NF.ILI, AND CO., I'RINTKK.S, KDINBURGH. 
 
 <4»» 
 
 ■•^ 
 
THE BEHRING SEA QUESTION. 
 
 o 
 
 NE summer afternoon, in 1786, a weary mariner com- 
 manding a listless crew lay becalmed and fogbound 
 somewhere in Behring's Sea. His quest for the home of 
 the fur-seal had been long and fruitless. Year after year, for 
 generations, the native Aleutes had marked the passage 
 of countless herds through the channels separating those 
 islands which stretch like a long beckoning finger from 
 Alaska to the confines of Asia. Northward the seals 
 flocked in the spring, and in autumn back again to the 
 Southern Sea, but the secret of their breeding-place was 
 well kept. To find it, the Russian trading companies, 
 whose indiscriminate slaughter had wellnigh extinguished 
 the race of sea-otters, spent eighteen years in arduous ex- 
 ploration. South of the Aleutian Archipelago, from Oregon 
 to Japan, the prospect of renewing that gainful traffic, which 
 in another hemisphere had freighted Dutch and English 
 argosies, led their captains over endless leagues of unprofit- 
 able ocean. They sought the supposed winter-quarters of 
 the creatures. But one man, pondering over the legends of 
 
 ^ the islanders, noted a hint of some islands lying to the 
 
 north of the Archipelago, and fancied it might point to their 
 summer-home. He was destined to solve the mystery, and 
 leave his name upon the charts of the world for a memorial 
 of patient search rewarded. That afternoon Gerassim 
 Pribylov and his idle crew heard, through a thick mantle 
 
 ,|j, of fog, the murmur of innumerable seals close at hand, and 
 
 when the air cleared after three weeks of twilight, they were 
 able to effect a landing upon one of the two islands which 
 
 lO'JTSG PROVINCIAL. UiuiKA^-'V 
 
 VICTORIA, B. C. 
 
 
 
THE 15EHRING SEA QUESTION. 
 
 formed the long-drcamt-of breedirifj-ground. Upon the 
 other the explorers found traces of some earUcr adventurers 
 — " embers of drift-wood, a pipe, and a knife-handle of brass," 
 the torn page, it may be, of some sad sea-tale that has never 
 been given to the world. Whoever the earliest discoverers 
 may have been, Pribylov and his crew were the first to take 
 effective occupation of the islands, and ever since they have 
 been best known as Pribylov's group, or the seal islands of 
 Alaska. Individually, they are called St George and St 
 Paul. Though only a pair of barren islets in a lone sea 
 enveloped in perpetual summer fog, or ravaged by winter 
 storms, they constitute the richest hunting-ground ever dis- 
 covered by the fur-trader. 
 
 The Russian - American Company, organised in 1799 
 under a charter from the Emperor Paul, exercised through- 
 out the whole region of North-West America a jurisdiction 
 nearly as independent as that which the East India Com- 
 pany once enjoyed in India. It numbered among the 
 shareholders Russian nobles, high government officials, 
 and even members of the Imperial family. The governor, 
 commanding a military and naval force, swayed the des- 
 tinies of Alaska from New Archangel, now called Sitka, of 
 which La Pcrouse, who led the Erench Expedition of 1786, 
 remarked that " nature seemed to have created at the ex- 
 tremity of America a port like that of Toulon, but vaster 
 in plan and accommodation." The charter was renewed 
 yearly. Einding themselves powerless to supplant these 
 great corporations, the Americans of the Pacific coast, led 
 by the Senators representing California, aimed at nothing 
 less than buying up the Russian title to the Alaskan 
 peninsula and the Aleutian islands. The expediency of 
 this step had been urged by the legislature of Washington 
 Territory in 1866 ; and in March of the next year, after the 
 briefest negotiations, the treaty of cession was signed by 
 Baron Stoeckcl and Mr Seward. Russia ceded all the 
 territory and dominion then possessed by her on the 
 continent of America and in the adjacent islands, the same 
 being contained within the geographical limits therein set 
 forth, (bee Map.) The price was fixed at 7,200,000 
 
 4» 
 
4» 
 
 THE BEIIRING SEA QUESTION. 3 
 
 dollars. The duty of recommending the ratification of 
 the treaty to Congress was entrusted to Senator Sumner, 
 and that great orator discharged the office in a speech 
 so comprehensive that a contemporary French writer 
 said of it : — " All that is known of Russian-America 
 has just been presented in a speech, abundant, erudite, 
 eloquent, poetic, pronounced before the Congress of the 
 United States." Although Congress ajiproved the pur- 
 chase by an almost unanimous vote, there were many 
 short-sighted enough to deride the exchange of " seven 
 millions of hard dollars against rocks, icebergs, and acres 
 of snowy wastes." 
 
 Under this treaty of purchase all the Russian Govern- 
 ment property, public buildings, wharves, and Oie like, were 
 transferred to the United States, and it was expressly 
 declared that the cession was free and unencumbered by 
 any reservations or privileges conceived in favour of any 
 associated companies. Certain buildings, however, as 
 being the property of the Russian Fur Company, were 
 reserved ; and as to these Prince Matsukoff, who was at 
 once the representative of the Russian Government and 
 the governor of the company, proposed to negotiate with 
 the United States Commissioner. The latter, however, very 
 properly considered that his official position precluded him 
 from treating for the private purchase of property so inti- 
 mately connected with the territory which was in course 
 of transfer to his Government. His private secretarj/, 
 Mr Hutchinson, holding himself untrammelled by these 
 considerations, concluded a bargain whereby he acquired 
 the whole property of the Russian Fur Company. At 
 Victoria (British Columbia), whither he had gone to 
 arrange for taking possession of the seal islands, he met 
 one Mr Kohl, with whose aid he constituted the famous 
 firm of Hutchinson, Cole & Co. Thinking they had an 
 exclusive right to the Pribylov Islands, they directed their 
 first expedition thither, but found them occupied by ex- 
 perienced sealers under one Captain Morgan. The rival 
 parties came to an agreement to divide the season's catch, 
 and their union enabled them to repel another scaling 
 
THE I5EIIRING SEA QUESTION. 
 
 party, headed by the Russian Vice-Consul from Honoluhi. 
 In 1S70 an Act of Congress was passed for the protection 
 of the trade, which seemed to be falUng a prey to indis- 
 crimin;.te competition. It was declared unlawful " to kill 
 any fur-seal upon the islands of St George and St Paul, or 
 in the waters adjacent thereto, except during the months of 
 June, July, September, and October in each year." The 
 lawful take was limited to 75,000 per annum upon the 
 former island, and 25,000 upon the latter. The Secretary 
 of the Treasury was by the same statute empowered to let 
 " the right to engage in the business of taking fur-seals " on 
 the islands to responsible parties for a rental not under 
 50,000 dollars per annum. A revenue tax of 2 dollars was 
 also laid upon each fur-seal skin taken and shipped from 
 the isln ds during the continuance of the lease. Mean- 
 while the coalition of Hutchinson, Cole & Co. with Morgan's 
 party had developed into the Alaska Commercial Company, 
 which in kS/O (the same year with the passing of the Act, 
 and within one month of its final approval) obtained a lease 
 of the islands for twenty years at a rent of 55,000 dollars, 
 paying also 2 dollars 62 cents per skin. It is said that the 
 company was aided by powerful political influence to secure 
 this bargain. It certainly seems that a very brief period 
 was allowed for public competition. Under this contract it 
 is estimated that the company paid to the United States 
 Treasury 315,000 dollars a year, "which, after paying all 
 the expenses of the territory, yields more than 4 per cen*-. 
 per annum on the purchase - money paid to Russia for 
 Alaska." The company thus occupies the Pribylov Islands 
 by virtue of a title from Congress. It also holds leases of 
 certain other islands from the Russian Government; but it 
 controls, by virtue of no title but the predominance of its 
 own power and wealth, the fur-trade of a vast extent of sea 
 and land. Its action has been graphically described by an 
 American mercantile firm : — " This company, one of the 
 most stupendous organisations that ever existed in this 
 country, has taken possession of and assumed sovereign 
 power over the most valuable fisheries of the whole United 
 States ; and without shadow of right or authority, except a 
 
 1 
 
<3i» 
 
 THE BEHRING SEA QUESTION. 
 
 5 
 
 J 
 ^ 
 
 lease permitting it to kill ioo,cxx) seals upon two small 
 islands, has taken possession and control not only of the 
 territory, but also of a vast sea 3,000 miles long by 2,700 
 miles wide, has made itself the suzerain of the Government, 
 and impressed into its service the officers and agents of the 
 Government to maintain its possession. Alexander the 
 Great was not a robber although he absorbed kingdoms, 
 and the Alaska Commercial Company is not a pirate 
 although it has absorbed Alaska and an ocean." 
 
 In August 1886 the Admiralty Office received the fol- 
 lowing telegram, despatched by Rear - Admiral Sir M. 
 Culme-Scymour from Victoria, British Columbia — "Three 
 British Columbian seal schooners seized by United States 
 Revenue cruiser Corwin, Behring's Straits, seaward 70 miles 
 from off the land, killing female seals, and using fire-arms 
 to do it, which they have done for three years without 
 interference, although in company with Convin." This 
 brief message contains the essence of many pages of de- 
 spatches in which the facts of the seizures are fully narrated. 
 The three schooners, named respectively the Carolina, the 
 Onzmni, and the Thornton, were fitted out in Victoria, 
 British Columbia, for the capture of seals in the waters of 
 the Northern Pacific Ocean, adjacent to Vancouver's Island, 
 Queen Charlotte Islands, and Alaska. After their capture 
 they were taken to Ounalaska, and laid up there. The 
 captains and the mates were taken to Sitka, and tried 
 before a District Judge. His charge to the jury amounted 
 to this:— By the treaty of 1867, the United States acquired 
 Alaska and the eastern part of Behring's Sea, in which 
 the islands of St Paul and St George lie. The American 
 law has, by special statute, forbidden the killing of fur- 
 seals upon these islands, and in the waters adjacent thereto. 
 If, therefore, the accused have killed seals in these waters, 
 they are liable to the penalties imposed by the Act. The 
 captains were sentenced to suffer imprisonment for thirty 
 days, and to pay a fine of 500 dollars, the mates to a like 
 term of imprisonment with 300 dollars of a fine. The crews 
 of two of the vessels were sent to San Francisco, and there 
 turned adrift. It is manifest that these convictions could 
 
THE BEIIRING SEA QUESTION. 
 
 not have been obtained unless the " waters adjacent " to the 
 islands had been held to include the open sea, at least 
 seventy miles from their shores. 
 
 When we come to consider the lofty and able arguments 
 presented by the American counsel to the Arbitration 
 Court ; when we hear Mr Phelps contending that even the 
 great principle that the high seas are free to all men must 
 yield to his country's claim, and Mr Carter urging that the 
 Court must rise beyond mere consuetudinary law and invoke 
 the law of nature, it will be well to have clearly in view the 
 grounds upon which their judges rested their confident 
 decisions. The seizure of foreign vessels and the conviction 
 of foreign seamen were based confessedly upon their own 
 municipal enactments. The indictment in the case of the 
 W. P. Sayward ran : — " George R. Ferry and A. Laing (the 
 master and mate) are accused ... of the crime of kill- 
 ing fur seals within the waters of Alaska territory, committed 
 as follows : — The said George R. Ferry and A. Laing on 
 the 8th day of July 1887, in the District of Alaska and 
 within the jurisdiction of this Court, to wit, in Behring's Sea, 
 within the waters of Alaska territory, did kill ten fur-seals, 
 contrary to the statutes of the United States, in such case 
 made and provided, and against the peace and dignity of the 
 United States of America." ^ The process was not brought 
 before a prize tribunal for adjudication, as in a matter where 
 international law was to be administered, but was prosecuted 
 before an ordinary District Judge, who applied the ordinary 
 municipal statutes. It is true that he seems to have felt 
 the necessity of explaining in some way how the term 
 " waters of Alaska " could be interpreted so as to include 
 the open sea. He accordingly directed the jury in his 
 charge that all the waters within the boundary set forth in 
 the Treaty of 1867 — the western boundary — were to be 
 considered as covered by that designation. This was an 
 invocation of a description so vague as to be meaningless, 
 for the Treaty, as will be shown below, conveys no sea and 
 contains no termini habiles for delimiting any sea. But for 
 the present purpose it is enough that the indictment was 
 ^ See sections 1956, i960, and 1961 of the U.S. Revised Statutes. 
 
 
THE BEHRING SEA QUESTION. 7 
 
 based upon nothing else than the provisions of the muni- 
 cipal law. There never was a plainer case of deliberate 
 assumption of municipal jurisdiction. After convicting the 
 unhappy mariners, and despoiling the owners upon such 
 grounds, it is only with an ill grace that the American 
 Government can turn round and pose as the upholders of 
 an unwritten natural law. Then the vessel was restored to 
 the owners upon condition that they prosecuted an appeal 
 to the Supreme Court of the United States from the Alaska 
 District Court, and granted bond to provide for the con- 
 tingency of the appeal being unsuccessful. But the mere 
 act of giving such a bond involved the admission that the 
 Courts of the United States had jurisdiction in regard to 
 the seizure, and that the municipal law of the United States 
 applied to a vessel seized for plying her trade in waters over 
 which the Executive and Judiciary of the United States 
 have and can have no effectual control. Nor can it be 
 pleaded that the rash ignorance of a District Judge alone 
 pledged the United States to maintain this high ground. 
 Five years afterwards, when the Sayiuard appeal came 
 before the Supreme Court at Washington, there arose the 
 fairest opportunity for reconsidering the constitutional ques- 
 tion whether the seizure was not grossly ultra vires of their 
 officers. Then was the occasion for considering, upon general 
 and lofty grounds, whether American revenue cruisers were 
 entitled to molest fishermen following their lawful occupa- 
 tion on the high seas, for considering whether those fisher- 
 men were properly compelled to seek redress in the courts 
 of a foreign country, for considering whether the American 
 courts could have any more rightful cognisance of the wrong 
 \ charged against them than the courts of any other foreign 
 
 ti country. It is quite true that the application before the 
 
 Court was not, properly speaking, an appeal. It was a 
 motion for a " writ of prohibition," the object of which it is 
 presumed was to annul the operation of the District Court 
 judgment. But the Supreme Court fled from the real ques- 
 tion, and held that, as the owners did not ab initio question 
 the jurisdiction, the application was bad. On the mere 
 technical ground that the objection to the jurisdiction did 
 
8 
 
 THE BEHRING SEA QUESTION. 
 
 not appear on the face of the record, they threw away the 
 opportunity of basing their action on wider principles than 
 the mere suppression of poaching on American preserves. 
 They did so at the very moment when their Secretary of 
 State was putting his hand to the Arbitration Treaty,^ and 
 instituting a tribunal before which the record of a happier 
 ratio decidendi -wowXA assuredlyhave stood them in good stead. 
 To the protests of Great Britain and Canada against the 
 assertion of sole sovereignty, Mr Bayard, even in January 
 1887, could only reply that he had not been placed in pos- 
 session of that accurate information which would justify his 
 coming to a decision upon the question. Further delay in 
 the diplomatic correspondence made the Canadian sealers 
 anxious to ascertain whether it would be prudent to fit out 
 vessels for the season of 1887. In the absence of any ex- 
 plicit assurance as to the United States' intentions, the 
 sealers drew their own conclusions from Mr Bayard's 
 despatch of 3rd February 1887. It announced that, 
 "without conclusion at this time of any questions which 
 may yet be found to be involved in these cases of seizure, 
 orders have been issued by the President's direction for the 
 discontinuance of all pending proceedings, the discharge of 
 the vessels referred to, and the release of all persons under 
 arrest in connection therewith." At this juncture, a failure 
 occurred in the machinery of the American Executiv^e that 
 contrasts strongly with the promptitude shown immedi- 
 ately before. The United States Marshal for the district 
 of Alaska took no action upon these peremptory orders. 
 One version of the story has it that the District Judge, 
 conceiving the telegraphic despatch to be a forgery, took 
 it upon himself to rescind the order he had transmitted to 
 the Marshal. Another account bears that the Judge, as 
 late as July, admitted that he had heard some rumour 
 about this despatch before, but declared that nothing of 
 the kind had reached either himself or the Marshal. Be 
 that as it may, no steps were taken for the release of the 
 vessels, and even in September there they lay worm-eaten 
 and damaged upon the beach at Ounalaska. That this 
 
 ^ See Appendix. 
 
 ., 
 
THE BEHRING SEA QUESTION. 
 
 oflRcer should have assumed that an order issued from 
 Washington in the name of the Attorney-General — an 
 order touching a matter of international import — was a 
 mere invention ; that he should have allowed eight months 
 to pass without making any attempt to verify his assump- 
 tion, would be incredible, were it not that the equally 
 marvellous counterpart of the incident is established beyond 
 a doubt. We find the American Secretary of State himseK 
 showing not the slightest perturbation over the miscarriage 
 of the President's command, and contenting himself with a 
 tardy renewal of the order, and a curt expression of regret 
 towards the injured State. Queer lapses like these lend an 
 air of truthfulness to the vivid pictures drawn by some 
 American writers to show the all-pervading political in- 
 fluence of the Alaska Company. 
 
 The British Columbians, viewing Mr Bayard's announce- 
 ment as a departure from the policy of repression, sent 
 thirteen vessels to the sealing-grounds in the summer of 
 1887. Six of them were seized. Of these the W. P. Say- 
 ward became the most noted. She commenced sealing in 
 the Pacific Ocean, but, on entering Behring's Sea, was pre- 
 vented by constant fog from capturing a single seal. Thirty 
 miles from land, however, she was seized and taken in tow 
 to Ounalaska, and thence to Sitka. The vessel was left in 
 charge of the United States officers, the crew being allowed 
 to remove nothing but their clothing. The Indians who 
 formed part of the crew were left to find their way as best 
 they could to their homes, 700 miles distant. The master 
 and mate were bound over to appear for trial on 22nd 
 August. They attended accordingly, and day by day 
 thereafter till the 9th of September, when, without having 
 been tried upon any charge whatever, they were uncondi- 
 tionally released. Nor were these stern measures meted 
 out to foreigners alone. Schooners owned by Americans, 
 and registered under the American flag, were subject to 
 the same treatment. The San Diego, owned in San Fran- 
 cisco, was seized, taken to Sitka and condemned, her cargo 
 of seal skins taken in the open sea was confiscated, and her 
 owners' petition for redress ignored. 
 
10 
 
 THE BEHRING SEA QUESTION. 
 
 Hear the plaintive accents of Americans pleading for 
 freedom for their own fishermen : " They wish to explore 
 the waters of Behring's Sea and the Arctic Ocean. They 
 believe that they, as American citizens, have a right to fish 
 or hunt in the American waters of the Behring's Sea out- 
 side of three nautical miles from any island or the main- 
 land of Alaska. They believe that William H. Seward did 
 not purchase Alaska for the Alaska Commercial Company, 
 but for the whole nation. They demand, as a right, that 
 they be permitted to pursue their honourable business in 
 the American waters of the North Pacific, Behring's Sea, 
 and the Arctic Ocean, without being treated as criminals, 
 and hunted down and seized and imprisoned by the 
 piratical Revenue cutters of the United States, at the 
 dictation, and for the sole benefit of, the Alaska Com- 
 mercial Company." 
 
 One hesitates to quote further from American denuncia- 
 tions of their own national policy, because Mr Phelps has 
 wept bitterly over them. He tells his countrymen through 
 his tears that all their arguments are carefully filed in the 
 pigeon-holes of the British Foreign Office, and that Ameri- 
 can diplomatists are faced at every turn with shafts drawn 
 from American quivers. How wise are the English! he 
 cries ; not a word is published in the British press, not an 
 article in a Review is written to impede the march of Lord 
 Salisbury's argument. Mr Phelps might have gone further, 
 and added that not a single foreign writer or diplomatist has 
 found a good word to say for the American case. It is 
 perhaps to be regretted that his compliment, if meant to 
 ascribe a general attitude of patriotic reticence to our own 
 press, must be disclaimed. Nowhere in the world do we 
 find journalists so ready to impugn the foreign policy of 
 their own State as are those of England. If it be other- 
 wise in this instance, it must be due to some inherent quality 
 of the American claims. But this dread of public discus- 
 sion is worthy neither of Mr Phelps nor of the question in 
 hand. The rash announcement of preliminaries may, no 
 doubt, stop the ratification of a treaty. For example, had 
 some indiscreet official at the American Legation revealed 
 
THE BEHRING SEA QUESTION. 
 
 11 
 
 the secret assurance, which, as will be seen immediately, 
 was given by the United States Minister in 1888, there 
 might have been some cause for complaint, but in a debate 
 where the issue depends upon the examination of historical 
 facts and of legal precedents, it is surely puerile to shun the 
 light of free criticism. 
 
 Before the season of 1888 opened, it was rumoured that 
 British sealers were fitting out and were arming to resist 
 capture. At this ijoint another blot disfigures the Ameri- 
 can record. The United States Minister had an interview 
 with Lord Salisbury on 3rd April 1888, at which he read 
 this extract from a private letter he had received from Mr 
 Bayard, — " I shall advise that secret instructions be given 
 to American cruisers not to molest British ships in Bchring's 
 Sea at a distance from the shore, and this '- n the ground 
 that the negotiations for the establishment of a close time 
 are going on." The Minister added that it was very de- 
 sirable that the step should not become public, as it might 
 give encouragement to those who were destroying the fish- 
 ery. In point of fact, these orders were obeyed, and during 
 the season of 1888 the sealers were not interfered with. 
 But in 1889, without a word of warning that the policy of 
 the preceding season was to be reversed, the seizures began 
 anew, and not a word of explanation of the volte-face was 
 ever subsequently vouchsafed. 
 
 By the end of 1889 the British claims preferred against 
 the United States for compensation in respect of vessels 
 seized had amounted to upwards of 500,000 dollars, irre- 
 spective of the personal claims of the crews for redress for 
 the wrongs they had suffered. In June 1890, Her Majesty's 
 representative at Washington, having failed to obtain any 
 assurance that, pending the negotiations between the two 
 countries, British sealing vessels would not be further inter- 
 fered with, and finding that cruisers were again commis- 
 sioned, lodged a formal protest against their action, and 
 intimated that we should hold the United States responsible 
 for the consequences that might ensue. The American 
 Secretary lashed himself into fury. He protested in turn 
 " against the course of the British Government in authoris- 
 
12 
 
 THE BEIIRING SEA QUESTION. 
 
 ing, encouraging, and protecting vessels which were not only 
 interfering with American rights in the Hehring's Sea, but 
 which were doing violence as well to the rights of the 
 civilised world." He reviewed the progress of the inter- 
 course between the Foreign Office and the American 
 Minister, between November 18187 ^"d April 1888, upon 
 the subject of a close time, and declared that, after the 
 assurances — " the pointed assurances " — given by Great 
 Britain, the United States had no reason to doubt that the 
 whole dispute touching the seal fisheries was practically 
 settled. 
 
 The charge against our good faith is worth looking into. 
 What were these assurances ? Mr Phelps, in February 
 1888, pointed out that the female seals, in their migration 
 northward in spring, are far advanced in pregnancy ; that it 
 is impossible to distinguish the male from the female in the 
 water ; that when the animals are killed in the water with 
 firearms, many sink at once and are never recovered. He 
 consequently suggested that a close time should be agreed 
 on — a consummation which he expected would suffice to 
 solve the whole question. He urged the necessity foi the 
 utmost despatch, in order to preserve the fur-seals from 
 extermination, but he admitted that no more than the first 
 steps towards this end could be taken meantime, because 
 under the peculiar political circumstances of America at 
 that moment, with a general election impending, it would 
 be hardly practicable to conduct any negotiation to its issue 
 before the election had taken place. In a conversation 
 which took place between Lord Salisbury and Mr Phelps 
 on the 22nd of the same month, the former expressed the 
 entire readiness of Her Majesty's Government to join in an 
 agreement with Russia and the United States to establish a 
 close time north of some latitude to be fixed. Mr Phelps, 
 writing to Washington three days later in a somewhat 
 sanguine mood, appears to have represented that we had 
 absolutely and finally accepted the American proposals en 
 bloc, and the conversation is afterwards dignified by the 
 American Secretary with the title of "the Agreement of 
 25th February." Lord Salisbury, besides assenting to the 
 
THE BEIIRING SEA QUESTION. 
 
 13 
 
 sufjgcstion that a close time should be established, suggested 
 certain regulations to be embodied in a Convention to that 
 end, but he was most careful to define them as merely pro- 
 visional, and intended only to serve as a basis for negotiation, 
 without definitively pledging either party. Let it be granted 
 that he also undertook to draft and introduce a Hill into 
 Parliament to give effect to the Convention when it had been 
 adjusted. Mr Phelps, or his subordinate, seems to have 
 thought it possible that the British Government could, by 
 an Order in Council, interdict British and Canadian sealers 
 from entering Bchring's Sea as promptly as the President 
 could stop the action of his cruisers. In order to remove 
 all possibility of misapprehension on this head, it was 
 explained by letter, dated only a few days after this inter- 
 view took place, that no convention could be concluded 
 until the opinion of Canada upon it should have been ascer- 
 tained ; that after the Convention should be signed, an Act 
 of Parliament would be necessary to enable the Executive 
 to act upon it ; and that the Order in Council would be only 
 the machinery for bringing the Act into operation. The 
 American Presidential Election then supervened, the forma- 
 tion of a new Cabinet at Washington hindered further 
 progress, and in point of fact serious negotiations were 
 not reopened until the month of February 1890. It will 
 hardly be credited that these, and nothing more than these, 
 were the grounds upon which the Secretary concluded that 
 the whole dispute was practically settled ! These were the 
 assurances which prompted him to exclaim with indignation : 
 — " Lord Salisbury would have dealt more frankly if in the 
 beginning he had informed Minister Phelps that no arrange- 
 ment could be made unless Canada concurred in it, and that 
 all negotiation with the British Government direct was but 
 a loss of time." This was the agreement between the repre- 
 sentatives of the two Powers which England had basely 
 broken off simply becauf Canada objected. Suppose we 
 had maintained that Mr Bayard's despatch of 3rd February 
 1887, directing the captured vessels to be discharged, was 
 an avowed abandonment of the whole American position, 
 and suppose we had wilfully ignored his express reservation 
 
 B 
 
H 
 
 THE DEIIRING SEA QUESTION. 
 
 of all questions which might be found to be involved in 
 those cases of seizure, should \vc not have been told, and 
 forcibly told, that \vc could not be permitted to fasten just 
 upon that part of the declaration which suited our argument, 
 and disregard the rest ? Our sophistical pretension would 
 have been deservedly silenced by the immediate withdrawal 
 of the United States from the whole negotiations. But our 
 assumption would have been no more unfair and unfounded 
 than is the American inference in this instance. Not the 
 most minute examination of the American Secretary's own 
 despatch will reveal one single point on which any agree- 
 ment had been reached, except the expediency of instituting 
 some regulations for the protection of the animals during 
 their breeding season. We arc left to wonder how so acute 
 a rcasoncr cculd attempt to raise a grave charge of bad 
 faith upon so frail a foundation. 
 
 But since it was our deference to the wishes of Canada 
 that excited such intense disgust in the American official 
 mind, it is proper to examine the terms of the Convention 
 proposed and the grounds of the Canadian objection. Mr 
 Bayard's proposal was that the close time should extend 
 from the 15th of April to the ist of November in each year, 
 and that sealing should be forbidden in the waters Ix'ing 
 between America and Russia north of the 50th degree of 
 north latitude, and between long. 160' west and 170 east of 
 Greenwich. Now, to begin with, there was surel)' something 
 misleading in the way the United States Minister presented 
 the matter. In urging that an agreed-on close time would 
 .solve all the difficulties of the question, he put it that no 
 attemi)t had been matle b)' his Government to stop the 
 fishing during the time it was legitimate. That may be 
 true regarding their action. But the fact remains that, by 
 the express enactment of the United States statute-book, no 
 person whatever is permitted at any season of the year to 
 kill a single seal in the waters which they claim as a private 
 domain, h'urther, if it be considered that the seals eiiter 
 liehring's Sea in May and leave in October, it is evident 
 that so far as the interests of Canadian sealers were con- 
 cerned, the close time might as well have been fixed to 
 
THE BEIIRING SEA QUESTION. 
 
 IS 
 
 cover the twelve months between ist January and 31st 
 December. Again, this proposal takes no account of the 
 powers which the United States tacitly reserved to them- 
 selves to continue during the close time the practice of 
 killing the seals on the islands. 
 
 In the early stages of the diplomatic correspondence 
 there was much stress laid on the historical record of 
 Russia's sovereignty in this region, and some reference was 
 made to the dicta of international jurists upon the doctrine 
 of marc dansuiii. President Harrison in his I\[essage to 
 Congress of 1.S90 described his country's claim as a '' pro- 
 perty-right derived from Russia." Russia in i82r, being 
 then in possession of both shores of Ikhring's Sea, issued 
 an edict in which she undoubtedly based her right to 
 restrict the liberties of foreign vessels in that sea upon the 
 theory that it was land-locked. It was r.ssumed, both by 
 our Foreign Office and by American jurists, that the present 
 American claim rested upon the same basis, and both set 
 themselves to demolish it.^ Ikit in the end Mr IMaii e 
 vehemently repudiated that inference and abandoned the 
 doctrine in express terms. How it came about that, both 
 on this side of the Atlantic and on the other, writers so 
 unkindly attributed the use of this rusty weapon to the 
 Washington State Department does not very clearly 
 appear. The declamator\- despatches which reached us from 
 the other side were certainly not well suited to convey a clear 
 statement of a legal claim. It is indeed impo.ssible not to 
 sympathise with Sir Julian I'auncefotc when he exclaims, so 
 late as July 1S90, that he has .some difficulty in clearl_\- 
 apprehending, even after all the correspondence which had 
 taken place, the precise i)rop(xsition of law on which the 
 United Stales Govermnent relies in justification of its claim 
 to exclude all other nations from the fur-seal fisher}-, l^vcn 
 in icSfjr Mr Blaine found it necessary to instruct us that 
 "the advisers of the President i\o not rely as justification 
 
 ' Even Mr I'liulps .ippciis l(, liavc bciMi nii>le(l, for wo fmd Iiiiii wiiiina ii, 
 April 1S91 :— " 'I'lie SccTfl.iry of .Slate in lii> i.(irrc-.pnn(lciico wiili ilie ilii'Jsii 
 (invurnincnt on tl-,is sulijwt I1.1S iiiiderlnken In niainlain tli.nt those wnlers are 
 not, p.s lictween tliat country and the United States, a I'art of tile ln'i;h or open 
 
16 
 
 THE BEHRING SEA QUESTION. 
 
 for the seizure of British ships in the open sea upon the 
 contention that the interests of the seal fisheries give the 
 United States any right for that purpose which, according 
 to international law, it would not otherwise possess. The 
 Government of the United States holds that the owner- 
 ship of the islands upon which the seals breed, that the 
 habit of the seals in regularly resorting thither and rearing 
 their young thereon, that their going out from the islands 
 in search of food and regularly returning thereto, and all 
 the facts and incidents of their relation to the island, cfive 
 to the United States a property-interest therein ; that this 
 property-interest was claimed and exercised by Russia 
 during the whole period of its sovereignty over the land 
 and waters of Alaska ; that England recognised this 
 property-interest in so far as recognition is implied by 
 abstaining irom all interference with it during the whole 
 period of Russia's o'-'nership of Alaska, and during the 
 first nineteen years of the sovereignty of the United 
 States." It is undeniable that this statement shows a very 
 different complexion of the case from that originally pre- 
 sented, but it was to this aspect that the American Counsel 
 in the late arbitration mainlj- devoted their attention. Mr 
 Carter, indeed, drew a touching picture of the tender solici- 
 tude which the United States had always shown for tne 
 welfare of the seals — a picture which must have recalled to 
 the minds of the Arbitrators his countrymen's well known 
 anxiety for the protection of other rare species in the 
 animal world — a loving care which has secured a lineal 
 and undiminished succession for the buffalo and the beaver. 
 It is therefore necessary, before discussing the legal bearing 
 of this " property-interest," or the validity of the contention 
 that it was derived from Russia, to say a word in explana- 
 tion of the seal-habits and of the Alaska Company's method 
 of taking the island-catch. 
 
 'J1ie female seals seek tne shores of the islands for the 
 purjjose of giving birth to their young, 'i'he pups are 
 born soon after the mothers land in May. The strongest 
 bulls, polygamous in '-.abit, establish their rights to adequate 
 harems by dint of hard fighting with less doughtj- champions. 
 
THE BEHRING SEA QUESTION. 
 
 17 
 
 They maintain their posts during the whole summer, driving 
 off every male that seeks to cross the boundary of their 
 seragh'os. One-third, however, of the millions which line 
 the shores are bachelors. These are males under six years 
 of age. The old bulls jealously exclude them from the 
 breeding-grounds, and leave them only an option of con- 
 gregating on the beaches where no cows are, or upon the 
 higher grounds to the rear of the family resorts. I. is this 
 class of bachelors, known as holluschickw, which the natives 
 and the employes of the Alaska Company slaughter. The 
 method is thus described by Professor Elliott, who, in 1873, 
 wrote an elaborate monograph upon the Seal Islands.' He 
 is the chief American authority on the subject, and one who 
 had certainly no bias against the Company. "A dozen 
 Aleutes running down the sand-beach of linglish Bay in the 
 early morning of some June day v.ill turn back from the 
 water thousands of seals, just as the mould-board of a plough 
 lays over and back a furrow of earth. They then leisurely 
 on the flanks and in the rear of this drove thus secured, 
 directing and driving it over to the killing-grounds." The 
 seals "are urged along over paths leading to the killing- 
 grounds with very little trouble, and require only three or 
 four men to guide and secure as many thousands at a time. 
 They are permitted frequently to halt and cool off, as heat- 
 ing them injures their fur. When the men droj) back for a 
 few moments, that awkward shambling and scuffling of the 
 march at once ceases, and the seals stop in their tracks to 
 fan themselves with their hind-flippers, while their heaving 
 flanks give rise to subdued panting sounds. As soon as 
 they apparently cease to gasp for want of breath and are 
 cooled off comparatively, the natives step up once more, 
 clatter a icw bones with a shout along the line, and this scal- 
 
 ' It is true that an luii^lish reviewer once justly said of tliis wciik : — " Tlie 
 Ianj;iias;e is the purest .American — the tonijue lliat our descendanls are pcrliaps 
 one day to s|)eal<— hut it is needless (o anticipate an evil." \& the style is 
 gra|ihic and well suited to the sulijecl. Mr l^lliutl is sjiecially happy in his 
 epithets. It was he who applied to (lie .Meutian islands the words " )irm 
 pelagic liouudary," ,-\ jihrasc so attractive that everyhudy seems to enjoy usins; 
 it, and which is iierhajis to blame for the vile imputation of anliijuated /iiaii- 
 ciausitm tenets to the United States' diplomatists. 
 
i8 
 
 THE BEIIRINC SEA QUESTION. 
 
 shamble begins again— their march to death and the markets 
 of the world is taken up anew. As this drove progresses 
 along that path to those slaughtering-grounds, the seals all 
 move in about the same way ; they go ahead with a kind of 
 walking step, and a succession of starts, spasmodic and 
 irregular, made every few minutes, the seals pausing to 
 catch their breath, making as it were a plaintive survey and 
 mute protest. Every now and then a seal will get weak in 
 the lumbar region, then drag its posteriors along for a short 
 distance, finally drop breathless and exhausted, quivering 
 and panting, not to revive for hours — days perhaps — and 
 often never. This prostration from exhaustion will always 
 happen, no matter how carefully they are driven, and in the 
 longer drives as much as 3 or 4 per cent, of the whole drive 
 will be thus dropped on the road ; hence I feel satisfied, from 
 my observation and close attention to this feature, that a 
 considerable number of those that are thus rejected from the 
 drove, and are able to rally and return to the water, die 
 .■•ubsequently from internal injuries sustained on the trip, 
 superinduced by this over-exertion." On arrival at the 
 killing-groundsthe natives brain the creatures with bludgeons. 
 " The aim and force," says Mr Elliott, "with which the native 
 directs his blow determines the death of a fur-seal. If 
 struck direct and violently, a single stroke is enough. The 
 seals' heads are stricken so hard sometimes that those 
 crystalline lenses to their eyes fly out from the orbital 
 sockets like hail-stoncs or little pebbles, and frequently 
 struck me sharply in the face, or elsewhere, while I stood 
 near watching a killing-gang at work." It does not appear 
 that any care is exercised to keep the slaughter of the 
 bachelors a secret from their happier kinsfolk, for Mr Elliott 
 says : — " We see the Lagoon rookery, a reach of ground 
 upon which some twenty-five or thirty thousand breeding- 
 seals come out regularly every year during the appointed 
 time, and go through the whole elaborate system of repro- 
 duction without showing the slightest concern for or atten- 
 tion to the scene directly east of them, and across that 
 shallow slough not 80 feet in width. There are the great 
 slaughtering fields of St Paul Island ; there are the sand 
 
THE BEHRING SEA QUESTION. 
 
 19 
 
 flats where every seal has been slaughtered for years upon 
 years back for its skin ; and, even as we take this note, forty 
 men are standing there knocking down a drove of two or 
 three thousand bachelors for their day's work, and, as they 
 labour, the whacking of their clubs and the sound of their 
 voices must be as plain to those breeding seals, which are 
 not 100 feet from them, as it is to us a quarter of a mile 
 distant. In addition to this enumeration of disturbances, 
 well calculated to amaze and dismay and drive off every 
 seal within its influence, are the decaying bodies of the last 
 year's catch — seventy-five thousand or eighty-five thousand 
 unburied carcases — that are sloughing away into the sand 
 which two or three seasons from now Nature will, in its 
 infinite charity, cover with the greenest of all green grasses." 
 It is surely clear that the practical effect of prohibiting 
 seal-fishing, or "pelagic sealing " as i«- is called, while this 
 work went on ashore, would have been to concede the 
 American demands and shut out the Canadian claims. The 
 institution of a close time on the lines proposed would have 
 given the Americans all the sea they want, all the time they 
 want, and the benefit of a close season debarring everybody 
 but themselves. 
 
 But what are the American objections to pelagic sealing } 
 They rely upon the opinions of the expert!:- to show that the 
 process is so destructive that it will bring about the imme- 
 diate extermination of the species. Of these authorities 
 Professor Elliott is the chief He thus proceeds to prove 
 his case in a letter written to Mr Bayard in 1887: — "As 
 these watery paths of the fur-seal" (from the Aleutian 
 passes) "converge in Behring's Sea, they in so doing 
 rapidly and solidly mass together thousands and tens of 
 thousands of widely scattered animals (as they travel) at 
 points 50 or even 100 miles distant from the rookeries of 
 the Seal Islands. Here is the location and the opportunity 
 of the pelagic sealer. Here is his chance to lie at anchor 
 over the shallow bed of Behring's Sea, 50 or 100 miles 
 distant from the Pribylov group, Vv'here he has the best 
 holding-ground known to sailors, and where he can ride in 
 any weather, safely swinging to his cable. . . . He has 
 
20 
 
 THE BEHRING SEA QUESTION. 
 
 a safe and fine location from which to shoot, to spear, and 
 to net these fur-bearing amphibians, and where he can 
 work the most complete ruin in a very short time. His 
 power for destruction is still further augmented by the fact 
 that those seals which are most liable to meet his eye and 
 aim are female fur-seals which, heavy with young, are here 
 slowly nearing land, reluctant to haul out of the cool water 
 until the day and hour arrives that limits the period of their 
 gestation. The pelagic sealer employs three agencies with 
 which to secure his quarry, viz., he sends out Indians with 
 canoes and spears from his vessel ; he uses rifle and ball, 
 shot-guns and buckshot; and last, but most deadly and 
 destructive of all, he spreads the gill-net in favourable 
 weather. With gill-nets underrun by a fleet of sealers in 
 Behring's Sea across these converging paths of the fur- 
 seal, anywhere from 3 to lOO miles southerly from the seal 
 islands, I am extremely moderate in saying that such a 
 fleet could and would utterly ruin the fur-seal rookeries of 
 the Pribylov Islands in less time than three or four short 
 seasons." 
 
 It cannot be denied that this sketch of pelagic sealing, 
 drawn to convince us of its wanton destructiveness and to 
 excite our condemnation of those engaged in it, suffers 
 greatly from being placed alongside that other picture of 
 seal-killing on land. The seal hunter in his canoe with his 
 spear or gun, or even the crew of the schooner with their 
 net, seem a much less destructive agency than the men with 
 the clubs who drive the animals by thousands to their 
 killing-grounds. It is certain that the latter, engaged in a 
 work that requires no spark of courage, exhibits no element 
 of skill, suggests no sentiment of romance, are not likely 
 to arouse much sympathetic interest. When Mr Phelps, 
 throwing all stricter arguments behind him, appeals to 
 " the laws of all civilised nations based upon the ordinary 
 dictates of humanity," we cannot forget the disgusting scene 
 of brutality and butchery at English Bay. Civilisation and 
 humanity ! What are they to the men who turn into 
 torture-grounds and shambles the very spots which should 
 be sacred to the rites of propagation and maternity ? What 
 
THE BF.HRIXG SEA QUESTION. 
 
 21 
 
 veneration for those dictates can those men cherish who 
 employ the semi-savage Aleut in forcing a beast that is half 
 a fish to flounder over miles of dry land ? Professor Elliott 
 quotes from Ovid. To Ovid let him go once more, and 
 mark a passage he has missed : 
 
 Omnia pontus erat : det-rant qiioque littora ponto. 
 
 Occupat hie coiiem : cymba sedet alter adunca, 
 
 Et ducit renios illic. ubi nuper ararat. 
 
 Ille supra segetes, aut mcrsae culmina villae 
 
 Navigat : hie summa piscem deprendit in ulmo 
 
 Figitur in viridi 'si Fors tulit) anchora prato ; 
 
 Aut subjecta terunt curvae vineta earinae 
 
 Et, modo qua graciles gramen carpsere capellae 
 
 Nunc ibi deformes ponunt sua corpora phocae. 
 
 Metum.y lib. I., 292-300. 
 
 With this before him, the Professor might have de- 
 nounced his countrymen for seeking to bring back the 
 age of Deucalion and Pyrrha, for trying to reproduce {si 
 parva licet coinponere inagnis) the incidents of that grand 
 cataclysm, which threw into confusion all the orderly reign 
 of Nature. 
 
 It is unnecessary to say that no man more than an 
 Englishman abhors the slaughter of any wild animal during 
 its pregnancy. It was simply because he intimated a ready 
 and hearty concurrence in the American desire to take 
 measures to stop this that Lord Salisbury found it assumed 
 that he had settled the whole question. But even if the 
 fishers are proved guilty of unavoidably killing a certain 
 percentage of seal-mothers, it is a very rash assumption that 
 this is now or ever will be sufficient to ruin the rookeries. 
 In all the historical instances adduced of seal-rookeries 
 destroyed by indiscriminate slaughter in the South Pacific 
 Islands, on the Falkland Islands, on the coasts of Chili and 
 South Africa, surely never could the operations of hunters 
 10 or 20 miles from land be the cause. The premises laid 
 down by Professor Elliott in his letter of 1887 for the 
 conclusions he had then arrived at are obviously weak. 
 "These watery paths converging," he says, "rapidly and 
 solidly mass together thousands and ten thousands of widely 
 scattered animals." What can he mean by that ? If he 
 means that the seals travel in close-packed droves, he can 
 
22 
 
 THE BEHRING SEA QUESTION. 
 
 be contradicted out of the mouth of the Secretary of the 
 United States Treasury, who, twenty years ago, refused to 
 exclude Australian sealers, and justified his refusal by 
 quoting an expert's opinion that pelagic sealing would not 
 pay, " inasmuch that the seals go singly or in pairs, and not 
 in droves, and cover a large region of water in their home- 
 ward travel to these islands." If, on the other hand, he 
 means what he says, namely, that the animals are widely 
 scattered, how can the sealers, even with the dreaded gill- 
 nets, work the wholesale ruin he has pictured ? The seal is 
 notoriously a most difficult animal to take at sea It is said 
 that 2500 seals is an exceptionally good catch for a vessel 
 carrying twenty-one men during a season of seven or eight 
 months — figures which of themselves are enough to demon- 
 strate the real skill needed by the seal-fisher, and the 
 improbability of that mode of capture ever exterminating 
 the species. 
 
 But Professor Elliott, himself, has lived to see the land 
 operations in a new light. As special agent for the 
 American Government, he was despatched to the islands in 
 1890, and in a letter submitting his report he states his 
 recantation.^ " I can see now, in the light of the record of 
 the work of sixteen consecutive years of sealing, very clearly 
 one or two points which were wholly invisible to my sight 
 in 1872-74. I can now see what that effect of driving over- 
 land is upon the physical well-being of a normal fur-seal, 
 and upon that sight feel warranted in taking the following 
 ground. . . . When they arrive on the killing-grounds, 
 after four or five hours of this distressing effort on their 
 part, they are then suddenly cooled off for the last time 
 prior to the final ordeal of clubbing ; then, when driven up 
 
 1 It would probably be unfair to give credence to the following story which 
 professes to account for Mr Elliott's new point of view. " Professor Elliott was 
 formerly the paid agent in Washington of the Alaska Fur Seal Company. 
 When the sealing contract was lost by that company and given to the North 
 American Company, Professor Elliott made use of every opportunity to attack 
 the latter. Not knowing this, the Secretary of the Treasury sent him as an 
 expert to the seal islands ; but when it was found that his report was an 
 attack upon the North American Company, Mr Blaine requested Mr Foster 
 to withhold the report indefinitely." 
 
THE BEHRING SEA QUESTION. 
 
 23 
 
 into the last surround or ' pod,' if the seals arc spared from 
 cause of being unfit to take, too big or too little, bitten, 
 &c., they are permitted to go off from the killing-ground 
 back to the sea, outwardly unhurt, most of them, but I am 
 now satisfied that they sustain in a vast majority of cases 
 internal injuries of greater or less degree, that remain to 
 work physical disability or death thereafter to nearly every 
 seal thus released, and certain destruction of its virility and 
 courage necessary for a station on the rookery, even if it 
 can possibly run the gauntlet of driving throughout every 
 sealing season for five or six consecutive years ; driven over 
 and over again, as it is during each one of these sealing 
 seasons. Therefore it now appears plain to me that those 
 young male fur-seals which may happen to survive this 
 terrible strain of seven years of driving overland, are rendered 
 by this act of driving wholly worthless for breeding purposes 
 — they never go to the breeding-grounds and take up 
 stations there, being utterly demoralised in spirit and in 
 body. With this knowledge, then, the full effect of ' driving ' 
 becomes apparent, and that result of slowly but surely 
 robbing the rookeries of a full and sustained supply of fresh 
 young male blood, demanded by nature imperatively for 
 their support up to the standard of full expansion (such as 
 I recorded in 1872-74) — that result began, it now seems 
 clear, to set in from the beginning, twenty years ago, under 
 the present system." The report proves that, whereas in 
 1874 there were over three millions of seals on the islands, 
 they had fallen in 1890 to less than one million, and infers 
 that, as the sea-catch only amounts to 60,000, pelagic seal- 
 ing cannot be held responsible for the whole of the reduc- 
 tion. One is at a loss whether more to admire the candour 
 that marks the true man of science, or to wonder at the 
 short-sightedness which years before could see nothing of 
 the tendency of this brutal method of capture. To any man 
 with a feeling of compassion for dumb creatures, or even 
 only a sportsman's instinct for fair play, the end of this 
 revolting practice ought to have been clear as noonday. 
 Professor Elliott pours his sarcasm upon the Treasury 
 agents who have regularly since 1874 reported that the 
 
■ 
 
 24 
 
 THE I^EIIRING SEA QUESTION. 
 
 rookeries were in splendid condition, and condemns their 
 purblindness in failing to note the diminution in the supply 
 of young males. A recollection of the failure of his own 
 insight in 1874 might have led him to temper his censures. 
 
 The discussion of the legal aspect of the claim to a "pro- 
 perty-interest " in the seals raised the most novel, and not the 
 least interesting points in the question. The Roman law 
 recognised a distinction between absolutely wild animals and 
 those that were half tamed. The former were liable to capture 
 at all times, except when they were in someone's actual effec- 
 tive possession. The latter (including, for example, deer, bees, 
 and pigeons) were regarded as still remaining in the posses- 
 sion of an owner, though they might be beyond his 
 immediate grasp, if only they exhibited the habit, and, 
 inferentially, the intention of returning to the hands which 
 cared for them.^ The American Counsel claimed that 
 these rules supported their case. It was contended that the 
 seals had been brought under control upon American soil, 
 to which they had the constant animus revertendi, and where 
 they had become the subject of an industry; that they had 
 thereby become appurtenant to the soil, and ought to be 
 regarded as American property, and entitled to protection 
 wherever they might roam. But the authority just quoted 
 indicates two considerations which seem to displace this con- 
 tention. The foundation of the animus revertendi doctrine is 
 the presumption that the half-tamed animal will return to the 
 spot where it is fed or sheltered, and the object of the rule is to 
 protect the interest of him who cares for the animal against the 
 
 • Gaius, ii., Adqiiisitiones Dominii Naturahs. — § 67. Wild beasts, birds, and 
 fishes, as soon as they are captured, become, l)y natural law, the property of 
 the captor, but only continue such so long as they continue in his power ; after 
 bre.iking from his custody and recovering their natural liberty they may become 
 the property of the next occupant ; for the ownership of the first captor is 
 terminated. Their natural liberty is deemed to be recovered when they have 
 escaped from his sight, or, though they continue in his sight, when they are 
 difficult to recapture. 
 
 § 68. Regarding those wild animals, however, which are habituated to go 
 away and return (as pigeons, and bees, and deer, which habitually visit the 
 forests and return), the rule has been handed down, that only the cessation of 
 the instinct of returning is the termination of ownership, and then the property 
 in them is acquired by the next occupant ; the instinct of returning is held to be 
 lost when the habit of returning is discontinued. 
 
THE BEIIRING SEA QUESTION. 
 
 25 
 
 a^Tgression of those who only covet it. Again, the limitation 
 of a captor's right, by his actual possession, or, at least, by his 
 power of easily and immediately regaining possession, is 
 based on this most wholesome application of the de facto 
 principle. Law can take account only of what a man really 
 has. It can only declare that to be his which he has made 
 and continues to keep as his own. It has to do with the 
 actual, not the hypothetical. Tried by these tests, the 
 claim so eloquently urged by Mr Carter must fall. During 
 their stay on American territory the seals take no sus- 
 tenance whatever from the soil ; and far from being 
 tended or sheltered, they are compelled, in return for the 
 mere foothold they occupy on the shore, to yield a tithe of 
 their kind. When they forsake the land all pretence of any 
 man's having any actual or constructive control over their 
 movements becomes out of the question. They at once 
 become the wildest and wariest of all ferce naturce. They 
 escape from sight. All but a remnant defy recapture, and 
 plough their pathless way to the unseen ocean-haunts where 
 the winter half of their double life is spent. The American 
 Orpheus must sing sweeter strains than these before he 
 wins for all the year his " half-regained Eurydice." 
 
 It is to the credit of Mr Phelps that he has made the 
 ablest effort to place the American claims upon a higher 
 ground than the Russian edict of 1821. "This colony of 
 seals," he said, in a contribution to periodical literature, 
 " making their home on American soil, and unable to exist 
 without a home upon some soil, belong to the proprietors of 
 the soil, and are a part of their property ; and do not lose 
 this quality by passing from one part of the territory to 
 another, in a regular and periodical migration necessary to 
 their life, even though, in making it, they pass temporarily 
 through water that is more than three miles from land." 
 And if in their passage they become the victims of a 
 wanton destruction, Mr Phelps thinks the resources of 
 scientific jurisprudence should provide a remedy. " Doubt- 
 less some lawyers," he says, " would be prepared to demon- 
 strate that much as the calamity might be deplored, there 
 was really no precedent to be found in the books for any 
 
26 
 
 THE BEHRING SEA QUESTION. 
 
 interference to prevent it, because no such wron^r had 
 ever been attempted before, and to point out that to 
 proceed without a precedent would be to set all juris- 
 prudence at naught. Precedents illustrate principles, but 
 do not create them. They arc only valuable so far as they 
 display the application of principles to new cases. They do 
 not arise out of rights but out of attempted wrongs. A 
 right cannot obtain the sanction of a precedent until it is 
 invaded. And an invasion of a right is not without redress, 
 though it may never have been invaded in the same way 
 before. There must always be a first case, but not neces- 
 sarily therefore a remediless case. When the case arises that 
 justifies a precedent, the occasion for making it should be 
 availed of for the sake of the law as well as for the sake of the 
 right." This is wholly admirable. This lofty conception of the 
 principles that ought to guide international jurists is in entire 
 harmony with the teaching of the late Professor Lorimer, 
 and higher praise it can hardly hope to win. It rises above 
 the beggarly doctrine that only those rights can be recog- 
 nised and protected which have been already conferred by 
 the law as it is. It points to the true principle that the 
 business o! the law is not to confer but to mark and proclaim 
 a right whicii a previous analysis of the facts of the case has 
 revealed. I ,orimer's thesis was that no law can constitute, 
 extend, or circumscribe a proprietary relation. It can really 
 do nothing but declare the true relationship of the pro- 
 prietor towards the thing possessed, and towards his fellows 
 who may have subsidiary rights in that possession. If, then, 
 no positive international law can, scientifically speaking, 
 confer the right to capture the denizens of the open sea, the 
 law which professes to declare that right as really existing 
 may quite well be founded on an incomplete analysis of the 
 facts. The positive law of the relation may be in antago- 
 nism with the natural law of the relation, but that is an 
 antagonism which may be eliminated, and, as the Duke of 
 Argyll has well said, must be eliminated if legislation is 
 ever to be attended with permanent success.^ The first step 
 towards determining the natural law which applies to the 
 
 ' Reign of Law, p. 355. 
 
THE nEHRING SEA QUESTION. 
 
 present case, and so discovering the terms of the positive 
 law which ought to declare the rights of the contending 
 parties, is to ascertain precisely the habits of the animals 
 themselves. This is apparent from the very statement of 
 the American case, and, although the territorial claim of the 
 United States was earnestly urged as sanctioned by history 
 and prescription, and as strenuously denied by England, 
 who looked to history and prescription for its refutation, yet 
 it was recognised, even in the Arbitration Treaty, that the 
 mere settlement of the questions of territory and jurisdiction 
 would not suffice to dispose of the difficulty. Each Govern- 
 ment accordingly agreed to appoint two Commissioners to 
 investigate, conjointly with the Commissioners of the other 
 Government, all the facts relating to seal life in Behring Sea, 
 and the measures necessary for its proper protection and 
 preservation.^ With the report of this Joint Commission to 
 guide them, the Arbitrators were empowered to determine 
 what concurrent regulations, outside the 3-mile limit, should 
 be laid down, and over what waters they should extend. 
 Unfortunately the differences of opinion which arose between 
 the American and the English Commissioners, rendered it 
 impossible for them to embody any but comparatively un- 
 important conclusions in their joint report, and it may con- 
 sequently be doubted whether their inquiries have made the 
 natural history of seal-life much more exact than it was 
 before. Besides the lack of an accurate basis of fact to 
 build upon, there is one other consideration almost sufficient 
 to deter anyone from suggesting a rule of positive law that 
 claims to declare the true natural relation that ought to 
 govern the present issue. Natural law, we are told, is dead 
 and buried, it is scouted as a fiction. In a connection very 
 near to this it is blamed for having exercised " a disastrous 
 power over the international concerns of Canada." W'o.ether 
 it is more thoroughly discredited than the theories which 
 base positive enactment on utility or philanthropy is a ques- 
 tion for the schools. It is not pretended that natural law 
 in a case like the present will indicate the exact limits 
 within which the American rights ought to be exclusive. 
 ' See Appendix I., Treaty, Art. 9. 
 
28 
 
 TIIF, 1!EIIKING SEA ()UKSTI(3N. 
 
 It will do no more than suiijc^cst that where the power of 
 readily recjainint; possession of tlic seals at sea is found to 
 cease, there the right to vindicate sole ownership must cease 
 also. Pjut it is not neccssar)- to lay claim to the discovery 
 of the true measure of l^ritish and American rii^hls in this 
 matter, in order to approve the terms of the proposal made 
 to the Court by Sir Richard Webster for the regulation of 
 the seal fishery in the future. On behalf of Great liritain 
 he pnjposed that no seal-hunting shouki be permitted at 
 any time within a zone of .:!0 miles round the I'ribylov 
 Islands, that a close season, from the 15th SeptemlK'r until 
 the 1st of Jul)', should be established, during which no 
 pelagic sealing should be i)ermitted in Behring Sea, and, 
 in order to secure the due observance of these regulations, 
 that all sealing vessels should be required to obtain a licence. 
 To say that some such regulations .ipj.ear to be those which 
 natural law would prescribe, may be only to set up a new 
 butt for the shafts of ridicule with which writers of the 
 analytic and organic schools seem so well supplied. But 
 the principle that there is no right which does not arise 
 from, and continue to depend upon, ])ower, will live and 
 as.sert itself in spiie of derision, and if rights depeiul upon 
 powers, the extent of the one is the measure of the other. 
 
 Mr ['helps has, in the article already alluded to, ventured 
 to admit, for the purposes of argument only, that the waters 
 between the mainland and the Pribylov Islands outside the 
 3-mile limit are to be regarded as a part of the open 
 sea, and he pKJceeds to show how numerous are the restric- 
 tions to w hich the frecdcjin even of the open sea has been 
 subjected. The ver\- case of the 3-mile limit he claims 
 as a concession to the princii)le that where ((bvious 
 necessities of justice require if, the doctrine of freedom is 
 set aside. lie fnuls fuiUier iiist.mces in the law of bloci<ade 
 and the right of searching anil stopping sla\e-traders. Ho 
 infers that the principle involved in these cases should be 
 applied to settle the present difficulty in a sense favourable 
 to the United States. Correct as his cor.c'Msion may be, 
 that the freedom of the seas can never aulhoiise injur)- to 
 the property or just rights of others, a hich are as sacred at 
 
Tin: nr.iiRixr; sf.a oit.stiox. 
 
 29 
 
 sea as on shrire, it is certain tliat tlie analogies he adduces 
 liave no apijlication liere. The riL^ht of a belliLjercnt to 
 stop the commerce of lu's enemy's ports is a riqht which 
 only war confers. A " ])acific blockade" there never was 
 and never will be. .\11 the pacific l)lockades of the century, — 
 that which we, in concert with h'rance and Russia, instituted 
 in the IJay of .\avarino in \^2y, when v.-e blew the Turkish 
 fleet t(j pieces, while oui ambassador remamed at ('011- 
 stantinoplc professini;- amity with the .Sultan, that which 
 we, aided by I'rance, set U[) over the Ar^^entine i'orts in 
 iS45,and thatwliich I''rance latclv enforced aj^^ainst Siam, — 
 were truly war measures. They were all enforced a;^ainst 
 weak States. The first attempt to a])pl\- a pacific bkjckadc 
 to a stronr,r power will assuredl}' demonstrate the real 
 character of the o])erati(;n. As for the other example 
 u])on which Mr rhel] ; relies, the ri;dit of visitinrr and 
 searciiiiii^r slave-traders, it can be refuted upon the authority 
 ol a judi^e whose decisions h.ive become an inte,L,Mal part 
 of the law of nations. 'l"he case of Lc i.ouis' in 1S17 was 
 that of a l^'rei^i^h ship captureil b\ an ICnglish cruiser on 
 suspicion of being enc^aged in the slave-trade, antl for 
 rcsistinL,^ a search. Sir William Scott (afterwards Lord 
 Stowell) held that the visit and search made by the cruiser 
 were unlawful bec>ause no l)riti>h .Act of Tarliamcnt could 
 authorise such a proccidini; aj_;ainst foreii^niers. lie laid it 
 ilown that no nation could exercise a ri^lit of visit and 
 search upon the luL^h seas save only on a belligerent claim. 
 Xor could he hold the visit made in tiine of peace justified 
 on the cj^i'ound that the captm-cil vessel bein;j; a slaver was 
 thereby a pirate, lor the slave traffic was not piracy or c\-en 
 a crime 1)_\- the unixcrsal law of nations. A nation, lie 
 declared, had a ri_L;ht to enforce its own municipal rules anel 
 navic;,ation laws so far as such enforcement did not interfere 
 M'itli the rip[hts of others, but it had no rij^ht under co\er of 
 its munici[),d rei^ulations t") \isit aiut search ves.sels of other 
 natii/n.dilies on the hi;_;ii seas. The case is ai)soluteI\' in 
 j>'»im here, it is true that the sia\'e-trade i.-^ now ahno>t in 
 
 2 l)niN. A'lm. \<v\\ jio .111.1 I'iii (_'oM«.'U\ lA'ailiii,. Ca-es P- '^.^ 1'.' 
 
 iSy:. 
 
^o 
 
 Tin-: isEURTXc; ska ()ri;sTi()\. 
 
 the category of piracy, and it is also true that the Alaska 
 Company's officials have not hesitated to call the seal- 
 fishers pirates. Hut to rise from these positions to the 
 conclusion that the Great Republic can In' Proclamaticjn 
 stop innocent commercial enterprise in a c^'reat sea is not 
 an effort of reason but a flight of imagination. Air Phelps 
 nevertheless undoubted!)- succeeded in establishing the 
 main thesis he set liimself to ])rove ; that the sea has never 
 been free for any ]-)urpose whatever inimic-l U- the just 
 rights of mankind, lie might even ha\'e gon '},)•■.•■ ,md 
 ha\'e shown that the true history of the doctrine i. 'hat the 
 sea was never regardctl as free until it was recogm's-ci that 
 claims to hold the sea in fee far exceeded the powers that 
 professed to xinrlicate them. It was c)nl\- when the nawd 
 supremacy of one or two great maritime nations was 
 challenged that the doctrine of W(?/-r lilhritni began to 
 will favour. It is not that principle which stands in the 
 way of .Mr Phelps. Let him show the reality of his 
 riLdit — the validity of that strange claim to ownersliii) 
 in the seal-- — and no " [)irates '" will be allowed to i)re- 
 tend that the freedom of the sea permits thein to destroy 
 it. 
 
 There remains the historical argument that this righi 
 property or propertj'-interest was elerived b\' the Uni. .\ 
 States fiom Russia, and has been \.ilidated b\' long and 
 continuous e.xercisc. I'he statement of the American 
 position which has been alread)- (pioted from Air IMaine's 
 despiitch of 14th April iSyi would seem to i)lace this right 
 in the ver_\- forefront of the dispute. l>ut once again we 
 re<iu'red to be instructed, and the lessoii v .-. read to us this 
 time before the Arbitration Court itself \ ' en iliscussion 
 arose before the tribunal as to whether a supplemei l.ry 
 Re]5ort submitted b\' the Pritish Commissioners shoii;':') '-e 
 ailmilled. Mr Carter, the coadjutor ot Mr Phelps, niain- 
 tainetl that all the evidence on seal life which Britain 
 intended to sibmit ought to h.ivc ' ■■' ii included in her 
 Commissioners' Report, <as tiiea alre;io;. 'oiigeil, and ought 
 not afterwards to be receiveti. Sir ( ii,u-les Russell relied 
 u[)on the exi)ress terms of the seventh article of the Treat}- 
 
THE lUCIlRIXO SKA (JUKSTION. 
 
 31 
 
 which stipulate that the I'icport shall be accompanied " with 
 such other evidence as either Govcrnmenc may submit," 
 and construed that as conferrini:^^ a ri^ht to lead e\idencc 
 re.r,^'irdino^ ref^ularisation, even after the case and counter- 
 case had been closed under Article 9. Ii: the end, the 
 Court decided that the Report should not be receixed at 
 that sta.t,fe, but that Counsel mii^dit adopt the arL^umients 
 contained in it as part of their oral argument. The point 
 is of interest, as showing the American Counsel strongly- 
 contending that from the first the dispute had been one 
 abor.L regulation, and that the (lucstion of right was a 
 sccondar\' matter imported into the diplomatic corre- 
 spondence at a later stage. This will be readiU- recognised 
 as a develoi)ment in the forensic discussion of the view 
 which iMr Phe!i)s so astutely presented to our Government 
 in icSSS. to the effect that the institution of a close time 
 would solve the wiiole dispute. ISut the history of the case 
 from [886 onwards stamps this con'.ention as an ingenious 
 attempt to shift the original controversy to a different and 
 safer ground. There was in 1886 no (lucstion of securing 
 the concurrence of England and other powers in establishing 
 imernational regulations for the seal-fishery. The onl)- 
 matter then agitated was the Americans' right to seize the 
 vessels which they deemed aggressors and convict the 
 crew.s. Despatch after despatch was launched against the 
 Foreign Offioe proclaiming the dominant right of the 
 United States to repress '.he incursions of all foreign fisher- 
 men, i'rimary o.- secoiu'ary, however, this "pi-opcrt_\--interest'' 
 was strongly insisii_^l on as a valuable chattel which the 
 United Sta.tes had acquired by a good title from Russia, 
 ant! in the possession of which neither they nor their pre- 
 decessors had ever been disturbed. The American doctrine 
 of prescription and the facts which are held to prove our 
 aL<|uiescence tleser\e to be examined. 
 
 From the year 1 741, when that bold Dane, \'itus Iiehring. 
 sailing under the tlag of Peter the Great from the Siberian 
 side, touched the coast of the Amcricin continent, the 
 Russian dominion over that part of the N'orth Pacific 
 Ocean known as the iaea of Kamschatka was paramount 
 
32 
 
 THE BEIIRING SEA QUESTION. 
 
 for sixty years. That dominion was expressly asserted in 
 the Ukase of the Emperor Paul issued in 1799, by which 
 the absolute control of the whole region was vested in the 
 Russian- American Company. In 1821 the Emperor Alex- 
 ander, finding that the Russian trade on the Aleutian 
 Islands and in Russian-America was greatly hindered by 
 • t and illicit traffic, issued an edict excluding all but 
 : .ian subjects from trading, whaling, or fishing in those 
 parts, and prohibiting all but Russian vessels from landing 
 on the coasts and islands, and even from approaching them 
 within less than 100 Italian miles. It is not surprising that 
 this preposterous announcement evoked both iMiglish and 
 American protests. Mr John Quincy Adams said he could 
 admit no part of the Russian claims. With regard to the 
 pretension of Russia to treat these waters as a close sea, he 
 said : " It may suffice to say that the distance from shore to 
 shore in this sea, in latitude 51' north, is not less than 90° 
 of longitude, or 4000 miles." The Duke of Wellington, on 
 behalf of England, intimated that we could not admit the 
 right of any power possessing the sovereignty of a country 
 to exclude the vessels of others from the seas on its coasts 
 to the distance of 100 miles, and that we objected to the 
 arrangements contained in the ukase conferring upon 
 private merchant ships the right to search in time of peace, 
 as being quite contrary to the laws and usages of nations, 
 and to the practice of modern times. The Duke stated the 
 plain sense of the matter in a despatch to Count Lievcn. 
 " We contend that no Power whatever can exclude another 
 from the use of the open sea : a Power can exclude itself 
 from the navigation of a certain coast, sea, &c., by its own 
 act or engagement, but it cannot by right be excluded by 
 another."^ This fairly hits the vitious premiss which 
 underlies the American claim in the present case. It is 
 true that Mr Blaine cited against Ikitain certain precedents 
 from her own practice. He pointed to the English Act of 
 
 ^ So Calvo ; — "Deux ou plusicurs nations sont libres de modifier conven- 
 tionnellcment ce principe ; dc le restreindrc ou de IV-tcndre ; mais cc sont la des 
 dispositions tpii lus licnt entrc cllcs dan leurs relations reciprocpies sans qu'elles 
 puissent k- ap[)li(iuer et bien moins encore les iniposer a d'autres Etats." 
 
THE DEIIRING SEA QUESTION. 
 
 33 
 
 Parliament of 1816, forbidding vessels to hover within four- 
 and-twenty miles of St Helena, and the very recent Act 
 closing the whole Moray Firth to trawlers. The answer to 
 this unfortunate attempt to found an analogy upon the St 
 Helena Act is obvious. That Act was admittedly an 
 extraordinary assumption of jurisdiction, and its recognition 
 was only secured by special treaty with the Great Powers — 
 a treaty to which the United States themselves formally 
 acceded. As for the Act which stops free fishing in the 
 Moray Firtl , *'. is plainly based upon the well recognised 
 principle that c3 the Firth is included within two head- 
 lands, both of which belong to the same State, the mode of 
 fishing to be practised in it may be prescribed by that 
 State's municipal enactments. The Act provides that 
 '• trawling shall not be used within a line drawn from 
 Duncansby Head, Caithness, to Rattray Point, Aberdeen- 
 shire." If it be objected, and it may undoubtedly be fairly 
 objected, that it is an excessive extension of the headland 
 doctrine to legislate for 2700 square miles of sea which 
 hardly present the characteristics of an enclosed bay, it 
 may be granted that the Act is ineffectual against foreigners 
 beyond tiie 3-miIc limit. The only check which could 
 legitimately be placed upon a Norwegian trawler violating 
 the Act would be to refuse to allow her catch to be landed 
 in this country. But if the case be imagined of our founding 
 at some date in the distant future upon this Act, and upon 
 other nations' acquiescence in it as evidenced by their for- 
 bearance from all challenge of the Act and from competitive 
 enterprise in the forbidden area, how would our pretension 
 be received ? Is there anyone simple enough to suppose 
 that if, forty years hence, the Moray Firth fishing should by 
 some revolution in !ish-life become so valuable as to tempt 
 American enterprise, the Bureau at Washington would con- 
 cede that prescription of the seas had run against them ? 
 We may safely credit their diplomatists with penetration 
 and erudition sufficient to scout the unreasonable doctrine, 
 and overwhelm us with legal authority for its repudiation. 
 They would tell us, as the Duke of Wellingtoii told the 
 Russians in 182 1, that a nation can by its own engagement 
 
34 
 
 THE BEIIRING SEA QUESTION. 
 
 exclude itself even from an open sea, but cannot be ex- 
 cluded by another. 
 
 These emphatic protests efifected their purpose, and after 
 some negotiation the question was settled by two treaties, one 
 between Russia and the United States (1824), the otner be- 
 tween Russia and Great Britain (1825). The first article of 
 the former treaty runs : — " It is agreed that, in any part of 
 the great ocean commonly called the Pacific Ocean or South 
 Sea, the respective citizens or subjects of the High Con- 
 tracting Powers shall be neither disturbed nor restrained 
 either in navigation or in fishing." The English treaty 
 contains a similar clause. Now, if ordinary language is to 
 have its ordinary meaning in a State paper, surely this was 
 a distinct abandonment of the Russian position. The 
 American contention, however, is that it was nothing of 
 the sort. The Pacific Ocean or South Sea, says the American 
 Secretary, meant anything but Behring's Sea: Behring's 
 Sea is never mentioned : if it had been included it would 
 have been specifically named: "It is impossible that, in 
 the Anglo-Russian treaty. Count Nesselrode, Mr Stratford 
 Canning, and M. Poletica, could have taken sixteen lines 
 to recite the titles and honours they had received from their 
 respective sovereigns, and not even suggest the insertion of 
 one line, or even word, to secure so valuable a grant to 
 England as the full freedom of the Behring's Sea." The 
 treaties, he maintains, practically withdrew the waters of 
 the north-west coast on the Pacific Ocean from the opera- 
 tion of the ukase ; the inference, therefore, is that it remained 
 operative over Behring's Sea. Again, the American Secretary 
 triumphantly asks, why was it that, for forty years after the 
 treaties of 1824 and 1825 were concluded, neither American 
 nor Elnglish ships entered Behring's Sea to compete with 
 the Russian- American Company ? Docs not their abstention 
 raise the strongest presumption of their lack of right, and 
 of their recognised disability? 
 
 Perhaps the most astounding assumption in this chain of 
 assertions is that which presupposes that England required 
 to secure a grant to enable her citizens to sail and fish in 
 Behring's Sea — required a concession from a naval power 
 
THE BEIIRING SEA QUESTION. 
 
 33 
 
 far weaker than herself to entitle her sailors to follow the 
 free-swimming fish, whales, and seals over a stretch of sea 
 1 100 miles broad. But, in point of fact, we waited for no 
 grant. It is an incontrovertible historical fact that from the 
 time of these treaties onwards, foreign vessels fishing in 
 Behring's Sea were never interfered with. It has been 
 stated on the best authority » that when the Pacific whale 
 fishery was in its most flourishing state, whole fleets of 
 English, American, and foreign whalers frequented Behring's 
 Sea without let or hindrance.- Not only so, but when in 
 1842 the Russian- American Company urged Russia to stop 
 the operations of American whalers in that sea, she declined, 
 on the express ground that the treaty of 1824 gave to 
 American citizens the right of fishing " over the whole extent 
 of the Pacific Ocean." 
 
 But what strength is there in the contention that the term 
 " Pacific Ocean" used in the treaties of 1824 and 1825 ex- 
 cludes liehring's Sea? The American Secretary was at 
 great pains to collate some hundred maps and charts to 
 establish that Behring's Sea was known at the time the 
 treaties were concluded by some specific name distinguish- 
 ing it from the Pacific— be it Behring's Sea, the Sea of 
 Kamschatka, Bassin du Xord, Mer Dormant, or whatever 
 else. " Is it possible, then," he asked, " that with this 
 cloud of witnesses before the eyes of Mr Adams and 
 Mr George Canning, attesting the existence of the Sea of 
 Kamschatka, they would simply, include it in the phrase 
 
 1 Hancrofl's Ilis/orv cf the Pacific State;, vol. xxviii. 
 
 2 Mr Charles H. Ewarl of >fi]ll.ush, Dallx^attie, writes of his own exi.eriences 
 as one of the crew of an American whaler .^ailing from New Bedford :— " We 
 caught whales in the IJehring .Sea during iS57-5*^-59- Our common ractice 
 was to leave the Hawaiian Islands in the month of March, and go north to the 
 Behring Sea, thence into the Gulf of Anadir, and afterwards moving down the 
 east coast of Kamschatka, we went through what was called the 50' passage in 
 the Kurile islands into the Okhotsk Sea. We hunte.l and caught whales in all 
 these seas without let or hindrance. If the Kus.Man^ had been inclined to place 
 any restrictions on whale fishing at all, they would surely have done it in the 
 Okhotsk, which is virtually inkind sea. I have been ashore in every town and 
 hamlet in the Okhotsk, and, even where there were military establishments, 
 instead of any restrictions being place<l on our coming and going, we were re- 
 ceived with the utmost cordiality, and I remained in the I'acinc untd 1870, and 
 I never at any time heard of any propoi.-il to interfere with whale ships." 
 
36 
 
 THE BEHRING SEA QUESTION. 
 
 'Pacific Ocean'? Is it possible that Mr Canning and 
 Mr Adams would believe that they were acquiring for 
 the United States and Great Britain the enormous rights 
 inherent in the Sea of Kamschatka without the slightest 
 reference to that sea, or without any description of its metes 
 and bounds, when neither of them would have paid for a 
 village house-lot, unless the deed for it should recite every 
 fact and feature necessary for the identification of the lot 
 against any other piece of ground on the surface of the 
 globe ? " Against this " cloud of witnesses " Lord Salisbury 
 set a list of ordinary works of reference in which the Pacific 
 Ocean is used as including that sea. His general answer 
 was an analogical argument establishing the absolute pro- 
 priety of the designation used in the treaties. He cited the 
 Gulf of Lyons and the Bay of Biscay, which, though enjoy- 
 ing separate particular names, are surely to be held as parts 
 of the Mediterranean and of the Atlantic respectively. But 
 there is direct contemporaneous evidence that " Pacific 
 Ocean " was the term officially recognised as covering what 
 is now known as Behring's Sea. The Russian Minister, 
 writing to Mr Adams in 1822, declares that "the Russian 
 possessions in the Pacific Ocean extend on the north-west 
 coast of America from Behring's Straits to the 51st degree 
 of north latitude." Again, in a paper accompanying Mr 
 Adams's, instructions sent in 1823 to Mr Middleton (who 
 was at that time American Minister at St I'etersburg), this 
 passage occurs : — " The right of navigation and fishing in 
 the Pacific Ocean, even on the Asiatic coast north of latitude 
 45^ can as little be interdicted to the United States as that 
 of traffic with the natives of North America." This language, 
 be it remembered, is used with express reference to Russia's 
 claim to exclusive jurisdiction over the sea from Behring's 
 Strait down to 45° 50' on the American coast. 
 
 But the American diplomatists may be left to make the 
 most of their giddy footing on this narrow ledge of reasoning 
 from the content of a term. Let any man come down to 
 broader ground, and read the treaty of 1824 m the light of 
 the ukase which preceded it, and then s.- ■ whether he can 
 come to any other decision than thn' so explicitly enun- 
 
 #«;< 
 
THE BEHRING SEA QUESTION. 
 
 37 
 
 ^ 
 
 #*' 
 
 ciated by Calvo, who declares that that convention secured 
 freedom of navigation and fishery, " dans toute Pctendue de 
 I'Ocean Padjique." The Russian edict, upon the narrative 
 that the proper regulation of traffic required the establish- 
 ment of boundaries for navigation on the north-west coast 
 of America, the coast of Siberia, and among the Aleutian 
 Islands, prohibited all commerce and navigation on or m 
 "all islands, ports and gulfs, including the whole of the 
 north-west coast of America, beginning from Behring's 
 Straits to the 51st degree of north latitude." That was the 
 gigantic claim put forward by Russia ; that was the preten- 
 sion which the United States and Great Britain set them- 
 selves to overthrow. If the treaties which professed to settle 
 that question in a sense favourable to the Americans and to 
 us really have no application north of the Aleutian chain, 
 how were we deluded? Never did Russian diplomacy 
 achieve so blindly fortunate a victory. And yet, if it was 
 Count Nesselrode's conscious but tacit intention to pre- 
 serve all his sovereign's high prerogatives in Behring's 
 Sea, never did Russian plenipotentiary put his hand to a 
 convention so unfortunate in its phraseology. Look at the 
 third article of the deed : " There shall not be formed by 
 the citizens of the United States any establishment upon 
 the north-west coast of America, nor in any of the islands 
 adjacent, to the north of 54° 40' of north latitude, and in the 
 same manner there shall be none formed by Russian sub- 
 jects south of the same parallel." This provision regarding 
 the territory of the United States may have been only a 
 particular enunciation of the famous doctrine promulgated 
 only a few months before by President Monroe, interdicting 
 all future European colonisation on the American continent. 
 But why should Russia have sought or accepted such a 
 stipulation for her domain ? By the terms of the hypothesis 
 there was left standing in full validity her haughty inhibition 
 barring even navigation in the sea north of the Aleutian 
 peninsula. Yet here she exacts merely a prohibition of 
 establishments on shore, knowing, as well she knew, that 
 upon the most approved canons of construction this clause 
 would in the future be construed against her ; that it would 
 
38 
 
 THE BEIIRING SEA QUESTION. 
 
 be read as no mere supererogatory provision, but as really 
 derogating from her loftier pretension to exclude all com- 
 merce from Hehring's Sea. 
 
 And how stands this matter in the treaty of 1867 ? Let 
 us occupy for a momr^nt Mr Blaine's standpoint. Here was 
 Mr Seward framing a deed of cession that was to convey 
 infinitely more than the treaty of 1824 carried. He had 
 before him that treaty fixing the right of American sailors 
 to trade over the North Pacific Ocean — a treaty which upon 
 this assumption stopped short at the Aleutian chain, and 
 left Behring's Sea a forbidden area. Jealous as he must 
 have been " to recite every fact and feature " of the territory, 
 and precise as he ought to have been in his specification of its 
 " metes and bounds," he actually defines a part of Behring's 
 Sea by the perilous misnomer " North Pacific Ocean." 
 There is no room for doubt on the point. The western 
 limit of the ceded territory, according to the second article 
 of the treaty, runs " in a south-westerly direction, so as to 
 pass midway between the island of Attou and the Copper 
 Island of the Kormandorski couplet or group in the North 
 Pacific Ocean." Now, for the first-named island it might be 
 said it was on the boundary between the Pacific Ocean 
 proper and Behring's Sea, and might be described as 
 lying in either. But no such evasion is possible about the 
 other. Copper Island lies icxD miles north of Attou, as 
 much and as unequivocally in Behring's Sea as ever were 
 the Pribylov Islands themselves, and yet here we find it 
 stamped with the American State-Office mark as belonging 
 to the North Pacific Ocean. Nor is the case better if we 
 regard the actual dispositive clauses of the conveyance of 
 1867. By the first article, Russia cedes "all the territory 
 and dominion now possessed by his said Majesty on the con- 
 tinent of America and ifi the adjacent islands ; and the sixth 
 article explains that " the cession hereby made conveys all 
 the rights, franchises, and privileges now belonging to Russia 
 in the said territory or dominion, and appurtenances thereto." 
 There is not one word of sea, or dominion over any sea. In 
 the face of the protests of 1821, denying and successfully 
 opposing the Russian claim to exclude vessels from a .sea- 
 
THE BEIIRING SEA QUESTION. 
 
 39 
 
 belt of lOO miles, we arc asked to believe that the 
 United States in 1867 paid valuable consideration for the 
 right to shut out fishing vessels from countless leagues of 
 the open ocean. In the face of the late insistence upon the 
 paramount duty of state draftsmen to recite every fact and 
 feature of the territory they describe, we are asked to believe 
 that the United States were content to have this costly 
 acquisition mentioned as a right in the territory or an 
 appurtenance thereto without any more elaborate specifi- 
 cation. 
 
 It has been suggested that, though no sea was expressly 
 conveyed by the Treaty of 1867, the limits of the ceded 
 region as there laid down are sufficient to include the 
 whole of Bchring Sea, which should therefore be held as 
 conveyed by implication. It will be observed that in the 
 Treaty the eastern and western boundaries are stated with 
 great precision, but that neither a northern nor a southern 
 boundary is given. The eastern boundary in its course 
 northward becomes coincident with the 141st degree of 
 west longitude, and the western boundary from a point in 
 Bchring Straits northwards is identical with another 
 meridian. As these meridians meet only at the Pole, there 
 is no reason why the territory they are said to delimit 
 should stop short at Behring Straits. If the United 
 States' title is to be measured by these bounds, the 
 President's Proclamation can exclude rival enterprise from 
 a large part of the Arctic Ocean a v.-U as set up a 
 monopoly in the eastern part of Behring Sea. The want 
 of a specific southern boundary has, for the purposes of the 
 United States' argument, been supplied by the hypothesis 
 that the Aleutian Archipelago constitutes a " firm pelagic 
 boundary" in that direction. That this theory has been 
 thought worth discussing is probably due mainly to the 
 fascination of the phrase. In order to dismiss it, it seems 
 enough to state that a boundary line drawn from island to 
 island of the archipelago would cross open spaces of sea, 
 varying from 20 to 80 miles in width, and, unless produced 
 beyond the land's end of the last of the islands, would fall 
 far short of the western Treaty limit. Such a boundary 
 
40 
 
 THE BEHRING SEA OUESTION. 
 
 may be " pelagic," but neither in respect of its constitution 
 nor of its terminus can it be said to be " firm." 
 
 The conclusion which this analysis seems to warrant is 
 that the American case, so far as it is based on the title 
 given by Russia, is not borne out by a fair interpretation of 
 the deed of cession ; that, so far as it claims to be supported 
 by exclusive possession and our acquiescence therein, it is 
 not founded on fact ; and, that so far as it rests on a pre- 
 tended property-interest in the seals themselves, it is 
 sanctioned neither by fact nor by law. Hut after this is 
 said, it remains to acknowledge the irresistible force of 
 Mr Phelps's demand that the law by international nven- 
 tion, or whatever other means is invoked to su the 
 
 want of an international legislature, shall forbid the »vanton 
 and wasteful destruction of a rare and valuable animal. 
 Such a prohibition ought to be enforced not to protect 
 the phantom of State-ownership in a wild animal, but to 
 vindicate the right of the animals themselves to live and 
 multiply after their kind. 
 
 After reviewing the arguments that have been presented 
 for the United States, one is tempted to ask whether this is 
 the same nation which, through one hundred years of strife, 
 has employed every argument that diplomatic ingenuity 
 could suggest, every method which prohibitory tariffs could 
 devise, to compel England to throw open the inshore 
 fisheries of Canada and Newfoundland ; which has main- 
 tained that "the deep-sea fisherman, pursuing the free- 
 swimming fish of the ocean with his net or his leaded line, 
 not touching shores or troubling the bottom of the sea, is 
 no trespasser though he approach within three miles of a 
 coast by any established recognised law of nations ; " which 
 contended before the Halifax Commission, in 1877, that 
 " the territorial waters of the British North American 
 provinces on the Atlantic coast comprise only that portion 
 of the sea lying within a marine league of the coast, and 
 also the interior of such bays and inlets as are less than six 
 miles wide between their headlands ; while all larger bodies 
 of water are parts of the free and open ocean." Do the 
 fishermen who go down from Marblehead and Gloucester 
 
 (4 
 
 ^N 
 
THE HEIIKING SEA QUESTION. 4^ 
 
 and carry back rich cargoes from the Canadian bays sail 
 under the same (lag that flies over the cruisers which seize 
 Canadian vessels seventy miles from the shores of Alaska? 
 
 ^r 
 
 The Award of the Arbitrators has now been delivered. 
 To the five specific questions^ addressed to them, the 
 Arbitrators have given the following answers : — 
 
 1. That by the Ukase of 1 821, Russia claimed jurisdiction 
 in the sea, now known as Behring Sea, to the extent of 100 
 Italian miles from the coasts and islands belonging to her, 
 but in the course of the negotiations which led to the 
 treaties of 1824 with the United States, and of 1825 with 
 Great Britain, Russia admitted that her jurisdiction in the 
 said sea should be restricted to the reach of cannon shot 
 from the shore, and it appears that, from that time up to 
 the time of the cession of Alaska to the United States, 
 Russia never asserted in fact, or exercised any exclusive 
 jurisdiction in Behring Sea or any exclusive right in the 
 seal-fisheries therein beyond the ordinary limit of territorial 
 waters. 
 
 2. That Great Britain did not recognise or concede any 
 claim upon the part of Russia to exclusive jurisdiction as 
 to the seal-fisheries in Behring Sea outside of the ordinary 
 territorial waters. 
 
 3. That the body of water known as Behring Sea was 
 included in the phrase " Pacific Ocean " as used in the said 
 Treaty, and that no exclusive rights as to the seal-fisheries 
 therein were held or e:- rcised by Russia outside of ordinary 
 territorial waters, after the Treaty of 1825. 
 
 4. That all the rights of Russia as to jurisdiction and as 
 to seal-fisheries in Behring Sea east of the water-boundary 
 in the Treaty of Cession, did pass unimpaired to the 
 United States under the said Treaty. 
 
 5. That the United States has not any right of protection 
 or property in the fur-seals frequenting the islands of the 
 United States in Behring Sea, when such seals are found 
 outside the ordinary 3-mile limit. 
 
 1 See Art. VI. of Arbitration Treaty in Appendix I. 
 
i 
 
 42 
 
 Tin; i;i:iiKi\(; ska i il"i;stio\. 
 
 to 
 
 ■ 
 
 The rc7uIations in whicli (Ircat l^rituin is rcviuiic 
 concur are : — 
 
 1. That no seals !je killctl at any time within a /one of 
 Co miles rtumd the I'rihylov Islands. 
 
 2. That a close time he established, rnimin,c( fmm 1st 
 Ma\- to :;;>t July in each year, ilurin-' which period no 
 .■'-■al shall be killed on the hi-^h sea in that part of the 
 I'acihc Ocean, inclusive of IJchrin-- Sea, which is situ.itec' tf) 
 the north of the 35th dvj;rc.c of north latitude and .■astuanl 
 of the i.-:oth dc:,n-ee of loni^itude from (ireenwich til! it 
 strikes the watcrd)Mundary describetl in Article I, of the 
 Treat\- of iSCy^ between the L'nited States and Russia, and 
 folIo\\in;_; that line up to ISehrinc,^ Straits.' 
 
 3. 'I hat fjnly .•.ailint^ vessels shall be pernn'tted to cn;j:aq-c 
 in fur-.-cal n-hiiiL,r, even duriii-- the period and in the area in 
 whieli such fr-hini; is Ie\^a]. 
 
 'I he -ub.-,idiar\- re,i;uIations pn.\ide that these sailint,^ 
 vcs>eN .-hall be licensed, and shall keep an aecui'ale record 
 of their operation.-., and th.it no nets, lirearms, or e.\plosi\-es 
 shall be u.-,ed by the se.d lumters, shot i^uns onl\- cxcejited 
 when u.-ed durin^,^ the open .sea.son and out.-,ide Jiehrm;^ 
 Sea. 
 
 After the i-^uc of the Arbitiation has l)een re'ached, it 
 ma\- .^eem un-racious to look back npnw the ar'_;innc:iits 
 advanc.xl by either of the disputant.-. It is cnMU-ii thai 
 the hi-torica! que>ti(jn. have been an.-uered in .1 si'iise 
 fax-ourabie lo the ih-itidi c<jntenlions, and that the i|ik'sti()ns 
 which iii'.olvethe a])plie;iti.)n of internalionul l,iv have been 
 settled in iiarmony willi authority. The decision of the 
 tribunal i.-, un<|uestionai)l\- a triumph for h'.nidand on all the 
 quc.-.tioii~ put in i-;-,ue. It i.- eciually certain that the material 
 advanta-e accruiiT:r from the prescrilicd i-e-,ulatioiis rests 
 with tile L'nited States. It was not wiihiii the p:o\ ince of 
 the Arij:trators to tak'c coL,mi/,ance of the methods of seal- 
 killini; employed on land, nor were they empowered to 
 declare that the close-time should apply to the i.^land.s. Aii 
 they have found themselves able to do is to make a nnoin- 
 meiidation that both Powers should de\ ise and enforce some 
 
 ' Sec Map, 
 
i 
 
 Till': i;i;iikiN(; si;a ',»ci:sti()X. 
 
 43 
 
 re--iil;iti()iis fuv scnlhuntUv^; both on Iriiul and within terri- 
 torial waters.' 'I'lic rcsuU is that the Ahaska Company is 
 left in the enjoyment of the sole ri-iit to take seals durinc;- 
 the close-time. The Companx-'s j^ractice in the pa-,t affeirds 
 no --uarantee that the privile'^^e will be used in sueh a way 
 as to ensme the ])erpetuation of the seal species, and it is 
 more than probable that when the reL,ailations come to be 
 re-examined live \-ears hence, it will be found necessary to 
 insi>t uj-on -,(,me restriction of the island-catch. In another 
 l)articular the re-ulations seem to be open to ;.;rave o])iection. 
 1 he Victorian fishermen ;,re now interdicted from cinployin"- 
 steamers or fireai'ins in the prosecution of an iim.icent com- 
 mercial enterprise on th(; hi-h seas, even at tlv^-;e periods 
 when the humane restrictions of the close-time are not in 
 force. Thi-. provision e.\tin-ui>hes a Canadian industry at 
 one blow, and ^(uar.intees that, for at least five years, the 
 Alaska Company ,slia!l enjcn- a monopoly that extends over 
 the sea as well as u\er the land. It protects the am'mals 
 from b< in-- shot at >ea that tlu'y mav be clubbed on shore. 
 It vindicates n)r the I'nitrd .stuto a ri-iit of [)ropc'rt\- which 
 the .\rbitrators expre.-slv declared to have no existence, and 
 lays the ( anatlian .Scalers under .i hea\ier cmbar^^o than if 
 iiil lichrhi- .Sea had been k-,dly constituted a -'Federal 
 preserve." 
 
 It is !i,,i conceixable that the difdculty now settled, or at 
 lea-t pi, iced upon a b,i-.is for settKanent, could e\er have 
 cau-ed a serious rupture bet '.ecu two L;reat peoples spruti,-' 
 irom a c(.)mmon stock ai-' speakin-- a conmion lan.^uia.L^e. 
 lUit the victory hai-land h.is achicned ou-ht to do some- 
 thin-- more than Hatter our statesmen. It ou-ht to teach 
 them that the true wa\- to win the lespect of our kinslolk 
 in the Cnited States and the affection of our brothers in 
 C anada is to show a clear aiiprecialion of the importance of 
 the issues that depend between then\ antl an unswervin-- 
 firmness in maiiitaim'iiL,^ what we are satisfied are the riL;hts 
 of our depcndencx-. The seal fisher\- is a Irille besitle'lhe 
 i,n-eat fislur_\- inieicsts of Canada and Xewfoundluid on the 
 Atlantic. 'Jhe.se constitute a -reat source of national wealth. 
 ' .Si;c KcconuiiLiKl.Uion-, p. 5 (. 
 
44 
 
 TiiF, i;i;iiKiX(; si:a (jukstiox. 
 
 It is not too much to say that they intimatcK- concern the 
 future stabiHty and security of tlie Miupire, and if the 
 -k'hring Sea controversv had done nothinq- more tiian 
 ihustrate tlic excessive jirctensions which Canath'ans have 
 to combat in their elTorts to preser\e tlieir (greatest national 
 industry, it would have done something;" to correct that 
 vacillation antl incompetence which Canadian fishermen 
 ha\-e t<jo much reason to regard as a tradition of our 
 Colonial polic}'. 
 
i 
 
 AI'IT.NDIX I. 
 
 'I'RKA'i'v i',f;i'\\i:i:x (irkat Britain and 'i'hk 
 uxrrKi) sTAii:s of amkkica. ariu'i'ra'iiox 
 
 RKSl'I'.CllXC, 'VHK SI'AI. FISIII'.RIKS L\ RFIIRIXC'S 
 Si; A. 
 
 S/i;//rif a/ IJ'as/ii/iq/ou, Fc/'rna>y 2V), 1892. 
 
 [Rati/iiat!(uis i\\c/ia/ii:;cd ,7f l.oiuion, Afav 7, 1892.] 
 
 Ilru \rnicsty the (Jikcii cif llv United KiiiL^doni of (Ireat 
 liritain ami Ireland, and the I'nitcd States o\ America, bein^ 
 desirous to provide lor an amiralile setllemerit of the ([uestions 
 which have arisen Fetw- iheir respective Oovernnienls con- 
 ceriiin.L; the jmisdiciio;i,il , m the United States in the waters 
 
 of liehrin^'s S-a, and c<>n( i 1 1, ai-o the preservation of i'lp fui 
 seal in <>r haliiiuall\- rc^ortin.;; to the ■ lid i-ea. and the r'vj^i-rt, of 
 the citizens and subjects of either coi, ,;y as regards the taking of 
 fur-seal in or habitually resorting; to the sa' ' waters, ha ■ resolved 
 to submit to arbitration the (|uestions involved, anil to liie end of 
 concludin;^' a Convention for that purp(i>e have appointed a- iheir 
 respective I'lenipotemiaries : 
 
 Her .Maje^tN- the (^Hieen of the United Kinjiiom of (beat 
 Rritain ami Ireland, Su- Julian i'auncefote, U.( M.(b, R. ('.!!., 
 I ler Majesty's Fn\-oy I'lxtraordinary and Minister IMenipotentiary 
 to the United State> ; ami the President of the United States of 
 .\merica, James (',. ISlaine, Secretary of State *^'' "' United 
 States ; 
 
 Who, after havini; connuunicatcd to each other tiieir respective 
 Full i'owers, which were found to be in due and jiroper form, have 
 agreed to and concluded the following Articles: — 
 
 ARI'lULf: I. 
 
 'I'lie (|tiestions whi( h have arisen between the (lovernment of 
 Her liritaimic Majesty and the Uovermnent of the United States 
 concerning the jurisdictional rights of the United States in the 
 waters of IV-hring's Sea, and <'onccriiing also the j)reservation of 
 the fur-seal in or habitually resorting to the said sea, and the rights 
 of tlie citi/ens and subjicls of either country as regards the taking 
 of fur-seal in or h.ibitually resorting to the said waters, shall l)e 
 
46 
 
 THE I!KHR1N(; SKA ( UIKSTION. 
 
 submitted to a Tribunal of Arbitration, to be composed of seven 
 Arbitrators, who shall be appointed in the following manner, that 
 is to say: two shall be named by Her P.ritannic Majesty; two 
 shall be named by the President of the United States; his 
 Excellency the President of the French Republic shah be jointly 
 reejuested by the llijfh Contractinii; Parties to name one ; His 
 Majesty the King of Italy siiall be so recjuesled to name one; and 
 His Majesty the King of Sweden and Norway shall be so requested 
 to name one. 'I'he seven Arbitrators to be so named shall be 
 jurists of distinguished reputation in their respective countries ; 
 and the selecting Powers shall be requested to choose, if possible, 
 jurists who are acciuainted with the English language. 
 
 In case of the death, absence, or incapacity to serve of any or 
 either of the said Arbitrators, or in the event of any or either of 
 the said Arbitrators omitting or declining or ceasing to act as such, 
 Her Britannic Majesty, or the President of the United States, or 
 his Excellency the President of the French Rei)ublic, or His 
 Majesty the King of Italy, or His Majesty the King of Sweden 
 and Norway, a^ the case may be, siiall name, or shall be recjuested 
 to name forthwith, another ])erson to act as Arl)itrat()r in the ])lace 
 and stead of the Arbitrator originally named by such head of a 
 State. 
 
 And in the event of the refusal or omission for two months after 
 receipt of the joint re(iuest from the High Contracting Parties of 
 his Excellency the President of the Frencli Republic, or His 
 Majesty the King of Italy, or His Majesty the King of Sweden 
 and Norway, to name an Arl)itrator, eitlier to fill the original 
 appointment or to fill a vacancy as above provided, then in such 
 case the aj^pointment shall be made or the vacancy shall be filled 
 in such manner as the High Contracting Parties shall agree. 
 
 ARTICl-lC II. 
 
 The Arbitrat(jrs shall meet at Paris within twenty days after the 
 delivery of the counter-cases mentioned in Article IV., and shall 
 proceed impartially and carefully to examine and decide the c|ues- 
 tions that have been or shall be laid before them as herein pro- 
 vided on the jiart of the Oovernnients of Her P.ritaimic Majesty 
 and the United States respectively. .All (juestions considered by 
 the Tribunal, including the final decision, shall be determined by 
 a majority of ail the .Arbitrators. 
 
 I'^ach of the High Contracting ''arties shall also name one 
 person to attend the Tribunal as its Agent to represent it generally 
 in all matters connected with the aililiation. 
 
 ARTICLi: III. 
 
 The printed Case of each of the two parties, accompanied by 
 the documents, the official correspondence, and other evidence on 
 which each relies, shall be delivered in duplicate to each of the 
 
TIIK DEIIRING SEA QUESTION. 
 
 4; 
 
 Arbitrators and to the A^'ciit of the other party as soon as may be 
 after the api)ointmcnt of the members of the Tribunal, but within 
 a period not exceeding four months from the date of the exchange 
 of the ratifications of this Treaty. 
 
 ARTICLE IV. 
 
 Within three months after the delivery on both sides of the 
 printed Case, either party may, in like manner, deliver in duplicate 
 to each of the said Arbitrators, and to the Agent of the other party, 
 a counter-case and additional documents, correspondence, and 
 evidence, in reply to the case, documents, correspondence, and 
 evidence so presented by the other party. 
 
 If, ho-.vever, in consequence of the distance of the place from 
 which the evidence to be presented is to be procured, either party 
 shall, within thirty days after the receipt by its Agent of the case 
 of the other l^arty, give notice to the other party that it requires 
 additional time for the delivery of such counter-case, documents, 
 correspondence, and evidence, such additional time so indicated, 
 but not exceeding sixty days beyond the three months in this 
 Article provided, shall be allowed. 
 
 If in the case submitted to the 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 [)roper to apply for it, to furnish that party 
 with a copy thereof ; and either [)arty may call upon the other, 
 through the Arbitrators, to produce the originals or certified copies 
 of any paj)ers adduced as evidence, giving in each instance notice 
 thereof within thirty days after delivery of the Case ; and the 
 original or copy so rcfjuested shall be delivered as soon as may 
 be, and within a period not exceeding forty days, after receipt of 
 notice. 
 
 ARTICLE V. 
 
 It shall be the duty of the Agent of each party, within one 
 month after the expiration of the time limited for the delivery of 
 the counter-case on both sides, to deliver in duplicate to each of 
 the said Arbitrators and to the Agent of the other party a printed 
 argument showing the points and referring to the evidence upon 
 which his Covernment relies, and either party may also support 
 the same betbre the Arbitrators by oral argument of Counsel; and 
 the Arbitrators may, if they desire further elucidation with regard 
 to any point, re(]uire a written or printed statement or argument, 
 or oral argument by Counsel, upon it ; but in such case the other 
 party shall be entitled to reply either orally or in writing, as the 
 case may be. 
 
 ARTICLE VI. 
 
 In deciding the matters submitted to the Arbitrators, it is agreed 
 that the following five points shall be submitted to them, in order 
 
48 
 
 THE llEIIRING SKA QUESTION. 
 
 that their award sliall embrace a distinct decision upon each of 
 said five points, to wit : — 
 
 1. What exchisive jurisdiction in the sea now known as the 
 Behrinf^'s Sea, and what exclusive rights in the seal fisheries therein, 
 did Russia as^urt 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's Sea 
 included in the phrase " Pacific Ocean," as used in the Treaty 
 of 1825 between Great Britain and Russia ; and what rights, if 
 any, in the Behring's 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's Sea east of the water boundary, in 
 the Treaty between the United States and Russia of the 30th 
 March 1867, pass unimpaired to tlie United States under that 
 Treaty ? 
 
 5. Has the United States any right, and, if so, what right, of 
 protection or property in the fur-seals frccpienting the islands of 
 the United States in Behring Sea when such seals are found out- 
 side the ordinary 3-mile limit? 
 
 ARTICI-E VH. 
 
 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 con- 
 current Regulations outside the jurisdictional limits of the respec- 
 tive Governments are necessary, and over what waters such 
 Regulations should extend, and to aid them in that determination, 
 the Report of a Joint Commission, to be appointed by the 
 respective (Governments, shall be laid before them, with such 
 other evidence as either Government may submit. 
 
 The High Contracting Parties furthermore agree to co-operate 
 in securing the adhesion of other Powers to such Regulations. 
 
 ARTICLE VIII. 
 
 The High Contracting Parties having found themselves unable 
 to agree upon a reference which shall include the question of the 
 liability of each for the injuries alleged to have been sustained by 
 the other, or by its citizens, in connection witii the claims pre- 
 sented and urged by it ; and, being solicitous that this subordinate 
 question should not interrupt or longer delay the submission and 
 determination of the main cjuestions, do agree that either may 
 submit to the Arbitrators any question of fact involved in said 
 
THE liKHRING SKA QUESTION. 
 
 49 
 
 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. 
 
 ARTICLE IX. 
 
 The High Contracting Parties having agreed to appoint two 
 Commissioiiers on the part of each Government to make the joint 
 investigation and Report contemplated in the preceding Article 
 VII., and to include the terms of the said Agreement in the recent 
 Convention, to the end that the joint and several Reports and 
 recommendations of said Commissioners may be in due form sub- 
 mitted to the Arbitrators, should the contingency therefor arise, 
 the said Agreement is accordingly herein included as follows :— 
 
 Each Government shall appoint two Commissioners to investi- 
 gate, conjointly with the Commissioners of the other (iovernnient, 
 all the facts having relation to seal-life in Behring's Sea, and the 
 measures necessary for its jjroper protection and preservation. 
 
 The four Commissioners shall, so far as they may be able to 
 agree, make a joint Report to each of the two Governments, and 
 they shall also report, either jointly or severally, to each Govern- 
 ment on any points upon which they may be unable to agree. 
 
 These Reports shall not be made public until they shall be sub- 
 mitted to the Arbitrators, or it shall appear that the contingency 
 of their b^ing used by the Arbitrators cannot arise. 
 
 r 
 
 ARTICLE X. 
 
 Each Government shall pay the expenses of its members of tlie 
 Joint Commission in the investigation referred to in the preceding 
 Article. 
 
 ARTICLE XL 
 
 The decision of the Tribunal shall, if possible, be made within 
 three months from the close of the argument on both sides. 
 
 It shall be made in writing and dated, and shall be signed by 
 the Arbitrators \\ ho may assent to it. 
 
 The decision shall be in duplicate, one copy whereof shall be 
 delivered to the Agent of Great Britain for his Government, and 
 the other copy shall be delivered to the Agent of the United States 
 for his Government. 
 
 ARTICLE XII. 
 
 Each Government shall pay its own Agent, and provide for the 
 projier remuneration of the Counsel employed by it and of the 
 Arbitrators appointed by it, and for the expense of preparing and 
 submitting its case to the Tribunal. All other expenses connected 
 with the arbitration shall be defra>ed b> the two Governments in 
 equal moieties. 
 
50 
 
 THE BEIIKING SEA QUESTION. 
 
 ARTICLE XIII. 
 
 The Arbitrators shall keep an accurate record of their proceedings, 
 and may appoint and employ the necessary officers to assist them. 
 
 ARTICLE XIV. 
 
 The High Contracting Parties engage to consider the result of 
 the proceedings of the Tribunal of Arbitration as a full, perfect, 
 and final settlement of all the questions referred to the Arbitrators. 
 
 ARTICLE XV. 
 
 The present Treaty shall be duly ratified by Her Britannic 
 Majesty and by the President of the United States of America, by 
 and with the advice and consent of the Senate thereof; and the 
 ratifications shall be exchanged either at Washington or at London 
 within six months from the date hereof, or earlier if possible. 
 
 In faith whereof, we, the respective Plenijjotentiaries, have signed 
 this Treaty, and have hereunto affixed our seals. 
 
 Done in duplicate, at Washington, the 29th day of February 
 1892. 
 
 (L.S.) JULIAN PAUNCEFOTE. 
 
 (L.S.) JAMES G. BLAINE. 
 
 APPENDIX II. 
 
 The following is the text of the Award which is dated 15th 
 August 1893. The preliminary clauses reciting the terms of the 
 Arbitration Treaty are omitted, as well as the findings upon the 
 facts involved in Great Britain's claim for compensation in respect 
 of the vessels seized. 
 
 ♦ ****♦** 
 
 "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. Morgan, 
 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 U'hompson, 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 Affairs and Senator of the kingdom of Italy, to 
 be one of the said Arbitrators ; and His Majesty the King of 
 Sweden and Norway named M. Gregers Gram, Minister of State, 
 to be one of the said Arbitrators ; 
 
 ■■ 
 
TIIF. liKHRING SEA QUESTION, 
 
 51 
 
 " And whereas we, the said Arbitrators, having duly met at Paris, 
 have proceeded impartially and carefully to examine and decide 
 all the questions submitted to us, the said Arbitrators, under the 
 said treaty laid before us, as provided in the said treaty on the 
 part of the Government of Her IJritannic Majesty and of the 
 United States respectively ; 
 
 " Now we, the said Arbitrators, having impartially and carefully 
 examined the said questions, do, in like manner by this our award, 
 decide and determine the said questions in manner following — 
 that is to say, we decide and determine as to the five points men- 
 tioned in Article VI., as to which our award is to embrace a 
 distinct decision upon each of them, 
 
 "As to the first of the said five points, we, the said Baron de 
 Courcel, Mr Justice Harlan, Lord Hannen, Sir John Thompson, 
 Marquis Visconti Venosta, and M. Gregers Gram, being a majority 
 of the said Arbitrators, do decide and determine as follows : — 
 
 " By the Ukase of 1 82 1 Russia claimed jurisdiction in the sea now 
 known as the Behring Sea to the extent of 100 Italian miles from 
 the coasts and islands belonging to her, but in the course of the 
 negotiations which led to the conclusion of the treaties of 1824 
 with the United States and of 1825 with Great Britain, Russia 
 admitted that her jurisdiction in the said sea should be restricted 
 to the reach of cannon shot from shore, and it appears that from 
 that time up to the time of the cession of Alaska to the United 
 States, Russia never asserted in fact or exercised any exclusive 
 jurisdiction 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 M. Gregers Gram, being a majority 
 of the said Arbitrators, do decide and determine that Great Britain 
 did not recognise 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 Ocean," as used 
 in the treaty of 1825 between Great Britain and Russia, we, the 
 said Arbitrators, do unanimously decide and determine that the 
 body of water now known as the Behring Sea was included in the 
 phrase " Pacific Ocean," as used in the said treaty. And as to so 
 much of the said third point as requires us to decide what rights, 
 if any, in the Behring Sea were held and exclusively exercised by 
 Russia after the said treaty of 1825, we, the said Baron de Courcel, 
 Mr Justice Harlan, Lord Hannen, Sir John Thompson, Marquis 
 Visconti Venosta, and M. 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 Russia outside of ordi- 
 nary territorial waters after the treaty of 1825. 
 
5^ 
 
 THE MKIIRING SKA QUESTION. 
 
 " As to the fourth of the said five points, wc, the said Arbitrators, 
 do unanimously decide and determine that all the rights of Russia 
 as to jurisdiction and as to the seal fisheries in Hehring Sea east 
 of the water boundary in the treaty between the United States and 
 Kussia of March 30, 1867, did pass unimpaired to the United 
 States under the said treaty. 
 
 "As to the fifth of the said five points, we, the said Baron de 
 Courcel, Lord Hannen, Sir John 'I'hompson, Manjuis Visconti 
 Venosta, and M. (Jregers (Iram, being a majority of the said 
 Arbitrators, do decide and determine that the United States has 
 not any right of protection or jmjperty in the fur-seals freciucnting 
 the islands of the United States in jiehring Sea when such seals 
 are found outside the ordinary three-mile limit. 
 
 " And whereas the aforesaid determination of the foregoing ques- 
 tion as to the exclusive jurisdiction of the United States mentioned 
 in Article VI. leaves the subject in such a jjosition that the con- 
 currence of Great Britain is necessary to the establishment of 
 regulations for the proper protection and ]ireservation 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 Courcel, Lord Hannen, 
 Marquis Visconti Venosta, and M. (Iregcrs Oram, assenting to the 
 whole of the nine Articles of the following regulations, and being 
 a majority of the said Arbitrators, do deride and determine, in the 
 mode provided by the treaty, that the following concurrent regula- 
 tions outside the jurisdictional limits of the respective Govern- 
 ments are necessary, and that they should extend over the waters 
 hereinafter mentioned, that is to say : — 
 
 ARTICLE L 
 
 The Governments of the United States and of Great Britain 
 shall forbid th(;ir citizens and subjects respectively to kill, capture, 
 or pursue, at any time and in any manner whatever, the animals 
 commonly called fur-seals within a zone of 60 miles around the 
 Pribyloff Islands, inclusive of the territorial waters. 
 
 The miles mentioned in the preceding paragraph are geographical 
 miles of 60 to a degree of latitude. 
 
 ARTICLE II. 
 
 The two Governments shall forbid their citizens and sub- 
 jects 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 the high 
 sea in that part of the Pacific Ocean, inclusive of the Behring Sea, 
 which is situated 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 Russia, and following that 
 line up to Behring Straits. 
 
 ■^ 
 
THE RKHklNG SEA (QUESTION. 
 
 53 
 
 ARTICLE III. 
 
 During the i)eriod 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 IV. 
 
 Each sailing vessel authorised to fish for fur-seals must be pro- 
 vided with a special licence issued for that purpose by its Govern- 
 ment, and shall be required to carry a distinguishing flag to be 
 prescribed by its Government. 
 
 ARTICLE V. 
 
 The masters of the vessels engaged in fur-seal fishing shall enter 
 accurately in their official log-book the date and place of each fur- 
 seal fishing operation, and also the number and sex of the seals 
 captured upon each day. These entries shall be communicated 
 by each of the two Governments to the other at the end of each 
 fishing season. 
 
 ARTICLE VI. 
 
 The 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 pla^'e outside of Behring Sea during the 
 season when it may be lawfully carried on. 
 
 ARTICLE VII. 
 
 The two Governments shall take measures to control the fitness 
 of the men authorised to engage in fur-seal fishing These men 
 shall have been proved fit to handle with sufficient skill the 
 weapons by means of which this fishing may be carried on. 
 
 ARTICLE VIII. 
 
 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 con- 
 nection 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 employment of other persons, and provided that, when 
 so hunting in canoes or undecked boats, they shall not hunt fur- 
 seals outside of territorial waters under contract for the delivery of 
 the skins to any person. 
 
54 
 
 THE BEIIRING SEA QUESTION. 
 
 This exemption shall not be construed to affect the municipal 
 law of either country, nor shall it extend to the waters of Uehring 
 Sea or the waters of the Aleutian passes. 
 
 Nothing herein contained is intended to interfere with the em- 
 ployment of Indians as hurtters or otherwise in connection with fur- 
 sealing vessels as heretofore. 
 
 
 ARTICLE IX. 
 
 The concurrent regulations hereby determined with a view to 
 the protection and preservation of the fur-seals shall remain in 
 force until they have been in whole or in part abolished or modi 
 fied by common agreement between the Governments of the 
 United States and of (ireat Britain. 
 
 The said concurrent regulations shall be submitted every five 
 years to a new examination, so as to enablt; both interested Govern- 
 ments to consider whether, in the light of past experience, there is 
 occasion for any modification thereof. 
 
 Appended to the Award are the following recommendations 
 made by the Arbitrators to the Governments of the United States 
 and Great Britain. 
 
 " I. The Arbitrators declare that the concurrent regulations 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 
 supplemented by other regulations applicable within the limits of 
 the sovereignty of each of the two Powers interested and to be 
 settled by their common agreement. 
 
 " 2. In view of the critical condition to which it appears certain 
 that the race of fur-seals is now reduced in consequence of 
 circumstances not fully known, the .Arbitrators think fit to 
 recommend both Governments to come to an understanding in 
 order to prohibit any killing of fur-seals, either on land or at sea, 
 for a period of two or three years, or at least one year, subject to 
 such exceptions as the two Governments might think proper to ' 
 admit of. 
 
 " Such a measure might be recurred to at occasional intervals 
 if found beneficial. 
 
 " 3. The Arbitrators declare, moreover, that, in their opinion, 
 the carrying out of the regulations determined upon by the 
 Tribunal of Arbitration should be assured by a system of stipula- 
 tions and measures to be enacted by the two Powers, and that 
 the Tribunal must in consequence leave it to the two Powers to 
 decide upon the means for giving effect to the regulations deter- 
 mined upon by it." 
 
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