-seiil iiidustiies. The fur-seal was 
 one of the many jjroducts of the territory and the islands, and Kussia did 
 what she could to let her subjects make money out of them. But, in truth, 
 the solitary fact on which Mr. Phelps so much relied to make out his case 
 of acquiescence was that pelagic sealing did not begin until after 1880. His 
 inference that the sealers did not begin before because they knew they had 
 no right to do if, and his argument that it was too late then to establish 
 a right, were manifestly absurd ; but to the suggestion of acquiescence from 
 non-user. Lord Salisbury's answer seems all-sufficient : — " It is impossible to 
 admit that a public right to fish, catch seals, or pursue any other lawful 
 occupation on the high seas can be held to be abandoned by a nation from 
 the mere fact that for a certain number of years it has not suited the subjec*^^s 
 of that nation to exercise it." Indeed, the United States did not push their 
 argument so far as they might have done if it had been sound. Had it been 
 sou id, all the other nations were already out of it, and Great Britain was the 
 only one which stood in the way of their free and unfettered enjoyment of 
 these fur-seal fisheries. 
 
 In the answer to the first part of the third question we meet absolute 
 unanimity ; the water now known as Behring Sea was included in the phrase 
 " Pacific Ocean," as used in the Treaty of 1825 between Great Britain and 
 Russia. But Senator Morgan again dissents from the otherwise unanimous 
 answer to the second part of the question ; that answer decides that no exclu- 
 sive rights of jurisdiction or in the seal fisheries were held or exercised by 
 Russia outside the three-mile limit after the Treaty of 1825. The first part 
 of this question is the geographical form of the historical question pro- 
 pounded first; it need no longer detain us, and need never more trouble 
 us; so the old maps may be foldd up, and the Gazetteers may be put away. 
 It is probably the last time they will be used to decide a question as to which 
 there was so little doubt. And as to the second part of the question, its 
 answer merely re-iterales what the first answer settled — Russia had no rights 
 beyond such as were recognized by international law; she pretended to a 
 great deal more, but abandoned the pretensions before the Treaty of 1825 ; 
 therefore she neither held nor exercised any abnormal right," after said Treaty." 
 
 All these little matters being settled, wo come again to a unanimously 
 affirmative answer. All the rights of Russia as to jurisdiction, and as to the 
 seal fisheries in Behring Sea east of the water-boundary, in the Treaty between 
 the Unit(d States and Russia of March 30, 1867, did pass unimpaired to the 
 United States under that Treaty. Senator Morgan's " Yes " means, however, 
 rather more than that of his learned colleagues, by reason of his previous 
 dissentient votes. Thus do history and geography fight in their courses 
 against the United States ; and the law is on our side too. 
 
 Tim legal question was thus propounded, as the United States argument 
 
\ 
 
 THE AWARD. 69 
 
 said, to "Arbitrators pre-eminent for their knowledge of law" — 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 Behring Sea when 
 such seals are found outside the ordinary three-mile limit? Five of the 
 Arbitrators have answered " No," and are in favour of Great Britain ; tlie re- 
 maining two, Mr. Justice Harlan and Senator Morgan, have answered 
 "Yes," and are in favour of the United States. This divergence of opinion i? 
 much to be regretted, for the law seemed (if, indeed the word "law" were 
 used in its ordinary signification) and, with respect, still seems clear. But the 
 decision of the Tribimal settles some points here also, it may be sincerely hoped, 
 for ever and a day. It cstablislies as plain law the principles which the 
 Attorney-General and Sir Richard Webster contended were applicable to wild 
 animals, and which need not now be recapitulafed. It establishes, further, 
 that the fur-seal is an animal feroR vaturce, and falls, therefore, within the 
 bearing of these principles. It ruthlessly rejects all that chapter of natural 
 history, that sentimental, overdrawn picture of the Pribylof farmyard, which 
 the United States Counstl vied with one another in de|iictiug ; it rejects it as 
 a matter of fact, as unworthy of credit ; it rejects it as a matter having no 
 bearing on the law, even when much salt has reduced it to more probalile 
 dimensions. Let us hope, too, tliat it has made impossible in the future any 
 dissertation on moral law and the law of nature, and that Pulfendorf is laid to 
 rest for ever, with all the fantastic arguments that men will build on what he 
 wrote. 
 
 So much for the common law involved. But of far greater moment is the 
 decision for the quietus which certain weird doctrines take which the United 
 States tried hard to father on international law ; it has killed them 
 with a bare bodkin. It was, in all soberness, " with no mere idle use of 
 high-sounding phrase" that Great Britain declared chat she appeared "once 
 more to vindicate the freedom of the sea." Was, then, the freedom of the sea 
 in jeopardy ? Yes, a thout^and times yes. The right to come and go upon 
 the high sea without let or hindrance, the right to take therefrom its produce, 
 had been violated by the capture and confiscation of the Canadian sealing 
 schooners, by the fines and imprisonment imposed on the Canadian fishermen. 
 It was what Russia had tried to do in the days of Alexander— what, indeed, 
 she would have done had not Great Britain, and the United States herself, 
 stood in the breach. The false position from which Russia then immediately 
 withdrew the United States now took up, and, strange to say, persisted in. 
 And on what grounds? .Because of the industry she had established on the 
 shores of the Pribylof Islands, which the seals frequent. Herself rejecting, 
 for the purpose of this argument, the claim of property in the seals, either . 
 individually or collectively, she claimed that the i)rotection of that industry 
 justified acts which were, in fact, " those acts of high authority which, by the 
 law of nations, are allowed only to belligerents, or a;iainht pirates with whom. 
 
n THE 13EHRING SEA ARBITRATION. 
 
 no nation is at peace." Great judges, and great statesmen echoing their 
 words, on tJiis side of tlie Atlantic and on that, have said that a violation of 
 the freedom of the sea has led, and ever will lead, to war. Persistence in such 
 a course leads to strife which no words can heal. A nation's rights upon the 
 high sea in time of peace are not the same as those in time of war. And so 
 ihis arbitrament is, in very deed, a victory for peace, and the lustre of its 
 great renown will fall alike on those who gave the Award and on those 
 who asked it and accept it. "" ' ^ ^ 
 
 And many other things are settled by the Award, but which, for your 
 patience' sake and that of your readers, I dare not go into at length, but 
 cannot entirely pass by. It disposes for good and all of that extraordinary 
 contention of Mr. Phelps — that the " best international law has arisen from 
 precedents that have been established when the just occasion for them arose, 
 undeterred by the discussion of abstract and inadequate rules." When Philip 
 is once more sober he will adopt again — nay, be the first to adopt — the only 
 standard of international law known to nations — consent of nations : placuitne 
 gentibus f The courteous lawyer, the elegant diplomatist will, it is certain, 
 in future as in the past remind the young American citizen of what the 
 American Envoys said in Paris near a century ago, and will assure him that 
 the principle has been, and still is, too consecrated by use to be ignored : — 
 *' It follows, then, that the rights of England, being neither increased nor 
 diminished by compact, remained precisely in their natural state, and were to 
 be ascertained by some pre-existing acknowledged principle. This principle 
 is to be searched for in the law of nations. That law forms, independent of 
 compact, a rule of action by which the sovereignties of the civilized world 
 consent to be governed. It prescribes what one nation may do without 
 giving just cause of war, and what, of consequence, another may and ought to 
 permit without being considered as having sacrificed its honour, its dignity, 
 and independence." 
 
 And then the Award draws not the veriest ghost of an analogy from that 
 extraordinary study in comparative legislation which Mr. Phelps initiated. 
 Though the facts were so materially different from the present case of the 
 seals, the great underlying analogy of principle, clear even to demonstration, 
 he said, v.'a3 this — that in every case of fishery legislation, whether it was on 
 shore or at sea, there was an industry ; in every case, whether on sea or shore, 
 that industry was protected by legislation ; here the effect, there the cause, 
 and then the sequitur — Therefore, industries (industries valuable to the 
 world, of which the industrials are trustees for mankind and themselves 
 merely usufructuaries) may be protected by extra-territorial legislation 
 ai)plicable to subject (as a statute) and foreigner (as a " defensive regulation ") 
 alike. Is it necessary to point out the extraordinary confusion of what is 
 merely incidental with what is the principal cause ? Grant the existence of 
 the industry, it is because, in one group of enactments (of which the Nor- 
 
THE AWAHD. 71 
 
 wegiau law with its application to Varanger Fjord is an example), the waters 
 affected by them are part of the realm that, among other things which are 
 lawful, that industry may be protected. It is because, in another group (of 
 which the Scotch Herring Fisheries Act and the Australasian Bgche de Mer 
 Fisheries Act are examples), the power of the Sovereign extends over subjects 
 on the high seas that, among other things which are lawful, acts injurious to 
 that industry may be prohibited to them. It is, in a third group (which the 
 Jan Mayen fisheries legislation illustrates), for the same reason that the 
 industries of foreigners may be protected from injurious acts by subjects in 
 return for the quid pro qiw—ihe protection of the subjects' industry from 
 injurious acts by foreigners. And it is because, in the last group (of which 
 the protection of the Ceylon pearl fishery is the standing and orthodox 
 example), of the occupation of the soil under the sea, not interfering with the 
 navigation of the waters above, which the law recognizes, that the industry 
 may be protected against injurious acts in the locus in quo by subjects and 
 foreigners alike. In all these cases, which exhaust the examination of such 
 laws, the " industry " may be the cause of the special legislative enactment ; 
 it is, however, but the concrete example of the validity of legislation 
 dependent on the broader grounds of sovereignty, allegiance, and actual 
 jjossession. 
 
 The Award disposes too of that other analogy drawn between the United 
 States legislation and what are known as the " Hovering Acts ; " it adopts 
 the contention of the Attorney-General that, if these Acts are to be defended 
 internationally at all, the principle involved in them is limited to vessels 
 which are proceeding to a country with the express intention of violating the 
 revenue laws of that country. They are what, indeed, they profess to be — 
 " Acts for the prevention of smuggling." But even then they must be con- 
 fined to a reasonable distance from the shore, and must be reasonable in the 
 restrictions they impose. 
 
 So, too, the inference is rejected which Mr. Phelps attempted to draw from 
 those historical cases which I have alluded to in a former letter — the case of 
 Amelia Island, the case of the " Caroline," the punishment of the Pensacola 
 Indians and the destruction of the forts on the Appalachicola Iliver, the case 
 of Greytown, and a host of others. They were cases of national might, not 
 international right. The Attorney-General's argument is silently acquiesced 
 in — the things which a nation will do, taking the risk of war, are not to be 
 confused with the things which a nation may do. And this is the extent of 
 that great but shadowy principle — the sacred right of self-defence. 
 
 And thus all the law of the case is disposed of in our favour. Yet we must 
 still look forward to knowing at some future time the reasons for the dissent 
 of the two learned Arbitrators appointed by the United States. 
 
 On the difficult and complicated question of regulations we find the three 
 foreign Arbitrators and Lord Hannon forming a majority, Sir John Thompson 
 
7ft' THE BEHRING SEA ARBITRATION. 
 
 and the two American Arbitrators dissenting from the proposed scheme. A 
 wide divergence of views was, perhaps, inevitable when it is remembered 
 that consent naturally covered the whole body of regulations. A partial 
 consent was, of course, impossible. The ])rohibition of the use of firearms 
 tells indeed somewhat heavily against the Canadian sealer, and this regulation 
 is not likely to meet with much favour in his eyes. But, in order to realize 
 what the Award on this question of regulations means, it is very necessary 
 not only for those who do not engage in pelagic sealing, but also for those 
 who do, to look at them as a whole ; and when this is done I think we can 
 realise that our victory does not stop with the answers to the five questions, 
 but runs all along the line. To understand this it is only necessary to recall 
 the position which the United States took up on the subject of regulations. 
 Their one and only demand was for the entire prohibition of ])elagic sealing, 
 not in Behring Sea alone but in the rest of the Pacific Ocean. They could 
 ask nothing more, and nothing less would satisfy them. Pelagic sealing, 
 they said, annihilated the seal, therefore the pelagic sealer must be annihilated. 
 Now, in the first place, it is obvious that the pelagic sealer will not be 
 annihilated by these regulations, and the inference is clear that the allega- 
 tions of injury to the so-called herd were greatly exaggerated. Injury to the 
 industry there might have been, but even this was exaggerated, and is quite 
 another story. It is abundantly clear, therefore, that the regulation which 
 the United States suggested was too palpably protective of the United States 
 industry to be seriously considered after the right to it was negatived. Now 
 what was the position taken up by Great Britain ? The cardinal features of 
 it were — a protected zone round the Pribylof islands, a close season, and the 
 continuance of pelagic sealing. And these are the principles which have been 
 acted on. The details which the majority of the Tribunal have finally adopted 
 are not those which Great Britain suggested ; but this cannot alter the fact 
 that the principle she contended for was acquiesced in ; and this for the day 
 at least must be sufficient. And, further, it must be borne in mind that 
 Behring Sea, save for the protected zone, is under the regulations what it has 
 been declared to be by the answers to the five questions — an open sea and 
 part of the Pacific Ocean. 
 
 The point chiefly to be criticised about the scheme is that the sealing on 
 the islands remains unregulated ; but, as I have pointed out in a previous 
 letter, the Treaty did not permit the Tribunal to deal with it. It is to be re- 
 gretted, however, that pressure should not have been brought to bear on the 
 United States by making the close time in the Pacific conditional on the 
 introduction of reasonable island regulations by the owners themselves. But 
 the tribunal has not thought fit to adopt the suggestion; it has, however, 
 made a special declaration and recommendation that as the regulations can 
 only apply to the high sea, a supplementary body of regulations should be 
 jiiade applical)le to laud, with the concurrence of lx)th Powers. The 
 
THE AWARD. . " f8 
 
 recommendation is signed by all the Arbitrators, and it recognises the 
 force of the British contention on this point. On the other hand, the close 
 time does not begin till May 1, and, except in Behring Sea, shot-guns 
 are not prohibited. It seems not improbable that when these regulations 
 come to be re-considered at the end of five years the absence of prohibition 
 on these two points may furnish a basis for another arrangement which shall 
 be fully satisfactory to both parties. And when the matter comes to be, if it 
 ever should be, re-discussed, the task of diplomacy will be the easier for the 
 fact that the question has been lightened of all that superimposed mass of 
 argument under which it has for so long travailed. As they stand the 
 regulations cannot be other than eminently unsatisfactory to the United 
 States, judged by the light of the arguments they thought fit to present to 
 the Court. • 
 
 But whether the award is satisfactory or not, the United States will without 
 doubt loyally abide by it ; and the Canadian sealers receiving compensation, 
 we on our part shall not, as I say, shout Vie victis. For it is a peaceful, though 
 a very notable, victory ; and as there has been no strife of war, we shall not 
 even sing a Te Deum. Congratulations to those who have fought so well for 
 us, yes. But the case has even to-day passed into history. 
 
 '.;;, ■ 
 
( 74 ) 
 
 AWARD OF THE TRIBUNAL OF ARBITRATION 
 
 CONSTITUTED 
 
 UNDER THE TREATY CONCLUDED AT WASHINGTON, 
 
 The 29th of Ffbruary, 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 the United States of America aud 
 Great Britain, signed at Washington, February 29, 1802, the 
 ratifications of which by the Governments of the two Countries 
 were exchanged at London on May the 7th, 1892, it was, amongst 
 other things, agreed and concluded that the questions which had 
 arisen between the Government 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 
 Behring's Sea, and concerning also the preservation 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 habitually resorting to the said waters, should bo 
 submitted to a Tribunal of Arbitration to be composed of seven 
 Arbitrators, who should 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 French Republic 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 aud 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 selectirig Powers should be requested to choose, 
 if possible, jurists who are acquainted with the English language ; 
 And whereas it was further agreed by Alrticle II. of the said 
 Treaty that the Arbitrators should meet at Paris within twenty days 
 after the delivery of the Counter-Cases mentioned in Article IV., 
 
AWARD OK THE TRIBUNAL OF ARBlTRATiOX. W 
 
 and should proceed impartially and carefully to examine and 
 decide the questions which had been or should be laid before them 
 as in the said Treaty provided on the part of the Governments of 
 the United States and of Her Britannic Majesty respectively, and 
 that all questions considered by the Tribunal, including the final 
 decision, should be determined by a majority of all the Arbitrators ; 
 
 And whereas by Article VI. of the said Treaty, it was further 
 provided as follows : " In deciding the matters submitted to the 
 said 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 each of said five points, to wit : 
 
 " 1. What exclusive jurisdiction in the sea now known as the 
 Behring's Sea, and what exclusive rights in the seal fisheries 
 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 recognised 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 Eussia ; 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 boundary, in the 
 Treaty between the United States and Russia of the 30th of March, 
 1867, pass unimpaired to the United States under that Treaty? 
 
 " 6. 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 Behring Sea when such seals are found 
 outside the ordinary three-mile limit ? " 
 
 And whereas, by Article VII. of the said Treaty, it was further 
 agreed as follows : 
 
 " If the determination of the foregoing questions as to the 
 exclusive jurisdiction of the United States shall leave the subject 
 in such position that the concurrence of Great Britain is necessary 
 to the establishment of Regulations for the proper 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 jurisdictional limits of the res])cctive 
 
76 THE BP:HRING SRA ARBITRATION. 
 
 Governments, are necessary, and over what waters such Regulations 
 should extend ; 
 
 •' The High Contracting Parties futhermoro agree to co-operate 
 in securing the adhesion of other Powers to such iiegulations ; " 
 
 And whereas, by Article VIII. of the said Treaty, after 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 fur the injuries alleged to have been sustained by 
 the other, or by its citizens, in connection with the claims pre- 
 sented 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 High 
 Contracting Parties agreed that " either of them might 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 ; " 
 
 And whereas the President of the United States of America 
 named The Honourable John M. Harlan, Justice of the Supreme 
 Court of the United States, and The Honourable John T. Mouoan, 
 Senator of the United States, to be two of the said Arbitrators, and 
 Her Britannic Majesty named The Right Honourable Lord 
 Hannen and The Honourable Sir John Thompson, Minister of 
 Justice and Attorney-General for Canada, to be two of the said 
 Arbitrators, and His Excellency the President of the French 
 Republic named the Baron de Courcel, Senator, Ambassador of 
 France, to be one of the said Arbitrators, and His Majesty the King 
 of Italy named the Marquis Emilio Visconti Venosta, former 
 Minister of Foreign Aflfairs and Senator of the Kingdom of Italy, 
 to be one of the said Arbitrators, and His Majesty the King of 
 Sweden and Norway named Mr. Gregers Gram, Miu^ster 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 having duly met at Paris, proceeded impartially and carefully 
 to examine 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 part of the Governments of Her Britannic 
 Majesty and the United States rcsi)ectively ; 
 
AWARD OF THE TRIBUNAL OF ARBITRATION. 77 
 
 NOW WE, tho said Arbitrators, having impartially and care- 
 fully examined tho said questions, do in like manner by this our 
 Award decide and determine the naid questions in manner follow- 
 ing, tlmt is to say, we decide antl deteriniuo 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 
 CouncEL, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, 
 Maiquis ViscoNTi VENOSTAand Mr. Gregers Gram, being a majority 
 of the said Arbitrators, do decide and determine as follows : 
 
 By the Ukase of 1821, Russia claimed jurisdiction in the sea now 
 kaown as the Behring Sea to the extent of 100 Italian milts from 
 the coasts and islands belonging to her, but, in the course of tho 
 negotiations which led to the C(mclusion o the Treaties of 1824 
 with the United States, and of 1825 with Great Britain, Kussia 
 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 
 jirrisdiction in Behring Sea, or any exclusive rights in the seal 
 fisheries therein beyond the ordinary limit of territorial waters. 
 
 As to the second of the said five points, We, 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, do decide and determine that Great Britain 
 did not recognize or concede any claim, upon the part of Russia, 
 to exclusive jurisdiction as to the seal fisheries in Behring 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 now known as the 
 Behring Sea was included in the phrase " Pacific Octan " as used in 
 the Treaty of 1825 between Great Britain and Russia, We, the 
 said Arbitrators, do unanimously decide and determine that the 
 b(jdy of water now known as the Behring Sea was included iu 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 Behring Sea were held and 
 exclusively exercisea by Russia after the said Treaty of 1825, 
 We, the said Baron de Coukcel, Mr. Justice Harlan, Lord 
 
78 THE BEHRING SEA ARBITRATION'. 
 
 Hannen, Sir John Thompson, Marquis Visconti Venosta and Mr. 
 Gregers Gram, being a majority of the said Arbitrators, do 
 decide and determine that no exclusive rights of jurisdiction 
 in Behring Sea and no exclusive rights as to the seal fisheries 
 therein, were held or exercised by Eussia outside of ordinary 
 territorial waters after the Treaty of 18'i5. 
 
 As to the fourth 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 Behring Sea, 
 east of the water boundary, in the Treaty between the United 
 States an4 Russia of the 80th March 1867, did pass unimpaired 
 to the United States under the said Treaty. 
 
 As to the filth of the said five points, We, the said Baron de 
 Courcel, Lord Hannex, Sir John Thompson, Marquis Visconti 
 Venosta and Mr. Gregers Gram being a majority of the said 
 Arbitrators, do decide and determine that the United States has 
 not any right of protection or propeity in the fur-seals frequent- 
 ing the islands of the United States in Behring Sea, when such 
 seals are found outside the ordinary three-mile limit. 
 
 And whereas the aforesaid determination of the foregoing ques- 
 tions as to the exclusive jurisdiction of the United States men- 
 tioned in Article VI. leaves the subject in such a position that the 
 concurrence of Great Britain is necessary j the establishment 
 of Regulations for the proper protection aud preservation of the 
 fur -seal in or habitually resorting to the Behring Sea, the Tribunal 
 having decided by a majority as to each Article of the following 
 Regulations, We, the said Baron de Courchil, 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 the said Arbitrators, do decide and determine 
 in the mode provided by the Treaty, that the following concurrent 
 Regulations outside the jurisdictional limits of the respective 
 Governments are neceseaTy 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 respectively to kill, capture 
 
AWARD OF THE TRIBUNAL OF ARBITRATION. ' 79 
 
 or pursue at any time and in any manner whatever, the animals 
 commonly called fur-seals, within a zone of sixty miles around the 
 Pribilov Islands, inclusive of the territorial waters. 
 
 The miles mentioned in the preceding paragraph are geogra- 
 phical miles, of sixty 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 Ist of May to 
 the 31st of July, both inclusive, the fur-seals on tlie high sea, 
 in the part of the Pacific Ocean, inclusive of the Behring Sea, 
 which is f"ituated to the North of the 35th degree of North 
 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 1867 between the United States and Eussia, and 
 following that line up to Behring 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 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. 
 
 Article 4. 
 
 Each sailing vessel authorised to fish for fur-seals must be 
 provided with a special licence 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 er tries shall be com- 
 municated by each of the two Governments to the other at the 
 end of each fishing season. -r-. v 
 
80 THE BEHRING SEA ARBITRATION. 
 
 Article 6. • 
 
 Tho use of nets, firearms and explosives shall be forbidden in 
 the fur-seal fishing. This restriction shall not apply to shot guns 
 when such fishing takes place outside of Behring Sea, during tho 
 season when it may be lawfully carried on. 
 
 Article 7. 
 
 The two Governments shall take measures to ccrtrol the fitness 
 of the men authorized to engage in fur-seal fishing; these men 
 shall have been proved fit to handle with sufficient skill tho 
 weapons by means of which this fishing may be carrieu 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 
 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 
 practised by the Indians, provided such Indians are not in the em- 
 ployment 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 delivery of the skins to 
 any person. 
 
 This exemption shall not be construed to affect the Municipal 
 law of either country, nor shall it extend to the waters of Behring 
 Sea or the waters of the Aleutian Passes. 
 
 Nothing herein contained is intended to interfere witli the 
 emploj'inent of Indians as hunters or otherwise in connection with 
 fur-sealing vessels as heretofore. 
 
 Article 9. 
 
 The concurrent rf gulations hereby determined with a view lo 
 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 agreement between the Governments of tho 
 United States and of Great Britain. 
 
 The t>aid concurrent regulations shall be submitted every five 
 years to a new examination, so as to enable both interested Govern- 
 
AWARD OF THE TRIBUNAL OF ARBITRATION. 81 
 
 Micnts to consider whether, in the light of past experiei ■ o, there is 
 occasion for any modification thereof. 
 
 And whereas the Government of Her Britannic Majesty did sub- 
 rait 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 us, the said Tribunal, 
 a statement of the said facts, as follows, that is to say : 
 
 " Findings of fact proposed by the Agent of Great Britain and 
 agreed to as proved by the Agent for the United States, and sub- 
 mitted to the Tribunal of Arbitration for its consideration." 
 
 " 1. That the several searches and seizures, whether 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 in- 
 clusive, were made by the authority of the United States Govern- 
 ment. The questions as to the value of the said vessels or their 
 contents or either of them, and 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 property of citizens of the 
 United States, have been withdrawn from and have not been con- 
 sidered 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 
 fit, in any future negotiations as to the liability of the United 
 States Government to pay the amounts mentioned in the Schedule 
 to the British Case. 
 
 " 2. That the seizures aforesaid, with the exception of the 
 * Pathfinder' seized at Neah Bay, were made in Behring 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 com- 
 manders 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, 
 
 . . .-:.--^ ----.-»-- --- 
 
82 THE BEHRING SEA ARBITKATION. 
 
 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 offences for which said several searches and 
 seizures were made were in each case done or committed in Behring 
 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 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 municipal laws of 
 the United States, which alleged breaches were wholly committed 
 in Behring 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 
 Behring 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, and that the 
 vessels so warned were engaged in sealing or prosecuting voyages 
 for that purpose, and. th. °ach action was adopted by the Govern- 
 ment of the United States ; 
 
 " 5. That the District 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 Schedule 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." 
 
 "Annex A. 
 
 " Treasury Department, Office of the Secretary, Washington. 
 
 *' April 2lst, 1886. 
 
 " Sib, — Keferring to Department letter of this date, directing you to pro- 
 ceed with the revenue-steamer Bear, under your command, to the seal 
 Islands, &c., 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 you may detect violating the 
 law referred to, after due notice shall have been given. 
 
 " You will also seize any litjuois or fire-arms attempted to be introduced 
 
AWARD OK THE TKIBUXAL OK ARBITRATION. 83 
 
 into the country without proDer permit, under the provisions of Section 
 1!)55 of the Revised Statutes, and the Frochxmatiou of the President dated 
 4th February, 1870. 
 
 *' Respectfully yours, 
 
 "Signed, C. S. FAiBCHiiiO, 
 
 "JMng /Secretary. 
 " Captain M, A. Tlealy, commanding revenue-steamer 
 Bear, San Francisco, CaliJorniaP 
 
 "Annex B. 
 
 "In the District Court of the United States for the District of 
 
 Alaska. — August Special Term, 1886. 
 "To the Honourable Lafayette Dawson, Judge of said District Court: 
 
 " The libel of information of M. D. Ball, Attorney for the 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 TJiornton, Yter tackle, 
 apparel, boats, cargo, and furniture, and against all persona intervening for 
 their interest therein, in a cause of forfeiture, 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 of the district of Alaska, here- 
 tofore, to wit, on the 1st day of August, 1886, within the limits of Alaska 
 Territory, anil in the waters thereof, and within the civil and judicial district 
 of Alaska, to wit, within the waters of that portion of Behring Sea belonging 
 to the said district, on waters navigable from the sea by vessels of 10 or more 
 tons burden, seized the ship or vessel commonly called a schooner, the 
 Thornton, her tackle, apparel, boats, cargo, and turniture, being the property 
 of some 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 tlie United States 
 in such cases made and provided, the afore-mentioned and described schooner 
 or vessel, being a vessel of over 20 tons burden, her tackle, npiiarel, 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 
 honourable Court issue in this behalf, and that all persons interested in the 
 before-mentioned and described schooner or vessel may be cited in general 
 and special to answer the premises, and all due proceedings being had, that 
 the said schooner or vessel, her tackle, apparel, boats, cargo, and furniture 
 may, for the cause aforesaid, and others appearing, be condemned by the 
 definite sentence and decree of this honourable Court, as forfeited to the use of 
 the said United States, according to the form of the Statute f the said 
 United States in such cases made and provided. 
 
 " Signed, M. D. Ball, 
 " United States District Attorney for the District of Alaska." 
 
 F 2 
 
84 
 
 THK BEHKLNCJ SEA ARBITRATION. 
 
 " Annex C. 
 
 " The following Table shows the names of the British sealing- vessels seized 
 or warned by United States revenue cruisers 1886-1890, and the approxi- 
 mate distance from land when seized. The distances assi<;ned in the cases 
 of the Carolena, Thornton and Onward are on the authority of U.S. Naval 
 Commander Abbey (see 50th Congress, 2nd Session, Senate Executive 
 Documents No. 106, pp. 20, 30, 40). The distances assigned in the cases of 
 the Anna Beck, W. P. Say ward, 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. III.)." 
 
 Name 
 
 of Vessels. 
 
 Date 
 of Seizure. 
 
 Approximate Distance 
 from luiid Mben seized. 
 
 U.S. 
 Vessel 
 maliing 
 seizure. 
 
 Carolena , 
 Thornton 
 Onward . , 
 
 Favourite . . , 
 
 Anna Beck . . 
 W. P. Say ward 
 Dolphin .... 
 
 Grace 
 
 Alfred Adams 
 Ada ........ 
 
 Triumph . . 
 
 Juanita . . . 
 Pathfinder 
 
 Triumph . . 
 
 Black Diamond 
 Lily 
 
 Ariel 
 
 Kate 
 
 Minnie . . . 
 Pathfinder 
 
 August 1, 1886 
 August 1, 1886 
 August 2, 1886 
 
 August 2, 1886 
 
 July 2, 1887 
 July 9, 1887 
 July 12, 1887 
 July 17, 1887 
 August 10, 188t 
 August 25, 1887 
 
 August 4, 1887 
 
 July 31, 1889 
 July 29, 1889 
 
 July 11, 1889 
 
 July 11, 1889 
 August 6, 1889 
 
 July 30, 1889 
 
 August 13, 1889 
 July 15, 1889 
 March 27, 1890 
 
 75 milos 
 
 70 miles 
 
 115 miles 
 
 I Warned by Cor win in 
 about same position as 
 Onward. 
 
 66 miles 
 
 59 miles 
 
 40 miles 
 
 96 miles 
 
 62 miles 
 
 15 miles 
 
 (■Warned by Bush not to 
 \ enter Behring Sea. 
 
 66 miles 
 
 50 miles 
 
 I Ordered out of Behring 
 Sea by Bush. (?) As to 
 position when warned. 
 
 35 miles 
 
 66 miles 
 
 i Ordered out of Behring 
 ) Sea by Bnsh. 
 Ditto. 
 
 65 miles 
 
 Seized in Neah Bay ^ . . . . 
 
 Corivin. 
 Corwin. 
 Corwin. 
 
 Bush. 
 Bush. 
 Bush. 
 Bush. 
 Bush. 
 Bear. 
 
 Bush. 
 Bush. 
 
 Bush. 
 Bush. 
 
 Bush. 
 Corwin. 
 
 • Neah Bay is in the State of Washington, and the Pathfinder wa.s seized there 
 on charges made against her in Behring Sea in the previous year. She was 
 released two days later. 
 
AWARD OF THK TRlIiUNAL OF ARBITRATION. 86 
 
 And whereas the Government of Her Britannic Majesty did ask 
 the said Arbitrators to find the said facts as set forth in the said 
 statement, and whereas the Agent and Counsel for the United 
 States Government thereupon in our presence informed us that the 
 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 Arbitrators, if we should think fit so to do might find 
 the f^aid statements cf facts to be true. 
 
 Now We, the said Arbitrators, do unanimously find the facts as 
 ijct 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 : 
 
 NOW WE, Baron de Courcel, Lord Hansen, Mr. Justice 
 Harlan, Sir John Thompson, Senator Morgan, the Marquis "Visconti 
 Venosta and Mr. Gregers Gram, the respective minorities not 
 withdrawing their votes, do declare 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 
 accurate. 
 
 ALPH. DE COURCEL. 
 
 JOHN M. HARLAN. 
 
 JOHN T. MORGAN. 
 
 HANNEN. 
 
 J. THOMPSON. 
 
 VISCONTI VENOSTA. 
 
 G. GRAM. 
 
( 86 ) 
 
 DECLARATIONS 
 
 MADE BY THE TRIBUNAL OF ARBITRATION 
 
 and referred to the Governments of the United States and Great 
 Britain for their consideration. 
 
 I. 
 
 The Arbitrators declare that the concurrent Eegulations, as 
 determined upon by the Tribunal of Arbitration, by virtue of 
 Article VII. of the Treaty of the 29th of February, 1892, being 
 applicable to the high sea only, should, in their opinion, be sup- 
 plemented 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 circum- 
 stances not fully known, the Arbitrators think fit to recommend 
 both Governments to come to an understanding ia 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 ai occasional intervals 
 if found beneficial. v 
 
 III. 
 
 The Arbitrators declare moreover that, in their opinion, the 
 carrying out of the Regulations determined upon by the Tribunal 
 
DECLARATIONS MADE BV THE TRIBTOAI. OK ARBITRATION 8, 
 
 must, in con ^qZoe i ft rthr?" V""' *'"" *'"' "^"^"-"l 
 
 ALPH. DE COURCEL. 
 JOHN M. HARLAN. 
 JOHN T, MORGAN. 
 
 I approve of Declarations I. and III. 
 - HANNEN. 
 
 I approve of Declarations I. and III. 
 
 J. THOMPSON. . 
 VISCONTI VENOSTA. 
 G. GRAM. 
 
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