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PffKPWI X .1 iHiK l.> '^ -:. ill *''^' '> M J " ♦*»^ ^ i ^^••:|^f^| #■ .*. • i ■ t -v ! I ■A J ' ^M •'< ^ H, - ^ V- '^m^ -* '^ * y »» ■ « f< j^-» f ^ '^ ^ I't I % 5 ' *' « i-.^ 1 -f- HM ^i[ ;f-\ ^1 * .« ? t * 4. !% \ 5 ti 1 -. / . ?' ^* -IT ^# A-:* ^-^-;s^^f4t4' ? *4--¥% >-? vf ^K If .if ^ ?• M ••■^} St'.-j 5^ 1 4 /w 160' 180 I'M) 160 180* .^' ^J tup: seal aijbitratjox. lyii.-]. THK SKAI. AlllilTIIATlOX. TIr' areii <>f lU'liriim Sea is uhmit HOO.OOO stiiiiiru miles. It is Ihf northern i)iirt of the racitic Occaii, ami washes the Ni.it h Kast Coast of Asia and the Xc.rth West Coast of North America. The Aleutian islands, which e.xtend n >m the IV-nin- sula nf Alaska in a .south westerly direction a-ioss the Pacific Ocean lo within about three hundred i« • 's of Kamtchatka, maik 't< southern boundary: while at the north it is .separated from the Aretie ( )cean by llehrin.;,^ Strait.s. The Straits .separate Asia from North America, and at tlieir narrowest part are about .'0 miles wide. The extreme width of liehrinj: Sea from East to West is about 1,200 miles. Its peatest len,i,'th is about 800 miles. The entrance to the sea from the south is through the water stretches or "pa.s.ses" of the Aleutian Archipek-ro —several of which are upwards of Hfty niiles wide, and throu^'h the stretches of open sea .sei)aratin are able to swim. It is while the seals are on the Island, that portions of them, chiefly males between the age of three and seven years, are driven apart and clubbed to death for their skins, under regulations established on the Islands. As a rule the herd, male and female, or more correctly, what is left of it, takes its departure about the end of August or the middle of September, going southward through the passes of the Aleutian Islands — and hundreds of miles south of them into the broad expanse of the Pacific Ocean. The northern migration again commences in January or February, the seals liii.s>iii-' aloim ihe cu.ist of (•alif..rnia aii the suhjecl of speeiiil complaint l.y the American ( JovernnienL : while, on the other hand, it is contended th:it the main cause of iJie dimunitii.n in the niimher of the seals i^ the reckless and indiscriminate killing- of them on the i.reedinu- islands l.y the le.ssees Tribunal was not sulHciently lar-e tu enal.le it to deal with the whole suhject. For tins rea>on it just escajied heim^' the uivntest of International Court-. The (juestions (if ri^ht and .jurisdiciion unreservedly sul.mittcil to it were treated and decided (.n lines that have recei\cd the a[)prol»ation of all the hest contenjiM.rarv jurists. This result is what was expected from a tril.uiial conijM.sed of the most eminent jiuMicists ami lawyers of our day. Hut they were restricted in their Hndin^ uix.n the second Kraiich of the sul.missi(jii — the framinu' of re^'ulations for the ineser- vatiou nf ilie seal race. Their decisions on (juestions of ri-ht and juris(]iction are in conformity with tia well settled piin- ciple- (.f international law. Had the tribunal been freely per;,iiued to frame regulations i'm the protection and jjreser- vation of the seal species, it would have added a fresh chapter to international law. The arbitrators indicate in ilieir recom- mendati(.ns, ii,,i ,,nly the want of complete jurisdiction, but fv'So how the chapter miLrht liave been completeil. 6 ORIGIN OF THE CONTROVERSY. The recent difterence between Great Britain and tlie I'nited States, in regard to sealing in the J5ehring Sea, liad its origin in the seizure by American Cruisers of Canadian sealing vessels frecjuenting that sea in 188G. Great IJritain and the United States were at peace, and under the circumstances, the seizure of the Canadian vessels at distances varying from GO t" 100 miles from the nearest land was an act of war. The seized vessels were conveved to Sitka in Alaska, and there the masters and mates were tried in a Prize Co;irt and condemned to fine and impri-sonment, their vessels l)eing detained and their crews turned adrift f(»r the alleged violation of a statute of the United Stales, which })rovides that " Xo person shall kill any otter, mink, marten, sable, or fur-fn'id, or other fur bearing animal within the limits of Alaska or the waters thereof." Against these seizures and condenniations Great Britain protested, pointing out tiiat such seizures on the high seas were in vi(jla- tion of the law of nati(»ns. To this |' rhiiisuiii doctrine in connection with the controversy. It was strongly combated by Great Britain from the outset. The Ih'itish Foreign Secretary promptly pointed "ut that, at and long before the cession of Alaska to the United States, Bussia had formally recognized that Behring Sea was open to the ships of all nations, and that when Russia in 1821 had attempted to enlarge the jurisdiction from three miles to IOC miles from the Shore on the Xorth West Coast of America and East Coast of Asia, both England and the United States protested against any excess of maritnne jurisdiction beyond the three miles recognized by international law. anut evaded a decision on the validity of the seizures, holding that as the ([uestion of the jurisdiction of the Alaskan Court had not been rai.sed wiien the case came up for trial in Alaska, it could not be raised in appeal. The Court made no intimation of its oi>iuion — and the owner of the W. V. Sayward and the Canadian Covernment took nothing by their motion. The application, however, was a clever tactical man- <^ruvr.',aii(l niv^hi have resulted in the .settlement of the question of iiitriiiational law in the iiii^hest court of the Tniteil States. In that ease the triluinal of arhitration w-.ul.i in all prohal.ility have never had an existence— or at all events a reference on other liiK's would have hccn adopted. On the 12th Xovenihi'r, 1SS7, whiii- the contlict as to juri.>^diction in T.ehrinj,' Sea was <:..in,Lr on, it would appear from the correspondence that :\rr. I'hclps, the Amcii.an Minister to En,<,dand. had an interview with the Alanpiis of Salisl.urv, the British Secretary of State for Forei-n Atlaiis, in which Mr. Phelj.s proj.o.0 of north lotifnih' and hetwoen 100 of longitude west and 170 of lontfitude east fmm (Ireenwich, durini; the ])erifid intervenini^ hetween April l."th and Novendter 1st." This ]»ro})(isal is a decided extension of water iMtundary, endiracirg practically the whole of Behrin^i; Sea, and a larf,'e slice (»f the Pacific Ocean outside of Uehrinp; Sea. and south of the Aleutian Islands. The jiroposal does not in express terms exclude the Aleutian and Prihyloll' Islands, and the killin*,f with " destructive weajjons " is not so restricted as to exclude killini,' with clubs, — the metliod in use for slauuhtering seals, on the Trihylorf Islands. However, no specific reference is made to killing on the islands. When this proposition wa., connuunicated to the Marquis of Salisbury, it was submitted to the Kussian Minister : and after consultation between the representatives of the three powers Lord Salisbury proposed that : " With a view to meeting the Kussian Government's wishes respecting the waters surrounding Itobben Island, the whole of the Behring Sea, those portions of the sea of Okhotsh, and of the Pacific Ocean north of latitude 47" should be included in the proposed arrangement." This is another proposed addition to seal area. Lord Salisbury also proposed that the close season should terminate on the 1st of October, instead of on the 1st November as proposed by Mr. Bayard. 11 There is no suu'uestioii in Lord 8alisl»ury'.s counter iiroposiil, that the reju'ulatious shoukl extend to the hind or the territorial waters of either jtower. The i»roposud arran^Mncnt was, however, to be " i)rovisional in onh-r to furnish a basis fur negotiation, and without definitely pledging our governint-nts," as Lord 8alis!iury exj)re.ssed it in a letter to Sir dulian i'auncefote, the Ihitish Minister at Washingtnn. In May, ISS.S, Mr. Jiayard declared his willingness to accej.t the provisional arrangement as aniende< I by Lord Salisburv expressing liowever a preference for the IT.th of October, rather than the 1st, as tlie termination of the "close time.' The Canadian (Jovernment objected to the basis of negotia- tions— and for the time the proi)Osal and counter ].roi.osaI came to naught. In Septend.er, 1888, Mr. Phelps wrote to Mr. I'.ayard, complaining latterly of the destruction of the seals "in the o]ien sea "; and concluded : " Under tliese circumstances, the Government of the I'liite.! States must, in my opinion, either submit to have these valuable fisiieries destroyed, or must take measures to prcwnt tiieir destruction by capturing tlie vessels employed in it. Between these alternatives it does nut ai)[)ear to me there should be the slightest hesitation." In other words, the right of the Canadian vessels to the freedom of the seas was to be forcibly denieil, in order iliat a land interest of tlie American (btvernment should not suiter. Tlie advice of Mr. Tiielps was a direct invitation to employ force. On the 24th of October, 1880, a conference took place at ■Washington between Mr. Blaine, the Secretary of State in 12 Prefsidt'iit Harnsoii's Adininisiralioii, and Sir .Tuliun Pauiicefoto. Tlic latter reports the interview, and the accuracy of his account is ncjt disputeil: Mr. lUaine stated that tiie seizures of the Canadian vessels had taken place " under the Itelief that it was warranted l»v the Act of (."on<'ress, and the President's jn'oclamation. In this view the department liad heen confirmed liy the District Court of Alaska. 1 oI»served that this appealed like an assertion of tiie nunr c/inisimi doctrine, which I could iiardly helieve wouM be revived at this day liy his liovernnK^nt or any other, to which he r('])lied that his LTovi'mnicnt had not othcially asserted such a claiiu.and therefore il was unnecessary to discu.ss it." This was a }»ractical ahandonment of the um/r rlaiifmni pretension, in virtue of which and of iJiu acts of Conuress, the judgments had lieen rendered l»y the Alaskan Courts im- posin-:' tines and penalties on the blasters and Mates captured while sealiii^r in the l>ehrin,tf Sea at distances of from GO to 100 miles from the shore. The Secretary of State ])roceeded, however, to make the followinj,' formal statement of the American jMisition at the same interview, Oct. 24th, ISS!): " This Government { laimed the exclusive ri^dit of seal fishery, which the United States, and llussia l)efore them, had enjoyed for generations without any attempt at interference from any other country. The fur-seal was a species most valuahle to mankind and the r)ehring Sea was its last stronuhold. The United States had bouojlit the Islands in that sea to which these creatures periodically resort to lay their young, and now Canadian fishermen step in and slaughter the seals on their passage to the Islands, without taking heed of the warnings given by Canadian officials themselves, that the result must inovital)ly be tlie exienniiiatioii of the sperios. This was an abuse not only ivinvljensible in itself, and opposed to the interests of mankind, but an infraction of the rights of the I'nited States. It inflicted niftreover a serious iniurv on a nei<:hboiin. A self constituted undefined trusteeship from the rest of "creation" to protect the seal " in the interests of mankind." The answer of the British Minister was la-ief and to the point : " I replied " (said Sir .tulian I'auncefote), " that as regards the (iue.>tion- of right I could not admit that the seizure (.f the Canadian vessel was justified under the terms of the Act of Congress or the proclamation of the President. :Municipal regulation could have no o].eration against foreign vessels beyond territorial waters. * * * As regarded the question of fact, namely, the extermination of the fur-seal species, and the necessity for a "close season," there was unfortunately a conflict of opinion. 15ut if, upon a further and more complete examination of the evidence, Her Majesty's 14 (l(»v('rnim'iil should coine to the conclusion that a "close time" is really necessary, ami if an a'M'eeinenl should hu arrived at on the subject, all ([uestions of lej^'al right would, ipso facto, disaj»i)ear," Mr. lUaine expressed ids readiness that such an intjuiry should he held — and conceded that sealers who in ^'ood faitii had sutlered injury should Ite compensated. Sir Julian I'auncefote reported the interview, and asked for the Mar(|uis of Salisbury's instructions in repiril "to resunnuLT in Washin_u;ton the tripartite negotiation." Shortly after the above interview the British Government complained of further seizures. T(j these complaints ^Ir. r.laine rei>lied in a letter dated 22nd January, 1S90. In this letter he takes up fresh ground. The Canadian vessels seized in the llehring Sea were engaged in a " pursuit that was in itself contra honoa mores — a pursuit which of neces- sity involves a serious and ]»ermanent injury to the people of the I'nited States " — and this, apart from arguing " the question of tiie extent and nature of the sovereignty of this (the American) (lovernment over the waters of IJehring Sea." He refers to the title by descent from liussia — Init says " it may be safely left out of view while the grounds are set fortii upon which this Govermnent rests its justification for the action complained of by Her ]Majesty's Government." Then Mr. Blaine proceeds to explain that the seal fisheries were exclusively controlled by the (Government of liussia, without interference or without question from the original discovery till the cession of Alaska to the United States in 1867 — and that the United States had remained in uninter- rupted and " undisturbed possession " till 1886. This looks like invoking the Eussian title, in order to In to iiiiiki' ^'itod ii liil'j In tlic tislieries liy loii'i, uiulisunhed iiinl '•uiiiiilL'rruptetl [lossession" — failiiiij; duft't'ts in thi- oriuinal title dt'eds wlien tested Ity the .stimdardsdf intcniiitioiiid law. Tlu'ii Mr. lUaiiie tells the .story of how tiie wicked ptdaLjic .sealers slauLrlitered the seal on the open sea — thus iuterl'crin*,' with the investineiit made l>v his Governineiil in tiie I'rihvloll" Islands as ]»art of the Alaska jturchase, antl eoncdiides this pari nt' his arL'iniient thus : '• The precedent, custt»nis and rijudits had i»een estaldished and enioved either hv liiissia or the Tniled States t'dr nearlv a century. The two nations were the only power.s that owncMl a fodi on the continents that liordered, or on the islands included within the llehrinu' Sea waters where the .seals resort to Ijreed. Into tins peaceful and secluded field of labor * * * (.ertain Canadian vessels in 1880 asserted their right to enter " — and to poach on Uncle Sam's Happy Hunting (Jround. Why should they not enter, if liehring Sea is an open sea ;' This part of Mr. lUaine's argument looks decidedly like a return to the marc c/m/.-unn doctrine. lUit then he reproaches Her Majesty's (iovernment for defending the Canadian sealers in asserting their rights. Next, he sets up in express lan"uage a presci'iptive title to the fisheries in the Behring Sea, founded partly on long and exclusive use by Kussia and the United States, with the acquiescence of (Ireat IJritain and other nations. Mr. lllaine expresses great anxiety for a solution of the differ- ences between the two countries — regrets that the ])roi)0.sals made by his predecessor were not accepted, and announces that, "the President now awaits with deep interest not unmixed with solicitude any proposal for rea.sonal^le adjustment which Her Majest; 's Government may submit." Mr. lUaine sums n\) thus : " The forcible resistance to which this Government is con- 10 strained in the lU'hriny Sfu, is in the I'residcnt's juy the law. And to this law Her ^lajesty's Govern nient most confidently appeal." " And there is another law to which that (rov^ernment appeal with equal conhdence — the law on which depends the freedom of the sea." " What is the freedom of the sea ? The right to come or go upon the high sea without let or hindrance, and to take there- from at will and pleasure the products of the sea. It is the ridit which Crreat Britain and the United States endeavoured, and endeavoured successfully, to maintain against the claim of Russia 70 years ago. It is the right, in defence of which against excessive claims of other nations, the arguments of the United States have in former times held so prominent a place. And what is thi3 claim to protect the seal in the high sea ? It is of right and for all time, to let and hinder the vessels of all other nations in their pursuit oi seals upon the high seas ; to forbid them entrance into those vast seas which the United States have included in the denomination of the ' waters of Alaska,' to take from these vessels the seals they have lawfully obtained, and to search, seize and condemn the vessels and the crew, or, with show of force, to send them back to the ports at Britain I Jiftppily reasoned lie Queen ind every me it, are Govern- it a^jpeal freedom lie or "0 ^e there- t is the ivoured, daini of which 5 of the 1 place, ia ? It i of all 3as; to United ters of vvfully nd the ports 19 from which they set out. And so, according to tlie contentions of the United States, ' protection of an industry ' at sea justifies those acts of high authority which, by the law of nations, are allowed only to belligerents, or against pirates with whom no nation is at peace. From giving its higli sanction to these views this tribunal may well shrink ; and it is witii no mere idle use of high sounding phrase that Great Britain once more appears to vindicate tiie freedom of the seas." Tliis is the gist of Lord Salisbury's argument on the questions of rigiit and jurisdiction, and these are the views that triumphed lief ore the tribunal of arbitration at Paris. In respect to regulations, if on proper impiiry found to be necessary, the British Foreign Secretary at all times avowed the willingness of ins Government to the framing of measures for Che control of the seal species, provided that such measures be equitable and framed with due regard to tlie connnon interest, and not in order to promote the interest of any particular nation. Lord Salisbury's reply to .Air. Blaine's despatch of 22nd Janup.ry, J890, evidently made an impression on the hitter's mind, for, in his letter of 17th December, 1890, we find Mr. Blaine expressly renouncing the marc daumm doctrine. '• The Government of the United States never claimed it and never desired it. It expressly disavows it," says Mr. lilaine. It is not surprising tliat Sir Julian Pauncefote found it liiticuit to determine with exactitude what position the United States assumed. But now that Mr. Blaine had so expressly repudiated the mare dausvm doctrine, we miglit expect to have heard the last of it. After disavowing it. Mr. lUaine proceeds : " At the same time the United States does not lack al)un.lant authority, according to the ablest exponents of international 20 law, for holding a small section of Behring Sea for the protec- tion of the seals." This is ([uite an abatement of the claim made in his preceding despatch of 22nd January, 1890. He continues : " Controlling a comparatively restricted area o: water for that one specific purpose is by no means the equivalent of declaring the sea, or any parts thereof, marc clansum." This is, indeed, " taking backwater," though Lord Salisbury's argument did not leave him the solace of an inch in the sea outside the three miles limit. Mr. Blaine complains bitterly that even his own countrymen have to some extent turned pelagic sealers, and, worse still, have sought the shelter of the British Hag, under whose protection they are plying their nefarious games on the high seas. In this connection it is interesting to see what opinion renegade and lawless American sealers, when captured, enter- tained of M)'. Blaine's policy of interference ith the freedom of the seas. Here is their protest : " They wish to explore the waters of Behring Sea and the Arctic Ocean. They believe they, as American citizens, have a right to fish or hunt in the American waters of the Behrinu" Sea outside of three nautical miles, from any island or tlie mainland of Alaska. They believe tliat AVilliam H. Seward did not purchase Alaska for tlie Alaska Company, but for the whole nation. They ilemand as a right that they be permitted to pursue their honourable business in the American waters of the North I'acific, ])elning'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 he protec- (le in ]iis water for ivaleiit of alisljury's 1 tlie sea iiitiynieii >r.se still, :r whose Llie hirrli opinion il, enter- freedoin md the liave a iehrino" «... or the "reward ?or the mitted ters of 'ithout d and United i I 21 States at the dictation, and for the sole benetit of the Alaska Commercial Company." Tiie Alaska Commercial Company had acfjuired the rioht to take seals on the Pribyloff Islands under contract from the American Covernment, and this company was suppose.l by Canadian and American sealers alike to be under Mr. lilaine's special protection. Tiiere was probably nothing K^ justify this supposition, and whetlier there was or not. it has uothinu" to do witii the discussion of the question under consideration. SECOXn PROPOSAL. Mr. niaine, in Jiis despatch, 17th Dec, 1890, in addition to burying tiie marc ckcnsinn doctrine, made this important state- ment and propo.sal : of " an eftective mode of preservin<4 the seal fisheries for tiie use of the civilized world " : "The President will ask the Government of Great Britain to agree to the distance of 20 marine leagues within which n(j ship sliall hover around the Islands of .St. Paul and St. George, from the 1.5th May to 15th October each year. This will provr on ,f,vfirc mode <>/ prcsrrrin;/ flic ^ral finhcrlc^ for thr mc of the cirillzcd irurld, a mode which, in view of Great i;ritain'.i assumption of power over tlie open sea, she cannot with consistency* decline. (Ireat liritain prescribed 8 leagues at St. Helena; but the obvi(jus necessities in the Pehring Sea will, nn the basis of this precedent, justify 20 leagues for the protection of the American seal fisheries. The American Government desires only such control over (t ll„ilf,r r.cfcnf of With the consent and approval of the great powers. oo the I'-atc/'s in (he IklLving Sea, fur a part of lac/i year, as will be sufficient to insure a portion of the fur fisheries already injured possibly to an irreparable extent Ijy the intrusion of Canadian vessels," — and, no doubt, also of American vessels flying the Union Jack. This proposal should be carefully compared with that made by Mr. ]>ayard, and with the proposals sul)niitted to the arbitrators by the two Governments, and with the regulations settled by the Tribunal. In the light of later events, Mr. lilaine's proposal was modesty personified, and, had it been accompanied with an offer of compensation to the injured sealers, and the right of participation in regulating the killing of seals on land as an equivalent for abstention from hovering within the GO mile limit, it might have been accepted with advantage. In Mr. lUaine's letter of 17th December, 1890, he quotes a passage from the letter of Mr. Thelps, of 12th September, 1888, in which Mr. Phelps says : " Much learning has been expendetl upon the discussion of the abstract question of the right of man' rIaifSHiit. I do not conceive it to be applicable to the present case. * * * It is sugge;ited that we are prevented from defending ourselves against sucli depredations, because the sea at a certain distance from the shore is free. * * * jf precedents are wanting for a defence so necessary and proper, it is because precedents for such a course of conduct are alike unknown. The best international law has arisen from prece- dents that have been established when the just occasion for them arose, undeterred by tlie discussion of abstract and inadequate rules." ^ 2.3 ear, as will ies already itrusion of ;an vessels tliat made -^1 to the egulations 'osal was with ail right of ihI as ail GO mile quotes a er, 188.S, xpeiided right of ! to the evented tuse the * If proper, e alike prece- ioii for It and Still later Mr. Blaine, in a letter dated 14th June, 1891, addressed to Sir Julian Pauncefote, summarizes the American contention thus : " It (the American Government) holds that the ownership of the island upon which the seals l.reed, that the habit of the seals in regularly resorting thither, and rearing their young tliereon, that their going out from the island in search of food and regularly returning thereto, and all the facts and incidents of their relation to the island, give the United States a property interest therein ; that this property iiib-rest was claimed and exercised by liussia during the whole i)eriod of its sovereignty over tlie land and waters of Alaska : that England recognized this property interest so far as recoonizin»r is implied by abstaining from all interference with it during the whole period of llussia's ownership of Alaska, and during the Hrst nineteen years of the sovereignty of the United States. It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886, and subsequent years, has changed the law and equity of tiie case theretofore prevailing." The pretensions of the United States in the diplomatic controversy have been given with much more particularity than those of CJreat Britain, and this has become necessary in order to show what the varying contentions were from time to time. So much minutem?ss in detail is unnecessary in detinin-' the British position. It was the same throughout. Lord Salisbury took his stand along the well recognized lines of international law. He defined his position at the outset— and never changed it. Tiie American position was not fixed— the case was novel, and the American Secretaries were attempting to rest it on 24 new lines, when (lislodgecl from old ones. Their ground was constantly shifting. It is Siife to say tiuit they made their best fijfht over the alle,!:;ed right of property in the seals, and, though they did not succeed, their arguments were not lacking in ingenuity and originality. They were also evi((ently ])ressed with sincerity, and not without a certain semblance of authority, held, however, to be inapplicable. Concurrently with the discussion on matters of light and jurisdiction, and of property, came up the question ften a 3 than •■f 25 In hi.s letter of Dec. 17th, 1890, to Sir Julian Pauncefote, he wrote : " It will mean something tangihle, in the President's opinion, if Oreat Britain will consent to arl.itrate the real questions which have been under discussion between the two Goverinnents for the last four years. I shall endeavor to state what, in the judgment of the Presitlent, those issues are : First. What exclusive juris.liction in the sea now known as the ]]eiiring Sea, and what exclusive rights in the seal fisheries therein did IJussia assert and exercise prior and up to the time of tiie cession of Alaska to the United States ? Second. How f. vere these claims of jurisdiction as to the seal fisheries recognised anyo- tect the seal for the time living upon the islands of the United States and feeding therefrom : second, whether a closed sea«»on (during which the killing of seals in the waters of liehring Sea outside the ordinary territorial limits shall be prohibited) is necessary to save the seal-tishing industry, so valuable and important to mankind, from deterioration or destruction : and if so, third, what months or parts of months should be included in such seasons and over wliat waters it siiould extend." The Marquis of Salisbury assented to the first, second and fourth questions, and made some criticism on thp third and fifth, which were suljsequently amended in conformity with his views. The five points in Article 6 of the Treaty w'ere finally settled as follows : THE FIVE POINTS. Art. VI. In deciding the matters submitted to the Arbitrators it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to wit : 1. What exclusive jurisdiction in the sea now known as the Behring Sc ■ , and what exclusive rights in the seal fisheries 27 il tislierie.s to estioiis shall lice of Great he killiii(r of "g >^ea, then i all, outside tile L'nited rder t(j pro- tlie United Jsed season iehi'ing Sea 'liibited) is "iible and tion ; and e included l1." 'cond and tliird and ' with his re finally bitrators litted to decision n as the fisheries therein, did linssia assert and exercise prior and up to the time of the cession of Alaska to the United States ? 2. How far were those claims of jurisdiction as t.. the seal fisheries reco,. Was the lx)dy of water now known as the IJehrin- Sea inclu.led in the phrase " Pacific Ocean," as used in the trea'tv ni' 182.". between (Ireat Britain and Kussia; and what ri-jits, if any, in the IJehring Sea were held and exclusively exeix-L'.! by Russia after said treaty ? 4. Did all the ri-hts of Kussia as to jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary, in the treaty between the United States and Kussia ..f the :!Oth March, 1S67, pass unimpaired to the United States under that treaty ? rK Has the United States any right, and if so, what right of protection or property in the fur-seals frequenting the islands of tlie United States in Behring Sea, when such seals are found outside the ordinary three mile limit ? It will he seen at a glance that underlying these five points are but two main questions. ^ 1st. What was the extent and ellect of the Ilussian title in Behring Sea, and the seal fisheries therein, and 2nd. Has the United States any riglit of protection or property in the fur-seal frequenting the islands in the sea, when found outside the ordinary three mile limit ^ Article ^; of the treaty involved the determination of all the questions of right and jurisdiction. If the answers on these 28 five points wore in iavuv of the riiitud States, that is to say, it' it were found tliat under the Itussian title, tiie United States had ac(|uired an exchisive jurisdiction in the Uehring Sea, and exclusive ri,f,'iits in the seal fisheries ; or if it were fouiul, apart from the Kussian title, tliat the United States owned tlie seals that resorted to the hreediny islands, even when found outside the three mile linut, the controversy woidd Vte at an end, for the elfect of such a decision would ])e to constitute Behring Sea an American Lake, and each indivitlual seal in it xVmerican property, whether f(jund in the sea itself or anywhere in the wide exi)anse of the Pacific. The seal, in such a case, would be judicially l)randed U.S., and the United Slates would exclu- sively have the right to make regulations in respect to it. In that event the concurrence of (Ireat Britain or of any otiier nation wouh^ not be necessarv, as the United States would certainly have the right to [(reserve and protect its own property. A decision against the United States on these p(jints would mean that outside of territorial waters, they had no more right in Behring Sea, and no more property in the seal, than any other nation on the globe, and incidentally it would follow that all the seizures made of Canadian sealers plying their trade outside of territorial waters, were illegal, and tliat damages must be paid for losses sustained. Xow, as that was the original l)one of contention, and the protection of the seals was only introduced as a mere graft upon that question, one would think that, before considering any other question, the matters of right and jurisdiction should have been first settled. These settled, then the making of regulations for the preser- vation of seal life might [)roperly form the subject of a separate reference. is lo SUV, it' lilted States iig Sea, and 'ound, apart sd the seals Lind outside an end, for te ]k'hrinrmjrvi)iff the fin'-aail mir in Bchriiiij Sm front i\i'terh:ination, what international arranyr- vients, if any, are neeessary hetnren (/reat Britain, the UniteJ States and lin.ssia, or any other pon-ers.' " There can l)e no doulit that Lord Salisbury's su<'-<'-estion as to procedure was the proper one, that the question of ri^^ht and jurisdiction should be first settled, and if (Jreat Britain won, tlien there should be a separate reference in respect of reu'ulations. The further suggestion of Sir Julian Pauncefote was the com- plement of the first, and surely should have l)een adhered to. It avoided completely the dynamite in Mr. lilaine's 6th ques- tion. It provided a commission for investigating what interna- tional arrangements were necessary for preseiriny " the fur-seal race in Behring " from extermination— not to prescribe " regulations for killing of the fur-seal in any part of the waters of Behring Sea." Had such a commission been appointed, it would have been able to make a thorough report on the condition of the seal race, and what arrangement should be made between the 32 powers interested in order to preserve it from extermination. Its scope would have extei.'ded to arrangements, relating to seals on land and within territorial waters as well as to seals in the high seas. With such a report, and the power to deal witli it, the tribunal of arbitration might have made regulations relatiuii to the land as well as to the sea, and not have left its work as it is to-day, confessedly incomplete and insuthcient. But the American Government, witli all its professed anxiety " for preservation and protection of the seal," refused the suggestion of the British (government. The modus vivendi then under discussion embarrassed both Governments. The Americans pressed for the acceptance of the sixth question, and offered to incorporate with it a provision for a commission, and to co-operate with Ch'eat Britain in securing the adhesion of other powers to the regulations to be made. The result was the abandonment of the British proposal and the substitution of (piestion G, ^u a slightly modified form — with provision for a commission. From this moment the case, in so far as regulations were concerned, was " given away." The modified 6th (juestion became Article 7 of the Treaty, and Article 9 is complementary to it. AllTICLE VII. "If th<' 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 estaltlishment of regulations for the proper protection an^l preservation of the fur-seal in, or h..,bitually resorting to, the Behring Sea, the Arbitrators shall then deterndne what roncurreut regulations outside the jurisdic- m^ tional limits of tlie respective Governments are ne^^essury, and over wliut 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 sucJ) other evidence as eitlier Government may submit." Article IX. "The High Contracting Parties have agreed to appoint two commissioners on tiie part of eacli Government to make the .joint investigation and report contemjdated in the jn-ecedinf Article VII, and to include tlie ternib of the said agreement in the convention, to the end that the joint and several reports and recommendations of said commissioners may be in due form submitted to the arbitrators, should the contingency therefor arise, the said agreement is accordingly herein included as follows : Each Government shall appoint two commissioners to in- vestigate conjointly with the commissioners of the other Government all the facts having relation to seal life in Behring Sea, and the measures necessary for its [jroper protection and preservation. The four commissioners shall, so far as they may Ije able to agree, make a joint report to each of the two Governments, and they shall also report, either jointly or severally, to each Government on any points upon which they may be unable to agree. These reports shall not be made public until they shall be submitted to the arbitrators, or it shall appear that tiie con- tingency of their being use-(■ 'nnents of counsel with respect to regulations. These arguments fill several books. It would be quite out of place to refer to them at length in an article of this character. Besides, except for the student who wishes to increase his store of knowledge, it would serve no useful purpose to give more than a mere outline of what the arguments were. It is with the result, the decision, that the world is now, and will be, most concerned. The first point submitted in Article 6 is : 1. What exclusive jar isdid ion in the sea noiv knoini as Beli.ring Sea, and ichat exclusive rights in the seal fisheries did Russia therein assert and exercise jyvior and up to the time of the cession of Alaska to the United States? This point may conveniently be considered with the second and third points of Article G. 2. Ifou'' far were these claims of jurisdiction as to the seal fisheries recognized, and conceded hij Great Britain ? 3. Was the hodg oj water known as the Bchring 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 37 the B.:hring Sea were held and exclusivel,j e^rased h, linssia after said treatij ? THE RUSSIAN TITLE. Tl)e matters embraced in the three irst questions involve the vahdity and extent of the Eussian Title acquired by the treaty of cession of 1867. Russia claimed the Xorth-West of America and the islands lu the Behring Sea by the right of first discoverv. The United States urged that Russia had asserted and exercised exclusive jurisdiction in l^ehring Sea from a very early perio.l and that this was witnessed by tiie Russian Ukase of 1799. Tiii. Ukase is simply a charter which '' Paul the 1st, by the Grace of God Emperor and Autocrat to all the liussias," granted to the Kussian American C'omi>anv * * * ... . ' to en)oy the prohts of all imlustries and establishments now existing' on the nortli-east {sk) coast of America," (His Majesty tripped in his geography,, '- ^rom the aforesaid oo^ to Beliring strait and beyond the strait, as .-ell as on the Aleutian and Kurile Islands and tiie other islands situated in the Xorth Eastern Ocean." No dominion over the ocean is granted, or could be -ranted The concession is entirely territorial and limited to tl'ie coast and the islands specified. There is no pretence that the sea i.s closed. There is no reference to seal fisheries. Moreover It IS a purely domestic cliarter giving certain privileires to' certain of the Tzar's own subjects, as against the rest of "them, but nut against otiier nationals. The Ukase was never notified to foreign powers. The Ukase of Alexander 1st in 1821 was more far-reachinc. but still fell short of the marc clavsum doctrine. Tile Ukase is in the following language : " The pursuits of commerce, whaHng^nd fishery, and of all .■JO 60 other industry on all islands, ports and gulfs, including the whole of the north west coast of America, beginning from Behring Straits to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from ]>ehring's Straits to the South Cape of the Island of Urup, viz., to the 45° 50 northern latitude, is exclusively granted to liussian subjects." The Ukase also prohibited all Init llussian vessels from land- ing on the coasts or islands described or even approaching them within less than 100 Italian miles. This Ukase was notified to foreign nations, and was regarded as a clear invasion of the freedom of the seas. Great liritain and the United States protested against it. The Paissian Government attempted to explain that it was necessary to protect Russian commerce. The explanation was not heeded. Mr. Adams, the American Secretary of State, on 22nd July, 1820, addressed to the Eussian Government the following vigorous protest : " The pretensions of the Imperial Government extend to an exclusive territorial jurisdiction from the 45th degree of iiortli latitude, on the Asiatic Coast, to the latitude of 51' nortli on the western coast of the American continent ; and they assume the right of interdicting the navigation and the lishery of ail other nations to the extent of 100 miles from the whole of that coast. Tlic United St<(tes am admit no part of these claims. The riglit of navigating and of fishing is perfect, and has been in constant exercise from the earliest times, after the Peace of 1783, throughout the whole of the Southern Ocean, suliject only to the ordinary exceptions and exclusions of the territorial jurisdictions, which, as far as Paissian rights are concerned, are 39 confined to certain islands, north of the 55th de-ree of latitude -;^ have no existence on the continent of An., "c" ' ^hen a<^a„,, Mr. .Aliddleton, the American Alinistcr m V ■ eomnientincr on tlie UJ-.^o in i • i ^^^""'^tei to laissia, says : ' ^'"'^" '^ ^'^^ ^''^^^ J^ec, 1823, "T],e Ukase even goes to the shutting ui, of a ,tr.h w) • i lias never hpM. hMI n , i ^ ^"'^^"^ which the A„.«.ican (fovenm.ent f "'""°'" '"«"' '^^ note ,ul,h.esse.l to Count Lieven i„ rec.ar,l . ^ EROXA, Xoveniber 2S IS'^-^ t»e pan of ,.„. Oove.™„e,.t, ,„ io, , „ ''"'" "^';^^""' °" "ations for the settie,„e„t .,f tlj 1 io ./T', """" l-wee„ the t.o CWn.ent. o„ h ^ ;'""' ""^ "'■'-" r I,: 5 111 I) ' 40 We object to the Ukase on the g-ounds : 1. That His Iinperial Majesty assumes thereljy au exclusive sovereignty in Xortli America of vvliich we are not prepared to acknowledge the existence or the extent. Upon this point, however, the memorandum of Count Nesselrode does aftbrd the means of negotiation, and my Government will l)e ready to discuss it either in London or St. Petersburg whenever the state of the discussions on the other question arising out of the Ukase will allow of the discussion. 2. The second ground on which we object to the Ukase is that His Imperial Majesty thereby excludes from a certain considerable extent of the open sea vessels of otlier nations. We contend that the assumption of this jjower is contrary to the law of nations, and we cannot found a negotiation upon a paper in whicli it is again Ijroadly asserted. JFe cuntend that no 2wwer ichatever can exclude another front the use of the ojkh 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 we consider as the law of nations, and we cannot negotiate upon a paper in which a right is asserted inconsistent with its principle. I think, tiierefore, that the l)est mode of proceeding would be that you should state your readiness to negotiate upon the whole subject, without restating the ol)jectionable principle of the Ukase, which we cannot admit. Ever yours, &c. (Signed) WELLINGTON. Behring Straits l)eing only fifty miles wide, the efiect of the Ukase of 1821 would lie to close the entrance to tiiem and to 41 the PaciHc from the north. Both Mr. Ada.as and Mr. Canning made tins point in reply to a nienioranduni from Count Lieven in reterence to Eussian subjects livin,^^ on the Arctic Coast outside the ];ehring Straits. Mr. Canning wrote on 21st July' 1824: '• The person who could think of making the Pacific a nunr clans., u may not unnaturally he supposed capable of a disposition to apply the same cliaracter to a strait comprehended between two shores of which it becomes the undisputed owner ; h,t the shutUng up of Bchring Straits or th. pn.rer to shut thnn up knr- after would he a thing not to he tolerated bg Ungland, nor conld we submit to be exchuled eitlier positively or constructively rom a sea in wliich tlie skill and science of our seamen hay'e been (and are still) employed in enterpri.es interesting not to this country alone but to the whole civilized world." The result of these protests was tiiat Russia al.andoned the whole of the extreme pretensions of the Ukase along the whole of the territories to which it was made applicable, and has never snice in this regard asserted or exercised any rights not recognized by the law of nations. After the abandonment, a treaty was signed between Russia and the I nited States in 1824. and one between Russia and Great Britain in 1825. It was conteuded i„ the .liplou.atic corrospondcmco an,l in tlie Amencm case and argnn.ent that, althoucjh lin.ssia in the treaty with Great Britain in 1825 withdrew the extren.e pre- tensions of tlio l-kase of 1,S:,1 in so far as the " Pacific Ocean " IS concerned, tlie withdrawal did not apply to the liehrin. Sea which, hetng known and designated by a specific na.ne, conl.i 42 not 1)0 {issiuiied to fall within the desiiL^niation of " Tiicific Ocean." The argument therefore was that the Ukase remained in full force and effect in so far as Hehring Sea and the seal fisheries in it were concerned, notwithstanding the treaty of 1825, at the time Ahiska and the islands in liehring Sen were transferred to the United States by the cessi(jn of I SOT. Tliis called for a construction of the treaty of 1825, and con- siderable geographical investigation as to whether liehriut; Sea was really a part of the Pacific Ocean. The weight of evidence was overwhelmingly, that Behring Sea was and had always been regarded as part of the Pacific Ocean ; while an examination of the treaty of 1825 shows that in its first article : " It is agreed that in any part of the Great Ocean commonly called the " Uacific Ocean," the respective subjects of the High Contracting Powers shall be neither disturbed nor restrained either in navigation or fishing." " The north west coasts of America," referred to in the Ukase as extending to Behring Strait, are also referred to in the treaty without qualification or restriction, which would have been made if the treaty were to have only a limited operation. In addition to this the llussian government were called upon to construe the treaty of 1824 with the United States, the first clause of which is couched in almost the same language as the first clause in the treaty with Great Britain, wlien the Kussian American Company protested against American and otlier foreign whalers in Behring Sea. The Russian Government on this protest decided that the treaty of 1824 recognized that the citizens of the United States had the right of fishing and navigation " over the whole extent of the Pacific Ocean."' As a matter of fact it was shown that from the earliest times liritish vessels had enjoyed all the rights of the high seas in 4:j '•*l'rinK Se,,. „„,! t|,„t „„ a,o only oocusi,,,, when !• • fisl,iug and navigation upon its wnte,-, (■.-e ,• T '-■^7''."""'"°' ^■"'-" "-To ;,:::;;.; ",hts„ the seal hshenes therein, at, ,„. ,,,;„, t„ t|„,i,„„„, ecess.„,. o, Alaska to the Unite,, State, and ... ^J "ever recogm.„cl any j„ris,liotion or rights other th., ;.p.>ertan.e., to i.nssia hy the law o,- nlt^ ::';;;: tribunal of arbitration found. '" The arbitrators unanimously decidpd M.nt f), i , Ocean," in the treaty betwel t '' L l^^ .V^ V^"^ ;■;:"*' ;."« '^^'^^--^ «-; an., „eeiae„ „y a oJ ' .^ 't ^ Morgan .hssenting, that after t,,e treatv of IS-'- ,. ■ e.e.noe.e,nsiverightorinris.,ietiont:L":,:r:.:::; ::z:::':t;" -^ '- ^"^ -• -- ---■ -- " tut cts.^ion wliicli are contained in the TKEATY 30th MARCH, 1807. SeZr""'' "" """°'"'"' •■"'■ '"« ^•""-' •^'^'- h- -Mr. By tlie first article of the treaty * Sa Majcstd VEmpcrcur de Tl (I cM( droit de SoiivcrnineM r a/u Et((h-U„is * 'tdcs Aw 7, * KSHlo; Siiigofji d'A possede tout Ic fcrrit. jxrr Sa Majedi sar Aj menq>ic, aiasi que ks ties conti'.'<■ soii- verainetf!" as "dominion," whereas they un<[uestionably mean " the right of sovereignty " and not " dominion." Wiuit the Emperor did was to transfer the '• territory" and the " islands " and such rights as belonjjed to iiim, as for instance, rights in territorial waters, with the " right of sove- reignty," or the riglit which he posses.sed as ruler or sovereign over tiiese territories. It is another form of relieving his subjects from their allegiance and putting them under the juris- dictittii of another power, but it does not add anything to the extent of the thing transferred. He did not transfer, or profess to transfer, llehring Sea or " the waters of Alaska," or anything except territory and such territorial rights as were incident to it by the law of nations, and the power of government over his people inhaljiting these territories and islands ; and it might also be any rigiit or royalty that appertained to him as Tzar, in the soil, or in the mines. J Jut no exceptional right of this kind is claimed. There is no reference to any royal or national right in fishing ou the seas washing the coasts of the transferreil territory. Tiie arbitrators were therefore able to answer unanimously in the affirmative to the fourth of the five points of Article 6, namely : 4. Di(f all the riyhts of liussia as to jurisdietion and as to seal fisJieries in the Behring Sea east of the water houndarij, in the treaty between the United States and Eussia of SOth Mareh, 1867, pass unimpaired to the United States under the treat ij ^ Great Britain did not contest this point. 4". THE fiioi'Eiav i.v riiK seals. The A,„o,ica„ cse iu.wuve. .lid „„t .-e^t „„lv „„ tl.e clet.nn,n,a,o„ „f ,„e exclusive juri^licti,,,, i„ Mel.'.i,,.. Sea «ml exclusive vi,-l,ts in the seal foheries therein, which were' he „nest,„ns involve.1 in the «„t three „„ints. After havin.- I' mte I states C.overnn.ent " is not con,,.elle,l. neitla-r ,lucs it ...ten,l to rest ,ts ease altogether on the jurklictiou exercised over Behnn. Sea established or exercised by Jiussia ,,rior and up to the tnne of the cession of Alaska." Mr. Blaine had sai,l the san.c thin., and this bri„„s us to the oth point of article 6th of the treaty," vi..: oiUsuk the onhnmy thm mile Hmil I J " The United States based the right here clain.ed •• upon the estabhshed pr.neiples of the connuon and civil law, „L, L pn.c.,ce of nations, upon the laws of natural history, an u I the common interest of mankind." The British case met this proposition with the answer that here could be no right of protection where there was no iuri ' .l.et.„n ; that there could be no .igl.t of property in the seals which were annuals /„,,, ,„„„,.„, „,„ „, ,„^, unt.1 taken. The law as la.d down by Kent, even, was a.ai! the Amer,can contention. The "connnon interests of n.ankind " .n qucstton could only be s„ch as international law recogni.es The American contention for a right of property i,: .seals reeerved no countenance from either the common or civil law The common law of Great Britain and the United States in regard to wild animals was the same. It recognised no 46 property in animals fn'o.c naturae, until possession, and property only lasts so lor'.g as possession lasts : when pos- session is lost, the property is lost. They are then wild aniniuls at large and " the right of capture reverts to ail alike." "The law does not give to the owners of land the oualified property as to wild anininls on their lantl by reason of any care or feeding of the wild animals, or management, which falls short of reducing tliem into possession ; it is vested solely on the fact of the ownership of the land, and the fact that any other person coming on the land to take the animals is a trespasser." Tlie American Counsel pressed the argument that the seals returned annually to the breeding islands, where a certain control was exercised over them by the United States Govern- ment or their lessees, and that when they left the breeding ground it was animo rcvcrtcmU, as evidenced by the fact that they did return the following year. Counsel assinulated the government's ownership in them to that of the owner of bees or doves, which tly away from their owner's land, but ha'oitually return again to their hives or cots. The arbitrators could not find an analogy and refused to countenance the argument. The life of the seal is indeed sui gmicris. That the American contention is not without colour of authority is obvious from the following observations of Biackstone with regard lo ferae naturae ; " These are no longer the property of a man than while they continue in his keeping or actual possession ; but if at any time they regain their natural liberty, his property instantly ceases, vmless they have aninnua revertcndi, which is only to be known by their usual custom of returning. The law, therefore, extends this possession further than the mere manual occupation ; for 47 ;;^-.-^ t.u a. «,., ., . ,,,„,, ,„: ,:„::: :;^ "'"'■'' '■«"«"" still in „.y possession, and I .til, ' qualified propertv in then, But i" H ' ™ "'^' l^ncnvledge. and .fo not re "n h T '"'"■ "■"""'" "'^ l-iAvfnl f "'* '""'"' »">iiiiei', it is then lawful for any stranger to take then,." But it could haidlv be said th^t n... reduction into possession o s a ' . " T", '"'' """'"' »'■ l»n,on of then that was d Le. p't : \ ' "'''"' '' '" ski,n,ed. There w.s „o i, T '"" '" '''^""' ^"'-' reduction i„t„ Jo ^i ':,?';" "'""' " "°'"™' "'■''' "'■ -.^^i''eti,cth,.o i;;::'"''"^"^'''^''™'- ^'--.1 There was notl,i„„ i , ; " ^ "'"'T' °' ''^ ""' ""'^'• wu-in,,.lythehn -."^i . ;':;r,^^^^^^^ ^'^^ - -'- to the latter because he di.l h h 'Jl'T^"';'''-^'^ the rnited S^^^p. ,. • ' "^'^^ ^'^S^ts of -.wf;i.:::::::™^^-— onscercsn,. The majority of arbitrators, Mr .Tusti^-e Knrl -;^-nd outside the ord;::r::;;L St"- ^-" seal industry. ''^' ^"^' ^"^^^^^>' ^'^ the 48 Notwithstanding that the American Government upheld the original seizures of Canadian sealers, on the ground that the statute of Congress, the President's proclamation, and the judgment of the Alaskan Court justified them — notwithstanding that Mr. Blaine, in the diplomatic correspondence, placed much stress on the Eussian title to exclusive right in the Behring Sea and in the seal fishing there — notwithstanding that the treaty puts forward these questions for specific determination, and tliat they are seriously argued in the American case — it will be found from the opening words in the American counter case that these considerations are practically abandoned, or so completely superseded as to be practically abandoned. These are the opening words of the American counter case : "It appears from an examination of the British case and the diplomatic correspondence above referred to, that a different opinion is entertained by the two Governments as to the object and scope of the present arbitration. That case is almost exclusively devoted to showing that the Government of the United States is not entitled to exercise territorial jurisdiction over the waters of Behring S8a, or to exclude therefrom the vessels of other nations. On the other hand, the case of the United States makes it plain that the main object had in view by the latter Government is the protection and preservation of the seal herd which has its home on the I*ribvloff Islands." While the American position was constantly changing, it must be remarked that the position of Great Britain, as set forth in the diplomatic correspondence in the British case and counter case, and elaborated in the argument of counsel, was uniform and consistent throughout. 49 Speaking of tliis, Blackwood remarks • " \v. British case, pre.,„,„«, p.,p„,er- ^ ' T,' f^' '""' '^^ under the control of, or L r^r JtT 'T ''''''''''■ Canad.a„ M.ni.r, e„,a,e. ./iraff f T ^f^^' ''" John Thompson, and the Minister of ' ' '"' "^ ^ ^'''^f. Sir Charles Hibbcrt Tunper is , , ""' ""^ "'"""■"We luppei, IS iirepaved m a manner calcic, i . exctea feehng of satisfaction that the nnl I .™''"'^'' "> colonies nnd the empire can st c """''"' "' "'^ ^ ^'-^^^ coijjiiiaiu the ii«p p ex raordn,ar, ahi.itj- for ver, insignificant re„a.:,s ^-^ Jhe same ninj-azine, spealdng of tliat n.,* /', counter case which deals with ri.l „f "' ''""^'' tection over, the seal savs . ^"'''P"''' "'' ""<' P™" ability." ■ ' ' """ " " ""^ P-t"-'«'i with singular »r otherw.se stated, it ravi! ten X! t^ .V"'"' •^'"'- e...al rights on the high sea^n.cln £ '', '.^ r:'"'' ."^^ became necessary for the arbitrators to co.-^ tL ' " ' " eonc.,rre„t regulations un.lcr article 7 of th^^ ! "''""" "' That article is as follows: '^" AIJTICLE VII. If the determination of thp fr.v-. • exciusivejurisdictionofu!e":.:7rrr;;r^'"^''^ .lectin such position that the concnrre: o 1 ^^^^^^^^^^^ "ecessary for the establishment of re<-„htio„s f ,K protection and preservation of the to se ''"''"' -orting to, the Behring Sea, the arW ^s s^alTt;: T"^' .".ne what concurrent regulations outside the , "" -'•' f - respective governments a^lt^'r 50 what waters such regulations should extend, and to aid them in tliat 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. Tlie High Contracting Parties furthermore agree to co- operate in securing the adhesion of other powers to such regulations. : The British counsel vainly argued that the tribunal should make regulations affecting the land as well as the sea catch. Her Majesty's government in the printed argument submitted that : " The object of the regulations is the proper protect' jn and preservation of the fur-seal in, or habitually resorting to Behring Sea. It would be unjust that other nations should be asked to enforce by legislation this curtailment of the rights of their nationals, without some corresponding concession on the part of the United States, as owners of tlie islands and terri- torial waters thereof." Quite so ; nothing could Ije more unjust, Init this point should have been urged and pressed in the negotiations preceding the convention, and surely no convention should have been entered into that did not involve mutual concessions. Unfortunately the treaty does not provide for any concession from the Americans, in so far as the islands and territorial waters are concerned. The concurrent regulations are to apply only out- side tlie jurisdictional limits. This is the bane of the treatA'. (Jreat Britian was doomed to suft'er a saciifice after winning all the jurisdictional points in c/i^pute. " The regulations for the islands," urged the Government of 51 Her Majesty, " which the rnite.! Sf, -■■^', it is s„b„,ittecl have '""' '^ """"« '° ™"^^. -- of the arbitrate; :;:::'"'"' ^*" "'*" ""= J-""- --..aWe er necessar/ , d t ^f r "'"""'""^ "™"^' ^^ »■"'"" the co,„pete„c ' t s t ; r"""'"^" '"■^' " '« regulations ce„ti„.e„t or,. '" """^-^ ""^ '"«« ai'Mv restrietionslo :,!:' :"::" '■"°" ""^ '-'-• To --,n.e„t re„„atio,.s e X ^f J^r ^"^"'^-^ -■' -":= ^e as „„reaso„ah,e ^f r.^thr""^' '"""'' restrietions over a coastal or .., , "'^'tution of ->-n o„ the spreai; XolleT" """^- "'* '"« without let or hir...lra„ce.'' "■ "'"'■'^ '^''"'S '"k^'. All unquestionablj. tnie : b„t j,,,,, ^,, ^, should have been submitted and p,t d ' "•™' '"""""^ It is vain to ask for the a,,p,ieatio .of t, ^'8'""«»'-y. able principles, when the t eat i l f T "'"'' "'" '•=''^'^-"- «r. Christopher Eobiuso: Q C t , t I '""'' "'""""'""• «oognized and admitted the real iT"" """"'• '""' f-ere,.di:i;:\;~:r-'«^^-'--«e,„u, I-urj„dgn,eut that wit Jirt"™ "' ''''''' '"-■ ^"Be<.Hn.Sea,andinthenortr;:::i;rS:;^"'''''^''''^^^ '"'"'•'- l-lified th ir deei2 l;r ■'°.7"''^''''"«'-'™al " '" 'l«ir opinion, these Tit " T"'"' "^^'"™"'» ''« »»'^^'.ouMbe.s:,ppC ;':2f^*^ interested." *^ ^" °^ "^e two powers A -re candid confession that sufficient power had not been "•PIP ■fw 52 given to the tribunal to deal efficiently by regulation with the preservation of the seal race could not have been made. It remains to notice briefly the proposed regulations submitted to the tribunal. The British commissioners had recommended a close season, and a zone around the breeding islands, within which i)elagic sealing should be forbidden at all times. This may have been perfectly right, under proper conditions ; but as the establish- ment of that zone would immensely contribute to the preserva- tion and multiplication of the seals on the islands and thereby enrich tlie owners of the islands, it should never have been proposed unqualifiedly, but should have been the concomitant of some corresponding concession from the Americans. But the treaty left no leeway for concession. It is plain that the creation of a neutral zone around the island is, in effect, not merely to enlarge and protect the breeding grounds, but to create a buffer against the pelagic sealer in favour of the owners of the " rookeries " on the islands. However, in view of the terms of the treaty and the report of the British commissioners, it seemed inevitable that a zone of some extent would be created about the islands. The British Government therefore proposed a zone of 20 miles, a close season in Behring Sea from the loth September to 1st July, and the licensing of sealers. THEN AND NOW. It will be remembered that Mr. Blaine had, as late as the 17th December, 1890, proposed a close time from the 15^h May to 15th October, of each year, and a neutral zone of 20 leagues (60 miles) around the islands, and added : " This will prove an effectivclmode of 'preserving the seal fisheries for the iise of the civilized world." o.> ^ or ou miles around the I'rihvJnfr t i i . months in the ve^n- „ * .1 • ""^ ^ '"'^^'^'^ Islands, for 5 Poitioiis of tl,,. raciflp On„ ,■ , "*''"' '" "'"SO -«1> „f ;-,,,' of , t l^ T' T "''"" '^*"""" *"' """ --e ^ "oit/1 latitude (the Prihvlnft' t i 1 nortl, latitude) and ea.,t of th ISOt ' " ""'' I" effect, they .,S ,' i /""' '"'""' ""' '"■■ ■•"' ''»-' ' seals msoit .sl,o„Kl bp „ ,■ ^^x^'hc Ocean to which I^'i'>.Voee. there is occa.si„„ f„r any ,n„di«eaL teo ""' 56 The reiuulatioiis concede the contention as to a zone around the breeding islands, but make it 20 leaL,nie.s instead of 20 miles; tix a close time from 1st May to olst July, but, instead of restricting it to l»ehring Sea, apply it to tiie Pacific Ocean (inclusive of IJehring Sea), north of of'th degree north latitude, and roughly speaking eastward of the ISOth degree of longitude from Greenwich — restricting the American pretension that pelagic sealing should l)e completely prohibited in the same waters. The other regulations prescribe the sort of vessels that may participate in sea sealing, and establish a licensing system for them. The (rovernments are made responsible for the "fitness of the men authorized to engage in fur-seal fishing" — a regu- lation nnich criticised. " Tiie use of nets, fire-arms and explosives" is prohibited, though "shot-guns" may be used " outside the Behring Sea " in the fishing season. 1 The arbitrators unanimously made the follov/in*. DECLAUATIONS AND liECOMMEXDATIONS. 1. The arbitrators declare that the concurrent regulations, as determined upon by the tribunal of arbitration, l>y virtue of Article VII of the treaty of the 29th Fel^ruary, 1892, being applicable to the high seas only, should, in tlieir 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. o. The arbitrators declare, moreover, that, in their opinion, the carrying out of the regulations determined upon by the tribunal of arbitration, should lie assured by a system of stipu- 57 lations mJ measures, to l« enacted l,v ,<■. \ tl'M the filmunl must i„ ' "' '"™'"" ' '-""I must, ni coiiseiiucnce leno ii . .1 powers to decide nnnn f I "'-''• "-"e H to the two r oecme upon the means of <'ivin.' efienf ,„ .1 lations determined upo.i by it. " ""-" ''«"• Tliree of the arbitrators vi, . w,-. v „ Cource], the Honorable Mr. .Tuce H , r'7 '''""" "" certain t^hel-actfttV""''''"'' ^" "■'-■'''' •■'"'-^ ot eircumstauccs t f , " ' '^ ";'"' '"'"''" '" "■"-'"-- recommend both Uo e l 1 7"' ""^ '"•'■'"■''^"■■^ •""■'^- «' '" order to prohibit .u^U^ IZ"' l" "', '""'--'"-"■'g '" -.foraperiodof tlorthre ':^^^^^^^^ "" '""" -" jeet to .sneh cx-eeptions as t tlT Co "^' '""' "'''' »'"'- proper to adn„-t of. t'overnments mi^ht think if S:;'C2.''^''"'"^""'™' '-----■ i..erva,s Tlie arbitrators also found tbit n,„ i- a fet subnntted by Grea • '■"'"" ™^*'^ ""■"-' '» captured by Ameri a! ^ is^' ".rT "'""' "™"^''' """' f.e .iurisdictiona. waters :;,: ;r" ■^'-^' ""^^c of the treaty, which is as follow.^/ "'""' "'"'^^ ^"^'^ » Article A7ir 'o";':;r:rrs;t;?r;'V''7--"-- tl.e liability of each for t^ "'" l"^'^''"'' "f --db.t,/l ;;;:'-;- *^-''-W been ^ Its citizens, m connection vvitii 58 the claims presented and iirj^ed by it, and being solicitous that this subordinate question should not interru])t or longer delay the submission and determination of the main questions, do agree that either ]iarty may sulmiit to the arlntrators any ([uestion of fact involved in said claims, and ask for a finding thereon, the question of the tidtiillf// of eitlier Government njion the facts found to he the suhjWt (f further negotiation. i The Ending under this article is especially important lo the masters ai»d owners of the Canadian sealing vessels, which are held by the award to have been unlawfully seized, while jtursuing a lawful occupation on the high seas. But why siiould a back-door l)e left in the finding ? If the Canadian vessels were seized on the high seas l)y American cruisers, there surely should be no question about the " liability " of the American Government. 1 Will the (tovernments interested by common agreement supplement the regulations by making other regulations appli- cable within the sovereignty of the two powers interested- as recommended by the tribunal ? Without such supplementary regulations, the present ones, though they may temporarily remove tlie causes of dispute, seem doomed to failure in pre- serving and protecting the seal race. They merely facilitate a larger percentage of seals being cluhhcd each year on the islands. They restrict the retail killing of seals on the sea, but place no restriction on the wholesale slaughter of them on the islands. The individual seal — swinnning in the open sea, and with a " sporting chance " for his life — may only be killed at certain times and by certain methods ; the whole herd may be ^ \ 59 """<"""■' -^ " these >e.„,|„ o '""■"' """""^ '■"-■ "-' " -ns,„.e., to ::;;:':" '^"■"■"■" '^- ■' ■'"'""■- '' ^'- '•".■to., St„te» „„,, ■ , '" '"' '""'■"•■■ """ '-^ themselvoa, what hope i.s there o M ™"'"" '" '■'■■^"■'■" -trictions. I„ v,> „„o; ','"'' '"^"""^ "-«H"'.^' -eh J"ri..Uction a,.„ .,„„ , J"; :-- ;■ the .uestio. of •'apM or Mexico or inv „,i " '"'''^<^"' l'"S'i'' or ^1-e. of the IVihyloh °i,, 'f ■^1 '° ^"f"' •■' ■""- »f .he T""""al are „„t operative a. ii.t tl/' "'""^ '' '"« '•-■■' '» that decision. ],„t other; ! T "'■'"""■■''* '"" ''^■■^^ t"se a., o„,„oi'■'■ "f"^.-™. -i-'cnt that other nations «S' """ °" "^"""'™'- " ''^ '■^strict their rights Tl.ev „ , , *" '° ''^Si'hitions «-l,ich can remain f.ee, vvlnle their two "'"'' '"^ ^'^^^ bound. ' '^''^ ^'^'^^^^test competitors are A word as to the e/feet of M, ti^eir present form. ''' '''^"^^^^'^'"'^ ^'^^ <^"force.l in It has been repeatedly stated thnr f) -^^ at the expiration ^ ^^ ^^--^"l^tions come to an A writer in JJlackwood says- "Who. --S'H h, these rules, „M L ,„ 7^^ T!" "'^' '" ' '"^^ ^'^ 'i short tinw, or he 60 remcfhcd hi/ further regulations." And again in tlie same article the writer says : " She (Great Britain) also insisted that the regulations should not Ije permanent, anil in thin shchasfortu- natdif been successful." liut has she ? Article 9 provides, that the regulations "shall remain in force" "until alxtlished ov modified hy common agreement." Failing that common agree- ment, they are permanent. The provision for suhmitting tiiem every five years to a new examination amounts to ncjthmg more than a provision for sul:>mitting the regulations for reconsideration, liut unless both CJovernments concur in modification or abolition, the regulations staii i until cliaiiu'ed or aliolished by " common agreement." The regulatitjns are permanrnt, unless both parties agree to change or annul them. There is one other consideration worthy tlio attention of ihe high contracting parties. Who is to enforce these regulations ? Is (treat Britain to maintain a fieet to police tlie GO mile Zdue around Pribylofl' Islands, to protect the American preserve against her own subjects i And who is to police the Pacific Ocean from 35' north latitude to liehring Straits, and eastward of 180"' of longitude from Greenwich? The condnned navies of the world would be inadequate for this service. Few can comprehend the extent of sea surface within these biuuidaries. It would be safe to say it covers a. surface approximately as large as the whole of the United States and Mexico condjined. The I'aris Tribunal, in affirming the greni prin('i]des of Inter- natimial law, has rendered a lasting service, not only to Great Britain and the United States, l)ut t(j all nations. In the 61 determination of these questions it was aided by able and distinguished counsel — and it is upon its findings as to matters of right and jurisdiction that its real title to live in history must rest. Its attempt to legislate upon a new and imperfectly understood subject, and without the power to deal with the whole subject, is confessedly an incomplete performance. Hap- pily it recognizes the imperfection, and indicates the remedy, so far as the two nations immediately interested are concerned. ]>ut if Clreat Britain and the United States should take tlie advice of the arbitrators and supplement the legislation of the tribunal in a way to protect and preserve the seal race, what will other nations do ? It is regrettable that the Alarcpiis of Salisbury's suggestion, that the questions of right should be Hrst determined, and that after that, regulations should be the subject of a separate reference, was not adopted. Failing a separate reference, it is even more to be regretted that Her Majesty's Government did not persist in their refusal to ass ant to the sixth i[uestion formulated in Mr. Blaine's note, which, in a modified form, became Article 7 of the Treaty. The British counter proposal, made as late as 3rd June, 1891, to ascertain the facts about seal life bv commission, before making retjula- tions — with a view to an " international arrangement between CJreat I'.ritain, the I'nited States, Kussia or any other power," " for the purpose of preserving the fur-seal race in Behring Sea from extermination, if any regulations are necessary," was sound and reasonable — in fact the oidy rational method of disposing of the subject on the basis of finality. It compassed the whole (piestion of preserving the seal species in liehring Sea, and why Lord Salisbury did not persist in the [irojKjsal must remain one of the mysteries of diplomacy. It is inconceivable that Lord Salisbury, who had up to this time conducted the snfsift'fwm 02 correspondence in a manner that left nothing to be desired, should have yielded upon a point that consigned to failure the success of his negotiations. He did yield, and the " heads I win, tails you lose " clause was inserted in the treaty. The Canadian vessels were seized upon the high seas, as " lawless intruders " in American waters, and as poachers of American property. Great Britain asserted the freedom of tiie seas, and remonstrated against the seizures as being against the law of nations. This was the pivotal point in dispute between the two countries. The preservation of seal life was a side issue, insinuated into the controversy and finally into the treaty in a way that enabled the Americans to gain by regulation what they were not entitled to by right. Why should any nation be asked to surrender any portion of its rights without some compensating advantage, and without compensation, assessed and determined, for past injuries ? It would be the merest hypocrisy to pretend that the American interest in the prevention of killing of seals on sea was unconnected with an interest in the catch on land. If the preservation of the seals was the first and real consideration, ami if Great Britain and other powers were willing to submit themselves to regulations limiting their right to kill seals on the high seas, why in reason should the Americans refuse to submit to regulations limiting their rights to kill on land ? It is a great satisfaction that Great Britain was found to lie right in its contentions on the main subject in dispute, and that its triumph in this respect is unquestioned everywhere. It is satisfactory that under the award the owners of the sealing vessels seized, and the masters and mates of the vessels, have now established indisputably their right to compensation for injuries. But while this is so, it is regrettable that victory G3 was purchased on conditions that put its frni. • ^^onient it was secured. ^ "'' ^" P'^^^' ^''^ The for. of the reference was the root of the evil, -ror It our seamen were wiMiin th^; • i lawful calling on the Ih "° "' "''"'"''"« " ruthlessly .eiLd an Itl ^ " '""' ^^^"'^ »■-« shcld have CjnZl T ""'""""' ""' «"^''' '"»>• """^ '^'^«" J«ar - ference. aL lb " f """" T"^' '"^ '-"' »' 'be .c- -...:.e^i:i::-;rtir:t--".' i ine sea uas adjudged free to all The Ton. i -ale..s were not ..poacbe,.s.._o. .lntn.de.." ;L':i^^ 64 had been seized and confiscated, and the masters and crews imprisoned and fined in violation of the law of nations. What was the natural consequence of this decision ? Firstly, that the sealers should be paid damages for the loss and injury they had sustained, and, secondly, that they should be at liberty to exercise their lawful calling without let or hindrance in the future. These were the legitimate results of victory. But these results were frustrated by the reference, under which, in the contingency of victory, "the liability" of the American Govern- ment was to form the subject of separate " negotiation," and the seas, which had been declared free, would without any com- pensation whatever be subjected to restrictions in the interest of the owners of the Pribyloff Islands, and of them alone. Can it be that the authoritative voice of Canada was ignored in settling the terms of the reference ? Really the so-called " common interests of mankind " have demanded too great sacrifices of Canada. The great seal arbitration has passed into history : but we have not yet heard the last of the seal. 05 APPENDIX, The Ti'iliuiiiil of Avliilralioii u's coiisLitutiMl as follows : n. K. llu! l)avoii Aliilioiisc- (jc (,'ourcel, Senator of France, nominated li}- France : President. 11. F. the ]\lar(|nis K. \'isconti \'enosta. Senator of Italv, nominated l»y Italy. JI. F. ^Monsieur (ire.i^eis (iram, Minister of State of Sweden and Norway, nominated l)y Sweden and Xorwa.v. The Ki^iit lion. I.ord Hanneii, Lord of Ajjpeal : and the Right Ifon. Sir dohn Thom])son, K.( ".^r.( i., I'l'iine ]\Iinistei' of the Dominion of Canada, nonnnated hy (Ireat l^rilain. The Ifon. dolm M. ]larlan, Jnstiee of the Saj)reme Couit of the Fnited States : and The Hon. ddhn T. .Moi;oan, Senator of ijie I'nited States, noii'.iiiated l)y the Tinted Slates. The Au'ents weri; : The Hon. Charles If. Tu].|,er, (now Sir Chiirles Ilihherl Tn])]>er, K.C..M.C.,) ;Miinster of .Marine and Fishei'ies of tlie \ honunion of Canada, on hehalf of the Covei'nmenl of Civa! liriiain. The Ifon. dohn \V. Fnsler. nn liehalf nf the ( lovi-riMMiMil of the Cnited States. The I>i'itish Uehrinu Sea Commissioners were : Sir (leoine Uadcn-l' iW(dl. I>:.C. M.(;..M. 1'.. I )r. ( ojor-f Dawson. ('MM. 1 nilcd Slates lielndn^' Sea ( 'ommi .^loncrs were: Mr. Thomas ( '. MendeidiaU, Mr. C. Hart .Aft'niam.