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TIIK PROVISIONS OF THE TKE.VTY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN, CONCLUDED FEHKUARY ->9, 1«»2. f ■ V:t Presented to both /louses oj Parliament hy CutmnatuI of Her Afajeslf/. Afarch 1«1)3. .'»'? LONDON! PRINTED FOR HER MAJESTY'S STATIONERY OFFICE, BY HARRISON AND SONS, ST. MAUTIN'H LANE, PHINTEH8 IN OEDINAUT TO HBU MAJBSTT. And to be purnhased, either directly or through any Bookseller, from EYliE ft SPOTTISWOODE, East Uahdino Strbet, Flbbt Strrbt, E.O., and 82, Abinodon Strebt, Westminster, 8.W.; or JOHN MENZIES A Co., 12, Hanovbr Street, Edinbubou, and 90, Wist Nob Street, Glasgow; or HODQES, FIQUIB, * Co., Limited, 104, Upafton Stbmt, Dvbloi. 1 TABLE OF CONTENTS. FIRST. What law is to govern the decision 1-9 Appendix to part first (Mr. Carter's argument) 10-26 Citations from writers upon the law of nature and nations, showing the foundation of international law, its relations to the law of nature, and the sources from which the knowledge of it is tp be derived 10 SECOND. The acquisition by Russia of jurisdictional or other rights over Bering Sea and the transfer thereof to the United States 27-40 THIRD. Tlie property of the United States in the Alaskan seal herds, and their right to protect their sealing interests and industry 41-107 I. The pivperty of the United States in the Alaskan seal herd 41 The form of the institution— community and private property .... 67 Ownership not absolute 68 Summary of doctrines established 08 Application of the foregoing principles to the question of property in the Alaskan herd of seals 09 Principal facts in the life of the fur-seal 75 Appendix to part third, division I (Mr. Carter's argument) .... 108-129 Authorities upon the subject of property in animaU fera naturm .... 108 n. The right of the United States to protect their scaling interests and industry 130-179 Appendix to part third, division II (Mr. Phelps Argument) .... 180-189 Additional authorities on tlie question of property 180 FOI'RTH. Concurrent regulation)< FIFTH. Claims for compensation I. Damages claimed by the United States II. Damages claimed by Qreat Britain [317] 190-214 216-227 .... 215 .... 217 U' fl «■ &* §1" *• * »?■' r r m It ' ^ IV I' I m T.MM.K OF rOXTENTH. SIXTH Suiiiiimrjr of tin- ovuioiicc , T. The gfiicnil iiuliirf and churui'toriHticN (if till- fur-goul IT. Tlif (liffiTi'iicc botwei'ii Iho Alaskiiii uiiil tho Rumtiun fiir-80iili4 A. Tlu> Iii'mIh uri' (lifferont B. Thv Alartkuii dwn nut niinKlc witli the RusHian herd C Till' AlaHkan fur-ieuU liave but one liunio, namely, tlie Pribilo*' iHlandn. They never leave this home without tlio animus revertendi, and ure never iteen anhorc except on tho«o iiilands III. Movements of the »ettl» after the birth of the young IV. The entire ofllce of reproiluetion and rearing of young is and inUMt be perfonned on land v. Tlie pup in entirely dependent ujion its mother for nourishmont for »everul months after its birtli The eowg will Rueklo their own pups only, and the suekling is done on land VI. The cows, while suekling, go to the sen for foo-: The under,signed believe it to be in a high degree important tiiat it should at the ont.set be clearly understood what ))rinciples and rales are to guide the Arbitrators in reaohing tlioir conclusions. Otherwise no argument can be intell rently framed. We do not indeed appre- hend that there can be any serious difference of opinion upon this point. The consciousness and immediate conviction of every one having any part in the proceeding — Arbitrators and counsel alike — might be safely I i|'' 2 ARGUMEWT OF THE UNITED STATES. appealed to for the response that the determination rau?t be proundod upon principles of rigJit. It can not be that two great nations have volmi. tarily waived their own convictions and submitted their rival claims to the determinations of caprice, or merely temporary expediency. It is not to fiuch empty and shifty expedients that national pride and power have paid their homage. The arbitrament of force can be worthily replaced only by that of right. This Tribunal would be robbed of its supreme dignity, and its judgment would lose its value, if its deliberations should be swayed in any degree by considerations other than those of justice. Its proceedings would no longer be judicial. The nation for which the undersigned have the honor to be retained is prepared to accept and abide by any determination which this Tribunal may declare as the just conclusion of law upon the facts as established by the proofs. It can not be content with any other. But what is the rule or principle of right ? How is it to be described and where is it to be found ? The answer to this question, though nor so immediately obvious, is yet not open to doubt. In saying that the rule must be that of right, it is intended, and indeed declared, tliat it must be a moral rule, a rule dictated by the moral sense ; but this may not be the moral sense as found in any individual ii.ind, or as exhibited by the concurring sentiments of the people of any particular nation. There may be — there are — differences in the moral convictions of tlie people of different nations, and what is peculiar to one nation can not be asserted as the rule by which the conduct of another nation is to be controlled. The controversy to bo determined ai-isos between two dif- ferent nations, and it has been submitted to the judgment of a tribunal composed, in part, of the citizens of several other notions. It is im- mediately obvious that it must bo adjudged upon prinsiples and rales which both nations and all the Arbitrators aliko acknowledge ; that is to say, those which are dictated by that general standard of jiisticf upon which civilized nations are agreed ; and this is international lair. Just as, in municipal societies, municipal law, aside from lepisliifiM enactments, is to bo found in the general standard of justice wliieli \- acknowledged by tho members of each particular state, so, in ilio l:irg( i society of nations, international law is to be found in the general siand- ard of justice acknowledged by the members of that society. Tlieie is, indeed, no legislation, in tho ordinary sense of that word, for tlic society of nations ; nor in respect to, by far, the larger pavt ut tbu affairs of life is ther« any for municipal societies ; and yt tluiv i'f WHAT LAW IS TO GOVERN THE DECISION ? 3 for the latter an always existing law by which every controvei'sy may bo determined. The only difference exhibited by the former is that it has no regularly-constituted body of ej-perts, called judges, clothed with authority to declare the law. And this distinction is wiped awRy in the case of the present controversy by the constitu- tion of this tribunal. That there is an international laiv by which every controver-sy between nations may be adjudged and determined will scarcely bo questioned anywhere ; but hero no such questioning is allowable. Tho parties to the cojitroversy are, to employ a word familiar to them, estopped from raising it. They have voluntarily made themselves parties to a judicial proceeding. For what purpose is it that these nations have submitted rival claims to judicial decision if there is no legal rule which governs them ? Why is it that they have provided for the selection of arbitrators preeminent for their knowl- edge of law, except that they intended that the law should determine their rival claims? Nay, what is the relevancy, or utility, of this very argument in -which we are engaged unless there is an agreed standard of justice to which counsel can appeal and upon which they can hope lO convince ? The undersigned conceive that it will not be disputed that this arbitration was planned and must bo conducted upon tho assumption that there is no place upon the earth, and no transaction either of men or nations which is not subject to the dominion of law. Nor can there be any substantial difference of opinion concerning the sources to which we ai'o to look for tho international standard of justice which the undersigned have referred to as but another nanio for international law. !^^unicipal and international law flow equally from tho same source. All law, wliether it bo that which governs tho conduct of nations, or of individuals, is but a part of tho great domain of ethics. It is founded, in each case, upon the nature of man and the environment in which he is placed, Tlie formal rules may indeed bo varied according to the differing conditions for whicli they are framed, but the spirit and essence are everywhere and always the same. Says Sir James Mackintosh : The science which teaches tho rights and duties of men and of states lias in modem times been styled " the law of nature and nations." Under tliis com{)rehenRive title are included the rules of morality, ns they pre- scribe tlie conduct of private men towards each othei- in all tho various relations of human life; as they regulate both the obttlieiice of citizens to the laws, and tho authority of the nuigistrate in framing laws and administering government; and as they modify the intercourse of inde- pendent inmmonwealths in peace anil prescribe limits to their hostility P. i ' tin 'J I . ' 'f.-'^ '■■'• fj M •^r^ !' I; 4 AKGUMENT OF THK UNITED STATEH. in war. This important science comprehends only iliat part of private ethics which is capable of being reduced to fixed and general rnles.i And Lord Bacon has, in language often quoted, pointed to the law of nature as the source of all human jurisprudence : For there are in nature certain fountains of justice, whence all civil laws are derived but as streams, and like as waters do take tineturos and tastes from the soils through which they ran, so do civil laws vary according to the regions and governments where they arc plantofi, though they proceed from the same fountain. - This original and universal source of all law is variously designatud by different writers ; sometimes as " the law of nature," sometimes as " natural justice," sometimes as " the dictates of right reason ; " but, however described, the same thing is intended. " The law of nature ' the most approved and widely employed term. The universid obli- gation which it imposes is declared by Cicero in a passage of li>fty eloquence which has been the adniii-ation of jurists in every succeeding age.* And the same doctrine is inculcated by the great teacher of the laws of England in language which may have been borrowed from the j,nvat Boman : This law of nature being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over the globe, in all countries, and at all times ; no human laws arc (if any validity if contrary to this, and such of them as are valid ihvhv all their force and all their authority, mediately or immediately, from this original. * The dependency of all law upon the law of natu-.e is happily ex. pressed by Cicero in another often quoted passage : " Lex est snprpma ratio insita a natura quce jubet ea qtim fadenda sunt, prohibetqiie am- ' Dissertntion on the Law of Nature and Nations. - De Augmontis Scientiarum. ^ "Est quidem vera lex roeta mtio naturae eongruens, diffusa in duiiics, riiii>tiiii>, Bpnipiterna, quae rocet ad oflleium jul)etido, vetaiido n fraude deterreat, (junc tiimi'ii neque probos frustra jubet aut vetat, nee iiu))robos jubeiido aut vetando niovet. Ifiiii legi nee obrogari fas est neque derogari ex bac ali(|uid iieet neqiu- tola al)ri)f;iiri pnic-), nee vero .n.t per senatum ant per populum solvi hae lege possinnus, neque est (luacn'ihlu- explanator aut. interpres ejus alius, nee erit alia lex Koinae, alia Athenis, alia nunc, alia posthae, sed efc omnes gentes et onnii tempore una lex et senipiterna et iminutuliilii' continebit unugquisque erit communis quasi niagister et imperator omnium deus : illc li'2i> hujus inventor, diseeptator, lator, cui qui non parebit, ipse se fugiet ae natunnn lioniini- a«pernatuR hoc ip»o luet maximus poena», etiam si eaetora supplieia quae piitaiitur. eftugerit." (De Republic*, Lib. Ill, Cap, XXII, § 33.) * BlaokBtone, Com., Book I, p. 41. WHAT LA.W IS TO GOVERN THE DECISION ? 5 art of private il rales. 1 3d to the law hence all civil take tinctures civil laws viirv y are planted, lualy designated " sometimes as ; reason ; " but, law of nature "' universid obli- passage of lofty ivery succeediiij.' ichcr of the laws I from the great lictated by God It is binding; man laws are i)f arc valid derive mediately, from is happily ex- "jex est snprcma prohibetque cow- in Diniifs, ciiii^taih, terrpnt, iiuiic liiii.in tando niovot. Ifiiii totii iiln'opiri pcilcsl, icqup est (iHiU'ri'iuiU- honifi, iiliii miiH'. aliii crnii et iiiiimituMli' Bniiin di'U!': illi' li'2>^ no iiiifuntiii li(iiiiiiii' ifiu qutto putiiiitiir. traria."^ And it '" very clearly illustrated by the fact that the gi-eat expositors of the Roman law in seeking for a concise formula which would express its original and fundamental principles, have simply borrowed or framed a statement of the dictates of natural justice : " Juris precepta sunt hnec : honesta riverr, alterum non hvdere, suwn cuique inhuprp.""^ Some writers have been inclined to question the propriety of designat- ing as law that body of principles and rules which it is asserted are binding upon nations, for the reason that there is no common superior power which may bo appealed to for their enforcement. But this is a superficial view which has received no considerable assent. The public opinion of the civilized world is a power to which all nations are forced to submit. No nation can afford to take up arms in defence of an assertion which is pronounced by that opinion to be erroneous. A recent writer of established authority has well answered this objection : It is sometimes said that thei'e can be no law between nations, because they acknowledge no common supei-ior authority, no interna- tional executive capable of enforcing the precepts of international law. This objection admits of various answers : First, it is a matter of fact that states and nations recognize the existence and independence of each other, and out of a recognized society of nations, as out of a society of individuals, law must necessarily spring. The common rules of right approved by nations a« regulating their intercourse are of themselves, as has been shown, such a law. Secondly, the contrary position con- founds two distinct things, namely, the physical sanction which law derives from being enforced by superior power, and the moral sanction conferred on it by the fundamental principle of right; the error is similar in kind to that which has led jurists to divide moral obliga- tions into perfect and impei-fect. All moral obligations are equally perfect, though the means of compelling their performance is, humanly speaking, more or less perfect, as they more or less fall under the cog- nizance of human law. In like manner, international justice would not be less deserving of that appellation if the sanctions of it were wholly incapable of being enforced. ******* But irrespectively of any such means of enforcement the law must remain. God has willed the society of States as He has willed the society of individuals. The dictates of the conscience of both may be violated on earth, but to the national as to the individual conscience, the language of a profound philosopher is applicable : " Had it strength as it had right, had it power as it has manifest authority, it would absolutely govern the world." * * * » tt 4» * Lastly, it may be observed on this head, that the history of the world, and especially of modern times, has been but incuriously awd unprofitably read by him who has not perceived the certain Nemesis which overtakes the transgressors of international justice ; for, to take p.i si ^' lis I; ' I MA • Cic. De Legibui, Lib. I, c. VI, § 6. * Just. 1, 1. 3. r 1111 6 ARGUMENT OF THE UNITED STATES. but one instance, what an " Iliad of woes " did the precedent of tlio first partition of Poland open to the kingdoms who participated in tliat grievous infraction of international law ! The Roman law nobly ex- presses a great moral truth in the maxim, " Jurisjurandi contcmpta religio satis Deura habet ultorem." Tlie commentary of a wise and leai'ned French jurist upon these words is remarkable and may not in- aptly close this first part of the work : " Paroles (he says) qu'on pmit appliqucr egalement a touto infraction des loix nnturclles. La justice de I'Auteur de ces loix n'est pas moins armee contre ceux qui les trans- gi-essent que contre les riolateurs du serment, qui n'ajoute rien a Tobli- pation |de les observer, ni a la force de nos engagements, et qui no sert qu'a nous rappeler le souvenir de cetto justice inexorable." (Phiili- niore's Internationa) Law, third edition, London, 1879, Vol. I, Section LX.)> That there is a measure of uncertainty concerning the precepts of the law of nature and, consequently, in international, law which is derived from it, is indeed true. This uncertainty in a greater or less degree is found in all the moral sciences. It is exhibited in municipal law, although not to so large an extent as in international law. Law is matter of opinion ; and this differs in different countries and in different ages, and indeed between different minds in the same country and at tlic same time. The loftiest precepts of natural justice taught by the most elevated and refined intelligence of an age may not be acquiesced in oi' appreciated by the majority of men. Tt is thus that the rules actually enforced by municipal law often fall short of the highest standar'^ of natural justice. Erroneous decisions in municipal tribunals are r' fre- quent occurrence. Such decisions, although erroneous, must necest 'ly be accepted as declarative of the rule of justice. They represent the ' Tlio duties of men, of subjoots, of princes, of liiwgivers, of niagistrates, iiiul of statos are all parts of one ociisistent system of universal morality. Between the most abstract and elementary maxims of moral philosophy and the most complieated eontroversicj of civil and public law there subsists a connection. The principle of justice dceplv rooted in the nature and interests of man pen-ades the whole system and is dijcDvcrablo in every part of it, even to tlie minutest ramiGcntion in a legal formality or in tlic con- struction of an article in a treaty. — (Sir James Macintosh, Discourse on (he Law of Xntiire and Nations, nub fine) Mr. tTusticc Story says: "The true foundation on which the administralioii nl inlii- national law must rest is that the rules which are to govern arc those which iirisc t'loiii mutual interest and utility, from a sense of the inconveniences which would result froin u contmry doctrine, and from a sort of moral necessity to do justice in order that jiiilicc may be done to us in return." (Conflict of Laws, Ch. ii, Sec. 'Mi.) And, sitting as a judge, he declared : "But I think it may bo uneqiuvocaliy alTiniU'il tluit every doctrine that may be fairly deduced by correct reasoning from tlic rijilit- and duties of nations and the nature of monil obligations may theoretically be ."iiiii to exist in tlic law of nations; and, unless it he relixcd or waived by the ion.i' • , & vX"*B 11 ■ •«. P ,t ■Hi :*i t !' K" I > i'v '«'. ^ S]j. . ■i;! '±^r >, •H- 'i il'f" i 10 AnCJUMKNT OF TIIK C'NITED STATES. APPENDIX TO PART FIRST (MR. CARTER'S ARGUMENT). CITATIONS FBOM WBITEBS tTPON THB LAW OF MATTTRE AND NATIONS, SHOWINO THE FOUNDATION OF INTERNATIONAL LAW, ITS RELATIONS TO THE LAW OF NATURE, AND THE SOURCES FROK WHICH THB KNOWLEDOE OF IT IS TO BE DEBIVED. [POMEROY. Loctiiivs on IntornHtioiiiil Liiw, oil, 1886, Chap. I, Sees. 29, 30, 31, 33, pagos 23-2(1.] Skc. 29. (2) A large number of rules which govern the inutual relii- tion.s of states in their corporate capacity are properly called Inter. national law, on account of the objects which they subserve and the ri^'hts and duties they create. They are also properly law, because they liavo been established by ])articular states as a part of their own nninicipal systems, and are enforced by their judiciary and executive in the same manner as other portions of the local codes. They are in fact principles of the law of nature or morality put in the form of human commands, and clothed witii a human sanction. (3) What is called international law in its general sense, I would term international morality. It consists of those rules founded upon justice and e(|uity, and deduced by right reason, according to wliicii independent states are accustomed to regulate their mutual inter- course, and to which they conform their mutual relations. Tluse rules have no binding force in themselves as law ; but states ai'c more and more impelled to observe them by a deference to the |,'cn- eral public opinion of Christendom, by a conviction that they are rij;lit in themselves, or at least expedient, or by a fear of provoking hostilities. This moi-al sanction is so strong and is so constantly increasing in its power and effect, that we may with propriety say these rules iieatf rights and corresponding duties which belong to and devolve upon in- dependent states in their corporate political capacities. Sec. 30. We thus reach the conclusion that a lai-gc portion of inter- national law is leather a branch of ethics than of positive human juris- prudence. This fact, however, affords no ground for the jurist or tlic student of jurisprudence to neglect the science. Indeed, there is tlie greater advantage in its study. Its rules are based upon abstract jus- tice ; they are in conformity with the deductions of right reason ; having no positive human sanction they appeal to a higher sanction than do the precepts of municipal codes. All these features clothe them with a nobler character than that of the ordinary civil jurisprudence, as God's law is more perfect than human legislation. Skc. 31. The preceding analysis of the nature and characteristics of international law enables us to answer the general question. What are its sources ? If we confino our attention to that portion which is in every sense of the term strictly international, and is therefore, as ■we have seen, morality rather than law, these sources are plainly seen to be : (1) The Divine law ; (2) Enlightened reasou acting upon the abstract principles of ethics ; and (3) The consent of nations in adopting the particular rules thus drawn from the generalities of the moral law ARGUMENT). I, Sees. 29, 30, 31,33, APPENDIX TO PART FIRST. 11 by the aid of riglit reason. It i.s only with this portifin of international law that we need now concern onrselveH. That otlier portion which 1 have already described as international only in its objects, and strictly national and municipal in its creation and sanctions, springs from tlie same sources whence all of the internal law of a particular State arise;) — from legis- latures and the decisions of courts. We will then briefly consider these principal sources, or, if I may use the expression, fountains from which flow the streams of the jus inter genfeg. Skc. 33. (2) Iteason. But the precepts of the moral law, either as contained in the written word, or as felt in the consciousness of the human race, are statements of broad, general principles ; they are the germs, the fructifying powers ; they must be developed, must be cast in a more practical and dogmatic form to meet the countless demands of each indi- vidual, and of the societies we call nations. To this end we must appeal to reason ; and hence the second source which I have mentioned, namely, enlightened reason acting upon the abstract principles of morality. I can not now stop to illustrate this proposition ; we shall meet many pertinent examples in the course of our investigations. I wish now, however, to dwell upon one fact of great importance — a fact which will help you to avoid many difiiculties, to reconcile many discrepancies, to solve many uncertainties. This fact is, that an international law is mainly based upon the general principles of pure morality, and as its particular rules are mainly drawn therefrom, or are intended to be drawn therefrom, by reason, it is, as a science, the most progressive of any department of jurisprudence or legislation. The improvement of civilized nations in culture and refinement, the more complete understanding of rights and duties, the growing appreciation of the truth that what is right is also I expedient, have told, and still do tell, upon it with sndden and surprising \i effect. The result is that doctrines which were universally received a generation since are as universally rejected now ; that precedents which were universally considered as binding a quarter of a century ago would at the present be passed by as without force, as acts which could not endui-e the light of more modern investigation. More particularly is this true in respect to the rules which define the rights of belligerents and neutrals. The latest works of European jurists are, as we shall see, conceived in a far different spirit from standard treatises of the former generation. It was the entire ignoring or forgetfulness of this evident and most benign fact by Mr. Senator Snmner, in the celebrated and elaborate speech which he delivered a few years since upon the international policy of England, that rendered the speech utterly nseless as an argument, exposed it to the criticism of European jurists, and left it only a monument of unnecessary labor in raking up old precedents from history, which no civilized nation of our own day would quote or rely upon. The Roman law, that wonderful result of reason working upon a basis of abstract right, is largely appealed to in international discussions, as contain- mg rules which, at least by analogy, may serve to settle international disputes. No one can be an accomplished diplomatist without a familiar acquaintance with much of this immortal code. [Phillimore. International law, 1871, Ch. Ill, pages 14-28.] XIX. ♦ * • "WTiat are in fact the fountains of international juris- prudence P" * * • XX. Grotius enumerates these sources aa being " ip«a natura, leges divince, mores, et pacta." [317^ B {fill m Mm M Ik. ■m i i W- v.- t: '■I I 12 ARr.UMKNT OF TFIR UNITKD STATES. 'ii' j-r . ; (2) that wliicli lios been miraculonsly niAtle known In \7!J'A tbi> HfitiHh Ciovcrnnicnt miido an answot* to n memorial of tht' PruNsiiin Ooverniuent, wliich was tcrniod by Montosqiiiea rr^onm- gims 7rpli•■ APPENDIX TO PART FIRST. 18 n omorial of tlif 1 ri''}>i»iiH' mtiis I uf till! ul)IPbt paper, ill this fonndcil upon il confirmed by lubstaiice o( all law, • • • k,s.>nblished some years ago on "Ancient Law " T made this remark : "Setting aside the Treaty Law of Nation.s, it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the Roman juris- consults affirmed by them to be in harmony with the Jus Gentinm, the Publicists have found a reason for borrowing it, however plainly it may bear the mark of a distinctive Roman origin." • • * Seen in the light of a stoical doctrine the law of nations came to be identified with the law of nature ; that is to say, with a number of sup- [317] u 2 f i!rf, * > '?"■ I, I/' ■ I"' n i) <'..■• F i: ^■■- t M 14 ARUUMKNT OF TIIK UNITED 3TAT1'«<3. Ii I T 4 '■ 'J ■* V r-t nosed principIi'S of conduct wliich man in Hocioty obeys Himply bocnnsc no is man. Tims tho law of naiitrn in simply tho law of iiatioiiH sciii in tho li^ht of a poculiar theory. A piiNHa^u in tho Roman institiiii's showH that tho (•xfiroHsions wore practically convertible. Thn j,Mviitcst function of tho law «>r nature was discharged in giving birtli to niddcrri international law, • • • The inipre!4Hion that tho Roman law NOHtained a syHtem of wliat would now bo called international law, and that this system waH iden- tical with the law of nature had undoubtedly much influence in ean^tin^r the rules of what the Romans called natural law to be engrafted on, and identitiod with, the modern law of nations (page 28). It is only necessary to look a'i tho earliest authorities on internatiinml law, in tho "Do Jnro iielli et Pacis " of Orotius ftn* example, to see that the law of nations is essentially a moral and, to some extent, a religious system. The appeal of (Srotius is almost as fre<|uent to nutnils and religion as to precedent, and no doubt it is these portions of tlu; book • • • which gained for it much of tho authority which it ultimately obtained. (Pago 47.) [From Wlii'uton, Intonmtionitl Law, Port I, Ch. I, sees. 4, It.] Tho principles and details of international morality, as distingniHiicd from international law, are to bo obtained not by applying to nutidiis the rules which ought to govern tho conduct of individuals, but by as- certaining what are the rules of international c luut which, on tlie whole, beat promote the general happiness of mank '. International law, as understood among civilized nations, may bo de- fined as consisting of those rules of conduct which reason deauccs, ns consonant to justice, from tho naturo of the society existing anion^' independent nations ; with such detinitions and modifications as may bo established by general consent. [Kent's Coiuiiiontaries, Part T, Lect. 1, pages 2-4.] • * ♦ The most useful and practical part of tho law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entii-ely from natural jurisprudence and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of tho nature and constitution of man, and tho same sanction of divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence ; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience. We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous suggestion that govern- ments are not so strictly bound by tne obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns. States or bodies politic are to be considered as moral persons, having a public will, capable and free to do right mid wrong, inasmuch as they are collections of individuals, each of wiiom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in pri- 11 APPENDIX TO PART FIRST. 15 IN limply boei\us(» F nivtiouH seen iinii iiHtitiiii'H nil to iiUMlcrii Htum of wliiit tern wiiH idcn- ICO in ciiUMiiij; frafteii on, niul n intoriiatioiml xample, to sec Hoiuu extent, n. mnt ti> nioniU portions of tlii! orifcy which it ,s distingnished rin>? tn nations uala, but by iis- , which, on tiic ons, mav be do- ison deunces, as existing among cations as may ,w of nations is, consent, and lis law entirely iiiving much of [cason, the same uno sanction of ality is deduced, he former every condnct itself Iplication of the llaw of nations, /e it; and it is it is obligatory public law from In that govern- Intb, justice, and 1 management of ]o be considered fco do right nnd each of whom same binding conduct in pri- vate life. Tho law of nations is a comnlox system, coninosed of varions ingredients. It c(mHifltN of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality and to tho relations and conduct of nations ; of p collection of usages, customs, and opinions, the growth of civilization and commerce, and of a code of conventional or positive law. In the absence of these latter regulations, tho intercourse and conduct of nations are to bo governed by j)rinciple8 fairly to be deduced from tho rights and duties of nations nnd the nature of moral obligation ; and wo have tho authority of the lawyers of anticjuity, and of some of the first mastera in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for (■onsidcring individual and imtional morality as parts of one and the same science. The law of nations, so far as it is founded on the principles of natural law, is eijually binding in every ngo and upon all mankind. • • • I iriilleck, Inteniittioniil Liiw, Ch. IT, nee. 13, piigc .')0, iiiid Hce. I«, |mt{e hi.] Skc. 1,3. Tt IB admitted by all that there is )io universal or immutable law of nations, binding upon the whole human nice, which all mankind in ail ages and countries have recognized and obej'ecl. Nevertheless, thei'c are certain principles of action, a certain distinction between right and wrong, between justice and injustice, a certain divine or natural law, or rule of right reason, which, in the words of Cicero, "is congenial to the feelings of nature, diffused among all men, uniform, eternal, commanding ns to our duty, and prohibiting every violation of it ; one eternal nnd immortal law, which can neither be repealed nor derogated from, addressing itself to all nations and all ages, deriving its authority from the common Sovereign of the universe, seeking no other lawgiver and interpreter, carrying home its sanctions to every breast, by tho inevitable punishment He inflicts on its transgressors." It itt to these principles or rule of right, reason, or natural law, that all otiier laws, whether founded on custom or treaty, must be referred, and iheir binding force determined. If, in accordance with tho spirit of this natural law, or if innocent in themselves, they are binding upon all who liave adopted them ; but if they are in violation of tliis law, and are iinjnst in their nature and effects, they arc without force. 'I'he principles nf natural justice, applied to tho condnct of states, considered us moral beings, must therefore constitute the foundation upon which tho customs, usages, and conventions of civilized and christian nations are erected into a grand and lofty temple. The character and dui-ability of tho structure must depend upon the skill of the architect and tho nature of the materials ; but the foundation is as broad ns the principles of justice, and as immutable as the law of God. Sic. 18. The first source fi-om which aro deduced the rules of conduct wliich ought to be observed between nations, is tho divine law, or principle of justice, whicli has been defined " a constant ond perpetual disposition to render every man his due." The peculiar nature of the society existing among independent states, renders it more diflBcu'.t to apply this prin- liple to them than to individual members of the same state; and there is, therefore, less uniformity of opinion with respect to tho rules of international law properly deduciblo from it, than with respect , the rules of moral law governing the intercourse of individual men. i^:, perhaps, more properly speaking, the test by which the rules positive international law are to be judged, rather than the pi i. -1. 1 ill rtlK- 11 ' f' to It of "ii m pins!*?« fl i\ \\y%. m \- 1 !. . .6 ARGUMENT OF THE UNITED STATES. aburce from which those rales themselves are deduced. (Jnstinian, Institutes, lib. 1, tit. 1 ; Phillimore. On Int. Law, Vol. I, sec. 2'A ; Dymond, Prin. of Morality, Kssay 1, pt. 2, ch. 4; Manning, Law of Nations, pp. 57-58 ; Cotollo, Droit des Gons, pt. 1 ; Heinocqius, Elemsnta Juris Nat. et Gent., lib. 1, cap. i, sec. 12.) t [Woolse^, : Introduc-tion Intornutional Law, ed. 1H92, soe. 15, page 14.] Skc. 15. * * * IJut what are the rational and moral grounds of international law V As we have seen, they are the same in general with those on which the rights and obligations of individuals in the state and of the single state towards the individuals of which it consists, repose. If we define natural jus to be the science which from the nature and d'j.sti- nationof man determines his external relations in .society, both the question, What ought to be the rights and obligations of the individual in the state ? and the question, What those of a state among states ought to be ? fall within this branch of science. That there are such rights and obligations of states will hai'dly be doubted by those who admit that these relations of natural justice exist in any case. There is the same reason why thuy should be applied in regulating the intercourse of states as in regulating that of individuals. TI ere is a natural destination of states, and a divine purpose in their existence, which makes it necessary that they should have certain functions and powers of acting within a certain sphere, which external force may not invade. It would be strange if the state, that power which defines rights and makes them real, which creates moral persons or associations with rights and obligations, should have no such relations of its own — should be a physical and not a moral entity. In fact, to take the opposite ground would be to maintain that there is no right and wrong in the intercourse of states, and to leave their conduct to the sway of mere con- venience. [Wolff, quoted by Vattel, pi-efaco to seventh American ed., j)age 9.] Nations do not, in their mutual relations to each other, acknowledge any other law than that which nature herself has established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual persons living together in the state of nature ; and, for that I'eason, we must apply to them all the duties and rights which nature prescribes and attributes to men in general, as being naturally born free, and bound to each other by no ties but those of nature alone. The law which arises from this application, and the obligations resulting from it, proceed from that immutable law founded on the nature of man ; and thus the law of nations certainly belongs to the law of nature ; it is, therefore, on account of its origin, called the natural, and, by reason of its obligatoiy force, the necessary, law of nations. That law is common to all nations ; and if any one of them does not respect it in her actions, she violates the common rights of all the others. But nations or sovereign States being moral persons and the subjects of the obligations and rights resulting, in virtue of the law oi nature, from the act of association which lias formed the political body, the nature and essence of these moral percons necessarily differ, in many respects, from the Ttature and essence of the physical individuals, or 11 (Justinian, . I, sec. '2'^• ining, Law nf jias, Elemyntii • )age 14.] ral grounds of in general with 1 the state and sts, repose. If ,ture and (le.sti- ;h the question. il in the state V §ht to be ? fall and obligations Bse relations of ason why they is in regulating purpose in their ertain functions irnal force may r which defines or associations 18 of its own — ake the opposite d wrong in the ly of mere cou- page 9.] cknowledge any shed. Perhaps, on the law of lo entertain this is true, can only xjgether in the to them all the ites to men in ch other by no this application, I immutable law itions certainly it of its origin, le necessary, law ,ny one of them i-igbts of all the ,nd the subjects law 01 nature, Ltical body, the differ, in many individuals, or V APPENDIX TO PART FIRST. 17 meo, of whom they are composed. When, therefore, we would apply to nations the duties which the law of nature prescribes to individual man, and tho rights it confers on him in order to enable him to fulfill his duties, since those rights and those duties can be no other than what are con- sistent with the nature of their subjects, they must, in their application, necessarily undergo a change suitable to the new subjects to which they are applied. Thus, we see that the law of nations does not, in everj' par- ticular, remain the same as the law of nature, regulating the actions of individuals. Why may it not, therefore, be separately treated of as a law peculiar to nations P [From " Deg Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime," par L. B. Hautefeuille, 1848. Vol. I, pages 46, 12 et seq, Tmnslntion.] He (God) has given to nations and to those who govern them a law which they are to observe towards each other, an unwritten law, it is true, but a law which he has taken care to engrave in indelible char- acters in tho heart of every man, a law which causes every human being to distinguish what is true from what is false, what is just from what is unjust, and what is beautiful from what is not beautiful. It is the divine or natural law ; it constitutes what I shall call primitive law. This law is the only basis and the only source of international law. By going back to it, and by carefully studying it, we may succeed in i-etracing the rights of nations with accuracy. Every other way leads infallibly to error, to grave, nay, deplorable error, since its immediate result is to blind nations and their rulei-s, to lead them to misunderstand their duties, to violate them, and too often to shed torrents of human blood in order to uphold unjust pretensions. The divine law is not written, it has never been formulated in any human language, it has never been pro- mulgated by any legislator ; in fact, this has never been possible, because such legislator, being man and belonging to a nation, was from that very fact without any authority over other nations, and had 7io power to dictate laws to them. This lack of a positive text has led some publicists to deny the e.\istence of the natural law, and to reject its application. They have based their actioji in so doing more particularly upon the different way in which each individual interprets that law, according as his organization is more or less perfect, more or less powerful, if I may thus express myself ; hence, it results that this law is different for each individual and for each nation, that is to say, that it does not exist. One of those writers, in support of his denial of the natural law, lays down the principle that man brings nothing with him into this world except feelings of pain or j)leasure, and inclinations that seek to be satislied, which can never be entitled to the name of laws, since they vary according to the organization of each individual, because they are by no means the same among all nations and in all climates.* These opinions would perhaps have some appearance of reason if the natural law were represented as a written system of legislation or as a complete code similar to those which govern huriiaii society and the mem- bers who compose it. Then it migtit be said with Moser: "What ' What is natural in man is his feelings of pain or pleasure, his inclinations ; but to call these feelings and inclinations laws, is to introduce a false and dangerous view and tn put language in contradiction with iteelf, for laws must be made for the very purpose of repreMing thaae incUnationa. • • • (.Toremy Bcntham, False Manner of Rcaooning in Mattert of Legialatiom.) I* it r m r' ' -i; • I u •Mi 18 ARGUMENT OF THE UNITED STATES >i«f „i is thiu law which is so much talked about ? Must we seek its principles in Gi-otiusorHobbes?'" Some one might ask to see that code which is destined to prevent all wars by foreseeing and condemning all unjust claims in advance. It is not thus, however, that the natural law is presented by those authors who have taken its teachings as the basis of their writings ; they have never sought to givo it a body or to put it in the form of a written law. What is true, and, in my opinion, incontestable, is that notions of what is just and what is unjust are found in all men ; it is that aK individuals of the human race that are in the enjoyment of reason have those notions graven upon their hearts, and that tliey bring with them into the world when they are born. These notions do not extend to all the details of law as do civil laws, but they have reference to all the most prominent points of law, if I may thus express myself. It can not be denied that the idea of property is a natural and innate idea. The same is the case with the idea whicli impels every individual to exercise care for his own preservation with that which forbids men to enrich themselves at the expense of others ; which imposes the obligatinn to repair a wrong done to one's fellow-man, to perform a promise niinlc. etc., etc. These first and innate notions, which every man brings witli him into the world when ho is born, are the precepts of the natural law ; and liuman laws are all the more perfect the nearer they approach to these divine precepts. The natural or divine law is the only one that can be applied among nations — among beings free from every bond and having no interest in common. From these general rules of divine law it is easy to form secondary laws having for their object the settlement of all questions that can arise among all the peoples of the universe. To cite but a single example, it is evident that from the principle of the law emanating from God, that every nation is free and independent of every other nation (which principle is recoji;- nized by all men), this consequence results, whicli is necessary and absolute, as is the principle itself, viz. : That every nation may freely exchange its superfluous possessions, trade with whomsoever it may choo.se to seek in order to make such exchange and to carry on such trade, without being under any necessity of applying for the permission of a third nation. The only condition that it must fulfill is that it must oiitain the consent of the other party to tht> contract. It need not trouble itself about the annoyance that such exchange may cause a third nation. provided such trade does not interfere with the positive and nntunil rights of such nation. This second rule gives rise to several others which are as clear and absolute as it is itself. In -a word, all international law is the outgrowtli of natural and primitive law. Viewed in this light, it seems to me ini- possiblo to dispute the existence of the primitive law ; it is a kind of mathematical truth, and I do not fear to reply to Moser; the principles of this law are not only in Grotius and Hobbes, but they are in the hearts of all men, they are in the heart of you who ask where they are found. International law is, therefore, based upon the divine and primitive law ; it is all derived from this source. By the aid of this single law. ] firmly believe that it is not only possible, but even easy, to regulate all relations *hat exist or may exist among the nations of the universe. This con .on and positive law contains all the rules of justice ; it exists ' (Moser, " Essai sur le droit des gens deg plus raoderne* de» nations europeennes en pnix ct en guerre, 1778-1780.') APPENDIX TO PART FIRST. 19 ■I ts principles in revent all wars It is not thus, vho have taken sought to give 9 trae, and, in at and what is he human race ren upon their they are born. civil laws, but r, if I may thus iral and innate ?^evy individual forbids men (o i the obligation , promise niitdi'. an brings witli lie natural law ; jproach to those )ne that can be 1 and having no I secondary laws can arise among iple, it is evident lat every nation nciple is recog- necessary and ion may freely ir it may choose on such trado, permission of a lis that it must iced not ti'oubie a third nation. vf and nntural Ire as clear and the outgrowtii jenis to me ini- it is a kind of the principles ;hey are in the [where they are and ju'imitivp ^is single law, 1 to regulate all If the universe. lustice; it exists Ions eiuropeennet en independently of all legislation of all human institutions, and it is one for all nations. It governs peace and war, and traces the rights and duties of every position. The rights which it gives are clear, positive, and abso- lute ; they are of such a natnre as to reciprocally limit each other without ever coming into collision or contradiction with each other; they are correlative to each other, and are coordinated and linked with the most perfect harmony. It can not be otherwise. He who has arranged all the parts of the universe in so admirable a manner, the Creator of the world, could not contradict himself. The natural law is, from its very nature, always obligatory. The treaties which recall its provisions and regulate their application must necessarily have the same perpetuity, since, even if they should cease to exist, the principles would not cease to be executory just as they were when the stipulations were in force. * * • Certain usages have become established among civilized nations with- out ever having been written in any treat}', and without ever having formed the subject of any special and express agreement. Thesis usages, few in number, in harmony with primitive law, whose application they serve to regulate, form a part of international law which might be called the law of custom ; it seems to me preferable to consider them as a part of secondary law. [From " Le Droit de la Nature efc des Gens," par le Baron Ac Pufendorf, traduit du Latin par .Tean Barbcyrnc. 5th ed., Vol. I, Book 2, Chap. .3, sec. 23, pages 24;) et xeq. Translation.] Finally, we must further examine here, whether there is a positive law of nations, diffovent from the natural law. Learned men are not well agreed on this subject. Many think that the natural law and the law of nations are, in point of fact, but one and the same thing, and that they differ in name only. Thus, Hobbes divuica the natural law into natural law of man and natural law of states. The latter, in his opinion, is what is called the law of nations. *' "^he maxims," adds he, " of both these laws are precisely the same ; but us states, as soon as they are found, acquii'e, to a certain extent, personal characteristics, the same law that is called natural, when the duties of private individuals are mentioned, is called the law of nations when roferor.ce is made to the whole body of a state or nation." I fully subscribe to thia view, and I recognize no other kind of volun- tary or positive international law, at least none having force of law, properly so called, and binding \^\^on nations as emanating from a superior. There is, in fact, no variance between our opinion and that of certain learned men who regard that which is in harmony with a reason- able nature as belonging to natural law, and that w hich is based upon our needs, which can not be better provided for than by the laws of socia- bility, as belonging to the law of nations. For we maintain simply that there is no positive law of nations that is dependent upon the will of a supprior. And that which is a consequence of the needs of human nature should, in my opinion, be refen-ed to the natural law. If we have not thought proper to base thia laAV upon the agroement of the things which are its object, with a reasonable nature, this was in order not to establish in reason itself the rule of the maxims of reason, and to avoid the circle to which is reduced the demonsti-ation of the natural laws by this method. Moreover, the majority of the things which the Roman jurisconsults and the great body of learned men refer to the law of nations, such In'' ■ii. M 'It. f>!3- »»••■ ■■: }■'■ i; '■'4 20 ARGUMENT OF THE UNITED STATES. •1' i ii k iV ■ ■ I I ii, "t'*'* . : M as tho diifei-eut kinds of acqaisitioii, contracts, and other similar tilings, either belong to the natural law or form part of the civil law of every nation. And, although in regai-d to thoge thinga which are not based upon the univeraal constitution of the human race, tho laWK arc the same amon^r the majority of the nations, no particular kind of law results from this, for it is not in virtue of any agreement or of any mutual obligation that these laws are common to several peoples, but purely and simply from an effect of the pai'ticnlar will of the legislators of each State, who have by chance agreed in ordering or forbidding the same things. Hence it is tlwit a single people can change these laws of its own accord without consulting others,, as has fi-equontly been done. We must not, however, absolutely reject the opinion of u modern writer who claims that the Roman juriscunsults understand by law of nations that law which concerns those acts which foreigners could per- form, and the business which they could validly transact in the states belonging to the Roman people, in contrast with tho civil law that was particular to Roman citizens. Hence it was that wills and marriages, whick were valid among citizens only were referred to civil law while contracts were considered as coming under the law of nations, because foreigners could make them with, citizens in such a manner that they were valid before the Roman courts of justice. Many also apply tho name law of nations • to certain customs, especially in matters relating to war, which are usually practiced by a Kind of tacit consent, among the i^ajority of nations, at least among those that pride themselves on having some courtesy and humanity. In fact, inasmuch as civilized nations have attached the highest glory to distinction in war; that is to say, to daring and knowing how skill- fully to cause the death of a large number of persons, which has in all ages given rise to many unnecessary oi- even upjust war.s, C()n(juerors, in order not to render themselves wholly, odious by their ambition, have thought propei', while claiming every right that one has in a just war — have thought proper, I say, to mitigate the horrors of war and of military expeditions by some appearance of humanity ^nd magnanimity. Hence the usage of sparing certain kii\ds of things and certain clai^ses of persons, of observing some moderation iu acts of hostility, of treating prisoners in a certain way, and other similar things. Yet while such customs seem to involve some obligation, based at least upon a tacit agreement, if a prince in a just war fails, to .observe them, provided that by taking an opposite course he does net violate natural law, lie can be accused of nothing more than a kind of discourtesy, in that he has not observed the received usage of those >yho regai-d war as being ore of the liberal arts ; just as among fencing masjliers, one who has not wounded his man according to the mips of art is regarded as an ignorant person. Thus, so long as none but just wars are caiTied on, the maxini.s of natural law alone may be consulted, and all the customs of other nations may be set at naught unless one is interested in conforming thereto, so as to induce the enemy to perform less rigorous, acts of hostility against us and against our party. Those, however, who uudert^l^fl an unjust war, do well to follow these customs, so as, to ma,intain at least isonio moderation in their injustice. As, however, these are hot reasons that are generally to be considered, they can coiistituto no universal law, obligatory upon all nations ; especially since in all things that ai-e only based upon tacit consent anyone may decline to.be bound by them by expi'essly declaring that lie will not be so bound, and that he is williijg that others should not be thereby bound in their dealings with him. APPENDIX TO PART FIRST. 2t r similtir things, iril law of every 3 not based upon the same among Its from this, for gation that these Jy from an effect a have by chance ence it is that a thout consulting iou of u modern •stand by law of gners could per- ct in the states vil law that was s and marriages, J civil law while nations, because lanner that they r also apply the latters relating to isout, among the iselves on haying he highest glory owing how skill- which has in all |vars, conquerors, Y theii- ambition, ine has in a just Tors of war and ,nd magnanimity, d certain classes bility, of treating Yet while such last irpon a tacit I them, provided natural law, ho rtesy, in that he ai-d war as being one who has not , as an ignorant 1, the maxims of of other nations ming thereto, so hostility against jrt^ke an unjust in at least some hot reasons that universal law, fs that ai-e only und by them by lat he is willipg lings with him. We observe that not a few of these customs have, in course of time been abolished, and that in some cases directly opposite customs have been introduced. In vain has a certain writer impugned our opinion as if it wore subver- sive of the foundations of the safety, advantage, and welfare of nations ; for all that is not dependent upon the customs just referred to, bat upon the observance of the natural law, which is u much more solid principle and one deserving of much greater respect. If its rules are carefully observed, mankind will not have much need of these customs. Moreover, by basing a custom upon the maxims of natural law, a much more noble origin is given it, and also much greater authority than if it were made to depend upon a mere agreement among nations. [Ortolan. Intcrnutional BuUh and Dij)lomafj of tho Swi. I'aric Chap. 4, page 71. Tranhlation.] I8t)4, Vol. 1, Book 1, It is apparent that nations not having any common legislator over them have frequently no other i-ecourse for determining their respective rights but to that reasonable sentiment of right and wrong, but to those moral truths already brought to light and to those which are still to be demon- strated. This is what is meant when it is said that natural law is the first basis of international law. This is why it is important that Governments, diplomats, and publicists that act, negotiate, or write upon such matters should have deeply (rooted) in themselves this sentiment of right and of wrong which we have just defined, as well as the knowledge of the point of certainty (point de certitude) where the human mind has been able to attain this oi-der of truths. But nations are not reduced only to that light, too often uncertain of human veason, for defining their reciprocal rights. Experience, imitation of accomplished piecedents, and long pi'actical usage habitually and generally observed add to it what is termed a custom which forms the rule of international conduct and from which flows on one or the other side positive rights (adroits). The binding foi-ce of custom is founded on consent, the tacit agreement, of nations. Nations have thus tacitly agreed among themselves, and they have bound themselves through this tacit agreement, for the i-eason that they have practiced it so long and so generally. The supremacy of custom is much more frequently exei'cised and much more extensive in international law than in private law ; pre- cisely because in international law there is no common legislator to restrain such supiemacy by formulating the rule of conduct in writ- ing. Custom is often conformable to the light of reason upon that which is right or wrong because it emanates from communities or col- lections of reasonable beings ; but frequently also it is contrary to it, because the reason of man, individual or collective, is subject to error ; finally, it tends more and more intimately to approach it, because the path of man, an essentially perfectible being, is a path of improvement and progress. It must be stated that treaties, far from justifying the exclusion of moral truths of what is right or wrong, among nations, which one wishes to deduce from them, precisely only obtain their binding force but from one or the other of those truths. It is because the natural senti- ment of right dictates to all that a regular agreement of indepen- dent wills between qualified persons on allowable subjects and cases binds the contracting parties to each other, it is therefore that treaties • .■>1 ', f' .* . .:4.^ r i m 22 ARGUMENT OF THE UNITED STATES. m\ I' I'! i\ I ■ I aro recognized as obligatory. They only draw, therefore, their funda- mental authority except from natural law, employing for an instant this term, the sense of which we have before explained. And it is also from natural law that iS gene ally deduced the idea of the necessary conditions to establish thp validity of treaties, and that of the legitimate consequences ensuing from their violation. [From "A Methodical System of Universal Law," by J. Q-. Heineccius (TunbuU's Translation), Vol. I, ed. 1763.] Sec. XII, page 8 : The law of nature, or the natural rule of recti.^ude, is a system of law promulgated by the eternal God to the whole human lace by reason. But if you would rather consider it as a science, natural morality will be rightly defined the practical habit of discovering the will of the supreme legislator by reason, and of applying it as a rule to every particular case that occurs. Now, because it consists in deducing and applying a rule coming from God, it may be justly called divide jurisprudence. Si;c'. XXT, page 14 : *Sinco the law of nature comprehends all the laws promulgated to mankind by right reason ; and men may be con- sidered either as jiarticulars singly, or as they are united in certain political bodies or societies ; we call that law, by which the actions of particulars ought to- be governed, the law of nature, and we call that the law of nations, which determines what is just and unjust in society or between societies. And therefore the ^^ecepts, or the laws of both are the same ; nay, the law of nations, is the law of nature itself, respect- ing or applied to social life and the affairs of societies and independent states. Skc. XXII, page IT) : Hence we may infer, that the law of nature doth not differ from the law of nations, neither in respect of its foundation and first principles, nor of its rules, but solely with respect to its object. Wherefore their opinion is groundless, who speak of, I know not what, law of nations distinct from the law of nature. The positive or secondary law of nations devised by certain ancients, does not properly belong to that law of nations we are now to treat of, because it is neither established by God, nor promulgated by right reason ; it is neither common to all man- kind nor unchangeable. [From Vattel on tlic Law of Nations, seventh Ameriuan ed., 1849.J There certainly exists a natural law of nations since the obligations ot the law of nature are no less binding ou states, on men united in political society, than on individuals. But, to acquire an exact knowledge of that law, it is not sufficient to know what the law of nature prescribes to the individuals of the human race. The application of a rule to various sub- jects, can no otherwise be made than in a manner agreeable to the nature of cacli subject. Hence, it follows, that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to tiie affairs and conduct of nations or so^ereigns. (Preface, page V.) The moderns are generally agreed in restricting the appelation of " Tlie Law of Xations" to that system of right and justice which ought to prevail between nations or sovereign states. (Preface, pagevi.) The necessary and the voluntary law of nations are therefore both established by nature, but each in a different manner ; the former as a sacred law which nations and sovereigns are bound to respect and follow in all their actions; the latter, ns a rule which the general welfare ecciua (TuribuU's APPENDIX TO PART FIRST. 23 and safety oblige them to admit in their transactions with each other. The necessary !a,w immediately pi'ocecds from nature; and that com- mon mother of mankind recommends the observance of the voluntary law of nations, in consideration of the state in which nations stand with respect to each other, and for the advantage of their affairs. (Preface, page xiK.) As men are subject to the law of nature — and as their union in civil society can not have exempted them from the obligation to observe those laws, since by that union they do not cease to be men, the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings. (Page lvi, sec. 5.) " We must, therefoi'e, apply to nations the rules of the law of nature, in order to discover what their obligations are, and what their rights : consequently, the law of nations is originally no other than the laiv of nature applied to nations." (Page J,vi, sec. 6.) [From Qt, F. von Martens, Law of Nations, page 2 of Introduction. (German.) Trans- lated by William Cobbet, 4th ed., 1829.] The second sort of obligations are those which exist between nations. Each nation being considered as a moral being, living in a state of nature, the obligations of one nation towards another are no more than those of individuals, modified and applied to nations ; and this is what is called the natural law of nations. It is universal and necessary, because all nations are goveraed by it, even against their will. This law, according to the distinction between perfect and imperfect, is per- fect and external (the law of nations, strictly speaking), or else imperfect and internal, by which last is understood the morality of nations. [Sbc. 2 of the Positive Law of Nations."] It is hardly possible that the simple law of nature should be sufficient even between individuals, and still less between nations, when they come to frequent and carry on commerce with each other. Their com- mon interest obliges them to soften the rigor of the law of nature, to render it more determinate, and to depart from that perfect equality of rights, which must ever, accoi'ding to the law of nature, be considered as extending itself even to the weakest. These changes take place in virtue of conventions (express or tacit) or of simple custom. The Avhole of the rights and obligations, thus established between two nations, form the positive law of nations between them. It is called positive, particular, or arbitrary, in opposition to the natural, universal, and necessary law. [Prom Jan Helenus Ferguson, Dutch, but appai'entl}' written in English, " Manual of International Law " (1884), Vol. I, Part I, Ch. Ill, sec. 21, page 66.] International law, being based on international morality, depends upon the state of progress made in civilization. Hence arises the diffi- culty of giving an all-comprehending definition to international law. What ought to be permanently understood among civilized nations as the main principles and the basis of their mutual intercourse, we have noted already to be the moral law of nature. But we have also seen that the spirit of law is the practical medium through which this general law influences humanity at all the stages of progress on the road to civilization. 'ft it , i \Ml 1. •■; K' sir'l 1" I 4 m u ARGUMENT OF THE UNITED STATES. i Investigating thuu this spirit of law, wq find the definition of intor< national law to consist in certain ruleg of crmduct which reaeoti, prompted by conscienc^e, deduces as consonant to justice, itiih such limitations and viodifications as may he established by general consent, to tiiset the exigencies of the present state of society as existing among nations and which modern ■vilized states regard as binding them in their relations with one another, with a force comparable in nature atul degree to that binding the cvnacientious person to obey the laws of his country. pFrom " Le Droit Public International Maritime," par Carton Testa' (Pbrtugnow), tmns- luted by II. Boutiron, 1886, Part I, Ghap. I, pa^eA 46 et wq.^ Force may constitute, in physical mattei-s, the snpeilonty of one in- dividual over another; but reason and conscience establish, in monil matters, other means which are crmtrolled by the notion of duty and right. Tt is the whole body of these precepts, Avhich are just, neces- sary, and immutable, for every reasoning being, and graven by God in the iiuman eonscience, that constitutes the natural or primitive law. The objei't of a law regulating the conduct of men is to impose mornl bbligr»itions or to authorize certain acta from which advantages may result. In the former case the linw establishes the duty ; in the latter it (;on- siders the right. The natural or primitive law, when it designates the duties that it imposes, at once establishes the correlative duties which aro its outgrowth, and which constitute the principles of natural or primitive law. Tile science of natural law is therefore based upon the principles of that intuitive law which, while giving the ability to practice that which is morally just, establishes the principles to be observed in the relations between one individual and another for the diffex'ent hypotheses of social life. Duty is a matter of pi-ecept, while right is optional ; yet right and duty are essentially correlative ; and in the reciprocal relations between one individual and another, that which constitutes a duty for one. establishes a right for another. The same is the case in the mutual relations of collective bodies. It is an axiom which results from the study of the moral nature of man that alone and isolated he cannot attain '"'S welfare, and that sociability is a condition which is by nature necessarj- to enable him to attain his hiehest advantage. This natui-al cause has produced the family, a social element which determines the foi-mation of nations. Now, natural law, which is essentially connected with human nature, and which prescribes certain principles that are to control the recip- rocal relations between one individual and another, is likewise and for the same reason applicable to the relations existing among collective bodies of individuals, which constitute so many moral entities. It is, therefore, the common law of association — that is to say, of nationali- ties. This application of the piecepts of natural law, which obliges nations to practice the same duties that it pi*e£cribes for individuals, consti- tutes the law of nations, which, when considered according to its origin (which is based upon natural laAv), is also called the primitive or necessary law of nations. Respect for the law of nations is consequently as obligatory among nations as is respect for natural law among individuals. > From the fact that tlie various civil societies which form nations or states, are independent, it results that the internal laws which cowsli- tute the public law of some can not be extended to the others — that is to API'ESDIX TO PAHT FIRST. 2ff lition of inter- eaaoii, prompted limitations and et the exigencies r? which niudiirn )ilh one another, the oi'nacientious (PioTtugnwK'), tmns- iorTty of one in- ablish, in moral on of (Intj- anil are just, neces- aven by God in • primitive law. o impose moral advantages may le latter it con- t designates the ive duties which s of natural or the principles of ictice that which [ in the relations it hypotheses <>f 1 ; yet right and elations between duty for one. in the mutual moral nature of elfare, and that to enable him to las produced the of nations. human nature, ontrol the recip- lilcewise and for among collective . entities. It 's, aay, of nalionah- ;n obliges nations dividnals. consti- ing to its origic itive or necessary obligatory among . form nations or p,ws which cousU- others— that is to say, the internal public law of oac'i nation or state can not bo regarded lis nn ext .'nial and absolute law, to whi^h others must submit. Hence it results that, in order to fix the limits at which the law of nations stops, it is absolutely necessary to liave recourse to the various elements that can give it birth. These elements are : 1. The general principles of natui-al law, constituting the primitive law which is the outgrowth of the presumable consent of nations ; 2. The law of custom, constituting tho secondary law that emanates from tacit consent ; 3. Conventi» of Natunil and Politic Law." Translated by Nugent, 1823, Part. II, Cliap. 6, pages 135, 136.] IV. All societies are formed by the concurrence or union of the wills of several persons with a view of acquiring some advantage. Henco it is that societies are considered as bodies, and receive the appellation of moral persons. * * * V. This being supposed, the establishment of states introduces a kind of society amongst them, similar to that which is naturally between men ; and the same reasons which induce men to maintain unfon among themselves, ought likewise to engage nations or their sovereigns to keep up a good understanding with one another. It is necessary, therefore, there should be some law among nations to serve as a rule for mutual commerce. Now this law can be nothing else but the law of nature itself, which is then distinguished by the name of the law of nations. Natural laic, says Hobbes, very justly (De Give, cap. 14, sec. 4), is divided into the 7iatural law of man and the natural late of states; and the latter is what toe call law of notions. Thus natural law and the law of nations are in reality one ant the same thing, and differ only by an external denomination. We must therefore say that the law of nations, properly so called, and considered &» a law proceeding from a &nperior, is nothing else but the law of f.jJ ''I ■m u } ;'l, -■;■ '1 '"■ • 1. '?:r.- tir-- i . :■ ■ :. % >»;;„ 1 .'i 11. '*l' '. '- ■' ' ^' P'-' .■ H i:-i i .1 fii • f ii i! .' i 20 ABGUMENT OF THE UNITED STATES. m % nature itself, not applied to men, considered Himply as such, but to nations, States, or their chiefs, in the relations they have together, and tlio several interests they have to manage between each other. VI. There is no room to question the reality and certainty of such a law of nations obligatory of its own nature, and to which nations, or the sovereigns that rule them, ought to submit. For if God by moans of right reason imposes certain duties between individuals, it is evident lie is likewise willing that nations, which are only human societies, should observe the same duties between themselves. (See ch. V, sec. 8.) ****** Sko. IX. • * • There is certainly an universal, necessary, and self-obligatory law of nations, which differs in nothing from the law of nature, and is consequently immutable, insomuch that the peoplo or sovereigns can not dispense with it, even by common consent, without transgressing their duty. There is, besides, another law of nations which we may call arbitrary and free, as founded only on an express or tacit convention, the effect of which is not of itself universal, being obligatory only in regard to those who have voluntarily submitted thereto, and only so long as they itlease, because they are always at liberty to change or repeal it. To this we must likewise add that the whole force of this sort of law of nations ultimately depends on the law of nature, which commands us to be true to our engagements. Whatever really belongs to the law of nations may be reduced to one or other of these two species ; and the use of this distinction will easily appear by applying it to particular questions which relate either to war, for example, to ambassadors, or to public treaties, and to the deciding; of disputes which sometimes arise concerning these matters between sovei'eigns. Sec. X. It is a point of importance to attend to the origin and nature of the law of nations, such as Ave have now explained them. For, be- sides that it is alwaye advantageous to form just ideas of things, this is still more necessary in matter of practice and morality. It is owing perhaps to our distinguishing the law of nations from natural law, that we have insensibly accustomed ourselves to form quite a different judg- ment between the actions of sovereigns and those of private people. Nothing is more usual than to see men condemned in common for things ■which we praise, or at least excuse in the persons of princes. And yet it is certain as we have already shown, that the maxims of the law of nations have an equal authority with those of the law of nature, and are equally respectable and sacred, because they have God alike for their author. In short, there is only one sole and the same rule of justice for all mankind. Princes who infringe the law of nations commit as great a crime as private people who violate the law of nature ; and if there be any difference in the two cases, it must bo charged to the prince's account, whose unjust actions are always attended with more dreadful consequences than those of private people. Other citations might be added almost indefinitely. The following refei-ences may be added : F. de Martens, Int. Law, Paris, 1883, Vol. 1, pages 19, 20 ; Li, R. P. Tupai-elli d'Azeglio, de la Compagnie de Jesus, Traduit de I'ltalien, deux ed. tome ii, ch. 2; Grotius De Jure, Belli ac Pacis, Prnleg; Heff- ter, Int. Law of Europe, page 2; Bluntschli, Le Droit Int. Codifie, pages 1, 2; Pasquale Fiore, book 1, ch. 1; Ahrens, Course of Natural Law and The Philosophy of Law, Vol. ii, book lit, ch. 1 ; M. G. Masse, Commercial Law in its Relations to the J aw of Nations, etc., Pans, 1874, book I, Lib. ii, ch. 1, page 33 ; Louis Renault, Introduction a rfittide du Droit International, Paris, 1879, pages 13, 14. 1 it' JURISDICTIONAL AND OTHER RIGHTS OVER BERIxNG SEA. 27 ' H The following SECOND. THE ACQUISITION BT BVS8IA OF JUBISDIOTIONAL 0& OTHEIt BiaHTS OVER BBBINO SEA AlH) THE TBANSFEB THEBEOF TO THE t7NITED STATES. The first four questions submitted to the High Tribunal by the Treaty are these : 1. What exclusive jurisdiction in the sea now known as the Behring's Sea, and what exclusive rights in the seal fisheries therein, did Russia nssert and exercise prior and up to the time of the cession of Alaska to the United States ? 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain ? 3. Was the body of water now known as the Behring 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 Sea were held and exclusively exorcised by Russia after said treaty ? 4. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Bering Sea east of the water boundary in the treaty between the United States and Russia of the 30th of March, 1867, pass unimpaired to the United States under that treaty ? The learned Arbitrators may have themselves had occasion to ob- serve, and, if not, it will at an early stage in the discussion of this con- troversy become manifest to them, that in the consideration by writers upon international law and by learned judges administering that law, of the authority which nations may exercise upon the high seas, two subjects, essentially distinct, have been habitually confounded, and have not, even at this day, been clearly separated and defined. One is the exercise of the sovereign right of making laws operative upon the high seas and binding as well upon foreigners as citizens, which right must necessarily be limited by some definite boundary line. The other is the protection afforded by a nation to its property atid other rights by reasonable and necessary acts of power against the citizens of other nations whenever it may be necessary on the high seas with- out regard to any boundary line. Much of this confusion has arisen and been fostered by the lack of precision in the meaning of words. The term "jurisdiction " has from the first been indifferently employed to denote both things. It has thus become a word of ambiguous import. [817] ' in iM y<>l 2» ARGUMENT OF THE UNITED STATES. V • I f These two subjects may appoar t, kfis h uintoviiil lioat'iii^', and was designoil to ht> umliraet'd by tlio urbiti-atioii. Tlio nucstion wliitliur I'lnjiorty rif^hts and intercstn t'xiKt, in one tliinji' ; this qiu'stion wliat tho nation to vliitli they l)olonj,' may, Hliort of an cxurcisu of tliu sovertign powor of uxflusivo Icgis- lnti(iii,d(i l)y way of protecting fiu'Mi, is auotliur ; and both aro l)y tlio treaty Bubniitted to tho Tril)unal. Should it appi-ar that llussia had for nearly a century actually aHHorted and exorcised an authority in IJerinff .Sea for tho purpose of protecting her scaling interests, and thut Great Britain had never resisted or disputed it, it would bo quite too late for her now to draw the reasonableness of it into (juestion, A studied effort is made in tho Case of (ireat Britain to make it ii])pear that the United States have shifted their ground from time to time in relation to the subjcet of this controversy, by first asserting that Bering Sea was marc claustiin; then by setting up an exclusive jurisdiction over an area with a radius of 100 miles around tho Fribilof Islands; and, lastly, by abandoning both those positions, and asserting a property interest in the herds of seals. This appears from the deliberate statement which closes the Seventh Ohnpter of the Case of CSreat Britain, as follows : Tho facts stated in this chapter show : That the original ground upon which the vessels seized in 1886 and 1887 were condemned, was that Bering Sea was a marr clansuvi, an inland sea, and as such had been conveyed, in part, by Russia to the United States. That this ground was subsequently entirely abandoned, but a claim was then made to exclusive jurisdiction over 100 miles from the coast-lino of ♦ he United States' territory. That subsequently a further claim has been .set up to tho effect that the United States have a property in and a right of protecti jn over fur-seals in nonterritorial waters. ft will be necessary, in order to expose tho error of this statement, to briefly review the several stages of the controversy, and draw attention to the grounds upon which the Government of the United States has taken its positions. It was in September, 188G, that the attention of that Government was first called by Sir L. S. Sackville-West, Her Majesty's mirlster at Wash- ington, to a reported seizure in Bering Sea of three British sealing vessels by a United States cruiser. Informatioti only respecting the affair was at first asked for, and considerable delay occurred in procuring it ; but, prior to September, 1887, copies of the records from the United States District Court of Alaska of the seizure and condemnation of these vessels had been furnished to the British Governmeut. It appeared [317] c2 ri H( 5 I K ".''< i-h I t ,.!,■; ■f •.- iti'l :■-! 1 80 ARGUMENT OF THE UNMED STATES. I'M from these that the seizures were made in Bering Sea at a greater distance than three miles from the land ; and thereupon Lord Salisbury, apparently assuming that the statutes of the United States which authorized the seizures, were based upon some supposed jurisdiction over Boring Sea acquired from Russia, addressed a note to Sir L. S. Sackville-West, in which he called attention to the Russian ukase of 1821, which asserted a peculiar right in that sea, the objections of the United States ai>d Great Britain to that assertion, and the treaties between those two nations, respectively, and Russia of 1824 and 1825, and insisted that these documents furnished evidence conclusively showing that the seizures were unlawful.' The United States Government did not then reply to the point thus r«'3cu ; but 'ts first attitude in relation to the matter was to suggest, by notes addressv'd to the different maritime nations, that a peculiar property interest w»s invi Ived, which might justify the United States Government in exercising an ^,xceptional marine jurisdiction ; but that inasmuch as the race of fur-seals was of gi-eat importance to commerce and to mankind, it seemed the part of wisdom for the nations to consider whether some concurrent measures might not be agreed to which would, at the same time, preserve the seals and dispose of the cause of possible controversy.- The first attitude, therefore, taken by the United States was the suggestion of a property interest, and of an exceptional maritime right to protect it by preventing the destruction of the seals ; but that all nations ought to unite in measures which would preserve them, and thus avoid occasion for con- troversy concerning the right. On the 22d of January, 1890, Mr. Blaine, who had succeeded Mr. Bayard as Secretary of State, had occasion to make answer, in a note to Sir Julian Pauncefote, to further complaints on the part of the British Government concerning the course of the United States cruisers in intercepting Canadian vessels while engaged in taking fur- seals in the waters of Bering Sea. In the oatset of his communication Mr. Blaine begins by pointing out that it is unnecessary to discuss any question of exclusive jurisdi^s over the waters of that sea, because there were other grounds upon which tbe course of the United States was, in his opinion, fully justified. He thus expresses himself : In the opinion of the President, the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that was in itself ' Cage of tlie Unit*;d States, Appendix, Vol. I, p. 162. ' Co»e of ths United StatCi, Appendix, Vol. I, p. 168. t f; 8. a greater distance isbury, apparently ih authorized the over Boring Sea Sackville-West, in Jl, which asserted Jnited States and jtween those two and insisted tlmt g that the seizures to the point thus was to suggest, by ft peculiar propertij States Government at inasmuch as the ) and to mankind, sider whether some would, at the same ossible controversy.- was the suggestion ght to protect it by ions ought to unite lid occasion for con- lad succeeded Mr. answer, in u note the part of the iie United States ;ed in taking fur- his communication lary to discuss any l^s over the waters rhich t're course of He thus expresses Lssels arrested and tit that was in itself |162. |l68. II JURISDICTIONAL AND OTHER RIGHTS OVER BERING SEA. 31 contra bonos mores, a pursuit which of necessity involves a serious and per- manent injury to the rights of the Government and people of the United States. To establish this ground it is i t necessaiy to argue the question of the extent and nature of the sovereignty of this Government over the waters of the Behring Sea ; it is nut necessary to explain, certainly not to define, the powers and privileges ceded b^ His Imperial Majesty the Empei-or of Russia in the treaty by which the Alaskan terri- tory was transferred to the United States. The weighty considei-ations growing out of the acquisition of that territory, with all the rights on land and sea inseparably connected therewith, may be safely left out of view, while the grounds are set forth upon which this Govern- ment res ^8 its justification for the action complained of by Her Majesty's Government. Mr. Blaine then proceeds to point out that long before the acquisitiou of Alaska by the United States the fur-seal industry had been estab- lished by Russia upon the Pribilof Islands, and that while she had control over them, her possession and enjoyment thereof werp in no way disturbed by other nations ; that the United Slates, since the cession of 1867, had continued to carry on the industry, cherishing the herd of fur-seals on those islands, and enjoying the advantage thereof ; that in the year 188G, vessels, mostly Canadian, were fitted out for the purpose of taking seals in the open sea, and that the number of vessels engar d in the work had continually increased ; that they engaged in an indiscriminate slaughter of the seals, very injurious to the industry prosecuted by the United States, and threatening the extermination, substantially, of the species. He insisted that the ground upon which Her Majesty's Government was disposed to defend these Canadian vessels, viz., that their acts of destruction were committed at a distance of more than three miles from the shore line, was wholly insufficient ; that to exterminate an animal useful tn mankind was in itself in a high degree immoral, bef id' ■•: being injurious to the interests of the United States ; that the '• law of the sea is not lawlessness," and that the liberty which it_ confers could not bo •' perverted to justify acts which are immoral in themselves, and which inevitably tend to results against the interests and against the welfare of mankind." It is, therefore, entirely clear that Mr. Blaine improved the first occasion upon which he was called upon to refer to the subject, to place the claims of the United States distinctly on the ground of a property iutereat, which could not be interfered with by other nations upon the high seas, by pi-actices which in themselves were essentially immoral and contraiy to the law of nature.* • ' Mr. Blaine to Sir Julian Paunrefoto, Ciwe of the Unitwt 8t«te», Appondix. Vol. I. p. 200. . . . . „ , . . . 'H ii. if, 1 ■ I '^y^ t/ W § V I; "I', t-!' f ^ !.«« \^i\i ■ 'm 32 AliGlUMEJifT OF THE UNTTEP STATER. This corrcspontlenco was t'ollowcrt by further diplomatic commnnicafinns looking to iho catablishnu'iit of regulations designed to restrict iielnLric sealing ; and on the 22d of Mnv, l8iK), tlio ifarquis of Salisbury addrcsstil a note to Sir Julian Panncofote, in the nature of an answer to the iui((> last above mentioned from Mr. Blain(>, and it appears from this, very clearly, that )io did not misunderstand the positions taken by Mr, Uliiine. He thus exprcrses himself : Mr. Blaine's note defends the a(!ts ( omphiincd of by Her ^Ii.jstys Government on the following ground : 1. That " the Canadian vessels arrestert and detained in the Belirint,' 8t!i were engaged in a pursuit that is in itself roiifra hnnon morci a [imsiiii which of necessit}' involves a serious and jtermanent injury to the li^lits of the Government and people of the United States." 2. That the fisheries had been in the undisturbed possession and iimler the exclusive control of Russia from their discovery until li<> < I'ssiin of Alaska to the United States in 18(57, and that from this o',, c.\ '< uiitii 1886 they had also I'emained in the undisturbed posse.isi'. of" U:' Jiiited States Government. 8. That it is a fact now hold beyond denial or doubt that the takiiiLr of seals in the open sea rapidly leads to the extinction of the species, ami thai therefore nations not possessing the territorv upon which seals e»n iuciiaso their numbers by natural growth should refrain from the shiughter of tlioiu in the open sea. Lord Salisbury, in this note, insists that whatever may be tlio value of the industry to the United States, they would not bo authorized in preventing by force the jiractice of pelagicr sealing; but ho does not clioo3o to enter into any discussion of the tinestion whether the indiseriminate slaaghter of seals manifestly tending to the extermination of the sjieeies could be justified. His lordship, however, in answer to the allege'' exclusive monopoly of Russia in the fur-seal industry, referred to t' Russian ukase of 1821, as if Mr. RIaino had insisted upon claims siuiii ■ ti those advanced in that document, and quoted some language fioni a communication of Mr. .lohn Quincy Adams, wlum Secretary of State, to the United States minister in Russia, contesting the pretension set up in tiie ukase.i Meanwhile further diplomatic communications were taking ,iiai'c in relation to tho establishment of" restrictions designed to limit the prartio? of pelBgic sealing and j>rovent, in s..me measure at least, its destrnttivi' operation; and it would seem that these effo.-ts had Ijecn nearly suec.s- '1, and would have been entirely consummated, but for objections inteip . •! on the part of Canada.- ' '• •' ■ ' Case of tlio Unit<>d Statts, Appoii Us, V.J. 1. ,.. ""J?. ' Cb8o of tho United States, Appo' ..r Vol : , nr ?12-224. !r-'>,1 ic communications to i-estricfc poliiffic ftlisbnry aildrcsscil niiswcr to tlio iiiit(> ra £i"om tliifi, very ken by Mr. IJliiiiio. by Hor ^Ii.j sty's in tlie lielirintj 8i'ii f)S mores !». |Mii'suil ury to tho ri^'lits of jsscssion and iiiuici' urtil I 'i<> I I'ss.MU of 6va .■ o\ > '< until ak\i '. of 'L ' United ; that the takinir '^f he spci'ies, iuul tluii h seals otm increase iC slaughler of tiiem may bo the value of ; be authorized in ho does ntit cliooso the indiseriniiimte at ion of the sitecies or to the aliesje'' •V, rel'fi'red \n >'■ on claims sir.il. ■ u lauguntre from ii •otary of State, to iretension set up in •0 taking I'iaee in imit tin? pi'aetioe of ast, its desti'UctiTO n nearly slice. s-. '!, )joction8 iutei(J' .^'! '12-224. JURISDICTIONAL AND OTHER RIGHTS OVER BERING SEA. 33 On the 80th of June, 1890, Mr. Ulaine addressed a note to Sir Julian Pannc'efote in which lie referred to Lord Salisbury's note, above mentioned, of May 22, and especially to the passage quoted in it from the communica- tion of Mr. John Quincy Adams to the \merican minister in Russia, in which the pretensions advanced by Russia in the ukiise of 1821 wore resisted. Ho endeavored, in an arguraent of some length, to show tha*, the claim set up by Russia in 1821 to a peculiar jurisdiction liad not been surrendered by the treaties of 1821 and 1825 with the United States and Great Britain, respectively, so far as related to Bering Sea, and had not been otherwise abandoned. Ho insisted t'-.at the ukase of 1821, while not designed to declare the Bering Sea to be mart' clausiim, assumed to exclude, for certain purposes at least, other nations from a space on the high seas to the dist^^ance of 100 miles from the shore, and that tin's pretension on the ]>art of Russia had never boon sui rendered or abandoned, and had been, in substance, acquiesced in by other nations, and in particalw by Great Britain.' The views t'uaz c::pressed by Mr. Blaine, which were really not essential Xo the main controversy, and were drawn from him by the roferenco vrhich Lord Salisbury hiid made to the Riis.sian ukase of 1821, and the subsequent protests, negotiations, and treaties between Russia and the United States and Gi'eat Britain, rospec'ively, .were responded to in a note from Lord Salisbury to Sir Julian Paiincefote of August 2, 1890.' In this note his lordship considered the subject at much length, and argued that, on genei-al principles of international law, no nation can rightfully claim jurisdiction at sea beyond a marine league from the coast. This general pi-inciple, so far as it is one, had never boon denied hyMr. Blaine, his position being that there might be, and in some instances were, cases which called for exceptions from the operation of the general rule, so far, at least, as to give a nation a right to exclude, for certain purposes, foreign vessels from a belt of the sea much wider than three miles. On the 17th of December, 1890, Mr. Blaine, in a note to Sir Julian Pauucefote,^ referred to the note of Lord Salisbury, last mentioned, and reasserted his position. The controversy respecting the claims of Russia now became, substantially, whether, in the treaties of 182t and 1825 between the United Stales and Great Britain, respectively, ' Crtso of the United States, Appendix, Vol. I, p. 221. - Case of the United 8tat<.'», Appendix, Vol. I, p. 242. •* Case of thp United ytateu, Appeotiix, Vol. I, p. 2t>3, flkiVi fKt \ m. ,4' I I IT e i" r' .jti 34 ARGUMENT OF THE UNITED STATES. Mil \ * li: I. the term " Pacific Ocean," as used in the treaties, vas intended to include tlie body of water now known as Bering Sea. If it were true, as Lord Salis- bury contended, that Bering Sea was thus included, then it would follow that the pretensions made by Russia in the ukase of 1821, so far as they were surrendered by the treaties above referred to, were surrendered as well in respect to Bering Sea as in i^espect to the Pacific Ocean south of that sea. If, on the other hand, aa Mr. Blaine contended, Bering Sea was not intended to be embraced by the term " Pacific Ocean," it would follow that the assertions of jurisdiction in Bering Sea made by the ukase of 1821 had received a very large measure of acquiescence both from Great Britain and the United States. Jint, in the opinion of the undersigned, the point, though not whollv ur t, is, comparatively speaking, unimportant. It was never put forwa. by the United States as the sole ground, or as the principal ground, upon which that Government rested its claims. Notwithstand- ing the large space devoted to it in the diplomatic discussions, it came in incidentally only. It is not at all improbable that Lord Salisbury preferred to draw the discussion as much as possible away from the question of property interests, and away from the charge that pelagic sealing was a practice which threatened a useful i-ace of animals with extermination, and was wholly destitute of support upon any grounds of reason. It may be true also that Mr. Blaine in some measure magnified the effect which might flow from the pretensions made by Russia in the ukase of 1821, so far as they were acquie.sced in by Great Britain and the United States. But what is absolutely certain is that the original attitude taken by the United States, as already mentioned, followed up and reasserted in more than one diplomatic communication, was never, at any time, in the slighte.st degree abandoned or changed, and this is conclusively evidenced b}' the last communication of Mr. Blaine, already referred to. Near the close of that note' he says : In the judgment of the President, nothing of importance would he settled by proving that Great Britain conceded no jurisdiction to Russia over the seal fisheries of the Bering Sea. It might as well bo proved tliat Russia conceded no jurisdiction to England over the river Thames. By doing nothing in each case, everything is conceded. In neither case is anything asked of the other. " Concession," as used here, maans .simply acquiescence in the rightfulness of the title, and that is the only form of concession which Russia asked of Great Britain or which Great Biitain gave to Russia. ' Cage of the United States, Appendix, Vol. I, p. 285. I I ip s. [fended to include me, as Lord Salis- t would follow that ( far as they were endered as well in south of that sea. a was not intended Id follow that the ikase of 1821 had Great Britain and ihough not wliolly Ifc was never put r as the principal IS. Notwithstand- iscussions, it came lat Lord Salisbury le away from the harge that pelagic e of animals with on any grounds of measuro magnified by Russia in the at Britain and the JURISDICTIONAL AND OTHER RIGHTS OVER BERING SEA. 35 The second offer of Lord Salisbury to arbitrate, amounts simply to a submission of the question whether any country has a right to extend its jurisdiction more than one marine league from the shore. No one disputes that, as a rule ; but the question is, whether there may not be exceptions whose enforcement does not interfere with those highways of commerce which the necessities and usage of . the world have marked out. * * * The repeated assertions that the Government of the United States demands that the Bering Sea be pronounced mare clausum, are without foundation. The Government has never claimed it and never desired it. It expressly disavows it. At the same time the United States does not lack abundant authority, according to the ablest exponents of inter- national law, for holding a small section of the Bering Sea for the protection of the fur-seals. Controlling a comparatively restricted area of water for that one specific purpose is by no means the equivalent of declaring th sea, or any part thereof, viare clausum. Nor is it by any means so serious an obstruction as Great Britain assumed to make m the South Atlantic, nor so groundless an interference with the common law of the sea as is maintained by British authority to-day in the Indian Ocean. The President does not, however, desire the long postponement which an examination of legal authorities from Ulpian to Phillimore and Kent would involve. He finds his own views well expressed by Mr. Phelps, our late minister to England, when, after failing to secure a just nn-angement with Great Britain touching the seal fisheries, he wrote the following in his closing communication to his own Government, September 12, 1888 : " Much learning has been expended upon the discussion of the abstract question of the right of mare clausum. I do not conceive it to be applicable to the present case. " Here is a valuable fishery and a large and, if properly managed, perma- nent industry, the property of the nation on whose shores it is earned on. It is pi'oposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries intei'ested, to destroy tin's business by the indiscriminate slaughter and extermination of the animals in question, in the open neighboring sea, during the period of gestation, when the common dictates of humanity ought to protect them, were there no intei-est at all involved. And it is suggested that we are prevented from defending ourselves against such depredations because the sea at a certain distance from the coast is free. " The same line of argument would take under its protection piracy and the slave trade when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that can not be allowed to be done on the open sea with impunity, and against which every sea is mare clausuru; and the right of self-defense as to person and property prevails there as fully as elsewhere. If the fish upon Canadian coasts could be destroyed by scattering poison in the open sea adjacent, with some small profit to those enpaged in it, would Canada, upon the just principles of international law, be held defenseless in such a case ? Yet that process would be no more destructive, inhuman, and wanton than this. " If precedents are wanting for a defense so necessary and so proper, it is because precedents for such a course of conduct are likewise un- known. The best international law has arisen from precedents that have been established when the jnst occasion for them arose, undeterred by the discussion of abstract and iniiHeqnate rules.*' m km i I'" Vri'.* ir.f 1-* '& If m i ■ u-;|l. 36 ARGUMENT OF THE UNITED STATES. The design of the foregoing review of the principal points made in the diplomatio discnssions which preceded the Treaty under which this Tribunal was constituted has been to show that the main grounds upon which, from first to last, the claims of the United States were based were the property and industrial intei'ests of that nation; and that tlie purpose of Mr. Blaine, in taking up the discussion tendered by Lord Salisbury in relation to the ukase of 1821 and the subsequent treatien of 1824 and 1825, was simply to point out that the assei'tions by Russia of exceptional authority over certain portions of the high seas were, so far as respects Bering Sea, not only never abandoned by her, but were practically conceded and acquiesced in by Great Britain, and that, consequently, the United States could assert against Great Brit- ain a right to protect their seaJing interests, not only upon general principles of international law, but upon the additional and reinforc- ing ground that Bussia, in order to defend the same interests, had asserted and exercised an exceptional authority over Bering Sea for nearly half a century, with the acquiescence of Great Britain, and that any right thus acquired had passed to the United States by the cessioa of Alaska. In the view of the underaigned, Mr. Blaine was entirely successful in establishing his contention that the assertion by Bussia of au ex- ceptional authority over the seas, including an interdiction of the approac- of any foreign vessel within 100 miles of certain designated shores, while abandoned by her treaty with Great Britain in 1825 as to all the northwest coast south of the 60th parallel of north latitude, was, so far as respects Bering Sea, and the islands thereof, and the coast south of the 60th parallel, never abandoned by her, but was acquiesced in by Great Britain. And if the undersigned believed the point to be one upon which any of the claims of the United States really depended, they would deem it their duty to again present the argument of Mr. Blaine, together with further suggestions which would reinforce it. But they greatly prefer to place the case of the United States upon its real and original grounds, which, as it seems to them, admit of no dis- pute, and not to rely upon arguments which, however sucoe3sf al in their avowed purposes, are yet, perhaps, to be deemed somewhat aside from the main question. They prefer to submit to this Tribunal that Bussia had for nearly a century before the cession of Alaska established and maintained a valuable industry upon the Pribilof Islands, founded npon a clear and indisputable property interest in the fur-seals which ' * 1 1 JURISDICTIONAL AND OTHER RIGHTS OVER BERING SEA. 37 make those islands tlieir breeding places, an industry not only profit- iible to herself, but in a high degree useful to mankind ; that the United States since the cession have, upon the basis of the same property interest, carefully maintained and cherished that industry, and that no other nations, or other men, have any right to destroy or injure it by prosecuting an inhuman and destructive warfare upon the seal in clear violation of natural law ; and that the United States have full and per- fect right, under the law of nations, to prevent this destructive warfare by the reasonable exercise of necessary force wherever upon the seas such exercise is necessary to the protection of their property and indus- try. The undersigned therefore submit the question concerning the assertions of maritime authority by Russia and the acquiescence therein by Great Britain upon the argument of Mr. Blaine, contained in his notes to Sir Julian Panncefote of Juno 30, 1890,^ and December 17, 1890.- ■ ' '• • .^ -• . . - , • ■:. It is, however, i.nportant that the real nature of these' assertions should not be misunderstood. The words "exclusive jurisdiction in Bering Sea " are used in the questions formulated in the treaty by way of description of the claims of Russia, and the same, or similar, lan^ guage will be found in various places in the diplomatic argument to have been employed in a like ' sense. From this it might be thought that what Russia was supposed to have asserted, and what the United States claimed as a right derived from her, was a sovereign jurisdiction over some part of Bering Sea, making it a [part of their territory and subject to their laws. This would be entirely erroneous. Russia never put forward any such pretension. Her claims were that certain shores and islands on the Northwest coast and in the Pacific Ocean and Ber- ing Sea were part of her territoi-y, acquired by discovery and occupa- tion, upon which she had colonial establishments and fishing and sealing industries. She chose, in accordance with the policy of the time, to confine the right to trade with these colonies, and the fishing and fui'-gathe 'ing industries connected with those territorial possessions, to herself. Concerning her right to do this thei*e never vas, or could be, any dispute. So far as her pretensions to exercise an exceptional maritime authority were concerned, they wei-e limited to such measures as she deemed necessary for the protection of these admitted rights. She did not claim to make laws for the sea. The particular assertion of authority which was the interesting point in the discussion between > Case (d tho United States, Appendix, Vol. I, p. 224. " Ibid, p. 263. m mi ■I'll '■i -ill m 'U wi 11 Iff) rt'- ; f r'^- u ■ i * i^" k 1- li ■iv A*» •^ . '.f f!i^ • r-'. ).■ i i lit i P. I 11 88 ARGUMENT OF THE UNITED STATES. i.ii ^fr. Blaine and Lord Salisbury was the interdiction to foreif^n vessels of an appiHiach to the shores and islands referred to nearer than 100 miles. This, of course, was no assertion of exclusive jurisdiction, or of jurisdiction at all, in the strict sense of that term. It was the assertion of a right to protect interests attached to the shore from threats and danger of invasion. It was in no wise different iii, its nature from a multitude of assertions of a right to exercise national authority over certain parts of the sea made by different nations before and since, and by none more frequently or extensively than by Great Britain. It was an assertion of power essentially the same as that of which the hovering laws are instances. The extent of tlio interdiction from the shore — 100 miles — might have been extreme, although this is by no means certain. A distance which would bo excessive in the case of a frequented coast, the pathway of abundant commerce, might be entirely reasonable in a remote and almost un- inhabited quarter of the globe to which there was little occasion for vessels to resort except for the purpose of engaging in prohibited trade, Tt must be remembered that the interdiction was not made for the pur- pose of preventing, or restricting, pelagic sealing. That pursuit had not oven been thought of at that time. Had that danger then threatened the sealing interests of Russia a much moi'e extensive restriction might justly have been imposed. As already observed it is n6t intended by the undersigned to inti- mate that tlie question what authority over Bering Sea Russia claimed the I'ight to exercise and how far the claim was acquiesced in by Great Britain, has no importance in the present controversy ; but to point out the nature of that claim, and to indicate its appropriate place in the present discussion. It has a very distinct significance as showing that assei'tions on the part of Russia of a right to defend and protect lier colonial trade and local industries by the reasonable exercise of force in Bering Sea were assented to by Great Britain during the whole period of the Russian occupation of Alaska, and, by consequence, that the present complaints of the latter against a similar exercise of power by the United States are wholly inconsistent with her former attitude and admissions. Again n'fori'ing to the bivad distinction between that power of sovereign jurisdiction exorcised oy a nation over nonterritorinl waters, which consists in the enactment of municipal laws designed to be o])era- tive upon sucli waters against the citizens of other nations, and tlio exercise of authority and power over such waters limited to fhe ner-es- :8. to foreijjfn vessels to nearer thnn lusive jurisdictioii, t term. It was ed to the shore wise different in » exercise national different nations extensively than lentially the same 'he extent of the re been extreme, which would bo iway of abundant and almost un- little occasion for prohibited ti-ade, nado for the pur- at pursuit had not lien threatened the ction mipht justly JURISDICTIONAL AND OTHKll RKfllTS OVER BERING SEA. .19 sary defense of its property and local interests, tho undersigned insist that the former has no material place in this discussion. Russia never insisted upon it so far as respects the regions to which our attention is directed, or the industry of scaling which is here a subject of discus- sion. The United States never have claimed it and do not now claim it. Themselvea a maritime nation, they assert, as they always have asserted, the freedom of the seas. But they suppose it to bo quite certain that the doctrine of the freedom of the seas ha:i never been deemed by civilized nations as a license for illegal or immoral conduct, or ns in any manner inconsistent with the general and necessary right of self-defense above mentioned, which permits a nation to protect its property and local interests against invasion by wrongdoers wherever upon the sea tho malefactors may be found. This right and the grounds and reasons upon which the present case calls for an application of it, are directly embraced by the Fifth Question which is submitted to the Tribunal, and are, in the opinion of the undersigned, the proper subjects of principal attention, and they will elsewhere, in the appropriate place, devote to them that deliberate and full consideration which their importance demands. We may, however, briefly observe here, that according to the best autho- rities in international law the occupation of a new country which is suffi- cient to give to the occupying nation a title to it depends very largely upon the nature of the country and the beneficial uses which it may bo made to subserve. In the case of a fruitful region capable of supporting a numerous population, it might not be allowable for a nation first discover- ing it to maintain a claim over vast areas which it did not actually occupy and attempt to improve ; but where a remote and desolate region has been discovered, yielding only a single or few products, and all capable of being beneficially secured by the discovering nation, a claim to these products asserted and actually exercised, is all the occupation of which the region is susceptible and is sufficient to confer the right of property ; and that Avhatever authority it may be reasonably necessary to exei-cise upon the adjoining seas in order to protect such interests from invasion may properly be asserted. Says Philliraore, who seems to have under- stood the Oregon territory as embracing the whole northwest coast of North America : A similar settlement was founded by the British and Russian Fur Com- panies in North America. The chief portion of tho Oregon Territory is valuable solely for the fur-bearing animals which it r>roduces. Various eatablishmeuts in •/I Ik I pi pen to pursuit and tion. This position lass of wild animals, subject of ownev- [f the United States la^MJvt', are not suffi- in respect to the juany cases, an liethcr rtanie, and that the ,0 the other is by no le regarded as pro- [he words wild and speech the nature ither they are or PROPERTV IN Tllh} ALASKAN SKA I. HERD. 43 arc not the subjects of property, yot there are many animals which lie near to tho boundary imperfectly drawn by thcso terms, and in respect to which tho question of property can bo determined only by a closer inquiry into their nature and habits, and ono nioro particularly guided by tho ronoiderations upon which the institution of ]»roperty stands. If the question were asked why a tamo or domcstio animal should bo property and a wild ono not, these terms would bo found to supply no reasons. Tho answer would be because tamo ani- mala exhibit certain qualities, and wild ones other and different qual- ities ; thus showing that tho question of property depends upon tho characteristics of the animal. This view seems to be correct upon its more statement, and it will be found to bo the ono adopted and acted upon by the writers of recognized authority upon the subject of pi'operty. It would bo sufficient for tho present pnr])oso to refer to tho language of Chancellor Kent upon this point. No dissent from it will anywhere be found. He says : Animals ferce naturce, so long as tiioy are reclaimed by tho art and power of man, are also the subject of a qualified property ; but when they are abandoned, or escape, and return to their natural liberty and ferocity, without the animus revertetidi, the property in thorn ceases. VVJiile this qualified property continues, it is as much under the protec- tion of law as any other property, and every invasion of it is redressed in the same manner. The difficulty of ascertaining with precision tho a])plication of the law arises from the tvant of some certain dvUrviinate standard or rule by which to determine when an animal is J'ertv uel domitcB naturce. If an animal belongs to tho class of tamo animals, is, for instance, to the class of horses, sheep, or cattle, ho is then a subject clearly of absolute property ; but if he belongs to the class of animals, which are wild by nature, and owe all their temporary docility to the discipline of man, such as deer, fish, and several kinds of fowl, then tho animal is a subject of qualified property, and which continues so long only as the tameness and dominion remain. It is a theory of some naturalists that all animals were originally wild, and that such as are domestic owe all their docility and all their degeneracy to the hand of man. This seems to have been the opinion of Count Buifon, and he says that the dog, the sheep, and tlio camel have degenerated from the strength, spirit, and beauty of their natural state, and that one principal cause of their degeneracy was the pernicious influence of human power. Grotius, on the other hand, says that savage animals owe all their untamed ferocity not to their own natures, but to the violence of man ; but the common law has wisely avoided all perplexing questions and refinements of this kind, and has adopted the test laid down by Pufl'en- dorf, ' by referring the question whether the animal be wild or tame to our knowledge of his habits derived from fact and experience. To this citation we may add the authority, which will not be disputed in this controversy, of two decisions of the court of common pleas in i-li % ' " 1 m • ' *T# J, ; s« l> i\n ' Law of Nature and Nations, Lib. 4, Chap. 6, auc. 5. [317] 3 Kent's Corn., Tol. II, p. 31S. 1> 44 ARGUMENT OF THE UNITED STATES. I y t" Great Britain. In the case of Davics vs. Powell (Willes, 46) the (jius- tion was whether deer kept in an inolosnre were distrain able for rciif. The court took notice of the nature and habits of these animals as affected by the cair and industry of man a k1 the nses tvhich thnj wnr made to subscrrc ; and it observed that, while they were formerly kept principally for pleasure and not for profit, the practice had arisen of caring for them and rearing and selling them, and, in view of these facts, declared that they had become " as much a sort of husbandry as horses, cows, sheep, or any other cattle." And, moi-e recently, the question was made in the case of Moi'gan r. The Earl of Abergavenny (8 C. B., 768), whether deer thus kept passed tipon the death of the owner tu the heir or to the executor ; that is to say, whether they were iwrsonal property or chattels real. Kvidcncc was received upon the trial showing the nature and habits of the ani- n.iils; that they were cared for and fed and selections made from them for slaughter ; and upon this evidence it was left to the jury to say whether they were personal property. The jury found that they were ; and the court upon a review of the case approved the vei'dict, holding that the question was justly made to depend upon the facts which had been given in evidence. Inasmuch as the present controversy upon this point is one between nations, it can not be determined by a reference to the municipal law of either, or by the municipal law of any nation. The rule of decision must be found in international law ; and, as has already been shown, if there is no actual practice or usage of nations directly in point, as there is not, recourse must be had to the principles upon which international law is founded— that is to say, to the law of nature. But the question whether a particular thing is the subject of property, as between nations, is substantially the same as the question Avhether the same thing is property as between individuals in a particular nation, Xow, it .so happens that this latter question has been determined, whenever it has arisen, not by any exercise of legislative power, but by an luloption of the rule of the law of nature. And the municipal jurisprudenco of all nations, proceeding upon the law of nature, is everywhere in sub- stantial accord upon the question what things are the subject of prop- erty. That jurisprudence, therefore, so far as it is consentaneous, may be invoked in this controversy, as directly evidencing the law of nature, and, therefore, of nations. Proceeding to the examination of the doctrines of this municipal PROPERTY IN THE ALASKAN SKAL HEJlD. 45 3, 4G) the (juts- dnable for rent, iiesG animals as U'hich they ici'ir e formerly kept ;e had arisen of n view of these of husbandry as ISO of Morgan r, deer thus kept le executor ; that s real. Kvidence abits of the ani- ido from them for ry to say whether y were ; and the holding that the which had heen t is one between municipal law of rule of decision y heen shown, if n point, as there ich international ut the question between nations, 3 same tiling is n. Now, it so ed, whenever it by an iiiloption lurisprudeneo of ■ywhere in sub- jsubject of prop- lisentancous, may le law of nature, this municipal jurisprudonc'C, it appears, iiumediatcly, that tliero is no rule or prin- ciple to the eifect that no wild animals lire the snbject of property. On the contrary we fiiul that from an early period in the Roman law a distinct consideration has been given to the question, what animals, ocmmonly designated as wild, are the subjects of property, and to what extent. And the doctrine established by that law, and adopted, it is believed, whei'over that law has been received as the basis of municipal jurisprudence was also carried into the jurisprudence of England at the first stage of its development, and has ever since been i-eceiv-d and acted upon by all Knglish-speaking nations. It is well e.xpressed in the Commentai'ies of ]Jlackstone :' II. Other animals that are not of a tame and domestic nature arc either not the objects of property at all or else fall under our other division, namely, that of quirlijied, limited, or special property, which is such as is not in its nature permanent, but may sometimes subsist and at other times not subsist. In discussing which subject, I shall, in the fii'st place, show- how thi.s species of property may subsist in such animals as are fenv nature, or of a wild nature, and then how it may subsist in any other things when under particular circumstances. First, then, a man may be invested with a (|nalified, but not an absolute property in all creatures that arc /V/vf natunv, either per industriam, propter inipotentiavi, or propter privilegiiim. 1. A qualitied property may subsist in animals ferrv. nafiirce, 2^^>' i'^dus- triam hominis, by a man's rcclaitning and making them tame by art, indus- try, and education, or bj' so confining them within his ovvu immediate power that they can not escaf)e and use their natui-al liberty. Ami un- der this head some writers have ranked all the former species of ani- mals we have mentioned, apprehending none to be originally and nat- urally tame, but only made so by art and custom, as horses, swine, and other cattle, which, if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and arc only made do- mesti;r by use and familiarity, and are, therefore, say they, called niaii- sutta, quasi manni assueta. But however well this notion may bo founded, absti-actly considered, our law apprehends the most obvious distinction to be between such animals as we generally see tame, and are therefore seldom, if ever, found wa-idering at large, which it calls domltii' naiurw, and such creatures as ar ■ usually found at liberty, which are therefore supposed to bo more einphatically /cnf nattirn, though it may happen that the latter shall be sometimes tamed and confined by the art and industry of man— such as an; deer in a park, bares or rabbits in an inclosed warren, doves in a dovo house, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private ])on(l or in trunks. These arc no limger the property of a man than while they continue in bis keeping or actual })ossession ; but if at any time they regain their natural liberty his property instantly ceases, vmless they have animum rcvertendi, which is only to be known by their usual custom ^^ returning. A maxim which is borrowed from the civil law, ^' reverteiidi (inimniu ridentur dexi- nere habere tunc, cum r ever tend i consnetndinem de.wrucrint." The law, ■IV i '>'.'■ [317] Book II, p. 3!ll. U M ftt^ 46 ARGUMENT OF THE UNITED STATES. m ; 'I mM \\i m therefore, extends this posses don further than the mere mauuiil occupation ; for my tame hawk, that is pursuing his quarry in my preseiice, tliough lie is at liberty to go where ho pleases, is never- theless my property, for he hath anlnium revcrtendl. So are my pi- geons that are flying at a distance from their home (especial!}- of the carrier kind), and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or fort'stcr; all which remain still in ray possession, and I still preserve my qualified property in them. But if they stray without my know- ledge, and do not return in the usual manner, it is then lawful for any stranger to take them. But if a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at liis pleasure, or if a wild swan is taken and marked and turned loose in tlic I'ivei", the owner's property in him still continues, and it is not lawful for anyone else to take him ; but otherwise if the deer has been long absent without returning, or the swan leaves the neighborhood. Bees also are J'enti nuturie ; but, when hived and reclaimed, a man may have a qualified property in them, by the law of nature, as well as by tiio tivii Ie'v. And to the same purpose, not to say in the same words with tho civil law, speaks Bracton ; occupation, that is, hiving or including them, gives the property in bees; for, though a swarm ligiits upon my tree, I have no more property in them till I have hived them than I have in the birds which make their nests thereon; and, therefore, if another hives them, he shall be their proprietor; but a swai-m, wliicli fly from and out of my hive, are mine so long as I can keep them in sight and have power to pursue them, and in these circumstances uo one else is entitled to tj-ke them. But it hath been also said that witk us the only ownership in bees is ratione soli, and the charter of tlio forest, which allows every freeman to be en^tled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in consideration of the property of the soil whereon they are found. In all these crecatures, reclaimed from the wildness of their nature, the property is not absolute, but deft asible : a property that may be destroyed if they resume their ancient wildness, and are found at large. Kor if the pheasants esca]ie from the mew, or the fishes from the trunk, and are Been wandering at largo in their proper element, they bot'onic fovd' natara: again, and are free and open to the first occupant that has ability to seize them. But while they thus continue my qualified or defeasible property, they are as much under the protection of the law as if they were absolutely and indefeasibly mine ; and an action will lie against any man that detains them from me or unkiwfuUy destroys tliem. It is also as much felony by common law to steal such of them as are fit for food as ic is to steal tame animals; but not. so if they are only kept for pleasure, curiosity, or whim ; as dogs, bears, cats, apes, parrots, and singing birds ; because their value is not intrinsic, but depending only on the caprice of the owner ; though it is such an invasion of prop- erty as may amount to a civil injury, and be redressed by a civil action. Yet to steal a reclaimed hawk is felony botli by common law and stat- ute; which seems to be a relic of the tyranny of our anqient sport.siaen. And, among our elder ancestors, the ancient Britons, anothei' spccios of reclaimed animals, viz., cats, were looked upon as creatures of in- trinsic value; and the killing or stealing one was a grievous crime, and sabjected the offender to a fine ; especially if it belonged to tbc King's household, and was the cnstos horrei refjii, for which there was a very peculiar forfeiture. And thus much of qualified property in wild animals, reclaimed pa- induetriam, ^ . TW^i fcfWMW I-OI L ' W rES. the mere manual his quarry in my 3 pleases, is nevcr- di. So are my pi- ome (especially of chased out of my keeper or forester ; still preserve my ft'ithout ray know- then lawful for any i animal reclaimed, s and returns at ln%i turned loose in the md it is not lawful deer has been long leighborhood. Bees 1, a man may have 3 well as by tlic civil ime words with tho iving or including irm iiglits upon my hived them tlian 1 L ; and, therefoi-e, if rat a swarm, wliicli [ can keep tlieni in se circumstances no I also said that witk the charter of tho to the honey found this doctrine, that ition of the property ess of their nature, operty that may be ai'e found at large, ^hes from the trunk, emeut. they bocoiuc t occupant that has ue my qualified or teotion of the law ad an action will lie fully destroys them, nch of them a.s are so if they are only cats, apes, parrots, isic, but depending in invasion of prop- led by a civil action. union law and 8tat- anqient sport.snieu. UH, another species IS ci'eatures of in- a grievous crime, it belonged to the which there was a \ property in wild PROPERTY IN THE ALASKAN SEAL HERD. 4,7 From the general doctrine thus declared no dissent will, it is be- lieved, be anywhere found. It has been reaffirmed in many instances by the courts both of Great Britain and the United States. The special attention of the Tribunal should be given to the utterances upon this question both by judicial tribunals and by jurists of established authority, and a somewhat copious collection of them will be found in Appendix. It will be observed that the rssential factf which, according to those doctrines, rendei- animals commonly designated as wild, the subjects of property not only while in the actual custody of their masters but also when temporarily absent therefrom, are that the care and industrij of man acting upon a natural disposiiion of the animals to return to a place of wonted resort, secures their volunfary and hahitual return to his riistodi/ and puwer, so as to enable him to deal with them in a similar manner, and to obtain from them similo.r henefits, as in the case of domestic animals. They are thus for all the purposes of proin-rhj assim- ilated to domestic animals. It is the nature and hahits of the animal, which enable man, by tho practice of art, care, and industry, to bring about these useful results that constitute the foundation upon which the law makes its award of property, and extends to this i)ro(luct of human industry the protection of ownership. This species of property is well described as property ^ir/- industriam. The Ala.skan fui*-scals are a typi il iiis.t;ince foe tho application of this doeti'ine. They are by the imperious and unchangeable instincts of their nature impelled to return from their wanderings to the same flure ; they are defenseles.s against man, and in returning to the same place \ .luntarily subject themselves to his power, and enable him to treat them in the same way and to obtain from them tho samo benefits as may be had in the case of domestic animals. They thus become tnc subjects of ordinary husbandry as much as sheep or any other cattle. All that is needed to secure this return, is the exercise of care and industry mi tho part of the human owner of the place of resort. He must nbsfaia from killing or repelling them when they seek to return to it, and must invito aii'l j>.erish sucrli return. Ho must defend them Against all enemies I)y Itne.l or sea. Aneifect,ly supplied by the United States, and their title is thus fully ^^nlistantiafed. Willi ground of dinVreiiee 111 les [leet to tlie pujiit in quest ion can hti m H\l ■f i'.1wa ''* ^1 vi!^; ; .i 3 '■■■ ^w- i ! ;;i! ' ■'I. m Vf II ,c:'f^' 48 ARGUMENT OF THE UNITED STATEH. be suggested botwoen these senls niul the other animals, such as (leer, bees, wild geese, and wild swans, which appear by the authorities referred to to be nnivcrsally regai'ded as property so long as they rotnin the animum revertendi ? Will it be said that this animus is created hv man in t he case of ';hose animals, and in the seals is a natural instinct r If this were true it would be unimportant. The essential thing is that the art and industry of man should bring about the useful result; and to this end human art, care and industry nvc as necessary and as effective in the one case as in the others. If man idid not choose to practice this care and industry in respect to the seals, if he exhibited no hnshandnj, but treated them as ir.iUl animals, and attacked and killed them as they sought the land, they would be driven away to other haunts or bo speedily exterminated. But it is not true that the disposition to return is ci'eated by man. The habitual return of the other animals mentioned is due to their natui'al instincts just as much as that of the seals is to theirs. Many races of animals have what may be called homes. It is natural instinct which prompts them to return to the spot where they rear their young or can find their food or a secure place of repose. What man does in any of these instances, and as much in one as in another, is, to act upon this instinct and make it available to secure the return. If the seals will i-eturn to the same place and voluntarily put themselves in the power of man with less effort on his part than in the case of the other animals, it shows only tl.at they are by nature less wild and less inclined to fly fi'om the presence of man. In the case of the bees, for instance, it is plain that their nature is no more changed by man than that of the seals. They are as wild when dwelling in an artificial hive as when they are in the woods ; nor does man feed them ; they gain their food from flowers which, for tlic most part, belong to persons other than their masters. Will it be siiid that the wanderings of the seals are very distant ? Of what consequence is this so long as the retvirn is certain V Bees wander very long distance^. Will it be insisted that it makes any difference on the qu38tion of property whether a cow seal goes five, or a hnndred miles ill the sea to obtain food to enable her to nourish her offspring on the shore? Probably the long duration of migration to the south in ")ecies, and society is gone. The existence of property, to at least this extent, is coeval with the existence of man. It stands upon the imperi- ' .Turul. Relations (Lonil., 1831, Rattej^uin's Trans.), p. 178. - Loekc expresses tlie same idea : " The friiil or venison wliieh nourislies the wild Indian » • * must bo his, and so his, i.e., a part of him, that another ean no loiifier liave any right to it," etc. ((Jivil Government, Chap. 5, § 25.) " In making the object my own I stamped it witli the mark of my own ]ierson ; wlioevcr iittaek.4 it attacks nie ; the blow struck it sinkes me, for I am present in it. Property is hut the periphery of my person extended to tilings." lliering, quoted by George B. Nowfoiub, Pol. Sri.'iici' Quarterlv, \'ol. I, p. (101. >|.^: i-m ,:': V : .4 ,»■ !■ ..31 !^i af I'll ;r^ t 52 ARGUMENT OF THE UNITED STATES. ous and indisputable basis of neceasity. " Necessity begat property." i Neither history, nor tradition, informs as of any people who have in- habited the earth among whom the right of propei'ty to at least this extent waa not recognized and enforced. And an interesting confirma- tion is found in the circumstance that the rude originals of the admin- istration of justice are evei^where found in contrivances designed foi- punishment of theft. The circumstance that in the early advances of society from savage to industrial conditions we find that in many things, especially land and tlic products of land, community property is found to obtain in place of individual property, does not impair in any degree the force of tlio views just expressed. The institution of property is in full operation, whether society itself — the artificial person — asserts ownei'ship, or per- mits its members to exercise the privilege. Wherever the supreme neces- sities of society, peace and order, are found to bo best subserved by owner- ship in the one form rather than in the other, the form most suitable will be adopted. Community property was found sufficient for the early Ktages of society, and it is the anticipation, or the dream, of many ingenious minds that the expedient will again, in the further advance of society, bo found necessary. But the desire of human nature for exclusive ownership is not lim- ited to the weapons and product of the chase, as in savage society, or to the reward of a proportional share, as in early industrial communi- ties. Man wislies for more, for the sake of the comfort, power, con- sideration and influence which abundant possessions bring. He wishes to better his condition, and this is possible only by increase of posses- sions. And the improvement of society, it has been found, can bo effected, or best effected, only through the improvement of its individ- ual members. This desire of individual man to better his condition is imperious, and must be gratified ; and inasmuch as the gratification tends to general happiness and improvement, a moral basis is furnished for an extension of the institution of individual property. As the first necessity of the social state, peace and order, require that ownershii) should be enforced to at least the limited extent which savage con- ditions require, so the second necessity of society, its progress and advancement — that is to say, civilization — demands that individual effort should be encouraged by offering as its reward the exclusive own- ership of everything which it can produce. In these two principal nocrs * Blackstone'a Com,, Book 2, p. 8.^ rROPERTY IN THE ALASKAN SEAJ. HBRD. 5a fat property."! I who have in- to at least this iting contirma- i of the admin- !3 designed for from savage to ly land and the aiu in place ot' le force of tho full operation, nei-ship, or pcr- I supreme neces- lerved by owncr- lost suitable will • the early wtagcs many ingenious .ce of society, bo sitiesof human condition, the peace of society, and its progress and udvanue- ment in wealth and numbers, both founded upon the strongest dosii-es of man's nature, the institution of property has its foundation. There are several features of this institution whicli in this discussion should bo well understood and carried in mind ; and, first, the exltint of its operation. Manifestly this must be coextensive witli the human desires and necessities out of which it spi'ings. Wherever there is an object of desire, not existing in sufficient quantity to fully satisfy tho greed of all, conflict for possession will arise and consequent danger to peace. Society finds its best security for order in extending tho privi- lege of ownership to everything which can be owned. The owner may bo tho state or community, as under early and rude social conditions ; or private individuals, as civilization advances; but, in either case, nothing is left as a subject for strife. The grounds and reasons which society, after the introduction of individual property, may allow as suffi- cient for awarding ownership to one rather than to another are various ; but they all depend upon some consideration of superior merit and desert. That one man has by his labor and skill formed a weapon or a tool is instantly recognized as a sufficient ground to support his title to it. And if he simply takes possession of some things before unappro- priated by any one, or finds property to which no other owner asserts a claim, his right, though less impressive, is still supei'ior to that of any other. We therefore easily reach the conclusion that the necessities Avhich demand the institution of property equally demand its exten- sion over e\eYj object of desire as to which conflict for possession may arise. But it is not only the necessity of peace and order which requires that all-embracing extent of the institution of property. It is alike demanded by that high moral purpose already alluded to as constituting pai't of the foundation of the institution, namely, the improvement of society and of the individual man. This, as has already been seen, can be brought about only by tho cultivation of the arts of industry by which nature is made to yield a more abundant provision for humuu wants. These arts will not be practiced unless the fruits of each man's labor, whether it be the product of the field, of the workshop, or tho increase of animals which are the subject of his care, are assured to him. We find, therefore, that the institution of property is so imbedded in the nature of man, that its existence is a necessary consequence of forces in operation wherever man is found, or wheresoever his power m iR'- il >' 1 1. u n m ;|;| l: 54 AROVMKNT OF THE UNITED STATES, may extend, and that the fundamental formula by which the institution is cxprcHsed is that every object of desire, of which the supply is litnifrd, must bo owned. It is with this proposition that Blackstone closes his chapter upon " Property in General." " Again, there are other things in which a permanent property may subsist, not only as to the temporary use, but also the solid substance ; and which yet would frecjuently bo found without a proprietor had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands. Such also are wrecks, e.strays, and that species of Avild animals which the arbitrary con- stitutions of positive law have distinguished from the rest by the well known appellation of game. With I'ogard to these and some others, as disturbances and quarrels would frequently ariso among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissension by vesting the things themselves in the sovereign of the State, or else in his representatives appoir/ieu and authorized by him, being usually tlie lords of manor.s. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wine and orderly maxim of msiffuinij to every ihimj capahle of oumershii) a leyal and determinate owner. >' I ' Sir llonrv Miiiiio, iifti-r tniciiif; with his wontod acutoiicss thi> (•oume of the develop- inent of tlio eoneeption of property, also fhuls tliiit it finiilly results in the proposition tlmt everything must be owned. " It is only when the rights of property gained a sanetion from long praetieal inviola- bility, and wlien tlio vast majority of objeets of enjoyment have been subjected to private ownershi]), that mere possession is allowed to invest the first jiossessor with dominion over commodities in which no prior proprietorship has been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infreciuency and uncertainty of proprietary rights which distinguish the beginning of civilization. The true basis seems to l)e not an instinctive bias towards the institution of j)roi)erfy, but a presumi)tion, arising out of the long continuance of that institution, th.'t ererj/l/n'ii/) ought 1o have an owner. When possession is taken of a 'rev null i'mx,' ihut is, of ai object which is not, or has never, been reduced to dominion, the possessor is permitted to become pro])rietor from a feeling that all valuable things are naturally subject i as an exclusive enjoyment, and that in the given case there is no one to invest with the "iglits of property except the occupant. The occupant, in short, becomes the owner, because all things are presumed to V" somebody's projierty, and because no one can be pointed o it as having a better right than he to the proprietorship of this particular thing." (An.'ieni Law, Ch. 8, ]). 219.) Lord Chancellor Chelmsford made the proposition that everything must be owneil by some one, the ground of his decision in the House of Lords of the case of Blaaes v. Higgs. (Law Journal Reports, N.S., 28(5, 288.) ¥rom Commentaries on the Constitutional. Law of England. By George Unwvci'. D. C. L., 2d ed. London, 1810, p. 427 : " in. The third prinniry right of the citizen is that of projierty, which consists in the free use, enjoyment, and disposal of all that is his, without any control or dimi- nution, save liy the law of the land. The institution of property— that is to say, lln' apjironriation to (tavtieular persons and uses of things which were givi'U by Ood to nil nuinliiiid— is of natural law. The reason oi' this is not difllenlt to discover, for llic increase of mankind luiist soon have rendered community oi good'^ cxicedinnlv in- 10 institation is is limit at, must 0808 his chapter t property may }ohd substatico ; prietor had not 1 inconvenience, omitted to ho also are wrecks, arbitrary con- rest by the avcU d some others, ang individuals, •oporty by iirst Dt of disHcnsidu tlie State, or by him, being of England has the peace and l orderly viaxim and determinate pge of the develop- the propoBition tlmt ng practical invioln- subjected to priTiito ssor with doniiiiioii The sentiment in infre(iuene,v anil ivilization. The f ;)roi)erty, l)ut. a tli.'t everiithiiii; iMn,' thut is, of ti.'i ssi'ssor is p<;nnitti'il mlly Hubject ( as mi st with the "iglits owner, because all in be pointed oil iis thing." (An.Mcnt ■ ei' ig must be owiuhI ic case of Blaoes v. !y George Ui,w\ov. which consists in y control or diiiii- that is to r*iiy, lln' ven by flod to nil discover, f<'i' ''"' iU excL'edinnl\ m PUOPEUTY IN THE .VL.\SKAN 8EAL HERD. 55 Nothing which is not an object of human desire — tliat is, nothing which has not a recognized utility — can bo the subject of property, for there is no possibility of conflict for the possession. Property, there- fore, ia not prcdicablo of noxious reptiles, insects, or weeds, except under special circumstances, where they may be kept for tlie purpoi-es <>f science or amusement. The supply, indeed, may bo limiteil ; but tho clement of utility, which excites the conflicting desires which property is designed to reconcile and restrain, is absent. Nor is property ])re- dicablo of things which, though in the highest degree useful, exist in inexhaustible abundance and within tho reach of all. Neither air nor light nor running water are the subjects of property. Tlie supply in un- limited, and where there is abundance to satisfy all desires there can be no conflict. There is a still further qualilication of the extent to which the institution of property is operative. Manifestly, in order that a thing may be owned, it must bo susceptible of otanership, that is, of exclusive appropriation to the power of some individual. There are things of which this can not bo asserted. Useful wild animals are the familiar instance. Altliough objects of desire and limited in supply, they are not, as a general rule, susceptible of exclusive appropriation. They are not subject, otherwise than by capture and confinement, to the constant disposition of man as he may choose to dispose of them. Wo can hold them only by keeping them in captivity, and this we can do only in respect to an insignificant part. What, in the view of the law, constitutes this suscvptihilitij of exclusive appro- priation is an interesting and important question, which will be hereafter discussed in connection with the question what animals are properly to bo denominated as wild. The importance of tho conclusion reached by tho foregoing reasoning should be marked by deliberate restatement. The institution of property embraces all tangible things subject only to these thi'eo excepting con- ditions : First. They mu,st have that utility which makes them objects of human desire. Second. The supply must be limited. Third. They must be susceptible of exclusive appropriation. convei ient or impossible consistently with the peace of society ; and, indeed, by far the greatornumber of things can not be made fully subsen'ient to the use of mankind in the most beneficial manner unless they be governed by the laws of exclusive appro- priation." ■f .1 j ' ^l; 5r, ARCJI'MKNT OK TMK I'MTFJ) .STATES. I '.: !^ !il m m This conclusion is a deduction of moral rigli*j drawn from the facts of man's nature and the onvironmont in which ho i i placed ; in other words, it is a conclusion of the law of nature; hut this, as has been heretofore shown, is international law, except so far as the latter may appear, from the actual practice and usages of nations, to have departed from it, or, to speak more propei-ly, not to have risen to it. Turning to the actual practice of nations, that is, to tho observed fact. we find that it is in precise accordance with the deductive conclusion. No tangible thing can bo pointed out, which exhibits tho conditions above stated, which is not by the jurisprudence of all civilized nations pronounced to be the subject of pi'operty, and protected as such. This seems so manifest as to justify a confidence that the assertion will not 'i ■• disputed. In tho foregoing reasoning no distinction has been observed betweei) ownership by private individuals under municipal law, and by nations under international law. There is no distinction. Nations are but aggre- gates of individual men. They oxhibit the same ambitions, are subject to like perils, and must resort for safety and peace to similar ex- pedients. Just as it is necessary to the peace, order, and pi'ogress of municipal societies that everything possessing the three characterit.: 'cs above enumerated should be owned by some one, so also it is necessary to the peace, order, and progress of the larger society of nations that everything belonging to the same class, but which from its magnitude is incapable of individual ownership, should be owned by some nation. This truth is well illustrated by the practice of nations for the last four centuries in acknowledging as valid titles to vast tracts of the earth's surface upon no other foundation thnn first discovery. Nearly the whole of tho American continents was parceled out among European nations by the recognition of claims based upon such titles alone.' ' Tlip practice niul doctrino of European nations upon this subject are dearly ^'cl forth by Mr. Chief Justice Marshall, in deliverint; the opinion of the Supreme Court ol' tlie United States in Johnson c*. Mcintosh (8 Wheat, 543, 572). A shoi-t extract will l>t' liertinont here : " As the right of society to prescribe those rules by which property may he acquii'i'd and preserved is not, and can not be, drawn into question ; as tho title t« lands, esjic- cially, is, and must be admitted, to de])end entirely on the law of the nation in whii-li they lie, it will be necessary, in pursuing this inquiry, to examine, not simply those principles of abstract justice which the Creator of all things has impressed on the mind of his creature, man, and which are admitted to regulate in a great degree the rights of eivilized nations, whose perfect independence has been acknowledged, but those prin- ciples also which our own Government has adopted in the particular case, and given as the rule of decision. "On the discover* of this Immense continent, the great nations of Europe were T'ROPEIITY 1\ THK ALASKAN SKAL HKliD. 57 'om tho facts of in other words, been hcrotoforo ay appear, from :1 from it, or, to ',1 observed fact, tive concluHion. tho condition!) livili/.ed nations as sach. This tion will not bo bserved between and by nations s are but aggre- ons, are subject to similar cx- and progress of ) characterifil 'cs it is necessary of nations tlmt its magnitude )y some nation. the last four of tho enrtli's Nearly tlie nong European titles alone.' L'ct arc c'loarh- sot Suproinp Court o( liort extract, will I'l' may be iictiuii't'il tic to lands, i's|)i'- e nation in whii'Ii not simply those essecl on the mind degree the rights ed, but those prin- case, and given of Europe were And, for the most part, tlic vast territories thus ac((uired were not oven seen. Tho maritime coasts only were explored, and title to the whole interior, stretching from or 'an to ocean, or at least to the sources of the rivers emptying npon tho coasts explored, was as.iertcd upon tho basis of this limited discovery. Some limitations wore i)laeed upcm these vast claims resulting froni eontlicts in tho allegations of priority; but, for the most part, the effectiveness cf first discovery in giving title to great areas which had not been oven explored was recognized. If the mere willing by tho first discoverer that things suseeptiblo of ap- ])ropi'iation should be his pro])erty was held suflieicnt to make them so, it could only have been from a common conviction that ownership of every part of the earth's surface by some nation was so essential to tho general peace and order, that it was expedient to recognize the slightest moral foundation as sufficient to support a title. The principle has l)oen extended to vast teiritorics wh: -h are oven incapable of human occupation. Tho titles of Great Britain to her North American terri. tory extending to the frozen zone, and of the United States derived from Russia to the whole territory of Alaska have never been ques- tioned. THE FORM OF THE INSTITCTION — COMMUNITY AND I'ntVATE PROfEKTV. But although the existence of human society involves and necessi- tates the institution of property, it does not determine the for)it which that institution assumes. The necessity that all things susceptible of ownership should be owned is one thing; but who the owner shall bo eager to appropriate to themselves so mueh of it as they could rcapeetively acquire. ltd rast extent afforded an nini)le field to the ambition and enterprise of all ; and the character and religion of its inhabitants afforded an njiology for considering them »» a people over whom the superior genius of Europe migii*^^ claim an aseendeney, Tlie ])otentutc9 of the world found no difficulty in convincing themselves that they made ample eonii)ensH- tion to the inhabitants of the new, by bestowing upon them civilization and Chris- tianity, in exchange for unlimited indepencUmce. But, as they were all in |>ursuit of nearly the same object, it was necessary in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknow- ledge as the law by which the right of acquisition, which they all asserted, slnndd be regulated as between themselves. This principle was that discovery gave title to the goveniments by whose subjects, or by whose authority it was uuide, against all other European governments, which title might be consummated by possession. The exclusion of nil otlier Europeans necessarily gave to the nation malting the discovery the sole riglit of acquiring the soil from the natives and establishing settlements upon it. It was a iight with wliich no Europeans could interfere. It was a right which uU asserted for themselves, and to the as ertion of which by others all assented." i:, .-> *•. <,-U.»S ■ i- 58 ARGUMENT OF THE UNITED STATES, i-1 ii is another. As has already beeu pointed out, the absolute ncfiessitics of rude society may be satisfied by making society itself the universal owner; which is the condition actually presented by some very eaily communities; but individual ownership Is the condition found in all societies which have reached any uonsiderable degree of advancement. This matter of the form of the institution is, of course, determined in a municipal society by its laws; and these are in turn determined by its morality. Owners'. ip is awarded in accordance with the sense of right and fitness which prevails among the members of society. It is this which determines its will, and its will is its law. In seeking for the moral grounds upon which to make its award of the rights of private ownership that which is first and universally ac- cepted is what may be called desert. " Sunin aiique tribuere," lies as an original conception at the basis of all jurisprudence. In respect to land indeed, an original grant may be required from the community or the sovereign ; but whatever a man produces by his labor, or saves by the practice of abstinence, is justly reserved for his exclusive use and benefit. This is the principle upon which the right of private property is by the great majority of jurists placed ; and it is often, somewhat incorrectly perhaps, made the foundation of the institution of property itself. In our view a distinction is observable between the institution itself and tW form which it assumes. The first springs from the necessity of peace and order, society liot being possible without it ; but when private pi'operty, which is also the result of another neoeas'.ty, namely, the de- mands of civilized life, becomes the form which tho institution assumes, the principle of desert conies into operation to govern the award. OWNERSHU' NOT AliSOLL'TE. m But what is the extent of the dominion which is thus given by the law of nature to the owner of property ? This question has much im- portance in the present discussion and deserves a deliberate considera- tion. In the common apprehension the title of the possessor is absoluti', and enables him to deal with his property as he pleases, and even, if he pleases, to destroy it. This notion, sufficiently accurate for most of the common purposes of life, and for all controversies between man and man, is very far from being true. No one, indeed, would assei't that he had a moral right to waste or destroy any useful thing; but this limitation of power is, perhaps, commonly viewed as a mere moral or •• .'.■lii ntOPERTY IN TIIR ALASKAN SKAL HEPD. 50 lei'o mort religioufi precept, for the violation of which man is responsible only to his Maker, and of which human law takes no notice. The truth is far otherwise. This precept is the basis of much municipal law, and has a widely-reaching operation in international jurisprudence. There are two propositions belonging to this part of our inquiry, closely connected with each other, to which the attention of the Arbitrators is particularly invited. They will be found to have a most important, if not a wholly decisive, bearing upon the present controversy. First. No possessor of property, whether an individual man, or a nation, has an absolute title to it. His title is coupled with a trust for the benefit of mankind. Second. The title is further limited. The things themselves are not given him, but only the nsufruct or increase. He is but the cnstodian of ihe stock, or principal thing, holding it in trust for the present and future generations of man. The first of these propositions is stated almost in the language em- ployed by one of the highest authorities on the law of nature and nations. Says Pufiendorf, " God gave the world, not to this, nor to that man, but to the human race in general." ' The bounties of nature are gifts not so much to those whose situation enables them to gather them, but to those who need them for use. And Locke, " God gave the world to men in common."' If it be asked how this gift in common can bo reconciled Avith the exclusive possession which the institution of pro- l)erty gives to particular nations and particular men, the answer is by the instrumentality of commerce which springs into existence with the beginnings of civilization as a part of the order of nature. Indeed it is only by means of commerce that the original common gift rould have beu'ji made effectual as such. Every bounty of nature, how- ever it may be gathered by this, or that man, will eventually find its way, through the instrumentality of commerce, to those who want it for its inherent qualities. It is for these, where vei- they may dwell, that it is destined. Were it not for these the bounty would be of little use even to those whose situation enables them to control it and to gather it. But for commerce, and tho ex- changes effected by it, the greatest part of the wealth of the world would be %va8ted, or unimproved.^ The Alaskan seals, for instance, ' Law of Nature and Nations. Book 4, Chap. 5, sec. 9. ^ Civil GoTernment, Chap. 5, § 34. * "Wherewith accords that of Libanius, God, floith he, hath not made any one pftvt of the world the storehouse of all his blessings, but hath wisely distributed tbviii [317] , im i' :1.-|li' ' :;*>«4!f. 1 V i.V.V:. • i }•<< 1 ;■■ 1 ■■ l';'.-;:- .; \-^r, >»' r J '> '; *'V '■ ■ i- :>■-: ^ it!?: i '. if « • *i-»i ''l 1 .7 ■!fa:.'-.L if 1 s-ft-r ':i: ■t*i .. -it^. hmi CO ARfiUMENT OF THK UNITRD STATES. i •' bl would be nearly valnelcss. A foAv hundreds, or thousands at the most, would sufFioe to supply all the needs of the scanty population living on the islands where they are found, or along f'o shores of the seas through which they pass in their nilTjrations, Indeed, the Pribilof Islands Avould never have been inhabited, or even visited, by man except for the purpose of capturing seals in order to supply the demands of distant peoples. The great blessing to mankind at large capable of being afforded by this animal Avould have been wholly unrealized. The sole condition upon \vhii;h its value depends, even to those who pursue and capture it, is that they aro able, by exchanging it for the products of other and distant nations, to furnish themselves with many blessings which they greatly desire. This truth that nature intends her bounties for those who need them, vherevcr they may dwell, may be illustrated and made more clear by inquiring upon whom the loss would fall if the gift were taken away Take, for instance, the widely used and almost necessary article of India rubber. It is produced in but fcAV and narrowly-limited areas, and we may easily suppose that by some failuz'e of nature, or misconduct of man, the production is arrested. A loss would, no doiibt, be felt by those who had been engaged in gathei'ing it and exchanging it for other commudities ; and a still more extensive one would fall upon the liu'gely greater number Avhose labor waft applied in manufacturing it into the A'arious forms iu which it is used ; but tiic loss to both these classes would be but temporary. The cultivators could raise other products, and the manufacturers could employ their industry in other fields. The opportunities which nature oifers for the employment of labor arc infinite and inexhaustible, and the only effect of a cessation of one industry is to turn the labor devoted to it into other channels. But the loss to the consumers of the article, the loss of those who need that par- ticular thing, would be absolute and ii-reparable. . If these views arc well founded it follows thfit, by the law of natui'c, ever)"- nation, so far as it posscs.ses the fruits of the earth in a measure more than suflficient to satisfy its own needs, is, in the truest sense, a throuRli all nations, that 80 each npedinR another's help he might thereby lead iiu'ii to sociotv ; and to tliis end lie discovered unto Ihem the ait. of merchandising, that so wliiit- s()i'\ IT nny nation ))ro(hici'd miglit bo connnunifiiti'd inito otlicrs." # * # So Tlicscii-* spciik.i very pertinently — " What to one nation nature doth deny, Tliiit she, from others, ilolh by sea supply." (Grotius; Be Jure Belli ac Pacii., Book 2, Cliap. 2, § 13.) See also Phillimow. Inter- national Law, "Vol. T, p. 261, 262. ,,"' \ ,, , .*; -^1 m PROPERTY T\ THE ALASKAN SI-^AT, FIERD. fii; in Phininiovr, Tntov- trnstt'eoi the surplus for the benefit of tliosi; in other parts of the world who need tlieni, and are willing to give in exchange for them the prodnets of their own labor ; and the truth of this eonclnsion and of the views from which it is drawn Avill be found fully confivmed by a glanee at the approved usages of nations. It is the characteristic of a trust that it is ohJifiatory, and that in case of a I'efusal or neglect to perform it, such per- formance may bo compelled, or the trustee removed and n. more woi'thy custodian selected as the depository of the trust. It is an ailmitted principle of the law of nature that commerce is obligatory upon all nations; that no nation is ])prmitted to seclude itself from the rest of mankind and interdict all commerce with foreign nations. Temporary prohibition of commerce for special reasons of necessity are, indeed, allowed ; bat they must not be made permanent.' ' The instriniicnlality of coiiuuorce as n pnrt of tlio scl'oiuc of iiiituvo in sceuvinp to mnnkiiid in general tlio ciijoynient. of lior various gifts, \\\ wlintsoevcr qiiurtor of the oai-di tlipv may bo found, lias been pointed out by many writers upon tbe law of nature and iiiitions. A few citations will be sulTieient. tbc views ill wliieli all concur. It will appenr from those wliieli are herein turnislied — 1. That man does not begin to desire the benefit .of the gifts to be found in other liiiids and in wliich lie is entitled to shure until he has made some advances towards civilization, and, consequently, comineree may be said to be the offsjiring of civili- zation. 2. But it reacts upon und greatly stimulates the cause from which it s)>rincs. so that livilization may also be said to be the fruit of coiumcrce. :J. In its rclation.s \.> civilization it is like the division of labor and has sometiiiies liccii ^lylcd " the ferri/'irial division of labor." ■i. Doubtless there is a hirgt; discretion which each nation may jislly exercise in respect of the conditions under which it will engage in conimerec with other nations. But an iilwoliitc or unreiuonable refusal is in clear violation of natunil law. It is a denial by tlie refusing nation of the fuudameutal truth that the bounties of nature were bestowed iijHMi maiikind. From " ])es Droits ct drs Devoirs des Nations Nciitrcs en Temps de Oucrrc Maritiuie," p:ir L. B. Hautcfeuillc. Paris. 1 818. Vol. I, ji. 250 : "The Sovereign Master of nature did not confine himself to giving a imrtieular di^jiosition to every man; 'he »lso di^el•silled eliiiiatcs and the nature of soils. 'l"o I'iuii country, to each region, he assigned different fruits and s))ecial productions, all 111' nearly all of which were susceptible of being used by man and of satisfying his wiiiits or his pleasures. Almost all regions doubtless jiroduccd what was indispensable lor tiic sustenance of tlieir inhaliitiints, luit not • ne prodiucd ail tlie fruits that were iicce.ssnry to meet all real iieetis, or more particularly all conventional needs. It was, t lu'refore, necessary to have reeoui"se to other nations and to extend commcree. Man, impelled by timt instinct which leads him to seek ]ierfeetion, created new needs for liiinself as he made new discoveries. lie accustomed himself to the use of nil the |ii'ii(liieti(ms of the earth and of its industry. 'I'Jie cotton, sugar, coffee, and tobacco I'l the New World have become articles of prime necessity for the Kuropeau, and an iiniiiense trade is carried ou iu them. The .Vmericau, in turn, can not dispense with tlie varied productions of European uainufacture. The development of commerce, tliat i" to say, the satisfaction of man's instincts of soci.ibility and perfectibility, has greatly I'lMitrihuted to connecting all the nations of the uniycrs" , it has served u» a vehicle, [;n7] B 2 t; !l ■ *■'•' .1 ^.f: 'I * It ■■ ..-. A' . 1 1 ft I H 62 ARCiUMRNT OF THK UNITED STATES. 1'^ A sure guaranty for the observance of tliis trust obligiition is found in the imperious and universal motive of self-iuterest. The desiro of civilized niun to gi'atify his numerous wants and to better his condition so strongly impels him to commerce with other nations that no other inducement is in general needed. The instances in history are rare in which nations have exhibited nnwillingness to engage in commercial inter- course ; but they are possible under peculiar conditions, and have some times actually occurred. Such a refusal is generally believed to have been the real, though it was not the avowed, cause of the war waged by Great Britain against China in 1840. For the purposes of further illustration, a case may be imagined sti-onger than any of the actual instances referred to, Let it be sup- posed that some particular region from which alone a com.-nodity dtemed so to speak, for the p •rformancc of the duties of humnnitj. Coniinerce is rt is not only to join in trade as far as it reasonably can, but even to eonntennnce and promote it.'" Reddie (Inquiries inti) Tuleriialional Law). 2d Ed. 1851, Cha)), 5. I'art U, sub >ee, 2. Art, 2, p. 207) : "But the chief source of t)ie intercourse of nations in their individual cupucity is ♦ Vnttel, Book 1, Clinp. 8, «ec. 88. m:-A {i F. m 64 ARGUMENT OF THE UNITED STATEH. ts a crime. And the wrong is not limited by tho boundaries of nations, but is inflicted upon those to whom tho blessing would be useful wherever they may dwell. And those to whom the wrong is done have tho right to redress it. Let the case of tho article of India rubber be again taken for an illus- tration, and let it l)e supposed that the nation which held the fields from which the world obtained it.s chief supply should destroj" its plantations and refuse to continue the cultivation, can it bo doubted that other nations would, by the law of nature, bo justified in taking possession by force of the territory of tl e recreant power and establishing over it ii governmental authority which would assure a continuance of the cultiva- tion ? And what would this be but a removal of the unfaithful trustee, and the appointment of one who would perform tho trust ? ' the exchange of foiniiuiditic!*, or imttiral or iivtificial prodiK'tion. The territory of one State very rarely jiroduees all that is I'equisile for the supply of tho wants, for the use and enjo^yment of its inhabitants. To a certain extent one State generally abounds in what others want. A mutual exchange of su])erfluous eonmioditids is thus reci)m)- eally advantageous for both nations. ^Vnd, as it is ii moral duty in individuals to pro- mote the welfare of their neiglibor, it appears to be also the moral duty of a nation not to refuse commerce with other nations when that connnerce is not liurtful to itself." From Kent (Commentaries on American Law. (Tho Law of Nations, Part 1.) Ed. 1866. Chap. 2, p. 117) : "As the aim of international law is the happiness and perfection of the general society of mankind, it enjoins ujjon every iiation the ]'>unctual observance of benevo- lence and good will, as well as of justice toward its neighbors. This is equally the policy and tho duty of mitions. They ought to cidtivate a free intenourse for coni- niercial purposes, in order to sujtply each other's wants and promote eat^h other's prosperity. Tho variety of climates and productions on the surface of the globe, and the facility of connnunication by means of rivers, lakes, and the oci.'an, invite to a liberal commerce, as agreeable to the law of nature, and extremely condu.'ive to national amity, industry, and happiness. The numerous wants of civilized lif j can only be 8upi)lied by mutual exchange between nations of the peculiar productions of each.'' ' Gases in which nations have supposed themselves justified in interjeriny with the territory and affairs of othi'r nations have frequently occurred. Tlie war celebrated in Grecian history as the first Sacred War was an early and illustrative instance grow- ing out of the religious sentiment. The temple of Apollo at Delphi was the prin- cipal shi'ine in the religion of Grei!ce. It was within the territory of the state of Kris.-^a whose people had desecrated by cultivation the surroundings of tho spot where it was situated, and by levying tolls and other exactions had obstructed the pilgrimages which the votaries of the god were wont lO make. .V large part of Greece aivse to ))unish this violation of the common I'ight, and in a war of ten ye-^i-s' duration destroyed the town of Krissa, and consecrated tlie plain around tho teu.ple to the service of the god by decreeing that it should forever remain initilled and unplanted. (Grote, History of Greece, Lond., 1847, Vol. IV, p. 8I-.) China lias furnished one of the few instances in modern times of unwillingness to engage in foreign commerce. This was not the avoweil but v.ds px'obably one of the real causes of tho war waged against that nation by Great Britain in 1840. '' I ' T- V' of nations, il wliei'ovei" the right to ov an illus- fields from plantations that other issession by o; over it a the cultiva- iful trustee, le territory of wuuts, for the lorally abounds iH thus recipro- victuals to pro- ity of a nation not liurtful to , Part 1.) Ed. of the genenil nee of benevo- is equally the uurse for <'oni- eaeh other's the globe, and an, invite to a ive to national mly be eupijlied riity with the war eelebvated instance gvow- was the in'in- tato of Krissa where it was riniages which n\)8e to punish ation destroy t> PKOPEllTY IN THK ALA8KAN SEAL HKUD. Oil It, is, indeed, upon this ground, and this pfround alone, that the con- quest by civilize 1 nations of countries occupiod by savages hns been, or can be, defended. The great nations of VJuro]>e took possession by force and divided among themselves the great continents of Nortli and South America. Great Britain has incorporated into her extensive empire vast territories in India and Australia by force, and against the will of their original inhiibitants. She is now, with France and Ger- many as rivals, endeavoring to establish and extend her dominion in the savage regions of Africa. The United States, from time to time, expel the native tribes of Indians from their homes to make room for their own people. These acts of the most civilized and Christian nations are inexcusable robberies, unless they can be defended, uiuler the law of nature, by the argument that these uncivilized countries were the gifts of nature to man, and that their inhabitants refused, or were una- ble, to perform that great trust, imposed upon all nations, to make the capabilities of the countries which they hold subservient to the needs of man. And this argument is a sufficient defense, not indeed for the thousand excesses which have stained the.se conquests, but for the con- quests themselves. The second proposition above advanced, namely, that the title which nature bestows upon man to her gifts is of the usufruct only, is, iiuleed, but a corollary from that which has just been discussed, or i-ather a part of it, for in saying that the gift is not to this nation or that, but to mankind, all generations, future as well as present, are intended. Tho earth was designed as the permanent abode of man through ceaseless generations. Each generation, as it appears upon the scene, is entitled only to use the fair inheritance. It is against the law of nature that any waste should be committed to the disadvantage of the succeeding ten- ants.* The title of each generation may be described in a term familiar ' Since the power of man over tilings exteiuls no further than to use them aeeonl- ingly as they are in their nature usable, things are not matter for consideration in law except in regard to the use or treatment of which they are capable. Ileiu'e no right to things can exist beyond the right to use them according to their nature ; and this right is Property. No doubt n jjerson can wantoidy destroy a subject ol property, or treat it iu as many ways which are rather an abuse than a use of the thing. But such abuse is wasteful and immoral; aiul that it is not at the same time illegal, is simply because there are many duties of morality which it is impossible, inexpedient, or unnecessary for the jiositive law to cneorporate or enforce. I therefore define property to be the right to the exclusive vie of a thing. It will, perhaps, be objected to this that if gathering the acorns, or other fruits of the earth, etc., makes a right to thcui, then any one ma,, engross a- much as he wUl. ' t V-'il* A ■, r. w a >:■■>■: ■' i ■'■ ),•■'■■ i ■11. '• : it ■ 66 ARGUMENT OF THli UNITED STATES. to English lawyers as limited to an estate for life ; or it may with equal propriety be said to be oonpled with a trust to transmit the inheritance to those who succeed in at least r.s good a condition as it was found, reason- able use only excepted. That one generation may not only consume oi- destroy the annual increase of the products of the earth, but the stock also, thus leaving an inadequate provision for the multitude of successors which it brings into life, is a notion so repugnant to reason as scarcely to need formal refutation. The great writers upon the law of nature and nations properly content themselves with simply aflBrming, without laboring to establish, these self-evident truths. The obligation not to invade the stock of the provision made by nature for the support of human life is in an especial manner imposed upon civilized societies ; for the danger proceeds almost wholly from them. It is commerce, the fruit of civilization, and which at the same time extends and advances it, that subjects the production of each part of the globe to the demands of every other part, and thus threat- ens, unless the tendency is counteracted by efficient husbandry, to encroach upon the sources of supply. The barbaric man with sparse numbers scattered over the face of the eai-th, with few wants, and not engaged in commerce, makes but a small demand upon the natural in- crease. He never endangers the existence of the stock, and neither has, nor needs, the intelligent foresight to make provision for the future. But with the advance of civilization, the increase in population, and the multiplication of wants, a pciil of overconsumption arises, and along with it a development of that prudential wisdom which seeks to avert the danger. The gi-eat and principal instrumentality designed to (counteract this threatening tendency is the institution of prirate individual property. which, by holding out to every man the promise that he .shall have tiic exclusive possession and enjoyment of any increase in the products of nature which he may effect by his care, labor, and abstinence, In-ing^ into play the powerful motive of self-interest, stimulates the exertion in every direction of all his faculties, both of mind and body, and To which I niiswt'r : Not .so. 'riic miiiip law of iiiii.uro that docs by this lut'iins givr 118 pro])crty, docs iilso bound thnt property too. "God hns given us nil things riclily," (I Tim. vi, 17,) is the voice of reason confirmed by inspiration. But how far has lie given it to us ? To enjoy. As much as any one can make use to any advantage of life before it spoils, so much he may by his labor fix a property in. Whatever is beyond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. (S. Martin Leaks, Jurid. Soc. Papers, Vol. I, p. 532.) ,t . PROPERTY IN THE ALASKAX SEAL HERP. 67 thus leads to a prodigiously increased production of the fruits of the earth. There are some provisions to this (md which arc beyond the power of private men to supply, or for supplying which no sufficient inducement can be held out to them, inasmuch as the rewards can not bo secured to them exclusively; and here the self-interest of nations supplements mid cooperates with that of individuals. A large share of tlie legislative policy of civilized states is devoted to making provision for future generations. Taxation is sought to be limited to the annual income of society. Permanent institutions of science are established for the purpose of acquiring a fuller knowledge of natural laws, to the end that waste may be resti'icted, the earth be made more fruitful, and the stock of useful animals increased. The destruction of useful wild animals is sought to be prevented by game laAvs, and the attempt is even made to restock the limitless areas of the seas with animal life which may be made subservient to man. The same policy is observable in the ordinary municipal law of states. Whenever the possessor of propei-ty is incapable of good husbandry, and therefore liable to waste or misapply that part of the wealth of snciety which is confided to him, he is removed from the custody, and a more prudent guardian substituted in his place. Infants, idiots, and insane persons are deprived of the control of their property, and the state assumes the guardianship. This policy is adopted not merely out of regard to the private interests of the present owner, but in order also to promote the permanent objects of society by protecting the interests of future generations. There are some exceptions, lathei- apparent than real, to the law which confines each generation to the increase or usufruct of tlie earth. Nature holds in some of her storehouses tlie slow accumula- tions of long preceding ages, which can not bo reproduced by the agency of man. The products of the mineral kingdom, when con- sumed, can not be restored by cultivation. But hero the operation of the institution of private property is still effective, by exacting the highest price, to limit the actual consumption to the smallest extent cDnsistent with a beneficial use. Again, it is not possible to limit the coiisuniption of useful wild birds to the aimual increase ; for they can iiiit be made the subjects of exclusive appropriation as property, and consequently can not be increased in numbers by the care and absti- nence of individual man. The motive of sclf-intorost can not here be brought into play. But society still makes the only preservative effort It r>. f ■' 1 ■''- 1 , ; :re lost. They ore useful for the oil whicli they affoid ; but their principal utility consists in their skins, which afford (jlothiug, not only to the native tribes above mentioned, but, when prepared by the skill which is now employed upon them, furnish a garment almost unequaled for its com- fort, durability, and beauty. There is, indeed, no part of the aninml which .does not subserve some human want. The eagerness with which it is sought, and the high price which the skins command in the markets of the world, are further pi'oof of its exceeding utility. Its prodigious numbers, even after the havoc which has boen wrought by the relentless war made upon it by man, exhibit the magnitude of the value of the species ; and if we add to these numbers, as we justly may, the increase which would come if its former places of resort, which liavo been laid waste by destructive pursuit, should be again, by careful and protected cultiva- tion, repeopled, the annual supply would exceed the present yield perha])s tenfold. Leaving out of view hei'e the unlawful character of the employment, we may say that there is a further utility in the employment given to human la1x)r \n the pursuit and capture of the animal and the manu- facture of the skins. There are probably two thousand persons em- ployed foi' a large i)art of the year in the taking of seals at sea, and a large number in the building of the ve.ssels and making of the imple- ments required in that occupation. A much larger number, principally rnOPKHTV IN TflK AI.VSKAN SR.M, HRnp. I inhabitnntfl of Ort'at IJritain, arc wholly iMiiplovod in tlic preparation of tho skins for marki't. Tlio annual value of the niannfnctnreil jtroduct can scarcely bo loss than SS.OOO.UOO or lili.OOO.OOO. But iliis last nu'Titionc'd utility, that which arises fi'oni tho employ- ment given to industry, is not ahsoluto and pormanont. If tho industry were destroyed by tho total dosti-uction of tho seals, some inconvenience would doubtless be felt before the labor could be diverted into other channels. It could, however, and would, be so di- verted, and tho loss would thus be repaired. Hut, as already observed, the case would bo different with tho loss intlietcd upon those who ir.r the skins. No substitute could supply this loss ; nor would there be any corresponding ffain. In tho cnso of some useful wild animals, tho American bison, for instance, which inhabit tho ejirth and subsist upon its fi'uits, and Avhicb are necessarily exterminated by tho occupation of the wild regions over which they roam, there is a more than compen- sating advantage in the more numerous herds of tamed animals which subsist upon the same food. Hut tho seal occupies no soil whicli would otherwise be useful. Tho food upon which it subsists comes from the illimitable storehouses of tho .seas, and couhl not otherwise bo made pro- ductive of any distinct utility. We are next to take into more particular consideration the natan- and habits of the seal, and tho other eireurastances above adverted to which enable us to measure tho perils lo which tho existence of tho race is exposed, and tho means by which these may be best countoi-- iu'ted. It is here that we encounter, for the first time, any mateiial contradiction and dispute in the evidence ; and, inasmuch as it is in a high degree important that wo should ascertain tho precise trutli upon these points, it should be clearly understood what evidence is leally befoi'e the arbitrators, and what measure of credit and weight should be allowed to the tlifferent classes of t'vidence. Any critical and de- tailed discu.ssion of tlic evidence, if incorporated into tho body of tho argument, might involve interruptions too much protracted in tho chain of reasoning, and will, for that reason, be separately presented in appendices ; l.'ut some general notion should be had at the outset of the relative import- ance of the various pieces of evidence. First. There is a large body of common knoivledge respecting the natural history of animals and the facts of animal life, which all intel- ligent and well educated minds are presumed to possess. In the ab- sence of those facilities, nuch as municipal tribunals afford for the pro- (^ ,0. •>. i:-.,' 8 : !^ '•' fcjf r' .i- 72 ARGI'MrXT OF TUF, rMTKO STATRS. ' ■ 1 ' ' I'l i^ mm mm kii] : t=4F' 'M: I'^'i ■'1 .i.-fi ,i ■f .r ■.'.i dui'tion and exanii nation of witnesses, it is supposed by tlio undersigned that tin's common knowledge may, with larsje latitude, be deemed to be already possessed by the learned Arbitrators, and to be available in the discussion and decision of the controvei'sy. Second. In the next place this knowledge may be supplemented by an appeal to the authoritative writings of scientific! and learned men, a*id also to the writings of trustworthy historians and of actual observers of the facts which they relate. Thij'd. The reports, both joint and sepai'ate, of the Commissioners appointed in pursuance of the ninth article of tlic Treaty, ai'c, by the terms of the Tr»^aty, iiiadr evidence, and were undoubtedly contemplated as likely to furnish most important and trustworthy information. Fourth. The testimony of ordinary witnesses, actual observers of the facts to which they testify. This is contained in I'.r imrtf depositions, but must, notwithstandiug, be i-eceived as competent. No mode having been provided by which witnesses could be subjected to cross-examination, these depositions must be accepted as belonging to the class of best obtain- able evidence. The necessity of caution and scrutiny in the use of it is manifest ; but it may be found to be of great value, depending upon the number of concurring voices, and the degree of intelligence and freedom from bias which may be exhibited. Concerning the reports of the Commissioners, some observations arc . appropriate in this place. Their duties were defined in concise bnt very clear language in the ninth article of the Treaty, as follows : Each Government shall appoint two Commissioners to investigate, con- jointly with the Commissioners of the other Governmenr, all the facts having I'clation to seal life in Bering Sea, and the measures necessary for its proper protection and preservation. The four Commissioners shall, so far as they ni.iy be able to agree, make a joint report to each of the two Governments, and they shall also report, cither jointly or severally, to each Government on any points upon wliicli they may be unable tcj agree. They found themselves unable to agree, except upon a very few points, the most important of which are expressed in the following language: 5. We are in thorough agreement that, for industrial as well as for other obvious reasons, it is incumbent n])on all nations, and ]iarticnlarly upon those having direct comnKM'cial interests in fur-r,cals, to provide for I lieir protection and presci'vatioii. * * * 7. We tind that since the vMaska purchase a marked diminntion in the number of seals on and habitually resorting to the Pribilof Islands has taken place : that it has been cumulative in effect, and that it is tlie result of excessive killing by man.i ' Cnw of the Uiiitcil States, p, 309. PnoPKIITS' IN THE ALASKAN sHAL HERD. 7:1 Theso gentlemen weie, Komo of tlicni .ai Iciist, iiu'u eminent in tl' work! of science, and acknowledged experts iqxm the siilvjeet comn 'u'd lo tliem foi" examination. Tlio language of tlic treaty simply ciUed for theii" opinionp and advice upon i question mainly seientitic. What was the reason which prevented thcju from coming to an agreement? Waa it that the question was a difHcnlt and doubtful one upon which men of science might well differ ? It would seem not. It is described in the joint report as being '' considerable difference of opinion on certain fundamental propositions." Wliat it really was appeal's from the separate Report of the CoT.n.Mssioners of tlie United States.' They conceiv*ed, as is therein stated liy tliera, that the only subject which they were to considei- was the facts- relating to seal life in the Hering Sea, and what measures were necessary to sccui-e its pi'cser- vation. If there were any question of property, or international right, or political expediency, involved, it was, presumably, to be determined by others. They had no qualifications for such a task, and were not called upon to perform it. But the Commissioners of Great Britaiti took a different view. In that view the question of the respective national rights of Great J3ritain and the United States was one of " fundamental importance," and no measures were entitled to consider- ation which denied or ignored the supposed right of subjects of Great Hritain to carry on pelagic sealing. Their understanding of the ques- tion upon -which they -were to give an opinion was not simply what measures were necessary to preserve the seals from extermination but what Avere the measures most effective to that end which coiiUi be devised CjiisisleiMij with a supposed right on the part of nations (/eHfralh/ to carry 07t pHarjic scnh'ng. It is not surprising that no agreement coiild be reached. There was a radical diffei-ence of opinion between the Com- niissioners in respect to their functions. According to tiio views of the United States Commissioners, a question mainly scientitic was sub- mitted to them ; but their associates on the part of Gri at Britain tlionght that legal and political questions were also submitted. ■ rlji! :,fl ) :i t 1 'r I il Hint 74 AIKJIMKNT Oh' THK I'NITKD STATRS. It seems very clo.ir tlia* tliis com-eptioii of tlicir powers ami I'm etioiis was wholly erroneous. Tliire weir liifFerences between Great Britain iiiid tlie United States respecting the subject of pelagic sef.l liuntiiig; but botii nations were agired that it was extremely desinble that the capture of seals slionld be so regulated, if possible, as to j.rcvent the extermination ot tlic species. it was extremely denirablf to both parties to know one thing, and that was. whetlier any, and if any, what measures were iiccessarij in order to prevent this threatened extermination. This \\as a mainly scientific (piestion ; but whether the measures which might be found to be thus necessary could be acceded to by both parties to the controversy Avas quite auotlier question, the decision of which was lodged with the political representatives of the respective governments. If they should be prepared to accede to them, all difficulty would be removed. If they should not be able to agree, a tribunal was provided with power to determine Avhat should be done, aud the reports of the Commissioners wcr(> to be laid before it for its insti-nction. Such being the view which the Commissioners of (ireat Britain « ok of tlu'ir own functions, their repoi't should be regarded as partaking of tlie same chai-actcr, and such it appears to l)e upon inspection. Thci'c is in no part of it any purpose discernible to di^icoxer and reveal tlic tiuo cause which is o])erating to diminish the nnml the Bepurt of the Uniti'il i-s ami I'm ctidiis 1 Circal Britain ic si'^l hunting; ^8ir!lble that tlu; to prevent the •siraV)!*; to both iiy, and if any, this threatened but whether tlu' couhl bo accedeil ler question, the ^entatives of the ac'-'ede to them, able to agree, a sliouhl be (lone, before it for its [•eat Britain took I as partakin^^ of .speetion. There r and reveal the s of the fur-seal, ts out. It is ati- d themselves to ])ehigie sealing ; lal)ored apology dcsiruetivc tcnd- tion. This beini;- miitted that any led to the s!i(t'- s ■luthors ; that eliahlo witnesses rong Inas; and be treated wi'h IS of eomisel. 'mt lort of the Com. ipon its authors, of tlie Uiiileil PKOl'l-niTY IX THl<: ALASKAX FEAL IIl'.llD. 75 States Commissioners liad tliey taken tlie same view of their funetions. Their conception, howevt.'r, of the duties imposed upon them was widely different. They regai-ded tlieniselves as called upon simply to ascertain the truth, whatever it might be, concerning "seal life in Behring Sea and tlie measui'cs necessary for its pi'oper protection and preservation." This seemed to them essentially a soieutiiic inquiry, and not to embrace any consideration of national I'ights, oi- of the freedom of the seas — a class of questions which they would probably have deemed themselves ill qualified to solve. They are not, indeed, to be presumed to be less intei-ested in behalf of their own nation than thei" associates on the side of Great Britain ; but as they did not (!onceive themselves charged with the duty of protecting a supposed mitional interest, they could remember that science has no native country, and that they could not defend them- selves, either in their own eyes, or before their fellows of the scnentitic world, if they had allowed the temptations of patriotism to swerve them from the interests of truth. Their report is earnestly recommended to the attention of the Tribunal as containing a statement of all the material fiicts relating to seal life, uncolored by national interest, and clearly presentirg the scientific conclusions which those facts compel. Fi'om the evidence classified as above, which may be regarded as being before tiie Ti'ibunal, we now proceed to collect the principal facts relating to seal life, and the methods by which the animal is pursued and captured, ■jo far as those facts are matei-iai in the inquiry whether the United States have the property interest asserted by them. For the principal facts of seal life wo borrow the statement contained in the report of the United States Commissioner.^. I'Rixi'ii'Ai, FACT.-^ IS' nil'; i.iKn iiisTOKv oi' mi: ilmi-skal. 1. The Northern fur-seal (Callnrhinns vrshms) is an inhaliilnnt of Bering Sea and the Sea of Okhotsk, where it breeds on rocky islands. Only t'onr breeding eoloni(>s are kiiown, namely, fl) on the I'ribilof Islands, belonging to the UniLed States; (l2) on the Commander Islands, belonging to Rusria ; (3) on Robben Reef, belonging to Russia; and (4) on the Kurile Islands, belonging to .Iai)an. The I'ribilof and Commander Islands are ill Bering Sea; Roithen Reef is in the Sea of Okhotsk, near tl-.e i.sland of Saghalieii, and the Kurile Islands are between Ve/.o and Kamchatka. The species is not known to iorccd in any other jiart of the world. The fur-seals of Lobos Island anil the south seas, and also those of the Galapagos Islands and the i.slands olf lower California, belong to widoly-dilYeront species, and are placed in different genera from the Xortheru fur-seal. •J. In winter the fi'ir-seals migrate into the North l\icific Ocean. ^ The herds from the Commander Islands, Robben Reef, and the Kurile Islands move south uloug the Japan coast, while the herd belonging to [.•U7J i i t ,-!■ 1 ill a' Ml'' '"': ■ 't i m>€" >: i i:-Tm" h\\i I If n I ¥ ' S I'. Ji 'r m i 76 ARGUMENT OF THE UNITED STATES. tl'.f Pnbilof Islands leaves Bering- Sea by the eastern passeH of the Aleutian chain. 3. The fur-Keals of tlic Pi-ibilof Islands do not mix with those of the Commander and Kui'ilc Islands at any time of the year. In summer tlie two herds remain entirely distinct, separated by a water interval of several hundred miles ; and in their winter migi'ations those from tha Pribilof Islands follow the American coast in a southeasterly direction, while those from the Commander and Kurilc Islands follow the Siberian and Japan coasts in a southwesterly direction, the two herds being separated in winter by a water interval of several thousand miles. This regularity in the movements of the different herds is in obedience to the well-known law that migratory animals follow definite routes in viiyratioii, and return year after year to the same places to breed. Were it not for this law, there would bo no such thing as stability of species, for interbreeding and existence under divei'se jihysiographic conditions would destroy all specific characters.' The pelage of the Pribilof fur-seals differs so markedly from that of tlu> Commander Islands fur-seals that the two arts readily distinguished by experts, and have very different values, the former commanding mucli higher prices than the latter at the regular London sales. 4. The old breeding males of the Pribilof lierd ar( not known to range much south of the Aleutian Islands, but the females and young appear along the American coast as far souMi as northern California. Returning, the herds of females move northward along the coasts of Oregon, Washing- ton and British Columbia in January, February, and March, occurring at varying distances from shore. Following the Alaska coast northward and Avestward, they leave the North Pacific Ocean in June, traverse the eastern passes in the Aleutian chain, and proceed at once to the Pribilof Islands. 5. The old (breeding) males reach the islands much earlier, the first coming the last; week in April or early in May. They at once land and take stands on the rookeries, where they await the arrival of the females. Each male (called a bull) selects a large rock, on or near which he remains until August, unless driven off by stronger bulls, never leaving for a single instant, night or day, and taking neither food nor water. Both before and for sometime after the arrival of the females (called cows) tlu- bulls fight savagely among themselves for positions on the rookeries an. I for possession of the cows, and many ai'e severely wounded. All the bulls are located by June 20. 6. The bachelor seals (hoUuschickie^ begin to arrive early in May, ami Inrgo numbers are on the hauling grounds by the end of May or Hi-si week of June. They liegin to leave the islands in November, but nianv remain into December or January, and sometimes into February. 7. The cows begin arriving early in June, and soon appear in large schools or droves, immense numbers taking their places on the roolc- eries each day between the middle and end of the month, the precisi' dates varying with the neather. They assemble about the old bulls in compact groups, called harems. The harems are complete early in July, ' The home of a spocics is tl;o nirii over whieh it breeclf. ft is well known to natiirttlists tlint iniprntory aniiimls, wliether nimnmnls, birds, fishe.i, ov members of other groups, leave their homes for a part of the jcnr beeause the elimiitie conditiors or the food supjily beeouic unsuited to their needs; and that wherever the home of ii species is so situated ns to j)rovide a suitable eliiiiate and food supply throughout the vein-. such Bpceies do not migrate. This is the explanation of the fact that the northern fur- seals are migrants, while tin* fnr-nenln of iropiesl and wann temperate latituile» fJu nut migrate. passeH of tlio th those of the In summer tlie jrval of several n th3 Pribilof on, while those rian and Japan y separated in is in obedience 'iiniie routes in breed. \y"ere it y of species, for anditions would from that of tlu> listinguished by imanding mucli known to ran,<;c d young appear nia. Returniiiir, regon, Washiug- ■cli, occurring at coast northward uue, traverse tlio ce to the Pribilof earlier, the tii'st at once land and [l of the females. -hich he remains |er leaving for a or water. Botii called cows) tlu> |he rookeries an! unded. All tlir [arly in May, ami of May or first jmber, but nian.v jruary. appear in lavi>;o les on the rook- Inth, the precis.' Ithe old bulls in |;to early in .1"': > is well known ti) |r iiipinbors til' "ili<''' lie fonditioiiH or tbB bouio of 11 species ■n-oughout the \t"!n', \i the northern I'm- Hie IflHtuJen do »"' PnoPKinT IN THE ALASKAX SKAT IlKRTt. 77 at wliich tiiiu- tlio breeding' rookeries attain tlicir inaxinnim size and coni- pactness. 8. The cows give birili to their young soon after tatung their jjlaces on tlie harems, in the latter part (jf Juno and in July, but a fnw are delayed \iiitil August. 'IMie period o!; gestation is between eleven and twelve laontljp. !). A single young is born in each instance. The young at birth are ul)out equally divided as to sex. 10. 'J'lic act of 7iursing is performed on land, never in the water. It is iiecessai'y, therefore, for the eows to remain at the islands until the young are weaned, whieli is not until they arc four or five months old. I'ach mother knows her own pup, and will not permit any other to nurse. This is the reason so many thousand pups starve to death on the I'ookeries when their mothers are kiiicd at sea Wo have repeatedly st'en nursing cows come out of the water and search for their young, often travelling consideral)Ie distances and visiting group after group of pups lu'fore finding theii' own. On reaching an assemblage of l)ups, some of which are awake and others asleep, she ra])idly moves about among them, snifling at each, anil then gallops off to the next. Tho.se that are awake :i(lvanco toward her, with tlie evident ])nrpose of rursing, but she re[)el8 them with a snarl and passes on. When she tinus her own, she fondles it ;i moment, tuims partly over on her side so as to ju-esent her nipj)les, and it jiromptly begins to suck. In one instance we saw a mother carry iier pup hack a distance of ]."» nu'ters (•"jKfeet) beffu'c allowing it to imrse. It is said that the cows sometimes recognize their young by their cry, ii sort of bleat. 11. Soon after birth the pups move away from tiie hai-ems and huddlo together in small g'.'onps, called " pods," along the borders of the breeding rookeries and at some distance tVom the water. 'I'he snuUl groups gr.idu- ally unite to form lai'ger groups, which move slowly down to the Avater's eilge. AVhen six or eight weeks old the pups begin to learn to swim. Not only are the young not born at sea, but it' soon after birth they are washed into the sea they are drowned. \2. The fur-seal is polygamous, and the male is at least tlvo times as large as the female. As a rule each male serves, about fifteen or twenty females, but in some eases as many as fifty or more. l."5. The act of copulation takes plaet^ on land, and lasts from five to ten minutes. Most of the cows are served by the middle of July, or soon after ilie birth of their pups. They then take the water, and eome and go for food while nursing. ll. Many young bulls succeed in securing a few cows behind or avay irom the breeding hai'ems, iiarticularly late in the season (after the middle of July, at which time the regular harems begin to break up). It is almost certain that many, if not most, of the young cows arc served for the .H'-s.' lime by these young bulls, either on the hauling "'rouiuls or along the water front. These bulls may be distinguished at a glance from those on the regular harems by the cireumatance that they are fat and in excellent condition, while those that have fasted for three months on the breeding- rookeries are nnu'li emaciated and exhausted. The young bulls, even when they have succeeded in capturing a number of cows, can be driven from their st.njuls with little difliculty, while (as is well known) the old bulls on the hai-ems willdi(! in their tracks rather than leave. 1."). Thi' cows are lielieved to take the bull first when two years old, ami 'leliver their first pup when three years old, U). Bulls first take stands on the breeding rookfries when six or seven [317] f'-i 4f i I % Hi' .•■ % ■';iv 78 AHfJUMENT or TIIK l'Nrn:0 STATKS, r '■il S ' 51 .1 yr,|| ^•I:f| years old. iJet'ori- tliis tlicy ari- iiol. poworful ououj^li tn tit'lit tlio older bulls I'or positions on the hiirciiis. 17. Cows, when nursini;', rejrahii'ly travel loii i-emaining there l)elonging to widely different sjieeies. in (he general discussion of the question submitted to tlie Commis- sion it will be convenient to consider the sul)ject under three he:iils, namely : Conditions of seal life in the region under eonsiileratiou at the prese.it time. Ca««e*', the operation of which lead (o e.visliu;^ conditions. Bemndiis, which if ji|)plietl would i-esult in the restoration of seil life to its normal si.tte, and to its I'ontiuued preservation in that state. icht tlie oMi'f to rocii. 'ri>''y I somctiiiiL's 111 [•ustiH-'i'ans, iu>d jediuf? bulls us 3 of Novomltor. togothoi- with a until February, Isliiiuls I'iglit or ths of tliu liiuc. 10 In-eciUnf? bulls lit four months : the nonbrcediiii;' H'hout thoi'utiir I, the last of tin- nlur Meriug Sen Is, however, aru orthwcst Coast ; y pt'la<,'io sealers to the Pribiiiif ,-e been found in British Columbia le kind has come iljer of eows that and are tlieri'l).v st licrforee give Ihcy nmy be at of Islands to tlie ids the climatic species re(|uiros gy atmosi)here lo mer season when iciies on which to outhward of the son (lie Aleutian ol" eliinato and foinieriy bred mi rnneous, the scal> to the Comniis- er three iicads, )u at the present ns. ion of se:d life to state. PROPERTY IN THK ALASKAN 9KAL HEHD. 7y Wo niahe no apology for adopting those statonionts of the United States Comniissioners in their own language. The fc.cts could hardly he more precisely expressed, and it is believed that every i)art of tli(> statement will be aecei)ted by the Trii)unal as true. There is. indeed, but little to he found even in the report of the Conimi.ssioners of Cneat Jb'itain in (lie way of direct contradiction. Tii order, however, that the Arbitrators may be facilitated in the verification of any facts as to which tli(>y may lie in doubt, a brier discussion of the facts as to which any (piestion has iieen nnido in the Report of the British Commissionei'S will be found in I'art Si.\th of this Argument (pp. 2L'S-;U3). There arc! certain material propositions of fact which are not wholly embraced in the above quoted extract from the lioport of the Commis- sioners of the United States, altliough they are substantially i-outained therein, which deserve formal and separate statement. • Kirst. In iiddition to tlie climatic and physical conditions above enume- rated as necessary to render any place suitable for a breeding gi'Onnd for the seals, exemption from hostile attack or molestation by man, or other terrestrial enemies, should bo included. The defenceless condition of these animals n[)on tin? land renders this security indispensable. If no terrestrial spot could be fonml possessing tiie favoi'able climatic and jihysictal requirements aljove mentioned, and which was not at the same time exempt from the tinregulated and iiidiscrimimite hostility of man, llu' race wcuiid speedily ])ass away . Second. 'J'hc mere presence of man iipmi (he Ijrccding places docs not r"pel the seals, nor operate unfavorably upon the woi'k of I'oproduction. On the contrary, presence and the protection which he alone is capable of aihirding, by keeping off marauders, arc alisolutcly necessnry to the |ireser\ation of the species in any consideralilc inimbcrs. Tliii'(l. If man invites the seals to come upon tlicir chosoii I'esorls, ahsiairs frinn slanghlc^ing tlii'ni as tlicy iirriv(>, and clierishes ilic hrecding animals liiiiing their sojo'.tin, they will as confidingly submit thomaelvcs to Ins [lower ;is domestic aninnds ;.rc wont to do. [t then becomes erdirely liracilcalilc to liccl and .separate I'roiii the herd for slaughter such a, uumhcr of jioiibicedinu' animals as maybe sal'cly takcLi wiihont encroaching 11)11111 the p, rniani'iit .'-toi !;. I'Vt .1 V • ti ■ \ ■■■Y .'. -ij- l\ -,) • t ^ I mil ''J v,« ,T'f SO ARGUMENT OF THE UNITED STATES. ill Foui'th. If tho herd were exempt from any clopredation by man, its numbers wouUl reach a point of equilibrium lit which tho defieii)ncy oi food, or other permanent conditions, would prevent a further increase. At this point, tho animal being of a pohjgamoua nature, an annual draft from nonbreeding males might bo made by man of 100,000 — perhai)s a larger number — without causing any appreciable permanent diminution of the herd. Fifth. Omitting from vlow, as being inconsiiloi'ablo, sui^h killing of seals as is carried on by Indians in small boats from the shore, there are two forms of capture at present pursued : That carried on under the authority of tho United States upon tho Pribilof Islands, and that carried on at sou by vessels with boats and other appliances. Sixth. The killing aff the Pi'ibilof Islands if runliueil, as is entirely practicable, to a properly restricted number of non-breeding males, and if pelagic sealing is prohibited, does not involve any danger of the extermination of tho herd, or of appreciable diminution in its normal numbers. It is far less expensive than any other mode of slaughter, and furnishes the skins to tho markets of the world in tho best condition. Tho killing at these islands, since the occupation by the United States, has been restricted in the manner above indicated. It has been the constant endeavor of tho United States to carefully cherish tho seals and to make no draft except from tho normal and regular inci'ease of the herd. If there has at any time been any failure in carrying out such intention, it has been from some failure to carry out instructions, or want of knowledge respecting tho condition of the herd. Tho United States aro under the unopposed influence of the strongest motive, that of self-interest, to so deal with the hci'd as to maintain its numbers at the highest possible point. The annual draft made at the islands since tho occupation of tho United States has been until a recent period about 100,000. This draft would be in no way excessive were it tho only oiie made upon the herd by man. Seventh. Pelagic sealing has three inseparable-incidents : (1) The killing can not be confined to males ; and such aro the greater facilities for taking females that tliey comprise three-fourths of the whole cateli n by man, its dcficiDncy ot i-tlicr incveasf. 1 auuuiil draft )00 — pei'liaps a ; dimiuutiou of killing of seals I, there arc two sr the authority irried on at sea i, as is entirely liug males, uml danger of the I in its normal le of slaughter, 1 test condition. United States, t has been the lerish the seals ar increase of lU carrying out instructions, or The United motive, that of numbers at the slands since the it pei'iod about it the only one are the greater hs of the whole PROrKHTV IN THK ALASKAN HEAU HEllD. 81 (2) Many aoala arc killed, or fatally wounded, which aro not roeovored. At least one- fourth as many as aro recovered are thus lost. (•V) A large proportion of tlin females killed are eitiicr heavy with yuung, or have nursing puj)s on the shorv>. The ovideuce upon theso points is fully discussed in Appendix. Eighth. Pelagic sealing is, therefore, by its nature, destructive of the alocJc. It can not be carried on ni ill without encroaching pro fanto niMJn the normal numbers of the herd, and, if pi-osecuted to any con- siderable extent, Avill lead to such an extermination as will render the seal no longer a som'ce of utility to man. Returning to the main proposition hereinbefore established, that some legal and determinate owner must bo assigned to all tangible things which are (1) objects of desire, and (2) limited in supply, and (3) capable of ownership, the question i.'i. do the Alaskan fur-seals exhibit these three essential conditions of property ? Respecting the first two, no discussion is needed. That this animal is in the highest degree u.-;cful to man, and an object of eager human desire, is not questioned, and this earnest controversy is abundant proof of it. That the suiijdy is limited and in danger of being cut off by the depredations of man is agreed to by tho parties.' Whatever difference there may be, must and does arise upon tho question whether tlie animal is snscejitibic of uirnership. Doubt and difference arc indeed possible here, and the first step in the effort to remove them should be to have a clear under.staud- ing of the meaning of the term, nusceplihilltij of ownership. The definition which would naturally bo first given is susceptibility of ajipropriation by the owner to his own use to the exclusion of all others. But this does nut render the whole language entirely intelligiide. We still need to know how it is possible for man in mah- this sort of exclusive appro- priation to himself. What are the aiis which are sutticieut to constitute it? Must the thing, in order tc be thus appropriated, bo actually Vm manu, or otherwise physically attached to the person of the owner, or even within his immediate reach and sight, so that he can immediately assert his appropriation and forbid all intrusion upon it ? It is here that the conception of oiuiu-mhip, as distinct from mere possession, comes into view, and, iiuismuch as it has a close bearing ' Joint Report, Coso of the United States, p. 309. % •'I U i 'M *t ■' i ' 1 ' , ■'. h :..-i \Mi^- V, 82 ARGUMENT OF THE UNITED STATES. • .! f%il: IK^ri m Mm, upon tlu' subject of our discussiou, it slioulil receive correspoudiug at- tentiou. In tlie rude iiges of Hoeiety there was but little occasion to anscrt a right of property beyond the few nocossnry things which life required, and these were mostly held in immediate possession, winch could be defended by individual power. Clothing was upon the per- son, and the weapons for the chase, and the few agricultuiul imple- ments were within immediate reach. The stock of cattle and any surplus stores of food were the property of the community or tribe. Hut, upon the change to private property, individuals, in pursuance of nat- ural desires, would seek to provide themselves with increased abun- dance of cattle and agricultural products as stores for the future. In this and manifold other ways there arose a need for protection to these accumulations when beyond the immediate possession of the producer. If they wore taken by another, the attempt would be made to regain them by force ; and the disposition to produce and save would be dis- couraged by the difficulty and danger. The same necessities out of which property arose, namely the peace and order of society and its advancement, forced a development in the conception, and gave birth to the idea of ownrrshij) as distinct from and independent of actual possession. Society canie to the aid of individual power, and under- took to guaranty to the individual the peaceful enjoyment of what he had produced by stamping upon it his personality. We thus perceive that the idea of (>wnvrship as distinct from posses- sion is not an original conception. It is the product of an evolution in thought, whicli hns accompanied the progress of man. An able English writer, in the course of an interesting sketch of the successive stages of this development observes : The fact or institution of ownership is such an indispensable condi- tion to any material or social progress that, even throughout the period during which the attention of law is concentrated upon family and village ownership, the ownership on the part of individual persons, of those things which are needed for the sustenance of physical life, becomes increasingly recognized as a possibility or necessity. One of the most important steps out of savagery into civilization is marked bj' the fact that the .security of tenure depends upon some further con- dition than the mere circumstiince of possession. The use of the prodiicts of the earth, and still more, the manufac- ture of them into novel substances, consists, generally, of continuous processes extending over a length of time during Avhich the watchful attention of the worker can only bo intermittently iixed upon all the several points and stages. The methods of agriculture and graziiiu', as well iis the simplest applications of the principle of division of lahor. similarly presuppose the repeated absence of the farmer or mechanir from one part of his work, while he is bestowing undistracted toil upon !l| - ; S » liV' ' :r1. PROPETtTY IN THE ALASKAN SP.W, TIEf{T>. S',\ I'spomling at- (( occasion to rs which life icssion, -which ipon tho per- iltuml implc- i,ttlc and any )!• tribe. Hut, luaiico of iiat- creased abun- lO future. In 3ction to these the jiroducer. iiado to regal u would bo (lis- -ssities out of society and its lid gave birth dent of actual er, and under- Tit of what he ct from posses- m evolution in able English essivc stages jensable condi- iroughout tlie upon family idual persons, physical life, Rsity. One of ion is marked ■10 further con- the manufac- of continuous the watchful d upon all the and grazinu-, /ision of labor. or mechanii acted toil upon anothei part ; or else entire absorption in one class of work, coupled with a steady rtlianco that anotlior class of work, of ecpial inipovtaiice to himself, is the object of corresponding exertion on the part of olliors. In all these cases tlie mere fnct of jiliysical liuMing nv jinssfssiini. in the narrowest sense, is no test wlmtever of the interests vv claims of [lersons in tlie things by which tliey are surrouniled.' 'The Si'iciK'f of tho Linv, bv Shrliliin Anuw, Lotul., ISHI, ])]i. 148, vf neq. A (lis- liiifjiiifthod Fronc'li jurist tlnis trucos the dovclnpniiMil nl' tlu" coiici'ptidn of (iirncrship t\* (listiiiet from )wss('ssioii ; "Skc. (11. If tlu> laws iidiu'liod to ))i'i>iioi'ty imd tliosc wliicli nrc ili'vivod from it nro now vi'vy I'xtiMi.sivo it wn^ not tluis oriiriiinliv. I'rci|)crly was coiit'oinKlcit witli |)i)ss('S'isted in that the thini; I'umnion to all did not belong nioro to each one of Iheiii in ])arlicLilnr tliaii to the olher, and in that no Olio could prevent another from tiikin^ that wliich he eonsi(h'ri'd proper to make use of in lii.s needs. "Tliis dootriiiHl expression of nosjative eominunity si;;iiilh's nolhiiif» else but the primitiro and dotonninate right {droit) that all men hud originally to uialio use of the goods which their earth ofTored, as loni; as no one lind yet taken possession of them. "Src. ()5. It is this which i-- termed the rip;ht of the Hr-I occujiant. He who (Ir-t possesses himsoH' of a thing accpiiros over it a kind of transient owiicrshi]i. or, to spi'ak moro exactly, a right of preforonco wliieh others should respect. 'I'hey sliould leave that thing to liim while ho possesses it; hut after ho had ceased to make use of it or to occupy it, iinother in )iis turn miulit make use of it or oecn])y it. "If the older jiossossor hail invoked his past possession as a right of preference still existing, tho younger could be able to answer by his present possession; and when, tiirtlierinoro, rights are ociunl on both sides, it is just and natural that the actual ]H)ssessor should bo preferred ; for to take possession away from him there shouhl lie ii stronger right tlian his own. '' Tluis the right of ocou])ation is a title of h^gitimale preference loundcd on naliiro. "Skc. 06. The existence of this ])riniitivo state of negalivi" eominunity is inconlostiblo ; ))ri)ofs of the same are found in (ioncsis, the mo-it ancient of all liooks, and the most veiierahlo even when considering it only from an historical ]ioint of view " Tho ))ools, in their jiictnring of the Golden .\go. have left us ornamented works, hut inaccurato ones. The ancient historians have transmitted to ns tradition; and. linally, examples thereof were found again in tho habits of llio savage trilies of America when that continent wa^ discovered. "Sec. (!7. Thus following a comparison of C'iecro, llie woriil was like a va.-l llieiiter belonging to the jiublic, and of which ea<'h seat became the properly of the first oi'cupnnt as long as it suited him to remain therein, but which he coulil nut ])rcvent iiMotlier from oooupying iiftor ho had left it. "SiiC. 08. lint how could tliis prcferenee aciii,ircil by occnjiation have become a stal)lo Miul pernianoiit ownership, that would conlimie to subsist and could be reeiaiined after tlio first occupani had ceased to bo in p issession ':' 'It was agriculture that gave birth (o the idea of and made fell its nece»ity fcu- pennaiienl properly. In measure as tie' nniuber of nu'ii increasod.it beeauie more •(ionefi.'i i, Js Mv\ 2!'. ''I !>'• r: lit' !i:- if (' ^, ■ ^ A^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I IA.-I21 12.5 |50 ^^ III^H Ui ■u u tyut. 140 IL25 i 1.4 ■ 2.0 1.6 PhotDgraphic Sciences Corporation :i>' ^> \ ,v 33 V.ifSi MAIN STRUT WIBSTM.N.Y. MSM (716) •73-4S03 m ii M II U AKOUMBNT Or THE UNITED STATES. Tbo range of tbonght by wbioh tlie i>igbts of ownct-Hbip aro limitetl to a clear pbyfaical possession is ciiaraoteriHtic of tbe barbaric ago. Tho first advances beyond it are promoted and acuompanied by tho begin- nings of tbo conception of ownership as distinct from poaaession, and tile full development of that conception is the condition and accompani- nsent uf the advanced stages of civilisation. Its final expression irs in the main proposition which stands at the basis of our argument, ai»d was laid down at the beginning, namely, that every useful thing the Niipply of which is limited should bo the property of a determinate owner, provided it is susceptible of exclusive a])propriation. With thoHo things which ni-e capable of actual possession at all times there is no difficulty. The right of property once established by possession continues, but in the case of thoso things not thus capable the law (liflli'iilt to find iictv uiiinlmbiteil ]tiii(l> ; niul on tli<> other liiind coiitiDued huhitntion ol' till* Naino ])lii('(' cM^'ciidiTi'd it too ni)>id <'uiiiiuiii]>tiun of tlu> imtuml fruilH of tlu> viirtli I'oc tiii'iu to Mullii-f for the HubsiNtonci- of nil thu iiilmbituiitM iiiul of their flockn, without rliim-niii; lociilitv. or without providing; tlKTi'for bv cultivutiuii in a constiiiit and rogului' limnurr. " Thu> njjrii'ulturi' wn^ tin- iiutiind result «f the iiiereaw of tin- huiimn (ij)eeief. ; iiprieullui'i' ill turn favored po]iuliitiiiii. mid reiuh'red necessary the eHt»l)liHhnieiit of |)eniiiiiient piMpeHj. For who wouhl give liiniHelf the trouble to labor and to sow, if he liitd not llie eertiiiiitv of ivapiii({y ■■ The Held tluil I have cleared and miwii should hi'loiifj to iiie at least until I liioe ^'iithered the fruits that niv labor has produced. I have tho right to employ force to repulse the unjust jierson who would wish to diti|iosHC88 nic of it and to drive away him who should liiiM' seized it during my absence. I inn ivgardud as continuing to occupy the field from tho first tilth to the ]iar\est, though, in tlic interval. I do not perform eaeli nioiiieiit exterior acts of occii]>atioii or of posHCHsion, because one cannot suppose that I have cleaivd, cultivated, and sown without intention to reap. ".Sec. liit. This lial)itual iiccujiation, which ivsults from cultivation, jireserves there- fore the right of preference which 1 had iicipiired by tlrxt occupation. It is this Iiabituiil occupation which civil law (/c sses»ion, and was !ost with jiossessioii. This principle is still followed in regard to things which have rcpjui.^etl in the primitive state or negative community, such as savage animals. "Sec. 71. Tn order to give to property a nature of stobility which wc observed in \vc ob»orvcil ill rROI'KllTy IN THK ALASKAN' SKAL HK-RD. 85 doOH not lend its aid to rcint'orco the impeifuct possession unless the great purposes of human soeicty rL'»|uiri' it. Tiiat it will leiul its aid to the utmost oxtent whoa necessniy in order to attain its own great purposes is made manifest by the tendency of the advancing eivili/ation of tiiu present age to award a right of property in the products of the mind, which are wholly iutaugii)le and not the subject of possession in any form, and to extend the right, not only by municipal law throaghout the territories of paitieular states, but beyond their boundaries by the means of an international recognition. This right, fully defended by natural law, autl long established in rospcot of useful inventions in the arts, has been fcjr years pressing for I'ceognitifju in respect to all the products of the uiiud and throughout the world. Its inherent moral force has secured a certain measure of obedience without thu aid which is furnished by judicial tribunals, and it to-(liiy. iH)Kitivo liiw< mid iniij^istnitfs to exocutc tliciii wcro necessary; in other woiili*. the firil ^tute was rcqiiirt'il, "Till' illl•rl•ll^'(• of tlic liuinan !<|)e(ii's liiid mnli'i'i'd ;i'_'riculturo lieciNwin ; the iiri'd to iisMUi'c to tlie ciiltiviitor the fruits of his Ial)or iii;idi> felt the nfci>s»ily of pi'mmiu'iit liropt'rty uiid of laws to protect them. Thus, it is to jiroperty that w« owo the fouixhi- tioii of llic civil state. Without the tie of property it woulil never hiivo been jiossihlo to subject iiiiin to the salutiiry yoke of the hiw ; and witliout pernmnciit property tlie earth would have continued to reiuaiii a vu>t forest. • " Let Us nay, therefore, with the niosl exact writer.-, that if transient ownership or the ri^^hl of preference with occupation t;i\e.'<, is anterior to the foundation of civil sircicty jiennanent ownership, as we know it, to-day, is the work of civil law. "It is civil law which Inis ejtalilislied as a maxim that once acipiired projicrty is ncv<-r lost without the act of the owiu'r. and that il is pn'served even after the owner lias lost possession or detention of the thinj.', and wiu'ii it is in the hands of a tliii-d party. " Thus property and possession, which in the )>riniilixe ,-late were confounded, became by the civil law two distiu't and independent thinirs; two tliini;- which, accordin)r to the lauf^uago of the laws, have nothhig in common between them. Property is a right u Icfjal attribute; possession is a fact. " It is seen by this what ])rodini()Us chaiij^'cs lune been wroui,'ht in pro|»'iiy. and Uow much civil laws liave changed i(- niiturc. "Sec. 72, This channo was ejfected iiy means of real action tiinl tho laws granted against the possessor whoever he miirlil lie, to compel him to surrender the thing to the owner who luul lost possession thereof. This action was granted to the owner not alone against the possessor in bad failii, but also ajxainst the possessor in good faith, to whom (he thing had conic without fraud or without violence, without his being cognizant of the owner's rights, and even though he had acquired it from a third party by virtue of a legal title. "Sec. 7;1. Property was, lliercfoiv, considen'd a moral quality inherent in the thing, us a real tie which binds it to the owner, and which can not be severed without an act of his. This right of reduiming a thing in whatever hands it is found is thai which forms the principal and distinctive characteristic of property in the civil state." (TouUier I'roneh Civil Law. Paris, 1842, 5th ed., vol. 3, tit, 2, ch. I.) m Il-Ilt,(''i \r *■ \ VJil 1 i 86 AKGUMKNT OF THE UNITED STATES*. its complfti' c'stnblislnnont by the instrnuientality of formal iiiti'cnational copyri'glit laws is impationtly awaited. TIh'sc considerations lead up to llic particular problem upon which sw ave enpapfcd namely, what is caprthilify of ou'wrnhlp, that is to say, un/ler what circumstances, and to what extcTit, will and does society step in and niil tilt' infirwity (if ludiridnnl poirrr by stamping the character of oioiersliijt upon tilings which are out of the actual possession and away fnmi the presence of the owner? TIic general answer is obvious; it will do tliis whenever so;'iaI nccossities require, and to the extent to which they require it. And this answer is best justified by pointing out what society, tlirough the instrumentality of the law, universally does. We may first look to the instance of lantl. In respect to tbe earth itself, society will recognize no title which is not directly, or indirectly, acquired from itself. Xo man is permitted to assert in respect to uninhabited countries, or countries inhabited only by savages, a private title. But nations may assert a title thereto, although there is a limit to such assci'tion. No nation can assert an ownership over such lands to an extent greater than it can reasonably occupy and improve. The limit is found in that principle of the law of nature which declares that the earth was made for ninvilvind, and in order to enable the human race to carry out its destiny, and that to this end civilized nations may supplant barbarous ones ; but that every nation in thus appropriating to itself the wa.ste places of the earth, must not take from others what it can not it.self improve and apply to the great destiny for which in the order of nature it has been givi'u. In respect to individual ownership of landii, the slate will recogni/.i' and maintain private titles to such lands as it choose,'^ to give. Some- times, as we have already shown, in early and rude .social conditions, it [)refers to give nothing, but to retain the ownership in itself, lu general, however, civili/ed societies permit and encoui'ago the acquisition of lands by individuals and place no limits upon the extent of acquisition. Society acts upon the assumption, for the mo.st part un- doubtedly correct, that under ijulividnal ownership its territories will be best imj)roved and turned to the purposes intended by nature. Thattlu? underlying motive upon which society acts is the intention that the soil should be devoted to thoso purposes to which the law of nature dictates that it .should be apjdicd, is well manifested by the cii'cuni- stance that, wlierc the a'-tidn of the |)ri\ntc pioprietors liiuls to coiiiil- eincl this puliry. the .'t.'iti- i,- rdttn mnvcd to revoke its gilts, ami mnkc iiti'ciiational 11 which wf say, nryler • step in mill •of otvuershij) ny from thi; it will do 1 which they what society, We may first which is not ttcd to assort y by savagi'is, gh there is a versuch lands ,e. The limit ires that the uinian i-ace to may supplant to itself the can not itself r of nature it nil iccognizc ive. Sonie- il conditions, in itself, lu lie acquisition le extent of nost part mi- ories will be c. That tJM^ on that tilt' i\v of natiiru the circuiu- uls to ('oniil- Is. und inaki- PK STATKS. I ,!| m All tlio iisij'i'l u.>)nc.stic inn'tiiitls art' lii-ld to he tlic hiibjocts uf fxclii- Hive nppropriiitioii, ll()^,cv('r widely f dmnestic aninials .vonhl not have existed. !u the case of animals in ccerij ri-^jtect wi'hl and yet nxr/iiJ, such as sea lishes, wild ducks, and most other species of game, wo find diflercnt conditions, Hci-o man has no control over the animals, '"hey do not, in conseciucnco of their nafuro and habits, regularly subject them- selves to his power. Ho. cannot determine, in any case, what the annual increase is. He cannot separafi' the sn])erfluou8 increase from the brcedinc' stock, and confine his drafts to the former, leavinf? the hitter untouched. I'or the most part these animals ai'e not polyfininous, but mate with each other, and no ])art of their numbers are tuiporjlunn^ rather than auotlier. All drafts made upon thorn are c(pudly destruc- tive: for all must be t:\ken from breediufr aninuils. No selections for siaughtcr can be made, In short, man can not, by the practice of art and industry, brcnl them. They can not bo made the subjects of liif- bnndrij. And yet man must be permitted to take them for use, or he wholly deprived nf any benefit from them. No award of a properly interest in the?n to any man or set of nu-n would have any effect iu euablino; the annual increase to be apjilied to satisfy human wants and at the same time to preserve the stock. The law could not give to individual men that control over them which their nature and habits deny: and the law never makes the attempt. The fish of the sea iuiil most of the fowls of the air are, and must forever remain, in every sense wild. They are not, therefore, the subjects of property. And here nature, as if conscious of the inability of man to furnish that protection to those wild races against destructive pursuit whidi the institution of property affords iu the ca<;e of domestic auiuials, her- » . . ti rnopKiJTv IN rm: mask an skai, fikhp. SO M'lf DJakeH jtrovisioii fciv the |i\iiii('i)i'. In liiniiiiii,' witliiii imirow boinuls Ill's conlrol over tl;cni, slic corrcspondiiijjly limits his power of destruc- tion. She confers \\\wx\ those races the means of eludinii; oaptuiv. And, besides this, in the cnse of wild nnimnls most largely nsefiil, sho makes dftruction practically impossililo l»y furnishing a prodij^ions snpply. The great families of useful fishes arc practically inexhaust- ible. This 18, however, much less so in some cases than in others. Tu respect of many species of fishes, game birds, and other animals, the human pursuit is so eager as to endanger the existence of the species j and in such instances, society, unable by the award of a property interest to aiiest the destruction, resorts to the most effective devices which are in its power to secure that end. It confines and limits the destruction to certain sensmm nml places by positive ennctmonfs of which L'.'imc laws nro the type. \Vc now come to those animals which lie near the vague and indefinite boundary which separates the vHil from the Intnr, to animals whicli exhibit some of the qualities of each class: and \vc shall instance those already made the subject of discussion when confining our inquiry to the settled doctrines of the municipal law. These instances were those of lutes, deer, pigeons^ wild geese, avd swans. All these, it will be remem- bered, are regarded in that law as subjects of property so long as they possess the animvm revortendi, evidenced by their usual habit of returning to a particular place. These aiiimals differ widely from each other in their nature; but they have certain characteristics whicli are common to all. Each of them, habitually and voluntarily, so far subjects itself to the control of man as to enable him, by the practice of art and industry, to take the annual increase for the supply of human wants with- out diminishing the stock ; in other words, to hrad ihvni, and to make them the subject of hushandnj ; and, in the case of ea<'h, unless a property interest were awarded by the law, that is to say. unless the law came to the aid of human infirmity, and declared them to be suscppti'hh' of otcnf-y- ship, notwithstanding the want of actual possession, they would cease to exist and be lost to the world. The case of hcPS is an instructive illnstratiou. They are by nature wild. They can not be tamed so as to be made obedient to man. They move freely through the air anfl gather their honey from flowers in all places. But they have an instinct whicli moves them to adopt a suit- able place for a home, and man may avail himself of this to induce them to take up tbcii- abode upon his property, where he can protect them i':' M (-. ;•!} ...1 ■ ..Tr.'S I.- '^ ■, 1 • M mt M ^:.\A--' 1" 0. U : -i Ir 90 ARtiL'MKNT CK TIIK rNITKlJ STATIX. i \ Hfl^^HO i i^^H I^^H '}m ■ ' jB^HB H 1 ■I from iitliui' iiit'inies iiiui tiiki' from tlii'.;i ii Jiiiit ol' llu.ir accuiuultitfil sHlorcs. Hf is tliiis also tnalilfd to caplurf tli« now swaiiiis svliicli an' producctl, l»_v follo\vinj{- tliem us tlii'y tuko tlicii* iliglit. In this w.iy tlif ar' and industry of man may increase the stoL-k of bees anil the useful ' a\ which tliey supply. Tlie municipal laws of all nations thcrefutc declare that bees thus dealt with arc i»roperty. Anyone who dofttroys them, even when awi.y from the laud of tho owner, commits a wrone also may be made wonted to a particular place, from which they will widely wander over waters belonging to different owners, or to the state, but to Avhich they will habitually return, and where they will rear their ^•oung. They thus submit themficlves voluntarily to tho power of man, and afford him a control over them which enables him at once to pre- serve the stock iiiul tiike the inirreasc. 0;i these grounds a right of PROPERTY [N THE ALASKAN SEAL HERD. 91 arcumuliiliil us wliii.'li iif' I this sv.iy till- mil tlu.' usufiil on.H therefore who ilostroys mit8 a wroii^ of property it bi'Voiul tho )ursiic it. 1 1 rther. There of man. They forest. Man table place for lem and their them by man. ;d by feeding ; lies and clier- , and by judi- cured in con- ils a difiluulty which protect ingle, and the the opinion of ground is the ul industry its Without such s from this tincts of wild them subser- ivuus. These ich they will ir to the state, ill rear their ower of nmn, once to pro- ds a right of property in them is concoded to the owner of the spot which they make their horoo, which is m)t lost by the temporary departures therefrom. Any killing or capture of these animals by another, having notico of their hnbits, is a violation of pi*oport.y rights for which the law furnishe.s redress. So also in tho case of deer ordinarily kept in an inclosnre, and fed, and from which selections are made foi slaughter. The habit of returninj; is here only imperfectly established. The animals are apt to rosamu their wild nature; but nevertheless, the economic uses they subserve arc sufficient to sustain a property interest in them, inasmuch as they ai-e thus made, to borrow tho language employed in relation to them by the English Court of Common Pleas, " as much a sort of husbandry as horstt cows, sheep, or any other cattle.'" It is observable that these doctrines relating to property so familiar in the municipal jurisprudence of civilized nations, relating to the sev- eral descriptions of animals above mentioned, have not had their origin in special legislation, bnt in the unwritten law. They are the fruit of the nnconseions action of society manifesting itself in the formation of usages which eventually compel the recognition of law. This means that they hare their origin in natural law which is tho basis of all un> written jnrisprudence. They are the dictates of universal morality, cultivated, ascertained, and formulated by judicial action through long periods of time. It is this which stamps them with that character of approved, long established and unchangeable truth which makes them binding upon an international forum as being the indubitable voice of natural and univcraal law. The inquiry which has thus been prosecuted into the gt*ounds and reasons upon which the institution of property stands fnlly substantiates, it is believed, the main proposition with which it began, namely, that irhere any useful animals so far subject themselves to the control of particu- lar men as to enable them exclusively to cultivate such animals and obtain the annual increase for the supply of human wants, and at the same time to preserve the stock, they have a property interest in them. And this conclnsion, deducible from the broad and general doctrines of the law of nature, is confirmed by the actual fact as exhibited in the usages and laws of all civilized states. Wherever a useful animal exhibits in its nature and habits this quality, it must be denominated and treated as the subject of property, and as well between nations as between [317] ' PHTieo r. Powell, Willw, 46. :»■ -.it-' i I i!i;>i l:ij I I » , ,0 1 92 ARGUMENT OF THE UNITED STATES. individual men. This is the real ground upon which the municipal law declares the several descriptions of wild animals, above parKcularly adverted to, to bu property. This is what is intended by making tho question of property depend upuu the exihtence of tho aniinua revertendi. In the added light tlirowii by this inquiry into tho foundations ut' the institution of property the case of tho fur-seal can be no lungii open tu doubt, if it ever was. It is a typical instance. Polygamous in its nature, compelled to breed upon the land, and conKned to thai element for half the year, gentlo and confiding iu disposition, nearly dufonceless against attack, it seems almost to implore the protection of man, and to offer to him as a reward that superfluity of increatii' which is not needed for the continuance of the race. Its own habits go very far to effect a separation of this superfluity, leaving little tn bo done by man to make it complete. The selections for slaughter ai-e easily made without diNturbanco or injury to tho herd. Tho return of tho herd to the same spot to submit to renewed di-afts is asuured by tho most imperious instincts and necessities of the animal's nature. During the entii-o period of all absences the animtu rewrtetidi is over present. The conditions are, as observed by the eminent naturalist, Prof. Huxley, idnal} All that is needed to make tho full extent of the blessing to mankind available is the exercise on the one hand of care, self-denial, and industry on the part of man ;it tho breeding places, and, on the other, exemption from the destructive pursuit at sea. The first requisite is supplied. A rich reward is offered for, and will certainly assure, the exercise of art and industry upon the laud. All that is demanded from the law is that exemption from destructive pursuit on the sea which the award of a property interest will insure. Nor should we omit to call att«-ntion to an aspect of the question, pre- sented by the extent of tho possession ami control of, and over, this race of animals bestowed upon tho United States in virtue of their ownership of tho lands to which it resorts. This owuei-ship camos with it the power to destroy tho race almost at a single stroke. It carries with it also, if interference by other nations is withheld, the power to forever preserve. The power to destroy is shared by other nations. The power to use, and at the same time to preserve, belongs to the XJoitcd States alone. This power carries with it the highest obligation to use it for the purpose for which it was bestowed. It is in tho highest and truest sense a trust for the benefit of mankind. The United States ' Cmp of the United States, Appendix, Vol. I, p. 412. PROPERTY IN TUE ALAMKAN SKAL HKRD. 98 acknowledge the traat and havu hitherlo (lischargL'd it. Can anything be clearer lui a moral, ami under natural lawM, a Ic^mI obligation than tho duty of other nations to ivfruin from any action wliii-li will prevent or impede the performance of that trust ? The only olllci' which belon^x to other nations is to see that this trust is duly performed. In this the whole world has a tlirect interest. Uowcvur much interference by one nation in the affairs ami conduct of another may he deprecated, it is not to be denied that exigencies may arise, as they have arisen, in which such interference may be defended.' ■-.^ Tm . t. •■-'.'f '/■•'> . ,!.• i n '- ' • ' '*i • ' ' f ■■ hn '••■ ' Wt' hiivo habitually rot'orreil to art, iiidiittrif, iiiul nelf-deinal on thi< piirt. of man NUi'ceHsl'ully pructioed for the purpose of iiicre(uinif the iinnuiil product of fhf cnrth UH being tho main fouiulutiou u))ou wliieh Mety iiwiirdN » property inteivcf. The exerc'iHO of thcHe quuhtioi) i* enjoined by nutunil law, iind niiture alwavH ussiguR tu an observunee of her dietute:* il« appi*opriute rewanl. That art and imlunlry should be thus rewarded in obvious, l)ut the merit of urtj'-ileuial or abuliiienre, Ik not no inunc- diutuly plain. It will be found, however, 'i/ion rellection, to poKsessi the wnno measure of desert. In the catte of the itealx, for instance, the inimediati- temptation i* to turn the whole mass to present, account. Had this been done, the lierds would long sineo have been j)ractically exteruiinated. T'heir prexeiit existence is tho result of a jwlicy of denial of present enjoyment in tho hope of a larger and m -w pennancnt advantage. It is quite unnecessary to enlarge upon tho prodigious importance to mankind of such a jiolicy. Indeed, without it the race could not have emerged from barbarism. The fur- seals thus preserved aru as truly tho fruit of huuun industry and effort as any of the ])roduct« of the artisan. This merit of absiinence is the sole fouiulation upon which economists and moralists place the right to capital, a\v\ iuUtest for its use. Capital is simply the fruit of abntinencf. The following citations are pertinent in this place : From N. W. Senior, Political Economy, tith ed., London, 1872, ji. 58 et iietj. " But although human labour and the ageiu-y of nature, independently of that of man, lire the primary productive jwwers, they require the concurri'iice of a third productive principle to give them complete eflleieney. The most laborious population inhabiting t In- most fertile territory, if they devoted all their labour to the production of imnunliate results und consumed it-s produce as it arose, would soon find their utmost exertions insutlicient to produce even the mere necessaries of existence. " To tho third principle or instrument of production, without which the two othei-s are inefficient, we shall give the name of abx/inenci; a term by which we express the conduct of a person who either abstains from tho unproductive use of what he can command, or designedly prefers the production of remote to that of immediate results." After defining capital as '* an article of wealth, the result of human exertion em- ployed in tho production or distribution of wealth," he goes on to say : '• It is evi- dent that capital thus defined is not a simple productive instrument. It is in most cases the result of all the three productive instruments combined. Some natural agent must have afforded tho material; some delay of enjoyment must in gcneinil have reserved it from unproductive use, and some labour must in general have been employed to prepare and preserve it. Bi/ the word abstinence we wish to express that agent, dist^nvt from labour and the agency of nature, the concurrence of which is nec- essary to the existence of capital and which utands in the name relation to profit as labour does to wages. We are aware that we employ the word iibntincnce in a more cxten- [317] .. -1 i i ; ■ _ < »j- 1 "■' li- h . >-■- J !m'- ^ f^\ r H ..' .' t ■ r<«.'- V' La 1^1^ :? U4 AIUMIMKXT OF TIIK UMTKD STATES. I I i : ''"I 1i i: :i: It sreniN iinpnKsilile to iinii);ino nnv f?n>nii(l n|inn wliicli tliii* ilunuiinl can li«' rcHiHtrtl, imrl oven difficult to uiidcrntiuiil liow a qticxtion coiilil Invr lii'cii ninilf ivjectiiiif it. If then' wore rvcii tlin Kt'mMiinco of u mnnil rcnstiii upon wliicli opposition conlrl ho rcHtecl, tli(>rc niit^lit lie room for lioHitation and didiate; if iinythin)^ in tlio nattiro of a rlgltf io hItp •(■imo Ihiin ii* wurmntrd b;ir cuininiiii umigi'. Atlciitiim in unUHlly ilmwii to iihiti- tioiiir iinly wtu'ii it in not united witli lidioiir. It Ik rocugniiicd iiiMluiilly in tlii< cuii- duct of Ik ninn w)io iillow" ii Irt'c or ii ilonicBtic niiiinid to iittiiiii il» full growth, hut it i* \vfi> (ihviouK when ht> piioitx llu> iiii)ilin)( or lowfi tlic ix'od com. The t)biur, mikI lie oniitit to connider the iidditionul mtcritli'r niiidc when liibour iit undcr)(one for ii iliHtant object. ThlH iiilditionid Mieriflce uc comprehend under the lenii itlnlineuce. * * * of all the mi'iinii bj wbieh mini ran be noKed in the iteiile uf bein^, abNliuence, an it in perhnvH the nio«t effective, ji the hlowcHl in incivane, and the lalevl ^enendly diiTr.xed. Anion^ natioim thoxe lliut art^ the least civili/.cd, and anioni; the dilFerent clnHHeH of the nai^.e nation tliooe which are the worxt educated, are idniuot the inimt inipruvident and conxoquently the leuit abHtinent." (At jia^e ()U) : "The xavage Heldom eniplo^ h, in making his bow« or hit (hirt, tiini' which lie coidd ilevote to the ol)lainiii{E; of any object of immediate enjoyment. ]|i' excreiHcs, therefore, labour and providence, but not abstinence. The (lr»t iitep in iniproveineni, the Hue from the hunting and ItHhiiig to the pastond state, impliiN an exercise of abstinence. Much more abstinence, or, in other words, ({reater uie ol capital, \» required for t)ie transition from the pastond to the aKriculturnl state; ami an amount not only s'ill Ki^' his labor, industry, commerce. The second cause of interest is thi' ])ains laken by the lender, the sacrifice necessary for abstinence in depriving bimsclf ol' innnediiite cun»umptiun fur a delayed profit." From "American Political Kconoiny." Francis Bowen, p. 204, Chap. 11 : " Cii|>ital bein^ amassed as we have seen by frupdity or abstinence, ])rof)tN are the rcwiiril of abstinence Just as wa^es arc the rtMuunenition of labor, and rent is the compensation fur the use of land." From " Some Ipadin^' Principle!* of Political Economy Xewly Expounded." IJy J. K. Cairnes, New York, 1874. j). bl> : "The term ab.stincnce is the name jjiven to the sacrillce involved in the advaiici' of capital. As to the natun* of the sacrifice it is mainly of a negative kind, consist- ing cbielly in deprivation and postponement of enjoyment implied in thi> fact I'l' parting with our wealth, so far at least as coueerns our present power of command- i-.g it." From " Princi|»les of Econonncs." Alfred Marshall, professor in the University of Cain- bridge, London, 1870. Vol. I, Book 7, Chap. 7, sec. 2, p. 612 : " A man who, working on his own account, makes a thing for himself has tlio usance of it as the reward for his labour. The amount of his work may be determiiifd in a great measure by custom or habit, but in so far as his action is deliberate he wil (•ease his work when the gains of further work do not seem to him worth the trouble of getting theui. But the awakening of a new desire will induce him to work on furtlior. He may take out the fruits of this extra work in immediate and passing enjoyment, or riloPKinV I\ TIIK ALASKAN SKAI. IlKiL 05 •ovUeiiulipu, 2(1 oil , lM)umloa." UvJ. \': le Uiiivewity of t'nin- capture scmU at Hoa ooulil bo preti'mloil, it woiii I bo iitroN.Hiirv tti paiiM" ftiul deliberate. It may indeed bo miid that there is no jinwcr in tlie United StateM to pi-cvent scaling upon tho high Heax ; but tliis is a beg- ^'injf of tlio queHtion. If tliey have a property interest in tlie hohIs, tiic power to protoet it eiin not bu wantin)^. lint let this question f^o in loMting but distant iKMiollti, * * * or in implement.'* which will nid him in hii« work, • • • or, lastly, in thingi* which lie ciin let out on hire or to inveKf in to derive nn ineomo from them. Man's nature, liowever, lieinR impatient of delay, he will not, (If a mlf, select any of the thn-o latter methods unless the total l)ene(lt which he expect* ill the long run seems, after allowing for all rink!*, to show a surplux over iti* hcnetlts to he derired by taking out the fruits of his labour in immediate enjoyment. That ituqiluii, whether it take the form of interest on eapitul, or extra pleasure derived from the direct usance of pcnnanent forms of wealth, is the reward of his |K>stponing or waiting for the Iriiits uf his labour." From the Ethics of Usury and Interest. By W. Blissard. M.A., London, 1802, p. 26 ff neq. ; "On tho hypothesis that all hare equal o]>portunitips o! ii>eial progrcs, the social destroyers of its wealth deserve eondcmnation, while those who have served the cause of progress by saving from personal consumption a part of tlio carthV produce and devoting it to the improvement of national mecluini .. havo ; claim to ii rcwanl pro- portioned to their service and to the efforts whicu nicy have iikiU' in rendering it. These 're the conditions of advance in civilization in the art.'*, iind sciences, in liteniture, niul religion. For the command over nature different intes the civilized man from the savage. • • • It appears, hence, how aceurnie is (he commuii phrase whicli calls thrift 'saving.' Economists favor such other words as 'iihjtinence,' dcu-aHl 'enjoyment,' ond the like; but to 'save' expresses the primary idea that something has been saved from the destruction to which mere animal instinct would devote it. In such salvage lies the progress of tiio human species from savagery to giHllieiul. By how much has been thus saved has the salvation, niatcrial, mental, ami moral, of tlic race t)een achieved." From •' Political Economy." By Francis A. Walker. New York, 1883. Page 67, Kcc. 78 : " The Law of Capital. — It is not necessary to trace further the increase of cajiital. At every step of its progress capital follows one law ; it arises solely out of saving ; it stands always for self-denial and abstinence." (Pago 232) : " Capital is, as we have seen, tho result of saving. Interest, then, is the reward of abstinence. A part, a large part, of all produced wealth must be at once consumed to meet the conditions of human existence ; but tho remaining portion may be consumed or may bo accumulated, according to the will of the owner. Tho strength of the motive to accumulation will vary with the reward of abstinence. If that bo high the disposition to save will be strengthened, and capital will be rapidly "ccumulated ; if that be low, that disposition will be relatively weak, and capital will increase slowly, if indeed the body of existing capital be not dissii^ted at the demands of appetite." From "Chapters on Practical Political Economy." Prof. Bonamy Price. 2d cd. London, 1882. Pages 187, 128 : Speaking of Profit, he says : " What is the nature, the principle of this gain ? It is a reward for two things, for the creati x and employment of copital. Economists have lightly explained tho need and justification for such a reward for the creation of capital, that it is a compensation for abstinenc". The owner of the wealth 1-: i: rf^i 1.11: 96 ARGUMENT OF THE UNITED STATES. Will m t:V,3 for the present ; it will be elsewhere discnssed. Let it be conceded, for the sake of argument, that the United States have no power to pro- tect and punish, will it be asserted before this Tribunal, bound to declare and administer the law of nature and nations — a system of morality — that this constitutes a right ? What is it precisely which might bave deyotcd it to his own enjoyment ; he preferred to save it or turn it into an instrument for rreating fresh wcaltli. It was his own voluntary act, he garc up some hixury, he finds atonement in improved income from increiwed wealth. His aim was profit, but profit, though it enriched him, was no selfish course ; luxuri- ous expenditure would liavc been the real selfishness. By going in for profit he benefits society. His savings are an advantage to others as well as to himself. • • • Profit is the last thing which should be grudged, for profit is the creator of capital, and capital is the life-blood of civilization and commercial progress." From "Manual of Political Economy." Henry Fawcott. London. 1877. Bk. ir, ch. V, p. 167 : " As capital is the rt^sult of saving, the owner of capital exercises forbearance when he saves liis wealth instead of spending it. Profits therefore are the reward of abstinence in the same manner tliat wages ore the reward of physical exer- tion." From " The Science of Wealth." Amasa Walker. Boston, 1877. Ch. vi, p. 288 : " Interest has its justification in tlie right of property. If a man can claim the owner- ship of any kind of wealth, he is the owner of all it fairly prodjices * * * whoever by labour produces wealth and by self-denial preserves it should be allowed all the benefit that wealth can render in future production." From •' Introduction to Political Economy." A. L. Pcn'y. Now York, 1877. P. Ho. " Tlie origin of nil capital is in abstinence, and the reward of this abstinence i" profit." From " A System of Political Economy." J. L. Shadwell. Loudon, 1877. P. 159. " They (capitalists) desire to obtain it (profit) because the saving of capital implies tlic exercise of abstinence, as the capitalists might have exchanged it for other thinpn for their own immediate consumption ; but if they forego their enjoyment in order to produce commodities they require some compensation for the sacrifice to which they submit." From John Stuart Mill. " Principles of Political Economy." Boston, 1848. Vol. ii, p. 484 : "As the wages of the laborer are the remuneration of labor, so the profits of the capitalist are properly the remuneration of abstinence. They are what he gains by forbearing to consume his capital for his own uses and allowing it to be consumetl by productive laborers for their uses; for this forbearance he requires a recompense." And again, at page 553 : " Capital • * * being the result of abstinence, the produce of its value must be sufllcicnt to remunerate not only all the labor required but the abstinence of all the persons bj" whom the remunci-ation of the different classes of laborer? was advanced. The return for abstinence is profit." From "Manuel d'ficonomic Politique." Par M. H. Baudrillard. 4th ed. Paris, 1878. P. 382 : "The first element of interest is the privation to which the lender subjects himself, who surrenders his capital for the benefit of another." (/rf., p. 52): "Based upon right, ownership is not less justified by the strongest reasons derived from social utilitv. It is useful for the laborer who has fertilized I Ill, 1877. Bk. Ti, on, 1848. Vol. 11, PROPERTY IN THE ALASKAN SEAL HERD. 97 would thus be set up HS a ripht? It is simply and without qnaliBcation n right to destroy one of the gift.s of nature to man. It would be saying, not to the United States alone, but to the whole world, " You shall no longer have this blessing which was originally bestowed upon j-ou — this opportunity which nature affords to secure the pi-eservation of the source of a blessing and make it permanently available shall not be improved ; and if you ask us for a reason we give yoxi none, except that we so choose, and can, for a few years at least, make a profit to ourselves by carrying on the work of destruction ; the sea is free." Ahrens ' states : The definitions of the right of property given by positive laws generally concede to the owner the power to dispose of his object in an almost absolute manner, to use and abuse it, and even through caprice to destroy it ; * but this arbitrary power is not in keeping with natural law, and positive legislation, obedient to the voice of common sense and reason in the interest of society, has been obliged itself to establish numerous restrictions, which, examined from a philosophic view of law, are the result of rational principles to which the right of property and its exercise ai-e subjected. The principles which govern socially the right of property relate to substance and to form. I. \s to snbstance, the following rules may be established : 1. Property exists fm- a rational purpose and for a rational iise ; it is destined to satisfy the various needs of human life ; consequently, all arbitrary abuse, all arbitrary destruction, are contrary to right {droit) and .should be prohibited by law {loi). But to avoid giving a false exten- sion to this principle, it is important to recall to mind that, accord- ing to personal rights, that which is committed within the sphere of the soil to retain the soil itself as well as the surface. Otherwise he will use the soil as a possessor who is in haste to enjoy it. Wliere a thought of the future is wanting there will be no real improTcment, no numerous and well-supported population, no civilization with deep roots either moral or material." * • * " All these advantages can be the outgrowth of nothing but permanent ownership. For the same reason it is well for ownership to be indiTidual and not eoUectlT? ; of this we find proof in the religious communities of the middle ages, and in our own time in the very im',:?rfect condition of property held in common. Collective ownership is attended with this drawbock, viz, that it does not sufflciently stimulnte the activity of the owner." ' Ahrens : Course of Natural Law, Loipzic, 1876, vol. 2, book I, div. 1, sec. 04. ' Roman law gave the owner the jus ulenifi el abutendi ; after the Austrinn code (11, 2, sec. 362), he has the power to destroy arbitrarily that which belongs to him. Tlie Code Nupoleon which defines property as " the right to enjoy and to dispose of things in the moit absolute manner, provided no use be made of them forbidden by the laws or by the regulations," interposed social interest by this reitriotion. ■""Tl" it.. I ■' ".'.i-y-i. ■n ■ .r. r !)8 ARGUMENT OF THE UNITED STATES. i I !; ])rivate life and of that of the family doc3 not come nuder the appli- cation of public law. It is necessary, therefore, that the abuse bo public in order that the law may reach it. It belongs to the legislations regulating the various kinds of agricultural, industrial, and commercial property, as well as to penal legislation, to determine the abuses which it is important to protect ; and, in reality legislations as well as police laws, have always specified a certain number of cases of abuses.' Be- sides, all abusive usage is hurtful to society, because it is for the public interest that the object shonld give the owner the advantages or the services it admits of.' It is assumed throughout the Report of the British Commissioners that pelagic sealing is not necessarily destructive, and that, under regulation, the pix)secution of it need not involve the extermination of the herds. This assumption and the evidence bearing upon it will be elsewhere particularly treated in what we may have to say upon the subject of regulations. It will there be shown that it is not only destructive in its tendency, but that, if permitted, it will complete the work of practical extermination in a very short period of time. But so far as it is asserted that a restricted and regulated pelagic sealing is consistent with the moral laws of nature and should be allowed, the argument has a bearing upon the claim of the United States of a property interest, and should be briefly considered here. Let it be clearly under- stood, then, just what pelagic sealing is, hotvever restricted or regulated. And we shall now describe it by those features of it which are not dis- puted or disputable. We pass by the shocking cruelty and inhumanity, with its sicken- ing details of bleating and crying offspring falling upon the decks from 1 he bellies of mothers, as they are ripped open, and of white milk flow- ing in streams mingled with blood. These enormities, which, if at- tempted within the territory of a civilized State, would speedily be ' On the occasion of the debate of Art. 644, which defined property, Napoleon expressed energetically the necessity of suppressing abuses. "The abuse of property," t>aid he, " should be suppressed every time it becomes hurtful to society. Thus, it is not tillowed to cut down unripe grain, to pull up famous grapevines. I would not suffer that iiu individual should smite with sterility 20 leagues of ground in a grain-bearing depart- ment, in order to make for himself a park thereof. The right of abuse does not extend so far as to deprive a people of its sustenance." ^ Roman law says in this sense, sec. 2, 1, De patr. pot. 1, 8 : " Expedit enim reipublicfc no sua re quis male utatur." Leibnitz further expands this principle of the Roman law by saying (De notionibua juris, etc.) : " Cum no« nostraquo Deo debeamus, ut reipublicw, ita multo magis universi interest ne quis re sua male utatur.'' PROPERTY IN THE ALASKAN SEAL HERD. d9 made the subjects of criminal punishment, are not relevant, or are less relevant, in the discussion of the mere question of property. It is not contended that in pelagic sealing (1) there can be any select' ive killing; or (2), that a great excess of females over males is not slain; or (3), that a great number of victims perish from wounds, without being recovered ; or (4), that in most cases the females killed are not either heavy with young, or nursing mothers ; or (5), that each and every of these incidents can not be avoided by the selective killing which is practiced on the breeding islands. We do not stop to discuss the idle questions whether this form of slaughter will actually exteruii- nate the herds, or hoiv long it may take to complete the destruction. It is enough for the present purpose to say that it is simple desi ruciioii , It is destructive, because it does not make, or aim to make, its draft upon the increase, which consists of the superfluous males, but, by taking females, strikes directly at the stock, and strikes at the stock in the most damaging way, by destroying unborn and newly-born pups, together with their mothers. Whoever undertakes to set up a moral right to prosecute this mode of slaughter on the ground that it will not necessarily result in complete destruction, must maintain that while it may be against the law of nature to work complete destruction, it is yet lawful to destroy .' But what the law of nature forbids is any destruction at all, unless it is necessary. To desti'oy a little, and to destroy much, are the same crimes. If there were even something less than a right, or rather some low degree of right — for nothing other than rights can be taken notice of here — some mere convenience, it might be worthy of consideration ; but there is none. It can not even be said that pelagic sealing may furnish to the world a seal-skin at a lower price. Nothing can be plainer than that it is the most expensive mode of capturing seals. It requires the expenditure of a vast sum in vessels, boats, appliances, and human labor, which is all unnecessary, because the entire increase can be reaped without them. This unnecessary expense is a charge upon the consumer and must be reimbursed in the price he pays. In no way can pelagic sealing result in a cheapening of the product, except upon the assumption that the stock of seals is inexhaustible, and that the amount of the pelagic catch is an addition to the total catch, which might be made on the land if capture Avere restricted to the land; and this as- sumption is admitted on all hatiils, and oven by the Comniissioncrs of Great Britain, to be untrue. •kiffl 1 . I- m m 'S§ ■ ' ■ ■■:*' ' mm •, ; •■II f' ■I ■ >1 \' ' r i ■ t\1 !^. 100 ARGUMENT OP THE UNITED BTATES. ' Tf there were any evil, or inconvenience even, to be apprehended from a confinement of the capture of the seals to the breeding places, it might serve to arrest attention ; bat there is none. Mnch is said, indeed, in the Report of the Commissioners of Great Britain concerning a supposed monopoly which would thus be secured, as is pretented, to the lessees of the breeding islands which would enable them to exact an excessive price for skins ; but this notion is wholly erroneous. The nnnnal drafts made at the island from the increase of the herds are not made for, and can not be monopolized, or apjiropriated, by tho United States. They are made for mankind everywhere, and find their way to those who want them and are able to pi'ocnre them wherever upon the face of the world they may dwell. To the owners of these islands, whoever they may be, they are intrinsically useless, except the insignificant number which may be useful for food or clothing. Their only value to them is as articles of commerce, as means by which needed commodities may be obtained from others who may have a Rupenbr desire for the benefits afforded by these animals. They are furnished through the instrumentality of commerce to those who want them upon the same tenns upon which they are furnished to the citi- zens of the United States. The human race thus perfectlj' secures to itself the benefit which nature intended the animal should supply. Nor can the United States exact from the world whatever price it pleases for the product of the animal. It can not exact a penny more than the world is willing to give; and this, as in the case of every other commodity, is its just value. The cost of production, and t'- operation of supply and demand will determine the price of this, as o. every other, commodity. Any other mode of capturing the animal for the market is obviously and confessedly more expensive, and must necessarily, other things being equal, involve an increased price, and simply impose an additional tax upon the consumer. There are, indeed, instances of commodities in which the possible supply greatly exceeds the wants of the world, and where, if the whole product were thrown upon the market, it would become almost worth- less, producing a sum much less than would have been gained had u comparatively small part only been offered. In such cases, if the sources of supply are a monopoly under a single direction, a large profit may sometimes be secured by an artificial limitation of the supply. It is said that the Dutch once found an advantage like this fi'om a voluntary destruction of a large part of the product of the Spice Islands. But ided from a ;es, it niigbt I, incleed, in f a supposed lesdces of the ive price for of the herds* iated, by tho nd find their em -wherever ners of these 8, except the thing. Their ns by wbicb may have a la. They are ose who want id to the citi- ;ly secures to honld supply. ;ever price it % penny more case of every ;ion, and t ' of this, as o 10 animal for re, and must ;cd price, and the possible ., if the whole almost worth- gained had a it the sources ge profit may supply. It is m a voluntary Islands. But PROPERTY IN THE ALASKAN SEAL HERD. 101 the case of the lessees of the Pribilof Islands is the opposite of this. They never can be even tempted to limit the supply. Nature herself has limited it all too rigidly. A large profit is derivable from every seal which prudence will permit to be taken. The temptation is to take too largely. Ahstinence, and not waste, is the true policy. Indeed, the Report of the Commissionei-s of Great Britain makes it a principal charge against the management of the lessees that they make drafts upon the herds too large, instead of too small. Now, where the entire product of a source of supply is thrown upon the market, the price will be governed by the demand. The world will pay a certain amount for it and no more ; and the circumstance that there is a monopoly of the commodity is unimportant.' Divers charges are made in the Report of the British Commissioners of neglect and mismanagement by the lessees of the islands in the conduct of the business of caring for the seals and making the annual drafts from the herds. These topics have but a small measure of rele- vancy here. They are, with some unimportant exceptions, wholly denied, and will be elsewhere in this argument shown to be erroneous. But if it bo intended by these charges to show that the prime object of the law of nature tj make the increase of animals available to man, and at the same time to preserve the stock, is not most certainly gained in the case of an animal like the seal by declaring a property interest in those Avho have the power to secure it, some observations upon them are pertinent hero. In this aspect these charges proceed upon the assnmption that a scheme of protection by care, industry, and selective killing is necessary. If this be so, when and how can it be adopted and maintained except through the recognition of a property interest? ft can not be questioned that this care and prudence are best secured by bringing into play the motive of self-interest. How can this be done except through the recognition of a property intei'est ? What other device has human society found in any stage of civilization in any land or in any age ? What new substitute has the wisdom of these Commissioners to suggest ? Is it necessary to tell the breeder of sheep that he must preserve his flocks and make his main drafts for the market upon his superfluous males? It may bo admitted that the United •States may sometimes fall into errors and neglects against their own interest. They assert for themselves no infallibility; but they do insist that there is no error and no neglect which they could as owners and > Mill. Pol. Econ., Book II, Chap. 5, § 2. .TfL miin *» IIUHH H:^|! M.Wii ' - '\ ^ i4il " i' J'K-Mil >' ''-.''13 -• '-^wa -■■ /'ia ; j.7. ^li 'J «i tjIM / ^'<^H ' . ^^M ' >t.^.^ *s''Q \ .■:\/ ■ '-T^ ir<% 1, J ■^'4;v;i^ ^^ 1' l! 102 AIIUITMKNT OF THB UNITED STATKS. I cultivators of these herds commit wliich would be in violation of the teachings of science and the laws of nature and operate to obstruct the enjoyment by mankind of the full product of the animal, which would not ut the same time, and in larger measure, result in loss and injury to themselves. They have not and can not have, upon the grounds taken in this argument, any interest which, in the slightest degree, conflicts with that of the world at large. They would be grateful to have any errors in the management by them pointed out, to the end that they might apply a remedy. And what is true in respect of the United States is true also of their lessees. The latter can have no interest not in harmony with the interests of all. This observation is subject to u (|ualification limited to lessees whose lease is about to expire. An out- going tenant is, indeed, sometimes under a teniptation to commit wasti-. Against this possible mischief the United States have endeavored to guard by the policy of making long leases. It is believed to have been entirely effectual. But all suggestions of the insuflBcieuLy of the guaranties furnished by a recognition of a property interest to carry out the dictates of science and natural law in respect to animals having a nature and habits such as the fur-seal exhibits are absolutely silenced by a reference to the conclusive teachings of actual and long experience. Russia enjoyed during the whole period of her occupation of the islands the full benefit practically of a property interest. She maintained an exclu- sive dominion of the herds upon the land, and no attempt to interfere with them by pelagic sealing was made. By her care, industry, and self-denial, tempted and rewarded by the profits of the industiy, the normal numbers of the herds were maintained, and at the same time large annual drafts were made. And. when, as happened more than once from exceptional causes which could not be prevented, the num- bera were greatly reduced, a more rigid and self-enforced abstinence brought about a full restoration. At the beginning of the occupation of the United States, and before their authority and oversight were fully established, an irregular and excessive slaughter again greatly reduced the herds, and this damage was again fully repaired by an exercise of similar abstinence. The numbers were, perhaps, more than restored, and it became possible to make larger drafts than had ever been taken under the Russian management without any discoverable diminution of the stock ; and there is no reason to suppose that such drafts might not have been continued indefinitely had not the destmc* ?'. PROPERTY IN THE ALASKAN SEAL HERD. 103 tivc warfaiv by n constantly incieasins? fleet of (Canadian sealeiti made it impossible. The experience at the Commandor Islands lias been tlic same. The exercise of art, industry, and self-denial produced by the operation of tho same motive has been followed by the reward of still abundant lierdu. Nor is there any obstacle in tho way of a recognition cf a property in- terest growing out of any difticulty in identifying tho Alaskan herd upon the higli seas. Suggestions of a possible commingling with the herds belonging to the Russian islands on the western side of the Pa- cific and Bering Sea are contained in the Report of tho British Com- missioners; but these are coupled with tho admission that this com- mi'iigling, if it exist at all, is confined to a few individuals. They are supported by no evidence. Tho Russian herds are separated by a bi-oad tract, hundreds of miles in width, and it seems entirely certain that all seals found on tho eastei-n side of the Pacific and Bei'ing Soa ai-o members of the Alaskan herds. It may be urged, as an objection to the recognition of a property in- terest in the United States, that it would be inconsistent witli the con- tinued pursuit of seals by the Indians on the Northwest coast for the purposes of food and clothing. This consideration deserves respectful attention. It is the only form of capturing seals upon tho high seas which can assert for itself a moral foundation under the law of nature. Attention has more than once been called in this argument to the dif- fe' ent degrees of the extension of the institution of property in barbaric and in civilized life. The necessities of society, everywhei-e and at all times the measure of the extension of the institution, do not in barbaric hfe require a recognition of property in but comparatively few things. "With a scanty and sparae population, little is required by way of cul- tivating the earth or its animals; and both can be, and generally are, allowed to remain in a wild condition, open to indiscriminate use. A full supply of the wants of such society in respect to most animals can be had by indiscriminate killing, without in the least degree endan- gering the stock. That peril is one Avhich civilization brings along with it; and, as we have seen, tho safeguard comes also in the shape of tho extension of the institution of property. Nothing better illuh- trates this than the case of the fur-seals. Before the occupation of its haunts by civilized nations, the only draft made by man upon the pro- digiouR herds was limited to a number sufficient to supply the wants i ::^ 0: I. m ) ■. ' t^-.-'i.' - 'i: -.,'y^* I. f.'-l I 104 ABOUMENT OF THE UNITED STATES. ■» - • i: ■I of a few hundred people. But, after such occupation, through the iu- Btrnmeutality of commerce, the whole world made its attack. Thi.s demand, of course, could not be supplied consistently with the preser- vation uf the species without an immediate change from barbaric tu civilized methods ; that is to say, from indiscriminate capture, which threatened the stock, to a selective capture conBned to the increase. But this condition creates no difficulty. The demand thus made is comparatively insignificant, and does not threaten any danger. The United States have no desire or intention to cut off from these rudo inhabitants any of their means of subsistence. Their history and cir- cumstances have made them familiar with the survivals of barbaric lift; in the midst of civilized conditions. They have steadily pursued thu policy of securing to such tribes, as long as possible, the beneiit of tho sources of subsistence upon which they had been a<3customed to rely. They suppose it may be safely left to them to insure to these pcoplo such an enjoyment of the seal herds as they originally had, or the property interest which they justly claim may be recognized subject to u reasonable use by the Indians upon the coast, such as they have here- tofore enjoyed. But, surely, this claim of the Indians can not be made a cover for the prosecution of a destructive warfare upon a valaablo race of animals. The civilized man can not assert for himself tho license of the barbarian. If that can not be confined to the barbarian, it must be given up altogether. The exacting demands of civilization must be met by the methods of civilization. It may be asked whether the claim made by tho United States goes to the extent of asserting a legal right of property in any Individual seal which may at any time be found in the seas between the Pribilot' Islands at the north and the coast of California at the south ? And whether they would insist that in the case of any seal captured any- where within those limits by any person other than a native Indian, and for purposes of scientific curicsity, or to satisfy hunger, a trespass hud been committed upon the property of the United States, and un action might be maintained in their name in a muuicipal tribunal to recover damages, or for the recovery of tho skin of the animal, if it should any- where be found. The United States do not insist upon this extreme point, because it is not necessary to insist upon it. All that is needed for their purposes is that their property interest in the herds should be so far recognized as to justify a prohibition by them of any destructive pur- suit of the animal calculated to injure the industry prosecuted by theui FROFBRTY J^JT THE ▲LAS:^Alf SKAL HflBD. 105 on the islands upon the basis of their property interest. The conception of a property interest in the herd, as distinct from a particular title to every seal composing the herd, is clear and intelligible ; and a recognition of this wonid enable the United States to adopt any reasonable mea8ai*ei} for tho protection of such interest. It is, of course, necessary to an actual appropriation of property that tho iiiteitt to appropriate should be evidenced by some act. This requirement has been fully satisfied by the United States. Every act by which that intent could bo manifested has been performed. They have, in every practicable form, exercised art, industi-y, and self-denial in protecting the seals upon their soil and gathering the increase for the purposes of commerce with the world, and they have in all pmcticablo forms, by their laws, by executive proclamation, and the exorcise uf force upon tho high soas, endeavored to prohibit all invasions of their property interest. It is believed that of the three conditions hereinbefore mentioned us requisite to assert a right of property in the seal herd, a cumplianco with tho only one which can bo the subject of debate, namely, anactpti- bility of appropriation, has now been fully established ; and we need no longer' delay tho final conclusion that the United States, and they alone, having such a control over the Alaskan seal herd ns enables them by the practice of art, industry, and self-deuial to make the entire • product fully available for the wants of mankind without diminishing tlie stock, and having asserted this control and exei'cised the requisite art, industry, and self-denial in order to accomplish that great end, have, under principles everywhere recognized, both in the law of nature and iii the concurring municipal jurisprudence of all civilized States, a property interest in tliat herd. It is a satisfaction to the undui-sigued, and, us they conceive, no unimportant feature of their argument, that in the foregoing discus- sion no selfish pretension had been asserted by the United States, nor one in the least degree hostile to Gi*eat Britain. The Government of the United States neither asserts any principle, nor asks for any adjudi- cation which is not for the common' interest of tho world as much as for itself. The fundamental truth that this useful race of animals is the property of mankind is not changed by the circumstance that the custody and defense of it have fallen to the lot of the United States. Their appearance as a litigant in this forum may be said, in a very just sense, to be fortuitous. The real controvei-sy is betwecr Hi:: i •:}' '1 , V.P r / •Mi ■t- I 106 ARGUMENT OF THE UNITED STATES. •' those, wherofer they may dwell, who want the seals, and the Canadian pelagic $ealerg, who are threatening the extermination of them. If that danger can bo averted by the method which alone can bo effective, the recognition of a property interest in the United States, the benefit will accrue equally to all. The seal-skins will bo furnished to the citizens of Great Britain and of all other nations upon the same tcrmH upon which they are obtainable by citizens of the United States. The large interests of Great Britain in the manufactnro of the skins will be relieved from the peril which threatens them. None will be losei-s, save those who are engaged in the cruel puisuit, forbidden by the law of nature, and by every sentiment of humanity, of destroying this useful race of animals. And the loss even to them would bo comparatively small, for the pursuit under present conditions can not continue for more than a very short period. The United States may, indeed, derive a profit peculiar to ihemselven as the cultivators of the herd ; but this is the just reward of their in- dustrj-, abstinence, and care, and no more than every other nation in respect to producti peculiar to itself. Without these voluntary efforts the herds would be speedily swept away. Their present existence and numbers are absolutely duo to these efforts. It is by such means alone that nature makes her gifts full}' available to their desired extent to all nations. The advantages which, in the partition among nations, havu fallen under the power of the United States, it is their duty, and their duty to mankind, to improve. The rights and interests of mankind are properly asserted in this international forum; but they can be asserted only through the United States. If the world has the right, as it cer- tainly has, to call upon that nation to make the benefits which nature has assigned to its custody available, it must clothe it with the powers which are requisite to that end. If the United States have, as has now been shown, a property interest in the Alaskan herd, the undersigned conceives it to be a cei*tain con- sequence that they have the right to protect it anywhere upon the high seas against injury or invasion, by such reasonable exercise of force as may be necessary. This proposition will be fully discussed in connec- tion with the subject next to bo considered, of tho rights acquired by the United States in the sealing industries carried on by them upon the Pribilof Islands. If the foregoing argument is successful in showing that the United States hare a property in the Alaskan seal herd their right to protect the Canadian hem. If that effective, the le benefit will the citizens e terms upon •g. The large rill be relieved save those who nature, and by ice of animals, jmall, for the moi'e than a ' to themselves ■d of their in- ther nation in jluntary efforts b existence and :h means alon«' id extent to all f nations, havo luty, and their of mankind are !an be asserted ight, as it cer- H which naturo ■ith the powers •opei'ty interest a certain con- upon the high cise of force as ssed in connec- ifcs acquired by them upon the PROPERTY IN THE ALASKAN SEAL HERD. lo; that property anywhere upon the seas where it and they have the right to (JO is a proposition scarcely open to question. The rights of a nation of ail descriptions upon the high seas are uniformly protected by the direct exercise of the powers of the nation. There is no other way of protecting them. There is no general sovereign or tribunal over nations before which nn alleged trespassing nation can be summoned for judgment. But the nature and extent of this self-protection will be fully discussed under the next head of this argument, devoted to that aspect of the property qaesfcion particularly presented by the sealing industry maintained by the United States upon the Pribilof Islands. If they have the right to protect that industry against invasion by acts committed upon the high seas, they have, o fortiori, the same right to protect their properly on that element. Jamks C. Carter. h ;'■ W ■ ;* 1', ■ h'- ■ • ■ i^ j - ! , ■ ;.';■" t ■ *■' ■•:i hat the United ight to protect [317] B 108 AROfTMENT OF THE UNITED STATES. ■:M '■11 5 'Is'. i" APPENDIX TO PART THIRD. DIVISION I (MR. CARTER'S ARGUMENT). AT7TH0RZTZES UPON THE SUBJECT OF PBOPSBTY IN ANZKALS FEBiB NATUBiB. [From Studies in Roman Law, by Lord Mackenzie (Ath Edition), Edinburgh and London, 1886, chapter ill, page 174.] Wild animals. — All wild animals, whether beasts, birds or fish, fall under this rnle, so that even when they are caught by a trespasser on another man's land they belong to the taker, unless they are expressly declared to be forfeited by some penal law, (Inst., 2, 1, 12; Gains, 2, 6t)-69; Dig., 41, 1, 3, pr. .')5). Deer in a forest, rabbits in a warren, fish in a pond, or other wild animals in the keeping or possession of the first holder can not be appropriated by another unless they regain thcii- liberty, in which case they are free to be again acquired by occupancy. Tame or domesticated creatures, such as horses, sheep, ponltiy, and the like, remain the property of their owners, thou 'i strayed or not confined. The same rule prevails in regard to such ' J animals already appropriated as are in the habit of returning to thi owners, such as pigeons, hawks in pursuit of game, or bees swarming while pursued by their owners (Inst., 2, 1, 14, 15). [From GaiuH'g Elements of Roman Law, translated by Edward Foste (2d ed.), Oxford, 1875.] Sec. 68. In 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 owner.ship, and then the property in them is acquired by the next occupant; tho instinct of returning is held to be lost when the habit of returning is discontinued. [From Von Sovigny on Possession in the Civil Law, compiled by Kelleher.] With respect to the possession of animals these rules are to be applied thus: First. Tame animals are possessed like all other movables, i.e., the possession of them ceases when they can not be found. Second. Wild animals are only possessed so long as some special disposition (custodia) exists which enables us actually to get them into our power. It is not every custodia, therefore, which is sufficient ; whoever, for instance, keeps wild animals in a park, or fish in a lake, has undoubtedly done some- thing to secure them, but it does not depend on his mere will, but on a variety of accidents whether he can actually catch them when ho wishes, consequently, possession is not here retained ; quite otherwise with fish kept in a stew, or animals in a yard, because then they may be caught at any moment (lib. 3, sees. 14, 15, de poss). Third. Wild beasts, ;mi '. ■w :m ■ ,< "•>ll APPENDIX TO PART THIRD — DIVISION 1. lOU CARTER'S r AMIKALS inburgh and H or fiBh, fall ti'espasser on nre expressly 12; GaiuH, 2, a warren, tish iHCSsion of the 3y regain their by occupancy. , poultry, and strayed or not mimals already wners, such as ile pursued by )8te (2d ed.), ,bitaated to go labitually visit that only the of ownership, occupant ; the )f i-eturning is Kelleher.] to be applied re ables, i.e., the Second. Wild tion (custodia) war. It is not instance, keeps dly done some- will, but on a them when ho _uite otherwise n they may be d. Wild beasts, tamed artificially, are likene^d to domcHticatcd animals so long as ihvy retain the habit of returniiifi' to the spot wlieiv tiieir possessor keeps thoni (donee animnm, i. e., constu'inditu'tn, revertendi liabcnt). [Fruiu Puffendorf, Law of Nature and Natiunii, lib. in, eA|>. 1, hoc. 3.] Although a loss seems to refer properly to propf ."ty, yet by us it will be generally accepted as embracing all injury that relates to the body, fame and modesty of man. So it signifies every injury, curruption, diminution or removal of that which is ours, or intercejition of that, which in perfect justice wo ought to have; whether given by nature or conceded by an antecedent human act or law; or, finally, the omission or denial of a claim which another may have upon us by actual obligation. To this tends the l;Uh Declamation of Qiiintilian, where he plaiidy shows that one had inflicted a loss who p()i.soned the flowers of his own garden whereby his neighbor's bees perished. Yet the convincing reason con- sists in this : Since all agree that bees are a wandering kind of animate life, and because they can in no way bo accustomed to take their food from a given place; therefore, whenever there is a right of taking them, there also, it is understood, is laid a general injunction to be observed by all neighbors, to permit bees to wander everywhere without hindrance from anyone. [From Bracton, lib. ii, cap. l.J The dominion over things by natural right or by the right of nations is acquired in varions ways. In the first place, thi-ough the first taking of those things which belong to no person, and which now belong to the King by civil right, and are not common as ot olden time, such, for instance, as wild beasts, birds, and fish, and all animals which are born on the earth, or in the sea, or in the sky, or in the air; wherever they may he captured and wherever they shall have been captured, they begin to he mine because tlu)}- are coerced under my keeping, and by the same leason, if they escape from my keeping, and recover their natural liberty they cease to be mine, and again belong to the first taker. But they recover their natural liberty, then, when they have either escaped from my sight in the free air, and are no longer in my keeping, or when they are within my sight under such circumstances, that it is impossible for nie to overtake tliem. Occupation also comprises fishing, hunting, and capturing; pursuit alone does not make a thing mine, for although I have wounded a wild beast so that it may be captured, nevertheless it is not mine unless I captui-e it. On the contrary it will belong to him who first takes it, for many things usually happen to prevent the capturing it. Likewise, if a wild boar falls into a net which I have spread for hunting, and 1 have carried it off, having with much exertion extracted it from tlr; net, it will be mine, if it shall luive come into my power, unless custom or privilege :ule3 to tlic contrary. Occupation also includes shuttinLi' up, as in the case of bees, which are wild by nature, for if they should have settled on my tree they would not be any the more mine, until ! have shut them np in a hive, than birds which have made a nest in my tree, and therefore if another person shall shut them up, he will have the dominion over them. A swarm, also, which has flown away ont of my hive, is so long understood to he mine as long as it is in my sight, and the overtaking of it is not impossible, otherwise they belong to the first taker ; but if a person shall capture them, he does not make them his own if he shall know that they are another's, but he commits a theft «■ • ■ H> ■" h [317] u2 J-.-' 1 10 ARGUMENT OF THE UNITED STATES. ?? '■ !l i! U i ■111 less he liiis the intention to restore them. And these things are true, unless somotimcs from custom in some pcirts the practice is otherwise. Wliiit lias been said above applies to animals which have remained at all tiriies wild; and if wild animals have been tamed, and they by hal'it po out and retuin, fly away, and fly bock, such as deer, swans, peafowls, and doves, iind such like, anotiier rule has been approved, that they are so Ion? considered as ours as long as they have the dispo.iition to return ; for if they have no disposition to return they cease to be ours. Bnt they seem to eer.sc to have the dis|)osition to return when they have abandoned the habit of returning; and the same is said of fowls and geese which have become wild after being tamed. But a third rule has been approved in the ease of domestic animals, that although tame geese and fowls have escaped out of mj" sight, nevertheless, in whatever place they mi;y be, they are understood to be mine, and he commits a theft who retnins them with the intention of making gain with them. This kind of occupation also takes place in the case of those things which are captured from the enemy, as, for instance, if free men have been reduced into slavei'y and shall escape from our power they recover their former state. Likewise the same species of occupation has a place in the case of those things Avhich are common, as in the case of the sea and the seashore, in the case of stones and gems and other things found on the seashore. The same rule ap])lics to islands which spring up in the sea and to things left derelict, unless tliere is a custom to the contrary in favor of the public trciisury. [From Bowyoi', lloileni Civil Law. page 72.] Wild animals, therefore, and bird.o, and fish, and all animals that are prodiiced in the sea. the heavens, and the earth, become the property, by natural law, of whoever takes possession of them. The reason of this is, that whatever is the pi-operty of no man becomes, by natural reason, the jiroperty of whoever occupies it. It is the same Avhethcr the animals or bird.«« be caught on the premises of the catcher or on those of another. But if any one enters the land of another to sport or hunt, he may be warned off by the owrer of the land. When you have caught any of these animals it remains yours so long as it is under the restraint of your custody. But as soon as it has escaped from your keeping and has restored itself to natural liberty, it ceases to be yonr:^ and again becomes the property of whoever occupies it. The animal is understood to recover its natural liberty when it has vanished from your sight, or is before your eyes under such circumstances that pursuit would be difficult. Hero we find the celebrated maxim of Gajiis : Qtiod nullius est, id ratione iialiiniU occiipanfi concrditur. It is founded on the following doctrine: Granting the institution of the rights of property among mankind, those things ai'c each man's property which no other man has a right to take from him. Now, no ono has a right to that which is res nullius; con- sequently, whoever posses.ses rcvi nullius possesses that which no one has a right to take from him. It is therefore his property. But this general right of acquiring things by occupancy is subject to an itupoifant qualification. Grotius justly argues that it is not an absolute right, for though it is indeed founded on natural law, it is matter of permissive law, and not one which requires that full liberty should be left to men to avail themselves of it, since snch liberty is un- necessary in many cases for the welfare of mankind, and may even, as iJlackstone observes, be prejudicial to the peace of society if it be not Wi APPENDIX TO PART THIRD — DIVISION I. 11 limited by positive law Bnrbeyrnc also arpraos tliat wlioro a couuti-v is taken possession of by a body of men, it b'jcouios tlio ]>i'operty of tliat body 01' of the person who represents them, and that thoryfoiv t!io rii^lit of tl J individual members to tako possession ol' poitioiis of it or any of the things therein contained, may be restricted or taken away, accord- ing as the welfare of the coinniunity may demand. These principles arc applicable to the whole jurisprudence of acquisition by occupancy. The acquisition of things tangible must be made rorporc ct aiiinio— that is to say, by an outward act signifying an intention to jjosscss. The necessity of an outward act to commence holding a thing in dominion is founded on the principle that a will or intention can not have legal ell'ect without an outward act declaring that intention, anil on the other hand no man can be said to have the dominion over a thing which he has no intention of possessing as his. Thus a man can not deprive otiiers of their right to take possession of vacant property by mcrt>ly considering it as his, without actually appropiiating it to himself; and if he possesses it without any will of appropriating it to himself it can not bo held to have ceased t(j be res uullins. The intention to possess is to be presumed wherever tlie (intwanl .aci. shows such an intention, for that is to be in-esumed which is niost< probable. The outward act or possession need no*:, however, be nianuai, for any species of possession, or, as the ancients expressed it, ciiatodi'i, is a sullicit-nt appropriation. The general pi-inciple I'especting the acquisition of animals /'i ,,/- untiinr is, that it is absurd to hold anything to be a man's proi)ei'ty wliich is entirely out of his power. But Grotius limits the application of that principle to the acquisition of things, and therefore justly dissents from the doctrine of Gajus given above, that the animal bci-omes again ^'■.* nullius immediately on recovering its liberty, if it be diificult for the fir.st occupant to retake it. He argues that when a thing has become the property of any one, whether it be afterwards takcin from him by the act of man, or whether he lose it from a natural cause, he does not necessarily lose his i-ight to it together with the poss(!ssion ; but that it is reasonable to presume that the proprietor of a wild animal must li:i\o renounced his right to it when the animal is gone beyond the ho ■ o i' recovery and where it could not be identified. He, therefore, argues i.:,;: the right oi' ownership to a wild animal may be rendered lasting, not- withstanding its flight, by a nuirk or other artificial sign by which the creature may be recognized. With regard to lish, Voet argues that when they are includeil within artificial boundaries they are pi'ivate propert}-, but that when they arc in a lake oi' other large piece of natural water, tliough the pii)j)rii;t(n' of the land may have a right of fishery there, yet the fish are in tlieir natural state of liberty, and consequently they can not be his piojierty until ho has brought them within his power by catching them. It was disputed among the ancient Roman jurisconsulti whether a wild animal becomes immediately the property of whoever wounds it so that it can be secured, or whether it becomes the property of him only who actually secures it. And Justinian confirmed the latter opinion, because many circumstances might occur to prevent the Avounded animal being taken by him who wounded it. Bees, also, are of a wild nature, and, therefore, they no more become the property of the owner of the soil by swarming in his trees than do the birds which build in them ; and they are not his unless he inclose them in a hive. Conseouently, whoever hives them makes them his own. And >m ym. it f»' \m ,/, . m. '■i 112 ARGUMENT OF THE UN'iTED STATES. * while they are wild any one may cut off the honeycombs, though the owner of the land may prevent this by warning off trespassers. And a swarm flying from a Live belongs to the owner of the hive so long as it is within his sight, but otherwise it is the property of whoever takes possession of it. With regard to creatures which have the habit of going and returning, such as pigeons, they remain the prop<'rty of those to whom they belong so long as they retain the aiiimus reiertendi »ir disposition to return. But when they lose that disposition they become the property of whomsoever secures them. And they must be held to have lost the animus revertt, di as soon as they have lost the habit of returning. £'nch are the doctrines of the Roman law, which are conformable to the English law, with the qualifi- cation ot Grotius, which is applicable to the case of all animals ferae naturce, that is to say, that a mark or collar prevents the rights of the proprietor of a wild animal being extinguished by its escape from his sight and pursuit. [From Cooper's Justinian (lib. II, tit. 1, Bees. 11 et *eq.).^ Sec. 11. De Bebus Singulorum. — There are various means by which things become private property. Of some we obtain dominion by the law of nature, which (as we have already observed) is also called the law of nations ; of others, by the civil law. But it will be most con- venient to beg'n fron the more ancient law ; that law, which nature established at the birth of mankind ; for civil laws could then only begin to exist when cities began to be built, magistracies to be created, and laws to be written. Skc. 12. De Occnpatione Ferarum. — Wild beasts, bii'ds, fish, and all animals, bred either in the sea, the air, or upon the earth, so soon as they are taken, become by the law of nations, the property of the captor ; for natui-al reason gives to the first occupant, that which had no previous owner; and it is not material whether the man takes wild beasts or birds upon his own, or upon the ground of another; although whoever hath entered into the ground of another for the sake of hunting or fowling, might have been prohibited by the proprietor, if he had foreseen the intent. Whatever of this kind you take, is regarded as your property while it remains under your coercion ; but when it hath escaped your custody, and recovered its natural liberty, it ceases to be yours and becomes the property of the first who seizes it. It is under- stood to have recovered its natural liberty, if it hath escaped your sight ; or alt^ (Ugh not out of sight, yet if it can not be pursued and retaken without great difficulty. Skc. 13. Be Vuhwratione.— It hath been questioned whetder a wild beast belongs to him, by whom it hath been so wounded, that it may be taken. And, in the opinion of some, it doth so, as long as he pursues it; but, if he quits the pursuit, it ceases to be his, and again becomes the right of the first occupant. Others have thought that property in a wild beast must attach to the actual taking it. We confirm this latter opinion ; because many accidents happen, which prevent the capture. Sec. 14. Dc Apibiis. — Bees also are wild by nature; therefore, although they swarm upon your tree, they are not reputed, until they are hived by you, to be more your property than the birds whicli have nests there ; so, if any other person inclose them in a hive, he becomes their proprietor. Their honeycombs also, if any, become the property of him who takes tliein ; but clearly, if you observe any person entering into your gn d, the object untouched, you may justly hinder him, A APPENDIX TO PART THIRD — DIVISION I. 113 lbs, though the espassers. And hive 80 long as : whoever takes » and retui-ning, 11 they belong so turn. But when msoever secures ivertei di as soon doctrines of the irith the qualifi- aals ferm naturm, if the proprietor n his sight and r-)-] neans by which lominion by the 1 also called the ill be most con- w, which natui-e could then only es to be ci'eated, 3s, fish, and all ;arth, so soon as ty of the captor ; which had no man takes wild other; although sake of hunting ietor, if he had is regarded as t wLen it hath it causes to bo it. It is under- ped your sight ; |ued and retaken Iwhetner a wild j, thitt it may bo as he pursues again becomes t property in ''e confirm this prevent the Brefore, although until they are trds which have |)ive, he becomes le the property person entering (hinder him. A swarm which hath flown from your hive is still reputed to continue your-i as long as it is in sight and may easily be pursued, but, in any other case it will become the property of the occupant. Sec. 15. De Pavonibiis, et Columbia, et Cmteris Animalibus Maivrnc' factis. — Peacocks and pigeons are also naturally wild ; nor is it any objection that after every flight, it is their custom to return ; for bees that are natui*ally wild do so too. Some have had deer so tame that they would go to the woods and return at regular periods ; yet no one denies but that deer are wild by nature. But with respect to animals, which go and return customarily, the rule is, that they are considered yours, as long as they retain an inclination to return ; but, if this ceases, tliey cease to be yours ; and will again become the property of those who tako them. [The Case of Swans. (7 Coke, 15 b.)] It was decided that a prescription to have all wild swans which are t'crcc naturce, and not marked, building their nests, breeding, frequent- ing within a particular creek, is not good. For " the prescription was insufficient, for the effect of the prescription is to have all wild swans, which are ferce naturce, within the said creek. And such prescription for a warren would be insufficient, as for example, to have all part- tridges nidijicantes gignentes, and frequenting within his manor. But he ought to say to have free warren of them within his manor ; he can not have them jure privilegii but so long as they are within the place. Bat it was resolved that if the defendants had alleged that within the said oreek there had been time out of mind a game of wild swans not marked, building and breeding ; and then had prescribed, that such abbot and all his predecessors had used at all times to have and to take to their use some of the said game of svild swans and their cignets within the said creek, it had been good ; for all those swans are royal fowls, yet in such manner a man may prescribe in them ; for that may have a lawful beginning by the King's grant. For in the 30i;h Edward III the King granted to C. W. all wild swans unmaiker' between Ox- ford and London for seven years. A. like grant was made of wild swans unmarked in tho County of Cambridge to Bereford, K. r. u., by which it appears that the King may grant wild swans unmarked ; and by conse- quence a man may prescribe in them in a certain place because it may have a lawful beginning. And a man may prescribe to have a royal fish within his manor as it is held in 39th Edward III, 35, for the reason aforesaid and yet without prescription they do belong to the King by his prerogative." In the same case it was said that thei-e are three manner of property rights ; property absolute, property qualified, property possessory. Property qualified and possessory a man may have in those animals which are ferce natura', and to such property a man may attain by two ways : by industry, or by ratione impotentia: et loci. By industry as by taking them or by making them mansuela or domestica. But in those which are ferce naturce and by industry arc made tame a man hath but a qualified property in them, namely, so long as they remain tame, foi- if they do attain io their natural liberty and have not animus revertcndi, the property is lost. Ratione impotcntia' et loci as if a man has young goshawks or the like which are/c/fc naturce and they build in my land, I have possessory property in them, for if one takes them when they can not fly the owner of the soil shall have an action of trespass. But when a man hath savage beasts ratiom' pririlpgii, as by reason of a park, warren. f 'IE f - ••J %$ .' [ I. "' ■M- ii ' ., m lift liJ \( i 114 ARGUMENT OF THE UNITED STATES. 11 '■'■■ t &c., lio hath not any property in tho deer, or conies, or pheasants, there- fore in his action ho shall not say miox, for ho hatli no property in them nnil tlioy do belong to Jiiin for Jiis game and pleasure so long as they rcninin in tho privileged place. ft was resolved that all white swans not marked, which have gained their natural liberty, and are swimming in an open and common river, might be siezed to tho King's use by his prerogative, because Volatilia (^qucc sunt ferm naturce) alia sunt regalia, alia cotnmunia ; * * * as a swan is a royal fowl ; and all those, the property whereof is not known, do belong to the King by his prerogative; and so whales, and sturgeons, are royal fish, and belong to tho King by his prerogative. * * * But it was resolved also that the subject might have prop- erty in white swans not marked, as some may have swans not marked ill his private waters, tho property of which belongs to him and not to the King; and if they escape out of his private waters into an open and common rivci-, he may bring them back and take them again. And therewith agreeth Bracton (lib. 2, c. 1, fol. 9) : Si autem ani oiialia fera facta juerint mansucta, et i-x consitetudine euut et redeunt, volant et revolant, (^ut mint cerii, ciijni, pavones, et columbai, et hujus- modi) cousque nostra intelligantur quamdiu Imhuerint aniinum revertendi. But if they have gained their natural liberty, and are swimming in open and common rivers, the King's officer may seize them in tho open and common river for tho King ; for one white swau without such pursuit as aforesaid can not be known from another ; and when the property of a swan can not be known, the same being of its nature a fowl royal, doth belong to the King ; and in this case the book of 7 H, 6, 27, b, was vouched, where Sir John Tiptoft brought an action of trespass for wrongful taking of his swans ; the defendant pleaded that he was seized of the lordship of S, within which lordship all those whose estate he hath in the said loi'dship had had time out of mind all estrays being Avithin tho same manor ; and we say, that the said swans were esti-aying at the time in the place v/here, «&c., and we as landlords did seize and make proclamations in fairs and markets ; and so soon as we had notice that they were your swans, we delivered them to you at such a place. The plaintiff replied that he was seized of the manor of B, joining to the lordship of S, and we say, that we and our ancestors, and all those, etc., have used time out of mind to have swans swimming through all the lordship of S, and wo say, that long time before the taking we put them in there, and gave notice of them to the defendant that they were our swans, and prayed his damages. And the opinion of Strange there was well approved by the court, that the replication was good ; for when the plaintifE may lawfully put his swans there, they cannot be estrays, no more than the cattle of any one can be estrays in such place where they ought to have common; because they are there where the owner hath an interest to put them, and in which place they may be without negligence or laches of the owner. Out of which case these points were observed concerning swans. 1. That every one who hath swans within his manor — that 'is to say, within his private waters — hath a property in them, for the writ of trespass was of wrongful taking his swans, scil. Quare cignos snos, etc. 2. That one may prescribe to have a game of swans within his manor, as well as a warren or park. ',i. That he who hath such a game of swans may prescribe that his swans may swim witliin the manor of another. 4. That a swan may be an estray, and so can not any other fowl, as I have read in any book. I ' ■■■* -■ sasants, there- perty in them long as they I have gained ;ommon river, :ause Volatilia * * * as vhereof is not whales, and is prerogative, lit have prop- is not marked him and not waters into an ke them again. St autem ani unt et redeunt, nhai, et hujus- )ium revertendi. nraing in open 1 the open and such pursuit as ! property of a owl royal, doth , 6, 27, b, was af trespass for . he was seized rhose estate ho 1 estrays being were estraying did seize and we had notice ch a place, f B, joining to , and all those, ng through all taking we put that they were Strange there ivas good ; for hey cannot be in such place lere where the they may be lich case these t 'is to say, rrit of trespass btc. ^hin his manor, that his swans ther fowl, as I APPENDIX TO PART THIRD — DIVISION I. [Child r. GJrDi-nliill (.1 Croko, .553).] 115 Trespass for entering and bi'eaking plaintiff's close and fishing and taking fish in his several fishery. Contended for tlio defendant that bo could not say " his " fishes, for ho hath not any property in the fish until he takes tliem and has thorn in his possession. Attorneys for plaintiff maintained that tliey wore in his several fishery, and that he might say " his " fishes, for there was not any otlier that mij,'ht hike them, and all the court was of that opinion. [Keeble r. Tlifkoriiigill, 11 EnstV, 57t.] Action upon the case. Plaintiff declares that he was, November 8, in the second year of the Queen, lawfully possessed of a close of land called Minott's Meadow, et dc quodam tivario vocato, a decoy pond to which divers wild fowl used to resori and come ; and the plain- tiff had, at his own costs and chai'ges, prepared and ijrocured divers decoy ducks, nets, machines, and othci- engines for the decoying and taking of the wild fowl, and enjoyed the benefit in taking them ; the defendant, knowing which, and intending to damnify the plaintiff in his vivary. and to tright and drive away the wild fowl used to resort thither, and deprive him of his profit, did on the 8th of November, re- sort to the head of tiie said pond and vivary, and did discharge six guns laden with gunpowder, and witli the noise and stink of the gun- powder did drive away the wild fowl then being in the pond ; and on the 11th and 12th days of November the defendant, loith desujii to damnify the plaintiff and fright away the wild fowl, did place himself with ■ ■■. H. 1 -i v; *•' ■ ' . t . ' ' ' : .; " . ^ ' ^':>^ i ■■' ^V: : ■ r-4.' %i IT 118 ARQIJMENT OF THE rNTTED STATE6. 't I I «i ^ of property, notwithstanding, would still continue in him. Of this there can be no doubt. So in respect to the qualified property in tlin bees. If it continued in the owner after they hived themselves and abode in the hollow tree, as this qualified interest is under the same protection of law as if absolute, the like remedy existed in case of an invasion of it. It can not, I think, be doubted that if the property in the swarm continues while within sight of the owner — iu other words, while lie can distinguish and identify it in the air — that it equally be- longs to him if it settles upon a branch or in the trunk of a trje, and remains >,here under his observation and charge. If a stranger has no right to take the swarm in the former case, and of which there seems no question, he ought not to bo permitted to take it iu the latter, when it is more confined and within the control of the occupant. It is said the oiuner of the soil is entitled to the tree and all within it. This may bo true, so far as respects an unreclaimed swarm. vVliilc it remains there in that condition, it may, like birds or other game, (game laws out of the question) belong to the owner or occupant of the forest, ratione soli. According to the la\v of nature, whci-e prior occupancy alone gave ri-ht, the individual who first hived the swarm would be entitled to t ic property in it ; but since the institution of civil society, and the regulation of the right of property by its positive laws, the forest as well as the cultivated field, belong exclusively to the owner, who has acquired a title to it under those laws. The natural right to the enjoyment of the sport of hunting and fowling, wherever animals / /I' iiaturtE could be found, has given way, iu the progress of society, to the establishment of rights of property better defined and of a more durable character. Hence no one has a right to invade the enclosure of another for this purpose. He would be a trespasser, and as such liable for the game taken. An exception may exist in the case of nox- ious animals, destructive in their nature. Mr. Justice Blackstone says : If a man stai'ts game in another's private grounds, and kills it there, the property belongs to him in whose ground it is killed, because it was started there, the property arising ratione soli. (2 Black. Com., 419.) But if animals /era; natunv that have been reclaimed, and a qualified property obtained in them, escape into the private grounds of another in a way that does not restore them to their natural condition, a dif- ferent rule obviously applies. They are then not exposed to become the property of the first occupant. The right of the owner continues, and though he can not pursue and take them without being liable for a trespass, still this difficulty should not operate as an ab .adonment of the animals to their former liberty. The rights of both parties should be regarded and reconciled, as fai' as is consistent with a reasonable protection of each. The case of Heermance vs. Vernay (G Johns. R., 5), and Blake vs. Jerome (14 id., 406), are authorities for saying, if any were wanted, that the inability of the owner of a personal chattel to retake it while on the premises of another, without committing a trespass, does not impair his legal interest in the property. It only embiirrasses the use or enjoyment of it. The owner of the soil, therefore, acquiring no right to the property in the bees, the defendant below can not protect himself by showing it out of the plaintiff in that way. It still continues in him, and draws after it the possession sufficient to maintain this action against a third person, who invades it by virtue of no other claim than that derived from the law of nature. This case is distinguishable from the cases of Gillett vs. Mason (7 Johns. E., 16), and Ferguson vs. Miller (1 Cowen, 243). The first presented a question between the finder and a person APPENDIX TO PATIT THrRD — DIVI8ION 1. :-i interested iu tlie soil ; the other hetwteii two persons, cieh cluiiuin|>; as the first tinder. The ])hiintift' in the lash ease, though the first tinder, had not acquired a (luiilified property in the swarm, at A*8fl into court. Issue was joined on tlicse |>N\\s, The cause was tried l)etore iho Intc Mr. Jiistieo Coltnian, nt the sit- tings in Middlesex, after Hilary term, 1S17, when tlio juiy found a verdict for the idaintilfH upon the issues — testator pos.sessed- plaintiffs possessed- and that the deer were tame and icclaimcd. A rule nisi was afterwards obtained by tlii defend, lut in tlie follow- ing Kaster term to show cause why there slinuid not be a new trial upon the ground of niLsdirection, that there had been no sullitient ver- dict found by the jury, and that, if a .sufrK-ieni verdict had been found, it was contrary to the evidence. Several questions arose upon Iho trial — first, whether the laud called Eridge Park, in the county of Sussex, was an ancient legal park ; secondly, whether it continued to be a legal park, or whether it had become disparked by the addition of other lands to the original i)ark, and by the removal, decay, or destruction of th»! fences, so aa t .-..ator thei'e had always been a considerable herd of deer maintained in the park. And it was also proved that the place in question, consisting of upwards of 70U acres of land, was, in many parts, of a very wild and rough description. It also appeared by the evidence that certain lands had been added to the original park; and there ^was some contrariety of evidence in regard to the state of the fences. It was also proved that a considerable quantity of deer had the range of the park; and that some were tame, as it was called, and others wild. What in particular the witnesses meant by the distinc- tions of tame and wild was not explained; but it rather seemed tUfit their meaning was that some were less siiy and timid tluui t)thcrs. It appeared that the deer very rarely escaped out of the boundaries ; that they were attended by keepers, and were fed in the winter with hay, beans, and other food ; that a few years back a (puintity of deer hud been brought from some other place and turned into Eridge Park ; that the' does were watched, and the fawns, as they dropped, were constantly marked, so that their age at a future time might be ascer- tained ; that, at certain times, a number of deer were selected from the herd, caught with the assistance ot' dogs, and were put into cer- tain parts of the park, which were then inclosed from the rest, of sud'i- cient extent to depasture and give exercise to the selected deer, which were fattened and killed, either for consumption, or for sale to venison dealers ; that the deer were usually killed by being shot ; and th.at theij was a regular establishment of slaughterhouses for preparing and dressing,' them for use. Such being the general effect of the evidence, the learned judgu stated to the jurj', that, by the gcnei-al law, deer in a park went to tin- heir-at-law of the owner of the park ; but that deer which were tame and reclaimed became personal property, and went by lav*- to the personal representatives of the owner of them, and not to the heir of the ownei- of the park in which they were kept. And the learned judge left it to the jury, whether the place iu question was proved by the evidence to have been an ancient park, with the legal rights of a park, and told [317] 1 ARGUMENT OF TBE rNITED STATES. ,1 r. > :yr' ^:J ilieiii rliiil, il' it hud In'oii an aiicienl- park, and the boundaries could nut now lie ascertaiiH'd, lliat the Franchise might be forfeited in refer- ence to tlio ci'dwn, but that that wouhl not affect the question between the parties relati%-e to tlio deer, that question being whether the deer were tamed and reclaimed ; which must be determined with reference to the state and condition of the aiiimals, the nature of the place where they were kept and tlio moih- in whicli they had been treated : and the learned judfjo stated in writing the questions to be answered by the jury, which were, llrst, whether they found for the plaintiffs, the execu- tors, or for the dcfendanl, Jjord Abergavenny; secondly, whether they found tlio phice to bo an ancient park, with the incidents of a legal park ; tbirdi}-, whether the boundaries could be ascertained by distinct marks. The jury answered, that they found the place to be an ancient park, with all the incidents of a legal park; secondly, that the boundaries of the ancient park ccmld be ascertained. And the jury expressed a wish to abstain from finding for either plaintiffs or defendant ; but, upon being requii-ed to do so, they found a vei'dict for the plaintiffs, and stated that the animals hiid been originally wild, but had been re- claimed. 'Vh>' "iiic came i u for argument in Easter term, 1848 ; and it appeared, upon the diseussicn, that tlie objection that no sufficient verdict had been found by the Ji'ry, had been urged upon a misajjprehension of "what the jury had said, [t was su])posed that the jury had not found, in terms, dor either plai itiffs or defendant, but merely had answered the questions put to them : but it appeared, upon inquiry, that the jury had been rc([uired to tind a verdict for the plaintiffs or for the defen- dant, in addition to answering the questions; and that they accordingly returned a verdict fo}' the plaintiffs. The second objection was that the judge had misdirected the jury ; and it has been contended, in support of that objection, that the judge must be held to have misdirected the jury in having omitted to im- press sufficiently upon them the importance of the fact of the deer being kept in an ancient legal park. But the judge did distinctly direct the attention of the jury to the fact of the deer being in a legal park, if such should be their opinion of the place, as an important ingredient in the consideration of the (juestion whether the deer were reclaimed or not when he directed them thiit the question whether the deer had been reclaimed must be de- termined by a consideration, among the other matters pointed out, of the natni'e and dimensions of the park in which they were confined ; and we do not perceive any objectionable omission in the judge's direc- tion in this respect, unless the jury ought to have been directed that such fact Avas conclusive to negative the reclamation of the deer. It has not been, on the part of the defendant, contended, in tenns, that ilecr kept in a legal park can in no case be deemed to have been tamed or reclaimed, altliough the argument seemed to bear that aspect; but the many cases to be found ill the books in which the question has been agitated, in whom the })i'opcrty was of deer in a puxk, seem quite inconsistent with such a position ; because in all such case, the argu- ments ])roccedcd aipon the distinct fact that the deer wex'e in a park, that is, a legnl park ; and the question was whether deer continued to be wild aninuils, in which no property could be acquired, and vrhich, therefore, like other game and wild animals, being upon the land, passed with the estate, or whether, by reason of their being tamed and reclaimed, a property could be acquired in the deer distinct from the m M APPENDIX TO PART THIRD — DIVTRION I. iidaries could ited in refer- t\ between the 10 deer were eronce to the e where they ted : and the wered by the ffs, the execu- whether they its of a legal 3d by distinct ancient pai'k, boundaries of ressed a wish at ; but, upon plaintiffs, and had been re- nd it appeared, nt verdict had ension of what not found, in L answered the thut the jury for the defen- ley accordingly ;ted the jury ; that the judge omitted to im- the deer being he jury to the their opinion eration of the directed them . must be de- lointed out, of fere confined ; judge's direc- directed that deer. ^ded, in tei-ms, to have been far that aspect ; le question has ik, seem quite ist, the ai'gu- rere in a park, continued to and vrhich, [pou the land, «ing tamed and tinct from the pass 111 125 like estate, although remaining in the park, and which would manner as other personal property. The general position, thi'refore, to bo found in all tlie books, that deer in a park will pass to the heir unless tamed and reclaimed, in wbioh case they would pass to the executor, seems to bo inconsistent with the position that deer can not, in any case, .,j considered as tamed and reclaimed whilst they continue in a legal park. Many authorities are cited upon that subject, the names of Avliieh it is not necessary ot advert to. The observations made in support of" the rule, on the part of the defendant, Avere rather addressed to a complaint that the learned jrdge did not give so much .weight to the fact of this being a legal park rs they thought belonged to it, than to any exception to what the judge really said upon the subject. There can be no doubt that the learned counsel on tbo part of the d( ''endant did not omit to impress upon ^bc jury his view of the importance of the fact of the deer being found in an ancient and legal park; and nothing is stated to have fallen from the judge calculated to withdraw the attention of the jury from the observations of the counsel made in that respect, or to diminish the force which justly attaches to any of them. It remains to be considered whether the arguments in support of the rule have shown that the verdict upon the issue, whether the deer were tame and reclaimed, was warranted by the evidence. In showing cause, on the part of the plaintiff, against the rule, it was contended that tlie conclusion of the jury that Bridge Park continued to possess all the incidents of a legal park, was not warranted by the evidence ; because it was said that the franchise had been forfeited by the addition of other lands to the ancient park, and the destruction of the means of ascei'taining the ancient boundaries ; and numerous authorities were referred to, relating to the requisites for constituting an existing legal park, and of the causes of the forfeiture of the franchise. But the opinion which the court has formed upon the other parts of the case, renders it unnecessaiy to enter into the consideration of that question, or into an examination of the authorities referred to. That it was proper to leave the question to the jury in the terms in which the issue is expressly joined can not be disputed, and the direction that that question must be determined by referring to the i)lace in which the deer were kept, to the nature and habits of the animals, and to the mode in whicJi they were treated, appears to the coui-t to bo a eor"'jt direction; and it seems difficult to ascertain by what other mea.is the question should be determined, whether the evidence iu this case was such as to v/arrant a conclusion that the deer were tamed and reclaimed. The court is, therefore, of opinion tl'it the rule can not be supported on the ground of mi.'-direction. It is not contended that there was no evidence tit to be submitted to the jury, and that, therefore, the plaintiif ought to have been non- suited ; but it is said that the weight of evidence was against the verdict. In considering whether the evidence warranted the verdict upon the issue, whether tho deer were tnnuMl and reclaimed, the observations made by Lord Chief Justice Willi,-, iu tho case of Davies v. Powell are deserving of attention. Tho difl'erence in regard to the mode and object of keeping deer in modern times from that which anciently prevailed, as pointed out by Lord Chief Justice Willes, can not be over- looked. It is truly stated that ornament and profit are the sole ob- [317] I '2 » 'ii'iii'i^^^ '■'.^^V'^ 126 AllGU.MENT OF THli UNITED STATES. jects for which deer are now ordinarily kept, whether in ancient legal parks or in modern enclosures so-called ; the instances being yevy rare in which deer in such places are kept and used for sport ; indeed, their whole management differing very little, if at all, from that of sheep or of any other animals kept for profit. And, in this case, the evidence before adverted to was that the deer wore regularly fed in the winter ; the does with young were watched ; the fawns taken as soon as dropped, and marked ; selections from the herd made from time to time, fattened in places prepared for them, and afterwards sold or consumed, with no difference of circumstance than what attached, as before stated, to animals kept for profit and food. As to some being wild, and some tame, as it is said, individual animals, no doubt, differed, as iiiJ:"iduaIs in almost every race of animals ai'o found, under any circumstances to differ, in the degree of tameness that belongs to them. Of deer kept in stalls, some would be found tame and gentle, and others quite irreclaimable, in the sense of temper and quietness. Upon a question whether deer are tamed and reclaimed, each case must depend upon the pai-ticnlar facts of it; and in this case, the court think that the facts wei-e such as were proper to be submitted to the jury ; and, as it was a question of fact for the jury, the court can not perceive in} suflScient grounds to warrant it in saying that the jury have cnie :■:■ a wrong conclusion upon the evidence, and do not feel aiithor! <' • ■ • disturb the verdict ; and the rule for a new trial must, therefoiH', bt discharged. Rule discharged. [John Daries v. Thomas Powell and six others. Willes's Eeports, 1737-1?58.] The following opinion of the court was thus given by Willes, Lord Chief Justice : Trespass for breaking and entering the -close of the plaintiff, called Caversham Park, containing 600 acres of land, in the parish of Caversham, in the county of Oxford, for treading down the grass, and for chasing taking and carrying away diversan /craft, videlicet, 100 bucks 100 does and 60 faw is of the value of £600 of the said plaintiff, incluswi et coarctatas in the said close of the said plaintiff. Damage £700. The defendants all join in the same plea ; and as to the force and arms, etc., they plead not guilty, but as to the residue of the trespass they justify as servants of Charles Lord Cadogan, and ;^et forth that the place where, etc., at the time when, etc., Avas, and is a park inclosed and fenced with pales and i-ails, called and known by the name of Caver sham Park, etc. ; and that the said Lord Cadogan was seized thereof and also of a messuage, etc., in his demesne as of fee, and being so seized on the 3d of August, 1730, by indenture demised the same to the plain- tiff by the name {inter alia) of all the said park called Caversham Park from Lady-day then last past for the term of 7 years, under the rent of £1'24! 2i>. The deer are not particularly demised, but ihere is a covenant that the plaintiff, his executors, and administrators should from time to time during the term keep the full number of 100 living deer in and npon the said demised premises, or in or upon some parts thereof. And Lord Cadognn covenants to allow the plaintiff in the winter yearly during the cerm twenty loads of boughs and lops of trees Ibi- browse for his deer to feed on, calling them there, as he does in other parts of the lease, the deer of the said John Davies ; and likewise covenants that if the plaintiff shall on the feast of St. Michael next before the expiration thereof pay Lord Cadogau all the rent that m 1 m APPENDIX TO PART THIRD — DIVISION I. 1-27 would be due at the expiration of the lease, thou the plaintiff, liis cx- ecutoi*s, etc., might sell or dispose of any or all of the deer that he or tliey should have in the said park at any time in the last year of the said term, anything in the said indenture to the contrary in anywise notwith- standing. And the defendants justify taking the said deer as a distress for £186 rent due at St. Thomas-day, 1731, and say that they did seize, chase, and drive away the said deer in the declaration mentioned then and there found, "being the property of and bdonging to the said John Davies," in the name of a distress for the said rent; and then set forth that they complied with the several requisites directed by the act con- cerning distresses (and to which there is no objection taken) that the deer Avere appraised at £101 15s. Gd., and that they were afterwards sold for £86 19«., being the best price they could get for the same ; and that the said sum was paid to Lord Cadogan towards satisfaction of the rent in arrear ; and that in taking such distress they did as little damage as they could. To this plea the plaintiff demurs generally, and the defendants join in demurrer. And the single question that was submitted to the judgment of the court is whether these deer under these cii'cumstances, as they are set forth in the pleadings, were distrainable or not. It was insisted for the plaintiff t hat they were not ; (1) Because they v»'ere feriv natunr, and no one can have absolute property in them. (2) Because ihey are not chattels, but ai'e to be considered as heredita- ments and incident to the park. (3) Because, if not hereditaments, they were at least part of the thing demised. (4) Their last argument was drawn al !inti>ifato, because there is no instance in which deer have been adjudgt-d to be distrainable. First. To support the first objection, and which was principally relied on by the counsel for the plaintiff, they cited Finch 176; Bro. Abr., tit. "Property," pi 20; Keilway, 30 b; Co. Lit. 47 a ; 1 Rol. Abr. 666; and several other old books, wherein it is laid down as a rule that deer are not distrainable ; and the case of Arallocko r. Eastley, 3 Lev. 2'27, where it was holden that trespass will not lie for deer, unless it appears that they are tame and reclaimed They likewise cited .3 Inst. 10!>, 110, and I Hawk. P. (_'. 94 to prove that it is not felony to take away deer, conies, etc., unless tame and reclaimed. 1 do admit that it is generally laid down as a rule in the old books that ;ieer, conies, etc., are fcrw natiirtv, and that they are not distrainable ; and a man can only have a property in tlieni ratiouc loci. And therefore in tl' ! case of swans, (7 Co. 15, 16, 17, 18) and in several other books there I ited it is laid do-vn as a rule that where a man brings an action for chasing and takintr away d.'ov, haivs, rabbits, etc., lie shall not say suos, because he Lti.-* tiicn only I'or his gami' and pleasure nitioiic pririlcyii •wh^Ui they are in his park, wai'ron, etc. But there are writs in the register (fol. 102), a book of the greatest authority, and sei'cral other places in that book which shovv that this rule is not always adhered to. The writ in folio 102 is " iy«(j*v claitsiitn ipsiits A. frcgcf et intravit, ^' nniiculos suos cepit." The reason given for this opinion in the books why Ihey are not distrainable is that a man can have no valuable property in them. But tlie rule is plainly too general, Ibi' the rule in Co. Lit. is ex'ended to (iogs, yet it is clear now that a man may have a valuable property in a dog. Trover has been sevei-al times brought for a dog, and gieat s 1 V '■ '? :'; !■' 128 ARGUMENT OF THE UNITED FsTATES*. ill. f damages have been recoverefl. T^esides the nature of things is now very much altered, and the reason which is given for the rale fails. Deer were formerly kept only in forests or chases, or such parks as were parks either by grant oi- prescription, and were considered rather as things of pleasure than of profit ; but now thej' are frequently kept in inclosed grounds which are not properly parks, and are kept princi- pally for the sake of profit, and therefore must be considered as other cattle. And that this is the case of the deer which are distrained in the present case is admitted in the pleadings. The plaintiff by bringing an action of trespass for them in some measure admits himself to have .'i property in them ; ai\d they are laid to be inclusan at coarrtatas in his close, which at least gave him a property ratioue loci; and they are laid to be taken and distrained there ; but what follows makes it still stronger, for in the demise set forth in the plea, and on which the question depends, they are several times called tlic deer of John Davies, th> plaintiff, and he is at liberty to dispose of them as his owia before the expiration of the term on the (rendition there mentioned. And it is expres.sly said that the defendav! dist^'ained the deer being the property of the said John Oavies; c o plain that he had a valuable property in them, they having been ■■ for £86 19»-., both which facts are admitted by the demurrer. Tl..- plaintiff therefore in this case ia estopped to say either that he had no propei'ty in them or that his property was of no value. Besides it is expres-sly said in Bro. Abr., tit. " Property," pi. 44, and agreed in all the books, that if deer or any other things ferce naiurcb become tame a man may have a pi-operty in them. And if a man steal such deer it is certainly felony, as is admitted in 3 Inst., 110, and Hawk F. C, in the place before cited. Upon a supposition, therefore, which I do not admit to be law now, that a man can have no property in any but tame deer, these mast bo taken to be tame deer, because it is admitted that the plaintiff had a pi'operty in them. Second. As to their not being chattels but hereditaments and inci- dent to the pai'k and so not distrainable, several cases were cited : Co. Lit., 47 b. and 7 Co. 17 b. ; where it is said that if the owner of a park die the deer shall go to his heir and not to his executors ; and the statute of Marlbridge (52 Hen. Ill, c. 22), where it is said that no one shall distrain his tenants de libera tenemento siio nee de aliquibn/i ad liheriim tenementtim spectantibun. I do admit the rule that heredita- ments or things annexed to the freehold are not disti'ainable ; and possibly in piiri ol' the thiiiL,' deinipod, and cousiMiueutly not distrainablc, the onlv case wbieb wa.s cited to prove (his was the eii.se rofit, and were not sold and turned into money as they are now. Hut now tbey are become as mueii a soit of husbandry as horses, cows, sheep, or any otber cattle. Wbcnever they iire so and it is universally known, it would lie ridiculous to say that when tbey arc kept merely for proKt tbey are not distrainablc as otber cattle, though it has been boldeu thiit they were not s:> wben tbey were kept only for pleasure. Tiio rules ct)ncerning personal estates, wbieb were laid down when personal estates were but small in ]troportiou to binds, are quite viiried both in courts of law and equity, now tbat per- sonal estates are so much increased and become so considerable a part of the property of this kingdom. The'efore, without contradicting the reasons wliifb art; laid down concerning this matter in the ancient books, and witbout determining anything with respect to deer in forests and cbases or parks properly so called, concerning which we do not think it necessary to determine anything at present, we are all of opinion tbat we arc well warranted by the pleadings to determine tbat tbese cleci-, under tbe circumstances in which they appear to have been kept at tbc time when tbis distress was taken, were properly and legally distrained for the rt^nt tbat was in arrear. There must therefore be judgment for tbc defendants. : * i •■■•1 h% - ^'\^:. r- \t<- .,!■ r<: ■::& 4-' 130 ARGUMENT OF THE UXITED STATES. I 1:1 ,ii' if ! II. — The Right op the United States to Protect their Sealing Interests and Industry. The principal question which the United States Government conceives to be presented for the decision of this High Tribunal, is thus stated in the Case of the United States (p. 299) : Whether individuals, not subjects of the Unit«d States, have a right as against that Government and to which it must submit, to engage in the devastation complained of, which it forbids to its own citizens, and which must result in the speedy destruction of the entire property, industry, and intei-ests involved in the preservation of the seal herd. In reply on its part to this question, three propositions of law are set forth by the United States Government in its Case (p. 300) : First. That in view of the facts and circumstances established by the evidence, it has such a property in the Alaskan seal herd, as the natural product of its soil, made chiefly available by its protection and expend- iture, highly valuable to its people, and a considerable source of public revenue, as entitles it to preserve the herd from destruction in the manner complained of, by an employment of such reasonable force as may be necessary. Second. That, irrespective of the distinct right of property in the seal herd, the United States Government has for itself and for its people, an interest, an industry, and a commerce derived from the legit- imate and proper use of the produce of the seal herd on its territory, which it is entitled, upon all principles applicable to the case, to pro- tect against wanton destruction by individuals, for the sake of the small and casual profits in that way to bo gained; and that no part of the high sea is or ought to be open to individuals, for the purpose of accomplishing the destruction of national interests of such a character and importance. Third. That the United States, possessing as they alone possess, the power of preserving and cherishing this valuable interest, ai'e in a most just sense the trustee thereof for the benefit of mankind, and should be permitted to discharge their trust without hindrance. : Sealing snt cor-ceivea stated in the ,ve a right as engage in the IS, and which industry, and f law are set 3lished by the tS the natural L and expend- ce of public in the manner e as may be perty in the and for its om the legit- its territory, case, to pro- sake of the at no part of e purpose of a character possess, the lare in a most id should be RIGHT TO PROTECT INTERESTS AND INDUSTRY, 131 In the division of the argument that has been made between counsel for convenience' sake, the first and third of these propositions, which are naturally connected, have been exhaustively discussed by Mr. Carter. Before proceeding to that consideration of the second proposition which is the principal purpose of this argument, the undersigned de- sires to add in respect to the first, some brief suggestions, which are perhaps only a restatement in a different form, of what has been already advanced. Whatever else is in dispute, certain facts in relation to the seal herd, its qualities, and its necessities, are not denied. The seal is an amphibious animal, polygamous, altogether st« gpneria, and very peculiar in its habits. A fixed home upon land during several months in the year is necessary to its reproduction, and to the perpetuation of its species. It has established this home, from the earliest known period of its existence, on the Pribilof Islands, to which it returns annually with an unfailing animus revertendi and an irresistible instinct, and where it remains during several morths, and until the young which are born there have acquired sufficient growth and strength to depart on their periodic and regular migration. While on land it submits readily to the control of man, and indeed com- mits itself to his protection. And it is testified by credible witnesses that every seal in the herd, were it desired, could be branded with the mark of the United States. The Government lias fostered and protected the seals, as did the Russian Government, its predecessor in the ownership of these islands, by careful lcgi,slation and by constant and salutary executive control, and has established out of the seal products an important and valuable industry. Without this protection the animal would long since have been exfcex*- minated, as it has been almost everywhere else. When the female seals arrive on the islands, they are pregnant with the young which were begotten thei-e during the previous season. After the young are born, the mothers, while suckling tliera, are accustomed almost daily, and from necrssity, to run out to sea beyond the limits of the territorial waters ii. pursuit of food, leaving the young on the islands during their absence. Upon these facts alone, it is insisted by the United States Government, that it has such a property in the seal herd, the produce of its territory nnd appurtenant thereto, as entitles that Government to protect it from extermination or other unauthorized and injurious interference. ■'■4 m ). . I 2 I I; I ill: m Ly'iyt 1; -^ 11 A (k •-■■' ■ K-' ;■ i i li' ' 1 ' % r 132 ARGUMENT OP THE UNITED RTATES. Tho complete right of property in the Government while the animals are upon the shore or within the cannon-shot range which marks thu limit of territorial waters can not bo denied. The only question is whether it has such a I'ight outside of that line, while the seals are ou their way to the islands in the regular progress of their migration at the season of I'eproduction, or when, while remaining on the islands, the females are passing to and fro in the open sea in quest of the food necessary to sustain the young left there, and which would perish if their mothers were destroyed. The clear statement of this question and of the facts upon which it depends, would "poiu u. render its answer obvious. (1) Even upon tho ordinary principles of municipal law as adminis- tered in courts of justice, such a property would exist under tho cir- cumstances stated. It is a general rule, long settled in the common law of England and America, that where useful animals, naturally, wild have become by theii- own act, or by the act of those who have subjected them to control, established in a home upon the land of such persons, til v.hich the animals have an anirmim revertendi or fixed habit of return, and do thei-efore regularly return, where they are nurtured, pro- tected, and made valuable by industry and expenditure, a title arises in the proprietors of the liand, which enables them to prevent the destruction of the animals while temporarily absent from the territory where they belong ; a title, however, which would be lost shonld the\- abandon permanently their liabit of return, and regain their former wild state. It is under this rule, the justice of which is apparent, that property is admitted in bees, in swans and wild geese, in pigeons, in deer, and in many other animals originally ferce naturce, but yet capable of being pai'tially subjected to the control of man, as is fully shown by the numerous authoiities cited in and appended to Mr. Carter's argument ; and that point need not be further elaborated.' The case of the seals is much stronger, in consequence of their peculiar nature and habits of life. Their home on American soil is not only of their own selection, but is a permanent home, necessary to their existence, and in respect to which they never lose the animum revertendi. Upon the evidence in ' Spo also the cases of Hannam v. Mockett, 2 Barnewall r. CressweU's Eep., p. 943 ; Keeble \\ Hicberingill, Holt's Rep., p. 17, and Carrington v. Taylor, 1 East's Eep., p. 571, and Ilcporter's note, from which extract* ar ^ren in appendix to this portion ol' the argument, p. 180. RIGHT TO PROTFjrr [NTRRE8TM AND TNDTTSTRY. 133 ) tho animals sU marks thu y question is 3 seals are on ' migration at 1 the islands, lat of the food »uld perish if this question ider its answer iv as adminis- mder the cir- n the common naturally, ■wild have subjected such persons, fixed habit of nurtured, pro- , a title arises 3 prevent the 1 the territory it should they lir former wild lat property is deer, and in Uble of being shown by the p's argument ; Be of the seals and habits of I own selection, Id in respect to Le evidence in I's Rep., p. 943 .. East's Rep., p. this portion of this caso it is gravoly tn bo doubt od, whether if the United States rmvoni- ment should now vopol them from the Pribilof Islands, and prevent hence- forth their landing' tluMo as thoy are accustomed to do, there is any other land inthoso seas, affording the requi-sitoqualitiesof soil, climate, atmosphere, approach, j)i'opinquity to the water, food, and freedom from disturbance, on which they would be able to reestablish themselves, so as to continue their existence. Especially does the rule of law above stated apply to animals, which in their temporary departure from their accustomed home, enter upon no other jui'isdiction, and derive neither sustenance nor protection from any other proprietor, but only pass through the waters of the common highway of nations, where all rights are relative. (2) But upon the broader principles of international law applicable to tho case, the right of property in these seals in the United States Government becomes still clearer Where animals of any .sort, wild in their original nature, are attached and become appurtenant to a maritime temtory, are not inexhaustible in their ])roduct, are made the basis of an important industry on such territory, and would be exterminated if thrown open to the general and unrestricted pursuit of mankind, they become the just property of the nation to which they are so attached, and from which they derive tho protection without which they would cease to exist, even thougii in the habits or necessities of their life some of them pass from time to time into the adjacent sea, beyond those limits which by common consent and for the purposes of defense, are regarded as constituting a part of the national territory. In such a case as this, the herd and the industry arising out of it become indivisible- and constitute but one proprietorship. While the United States Government asserts and stands upon the full claim of property in the seals which we have attempted to establish, it is still to be borne in mind that a more qualified right would yet bo sufficient for the actual requirements of the present case. The question here is not what is the right of ownership in an individual seal, should it wander in some other period into some other and far distant sea; that is an inquiry not essential to be gone into; but what is the right of property in the herd as a whole, in the seas, and under the circumstances, in which it is thus availed of by the United States Government as the foundation of an important national concern, and in ■ I- ^m' iVf v.. ;.. 1, ■ , ■■-."■} ii i=l f 134 AHOrMENT OF THE TTNITED STATES. ' i a :h. 1 ■ 1 ^' ' " ■' j; i''f which it ifl asRailed by the Canadians in the manner complained of ? When this point is determined, all the dispute that has arisen in this case is disposed of. The principle of law last stated is not only asserted, without confra- diction, by the authoritative writers upon international jurisprudence, but has been acted upon, with the assent of all nations, in every case that has arisen in civilized times, within the conditions above stated. And upon that tenure is held and controlled to-day, by nations whose borders are upon the sea, all similar property, of many descriptions, that under like circumstances is known to exist. Says Puffendorf (Law of Nature and Nations, book 4, chap. 6, sec. 7) : As for fishing, though it hath much more abundant subject in the sea than in lakes or rivers, yet 'tis manifest that it may in part be ex- hausted, and that if all nations should desire such right and liberty near the coast of any particular country, that country must be very much prejudiced in this respect; especially since 'tis very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the borderers should not rather challenge to themselves this happiness of a wealthy shore or sea than those who are seated at a distance from it. Says Vattel (Book T, chap. 23, sec. 287, p. 126) : The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, etc. ; now in all these respects its use is not inexhaustible. Wherefore, the nation to whom the coasts belong may appropriate to themselves, and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possess themselves of the dominion of the land they inhabit. Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become property ? And though, where the catching of fish i? the only object, the fishery appears less liable to be exhausted, yet if a nation have on their coasts a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature as an iippcudage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive, in case there bo a sufficient abundance of fish to fnrnisli the neighbouring nations? * * * (Sec. 288.) A nation may appropriate to herself those things of which tlie free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts, as far as they are able to protect their right. Another suggestion is pertinent to the question. Tho whole herd owes its existence, not merely to the care and protec- tion, but to the forbearance of the United States Government within its mi M RIGHT TO PROTEfiT I.VTERKSTS AND iyj)U8TRV. 35 it witliiu its exclusive jurisdiction. While the seals are upon United States terri- tory during the season of reproduction and nurture, that Government might easily destroy the herd by killing them all, at a considerable immediate profit. From such a slaughter it is not bound to refrain, if the only object is to preserve the animals long enough to enable them to be exterminated by foreigners at sea. If that is to be the result, it would bo for the interest of the Government and plainly within its right and powers, to avail itself at once of such present value as its property possesses, if the future product of it can not be preserved. Can there be more conclusive proof than this of such lawful possession and control as constitutes property, and alone produces and continues the existence of the subject of it ? The justice and propriety of these propositions, their necessity to the general interests of mankind, and the foundation upon which they rest in the original principles from which rights of ownership are derived, have been clearly and forcibly pointed out by Mi-. Carter. In a later part of his argument (pp. 164-169) many instances, past and present, in respect to many descriptions of marine and submarine prop- erty, from many nations, and from Great Britain and its colonies espe- cially, are gathered together to show what the usage of mankind on this subject has been and is. It is that general usage which constitutes the law of this case. And on this point, if it can be shown that any different usage has ever prevailed in the case of any nation able to assert its inde- pendence, touching any similar property on which it set value, let such evidence be produced by those who are able to tind it, and whoso claims it will subserve. If in this instance the United States Govern- ment has no right of property which it is entitled to protect, the case would present the singular anomaly of being the (mly one in which that right has not been maintained, in respect to any valuable marine product similarly situated, or appurtenant in like manner to the teiTitory of a maritime country. It is against this view of the case, too obvious to escape th" attention of the distinguished counsel for Her Majesty's Govemmc >' .'nat they have chiefly struggled throughout the Bx-itish Counter Case, for which they have thought it right to resei've their contentions, both in propo- sitions and evidence, in respect to the principal questions involved. But they have struggled in vain. The broad facts upon which it rests are either admitted or are incontestable. No mere attempt to dispai'- age or diminish them, no cavil over details, no conjectural suggestions 1' 1 .■•'■* 1 l' '■ ■! * ■ (! ■,4' l4-^■^y:: ".' !i IfJil 11 M •i :": !^y5 13H ARGUMENT OF TUF T'NITKD STATK8. iinsuHtaiucd by pi-ooi, nan bruak thoir force or cbaiiRo their effect. Ami the legal coiKrlitRioiiH to which thoy conduct, can not bo rof^arded at this day as open to serious ((ucstion. The case of tlie United States lias thus far proceeded upon the ^'roniid of a national "roperty in the sefil herd itself. Lot it now be assumed, for the purposes of the arpfument, that no such riglit of property is to be admitted, and that the seals are to be regarded, outside of ter- ritorial waters, as /e>'(P naturn- in the full sense of that term. Let them bo likened, if that be possible, to the fish whose birthplace and home are in the open sea, and which only approach the shores for the purpose of food at certain sensons, in such numbers as to render the fishing there productive. The questior then remains, whether upon that hypothesis, the indus- try established and maintained by the United States (lovernment on the Pribilof Islands, in tho taking of the seals and the commerce that is based upon it, are open to be destroyed at the pleasure of citizens of Canada, by a method of pursuit outside the ordinary line of territorial jurisdiction, which must result in the extermination of tho animals. Ik there, even in that view of the case, any principle of international law Avhich deprives the United States Government of the right to de- fend it.self against thi.s destruction of its unquestioned interests nted and established on its own territorj* ? In othei" words, is thf . of individual citizens of another country to the temporary profit to be derived out of such extermination, superior on tho high sea to that of the United States Government to pi-otecfc itself against the conse- quences. This, if the strict right of property can be successfully denied, is the precise question addressed to the consideration of the Tribunal. Abstract spedulations can only be useful, so far as they tend to conduct to a just determination of it. Bofoi'o proceeding to a discussion of this question, the material facts and conditions upon which it ai'ises should be clearly perceived and understood. For it is upon these and not upon theoretical considerations that tho argument reposes. (1) It is to be observed in the first place, that the interest in the business which it is sought to protect, is an important interest and vesource of tho Government itself. The seal industry on these islands was one of the principal induce- ments to the purchase of Alaska by the United States from the Rus- m . 1 •ii- effect. Anil >gar(le(l at this lU'd upon tlio Liot it now be a;lifc of property outHido of tei'- rin. Lot tlieio )laco nnd liomc for the purpose 10 fishing there eais, the imlus- (lovernmeiit on commerce that ■0 of I'itizens of le of territorial of tho animals, af international le right to de- itereatf ited is thf - of y profit to he li sea to that tist the conso- denied, is the inal. Abstract iduet to a just material facts perceived and considerations linteresfc in the It interest and incipal induoe- Ironi the Rus- RIGHT TO I'KOThXT I\THHF;sTS AND INDfSTRY. 137 sian Government, foi- a largi< .sum of monty. The care and pursuit of the seals were immediately mailo tho subject of legislation by Congress, under which the whole business has been since regulated, protected, and carried on by the Government, as it had been before by Russia, in such manner as to pi'eserve the existence and to increase the numbers of the seal herd, and to make its product valuable to those engaged i!i it, and a source of a considerable public revenue to tiio Government. (See U. S. Revised Statutes, sees. lOoG-1975 ) it pays to the Government, as tho evidence shows, a direct revenue of about ifelO per skin, and a considerable indirect revenue upon the im- portation of the dressed furs ; and to tho company, which under lease from the Governmont and subject to its regulations carries on the business, it affonh a large annual return, which «>nables them to make their payments to the (lovcrnment. To the inhabitants of the islands and many others directly employed or indirectly conciirned, it gives the means of subsistence. Nor are the United States alone the -ecipients of the profits, or in- terested to preserve this industry. The principal manufacture of mer- chantable furs from tho raw skins is carriei' on in London, where large houses are exigaged in it, employing as the proof shows, between 2,0(Xt and 8,000 persons. London is also the headquarters of the trade in the product, and of the commerce through which it is distributed. It is probable that the intei-est of Great Britain in the preservation of the seal herd is almost as great as that of the United States. The civilized ■world outside of these two countries is likewise con- cerned in preserving from extinction the valuable product of these islands. It enters largely into human tise ; there is no substitute for it, especially in view of the great decrease of fur-bearing animals ; and nowhere else on the globe is the seal fur produced in any considerable quantities. Almost everywhere this valuable animal has been exter- minated, by the same reckless and wasteful pursuit that is complained of here. It is pertinent to remember, in this connection, that if the nation that is contending for the preservation of this product of its tenntory was but small and poor, and this resource for revenue and subsistence, instead of being one out of many, were the only one it possessed, so that its very existence depended upon the maintenance of it, the principles of international law applicable to the subject would be precisely the same aa they are now. The case would be relatively of greater im- wnt^r WW M m 138 ARlil'MENT OF THE UMTEr^ STATES portance to one of the parlies ; tlio law that would control it would bo the law that controls this case ; for a nation has the same right to defend one material interest, or one class of citizens, that it has to de- fend all it possesses, and all the conditions of its existence. (2) The pui'Buit of the seals in the open sea, at the times and in the manner complained of, leads to the earlj- extermination of the whole herd. It is not nec( sary to the argument that this extreme result should be made out. It would be enough to show that the interest in question is seriously embarrassed and prejudiced, or its product materially re- duced, even though it were not altogether destroyed. But the evidence ill the case, of which a large amount has been submitted, completely establishes the fact that the herd has by these means been already largely diminished, and that it must necessarily, if the same conduct is continued, be Jit no distant day entirely annihilated. (3) The method of pursuit employed by the Canadian vessels, and against which the United States Government protests, not only tends to the rapid extermination of the seal, but is in itself barbarous, inhuman, and wasteful. A very large proportion of the seals taken are females, either preg- nant and about to give birth to their young, or engaged in suckling their offspring, which, by the killing of the mothers, are left to perish in great numbers by starvation. Some are in both these conditions at the same time. And of those thus destroyed in the water, a considerable share certainly, and probably a very large share, aro lost to the hunter. The killing of female seals at any time is made criminal by the stat- utes of the United States. (U. S. Revised Statutes, sec. 1961.) The destruction during the breeding season of wild animals of any kind which are in any respect useful to man, is prohibited, not only by all the instincts of humanity, but by the laws of e\ei'y civilized coun- try, and especially by the laws of the United States and of Great Bri- tain. That protection, as will bo more fully pointed out hereafter, has long been and now is extended to the seals in every counti-" in the world where they are to be found. In no part of the world that is within territorial jurisdiction could such conduct take place, without exposing the perpetrator to criminal prosecution (see Case of the United States, pp. 220-229). So that in order to justify it in this ca.se, the sea must be held to be free for acts which are not only destructive of the valuable intei-ests of an adjacent nation, but are forbidden everywhere else by universal law. rol it would be same right to it it has to dc- imes and in the n of the whole le result should jrest in question t materially re- lut the evidence bted, completely IS been already jame conduct is ian vessels, and )t only tends to )arous, inhuman, les, either preg- in suckling their ft to perish in auditions at the a considerable the hunter, nal by the stat- 961.) mimals of any ted, not only by civilized coun- of Great Bri- t hereafter, has countr'' in the world that is place, without 36 of the United lis case, the si'ii. tructive of the len everywhere TilOUT TO IMIOTIICT INTKKKSTS AND INDUSTRY. 39 (4) The depredations in question, dignified in the Repoi't of tlio Hiitish Commis'Jiohers by tlio name of an *• industiy," are the woi'k of individuals who fit out vessels for this purpose. Their nuiTiber, though iuereasing, is not great. The business is speculative, and as a whole not remunerative, though it has instances of largo gains which stimulate the entorprise of those concerned, and make the prospect attractive, like all occupatior i which have a touch of adventure, an clement of gambling, and a taste of cruelty. It is this casual and uncertain profit, of these comparatively few individuals, which must of course terminate Avlicn the seal herd is de- stroyed or even much reduced, that is to bo balanced against the loss that will be sustained by the United States, if that destruction is com- pleted. (5) Against this injury, which the United States Government has made the subject of vain remonstrance, there are absolutely no means of defense that can be made available within the limits of territorial jurisdiction. The destruction is wrought outside those limits, and must be repressed there or it can not bo repressed at all. As it is impossible, when seals ai'e hunted in the water, that the sex can over be discriminated before the killing takes place, it follows that if what is called " pelagic sealing " is allowed to be carried on, the enormous pro- portion of pregnant and suckling females and of nursing young befoi'c referred to, must continue to be destroj'cd. That method of pursuit conduces also unavoidably to injurious raids by those concerned in it, upon the seals on the islands. Tlio extent of tlio shores and the peculiarity of the climate and atmosphere, as described iu the evidence, make it extremely difficult and at times impossible to main- tain such vigilance as will prevent these incursions, if seal-hunting in the neighboring waters is permitted. The result of these raids is suggested in the Bi-ihisli Counter Case as one of the means by which the gradual ex- termination of the seals, too obvious to bo denied, is taking place. How much the suggestion is woi'th, will be seen wiion the whole evidence is reviewed. ]{nt the counsel seem to forget, in i-iaking it, that il is only the toleration of foreign scaling vessels in waters near the islands, tliat renders such I'aids possible. The inevitable conclusion from these facts is, that there is an ab^nluto necessity for the repression of killing seals in the water in the seas near the Pribilof Islands, if the herd is to lie preserved from extinction. No middle course is practicable conHistently with its preservation. [317] ^ K m 140 ARGUMENT OF TFIE UNITED STATED. .-(it li :) The ovidciu'e adduced on the part of the United States in support of the foregoing propositions of fact, and iliat relied upon to the contrary, so far as we have had an oppc; "^nnity to see it, is fully discussed in a latei branch of the argument (^iiifra, pp. 228-313). The ground upon which the destruction of the seal is sought to be justified, is t|iat the open sea is free ; and that siuee this slaughter takes place there, it is done in the exercise of an indefeasible right in the individuals engaged in it ; that the nation injured can not defend itself on the sefi, and therefore upon the circumstances of this case can not defend itself at all, let the consequences be what they may. The United States Govei'nraent denies this proposition. While con- ceding and interested to maintain the general rule of the freedom of tlie sea, as established by modern usage and consensus of opinion, it asserts that the sea is free only for innocent and inoffensive use, not injurious to the just interests of any nation which bordoi-s upon it ; that to the invasion of such interests, for the purposes of private gain, it is not free ; that the right of self-defense on the part of a nation is a perfect and paramount right, to which all others are subordinate, and which upon no admitted theory of international law has ever been surrendered; that it extends to all the material interests of a nation important to be defended ; that in the time, the place, the manner, and the extent of its execution, it is limited only by the actual necessity of the particular cfise; that it may, therefore, be exercised upon the high sea, as well as upon the land, and even upon the territory of other and friendly nations, provided only that the necessity for ii, plainly appears ; and that wherever an important and just national interest of any description is put in peril for the sake of individual profit by an act upon the high sea, even though such act would bo otherwise justi- fiable, the right of the individual must give way, and the nation will be entitled tc protect itself against the injuiy, by whatever force may bo reasonably necessary, according to the usages established in anal- agous cases. It is believed that these general principles will be found to underlie the whole theory and system of the law of the sea, so far as it has been formulated by the consent and usage of mankind; that they are the foundation of many maritime jights, long recognized and established ; that they have received the sanction of courts of justice whenever they have been brought under jmlicial consideration, and of all writers upon the subject whose views are entitled to weight : that they are supported ^M luppui't of tlio )iitrary, so far II later branch songlit to b(." Iauu;h(er takes right in the jfencl itself on !an not defend While con- ic freedom of >f opinion, it nsive use, nut lers upon it ; I private gain, of a nation is ', subordinate, has ever been s of a nation 8 manlier, and 1 necessity of upon the high of other and uinly appears ; terest of any )fit by an act levwise justi- le nation will •er force may ilied in anal- d to underlie s it has been they are the established ; /henever they writers upon re supported RIGHT TO PROTECT INTERESTS AND INDUSTRY. 141 by nia?i; historic jirecedcnts, tlie rightfulness of which has never been called in question ; and that no precedent or authority can be produced, judicial, juridical, or historical, for such a right in the open sea as is claimed by the Canadians in tlie pi-esent case. That the sea was at an early day regarded as .subject to no law is probably true. It was the theatre of lawless violence an^ the home of ]»iracy. lint this condition was soon found intoleiable. The assumption of a dominion over it by adjacent maritime nations became a necessity to self-pi'otcetioD, and was therefore generally assented to. The marc liberuw in all such watei-s gave way to mare clausum, not upon principle, but for the sake of defense. Says Sir Henry Maine (Lectures upon International Law, pp. 7r)-77) : The first brancli of our inquiiy brings us to wl:at, at the birth of in- ternational law, was one of the most bitterly disputed of all questions, the (jucstion of iiiarr clansntti and )iiav<' liherum — sea nndo' the dominion of a particular jiower, f)r sea open to all- -names identified with the great reputations of Grolius and Selden. In all probability the question would not have arisen but for the dictum of the institutional Roman writers that the sea was by nature common property. And thu moot point was whether there was anything in nature, whatever that word might have meant, wliich either poiuLed to the community of sea or of rivers; and also wliat did history show to .have been the actual practice of mankind, and wlietlier it pointed in any definite way to a genei'al sense of mankind on the subject. Wo do not know exactly what was in the mind of a Roman lawyer when he spoke of nature. Nor is it easy for us to form even a speculative opinion as to what can have been the acitual condition of the sea in those primitive ages, somehow associated with the conception of nature. The slender evidence before us seems to suggest that the sea at first was common, only in the sen-o of lieing universally open to depredation. # * * Whatever jurisdiction may iiave be. n usseited, probably did not spring from anything which may be called natui'C, but wiis perhaps u security against pii'acy. At all events, this is certain, that the eailiest development of maritime law seems to have consisted in a movement from man' Hhi'rnin, whatever that nuiy have meant, to marn clansnm — from navigation in waters over which nobody claimed authority, to waters under the control of a separate sovereign. The closing of seas nieant i.lelivery from violent depredation at the cost or by the ixertion of some power or powers stronger than the rest. No doubt soviieignty over water began as a benefit to all navigators, and it ended in taking the form of protection,' 'Sir Hfiirv Maine i)i'occo(l; as follows: "Mr. W. E. Hall, in a very iiit.'p Min>? (•lia))tor of his voluino (Pin-t ir, 2) has shown that iiitenmtioiial law in the iiio(U'rn sense of th'- 'voi'ds, bi'iij.ui in a jjcnji-al system of iiinrf claiixiim. Tlic Ailiiiitit', tho Gulf i)f Genoa, the North Soa, anil iho Baltic wore all dosed and were under au'horitv, and England flaimed to hare i)recedenco and to exercise jiirisdietion of various kinds from tho NoHh Scu and the ])arts of tlie Atlantic adjoining Scothmd and Ireland, southwards to the Uay of Kiseay. In nil tliese waters tho omission to lower tiie ling to :i British ship would have been followed bv a cannon shot. Thenceforward tlu- i)rogre8s [317J ■ k2 I nm '■•' t ■ f. ^'.: i.11 n -i.U 'if ^ t i'i 142 ARGUMENT OF THE UNITED STATES. Wlitii commerce became more extensive and better able to protect itself, the modern conception of the freedom of the sea, first formally set forth b}' Grotius, came gradually to be established. But the con- traiy doctrine was contended for by tlio great judicial authorities in I'jiigland. The vie\/s of Sir Matthew Hale >md of Selden are well known. The powerful argument of the latter is a permanent monuo mcit of the contention of his time in England. The opinion of Black- stone was to the same efFect. As late as 1824 another eminent English writer, Mr. Chitty, in his Commercial Law, maintained the right of dominion by maritime nations over neighboring seas, founded upon the necessities of their situation. The surrender t)y England and other maritime powers of their control over the seas, so long maintained, in deference to the growing sentiment of the world and the demands of free commerce, was slowly and reluctantly given. But that surrender was, as universally understood, for the purposes of just, innocent, and mutually profitable use by the nations whose borders touched the sea. It was not thrown open again to general lawlessness. The whole argu- ment in favor of the freedom of the sea was based upon the ground that its free use by mankind was inoffensive and harmless and con- ducive to the general good; and, therefore, ought not to be arbitrarily restricted.' Says Mr. Justice Story : Every ship sails there [in the open sea] with the unquestionable right of pursuing her own lawful business without interruption, but whatever may be that business, she is bound to pur.sue it in such a manner as not to violate the rights of others. The general maxim in such cases is sic ntere tw> ut alicnum non hi'das. (Tlie Marianna Flora, 11 Wheaton's Repts., U. S. Sup. Court, p. 41.) of nmritiine jurisdiction was reversed — from mnre clau.iiim to mare liherum ; and the sovereignty allowed by international law over a portion of the sea is in fact a decoyed and contracted remnant of the authority once allowed to particular states over a great part of the known sea and ocean " (p. 77). ' Grotius (Book ir, chop, iii, sec. 12, p. 44.')) remarks : " It is certain that he who would take possession of the sea by occupation could not prevent a peaceful and innocent navigation, since such a transit enn not be interdicted even on land, though ordinarily it would be less necessary and more dangerous." And Mr. Twiss (Int. Law, sees. 172, 185) says : " But this is not the case with the open 808, upon whjcli all persons may navigate without the least prejudice to any nation whatever, and witho".t imposing any nation thereby to danger. It would thus seem tliot there is r.i natural wurrant for any nation to seek to take possession of the open sea, or e' en to restrict ihe innocent use of it by other nations. * • * 'I'lie right of lishii'.g in the open sea or main ocean is common to all notions on tlie same jjrinciplo whioh sanctions a common right of navigation, viz, that he who fishes in the open xea does no injurif ^o any one, and the products of the sea are, in this respect, inexhaustible and sufficient for all." i(-^: * i' . i mi ! I Mil to pi'otect • rst formally tut the con- ithovities in en are well ment monu- on of Black- nent English the right of unded upon id and other laintained, in demands of lat surrender innocent, and :;lied the sea. J whole argu- a the ground ess and con- be arbitrarily ionabte right but whatever lianner as not ill cases is sic 1 Wheaton's \erum ; and tlie .■t a decayed and |r a great part of Lt ho who would ^l and innocent jgh ordinarily it ^e with the open to any nation lould thus seem liHBCssion of the * * * The I nations on the ft he viho fishes I in this respect, RIGHT TO PROTECT INTERESTS AND INDUSTRY. 143 Says Chancellor Kenv. (1 Commentaru'K, 27) : Every vessel in time of peace has a right to consult its own safety and convenience, and to puriiuc its own course and business without being disturbed, ivhcn it does not riohite the riijhts of others. The freedom of the high seas for the inoffensive navigation of all nations is firmly established. (Amphlett, J., Queen v. Kehn, 2 Law Rep. Exch. Div., p. 119.) Nor was tlie right of self-defense on the sea ever yielded up or relin- quished by any nation. On the contrary, in every successive instance in the progress of civilization and the advance of commerce, in which restrictions upon the freedom of the sea were found necessary to the protection of any material interest or right, general or special, such restrictions were at once asserted, were recognized by general assent, and became incorporated into the growth of that system of rules and usages known as international law. Some of them will be more particularly adverted to hereafter. The safety of states and the protection of their commercial interests were not sacrificed to the idea of the freedom of the sea. That freedom was conceded for the purposes of such protection, and as affording its best security. There are no arbitrary restrictions imposed in modern times upon the freedom of the sea. Neither are there any arbitrary rights there. There, as elsewhere, liberty has tvo conditions ; submission to just jirinciples of law, and due regard for the rights of others. And these conditions are enforced by the injured party, because they can be enforced in no other way.i ' " Since, then, a nation is obliged to preserve itself, it has u right to everything necessary for its preservation, for the law of nature gives us a right to everything withoul whi(')i we cm not fulfdl our obligations. " A nation or state has a right to everything that can hel|) to ward ofif imminent clangor and to keep at a distance whatever is capable of causing its ruin, and that from the Tery same reasons that establish its right to things necessary to its preservation." (Vattel, sees. 18, 19.) " The right of self-defense is, accordingly, a primary right of nations, and it may be exercised, either by way of resistance to an immediate assault or by way of precaution against threatened aggression. The inlcfeasible right of every nation to provide for its own defense is classed by Vattel among its perfect rights." (Twiss, Int. Law, part I, sec. 12.) "The right of self-preservation is the first law of nations, as it is of individuals." • * * " For international law considers the right of self-preservation as pricr and paramount to that of territorial inviolability." (I'hillimore, Int. Law, chap. 10, sees. Ill, 114.) "In the last resort almost the whole of the duties of states are subordinated to the right of self-protection. Where law affords iuudcquate ])rotcction to the indi- vidual, he must be permitted, if his existence is in question, to protect himself by whatever means may bo necessary. * • * There are, however, circumstances falling short of occasions ujxin whicli existence is innnediately in question, in wliich. . ..;::!l I'. , 1 ■ . •'• Q; 'if. ■ .(■■'% i i If i ii;, 144 AHGUMENT OF THE UNITED STATES. Tho rifHit of self-tlofcnso by n nation upon tlie sen, and tlie viglit of municipal jurisdiction over a limited part of tho sea adjacent to the coast, arc not to be confounded, for the two are totally distinct. The littoral jurisdiction, indeed, is only a branch of tho general right of soif-defensc, accorded by usage and common consent : first, becaiise it is always necessary for self-protection, and next, because it is itsually sufficient for it. Upon no other gi'ound was it ever attempted to be sustained. That jurisdiction must be limited by an ascertained or ascertiinable line, is its necessary condition. That the right of self-defenso is subject to no territorial line, is equally plair. All rights of self-defense are the result of necessity. They are co-extensive with the necessity thai, gives rise to them, and can be restricted by no other boundary. As remarked by Chief Justice Marshall, " All that is necessary to this object is lawful, all that transcends it is unlawful." Precisely what is the limit of jurisdiction upon tbe littoral sea, and precisely what are the nature and extent of the jurisdiction that can bo asserted within it, Avhether it is absolute or qualiQed, territorial or extra- territorial, are questions that have been the subject of grave difference of opinion among jurists. Nor have they ever been entirely settled. They will be found to be discussed with a fullness of learning, a depth of research, and a masterly power of reasoning, to which nothing can be added, in the opinions of the English judges in the important and leading case of The Queon v. Kchn (2 Law Rep, Exch. Div., 1876-'77, pp. 63 to 239). These learned and eminent judges wei'e not fortunate enough to agree upon all the questions involved, and every view that can be taken of them, and every consideration that is pertinent, are ex- haustively presented in their opinions. Upon these vexed questions it is not at all necessary to enter in the present case, for they have little to do with it. Whether the couclu- throiigh a sort of extension of tlic idea of self-preservation to inchido self-jirotection ngainst serious liurts. states arc allowed to disregard certain of the ordinary rules of law, in the same manner as if their existence were involved." (Hall, Int. Law, chap. 7, sec. 83.) "If a nation is obliged to preserve itself, it is no less obliged carefully to preserve nil its members. Tho nation owes this to itself, since tho loss even of one of its members weakens it and is injurious to its preservution. It owes this also to the members in particular, in consequence of tho very act of association; for those who com])09c a nation are united for their defense and common advantage, and none can justly be deprived of this union and of the advantoges he expects to derive from it, while he, on his side, fulfills tho conditions. Tho body of a nation can not, tiien, abandon a province, a town, or even a single individual who i' a part of it, unless compelled to it by necessity, or indispo:isably obliged to it by the strongest reasons founded on the public safety." (Vattel, sec. 17.) ■''t J 4 1 4, I ' i ii , the right of to the con«t. The littoral scif-defensc, it is always [ficient for it. ,ined. That (le line, is its abject to no the result of gives rise to remarked by ;cl/ is lawful, ioral sea, and n that can be )rial or extra- ivo difference tirely settled, ig, a depth of nothing can nportant and >iv., 1876-77, not fortunate iew that can nent, are cx- enter in the the conclu- self-])i'oti'ftion ordinary rules Hull, Int. Law. Lilly to preserve of one of its his also to tlie for those who and none can derive from it, can not, then, rt of it, unles.s ;rongeHt reasons RIGHT TO PROTECT INTERESTS AXD INDI'.^TRY. 145 sions of one or the other of these conflicting opinions are to be ac- ceptp'"., is ininiatcrial here. All authorities agree that the sole reason upon which a certain right of jurisdiction upon the sea, and within a limit that is variously stated, has been conceded to maritime nations, is found in the necessities of self-defense. This part of the domiaion over the sea, whether it be greater or less, has never been snn-endered. It is a remnant of the former more extended dominion, retained for the same reason for which that was asserted. Lord Chief Justice Cock- burn, in his opinion in the case just cited, reviews the history of this subject, quoting the language of every previous writer of repute, and referring to every judicial decisioii respecting it which then existed. He points out very clearly the dilferent views that have prevailed and which then prevailed as to the nature of the jurisdiction, and as to the distance over which it could be extended. This limit has been variously asserted by writers of distinction and authority, at two days' sail, (me hundred miles, sixty miles, the horizon line, as far as can be seen from the shore, as far as bottom can be found with the dead line, the i-ange of a cannon shot, two leagues, one league, or so far as the Government might think necessary.' On the other point, the character of the jurisdiction, it may be assumed that by the controlling opinion of the present time, and by ' The lord chief Justice observes : " From the review of these authorities we arrive at tlie following results ; There can be no doubt that the suggestion ot Byn- kershoek that the sea surrounding the coast to the extent of cannon mnge should be treated as belonging to the state owning the coast, has, witli but very few exccji- tion?, been accepted and adopted by the ]niblicists who have ♦'oUowcd iiini during the last two ci .itm-ios. Hut it is eijually clear in the practical ai)])lication of the rule in the respect of the particular of distance, as also in the still more essential l)arlicular of the character of sovereignty and dominion to be exercised, great diffcreuees of opinion liave ])revailed and still contiinie to exist. As regards distance, while the nuijority of authors have adhered to the tbrce-mile zone, others, like II. Ortolan and Mr. Ilalleek, applying with gi-eater consistency the priiuMple on which tiw whole doctrine rests, insist on extending the distance to tlio modern range of cannon — in other words, doubling it. This difference of ojiinion may be of little practical importance in the ju'esent circumstances, inasmuch as the jdaco at which the offense occurred was within the lesser distance; but it is nevertheless not innnaterial as showing how unsettled this doctrine still is. The question of .sovereignty, on the otiu" hand, is all important, and here we have every shade of ojiinioii. • » * Looking at this we inay properly ask those who contend for the ai)i)lication of the existing law to the littoral sea. independently of legislation, to tell us the extent to which we are to go in apjdying it. Arc We to limit it to three miles, or to extend it to six? Are wo to treat the whole body of the eriminal law as applicable to i!. or only so much as relates to police and safety ? Or are we to limit it, as one of these authors proposes, to the jirotection of fisheries and (uistoms. tlie exacting ol' harbor and like dues, and the protection of our coasts in time of wnr'r Which of th(->e wrilc:"s are we to follow? " ■■''.A II -.1 1' ■ ■ iM:.K .MM if ■: ^ j ■■ ft'-:| ■1"''; >5->i ■ '■ 'SI '■ >>'■'>! iMMk ■! ■; \ i I it ■!<1 IP i -1 ;i ')• i-l- 1 , i j: im- [■ 4 '\4 14.» ARGUMENT OF THK UNITED STATES. tho usage of nations, it is not regardod as so fai* absolute tliat a nation may exclude altogether from witliin the range of cannon shot tho ships of another country, innocently navigating, and violating no reasonable regulation of the municipal law. But the power which may be exerted within that limit is only coextensive witli tho just requirements of tho self protection for which it exists, although undoubtedly the nation exercising the jurisdiction must bo allowed, so long as it acts in good faith, to be its own judge as to the regulations proper to be prescribed and the manner of their enforcement.' This somewhat indefinite area of a greater or less jurisdiction over the marginal sea, which has thus come to be recognized and conceded, though recorded for the purposes of national self-protection, is by no means its boundary. It illustrates the right of which it is an example, but does not exhaust it. It is but one application of tho principle out of many. The necessity which gave rise to it justifies likewise tho larger power, and further means of defence, which may from time to time be required. No nation, in whatever statute or treaty it may have assented to tho three-niiie or cannon-shot limit of municipal juris- diction, 1ms ever agreed to surrender its right of self defense outside of that boundaiy, or to substitute for that right the contracted and qualified power which is only one of the results of it, and which must ' Says Sir Robert Pliillimorc, in his opinion in Queen v. Kohn : " Tlic sound conclusions which rosuh from tlic invcdtigation of the t\ut!ioritieB which liiivc been referred to nppear to nic to bo these : The consensus of civilized indciiendent states bus recognized a maritime extension of frontier to the distance of three miles from low water mark, because such a frontier or belt of water is necessary for tho defence and security of the adjacent state. "It is for the attainment of these particular objects that a dominion has been granted over these portions of the high seas. " Tiiis proposition is materially different from the proposition contended for, viz : that it is competent to a state to exercise within these waters tho same rights of jurisdiction and jjroiierty which appertain to it in respect to its lands and its ports. 'Ihoro is one obvious test by which the two sovereignties may be ilistinguished. " According to modern international law it is certainly a right incident to each state to refuse a passage to foreigners over its territory by land, whether in time of peace or war. But it does not oppenr to have the some right with respect to preventing the passage of foreign ships over tliis jiortion of tho high seas. " In the former case there is no./i/s iratisifux ; in tho latter case there is. " The reason of the thing is that the defence and security of the state does not require or warrant the exclusion of peaceable foreign vessels from passing over these waters, and the custom and usage of nations has not sanctioned it."' Loi-d C'ockburn, in Queen v. Kehn, speaking of the claim that a nation has the right of excluding foreign ships from imiocent passage within the three-mile limit says it is a "doctrine too monstrous to be admitted." And again, "No nation has arrogated to itself the right of excluding foreign vessels from tlie use of the external littoral waters for the purpose of navig'ilion."' it ■m ni(4HT TO PUUTK«T INTHIJKSTS AND INDUSTUV 147 that a nation ihot tho ships ao reasonable lay be exe.rted uircments of dly tlie nation t acts in good be prescribed isdiction over and conceded, tion, is by no is an example, ) principle out J likewise the from time to treaty it may nunicipal juris- lefense outside contracted and ,nd which must sound conclusions bccu rol'cm'd to tcs Ims recognized low water nuvrk, [ence and security 1 Las been granted Intended for, viz : lie Slime rights of lids and its ports. ushed. tnt to cacli state to Ic of peace or war. ting the passage of |lc does not require these waters, and hn has the right of jliniil says it is a I arrogated to itself Ijriil waters for the often prove inadequate or inapplicable. On tho contrary, as will bo seen hereafter, many nations have been compelled to assert, and have siK't^essfulIy asserted, much wider and larger powers in the defence of their manifold interests. It is under tho operation of the same principle on which jurisdiction is awarded to nations over the sea within the 3-mile or cannon-shot limit, that a similar jurisdiction is allowed to bo exercised not only over navigable rivers, ba^'s, and estuaries, which may be fairly re- garded as lying within territorial boundaries, but over those larger portions of the ocean comprised within lines drawn between distant promontories or headlands, and often extending much more than three miles from the nearest coast. Such waters were formerly known in English law as *' the King's Chambers." ' Chancellor Kent )emiirks on this subject (I Com., pp. 30, 31) : Considering the great extent of the line of the American coasts, we have a right to claim for fiscal and defensive regulations a liberal ex- tension of maritime jurisdiction ; and it would not be unreasonable, as I apprehend, to assume, for domestic purposes connected with our safety and welfare, the control of ^the waters on our coasts, though included within lines stretching from quite distant headlands, as for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south capo of Florida to the Mississippi. The principle on which this exercise of maritime jurisdiction reposes is only that of self-defense. As Chancellor Kent further observes (1 Com., p. 2G) : Navigable rivers which flow through a territory, and the seacoast adjoin- ing it * * * belong to the sovereign of the adjoining territory, as being necessary to the safety of tin; nition and to the undisturbed use of the neighboring shoi-es. That the right of self-defense is not limited by any physical boundary, but may be exerted wherever and whenever necessity requires it, upon the high sea or even upon foreign territory, is not only the inevitable result of the application of just principles, but is established by the highest autho- rities in the law of nations. 'Sir Henry Maine says (Lectures on International Law, p. 80): "Anotlier sur\-ival of larger jiretensions is the English claim to exclusive authority over what were called the King's C'liauibers. Tlieso are portions of the sea cut off by lines dmwn from one promontory of our coast to another, as from Lands End to Milford Haven. The claim Las been followed in America, and a jurisiliction of the like kind is asserted by the United States over Delaware Buy and other estuaries wliieli enter into portions of their territory." i'-,.^l • r*. !}.iL. \1 4H AKGUMKNT OF TIIK UNITED STATES. I H .V ' H i ijMH . II H ; ,1 t i, ' ' .'* *f= J[|; Vftttol Hays upon this subject (p. 128, sot'. 2fSuch was the view of the United States Supreme Court in the Say- ward Case, in respect to the operation of the acts of Congress before referred to, for the protection of the seal in Bering Sea. In that case ' For full quotations from this opinion, see Aijpcndii to tliis argument, inft-a, \i. 181. - After iji;oting at large from Chief Justice Marshall's opinion, Lord Cockburn proceeds to say : " To this class of enactments belong the acts imposing penalties for the violation of neutrality and the so-called 'hovering acts' and acts relating to the customs. Thus, the foreign enlistment act (33 and 34 Vic. C. 90) which imposes penalties for vorious acts done in violation of neutral obligations, sonu? of which are applicable to foreigners as well as to Eritish subjects, is extended in S. 2 to all the dominions of Her llajesly, 'including the adjacent territorial waters.' " ['■•' imS loO ARGUMENT OF THE UNITED STATES. a Cannclihti vuhboI hi»d beon captured on tlio JiIkH sea by a Uniti'd StatcH cruiVer, and coiuleniiicd by decree of the ITnitod States District court, for violation of the regulntioiiH prescribed in thojc nets; and it was cloimed by tlio ownerw that tlie capture was unjustifiable, bh being an attempt to give effect to a municipal statute outside tbo municipal juris- diction. The case was dismissed because it was not properly before the court. But in the opinion it is intirnated that if it had been necessary to decide the question the capture would have been regarded as an executive act in defense of national interests, and not as the enforcement of a statute beyond the limits of its effect. (Case of the Nayward, U. S. Sup. Ct. Kept., Vol. 148.) As such defensive regulations, if the United States Government thinks proper so to enforce them beyond the territorial line, the provisions of those acts of Congress fulBll the conditions of being both necessary and reason- able. They interfere in no respect with the freedom of the sea, except for the protection of the seal. And for the purposes of that protection they are not only such as the Government prescribes as against its own subjects, but arc clearly shown by the evidence to bo necessary to be so enforced, in order to prevent the extermination of the seals and its consequences to the United States. The decision in Church v. Hubbart is cited as stating the law, by Chancellor Kent (1 Com., 31) ; and also by Mr. Wharton (Dig. Int. Law, p. 113) and by Wheaton (Int. Law, 6th ed., p. 23')). It Avas followed in the same court by the case of Hudson v. Ouestier (6 Cranch Rep., 281), in which it was held that the jurisdiction of the French court as to seizures is not confined to seizures made within two leagues of the coast. And that a seizure beyond the limits of the territorial juris- diction for breach of a municipal regulation is warranted by the law of nations. This decision overruled a previous case (Rose v. Himely, 4 Cranch Rep., 287) made, though upon very different facts, by a divided court. The dissenting opinion of Johnson, J., in that case, which by the subse- quent decision became the law, is worthy of perusal.^ Mr. Dana, who published an edition of Wheaton, with notes which so far as they were his own did not add to its value, is of opinion that in the decision in Chui-eh v. Hutbart, Chief Justice Marshall and his eminent associates were mistaken. And this remark of his is cited in the British Case. Mr. Dana has no suah repute as makes him an ' For opinion see Appendix, infra, p. 182. t ; , ,. li M R|i| '.1 m IIIUHT TO PROTKCT INTKKKSTH AND INDUHTllY. 151 IV by a United States District nets ; aiul it wiis )lc, ns being nn municipal juris- operly 1)efove the been neeesHary to il as nn oxccuiivo ment of a statute d, U. S. Sup. Ct. jvernment tbinks novisions of those jssary and renson- the sea, except for it protection they t its own subjects, be so enforced, in onseqtienccs to the iting the law, by on (Dig. Int. Law, It was followed (6 Cranch Rep., French court as o leagues of the territorial juris- ited by the law of Biniely, 4 Cranch a divided court, licb by the subse- with notes whicli is of opinion that Mar.shall and his k of his is cited as makes him an authority, especially when ho iintlertakes to overrule the greatest of American judges, and the repeated decisions of tlio Supremo Court of the United Statos. No other writer or judge, so far as we are aware, has over shared his opinion. And, as has been seen, the decision of Chief Justice Marshall has received the approval of very great lawyers. In the comments in liis note njcm these cases, Mr. Dana docs not correctly state them. The decision in Church v. Huhbart was upon tho unanimous opinion of the court, and has never boon questioned except by him. Tho 8u])scquont case of Rose v. Himely decided that tho seizure of a vessel without tiio territorial domain of tho sovereign under cover of whoso authority it is made will not give jurisdiction to condemn tho vessel, if it is never brought within tho dominions of that sovereign. It would seem from some of the language of Cliief Justice Marshall that he may have been of opinion that the seizure itself was unwarranted, iiTespective of tho fact that tho vessel never was brougiit in, tliongh this is by no means clear. Judges Livingston, Cushing, and Chase concarred in the decision, on tho solo ground that tho captured ship was not brought into a port of tho country to which the capturing vessel belonged ; and declined to express an opinion as to the validity of the seizure upon the high sea, for breach of a municipal regulation, provided the vessel had been so brought in. While Judge Johnson dissented altogether, holding in the opinion above referred to, that tlio seizure was valid, although never brought in. Mr. Dana mistakes tho case of Rose r. Himely in saying that it was there decided that a seizure of a vessel outside of tho territorial jurisdiction is unwarranted. And ho mistakes the case of Hudson v. Guestier, in whicli tho contrary is distinctly held. Chief Justice Marshall concurring. The cases of tho Mananna Flora (II Wheatou Rep. U. S. Sup. Court), above cited, in which the opinion was delivei-ed by Mr. Justice Story, and the case of the Schooner Betsey (Mason's Rep. 3o4), a decision of Judge Story, were to the same effect.' ' In the recent case (1890) of Mimclu'stor v. Mnssiichusetts (139 U. S. Supremo Court Bop., 240), tho hiw on tliis subject was tlius stntod hv Mr. Chotite, of counsel : " Without these limits were the ' high sods,' tlio common pro]icrty of all nations. Over these England, as one of tlio common sovereigns of tho ocean, had certain rights of jurisdiction and dominion derived from and sanctioned by the agreement of nations ex]iressetl or implied. "Such jurisdiction and dominion she had for all purposes of self-defense, and for the regulation of coast fisheries. "The exercise of such rights over adjacent waters would not necessarily bo limited u til J* 152 ARGUMENT OF THE UNITED STATES, The Continental publicists ai-o in full concurrence on this point with English and American authorities. > Tu respect to the exercise of tlie right of self-defense, not merely upon the high seas but in the territory or territorial waters of a foreign and fiiendly state, authority is equally strong. Says Mr. Wharton (1 Dig. of Int. Law, p. 50) : Intrusion on the teri'itory or territorial Avaters of a foreign state is excusable when necessary for self-protection in matters of vital importance, and when no other mode of relief is attainable. .' : t!,: 1^ h- And (pp. 2-21, 222) : When tliere is no other way of warding off a perilous attack upon a country, the sovereign of such country can intervene by force in tlie teri'itory from which the attack is threatened, iu order to prevent such attack. A belligerent may, under extreme n(!cessity, enter ncuti*al territory and do what is actually necessary for protection. And he cites the case of Amelia Island, in respect to wliich ho says : Amelia Islane at the mouth of St. Mary's River, and at that time in Spani.sli territory, was seized in 1817 by a band of buccaneers under the direction of an adventurer named McGregor, who, in the name of the insurgent colonies of Bnenos Ayres ajid Venezuela, preyed indis- criminately on the commerce of Spain and of the United States. The Spanish (lovernment not being able or willing to drive them off, and the nuisance being one which required immediate action, President to ft 8-uiik- belt, but -would undoubtedly bo sanctioned as far ns reasonably necessary' to secur- .le practical benefits of tlieir possession. If self-defense or regulation of fislierics should reasonably require assunipti(!i of control to a greater distance tlmn 3 miles, it would undoubtedly be accpiiesccd in by other nations. "The mai-iiie leatjiie distance lias acquired prominence merely because of its adoption as u boundary in certain agreements and treaties, and from its frequent mention in text- books, but lias never bet'ii established m law as a fixed boundary. " These rights belonged to England as a member of the family of nations, and did not constitute her the jiossessor of a proprietary title in any part of the higli seas nor add any portion of these waters to her realm. In their nature they were rights of dominion and sovereignty rather than of property." Mr. Justice HIatchford, in delivering the ojiinion of the court, says : " We tfiink it mu.st be regarded us estabhslied that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast; that bays wholly within its territory, not exceeding two marine leagues in width at the mouth, are within this limit ; and that included in thi.s territorial jurisdiction is the right of control over ILsheries, whether the fish bo migratory, free-swimming fisli, or free-moving fish, or fisli attached to or embedded in the soil. The open sea within this limit is, of course, subject to the common riglit of navigation, and all governments, for the purpose of selfprote;.'tion in time of war or for tlie prevention of frauds on its revenue, exercise an authority beyond this limit." ' For citations from Azuni, I'looque, La Tour, C'alvo, lleffter, Eluntschli, and Caruuzza- Amari, see Appendix, infra, pp. 183-18tj. fH I': I RIGHT TO PROTECT INTERESTS AXlJ INDrSTIlV. 153 his point with ot raei'c-ly upon a foreign and [•ton (1 Dig. of foieign state is ital importance, attack upon a by foi'ce in the to prevent such ivil territory and icli ho says : at that time in accaneers under in the name of a, preyed indis- United States. I drive them off, action, President •easonably necessary' gulation of fislierie.s mice than 3 miles, so (jf its adoption us nt mention in text- nations, and did not igli seas nor add any its of dominion and ' We tfiiiik it must lit of the territorial om its coast; that width at the moutli, etion is the right of fish, or free-moving hin this limit is, of 8, for the purjiose of ts revenue, exercise schli, and Carnazza- Monroe called his Cabinet togetlier in October, 1817, and directed that a vessel of war should proceed to the island and expel the niaraudtn's, destroying their works and vessels. In the case of the Carjlinc, in the year 18oS, during the Canudiau i-ebelHon, a British armed force pursued that vessel into an American port on Lake Erie, cut her out and destroyed her by fire, killing one or more of her crew. This otherwise gross violation of the territory of a friendly nation was justiHod by the British Government as a r.eccssary measure of self-defense, since the Caroline had been engaged in carrying supplies to the insurgents. In the correispondence that ensued hetwoon tuc- two governments, tlie British riglit to intrude as tiioy did upon American territory was conceded by Mr. Webstei', the American Secretary of State, provid(^d the necessities of self-defensi- required it, and the only question made was whether the necessity for its excrci.se actually existed. In the end, that point seems to have been given up, and no reparation cr apology was ever made. Though it is certainly dilHcuit to see how any greater necessity was to be found in that case timn may always bo said to exist for attacking an enemy's ship, the ease presents a very strong illustration of the apnb'cation of an undoubted jirinciple. A very interesting discus.sion of the i|uesti()n will be found in the correspondence.' Phillimore says of the Caroline case (vol. I, p. 2-")5, see. ccxvi) : The act was made the subject of complaint on the ground of violation of territory by the American Government, and vindicated by Great IJi-itain on the ground of self-preservation ; which, if her version of the facts were correct, was a sufficient answer and a complete vindication. Hall (Int. Law, p. 267, par. 34) expresses similar views. In 1815, under orders of Mr. Monroe, measures wei-e take:i foi- the destruction of a fort hekl by outlaws of all kinds on the Appalachicola River, then within Spanish territory-, from which parties had gone forth to pillage within the United States. The governor of Pensacola had been called upon to repress the evil and punish the marauders, but he refused ; and on his refusal the Spanish territory was entered, and the fort attacked and destroyed, on the giound of necessity. A similar case was that of Greytown. It was a port on the Mosquito coast, in which some United States citizens resided. These citizens, and others interested with them in business, were subjected to gross indignities and injuries by the local authorities, who were British, but ' For correspondence between Mr. Webster and Lord Ashburton, and rei.iarks of Mr. Calhoun and Lord Campbell, see Ajipi 'idix, infra, p. ISO. '■m •"If. ^f-ii 154 ARGUMENT OF THE UNITED STATES. ■i'ra k'.M who pi'ofessed to act from the authority of tho king or chief of the Mosquito Ishinds. The parties then appealed to the cominander of th^ United States sloop of war Cyane, then lying near the port, for protection. To punish the authorities for their action he bombarded the town. For this act ho was denounced by the British residents, who claimed that the British Government had a protectomte o 'er that region. His action was sustained by the Government of the United States, the ground being tho necessity of punishing in this way the wrong to citizens of the United States, and preventing its continuance. (1 Wharton's Dig., p. 229.) When the sovei-eign of a territory permits it to be made the base of hostilities by outlaws and savages againsh a country Avith which such sovereign is at peace, the government of the latter country is entitled, as a matter of necessity, to pursue the assailants wherever tliey may be, and to take such measures as are necessary to put an end to the'r aggressions. (!/>., p. 226.) An incursion into the teri'itory of Mexico for the purpose of dispersing a band of Indian maraudei-s, is, if nccessaiy, not a violation of the law of nations. (//;., p. 233.)' In all these cases the discussion proceeded upon the question of the existence of the particular necessity. The right to enter upon neutral territory, if necessity really required it, was not controverted by any of the governments concerned. A still more stiiking illustration of the exercise of the national right of eelf-defense upon tho high seas, at the expense of innocent commerce, and to the entire subordination of private I'ights, which, except for tho consequences to national interests, would have bejn unquestionable, is found ill the British Orders in Council in the year 1809, prohibiting neutral commerce of eveiy kind with ports which tho Emperor of France had declai'ed to be closed agaiasb British trade. The effect of • "Temporary invasion of thu (('rritory of nil adjoining roiintrv, wlien iiecesBiirv to prevent and clieck crime, ' rests upon principles of the law of natiotm entirely distinct from those on which war is justified — ui)oii (lie immutable ]irinciples of self-defense — upon the printijiles which justify decisive measures of precautions to prevent irreparable evil to our own or to a neigliboring people.' " (Mr. Forsyth, 8ec. of State, 1 Wharton, ]\ 2'M).) "The first duty of a government is to protect life and property. This is a pammount obligation. For this governments ore instituted, and governments neglecting or failing to perform it become worse than useless. * * * The United States Government cannot allow marauding bands to establish themselves upon its borders with liberty to invade and plunder United States territory with impunity, and then, when pursued, to take refuge across the Rio Grande under the protection of the plea of the integrity of the soil of the Mexican Republic." (Mr. Evarfs, Sec. of State, 1 Wharton, p. 232.) JniGHT TO PllOTECT INTERESTS AND INDUSTRY. 15.5 tbese orders was to arrest upon the sea the lawful trade of neutrals, not with blockaded ports, nor even belligerent ports not blockaded, but with neutral ports. Yet the validity of these orders upon the principles of international law, severe as their consequences were, was aflirmed by the great judicial authority of Lord Stowell. then Sir William Scott, in several cases of capture that came before him in admiralty, upon the ground that they were necessary measures of self-defense to which all private rights must give way. In the case of the Success (1 Dodson Rep., p. 133), he said: The blockade thus imposed is certainly of a new and extended kind, but has arisen necessarily out of the extraordinary decrees issued by the ruler of France again.?t tluvcroranierce of tiiis country, and subsists, therefore, in the apprehension of the court at least, in perfect justice. In the case of the Fox (1 Edwards Adm. Rep., -U-t), he remarked in reference to the same orders : When tiie state, in consequence of gross outrages upon the laws of nations committed by its adversary, was coinpclled by a necessity wliicli it laments, to resort to measures which it otherwise <;ondemns, it ])ledgO(l itself to the revocation of those measures as soon aa the necessity ceases. Again, speaking of those retaliatory measures as necessary for the defense of commerce, he says in another case : In that character they have been justly, in my apprehension, deemed re- ':uncilablo with those rulus of natural justice hy wliich the intcrnationu] communication of independent states is usually uovorned. {The Snipe, Edw. Adm. Rep., 382.) Lord Stowell's judgments in these cases have never been criticised or disapproved by any court of justice, nor by any writer of repute on inter- national law. The necessity i-elied upon might pcrliajis be questioned, but when that is established, it is not to bo doubted that it becomes tlie measure of the right. Another very forcible illustration of llie principle contended for, is to bi^ seen in the exclusive right asserted by Great Britain to the fisheries on the Newfoundland and Nova Scotia coasts, not only within what are called tlie territorial seas, but as far from the coast as the fisheries extend. Tlie full diplomatic discussion of this subject will be found in the " Docii- vieufs relating io the transnctUms at the negotiation of Ghent, coUecled and published by John Qiiincii Adams, one of the ('ommissioners of tite United States." The occasion was the negotiation of the treaty of peace between the United States and Great Britain, at the conclusion of the w;ir of 1812. [317] t ,' i * Plii ii! ot. ARCJUMENT OF TUB UNITED STATES. Ono material question very ninch cliscusaed and oonsidored, was tin; right to be accorded to the United States in these fisheries. 13y the treaty of 178S between those conntries, at the close of the Revolutionary War, certain rights in them had been conceded by Great Britain to her colonies, whose independence was in that treaty admitted. When the treaty of 181') was made, it was claimed by Great Britain that the treaty of 1783 had been abrogated by the subsequent war, and that the right of the Americans to participate in the fisheries, granted by that treaty, had by its abrogation been lost. The relative contentions of the parties will be clearly seen by perusal of Mr. Adams's exhaustive resume of the history and merits of the question, and from the citations he adduced. (Pp. 106- 109, 167-109, 184-185, 187-190.) It was contended by Great Britain and couciidcd by the United States that all those fishei'ies, both Avithin and without the line of tjiTitorial jurisdiction, were previous to the Revolutionary War, the exclusive property of Great Britain, as an appurtenant to its territory. On this point there was no dispute, although the fisheries in ([uestion extended in the open sea almost five degrees of latitude from the coast, and along the whole northern coast of Xew Kngland, Nova Scotia, the Gulf of St. Lawrence, and Labrador.^ Upon this view, entertained by both nations and by all the eminent diplomatists and statesmen who participated in making or discussing these treaties, the contention turned upon the true constrnctiou v^ the grant of fishing rights contained in the treaty of 178.3. It Avas claimed by the British Government that this wa'" a pure grant of rights belonging exclusively to Great Britain, and to Avhich the Americans could liave no claim, except so far as they were ctmfen-ed by treaty. It avhs contended on the other side, that the Americans, being British subjects up to the time of the Hevolutionary AVar, entitled and accustomed as such to share in tiu^sc fisheries, the acquisition of which from b'rance had be(>n largely due to their valour and exertions, their right to par- ticipate; in them was not lost by the Revolution, nor by the change of government which it brought about, when consummated by the treaty of 1 783. And that the provisions of that treaty on the .subject were tf) lie coustrued, not as a grant of a iu;vv right, but as a recognition of the American title still to participate in a property that before the wai- was common to both countries. Which side of this contention was right it irt quite foreign to the present purpose to consider. It is enough to ' For full niiotationM I'l'om Mr. Adunis, nee Appendix, infra, pp. 187-189. w niCTlT TO PROTECT JNTERE8T8 AND IXDT STRV. 15: Icred, was tho By the treaty )lutionary War, to her colonies, n the treaty of treaty of 1783 le right of tho treaty, had by 3 parties will bo le of the history ced. (Pp. 106- ,e United States ne of territorial ', the exclusive rritory. On this tion extended in st, and alonpT th(^ the Gulf of «T. all the eminent discussing these n (/^ the grant of claimed by tho rights belonging- cans could have treaty. It A>iis British subjects accustomed as ich from b'rancc ir right to par- by the change of d by the treaty sxibject were to ecognition of the fore the war was ■iitiou was right It is enough to jp. 187-18». perceive that it never occurred to tho United States Government or its eminent representatives to claim, far less to the Critish Government to concede, nor to any diplomatist or writer, either in 178:i or 181"), to con- ceive, that these fisheries, extending far beyond and outside of any limit of territorial jurisdiction over the sea thau ever was asserted there or elsewhere, were the general property rf inankind, or that a partici- pation in them was a part of the libert" of the open sea. If that propo- sition could have been maintained, thi right of the Americans would have been plain and clear. No tre.ity stipulations would have been necessary at the end of either war. (See also VV^havton's Dig. vol. in, pp. 3i)-48.) ■ ' ■ It will bo perceived, al.so, tiiat in LJie casi; of these fisheries there was no pretense that an exclusion of the world from participating in them outside the line of the littoral sea was necessary to their preservation, or that such participation would tend to their extinction ; though unquestion- ably it might lead to a diminution of the profits to be derived from them by the inhabitants of tho territory to whit^h they appertained. Tf the countries now contending were right, then in the views enter- tained by both governments and by all who were concerned for them, in cabinets, diplomacy, Congress, and Parliament, and in the claims then made, conceded and acted upon ever since, the precedent thus established must be decisive between them in the pi'cseut case. There can not be one internationnl law for tiio Atlanticr and another for the i^acific. If tho seals may be treated, like the fish, ns only fercv naturo', and not property, if the maintenance of the herd in the Pribilof Islands is only a fishery, how then can the case be distinguished from that of the fisheries of Nova S;'otia and Newfoundland ":' Why would it not be, until conceded away by treaty or thrown open to the world by consent, a proi)rietary right belonging to the territory to which it appertains, and which the GoveriiiMeut has a right to defend ? But the ease of tiie seal industry is I'ar stronger tlian that c.f the fisheries in favour of such a right. The great facts of the natuic »l' the animals, their attachment to the land, without which they could not cxi.st, their constant naimux nvtrtundi. the protection there, in default of which they would perisli. and the absolute necessity of excluding outside interference with tlicni. in order to prevent their extinction, not only greatly strengthen tiie proprietary title, but annex to it tho farther and untiuestionable right of self-defense, in respect to those [317j '''-^ U- I w Mir. ^■•ii 158 AUGUML'A'T OV THE UNITED STATES. interests on sliore in which the property is not denied nor open to dispute. The jurisdiction accorded to nations over t^ e littoral seas is by no means the only instance iu which rules of international law, now com- pletely established and universally recognized, and under which the freedom of the sea has been largely abridged, have arisen out of the right and necessity of self-defense, and out of the general principle that to such necessity individual rights and the acquisition of private emolu- ments upon the ocean must give way. I Some of these rules relate to the interests of nations when engaged in war, and other,s, like that which concedes the jurisdiction over territorial seas, chiefly to the interests of pe.ice. The right of self-defense, as iifl'ecting nations, is no greater in war than in peace. Certain necessities are sometimes greater in ono state than in the other. J3ut in both the measure of the necessity is the measure of the right, and the justiBable means of self-protection are such as the case requires. It is the pi-inciple that controls the case, not the case that controls the principle. The state of war only exists between the belligerents, and is only material between them and neutrals, so far as it gives rise to a particular necessity on the part of a belligerent, that would not otherwise arise. The international law of piracy is an infringement of the right which even a criminal has, to be tried in the jurisdiction where his crime was committed, and if upon the high sea, in the jurisdiction to which his vessel belongs. Such is the rule iu respect to every other crime IaUOWu to the law. But if an American in an Amei'icau ship commit.', an act of piracy on the high seas on a British vessel, he may, by the rules of international law, be captured by a French cruiser, taken into a French port, and there ti'ied and executed, if France thinks proper to extend the jurisdiction of her courts to such a case. The reason of this well- settled rule is not found in the character of the crime, which is but rob- bery and murder at worst, but in the necessity of general defjnse, in which nil sea-going nations have a like interest and therefore a like right to intervene, without waiting for the tardy or uncertain action of otherd. The slave trade is an oftense fo'' which the sea is not free, though not yet i-egarded in international law as piracy, because t'lere are still countries where slavei-y is legalized. But there is no question that a nation whose laws prohibit slavery may capture '.>n the high sea any vessel laden with .slaves intended to be lauded on her coast, or any yes- m RIGHT TO PROTECT INTERESTS AND INDUSTRY. lot) nor open to seas is by no iw, now com- er which the en out of the principle that private emolo- -when engaged over territorial , , i greater in war r in one state lecessity is the ;ection are such ise, not the case ts between the eutrali, so far of a belligerent, he right which e his crime was u to which his er crime l«.nown commits an act by the rules of .1 into P French roper ti' extend on of this well- ich is hut rob- leral defense, in herefore a like •ertain action of ^ree, though not there are still question that a high sea any Last, or any ves- sel sailing for tlu- purpose of prosecutinii- the slave trade on her shores. Nor is there any doubt that so soon as the abolition of slavery becomes universal, internntional law will sanction dealing with a slaver as with a pirate, and for the same reason of general sclf-deferse. Nor is the sea free to any vessel whatever, not carrying the flag of some country, and shown by its papers to be entitled to carry that flag ; and the armed vessel of anj' nation may captnre a vessel not so protected. Sailing independently of any particular nationality is harmless in itself, and may l)e consistent with entire innocence of conduct. But if allowed, it might offer a convenient shelter for many wrongs, and it is therefore prohibited by the law of nations. Innocent trade may also be prohibited by any nation between other nations and its colonies, for reasons of policy. Such restrictions have been frequent, and their propriety has never been questioned. That a vessel engaged in such prohibited trade may be captured on the high seas and condemned, is shown by the case of Chnrch v. Hubbart, and other authorities above cited. These are instances of the e.xeroise upon the sea of the general right of self-protection, for the common benefit of nations, irrespective of the particular necessity of any one country. In most cases, restrictions imposed upon the freedom of the sea arise out of some particixlar national necessity. Thus it is well settled, that any vessel guilty of an infraction of a revenue or other law within the territorial waters of a nation, may Ix! pursued and captured on the high seas ; because, otherwise, such laws, devised for the protection of the national interests, might fail of being adequately enforced. Upon this principle also, was based the British act putting restrictions upon the passage of a vessel on the high sea, approaching Great Britain from a port where infectious disease was raging. Quarantine and health regulations are usually enforced within the jarisdictional limit, and so confined, are in ordinary cases sufficient for their purpose. But when in a particular case they are insufficient, and the necessity of protecting the country from incursion of dangerous disease requires it, no right of freedom of the sea stands in the way of putting proper restrictions on the approach of vessels, at any distance from the shore that may be found reciuisite. (6 Geo. IV, chap. 78.) The very grave, and often, to innocent individuals, ruinous restraints upon neutral trade for the interest of belligerents, the validity of which has long been established in international law, afford a strong example of It'-'- '!* \4\ «:."' \1 .' ■ \\ 1 '■ ffi 1 ■ ■^'' = I t 1 !■■«<.: i I--1 IH m k lii^iiL 160 akitUmknt of the united states. the ap{)lication f)f tlio samo principle. If a port is blockaded, no uoutml Hhip can enter it for any purpose whatever, even for the continuance of a regular and legitimate commerce established l)efore the war began. And such ship is not only prevented from entering the port, on jjain of capture and confiscation of vessel '.ind cargo, but is liable to be cap- tured anywhere upon the high seas and condemned, if it can be shown either that the voyage is intended for a breach of the blockade, or that such breach has actually taken place. And, though such is not the general rule, it is shown by the decision of Lord Stowcll, before cited, that if the necessities of a successful prosecution of the war require it, a belligerent may even interdict neutral commerce with poi-ts not block- aded. .Admitted by that great judge that such a measure is unusual, hai'sh, and distressing, and not to be resorted to without necessity, it is neverUieless hold to bo justifiable when the necessity does actually arise, though that necessity is only for the more efEectual prosecution of a war. The same rule applies to the conveyance by a neutral to a belligerent port, of freight which is contraband of war, though such freight may not bo designed to be in aid of the wai-, but may be only the continu- ance of a just and ri'giilar commerce, before established. And a vessel may be captured anywhere on the high seas if found to bo engaged in that business. And so if a neutral vessel is engaged in the conveyance of belligerent dispatches or of passengers belonging to the military or xiaval service of a belligerent, though the vessel so employed may be a regular passenger ship on its accustomed route as a common carrier. Hostile fi-eight on a neutral ship has long been held liable to capture. If the rule that the flag covers the cargo may now bo said to be established, it is of comparatively recent origin. Upon the same principle has been maintained the right of visitation and search, as against every private vessel on the high seas, by the armed ships of any other nationality. Though this vexatious and injurious claim has been much questioned, it is firmly established in time of war, at least, as against all neutrals. Says Sir William Scott, in the case of Lr Louis (2 Dodson, 244) : This right (of seai-eh), incommodious as its exercise may occasionally be, * * * has been fully established in the legal practice of nations, having for its foiiudatiou the necessities of self-defense.^ • Says Mr. Twiss (Bights and Duties of Nations iu Time of War, ed. 1863, p. 17G) : "The right of visiting and searching merchant ships on the high seas, observes od, no neutral continuauco of 10 war began, art, on pain of jlo to be cap- can be shown ockade, or that ich is not the il, before cited, war require it, )0rt8 not block- iro is unusual, ; necessity, it is y does actually I prosecution of to a belligerent ch freight may ily the continu- 1. And a vessel ) engaged in that ice of belligerent laval service of a ir passenger ship liable to capture. to bo established, ght of visitation h seas, by the vexatious and established in William Scott, may occasionally actice of nations. . 1803, p. 170) : high eeafl, observes IS IJUaiT TO J'KOTKCT UNTEKEVJVS .\MJ IN bCMUV. Ol It has been said tliat the right of searcli i;i eoiitiued to a time of war. Tliat assertion proceeds upon the ground that only in time of war can tiie necessity fur it arise. No one has over eliiimod that the right should be denied in time of peace, if an equal noeessity for it exists. And when such necessity has been regarded as existing, the right has been asserted. Prior to the war of 1812, between the United States and Great Britain, the latter countiy claiuiod tlio right in time of peace to search American ships on the high seas for British sul)jects serving as seamen. Though the war grew out of this claim, it was not relin- quislied by Great Britain when a treaty of peace was made, It has been disused, but never abandoned. The objection to it on the part of tho United States was the obvious one that il was founded upon no jnsi necessity or propriety. Ifail it been a measure in any reasonable seiisu necessary to self-defense on the part of Gi'uat Britain, its claim would have rested on a very different foundation, and would have boon supported by the analogy of all similar cases. The right of search is exorcised without question as against private vessels suspected of being engaged in the slave trade. And it is very apparent, that as the increasing exigencies of international intercourse of all kinds render it necessary, tho principle that allows it in time of wai- will be found sufficient to allow it in time of peace. The i*ule, as has been seen, grows out of necessity alone, and must thei-efore extend «'ith the necessity. • Lord Aberdeen, in a letter of 20th of December, 1841, to Mr. Everett, American minister (British and Foreign State Papers, vol. 30, p. 1177), claims tho right of visitation of vessels on high seas in time of peace, far enough at least to ascertain their nationality. And iu his dispatch to Mr. Fox, says : Lord StowoU in llu- wi'U-knowu casi- of the iSwolisli couvuy, uhrtti'vcr he llio fliips, wlialover bo the l'iu'jj;uc's, wliutcvi'v be (lie ilotinulioiis, is an iin'onti'stablo right of the lawfully coiinnissioiiod >liip of a bciligcvciit nation; boeauso, till thi'V arc visited and ^earL'llt•d, it (loe.s not a])pi'ar what the ships, or the carj^oi's, or the destinations are; ansily of ihi-' riuht (if visitation and searcli exi>ts.'' Mvery vessel is bound to »ubinil to visitation and ^eareli, wlielher il lie the M>.-el of II friend or of an ally or even of a subject ; and submission may ha eompelled, if necessary, by force of amis, witiumt jj;ivinj; claim for any daniajio incurred tlicreb\ . if the vessel npon visitation -.hould be foiuid not liable to l)0 detained. * * * If the vessel bo neutral, a bellif,'eicnt is entilleil to a.-cerlain whether there is u con- traband of war or enemy's dispatches or military or luival ofUccrs of the enemy on board, "If the master of a neutral vessel resists by force (the right of search) that is a ground of confiscation, and consequently of capture," (Wildman's Eights of yesscU'. ch:ip. 2, p. 6.) >1 iihll '■■? "I .{!■ "rI; i:( 162 ARGUMENT OF THE UNITED STATES. That it (the Uritish (lovernijient) still mnintnins, and would pxeroihc when mcoHHary itH own ii<>;lit to ascertain the p;cnuin(?neHS of any tlag wliieh a suHpected vessel niii^ht her.! ; tlint if in tho exercise of this ripht, either from involuntary error or in spito of every precaution, loss or injury hIiouUI bo sustained, a prompt re])aration would be afforded: lint that it should entertain for a single instant the notion of abandon- ing the right itself would be qnito impossible. (Webster's Works, vol. fi, p. :S34.) Mr. Webster disputes this right, bi;t has to adnait that it does exist when specially necessary. Ho says : That there is no right to visit in time of peace except in tho execution of revenue laws or other municipal regulations, in which cases th(^ right is usually exercised near the coast or within the marine league, or ■where tho vessel is justly suspected of violating the law of nations by piratical aggression; but wherever exercised, it is a right of search. (Webster's Works, vol,' vi, p. 330.) The principle that thus subordinates private right to national necessity, is well stated by Mr. Manning (Int. LaAv, chap. .'?, p. 252) : Tho greatest liberty which law should allow in civil government, ia the power of doing everything that does not injure any other person, and the greatest liberty which justice among nations demands, is that every state may do anything that does not injure another state with which i( is at amity. Tho freedom of commerce and the rights of war, both undoubted as long as no injustice results from tlieni, become ques- tionable as soon as their exe/ciso is gi-ievoualy injurious to any inde- pendent state, but the groat difFercnce of the interest concerned makes the trivial nature of tlie restriction that can justly be placed upon neutrals appear inconsiderable, when balanced against the magnitude of tiie national enterprises which unrestricted neutral trtide might com- pj'omise. That some interference is justitiable. will be obvious on the con- sideration that if a neutral had the power of unrestricted commerce, ho might carry to a port blockaded and on the point of surrendering, pro- visions which .should enable it to hold out and so change the whole issue of a war ; and thus the vital interests of a nation might be sacrificed to augment the riches of a single individual. Azuni carries the principle still further, and holds that even national rights .should yield to the rights of another nation, when tho conse- quences to the latter are the more important. He remarks (part ii, chap, in, art. 2, sec. 4, p. ITH) : When the per-fect right of one nation clashe.s with the perfect right of anotlier, reason, justice, and humaiuty recjuire that in such case the one that will experience the least damage should yield to the other. And Paley, in a striking passage, applies the same principle even to the obligation to observe treaties, one of the highest obligations known to international law. (Moral Philosophy, book 6, chap. 12.) j?.. ,, ,,( .. ii !l V l^: RIGHT TO PROTECT INTERESTS AND INDT'STRV 1 o.-i ronld exerriKe I of any flag ■rciso of thiH reeaution, loss bo afforded : II of abandon- Works, vol. «>, oes I'xiHt when I the execution ases the right ne league, or of nations by jht of search. ional necessity, government, is ' other person, aniands, is that her state with ) rights of war, I, become ques- i to any inde- )ncerned makes placed upon le magnitude e might com- )as on the con- commerce, he i-eudering, pro- ige the whole it bo sacrificed even national en the conse- partii, chap, m, le perfect right such case the he other. ineiple even to igationa known When the adhoronco to a public treaty would enslave a whole people, would block up .«0MS, rivers, or harbor.'*, depo])uliite cities, condemn fertile regions to ettu'nul :ii, though these iisheries extend into the open sea for a distance varying from (3 to 2U miles from the shore. A regulation was enacted by tho local British authorities, of March 9, 1811, authorizing the seizure and foi'feiture of any vessel found hovering on the pearl bank.s on the west coast of Ceylon, on water of between 4 and 12 fathoms, tho same being an urea of tho open sea extending 00 miles up and down the coast and of variable width, but distant about 20 marine miles from the coast at tho farthest point. This regulation is still in Ibvco. (Regulations No, :{, of 1811, for tho protection of Her Majesty's pearl banks of Ceylon.) An ordiTmnco issued in 1842 prohibited the use of any dredge foi- fishing within the limits of the pearl banks, on pain of forfeitnj-e and imprisonment. . , ' . , • ,, The ordinance of Novembei- ."50, 1848, prohibited the possession or use of nets, dredges, and other instruments such as might be pi-ejndicial to the Government poarl banks, ivithin 12 milets of any part of the shoi-e lying between two designated points. The penalties annexed were forfeiture and imprisonment. Suspected persons might be searched. This regulation is still in force, (No, 18, 184.'3, an ordinance to declare illegal the possession of cei'tain nets and instruments within certain limits.) ' ■ ' ' • . i ; v The ordinance of November 18, 1890, px'ohibitcJ all persons from tjM > ■ 'i i r ' '. I '. ami l'it;(|Ui'Ut ;c(>mi> oxuotly II tliu hubjoct. lomiiin of Hot- lationu, exccp. y j^eneral nilo. ■s has required lartieulai* caHC. legislative and tlieso iuHtaucvs analoj,'y to the that pi-ojupted i-ained, they all iiithorities have iterferoneo with I for a dibtanee * •ities, of March found hovering ter of between sea extending i distant aboiil lis regulation is )tection of Her . .■ • I any dredge for forfeitnre and possesHion oi' be pi-ejudieinl ny part of the ualties annexed it be searched. ordinance tn unieuts within 1 persons from KKiHT T<» rHuTECT IN'TKUKSTs a\I) INDrsTRV 1(15 tishing for eliauks, hechcs-ihs-nu'r, coralH, or sh'lls, within iiu urea lying iu.sido of a utraiglit liiio lUawii up and down llu' cuii.-it, tlu« ends being dis- tant «) wiles from hIidiy, anil the must roniotc point hi'ing distant over 20 milavfroin shore, b'orfeiture, liius, and imprisonniont were the penalties |>rcsoribod. This regulation is still in force. (Xo. IH, ISOU, an ordinance relating to ehanks.) ( For cojiie^ of these acts, bco Case of the United States, App., Vol. i, p, ttil.) An act piissed in LSHH by the Icdcral council of Aiislrulia extciuU'd (with respect to liritish vessels) the local regulations of C^ueenslaml on the subject of the pearl lisherios to an area of open sea oil' the coast of Austrniin, varying in width from TJ fn 'J')0 marine miles. Fines, seizures, and for- feitures were the penalties prescribed. (.'>l V^ict., So. I.) An act passed in 188!) by the federal council of Austriilia extended (with respect to British vessels) the local roguhitions of western Austraiiii on the subject of the pearl tisheries to an area of open sea off the northwestern coast of Australia lying within a parallelogram of which the northwestmii corner is 500 marine milvs fnmi the coast. (J>'1 Vict., 4th Feb., 1889. Case of the United States, App., Vol. i, p. 408.) Similar restrictions upon the pearl fisheries in the open sea have been likewise interposed by the Government of Colombia. A decree by the govei'nor of Panama in the United States of Colombia, in 1890, prohibited the use of tliving machines for the collection of pearls within a section of the Gulf of J'anaran, which is between 09 and 70 marine miles in width, and of whicli the most remote point is iJO marine miles from the nuiin land. ({Jacota do Panama, February 0, 1890, Case of the United States, App., Vol. i, p. 485.) Legislation of the same character has also taken place in France and Italy in reference to coral reefs in the open sea and outside the jurisdic- tional limits, The French law of 1804 relating to the coral fisheries of Algeria and Tunis required all fishermen to take (jut licenses to fish anywhere on the coral banks, which extend into the Mediterranean 7 viih'g fi-om shore. In addition to this license all foreign tishermeu Avere required to take out [)atents from the Government, for which a considerable sum had to be paid ; and by the recent act of 1888, foreign fishermen ai'e precluded entirely from fishing within 3 miles from shore, ap])arently leaving the former i-egulations in force with respect to such portions of the coral banks as lie outside of those limits. (Journal Officiel, March 2, 1888), (Case of the United States, App., Vol. I, p. 469.) mv ■'(Tt M ■m mm^ ii§i ■n I m ! i '■<^-\^^ IGfi ARGUMENT OF THE IGNITED STA'i'ES. By a law enacted in Ttnly in 1877, and a decree issued in 1892, licenses are required of all vessels operating on the coral banks lying off the coast of Sardinia, at distances which vary from 3 to 15 miles from land. Under the regulations there prescribed, the discoverer of a new coral bed at any point is entitled to take possession of it, and to identify his dis- covery by means of a buoy saitably mai'ked, which confers upon him the privilege of working the bank as a private monopoly for two years. " Off the southwestern coast of Sicily there are three coral reefs, situated, respectively, at a distance of 14, 21, and 32 miles from shore. The Italian law of 1877 and decree of 1882 extend to these, subject to the modifications introduced by the three following decrees. (Official Pamphlets, No. 3706, series 2 of March 4, 1877 ; No. 1090, series 3, Novem- ber 13, 1882.) The decree of 1877 prohibited all fishing on the nearest of the three banks, A'iz., that situated 14 miles from shore, and provided that the other two should be divided into sections which should be fished in rotation. The decree of 1888 proliibited all opci'ations on all three banks until further notice, in order that the coral, which was then almost exhausted, might be given time to renew itself. The decree of 1892 provided that fishing might begin again under tbo original regulations after the close of the fishing season of 1893. (Case of the United States, App., Vol. I, p. 470.) Oyster beds in the open sea have been made the subject of similar legis- lation in Great Britain. A section of the British " Sea Fisheries Act," 1868, conferred upon the Crown the right by orders in council to restrict and regulate dredging for ovstcrs on any oyster bed within twenty miles of a straight line drawn between two specified points on the coast of Ireland, "outside of the exclusive fishery limits of the British Isles." The act extends to all boats speciticd in the order, whether British or foreign (31 and 32 Vict., eh. 45, sec. 67 ; Case of the United States, App., Vol. 1, p. 457). The same as to liorriug fisheries : " The Herring Fishery (Scotland) Ad^ 1889," conferred authority upoia the Fishery Board of Scotland, to prohibit certain modes of fishing known as beam trawling and other trawling, within an area of the open sea on the northeastern coast of Scotland over 2,000 square miles in extent, of which the most remote point is about 30 marine miies from land (52 and 53 Vict., eh. 23, sees. 6, 7; Case of the United States, App., Vol. I, p. 458). in 1892, licenses ff the coast of i. new coral bed entify his dis- [•onfers npon apoly for two i-eefs, situated, ese, subject to ees. (Official sries 3, Novem- ;t of the three voided that the L be fished in ree banks until nost exhausted, igfain under the 893. (Case of [)i similar legis- I'erred upon the te dredging for ght line drawn outside of the nds to all boats ]2 Vict., ch. 45, (Scotland) Ad, and, to prohibit rawliug, within ,land over 2,000 bout 30 marine of the United RIGHT TO PROTECT INTERESTS AND INDUSTRY. 167 'fhe taking of seal, in whatever country they have been found, aas been in an especial manner the subject of legislative and govei-Ui^cntal regulation and restriction in the open sea. And in such actions Gr^'at Britain and Canada have been conspicuous. By an act of the British Parliament passed in 18G3, tUe colony of Now Zealand was made coextensive with 'ihe area of laud and sea bounded by the following parallels of latitude and longitude, viz., 33° S., 53' S. ; 162° E., 175° W. The southeastern corner of this parallelogram is situated in the Pacific Ocean over 700 miles from the coast of New Zealand (26 and 27 Vict., ch. 23, sec. 2). In 1878 the legislature of New Zealand passed an act to protect the seal fisheries of the colony, which prov ide; . (1) For the establishment of an annual close season for seals, to last from October 1 to June 1. (2) That the governor of New Zealand 'might, by orders in council, extend or vary this close season as to the whole colony or any part thereof, for three years or less, and before the expiration of such assigned period extend the close season for another three years. (See Fish Protection Act, 1878, 42 Vict., No, 43.) Under the authority of this statute, a continuous close season was enforced by successive orders in council, from November 1, 1881, until December 31, 1889. 'J'hese extreme measures were deemed necesssary in order to prevent the com])lete extermination of the seals at an early date. (See Reports of Department of Marine of New Zealand for the years 1882, 1885, 188r)-'87, 1887-88, 1889-'90. Also the Report of the U. S. Fish Commission.) Another act, passed in 1884, conferred additional authority upon the governor in couno"! to make such special, limited, ami tomporury reguUi- tions concerning close seasons " as may be suitable for the whole or a^iij part or parts of this colony," etc. All seals or other fish taken in violation of puch orders were to be forfeited with the implements used in taking them. (The Fisheries Conservative Act, 1884, 47 Vict.. No. 48.) A third act, even more stringent in its terms, was passed in 1887, which provided : (1) That the mere possession of a seal by any person during a clo.se Heason should be proof, In the absence of satisfactory ^ videncr-. to the contrary, that it had been illeiiallij talien. (2) That all vessels taking or containing seals at such times should be forfeited Lu the Crow 'I'i. ■ JvV •■f ^ r ■^Mt' elS ARGI'MENT OFi' THll INITKI) STATES. (3) Thai till' couimandci- of suiy public .esscl might seize, Bcaroh, and take any vessel so oft'encliiig anywhere " within the jurisdietion of the government of tlie e-olonj- of' Xew Zealand." In otiier words, authority was conferred Ity those aets to seize vessels for illegally taking seals over an area of the open sea extending at the furthest l)oint 700 »/i/e.s' from the eoast; and the government of New Zealand has since kept a cruise)' actively i'ni]»loyed in enforcing these regnlatwrns, (The Fislieries Conservative Act. 1887, ')l Vict., No. 27 ; Rep. of V. 8. Fi«h Com. ; Case of the United States, App., Vol. i, ji. 440.) An ordinance of the l-'alklanil Islands, passed in 1881 , established a close season for the islands and the sui-rounding waters, fi'oni October to April in each year. Two of flic islands Ho 28 miles apart, and this regulation is enforced in the open sea lying between them. (Re]}, of U. S. Fish Com. ; affidavit of Capt. Ihuldington; Case of the Uiuted tStates, App., Vol. J, p. 4;:$5.) • ■ . , , The Newfoundland Seal Fishery Act, 1892, passed in April of that year l)y the legislature of that country, provides : ( (i) That no seals shall be killed in the seal-tishing grounds lying off the island at any period of the year, except between March 14 and April 20, inclusive, and that uo seal so caught shall be brought within the limits of the colony, under a penalty of §4,000 in either instance. (2) That no steamer shall leave any port of the colony for the seal iisheries before six o'clock a.m. on March 12, under a penalty of $5,000. (8) That no steamer shall proceed to the seal fisheries a second time in any one year uidess obliged to return to ])ort liy accident. This act ex(ei;ds and enlnrges ihe scope of a previous act, dated February 22, 1879, which contained similar provisions, but with smaller penalties, and also the provision whicli is still in force, that no seal shall be caught of less weight than 28 pounds. (")."> Vict., Case of tlio Uniied States, Apji., Vol, I, p. 442.) The sc.tI fi»th<'i'ies of (Ireenland were the subject of concurrent legislation in 187.'). |87(i, and 1^77 by England, Norway, Sweden, Denmark, and Netherlands, which pnihibits all fishing For seals by the iidii;bitants of those countries ' eforc April 3 in any year, within an area of the open "m boundf'd l>y the follow'. ig pandlels of latitude and longitude, viz., 07° N., 7.")" N., .")" F., 17" \\t' . (JJwtish and Foreign State Papers, vol, i,xx, pp :jG7, .%8, ."ilS ; voi. I \Kiif, fip. 28^ 28:j, rOS. "The Seal Fishery Act, 187o," ;{h Vict, ci|). 18.) Under the law of Urugucy the killing of seals on tlie Lobo.s and * ' .'' IVKJHT TO PROTROT JSTKRKSTs AND [.SrXSTin". (i!> le, search, ami iiction of the >ize vessels foi- at the furthest \v Zeuland has le reyulat'ims, Rep. of U, S. ihlished a dose krtobt'r to April is regiilatioi' is . S. Fish Com.; s, App., Vol. I, »ril of that year r ids lying off the 4 and April 20, liin the limits of 3iiy for the seal ty of .>^5,000. sucon'l time in us .ict, dated )ut with smaller no seal shall be of the Ut'it-ed irrent legislation Denmark, and e iiihi:bitants of of the open = .>a ude, viz., 07° N., sipers, vol. i.xx, oal Fishery Act, tlie Lobos and other islands "in that pari of the ocean adjaecTit ♦() (iio departments of Maldonado and llocha " is secured to contract )rs, who pay to the (xovernment a license fee and duty. (Acts of July 23, 1857, and .lutip 28, 18r»8, Caraira, a'oI. i, pp. 440 and 448, Dis^est of Laws. Appendix to the Case of the United States, Vol. 1, p. 448.) By the law of Russia, the whole l)u.siness of the pursuit of seals in thfi White Sea and Caspian Sea, both as to time and manner, is regu- lated, and all killing of the seals except in pursuance of such regula- tions is prohibited. (Code of Russian Laws Covering Rural Industries, vol. XII, part II. Appendix t<> tlie Case of (he United Slates, Vol. f, p. 44.5.) The firm and resolute recent action of the Russian Government in prohibiting in the open sea, near th<- Commander Islands, the same depredations upon the seal herd that are complained of by the United States in the present case, and in capturing the Canadian vessels r>n- gagcd in it, is well known and will be universally approved. That Great Britain, strong and fearless to defend her riglits in every quarter of the globe, will send a fleet into those waters to mount guaid over the extermination of the Russian seals by the slaughter of pregnant and nursing females, is not to bi? reasonably ex])ectcd. Tbe world will see no war between Great Britain and Russia on that score. The "hovering acts" of the British Parliament and of the American Congress have already been mentioned. These hovering acts Avere enacted in England in 1780 and in the United States in 1709. and prohibitcnl the transhipment of goods at sea within 4 leaijues rrr 12 vn'Ir.t of the coast. Fine and forfeiture were the prescribed penalties. The Knglish act j)rohibited any foreign vessel having on board tea or •spirits from " hovering" within 2 I'-nrjucs or (! viilcs of the coast. The American act authorize Geo. II, ch. ;35: U. S. Rev. Stat., sees. 27. 28(17. 28()8 ; Case of the United States, App., Vol. I, ji. 4!»8,) The Fi-ench legislation, which is in elVect similar to the hlncrlish and American hovering acts, has also been l)(>fore alluded to.' The British act in referenc^e to vessels clearing from infect(>d ports has also been referred to, wliiel. required all vessels coming from plague- ! I ' Fur llio Kuhstnnci' page 189. tlic iu>tM, iiM .ituti'il liv AI. Crcsp. see Appendix infi-it. w^'fm '':\&m \i u v4 .; I; 170 ARGLTMKNT OF THE INITED STATED. stricken places to make signals on meeting other ships, 4 leaijues from coast. (2(3 Geo. II, Ch. — .) Another act establishes 2 leagues from the coast as the distance within which ships are amenable to the British quarantine regulations. (G Geo. IV, ch. 78.) Another ad of tlu' Briti.sli Parliament affords a consjjicuous instance oi a control (;xerci ed over the high sea, for a long distance outside the utmost boundary o,' a littoral sea, as a means of a defense against a special danger then thought to exist. It was passed and enforced for the purpose of preventing the escajjc of the Emperor Napoleon when confined on the island of St. Helena. This act authorized the seizure and condemnation of all vessels found hovering within S leagues or 2i miles of the coast of St. Helena during the captivity of Napoleon Bonaparte on the island, reserving to ships owned exclusively by foreigners the privilege of first being warned to depart before they could legally be seized and condemned. (50 Geo. Ill, Teh. 23 ; Case of the United States, App., vol. I, p. -ii)."*.) A still more extensive and very recent assumption of dominion over the sea for defensive and fiscal purposes, is to be found in an act passed by the legislature of Queensland on June 24, 1879, which annexed to that country all the islands lying off the northeastern coast of Australia, within a definel limit, whicli at its furthest point, extends 250 miles out to sea. 'L'hc boundary thus adopted includes nearly tlie whole of Torres Strait, a body of water GO miles in width, separating Australia from New Guinea, and forming the connecting link between the Pacific and Indian oceans. Under the authority of this Annexation Act, the Government of Queensland has exercised complete police jurisdiction over the Strait, has suppressed the traffic in liquor in the objectionable form in which it formerly prevailed, and has derived from the traffic as since restrictetl, a large rever.ue through the medium of customs duties. (43 Vict., ch. I. Rep. U. S. Fish Com. See '" Gold-Gems and Pearls in Ceylon and Soutlieru India," by A. M. et 1., 1888, p. 296.) (Case of the United States, App., Vol. I, p. 4o7.) An effort is made in the British counter case to duninish the force of the various statute,>J, regulations and decrees above cited, by the sug- gestions that they only take effect within the municipal jurisdiction of the countries where they are promulgated, aud upon the citizens of «. im RIGHT TO PBOTECT INTERESTS AND INDISTRY. 17 i Icaijuos fi'om tilt! (listance e regulations, aous instance M outside the 186 against a [ enforced for apoleon when . vessels found Eeleua during ving to ships ing warned to (50 Geo. Ill, drminion over 1 an act passed ich annexed to it of Australia, nds 250 miles lole of Torres .ustralla from he Pacific and rovernment of er the Strait, lorui in which ince restricteil, 4.3 Vict., eh. I. n Ceylon and of the United h the force of , by the sug- i\ jurisdiction ;he citizens of those countries outside the territorial limits of such jurisdiction. la their strictly legal characttcr as statutes, this is true. No authority need have been produced on that point. But the distinction has already been pointed out, which attends the operation of such enactments foT- such purposes. Within the territory where they prevail, fnd upon lis subjects, they are binding as statutes, whether reasonable and necessary or not. Without, they become defensive regulations, which if they are reasonable and necessary for the defense of a national interest or right, will be submitted to by other nations, and if not, may be enforced by the government at its discretion. Otherwise their effect would be to exclude the citizens of the country in which they are enacted from a use of the marine products it is seeking to defend, which is left open f ■ the inhabitants of all other countries, thus leaving those products to be destroyed, but excluding their own people from sharing in the profits to be made out of the destruction. Will it be contended that such is the result that is either contemplated or allowed to take place by the governments which have found it necessary to adopt such restrictions ? It would be much more to the purpose if it could bo shown either that any nation had ever protested against or challenged the validity of any of these regulations outside the territorial line, or that any individual had ever been permitted to transgress there with impunity. In the case of any of the statutes of Great Britain and her colonies that have been referred to, if any cnterpinsing poacln r, armed with an attorney and a battery of authorities on the subject of the extent of statute jurisdiction, should attempt the extermination or even the injury of the protected products, in defiance of the regulations prescribed, ho would speedily ascertain, without the assistance of an inte 'national arbi- tration, that he had made a mistake, and that to succeed in his undertaking he would need to be backed up by a fleet too strong for Great Britain to resist. In the light of this accumulation of authority and precedent, drawn from every source througli which the sanction of international law oan be derived or the general assent of mankind expressed, what more need be said in elucidation of the grounds upon which this branch of tlie case of the United States reposes y Have we not clearly established the proposition, that the dominion over the sea, once maintained by maritime nations, has been surrendered only so far as to permit such private use as is neither temporarily nor permanently injurious to the [317] If 'M '] . "^f wfX if fv ^ : J 'ill 172 ARGUMENT OF THE UNITED STATES. important and just interests of those nations, and that as against such injury, however occasioned, the right of defense has always been preserved, and has always been asserted on the high sea, and even upon foreign territory. It will be seen, we respectfully submit, that this case presents nothing new, except the particular circumstances of the application of an universal and necessary principle to an exigency that has not e isen in this precise form before. The steadfast advance which the law of nations has made, from the days of its rudiments to the present time, and which still must con- tinue to bo made through nil time, has been and must always be by the process of analogy, in the application of fundamental principles from which the rules of all new cases as they successively and canstantly arise must be deducetl. Neither tliis nor any other sj'stcm of human law can .stand still, for it must perish unless it keeps pace with the vicissitudes of society, and meets adequately all the new emergencies and requirements which they from time to time produce. Law has its roots in the past, but its efficacy must take place in the present. Says Mr. Phillimore (Int. Law, vol. 1, sec. 39) : Analogy has great influence in the decision of international as well as municipal tribunals ; that is to say, the application of the principle of a rule which has been adopted in certain foi'mer cases, to govern others of a similar character as yet undetermined. Analogy is the instrument of the pi'ogress and development of the law. (Bowyir's Readings, p. 68.) If a precedent ainsing upon the same facts is not forthcoming, it is onlv because there is no precedent ior the conduct complained of. The same right was never before invaded in the same way. That does not take the case out of the operation of the principle upon which, all precedents in analogous incidents depend, and it applies with the same force to every case that arises within its scope. The particular precedent is created when the necessity for it appears. The absence of it Avhen the necessity ha.s never arisen, proves nothing. The only iniiuii-y i.-^ whether the case comes within the general rule. But were it possible to regard the present case as in any respect out- side the scope of rules hitherto established, its determination would then be I'cmitted to those broader considerations of moral right and justice which constitute the foundation of international law. It is tlu application of those cardinal principles that must control every case of new impression that can arise between nations. Tlio law of nations > > 1 m IS against such been preserved. a upon foreign is case presents pplication of an ot £ isen in this made, from the still must con- st always be by ontal principles y and constantly m of buman law 1 the vicissitudes md requirements s in the past, but [imore (Int. Law, itional as well as ;ho principle of a ovcrn others of a iment of the law. oming, it is only of. The same oes not take the U precedents in mc force to every t is created when the necessity has ev the case comes any respect out- n-mination would moral right and law. It is tlu rol every case ot law of nations RKJHT TO PROTEt'T INTERESTS AND INDUSTRY. / o has no otiier source than that, except in its convcatioualities. Sir K. Phillimore. in Queen v. Kehn (snpm. p. tiS). remarks in resiiert to such a case : Too rudimental an inquiry must l)e avoided, but it must be rcmcni- bered that the case is one of prima' impri'ssiotiis. ol' tie greatest im- portance both to England and to otlior states, and the cliaractcr of it in some degree necessitates a reference to first principles. In t]i(> momoriible answer pronounced by ^lontesquieu to be rcpoitsc nau.i rr/diijtir. and fraiiR'd by Lord ^Mansfield and Sir George Loc, of the Hritish, to the T'russian Government : " The law of nations is said to be founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage. Chancellor Kent says (1 Commentaries, ];. 32) : .As the end of the law of nations is the hapjiiness and perfection of the general society of mankind, it enjoins upon every nation the punctual observance of benevolence and good will as well as of justice towards its neighbors. This is equally the policy and the duty of nations. * * * (p. 181). The law of natio'^s is placed under the protection of public opinion. * * * Its great fundamental principles are founded in the maxims of etei'nal truth, in the immutable law of moral obliga- tion, and in the suggestions of enlightened public interest.' Many authorities on this point have been presented in a former branch of this argument. They might be multiplied to an indefinite extent, as well from continental as from English and American writers and judges. But apology should rather be offered for citing any authority at all, upon a proposition so fundamental and so obvious. It is with the greatest respect submitted, and in our judgment it 'Says Judge Story (Con. of Laws, sec. 3): "In resting on tlie Imsip of geni-riil convenience and the cnliirgctl sense of national duty, rules liave from time to time been promulgatetl by jurists and supported by courts of justice by a course of judicial reasoning wliicli has commanded almost universal confldonco, respect, and obedience, without the aid either of municipal statutes or of royal ordinances, or of international treaties." Mr. Twiss (Int. Law, part 1, sec. 8G), divides the sources of law of nations as follows : "The natural or necessary law of nations, in which the principles of natural justice are applied to the intercourse between sl,:*"s; secondly, customary law of nations which cnihodies those usages which the continued liabiO of nations lias sanctioned for their mutual interest and convenience, and thirdly, the conventional or diplomatic law of nations. * * * Under this last head many regulations will now be found which at first resulted from custom or a general sense (.>f justice." Mr. Amos, in his note to Manning (i,.)ok 2, chap. 1, p. .S5) remarks: " Tlioiigh tlic customary usages of stutes in their nuUiial intercourse mu. individunls concerned. And it is this conduct, inhuman and barbarous beyond the power of description, criminal by the laws of the United States and of every civilized country so far as its municipal jurisdiction extends, in respect to any wild animal useful to inan or even ministering to his harmless j)!easure, that is insisted upon as a part of the sacred right of the freedom of the sea, which no nation can r(!press or defend jigainst, whatever its necessity. Can anything be added to the statement of this proposition thai is necessary to its r.ifutation ? What precedent for it, ever tolerated by any nation of the earth, is pro- duced? From what writer, judge, jurist, or treaty is authority to bo derived for the assertion that the high sea is or ever has been free for sucii conduct as this, or that any such construction was ever before given to the term "freedom of the sea'" as to throw it open to the destruction, for the profit of individuals, of valuable national interests of any description whatever? Let those who chiim to set njs such a right as justified by any known law of nations, produce the authority of the precedent to establish it. If this proposal were submitted to the enlightened judgment of mankind, if the question of its acceptance were made to depend upon those con- siderations of justice, morality, humanity, benevolence, and fair dealing, that, as we have seen, form the grouudwork of internationnl law, and of all usages under it that have become established, it can not be open to doubt what the answer to it must be. There can bo but one side to such an inquiry, if ideas of right and wrong, or even of sound policy, are to prevail. To escape that result, some arbitrary and inflexible rule of controlling law must be discovered, against which justice, morality, and fair dealing are powerless. We deny that any such rule forms a part, or can ever be permitted to form a part, of any recognized system of inter- national law. \'-'f- n:i'' '1, im ■S^ rtd' k •It; ;.rl' 17G ATIGUMENT OF THE UNITED STATES. Many cases may be supposed, each of which, should it arise, would he in its particular facts a new case, in illustration of the proi)osition for which wc contend. .Suppose that some method of explo.sivc destruction .nhould bo discovered by which vessels on the seas adjacent to the Newfoundland coast outside of the jurisdictional line could, with profit to themselves, destroy all the fish that resort to those coa.sts, and so put an end to the whole fishing industry upon which their inhabitants so largely depend. Would this bo a business that would be held justifiable as a part of the freedom of the sea ? although the fish are admitted to be purely fenv )iaticrir, and the general right of fishing in the open sea outside of certain limits is not denied. An Atlantic cable has been laid between America and Great Britain, the operation of which is important to those countries and to the world. Suppose some method of deep-sea. fishing or marine exploration should be invented, pi'ofitable to those engaged in it, but which should interrupt the operation of the cable and perhaps endanger its existence. Would those nations be powei'less to defend themselves against such consequences, because the act is perpeti-ated upon the high sea ? Suppose vessels belonging to citizens of one country to be engaged in transporting for hire across the sea to ports of another, emigrants from plague - .stricken and infected places, thus carrying into those ports a destructive contagion. If it should bo found that measures of defense inside of the three-mile or cannon-shot lines were totally inadequate and ineffectual, would the nation thus assailed be deprived of the power of defending itself against the approach of such vessels, as far outside that line as the actual necessity of the case might requii'e ? This question is answered by the acts of the British Parliament before referred to, applic- able to just such a case. If a light-house were erected by a na,tion in waters outside of the three- mile line, for the benefit of its own commerce and that of the world, if some pursuit for gain on the adjacent high sea should be discovered which would obscure the light or endanger the light-house or the lives of its in- niates, would that government be defenseless ? Lord Chief Justice Cockburn answers tliis inqaiiy in the case of Queen v. Kehn above cited (p. 198) when he declares that such encroachments upon the high sea would form a part of the defense of a country, and " come within the principle that a nation may do what is necessary for the protection of it.s own territory." In any of these cases, would it be necessary for the nation assailed aviso, wouUl ho in losition for which iestruc'tion nhouhl he Ncvvfonndlantl Kt to themselves, ])ut nil end to thi- 1 largely depend, e as a part of the to be purely fem outside of certain Great Britain, the ind to the world. )loration should bo ould interrupt the ce. Would those ucli consequences. to be engaged in ler, emigrants from into those ports a easures of defense Uy inadequate and d of the power of IS far outside that This question is oferred to, applio- tside of the threo- the world, if some ercd which would le lives of its iii- ord Chief Justice en V. Kehn above ents upon the high '• come within tlu' le protection of its ;he nation assailed UIGIIT TO PROTErT INTERESTS AND INDfTSTRY. 1 / / to supplicate the government to which its assailants belonged, to prevent the mischief complained of, as a matter of voluntary ('(miity, and if such application wer(( disregarded, to submit ? The whole history of the maritime world, and of Great Britain above all other countries is to the contrary. So far from individual rights on the .sea of such a mischievous and injurious character having become rec(jgnized and e8tabli.shed by the assent of mankind, so as to bo regaided as justified bj* the international law that results from such an assent, the judgment and the conduct of nations have been altogether the other way, and necessarily must always bo the other way if they are to protect themsolve.-;, their interests, and their people from destruction. It will be seen from the correspondence between the governments of Groat Britain and the United States, printed in the Appendix to the Case of the United States, that a convention between the two countries was virtually agreed upon as early as 1887, with the full conr'urrence of Russia, under which pelagic sealing in Behring Sou would have been prohibited between April 15 and October 1 or Xovomber 1 in each ycai', and that the consummation of this agreement was only prevented by the refusal of the Canadian Government to assent to it. The propriety and necessity of such a repression was not doubted, either by the United States, Great Britain, or Rus.sia. This convention, if completed, would have fallen far short both of the just right and the necessity of the United States in respect of the protection of the seals, as is now made apparent in the light of the much larger knowledge of the subject which has since been obtained. Still, it would have been a step toward the de- sired end. When it became apparent that Great Britain would be unable to consummate the proposed agreement, and that no restraint would be put by Her Majesty's Government on the depredations of its colonists complained of, if the United States Government had then taken the course which has since been pursued by the Government of Russia in respect to the seals on the Commander Islands, and refused to per- mit further slaughter of the seals in Boring Sea during the breeding time, what is it reasonable to behove would have been the judgment of the civilized world, as to the justice and propriety of the position thus assumed? Would not such action have been approved and acquiesced in by all nations, as it has been shown that similar action by many countries in all similar cases that have arisen have been approved and acquiesced in ? And if it can be supposed, as it certainly can not be If ••^1 ■ 1. 'V ,' .. '•>'. ■- .-'I • 1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ■50 ^^' 25 2.2 lU 140 2.0 IL25 i 1.4 Sciences Corporation \ ^v ^. N? <^ .^•i. 23 W^T '^> E. J. PlfKLIS. Bn jnsti6ed in force as might e judgment of lal law for the )t prescribe the ;ht and justice t and approval jovernment of ;liat right, has has agreed to Great Britain, ter with those Great Britain, )s Government tly. Although d the right to Her Majesty's not otherwise 'I '4 im »w klj ! t! ■,(} t M: irii'f a .:.. . ■ ' l^i \ 180 ARGUMENT OF THE TNITED STATES. APPENDIX TO PART THIRD. DIVISION II (MR PHELPS'S ARGUMENT). Additioxal Ai'THoniTiEs ON Tin; Question' of PKOPEiiTV. [note 1, PAGE 132. OnxION IX HAXVAM IS. MOCKETT. V2 DAHVWAtL AND CKKS- •WELL, i)t3.)j Baoley, J. A man's rights are tlio rijjhts of personal security, per- sonal liberty, and private property. Private property is either property iu posses.siou, property in action, or jiroperty that an individual Las a special right to acquire. Tlie injury in this case does not affect any right of personal security or personal liberty, nor any property in posses- sion or in action, and the question then is whether there is any injury to any property the plaintiff had is an invasion of that territory, and is a hostile act which it" is its duty to repel. Hut its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Upon this princii)le, the right of a belligerent to search a neutral vessel on the high seas for contraband of war is universally admitted, ■:c f ill' it illlr'f U' 11 it. t ! .1,;^' P :;l^ 182 -^RGUME^T OF THK UNITED STATES. wider or more contracted the Government Avill be a very frreat part of tlio because tlie belligerent Las a right to provont the injury done to hirasolf by tli(! assistance intended for iii« enemy. So, too, a nation has a i-ight to prohibit any conimerce with its colonies. Any attempt to vi(»lato the laws made to protect tin's right is an injury to itself which it may prevent, and it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations. H they are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to. I- In different seas and on different coasts a range in which to exercise the vigilance of assented to. Thus in the Channel, Avhen! commerce to and from all the north of Europe passes through a very narrow sea, the seizure of vessels on suspicion of attempting an illicit trado must necessarily bo restricted to very narrow limits ; but on the coast of South America, seldom frequented by vessels but for the pnrpose of illicit trade, the vigilance of the Government may be extended somewhat further, and foreign nations submit to such regulations as are reasonable in themselves, and are really necessary to secure that monopoly of colonial commerce, which is claimed by all nations holding distant possessions. If this right be extended too far, the exercise of it will be resisted. It has occasioned long and frequent contests which have sometimes ended in open war. The English, it will be well recollected, complained of the right claimed by Spain to search their vessels on the high seas, which was carried so far that the Guarda Costas of that nation seized vessels not in the neighborhood of their coasts. This practice was the subject of long and fruitless negotiations, and at length of open war. The right of the Spaniards was supposed to be exercised unreasonably and vexationsly, but it never was contended that it could only be exercised within the range of the cannon from their batteries. Indeed, the right given to our own revenue cutters to visit vessels four leagues from our coasts is a declaration that in the opinion of the American Government no such principle as that contended for bus a real existence. Nothing, then, is to be drawn from the laws of the usages of nations, which gives to this part of the contract before the court the very limited construction which the plaintiff insists on, or which proves that the seizure of the Aiirora by the Portuguese governor was an act of lawless violence. [NOTK 1, PAOE 150. OPINION OP JmOE JOHNSON IN HOSE VS. HIMELT, 4 CK. 241.] I am of opinion that the evidence before us plainly makes out a case of belligerent capture, and though not so, that the capture may be justified, although for the bi*each of a municipal law. In support of my latter position, both principle and the practice of Great Britain and our own Government may be appealed to. The ocean is the common jurisdiction of all sovereign powers ; from which it docs not result that their powers upon the ocean exist in a state of suspension or equipoise, but that every power is at liberty upon the ocean to exercise its sovereign right, provided it does not act inconsistent with that general equality of nations which exists upon the ocean. The seizure of a ship upon the high seas, after she has committed an act of forfeiture within a territory is not inconsistent with the sovereign ) to hiraself » a ri>;lit to ,to tlie laws •h it may prevention, in marked lations. If 1 commerce, 3 reasonable •y will I'e contracted >nt Avill be part of the upH a very illicit trade n the coast pnrpose of i somewhat B reasonable nonopoly of ling distant resisted. It Qcs ended in of the right , which was cssels not in jject of long right of the atiously, but in the range vessels four le American al existence, itions, Avhich rcry limited es that the t of lawless 4, CR. 241.] )ut a case of be justified, my latter md our own risdictionof lowers upon jvcry power ided it does hich exists Immitted an le sovereign f APPENDIX TO I'AIIT THIRD — DIVISION II. 183 rights of the notion to which she belongs, bocnuso it is the law of reason and the general understanding of nntions that the offending individual forfeits his cli'.im to protection, and every nation is the legal avenger of its own wrongs. Within their jurisdictional limits the rights of sovereignty arc exclusive; upon the ocean they are conenrr-ent. What- ever the great prin(!iple of self-deiensu in its reasonablo and necessary exercise will sanction in an individual in a state of nature, nations may lawfully perform upon the ocean. This principle, as well as most others, may be carried to an uniea.soniible extcjit ; it may be made the pretence instead of the real ground of aggression, and then it will become a just cause of war. I contend only for it.s reasonable exercise. The act of Great Britain of 2-1. (Jeo., 3, Chap. I?, is predicated upon these principles. It subjects vessels to seizure which approach with certain cai-goes on board within the distance of four leagues of her const, because it would be diHicult, if not impo.ssible. to execute her trade laws if they were suil'eicd to ajtpruach neurei' in thi> prosecution of an illicit design; but if they have been within tliat distance, they are afterwards subjei't to be seized on the higli .^eas. They have then violated her laws, and have forleitoil the protection of their sovereign. The laws of the United States upon the sul>jeet of trade appear to have been frametl in some measuro after the model of the Engli.sh statutes ; and the twenty- ninth section of the act of 1709 expressly authorizes the seizure of a vessel that has within the jurisdiction of the United States committed an act of forfeiture, wherever she may be met with by a revenue cutter, with- out limiting the distance from the coast. So also the act of 180(3, for pr()hil)iting the importation of slaves, authorizes a seizure beyond our jurisdictional limits, if the vessel bo found with slaves on board, hovering on the coast; a latitude of expres- sion that can only be limited by circumstances, and the discretion of a court, and in case of fresh pui-suit would bo actually without limitation. Indeed, after passing the jurisdictional limits of a State, a vessel is as much on the high seas as if in the middle of the ocean, and if Franco could authorize a seizure at the distance of \i leagues, she could at the distance of 20. * * * Seizure on the high seas for a bieach of the right of blockade during the whole return voyage, is universally acquiesced in as reasonable exercise of sovereign power. The principle of Ijlockade has, indeed, in modern times, been pushed to such an extravagant extent as to become a very justifiable cause of war, but still it is admitted to bo consi.stent with the law of nations when confined within the limits of reason and necessity. [XOTK 1 (rAOi: 152). citations FUoM continental WBITBUS on tub Sl'BJKCt OF SELF DKFKNSK.] Every nation may appropriate things, the use of which, if left free and common, would be greatly to its prejudice. This ia another reason why maritime powers may extend their domain along the seacoast, as far as it is possible, to defend their rights. * * * It is essential to their security and tho welfare of their dominions. (Azuni, Part I, Chap, ii. Art I, Sec. 4, page 185.) Plocque (De la Mer et do la Navigation Maritime, ch. i, pp. G-8), after discussing the limits of the territorial sea, and pointing out the great divergence of opinion that had existed on that point, remarks : "Moreover, in custom-house matters, a nation can fix at will the point where its territorial sea ends; the neighboring nations are sup- ./.J. 184 AUUl'-MKNT OF THE L'XITKD STATKS. '! mm »> -JT i:^ iV '* I posed to bi' ac(|nainteil with tlicsf rrgiilatioiis, aiul aii', ooiist'fjucntly, ol)ligt'(i to conform tliorcto. As an exainplt', we wiil content oni'sclves with <|Uotinf; the hiw of (Jcnninal Itli, yi-ur II, Art. 7, Tit. 2: 'Captains and ollicers and otlicr funi^tioiiario.s directing the cus'oni-hou.sL', or the commercial or mivnl service, nniy .search all vessels of less than lUO tons burden when Iviiig at anclioi- or lacking witliin lour leagues from the coast of France, -asi > of t/.'j /(((J^'()>- excepted. If such vessel:; have on board any goods whose ..nportation or exportation is prohibited in Franco, the vessels shall Ik; contiscated as well as their cargoes, and the captains of the ves.sels shall be re(|uircd to pay a fine of 500 livres." " Says Pradicr-Fodere (Traite de Droit Internationale, "Vol. ii, sec. C;{:J) : " lnde|»endently of treaties, the law of each state can deterniino of its own accord a certain distance on the sea, within which the state can claim to exercise ])ower and jurisdiction, and which constitutes the terri- torial sea, for it and for those who admit the limitation. This is especially for the surveillance and control of revenues." And in a note to this passage he says : "In effect, in the matter of revenue, a nation can fi.\ its own limits, notwithstanding the termination of the territorial sea. Neighboring nations are hehl to recognize these rules, and in consequence are considered to conform to them. On this point the French law of the 4th Germinal, year II, can be cited.*' This law fixes two myriametei-s, or about twelve Kuglish miles as the limit within which vessels are subject to inspection to prevent fraad on the revenue. La Tonr (De la mcr territorialc. page 230). speaking of the exterri- torial effect of the French revenue laws at four leagues from the coast, thus justifies them. " Is not this an excessive limit to which to extend the territorial sea 'f No, we assert. At the present day this question will hardly bear dis- cussion, on account of the long range of cannon ; and though we should return to the time when that range was less, wo should still undertake to justify this extension of the custom-house i-adius ; and for this it is sufficient to invoke the reasons given in matters of sanitary police. It does not involve simply a reciprocal concession of states, or a tacit agreement between them, but ?t is the exercise of their respective rights. * * * " The American and English practice allows the seizure, even outside of tho ordinary limit of the territorial waters, of vessels violating the custom laws." Says M. Calvo (Lo droit international, sec. i-i-t) : " In order to decide the question in a manner at once rational and practical, it should not be lost sight of at the outset that tho state has not over the territorial sea a right of property, but a right of inspection and of jurisdiction in the interest of its own safety, or of the protection of its revenue interests. " The iiature of things demonstrates, then, that the right extends up to that point where its existence justifies itself, and that it ceases when the apprehension of serious danger, practical utility, and the possibility of effectively carrying on definite action cease. " Maritime states have an incontestiblo right, however, for the de- fense of their respective territories against sudden attack, and for the protection of their interests of commerce and of I'cvenues, to establish ».i itfi ArPENDIX TO PAIIT THIRD — DIVISION II. 185 iisi-qucntU-. (mrsclvt's ' Captains ISC, or tho II lUO tons Tl tho COftSt 1 board any the vessels the vessels see. G:{o) : uiiuo of its state eau ?3 tho terri s espeeially own limils. MMj?hborinp ! cousidereil I Germinal, lilea ns tho raud on tho the exterri- » the coast, itorial sear* bear dis- we should undertake this it is police. It or a tacit respective ren outside olating the ational and state has inspection rotcction of extends up IS when the ssibility of 3r the de- ,nd for the establish an active inspection on their coast and its vicinity, and to adopt all neci-s- sary nu-asnies for shuttini; off access to their territory to those whom thov may refuse to receive, wlitre tliey do not conform to established regula- tions. It is a natural consequence of the general principle, tliat whatever anyone shall have done in behalf of his self-defense he will be taken to have done ri|;htly. "Every nation is thus free to establish an inspection and a polici- over it.s co.'.Rts as it pleases, at least where it has not bound itself by treaties. It can, according to tho jmrticnlar coiulitions of the coasts and waters, fix the distance correspondinnfly. A ccunmon tisapo has established a cannon shot as the distaiu-e which it is not permitted to overleaji, except in the exceptional case, a line which has not alone receiveil the approval ot" (Irotius, llynkershiik, llaliana, and Kluber, but has been coniirmed likewise by the laws and treaties of many of the nations. ''Nevertheless we can maintain further with Vattel that the domin- ion of the state over the neighboring sea extends as far as it is neces- sary to insure its safety, and as far as it can make its power res|iccted. And we can further regard with Rayneval the distance of the horizon which can be fixi I upon the coast as the extreme limit of the mi-asure of surveillince. Tho line of tho cannon shot, which is geneially regarded as of comn; )n right, presents no invariable base, and the line can be fixed by the laws of each state at least in a pi'ovisional way." (Heffter, Int. Law, Sees. 74-75.) Bluntschli says (Int. Law, Book iv. .sec. ;122) : *' Tho jurisdiction of the neighboring sea does not extend further than tho limit judged necessary by the police and tho military authorities." And section 342 : •' Whenever tho crow of a ship has committed a crime upon land or within water included in the territory of another state and is pursued by judicial authorities of such state, the pursuit of tho vessel may be continued beyond tho waters which are a part of the territory, and even into tho open sea." And in a note he says : " This extension is necessary to insui-e the efficiency of penal justice. It ends with the pursuit." Camazza-Amari (Int. Law, sec. 2, chap. 7, page 60), after citing from M. Calvo tho passage quoted above says : " Nevertheless states have a right to exact that their security should not be jeopardized by an easy access of foreign vessels menacing their terri- tory ; they may see to the collection of duties indispensable to their existence, which arc levied upon the national and foreign produce, and which maritime contraband would doubtless lessen if it should not be suppressed. Fiom all these points of view it is necessary to grant to each niition the right of inspection over the sea which washes its coasts, within the limits required for its security, its tranciuillity, and the pro- tection of its wealth. * * * States are obliged, in the interest of their defense and their existence, to subject to their authority the sea bordering the coast as far as they are able, or as far as there is need to maintain their dominion by force of arms. * * * ^.. w ;■ h 186 AfttiUMENT OF THE UNITED STATES. m ■ " It is necessary tu coucodu to every nation a right of sarveillanco over tiiu bordering Hea within the limits which its security, its tran- quillity, and its wealth doinand. • • • Baldo and other authorities place the lino at 60 miles from the shore. Gryphiandor and Pucninez, at 100. Locennius, at a point from which a ship can sail in two days. Bynkorshouk niaintiiinH that the territorial sea extendH as far as the power of artillery. This limit is regarded as the correct one, not becanso it is founded on force, but because it is the limit necessary for tbo safety of the state." [NOTI 1, FAOK 153. TUB OAKOLINB CA8B.J Mr. Webster said, addressing the British Government : "Under those eircmstancea, and under those immediately connected with the transaction itself, it will be for Her Majesty's Government to show upon what sUite of facts and what rules of internatiunal law the destruction of the Carolim is to bo defended. It will be for that Govern- ment to sliow a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation. " It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or exces- sive ; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was imj)racticiblo, or would have been unavailing." (Webster's Works, Vol. VI, page 2G1.) Lord Ashburton in his reply says : " Kvery consideration, therefore, leads as to set as highly as your Govern- ment can possibly do this paramount obligation of reciprocal respect for the independent territory of each. But however strong his duty may be, it is admitted by all writers, by all juri.sts, by the occasional practice ot all nations, not excepting your own, that a strong overpowering necessity may arise when this great principle may and must be suspended. It must 1)0 so, for the shortest possible period during the continuance of an admitted overruling necessity, and strictly confined within the narrowest limits imposed by that necessity. Self-defense is the first law of our nature, and it must be recognized by every code which professes to regu- late the condition and relations of man. Upon this modification, if I may so call it, of the great general principle, we seem also to be agi*ecd ; and on this part of the subject I have done little more than repeat the sentiments, though in less forcible language, admitted and maintained by you in the letter to which you refer me. " Agreeing, therefore, on the general principle, and on the possible ex- ception to which it is liable, the only question between as is whether this occurrence came within the limits fairly to be assigned to such ex- ceptions ; whether, to use your words, there was that necessity of self-defense, instant, overwhelming, leaving no choice of means, which preceded the destruction of the Caroline while moored to the shore of the United States. Give mo leave, sir, to say, with all possible admi- ration of your very ingenious discussion of the general principles which are supposed to govern the right and practice of interference by the people of one country in the wars and quarrels of others, that this part of your argument is little applicable to our immediate case. If Great Britain, America, or any other country, suffer their people to fit oat APPENDIX TO PAIIT TUMID — DIVrSION H. 187 sarvoillanco ;y, its tran- r uuthoritios id Pucainoz, n two days, far as the , not bocaiiHo )r tbo safety ily connected ivernment to onal law the that Govern- ning, leaving !S of Canada, a to enter the able or exces- msc, must be ast be shown > Caroline was 8 Works, Vol. < your Govern- :al respect for duty may bo, ,al practice ot iriiig necessity ided. It must nuance of an [the narrowest it law of our isses to regu- [on, if I may so reed ; and on lC sentiments, [by you in the Lo possible ex- ps is whether to such ex- necessity of aeans, which Jthe shore of lossible admi- liciples which ence by the khat this part ie. If Great lie to fit oat expeditions to take part in distant ({iiarri'is, such conduct may, accoi-d- ing to the fireumsttuHM's of cacli i-aso, 1h» justly niattor of complaint, and po-haps these tninsactions have gcnemlly buon in late times too nmch overlooked or i-onnived at. " Hut the case we are considering is of a wliolly difTercnt description, and may be be.st tlctermined by answering the following questiun : Sup- posing a man standing on ground where you have no legal right to fol low him, has a weapon long enough to reach you, and is striking you down and endangering your life, how long are you bound to wait for the assistAnce of the authority having tlio legal power to relievo you P Or, to bring the facts more immediately home to the case, if cannon are moving and setting up in a battery which can reach you, and aro- actually destroying lite and projierty by their fire ; if you have remon- strated for some time without effect and see no prospect of i-clief, when begins your right to defend yourself, should you have no otliei- means of doing so than by seizing your assailant on the verge of neutral ter- ritory y " (Biitish and Foreign C'orrespondorco for 1841, 184'J, Vol. 30, page lOO.) Lord Campbell says of this case in his autobiography (Life, etc., edited by Mrs. Hardcabtle, 1881, Vol. 2, p. 118) : " The affair of the Caroline was much more ditticult. Even Lord Grey told ine he thought we were quite v.rong in what we had done; bat assuming the facts that the Cari)line had been engaged and when seized by us was still engaged in carrying supplies and military stores fi-om the American side of the river to tlio rebels in Navy Island, part of the British ten-itory, that this was permitted or could not be pre- vented by the American authorities, 1 was clearly of opinion that althougli she lay on the American side of the river when she was seized, we had a clear right to seize and to destroy her, just as wo might have taken a battery erected by the rebels on the American slioro, the guna of which wore tired against the Queen's troops in Navy Island. I wrote a long justification of our Government, and this supplied the arguments used by our foreign secretai-y, till the Ashburtou treaty huslied up tho dispute." Mr. Calhoun said of it in a speech in the Senate in whicli he insisted that tho capture of the Caroline in American waters was unjustifiable, because unnecessary : " It is a fundamental principle in the law of nations that every state 01 imtion has full and complete jurisdiction over its own territory to tho exclusion of all others, a principle essential to independence, and therefore held most sacred. It is accordingly laid down by all writers on those laws who ti-eat of the subject that nothing short of exti-eme necessity can justify a belligerent in entering with an armed force on the territory of a neutral power, and when entei-ed, in doing any act which is not forced on him by the like necessity which justified the en- tering." [note 1 (PAOK 156). NKOOTIATIOK BETWEEN CKtTBD BTATBS AND GBBAT BBITAIX BBLATITK TO TUB NEWFOUNDLAND FI8HEBIE8.] Mr. Adams says (documents relating to the negotiations of Ghent, page 184) : " That fishery, covering the bottom of the lianks which surround the island of Newfoundland, the coasts of New England, Nova Scotia, tho Gulfs of St. Lawrence and Labrador, furnishes the richest treasure and [81 7 j N ■'•;<- Ill litH 188 AlUilMKNT OK TIIK INITKI) .STATKS. f I- -; the luoHt Ixiioficont tribiito llio ocean |)iiyH to finlh im lliix fi'rrn(|Hi'Otis ^1oIm>. Hy tin- plcnsiifo of tlio Creator of eiiitlis niid souh, it liiis htoii ronHtitntcil in its phyHJcal niitni'o oni> fisliory, o.xtiMitliii!; in tlit' optMi HOBH nif)UMni the roast, spniulinp aloiiij thi' whoh; northern roast of tlii^ continent. •nil insinniiliiij; ilsell' into all tlie hays, creeks, and Iiarl)ors to tlio Vf»ry iHirdecs of the shoi-i's. For the full enjoyment of an ('(pial sliaro in this fishei'V it was necessary to have a nearly general access to everv part of it. »■ * • " Hy tlio law of nature this fishery lielonfreii to the inhuhitants of the regions in tin neighborhood of which it was situated. My the con- ventional law of Kurope it helongcd to tlu" European nations which hail formed settlements in tiioso re/'ions. France, as the first principal set- tler in them, had long elainu'd exclusive right to it. (treat Mritain. inovecl in no suiall degi-ee by the value of the fishery itself, had made the conquest of all those regions from Fnince (by force), and had lim- ited, by treaty, within a narrow compa.ss the right of Krance to any sliare in the lisheiv. Spain. uj)on some claim of prior di.'icovery, liad for some time enjoyed a share of the tisliery on the banks, l)ut at 'he Inst treaty of peace pritn* to the Ameriian llevoiution had expressly ivnounced it. At the commencenienJ of the American Revolution, therefore, this fishery belonged e.vclusively to the llritish XdtiDii, sub- ject to a certain limited participation in it reserved by treaty stipulations to FlTVUCO." He further cites (page 18')) an act of the Hiltish Parliament pas.scd in March, 177."i : "In March. 177o, the Briti.>]i Parliament p.assed an act to restrain the trade and commerce of tin- provinces of Masfiociiiisetts Hay and New Hampshire, and colonies of Conuecticut and Klhido Island, and Provi- tlenco Plantation in North .\nieriea, to Great Hritain, Ireland, and tlie Hritish Islands in the Wost Indies, and to prohibit such ])rovinces and colonies from carrying on any fishery on the baiiks of Xewfoundlaiul and other jtlaces therein mentioned, under certain conditions and limi- tations." And the ivniaiks of Lord North in Iningiug in the bill : "In particular he said that the fishery on the banks of Newfouiul- land and the other banks and all the others in America was the un- doubted right of Great Uritain ; tlieirj'ore iff vu'ijiit ilispwif of tli'iii us ice plras'id." Mr. Adams again observes (page 187) : "The whole ilslniij (^with the exception of the reserved and limited right of Franco) was the e.vdusin- pnt])citij of the British lOmpire. The right to a full participation in that property belonged by the law of nature to the ))coj)le of New England from their locality." And in support of the validity of this pi-oprietarv right, he quotes (page 107) the jiassage from Vattel heretofore cited. ( Vattel. 1 Ch., '2'.i.) He cites also (page 109) from Valin (Vol. 2, page (j!M) in respect to these fisheries as follows : " As to the right of fishing ujton the bank of Newfoundland, as that island which is as it were the seat of this fishery then belonged to Fi-ance, it was so held by the French that other nations could naturally fish there only by virtue of the treaties. This has since changed by- means of the cession of the island of Newfoundland made to the English by the treaty of Utrecht; but honir, XIV, at the time of that cession, made an express reservation of the right of fishing upon the bank of Newfoundland, in favor of the French as before." AI'I'IINIHX TO P.MiT TIIIItD—DrVISIoN- H. 18!) ti'rmt|iu'OUH it liiih lici-n 1 tilt' Dpeii titutlf fiitm t coiiliiifiit, ors to llu) t'cjiml !-liaro •t'HS tl) fVl'l'V lialiiliiii*." of \\y till- coll- ,s wliirli liiiil riiH'iual si't- I'ut Hritiiiii. f, lia>l iiuulo 11(1 Imil liin- iiico to any icovo'.-y, liail , l)ut at till- itl ox]trLssly Ri'volutioii, Siitloii, siib- f stipulations imeiit pashC"! t, to I't'straiii Jiiy and New iiiul Provi- iiul, ami tlic roviiiees ami iwfouiuUaiul IIS and linii- XtMvfoniiil- Wiis the uii- ' iif thrm us iiiul liiiiiu'il ;iiipive. The the law of it. ho quotes 1 Ch., 2:5.) in leapeet to inil, as that belonj^ed ti» (1 naturally cliand her pretensions to a |)arli(ipat ion ii Ipse lishcrics at the rlosi« of tlie prcci-din-: war, am! at llu- end of this, tl adjiieiMit continent ami islands licin;: divided between the United Stat,. nnd the Knu'lish and Freneli, for the last retained two small islamh es merely for this objeet, the riu'ht of tishinf,' al so. was appropriated to them And he . FIlKNi 11 I.KfllSI.ATIOS- FOU lIMXK.SrK rUOTKi TIOX.] . Law or deereo of Auijiist t», l"itl, Title in, Arliele i: " All j,'oods pro- hibited adniissioii wliieh may be entered by sea or by land .shall be eonlis- cated as well as the ships under fifty tons, ete." Article II : "All prohibited iroods shall be accounted for according to the terms of the above article, * * * which th' i nt'iuie ollieers shall have found within the two leagtu's of the coasts i •. vessels under fifty tons." . Title 1;J of the police in general, article G : '• The inspection of the ve8.scl3, tenders, or of tlie sloops, can take place at sea or on *! • rivei.-.." Article VII ; "The officers of inspei^tions on the saiu tendi-s can visit the vessels under fifty tons which nuiy be found at s-ea at the ilistanco of iwo leagues .n .ii the const, and to receive the bill.s of 'idiiig concerning their cargo. If these vessels arc loaded with proliil)itivo goods the Hi 1,; ire of the same shall bi« made, and confiscation shall be pronounced iigaiust the master of the vessel with a penalty of live hundred pounds." Law or dcree of the 4th fierminal, year '2d, ^[areli 24, 17!*4, relating to Xnaritimo commerce and revenue: Title II, article;?: '"The captain arriving within the four miles of t'lo coast will submit when rci|uired,a cojiyof the manifest to the custom-housj oflicial who will come on board, nnd will viae the original." Article?: " The captain and the other ofllccrs on the rovcnuo vessels may visit all ships under one hundred tons which arc at anchor or luffing ' t ■\ . ; \ } \ ■ jL.A. Treaty, are riictical pur- ;ioii the two Treaty, the and capture le possession authority in Iff industries V the vessels t in the seal herd on the e purpose of I assumes that stion of juris- o£ the whole ticular, and, le seals from, ■vent of such jy any exer* preservation ; iion of both' ity is not, in rhich may be the exclusive J position that blishment of Ifur-seal in or 111 then deter- iimits of the 1 such regula- CONCURRENT REG I' L ATIONS. 191 The reasons for leaving the consideration of concurrent regulations thus broadly open are manifest. In all judicial controversies, except such as plainly involve nothing more than the qucstioii of the right to a money payment, the particular relief which may be best suited to the exigency of the ease can never be accurately perceived until all the rights, both principal and incidental, are ascertained ; and, conse- quently, the character and extent of the relief are left to bo determined along with, or subsequent to, the determination of the merits of the case. This was especially true of the present controversy in the form •which it assumed at the time of the Treaty. The questions at that time had received a diplomatic treatment only. This disclosed thiit several novel legal questions were involved concerning which the high contract- ing parties were not agreed. But they were ngi-ced that, whatever might be the true solution of such questions, there was one object ex- tremely desirable to both, namely, that the fur-seals should be preserved from the peril of extermination. If it were determined that the United States had no property interest in the seals, and no exclusive jurisdiction in Bering Sea, concuirent regulations would certainly be necessary. And if it were determined that they had no property interest, but had the exclusive jurisdiction, it might yet be that the inadequacy of a protection, however efficiently exerted, which would be limited to theso waters, ■would still renJer concurient regulations necessaiy to complete protec- tion. And, even if it were determined that they had both the requisite jurisdictijjn and the property interest, there might be a question con- cerning the action which they might talte to protect such interest in the Pacific Ocean, south of Bering Sea. Satisfactory conclusions upon all these questions could only be had by an attentive examination, aided by a full production of proofs, not only of the questions of right, but also of the whole subject of sealing, and of the practical measures which might be requisite to assure the protection which both parties agreed to bo supremely desirable. The single event which appears to have been regarded as possibly rendering it unnecessary to consider the 'question of concurrent regulations was a determination that the United States possessed the exclusive jurisdiction in or over some part of Bering Sea. A protection enforced by the United States in the exer- cise of such an authority might be sufficiently effective for the agreed purpose of preservation, and render any concnri-ent action on the part of Great Britain unnecessary ; but this was uncertain. Hence the lan- guage of the Treaty, carefully shaped so as not to attempt anticipations w CCSTZTTTTTTTrT'T?!-' I it •] I'" ;t • H- mi r •pi,: ■ *■ ^ ' w:i V • ' -.:'■%,■ fc* 192 AUUUMEXT OF THE UNITED STATE.s. which might be disappointed, made it the duty of the Ti-ibuual, " if the determination of the foi-egoing questions as to the exelusive jurisdio- tion of the United States shall leave tho subject in suck n position that the concurrence of (Jreat Britain is necessary to tho establishment of regulations," etc., to proceed and "determine wliat concurrent regula- tions outside the jurisdictional limits of the resi)ei'tive Governments ivrc necessary," etc. Tho first question which arises hero is, what is the scope of the in((uiry which the Tribunal is called upon to make ? Is it to deter- mine what regulations consistent with the pnrsnit of pelagic nealiiig are necessary r Js it thus, or in any other way, limited in its incjuiry? ft may be urged that we are at liberty to look into the diphtmatic communications which preceded the treaty and led to it, with the view of moi'o clearly ascertaining what the precise intent in this and othfer respects was, and that, when these are taken into view, it appeal's that all that the United States claimed was tliat the operations of the Canadian sealers should be placed imder restrictions, such as those afforded by a close time and prohibited ui-eas. It is freely admitted that when suggestions were tirst made for the. settlement of questions gi-owing out of tlio depredations of the Cana- dian sealers and the seizures of vessels employed for that purpose, it was believed by the United States that tho substantial enjoyment by them of the rights acquired by their acquisition of Alaska from Russia might bo secured, and the herds of seals protected sufficiently for that purpose by some scheme of i-estriction in place or time, or both, of pelagic sealing. And it is believed tiiat the Government of Great Britain at the same time supposed that such restrictions would suffice for the preser- vation of the herd. But the whole subject was at that time novel and vei-y imperfectly understood in either country. The cause, pelagic sealing with its re- sults, which gave rise to the complaints on each side was recent, and. had not assumed the proportions which it subsequently exhibited, nor was the actual magnitude of it at that time known. Nor had the habits of the seals, their migrations, and the places at which they might from time to time be found, upon which the questions respecting rights of pi*operty in them so much depend, been studied and fully ascertained. . The United States had, from the first, a conviction that their industry, which came to them as a part of their acquisition from Russia, of cher-; ishing and protecting their seals upon tho Pribilof islands, to the end- i M rrei' rOXC'lRRENT REUrLATIONS. 193 iial, " if the vc jnnBdic- osilion that liahment of ent regula- tovevnmentK coi»e of the it to deter- (• staliiiy are its iiKiuiry? D (lil»lomatic ith the view is ami othfer )eavs that all he (Canadian afforded by a made for the. jf the Cana- it purpose, it tjiijoymeut by from Rusaifl jntly for that ■th, of pelagic ritain at the r the pi-eser- [y imperfectly with its re- Is recent, and. jxhibited, nor liad the habitK might from ling rights of ly- ascertained, leir industry, issia, of cher- n, to the end that they nii^fht appropriate to themselves the annual increase without impairing the sti ok, could not be destroyed by the indiscriminate and unrestricted hlaughter of the animal upon the seas. What the precise nature of their right was, an I what its limits were, had not been sub- jected to thorough consideration. That they could ])revent marauding npon the islands themselves and in the waters immediately surround- ing them, and also any hovering in the neighbourhood of them for such purposes, seemed too plain for (juestion. And in view of the circum- stance that tliis industry had been cherished by Russia for half a cen- tury', and that the claims to prohibitive jurisdiction over Bering Sea had been for a similar period asserted, and, as was believed by the Govern- ment of the United States, for ihc most part ac(iuiesced in, it seemed to the Congress of the I'liited States a reasonable exercise of natural rights to prohibit the capture of fur-bearing animals in the eastern half of Bering Sea, and laws were enacted by that body designed to effect such prohibition. These laws were not limited in their operation to citizens of the United States, but might be enforced against the citizens of other nations ; •and -while, by their terms, they assumed to bo opei-ative only over the Ti*rritory of Alaska and "the waters thereof," their language was in- terpreted to include so much of Bering Sea as was embraced by the terms of the cession from Russia to the United States. At tii-st there was little, if any, occasion for any attempt to enforce tiic prohibitions of this legislation agaii\st any persons engaging in pelagic sealing. Tt was not until the year 18S(> that this mode of pui'suit had been prose- cuted sufficiently to attiact the serious notice of the United States ; but in that year quite a large number of vessels were fitted out for this purpose from Canadian ports on the northwest coast, and entered Bcr- ing Sea. Some of them were captured by armed vessels of the United :Statcs, and demands for the release of them were made by Her Majesty\s Government. ■ In the discussions which followed those demands, the right of the United States to make such captures was asserted by them and den'ed by Her Majesty's (Jovcrnment ; but the destructive tendencies of the pui-suit thus sought to be prevented by the United States was substan- tially admitted and regarded on both sides as threatening practical exter- mination of the animals. This would have effected most disastrously the interests of both nations. Both would thereby lose, in common with the worhl at large, the berefita derived from the useful products of thai h i- iuv in M I'll , V ' i; 1 . I'' :■ i ! ' ' i' ' ►-, ' - ■.}■ fll* pi^' 'J, ()■ h - M Lj !*. ! il- ' i'f ! 1 ; 'v ;r.: •1 4i ::i V: h' ,^,.f Sf •104 ABGUMENT OF THE UNITED STATES. nnimnl. And while the United States would be Rubjeetcd to ft particular injury in being deprived of the profit coming from the sealing industries »on the Pribilof Islands, Canada, one of the dependencies of Groat Britain, "would lose the supposed benefit of pelagic sealing ; and England would bo subjected to the far greater loss which would come from the breaking up of her industry in the manufacture of the sealskins, in which some thou- sands of her people were engaged. These considerations natumlly led to the suggestion that both nations possessed such a common interest in the pi-eservation of the herd as to make it expedient for them to make an effort to reach some agreement designed to bring about that result, which, if successful, would not only terminate the existing dispute, but subserve the permanent interests of the parties. In the absence of full and correct information by the diplomatic rep- I'esentatives of the two governments of the nature and habits of the animal and of the laws governing its reproduction and increase, the peculiar device for the preservation of wild animals by restricting their slaughter to a limited time was suggested, and apparently accepted on Ijoth sides, almost immediately, as being likely to furnish a sufficient safeguard against the apprehended destruction. The time during ■wViich such a restriction should bo enforced, the only point upon which difference of opinion might have been anticipated, was at once agreed upon, and there can be little di .ibt that a formal agreement would have been immediately framed and ratified, had not Canada, moved, presum- ably, by the remonstmnces of her pelagic sealers, interposed and pressed an objection.' It is fortunate, in the view of the United States, that such an agreement was not consummated. It would have proved wholly illusive. The foundation of this concui-rence in the device of a cloxe soamn was the predominating necessity of preserving the animals from extinction; and there is no reason to suppose that, had it then appeared that ab- solute prohibition of pelngic sealing was requisite to that end, such pro- hibition would have been acceded to in the absence of remonstrance from Canada, originating in the present interest of persons engaged in pelagic sealing, an interest which regarded with comparative indiffer- ence the eventual fate of the animal. It is not to be supposed that the enlightened statesmanship of Lord Salisbury, unembarrassed by any ' Diplomatic Correspondence, Case of the United States, Appendix, Vol. I, pp. 175 to 183, inclusive. ' Il I ' '1 COXCURRKNT REGULATIONS. 195 particular ; industriea ?at Britain, d would be -reaking op some thou- (otli nations herd as to D agreement lid not only interests of (lomatic i-ep- abits of the increase, the tricting their accepted on h a suflBcient time during b upon which once agreed t would have >ved, presum- and pressed States, that Lroved wholly ose season was extinction; Hvcd that ab- ^nd, such pro- I remonstrance Is engaged in itive indiffer- Lsed that the Issed by any \>\. I, pp- 175 to ilifficulty growing out of the opposition of a great dependency of the British Empire, would have insisted for a moment upon a continued in- dulgence of the pursuit of pelagic sealing, had it appeared that such a course would have involved, in the near future, the practical extermination of the fur-seals. He surely would not have sacriBced the interests of the world and the very large special manufacturing interest of Great Britain, in order to save for a few years a pursuit which was rapidly working. the destruction, not only of the great interests above referred to, but also of itself. The failure of the negotiations referred to left the situation involved not only with the existing dispute, but aggravated by the certainty that fresh causes of irritation and contention would constantly arise ; and the pi-oportions of the controversy continued to increase until the peaceful relations of the two governments became most seriously threatened. A renewal of negotiations ensued, which led to the ratification of the Treaty under which the present Tribunal has been constituted. Whatever may have been the effect of the later negotiations in separating the parties more widely upon the main questions of right involved in the controversy, there is one point upon which, having been substantially agreed at first, they were brought more and more into unison, namely, the predominating necessity of preserving the seals. The Seventh Article of the Treaty calls upon the Tribunal to determine simply " what concurrent regula- tions outside the jurisdictional limits of the respective governments are necessarif to the proper protection and preservation of the fur-seals." Fitness for the accomplishment of that end is the only description in the Treaty of the regulations which this Tribunal is to ascertain or devise. After the article had assumed its present form in the negotia- tions, some effort was made by Lord Salisbuiy to restrict its effect to confer upon the Tribunal the full discretion which its terms import ; but this was resisted on the part of the United States, and the attempt was abandoned.' The foregoing brief review of the negotiations will serve to show that the authority and discretion of the Arbitrators in respect of concuwent j-egulations is wholly unrestricted, except by the single condition that they are to be operative only outside of the municipal jurisdictions. There is not only no language importing that some form or degree of that pursuit is to be retained, but there is no implication even to that ' Diplomntic Correspondence, Case of tlie United States, Appendix, Vol. I, pp. 339 to 3 J 5, inehisirc. lor. ARGUMENT OF Till: UXITED STATE.S ill ' :•:■ effect. U is not suid thnt they are to be i-egnlations of jwlagic ioaliuy. They arc rcfjulations "outside t»f the jni'isdictional limita of the respectivt; governments," and "for the proper protection and preservation of the fnr.seai." We are thus brought to the main question : What rejjulatioiis are nrc^-ttna nj ? This depends upon. a consideration of the nature and habits of the seals, the perils to which they are exposed, the causes wliich operate to diminish their numbers and prevent their reproduction, and the con- trivances eah'ulated to be most effectual to prevent the operation of those canses. It will be at once perceived that such a discussion must be, in great part at least, a simple repetition of that already gone through with ujion the question of the claim of a propei-ty intei-est. This comes from the circumstance, wliicii we trust has been made sutliciently manifest, that the institution of property is but the result of the solution by Boeietv of very much the same ((uestion which we are now proposing to enter upon. Human society has hnd before itself repeatedly or rather constantly, from its tirst beginnings, this same question — what iTgnldtwun an- iitci.-siirii fit prrsrivr tin- ni'i'fiil races of aiii'^als — and the uniform solution hiis b°cn to devise and adopt that particular class of regulations, which, taken together and enforced, constitute th' instituti'on of private proprrlij and its attendant safeguards, .so far as that expedient is possible and effectnal to the end ; and it has been found thus possible and effectual in tho case of all those animals which voluntarily so far subject themselves to human control as to enable tlieir masters to appropriate the increase without destroying the stock, in respect to those races which can not be subjected to iiuman control the solution has been to devise that class of regulations simply restrictive of slaughter, of which ordinary game laws are the types. Inasmuch as it is indisputable that the fur-seals of Alaska are ani- mals which submit themselves to human conti"ol, .so far as to enable the proprietors of the soil to wliich they resort to take fcr haman use the utmost increase without destroying the stock, the question what rajii- lationa are necessary for their pi-oper protection and preservation is at once and finally answered. There is but one regulation needed "out- side the jurisdictional limits of the respective governments," and that is that all pelagic sealing by the citizens of either nation bo absolutely prohibited. Unless the uniform experience of human society from tho earliest times in respect to such classes of animals is not likely to be repeated, or unless it seem probable that this tribunal has the wisdom fOXCl'RRENT REGI'LATIDX.S. 197 f.ri 4 pvlagic umliiKj. : the rcHpectiyo ■rvntion of the fefrnlatioiis aro ture and habits s which operate 1, and the con- eration of- those solute prohibition is necessary. But it may still bo contendetl that this mode of slaughter may, without absolute pi'ohibition, be so restricted as to be compatible with tho preservation of the race. This position is assioned in the Report of the Commissioners of Groat Britain, but no proofs are adduced or reasons ofi'ereil by them, to make gooc" their assumption. The first point, therefore, wliieh should engage our attention is whether uKy allowance of pelagic sealing, however restricteil in place or time, is compatible with the permanent existence of tlio seal herd. By the tenns "any allowanee," we do not mean the least measure of forinal permission, such, for instance, as would allow the pursuit to be carried on during the months of December and .January only, when the seas are so rough, and the seals found with such difficulty that there is no temptation to engage in the enterprise, but such jiermission as would afford some chance of success, and tempt undertakings that would result in the capture of considerable numbers of seals. Any license more restricted than this would be wholly unimportant as a license, and not worth discussion. It would amount for all substantial purposes to absolute prohibition, and should be viewed as such. Tho question to which a clear answer should first be given is, " What causes a diminution of tho herd > " It might at first be hastily supposed that any killing of seals would work 2)ro tauto a decrease of the nor- mal numbers ; but a moment's reflection will show that this is not neces- 198 ARGUMENT OF THE UNITED STATES. > t ;»■,■• ■I . sarily true. The animal being polygamous, and eacli male sufficing for from thirty' to fifty or more females, we have only to apply common bnm- yard knowledge in order to learn that under normal conditions there must always be produced a large number of superfluous males, which, if not taken away, would, of themselves, by their tierce and destructive contests for the possession of the females, not only destroy themselves in large numbers, but greatly interfere with and obstruct the work of reproduction. This superfluity of males, therefore, may be taken not only without injury, but with positive benefit to the herd. It is obvious that it is only by dimini»ldng the hirthrafp that the normal numbers of the herd ■can be injuriously affected. If the seals were not interfered with by man the herd would increase in number, until by the opei-ation of natural •conditions tending to restrict increase, and which operate with accu- mulating force as the numbers become large, such as deficiency of food, want of convenient room on the breeding places, the occupation of the males in destructive warfare among ^themselves, which must greatly interfere with the work of reproduction, the deaths become equal to the births. The numbers of the herd will, other things being unchanged, then remain constant. This is so clearly explained in the Report of the Commissioners of the United States that it is unnecessary to further enlarge upon it here. ' Disregarding the causes, other than the inteiference of man, which may ■operate to reduce the numbers of the herd, such as killer- whales or other enemies, or insufficiency of food, or disease, mattei-s concerning which wo have little or no knowledge, it is manifest that the killing of a single breeding female must, i^ro tanto, operate to diminish the number of births and thus tend towards the destruction of the animal. We need go no iurther. The conclusion from this single fact is certain and irresistible. Pelagic sealing means the killing, principally of females and breeding females ; and if practiced to such an extent as to sacrifice such females in considerable numbers, must, in proportion to the numbers sacrificed, work a destruction of the herd ; and the question when the destruction will be so complete as to amount to a sweeping away ^f the seals as a subject of value in commerce is a question of time only. It is respectfully submitted to this Tribunal that right hei-e is an end of legitimate debate. Any further discussion must relate to a question how far man can tamper with the laws of nature without incurring an injurious penalty. The answer of a tribunal bound to take notice of ' Case of the United States, pp. 34G 350. v' I. ! CONCURRENT REGULATIONS. 199 ■il ufficing for mmon bani- i there must 'liieli, if not tive contests ves in large 'epi"oduction. »nly without us that it is of the herd •red with by on of natural 3 with aceu- icncy of food, pation of the mast greatly I equal to the ,g unchanged, Report of the try to farther i,n, which may liales or other ling which we ,g of a single iber of births e need go no id irresistible. eding females ; in considerable a destruction [so complete as ^e in commerce bei-e is an end to a qnestinn incarriug an lake notice of and administer the law of nature should be instant and decisive that he can not tamper with them at all. His sole business is to ascertain and' obey them, well knowing, as he does, that any violation of them entails, with the certainty of fate, its cori-esponding punishment. But, notwithstanding, let the inquiry hoic soon the destruction would be complete be pursued. And, for this purpose, let it be assumed that the- present magnitude of the pelagic catch, and the consequent destruction of females, be continued. That catch amounted in 1891 to 68,000, according to the Report of the British Commissioners,' and the number of victims dying from wounds and not recovered is not included. If wo knew what the number of breeding females in the herds was at the same time, some ground for conjecture would be furnished. But of this wo are wholly ignoi-ant. We do not know the numbers even of the whole herd at that or- any other time, still less the number of breeding females. All conjectures upon tliese points are wild and untrustworthy. But there are some facts Avithin our knowledge which throw a certain measure of light upon the inquiry. We know something concerning the average dmfts made by the Russians during their occupation of the islands, and which wero confined to nonbrt'eding males. According to the Report of the British Commissioners the average annual di-aft for the eighty-one years of Russian occupation was 34,000.* But inasmuch as this includes long periods of abstinence made neces- sary by the depletion of the herd, from exceptional or unknown causes, it would probably be nearer to the truth to place the usual draft un- der the Russian occupancy at from 50,000 to 75,000. And during this period the draft was often made smaller than it might safely have been, by reason of a diminished demand in the market. The smaller num- . ber, however, would, obviously, bo less favorable to any indulgence of pelagic sealing. We also know that under the more careful manage- ment of the United States an annual draft of 100,000 was made with- out any observed serious diminution of the herd until after pelagic seal- ing had assumed large proportions. It may, therefore, probably be assumed as reasonably certain that under normal conditions, the hei-d' contains such a number of breeding females as will allow an annual taking of 100,000 nonbreeding males, provided pelagic sealing is prohibited, and that this draft of 100,000 is the limit of nondestructive capture. Taking the pelagic catch of 1891, which was 68,000, there must be added to it the number killed and not recovered; which, as we wish to keep re>-y I ■' ft ' Pago 207. • Page 8. I <: I. t m fa- II 1. :■( i lii^ ''•:'lf ' •■;' * 1% *iOO ARGITMENT OF THE I'NITKD STATES. far within tbc truth, may be taken as one in cvoiy four. Tlic ninn1)t>r <)8,()0U repreneiitM, thi>refi)rt', tliri-c-fonrtlis only nf tlio total killed, wliicli would thus amount to «>8,0((() plus 22,f)()(5, or !tO,Ol)<>. Of this nnmlM-r, cl)- .sorviiij; tlio same I'luitiou in statoinont, at least thrcr-fourths avo ft-nialiw, which wiiulil thus number ('iH,()()0, or tho number actually recoveri-il. How many of these may be Imrrcn females, there is no means of as- certaining. Wo have no i-oauon to nuppose that tho number is con- siderable. The question whether it would take a long or short peiioil to sweep away the herd if »'.!^,000 females were actually taken from them each year furnishes its own answer. Tho same annur.l subtraction from a conslaiitiv diminishing sum would be an aceeleratini,' ])rogross of de- structioii w liieli would soon complete its work, rmi ii' nil fahltuj of .--pals mi thf land were j>rohiiif^d. The only cause tending to moderate tho rapiility of the destruction would be the increasing difliculty of securing the aiinnal <58,UOO with tho diminishing number of females; but as this number di- minished, tlm draft would bo proportionately larger; and oven this clievk upon the destruction would be done away with by tlio increasing force emi)loyed in the polagic slaughtei-, so long as the pursuit held out a chaiici' of prolit ; and the constantly increasing price of skins — the sure result of diminution of the supply in the market — would help to stimulate the i)ro- secution of llio work. It is no longer matter of wonder that the much smaller pelagic catch, amountiug in 1882 to 12,0U0, and annually increasing until it amounted in 1887 to ."{TjOOO,' had produced an effect which became distinctly manifest at the breeding places in 188J) and 1800. by tin? difliculty of iinN( rUHKNT m;( JTLATK ».\s. 201 Till' nninbei" killed, whiili nnmlHT, <'1>- aro fiMiiiili'-«, Y rcPOvertMl. moans of as- nber is cdu- •iod tt) sweep n thcni oafli vlion from a OffflSK ot tll'- ■!)i[i of "eal" I'll t«» the va]>iility ing tlic iniiuml Ilia number ili- pen tliis fhovk icreasing fovce Id out a cliaiici' I sure result of mnlato the pvo- pelagii- eatcli, it amounted in inctly mnnifi'st of iinding tlie |e of slanglitor, .Id be //)'/■(' that ibservablo. No )ut over in the hg appeai-ances Itlie diminnlioii iS(> in tlie nuni- ,f births, would |n" the quota of lot to the pur- pose to discuss flio eFFoets of pi-'Ht u' pelagic slaughter, because overyono eoiicedes that it is dostructivo and should bo icstrieled. It is true that thiti is uvlnuited even by the ('oniniissionera of (Ircat Hrilain, nltliough tboy assert that the deHtruction is in |>art imputalile to excessive killing' of males ujhui the islands ; but it is none the less proper that, in tlie incpiiry wo are now upon, how «(«»» a ilcstruetive method of capture will result in complet*' destruction, wo should l.iifi)i with a degree of it adniitfed to bo speedily fatal. It tends to simplify the impiify by diawing attention to the point how far any suggested methods of destniotion will arrest this fatal destruction <^f females. The problem, of course, is to devise some method of pelagic sealing which will prevent this measure of destruction, or anything approaching it. Wo must here turn oui- attention to the methods suggested by the Ui'itish Commissioners. ' The)' have t'xercised their ingenuity to the ntnu)st upon this point, and if the measures proposed by tliem are iiuideipiate, wo may reasonably infer that no siillieiently effective ones can bo devised. The final lesult of their eHbrts is c ndiodied in what is termed by them " Specific scheme of Ilegulations recommended." This is contained in the following paragmphs of their Uej)ort : 155. In view of the actual condition of seal life as it ])rrsents itseli' to ns at the present time we believe that the requisite degree of protection wouhl be afforded by the appliciition of thi' following specific liiniintii)ii^ !it shore and at sea : (a) The maximum nnmber of seals to be taken on tlie Pi-iliilof Islands to be fixed at 5u,000. {!>) A zone of protected wiitors to be established, cxtendini;- to a distance of 20 nautical miles from the islnmls. (c) A closo season to be provided, i-xtending from the l.'itli Si.'ptembcr to tho'lst May in each year, durinu' which all killing of seals shall Uv pro- hibited, with the additional jnovision that no sealing vi>sel shall enter Behring .Sea before the 1st July in each year. loG. Respecting the compensatory feature of such specilic regulations, it is lielieved that a just scale of eijuivalcuL'y as between shore ami sea sealing would be finind, and a complete check established against any ur.duo diminution of seals, by adopting thi' following as a unit of compensatory regulation : For each decrease of 10,000 in the number fixed for killing on the islands, an increase of 10 nautical miles to be given to the width of ]>rotected waters about the islands. The minimum number to be fixed for killing on the islands to be 10,000^ corresponding to a maximum width of protected waters of 60 nautical miles. 157. The above regulations represent measures at sea and ashore snffi- clently equivalent for all jiractieal purposes, and probably embody or pro- vide for regulations as applied to sealing on the high sens as stringent as Avould be admitted by any maritime power, whether directly oi- only potentially interested.* 'I. ' ' Kojiort ul' 13i\ I'oin., i>. 25. 202 ARGUMENT OF THK UNITED STAT1«M. I <( The Rrni obsiTvation in relation to tluH Hug^cRted scliomo winch wi^ have to make, iH that it heginH with a rcBti-it'tion, not up(»n ju-laijic scal- ing, but upon the taking of Hoals upon the rribilof IxJands, propoHing a restriction of that to 50,000 annually. This is wholly inadmiHsible. Whatever the diHtingnishetl ComniiHsioncrH may think proper or desir- able in the way of restriction upon the action of the United States upon its own soil, it never oceuri-od to the Government of Groat Britain to ask that that nation should submit the czci*ciRe of its sovereign power to the authority of any tribunal ; nor have we any reason to Huppono that the diplomatic representatives of Great Britain, at any time in the course of the negotiations which rcHuited in the Treaty, imagined that any admissible Nchemo of regulations could embrace a limitation upon the killing of superfluous males upon the land, to the end that fomalcu might be killed upon the sea. It is enough to say that the Treaty sti'ictly confines the i-ogulatious which the Tribunal may consider to such as are " outside the jurisdictional limits of the respective govern- ments." But let this pass in the present discussion, for we desire to consider the sufficiency of the proposed regulations upon the face of them. In substance, the scheme purports to be, so far as pelagic scaling is -on- cemed, a mere interposition of additional difficulties in the prosi tion of it by restricting it in place and time. It establishes a pi-oluoited zone, with a radius of 20 miles from the islands, confmes all pelagic sealing to the period between the Ist of May and the 15th of September in each year, and forbids entrance into Bering Sea befoi*e the 1st of July in any year. There are several observations immediately suggested by this scheme, which is declared by the contrivera of it to afford " the requisite degree of protection." ill (1) In the first place it does not purport to restrict the number of seals so killed at sea to less than 68,000, unless the killing of that number is piuctically impossible under the conditions imposed. What guaranty or assurance is there that 68,000 females will not still be slaughtered under the limited conditions ? All that is requisite to this end is the employment of an additional force of vessels and men, and this is easily possible, and Avill certainly be supplied if the price r,f shins will justify it. We know this would be the case, for it must be taken as certain that the force of pelagic sealers would be largely increased at the price no winch we ju'laijic seal- propoHing a inntlmiHsible. )prr or dosir- Jnited States 3reat Britain its sovereign my reason to ■itnin, at any I tho Treaty, Id embrace a nd, to the end say that the 1 may consider I'ctive govern- re to consider jf them. In icaling is 'on- he prosi tion a prohibited les all pelagic of September st of July in •gested by this the requisite le number of f that number That guaranty )G slaughtered lis end is the this is easily IS will justify :en as certain at the price CONX'URKKNT KEUU NATIONS. 203 which HkiuH commimtled iu 1«U1, when tif^.OlH) wore tuktu at ita. Tho force had been steadily iucroaMJng for years, and there id no reason for u belief that tho progress would have ceaseil. Men will cngi-rly engage in such pursuits long after tho certainty of a profit disappears. It still has great prizes, ami it is these which tempt enterprise ami risk. Moi o than this, the scheme .scarcely interposes any additional diffinillifs. It cuts off very little of tho time during which pelagic .sealing is now or can be prosecuted with advantage. A very small additional forco would suttice to raise the capture to the amount obtainable by t he present force opera- ting without restriction. But, finally, and decisively, the scheme itself furnishes u cause certain to bring to tho work of destruction a force which would carry the slaughter far beyond tho limit even of G8,U00 fomulea p-r annum. It cuts off from the market the supply from tho breeding islands of 50,000 skins, leaving that enormous deiiciency to bo supplied by the pelagic sealers! What greater boon could they ask? If these Commissioners had deliberately set about to contrive a project for tho stimulation of pelagic sealing, and for the delight of those engaged in it, the,/ could have devised nothing so well calculated for that end as to take out of tho market 50,000 skins of the supply from the Pribilof Islaiids, when tho price stands at 125 shillings per skin,' and give the pola.(;ic sealers a chance to make up the deficiency between the 1st of May and the 1st of September, with tho privilege of entering Boring Sea on tho 1st of July, and of approaching the Pribilof Islands to a distance of 20 mi los therefrom. Inde. '^, with sucli temptations, they would greatly increase the catch over present limits, even if they were excluded from Boring Sea altogether. Their catch in the North Pacific during the present year has, it is believed, amounted to nearly that. But we must not do the Commissioners the injustice of confining criticism to a part of their scheme. It includes another feature of restriction, which is indicated as furnishing " a just scale of equivalency as between shore and sea sealing," and " a completo check against undue diminution of seals." This is that the United States may procure an addition of ten nautical miles to the radius of the zone of protection around the islands for each reduction of 10,000 below tho maximum of 50,000 to be allowed to bo killed upon the islands, so that a protected zone of a radius of 60 miles might be obtained by a voluntary [317] • Case of the United States, Appendix, Vol. II, p. 561. ■ I ■f'i ^d:'cU TbTR?! I H I V 204 ARftnMENT OF THK UNITED STATES. t; 1' .■ f. reduction of the number to be taken on the isbxuils to 10,000. Of course, with a further withdrawal from the market of the supply furnished by the islands, to the amount of 40.000 skins annually, that is to say, by leavings practically the ivhole market to be supplied by the pelagic soalers, a force in the shape of vessels and men \\ould speedily show itself sufficient to slaughter, not 60,000 females a season, but 100,000, and even more, between the first of May and the loth of September. But we fail to perceive the use, or the consistency, of imposing a limit to which such voluntary reductions of slaughter on the breeding islands should bo carried by making the minimum 10,000. Why should the United States not b(> permitted, if the^ desired, to purchase a protected zone of 60 miles I'adius by giving up the right to slaughter a single seal ? The scheme had as its sole merit some poor pretension in the way of comicality. Why should this be thrown away ? II > fh -t> i*.i {.•i (2) We may be told that wc are really, if not avowedly, imputing to these Commissioners an intenfiou to protect and promote tho interests of the Canadian sealevs, and that this is unfair ; that if they are labor- ing in behalf of pelagic sealing, they are working as much for the inter- est of citizens of the United States as for Canadians, inasmuch as pelagic sealing is as open to the former as it is to the latter. We do not forget the suggestion of the Commissioners to this effect,^ and we remember at the same time, what was well known to them, that this occupation is not unreservedly open to citizens of the United States. That nation deems itself bound by the spirit and principles of the law of nature, holds itself under an obligation to use tho natural advantages which have fallen to its lot, by cultivating this useful race of animals to the end that it may furnish its entire increase to those for whom nature in- tended it, wherever they dwell, and without danger to the stock. It holds, as the law of natui-e holds, that the destruction of the species by barbarous and indiscinminaie slaughter is a crime, and punishes it with severe penalties. Its enactments adopted when it was supposed that the only danger of illegitimate slaughter was confined to Bering Sea were supposed to be adequate to prevent all such slaughter. Are the United States to be deprived of the benrfit of the seals unless they choose to abandon and repudiate tho plain obligations of morality and natural law ? ' Report of Br. Com., p. 20. .0,000. Of course, y furnished by tho hat is to say, by tho pelagic s'^alers, ee(lil> show itself : 100,000, and even nbor. But wo fail imit to which such a should be carried ited States not b(> > of 60 miles radius ? scheme had as its ,lity. Why should •wedly, imputing to )motc tho interests t if they are labor- uuch for the inter- lians. inasmuch as the latter. We do this effect,! and we to them, that this Jnited States. That if the law of nature, advantages which of animals to the )V whom nature in. to the stock. It I of the species by id punishes it with supposed that the b Bering Sea were Are the United iless they choose to •alitv and natural CONCURRENT REGULATIONS. •J0;> (3) But what would be tho cost of this scheme ? Sonir. not itulot'd very large, additional difticultic - would be interposed in obtaining tlie present pelagic catch of 68,000. It would require a somewhat larger investment of "apital in vessels and appliances, and a somewhat greater expenditure in wages. This, as has been shown, would be fully reim- bursed to the sealers, with a large additional profit, by means of the subtraction from tho market of .DO.OOO skins now furnished from the Pribilof Islands, and the consequent increase of price. This increase' of price must of course be paid by tho consumer. We can not well con- jecture the amount of it. It could hardly be loss, if Ave may rely upon tho teachings of the table of prices,' than 810 per skin, and might amount to much more. This additional cost, increased at every stage in the process of manufacture and exchange, might easily add $.'?0 to the price of the skin when it comes to the consumer, and thus tlie world would be burdened by an additional charge for 100,000 skins to the amount of the easily possible sura of $3,000,000. And what would it cost to maintain the naval police required to enforce this scheme!-' How many armed steamers would be needed to guard effectually against the entrance of a trespasser within a prohibited zone, the cir- cumference of which is upwards of 140 miles, in a region of thick and almost perpetual fogs ? A million of dollars annually would be a mode- rate estimate of the expenditure required, and this must be paid by some- body, the Commissioners do not tell us by whom. And for whom and for what is this prodigious tax to be imposed ? For the Canadian sealers alone, and in order to enable them to make a profit, for a few short years, by the total destruction of a race of use- ful animals ! If the assumption of such a burden were necessary, in order to preserve tho seals, the pi'opriety of making it would bo wortliy of consideration; but it is absolutely no misrepresentation or exaggera- tion to say that it would be a price paid, not for their preservation, but for their more speedy extermination. Not a dollar of this enormous expenditure ia needed for any useful purpose. Tho entire increase of all the herd may be made available at the lowest possible price, without endangering the stock and without imposing any additional burden upon the world, by simply confining the capture of the seals to the methods allowed by natural law. Xor is tho expenditure needed even for the mischievous purpose of killing off tho seals. It is indeed a con- trivance by which that result would be hastened, but if nothing were [317] • Case of the United States, Appendix, Vol. II, p. 561. 02 20G ARG1J3IENT OF THE UNITED STATES. doue, aud pelagic soaling were permitted to 1)0 prcjsecuted without let oi' hindrance, the end would be reached nearly as soon. n , 5( 'f'i 1^1 1 I . 'Ml' r: .''. -14 ... w M^ (4) The severity amounting to injustice, in the operation of such a scheme would be worth commenting upon, were it on other grounds admissible. How would the sealer know, in that region of fog, whether he was inside or outside of the pi'ohibited»line ? The opportunities for taking observations are rare. It may be said that he should take good care and give the line a wide inside berth. But laws sh^mld take notice of tlie weakness of men in the face of temptation. This scheme would be a lure to which many would yield, aud tiud themselves caught, even when they intended not to transgress. (.">) The Commissioners of Great Britain have in their report studiously avoided the real problem, which it was their business to solve. That problem, according to their own view, was to devise some scheme of pelagic sealing which would preserve that pursuit, and at the same time not be fatally destructive to the herd of seals. True, this is impossible ; but it was not so in their view, if we may credit their confident state- nientf!. They should, therefore, have first fixed upon some definite numher of ft' milieu which might be taking annually without initiating a gx"adual, but sure, destruction, and then devise a method which should re.strict the capture io this niim1)er. This is the method pursued upon the Pribilof Islands. An estimate is made of the number of superfluous males that may be safely taken, and the annual draft is rigidly limited to that number. Had the Commissioners attempted this task, the utter impossi- bility of it would have stood self-e.xposed. They would have been immediately confronted with two refutations. In the first place, had they named oO,OjO, or -40,000, or 20,000, or even 10,000, females as ii number which might be annually sacrificed without involving a sure destruction, the sure teachings of the natural laws governing the increase of such animals would at once have rejected the proposal. Those laws tell us that no females must be taken. It is not from that (juarter that man may make his drafts in auij degree. The condi- tions are far more rigidly e.Kacting than in the case of domestic cattle. There the opportunity for cultivation is unlimited. It may be prose- cuted throughout the whole world, and an undue abundance be speedily l)roduced. It is often necessary there to keep down the stock instead of increasing it, and therefore females must necessarily be taken to thout let <)!• 1 of such a ler grounds og, whctlKn; ttuuities for d take good take notice heme wouUl caught, even )rt studiously solve. That le scheme of lie same time s impossible ; nfident state- lefinite numher ug a gmdual, Id restrict the the Pribilof us males that iiited to that utter impossi- d have been st place, had emales as a olving a suit' g the increase t is uot from The condi- mestic cattle, ay be prose- e be speedily stock instead be taken to CONCURRENT REGT'LATIOXS. 20: some extent ; but with the seals the case is far otherwise. There arc but few possible places in which the animal may be cultivated, and the march of destruction has greatly reduced these. They are wholly in- sufficient to supply the demand even under the most careful and ])rn- dent husbandry, and any taking Avhatever from iireoding females is plainly inadmissible. This is of itself an end of the question, for to say that pelagic sealing must be limited to a catch of 10.000 (and, as we have seen, in pelagic sealing the number of females killed equals the whole number of both .se.xes actually recovered) is to prohibit it. The game would no longer be worth the candle. It would not be pursued under such conditions. In the next place, had th.e Commissioners fix;! upon any definite number, it would be absolutely impossible to frame any scheme by which the slaughter cotild be limited to it. Their own wretched device of a limitation of the pursuit in time and place, mucli better calculated to increase than to restrict the slaughter, is. of course. beneath attention. We do iiot refer to the inefficiency of their jiartic- ular suggestions. There is an inherent impossibility which no in^'e- nuity, combined with a supreme desire to accomplish the purpose, c;in surmount. (6) The fundamental eiTor of the Commissioners of Great Britain, ;is of all who either deceive themselves, or attempt to deceive others, witli the illusion that it is possible to permit in any degree the indiscriminate pursuit of a species of animals like the seals, so eagerly sought, so sh iv in increase and so defenseless against attack, and at the same time tn preserve the race, consists in assuming that the teachings of n.'iture can be replaced by the cheap devices of man. The first and only busi- ness of those who, like the Commissioners, were charged with the duty of ascertaining and declaring what measures were necessary for the preservation of this animal was to calmly inquire what the laws ot nature were, and conform to them unhesitatingly. It would then have been seen hy them that no capture whatever of such animals should be allowed except capture regulated in conformity with natural laus; and that all unregulated capture was necessarily destntctive, and a crime ; that there could be regulated capture upon the land, and upon the liunl alone, and that all attempts ♦^o regulate capture on the sea must neces- sarily be abortive ; that, consequently, the only regulation to be made in respect to pelagic sealing was to prohibit it altogether, which is tan- tamount to the award of property to tho proprietors of the breeding m m" ■ 1'. 1 208 ARGUMENT OF THE UNITED STATES. ffrouiids. The attempt to apply regulations in the nature of game laws to the pursuit of such animals is a misdireetetl effort, foundeil upon a disregard of their nature and habits. They are not like wild ducks, or herring, or mackerel, animals over which man has no control, and whicli repi'oduce themselves in prodigious numbers, and have abundant means of eluding pursuit, and which can not be cultivated by art and industry ; but a species exhibiting all the conditions requisite to property, and whicli must be treated accordingly. ■■Iff .-ji (7) This error is not imputable to ignorance on the part of the Commis- sioners. It does not ai'ise from any failure to take notice of the nature and habits of the animal. There is. indeed, in their report an avoidance, which appears to be industrious, of any special inquiry into the natui-o and habits of seals, with the view of ascertaining and reporting for the information of this Tribunal whether they really belong to that class of animals which are the fit subjects of property, or that of which ownership can not be predicated, and which can, consequently, be protected against excessive sacrifice, only by the rough and ineffective expedient of game laws ; but, nevertheless, they fiilly admit that pei-fectly effective regula- tion of capture is ea&ily possible at the breeding places and there alone. They say : 116. It is, moreover, equally clear from the known facts that efficient ])rotection is much more easily afforded on the breeding islands than at sea. The control of the number of seals killed on shore might easily hr made absolute, and as the ai'ea of the breeding islands is small, it should not be difficult to completely safeguard these from raiding by outsiders, and from other illegal acts.' What i.s the avowed ground, aside from the assumed right of individ- uals to carry on pelagic sealing, upon which these Commiasionei'S felt themselves not warranted in yielding to the decisive facts thus stated by them, and declaring that a perfect protection would be given to the seals by simply prohibiting capture at sea? It is, to shortly sum it up, that the power thus possessed by the occupants of the breeding places has been abused in the past, and probably will be in the future, by an excessive slaughter of young males. It is that the United States put the property Into the hands of lessees, and that, although the leases are long ones, yet the lessees are so far barbarians, or chil- dren, that they are incapable of comprehending their own interests. ' Beport of Br, Com., p. 19. CONCURRENT RKGULATIONS. 209 game laws leil upon a i dufks, or , and wliicli nt means of d industry. :, and which the Commis- if the nature u avoidance, o the natuTc i-ting for the that class of ch owncrshii) ected against lient of game jctive regula- . there alone. that efficient lands than at migJit easilij jnall, it should hy outsiders, it of iudivid- liissioners felt [s thus stated given to the [lortly sum it I the breeding |in the future, Jnited States [although the Eans, or chil- Iwn interests, and incapable of restraining their desire for present enjoyment, in order to secure their permanent welfare; and that the United States CIov- ernment, which has a supervising control, either from the same or some other unexplained reason, is e(|ually incapable of pioteeting its own in- terests and discharging its duty to mankind by preserving tliose boun- ties of nature which have been intrusted to its keeping. In short, their argument is that tho.se means which nature has pointed out, and wliich society trom the earliest dawn of civilization has adopted and followed, for the purjjose of preserving the gifts of nature and making them in the highest degiee available for the uses of man. have, in this instance, proved a failure ; that the force of the universal motive of self-interest has, in this instance, not been effective with tiie American ])eople, and consequently an occasion has arisen for the invention, by the wisdom and ingenuity of these Commissioners, of some device bet- ter adapted to the desii-ed object ! This is no i)erversion or exaggeration of the argument of this report. It may be left to fall from its intrinsic weakness, not to say absurdity. (8) We are reluctant to make any reference to motives; but, where opinions are, as in this case, made evidence, the question of good faith is necessarily relevant. Why is it that these Commissioners have chosen to disregard the plain dictates of reason and natural laws which they were bound to accept, and to recommend some cheap devices in Iheir place, when they so clearly perceived those dictates r* We are not permitted to think that this was in conscions violation of duty, if any other explanation is possible. The only apology we can find comes from the fact, clearly apparent upon nearly every page of their report, that the predominating inteiest which they conceived themselves bound to regard was not the preservation of the seals, but the protection of the Canadian sealers. This explanation at once accounts for all their extraordinary recoiumendations and all their varying inconsistencies. Hence every degree of restraint ui)on pelagic sealing is reluctantly conceded, and yielded only when it is compensated for, and more than compensated for, by an added restriction of the supply furnished to the market from the breeding islands. As the work of the pelagic sealers is on the one hand restricted in time or place, and thus discour- aged, it is ou the other siimulated by the certainty of a better market and a richer reward. So persistently and exclusively have thoy kept this policy before them as their main object, that an ideal has been I ■t ;£,• in*' I' I hi -Hrv W''- 1210 ARGUMENT OF THE UNITED STATES. formed in their rainds which they openly avow, and to attain which is their constant effort. This ideal is that all taking of seals on land should be prohibited, and pelagic sealing be made the only lawful mode of capture. They thus express themselves: '"It ha^ been pointed out, and we be- lieve it to be probable, that if all kiliing of seals were prohibited on the breeding islands, and these were strictly protected and safe-guarded against encroachment of any kind, sealing at sea might be indejinitehj continued ivithoiit any notable diminution, in consequence of the self- regulative tendency of this industry." ' And, suggesting, as the only objection to this policy which occurs to them, that it might be too much to expect of the United States to thus guard the islands and support a native population of 300 at its own expense, they continue : " It may be noted, however, that some such arrangement would offer, perhaps, the best and simplest solution of the present conflict of interests, for the citizens of the United States would still possess equal rights with all others to take seals at sea, and in consequence of the proximity of their territory to the sealing grounds they would probably become the principal beneficiaries! "- And they finally come to the conclusion that any taking ot seals at the l)reeding places is an error for which there is no defense except long usage, and even that they regard as a doubtful apology. They say : While the circumstance that long usage may, in a measure, be considered as justifying the custom of killing fur-seals on the breeding islands, many facts now known respecting the life history of the animal itself, with valid inferences drawn from the results of the disturbance of other animals upon their bleeding jilaces, as well as those made obvious by the new conditions which have arisen in consequence of the development of pelagic sealing, point to the conclusion that the breeding islands should, if possible, remain undisturbed and inviolate.' These references to the opinions expressed in the report of the Commi.s- sioners of Great Britain when taken together with the scheme recom- mended by them, leave no room for doubt that the defense of the Cana- dian sealers was, from first to last, their predominating motive, and enable us to make for them the apology that they conceived that this was the duty with which they were especially charged. If this be the fact, it is easy to perceive how all their reasonings and recommenda- tions should receive a color and character. We feel obliged to say that ' Report of Br. Com., p. 20, sec. 121. - Report of Br. Com., p. 20, sec. 125. ' Report of Br. Com., p. 27, see. 166. lOTfiw' CONCURRENT RKGFLATION.S. 211 we cnn perceive no other ufronnd iijtoti whicOi their action may be made consistent with j'oocl faith. ■t; '*3 HI (9) But what are their avowed reasons, if any, for forming this ideal of an exclusive adoption of pelagic sealing as a proper scheme of regula- tions for preserving the seals? We onn gather from the pages of their report these three : (a) That pelagic sealing is a national or common right, which can not be taken away. (6) That pelagic sealing has a " self-regulating tendency.'' ' (c) That sealing on the breeding places is destructive, because of the excessive slaughter of young males, which, as they allege, is and Avill be indulged in, although it need not be. The first of these reasons is not relevant here, nor should it have had any place in the consideration of these Commissioners. It was a matter committed to the determination of other parties, and is elsewhere discussed by us. It may, however, be here observed that if it be a natural right of citizens of Great Britain, it must be held, as all other rights are, in subordination to the power of governments to enact legislation to preserve the useful races of animals, and Great Britain may certainly, if she pleases, prohibit her citizens from exercising it, as the United States do. And if it be the subject of governmental restriction, as tlie commissioners themselves propose to make it, it may be also prohibited by governmental regulation. The third ground we have already considered. Unfounded in fact, repugnant to reason, absolutely contradicted by the experience of nearlj- a century on the Pribilof Islands, and, as the Commissioners themselves admit, by that on the Commander Islands for a similar period,- we dismiss it without further notice. The second ground, the alleged " self-regulative tendency," may be briefly noticed. What is this asserted " self-regulating tendency ? " We must describe it in the language of the Commissioners themselves. They say : " In sealing at sea the conditions are categorically different, for it is evident that by reason of the very method of hunting, the profits must decrease, other things being equal, in a ratio much greater than that 'Bepoitof Br. Com., p. 20, sec. 121. " Ropoit of Br. Com., p, 15, sec. 92, 212 ARGUMENT OF THE LTXITED STATES. of any decrease in the numbers of seals, and that i':ere is, thei-efori'. inlierent BY IHK UmTED SiaTKS. It is inovidetl in article viii of tlio Treaty that either party may submit to tbo Arbitrators any question of fact involveil in any claim it may have against the other ; and ask for a finding thereon, '■ the question of the UahiUtij of either (jovenunent upon the facts found to be the subject of further neijotiation." As the undeisigned construes this paragrapli, it limits the range of inquiry by the Tribunal to facts which bear only upon the amount of the flaims submitted, as the question of liability is left open to be settled by negotiation. And in the fifth article of the Modus ViL-endi of May 9, lS92,' it is pro vided that — If the result of the Arbitration be to affirm the right of British sealei-s to take seals in the Bering Sea, within the bounds claimed by the United States under its purchase from Russia, then compensation shall be made by the United States to Great Britain (for the use of her subjects) for abstaining from the exercise of that riglit during the pendency of the Arbitration, upon the basis of such a regulated and limited catch or catches as in the opinion of the Arbitrators might have been taken without an undue diminution of the seal herds ; and, on the other hand, if the result of the Arbitration shall be to deny the right of British sealers to take seals within said waters, then compensation shall be made by Great Britain to the United States (for its citizens and les.sees) for this agree- ment to limit the island catch to 7,500 a season, upon the basis of the difference between this number and such larger catch as, in the opinion of the Arbitrators, may have been taken without an undue diminution of the seal herds. This leaves the number of seals which might have been taken in the Bering Sea by the British sealers, and upon the Pribilof Islands by the lessees of the United States, without danger of reducing the seal herd, wholly to the judgment of the Tribunal under the proofs sub- mitted. , — — — »- ■ — I — ' — — . — _ ' Case of tho United States, Appeudis, Vol. I, p. 7. 2ir> ARGUMKNT OF TIIK rNITKH STATIX In the printed Case submittod on bolmlf of the Unitcil St:it».()2| on each skin, to be paid by the lessees of the islands, over and above the bonus upon the 7,.')U0 skins, which aro permitted to bo taken under tli-j Xofhn Vi'vi-iuli.^ And a claim is also submitted by the United States in behalf of its lessees for the profit the lessees would have made upon mi increased number of seals which mi^jht have been taken above the T.iii"' but for the Jlodiia Vlvonli.'- The Case also submits a claim in behalf of the United States and lessct's for compensation for the limited number of seals taken under the ^/"ik/k.s VitCHtliotlSdl. Frankness requires us. as we think, to say that the proofs, which appeai' in the Counter Case of the United States as to the condition of the seal lierd on the Pribilof Islands, show that the United States could not have allowed its lesseos to have much, if any, exceeded the number of skins allowed by the Modus Vicendi of 1802 without an undue diminution of the seal herd, and u}>on this branch of the case we simply call the attention of the Tribunal to the proofs, and submit the questions to its decision. As to the claims submitted in behalf of the United States and its lessees under the Modus Vivendi of 1891, the undersigned also feels constrainetl to say that, as no provision for the payment of compensation to eitlier party is provided for in that agreement, and as, under the laws of the United States and lease of the islands by the United States to the Xorth American Commercial Company, the United States had the full power, through its Secretary of the Treasury, to limit the catch in any year to such number as in the discretion of the Secretary of the Treasury might seem proper, we must admit that no right of compensation accrued under that agreement to either the United Stat(\s o • its lessees, for the reason that the agreement was wholly voluntary, and such as the two govern- ments were entirely competent to make, nad no riglit to compensation would accrue to either government or its citizens unless specially provided for in the Modus Vivendi. ' Case of the TJnit«d States, pp. 286-289. 'Ibid., pp. 289-291. DAMAGKH fLAIMI.h UV lilJKAT I'KITAIN, 217 1 :ii 11. — Pamaiies Claimko tiv Grkat "RnrTMs. Tho olainiH siibmittod on tho piiit of Gront T^ritain aro for damages Bnstaiiicd by certain of its subjects by wason of tho soiznro by the United States of certain vessels ailefrt'd to belong to sucli subjects. and warning cci'tnin Britisli vessels eimiij,'i(l in sealing not to entcv Hering Sea, and notifying certain other Bi-itish vessels engaged in the captnrc of seals in Bering Sea to leave said sea, whereby it is insisted that the owners of such vessels sustaitied losses and damages, as set forth in the respective claims, these claims being stated in detail in tho *' Sch'dnJc of paiiiculara" of said claims appended to the Britisli Case. The right and authority of the United States to protect the seal .herd, which hag its home in the Pribilof Islands, and in the exercise of smh light to make reprisal of scal-skius v.rongfully taken, and to seize, and, if necessary, forfeit tho vessels and other property employed in such nidawful and destructive pursuit, is a necessary incident to the right asserted by tho United States to an exclusive 'iroperty interest in said seals and the industry established at the sealeries. We, however, preface what we have to submit on this feature of the case by saying that, if it shall be held by this tribunal that these seizures and interferences with British vessels were wrong and unjustifiable under the laws and principles applicable thereto, then it would not be becoming in our nation to contest those claims, so far as they are just and within the fair amount of tho damages actually sustained by British subjects. And, even if it shall be decided by this Tribunal that the United States were not justifiable, under the circumstances and tho law, in making such seizures and interfering with British subjects in the pursuit and capture of fur-seals in the Bering Sea, still that decision would furnish no ground for daitns based on wholly illegal and untenable grounds, nor for extor- tionate demands. The actual dfimages sustained by these British subjects, in behalf of whom t'oeso claims are presented by the British Government, aiust. un- doubtedly, be finally settled, according to the terms of the Ti'eaty, by ne- gotiations hereafter to be had ; but, as finding.s of fact in regard to these claims are asked for, our purpose in this part of the argument is to call attention to some of the elements which go to make up these claims, and show, as we think, conclusively, that such elements can 218 ARGUMENT OF THE UNITED STATES. I nob enter into claims for compensation against the United States under the Treaty. And we contend — First. That only claims properly duo to subjects of Great Britain should bo submitted on the part of that nation and findings of facts asked in relation thereto; and in the application of this principle wo insist that it is shown by the Counter Case of the United States and the Appendix thereto that the schooner W. P. Say ward and the steam schooners Thornton, Atma Beck, Grace, and Dolphin, with all their sup- plies and outfits, were in fact owned by one Joseph Boscowitz, a citizen of the United States at the time these vessels were respectively seized by the United States ofl&cers ;' that for some time prior to the fall of 18S5 said schooner and steam schooners had been engaq^ed in the seal- ing business in the joint interest of said Boscowitz and one James Douglas Warren ; that Warren had no capital, and although nominally interested in saM .essels and .heir catch as half owner, yet in fact the money representing his share in the vessels was loaned to him by Boscowitz, and secured by mortj:ages to Boscowitz on the vessels ; that in the fall of 1885 Warren became insolvent and made an assign- ment for the benefit of hia creditors, and in order to transfer the title to these vessels a sale of them was made under the Boscowitz mort- gages, and one Thomas H. Cooper bid the vessels off at such sale for the sum of $1, Cooper being a brother-in-law of Warren and a British subject, residing in San Francisco, Cal. ; that on becoming such pur- chaser Cooper executed mortgages to Boscowitz on the vessels for their full value, which mortgages Boscowitz held at the time of the seizures, the whole transaction being had solely for the purpose i>f securing a British registration for said vessels, and thereby enabling Boscowitz a nil Warren to carry on the sealing business under the British flag.- The testimony showing Boscowitz was a citizen of the United States is found in the affidavits of T. T. Williams' and a report of Levi W. Myers, United States consul at Victoria, B. C, dated November 10. 1892.' Wliile the proof as to the relations between Boscowitz and Cooper is found in the deposition of Thomas H. Cooper, the alleged ' Counter Oase of the United Estates, p. 30 ; App., pp. 255, 351. - Counter Case of the United States, App., pp. 321-325. 3/«t(/.,p. 351. ^/Jirf., p. 255. • - . '^■■i ^m DAMAGES CLAIMED BY GREAT BRITAIN. 219 owner of the said vessels;' and the relations between Boscowitz nnd Warren are shown in the testimony of Boscowitz and Warren, and the pleadings and decrees in the case of Warren vs. Boscowitz and the cross case of Boscowitz vs. Warren, in the courts of British Columbia.' Th'^ proof also shows that the schooners Carolina and Pa.^ifinder, with their supplies and outfits, were, in fact, owned at the time they wore seized by one A. J. Bcchtel, a citizen of the United States (see deposition of W. H. Williams,^ and a report of Levi W. Myei-s, United States consul at Victoria, B. C.^), although said vessels were registered in the names of British subjects.'' And that the schooners Alfy^d Adams, Black Diamond, and Lily, were in fact owned, at the time they were respectively seized by one A. Frank, a citizen of the United States (.«ee deposition of T. T. Williams),' although i-egistered in the names of British subjects.' It will be seen by looking over the list of vessels alleged to have been seized, or interfered with, that the list contains twenty vessels, but that two of the vessels named in that list, the Triumph and the Pathfinder, were seized -or interfered with twice ; *• so that, in fact, the schedule con- tains the iiames of only eighteen separate vessels in regard to which claims are made, and of these eighteen, ten of them were owned by citizens of the United States. It is assumed on the part of the United States that if the proof sub- mitted shows that these ten vessels were really the property of citi- zens of the United States, although they had a nominal registry in the names of British subjects, such demonstration will bo sufficient to justify a finding by the Tribunal that no citizen of Great Britain has sustained damage by the seizure of the Sayivard, Anna Beck; Thornton, (iracc, Lolphin, Carolina, Pathfinder, Alfred Adams, Black Diamond, and Lily. We therefore confidently ask .md expect the decision and finding of the Tribunal that these claims do not belong to British subjects, and !* ■I I :;r ir. € i 11" 1 I'i'i it',' A :^: ' Jiirf., pp. 320-325. 3 Ih!d., pp. 301-320. ^ Counter Ciiee of United States, Appi-iulix, p. 351. */«/W., 261. * Case of Her Majesty's Go\.!rnuicnf, Schedule of Chiiui!-, pp. 1, 40; Counter Cose of United States, Appendix, p. 258. • Counter Case of United States, Appendix, p. 352. ' Case of Her Majesty's GoTrrnmont, Schedule of Claims, pp. 32, Ifl, 50. " Ibid., p. 1. [317] » :^^i li., 1 w 220 ARGUMENT OF THE UNITED STATES. for that reason the Tiibanal can not be called upon to find any facts i-especting them. To justify a finding upon a claim, it must be made to appear aflPu-nm- tively, by a clear preponderance of proof, that the claim is owned by one of the Governments, parties to this Arbitration, or to a citizen or subject of sucli Government.' Wo insist that we may, with propriety, go farther and say that, if there is even doubt that a claimant is a citizen of the nation that presents a claim in his behalf, that doubt should of itself be enough to preclude any finding of facts involved in such claim. The powers and jurisdiction of this Tribunal are delegated to it by the Treaty which is in itself but a contract or agreement and its terras can not be enlarged or amplified by construction. In taking this ground we do not intend to cast any aspersion upon the good faith of the British Government, or its Agent, for having pre- sented these claims, as we admit that on the taco of the claims as pre- sented they appear to be in favor of British subjects. But we do insist that it is right for this Tribunal to go behind the face of the papers and ascertain from proofs furnished, whether or not the persons to be benefited by the allowance or payment of these claims are in fact British subjects, and that no facts shonld bo found involved in any chiim where there is even good ground for doubt that such claim belongs to a British subject. Second. All these claims but two (the Triiun^h, No. 11,- and tiu' Pathfinder, No. 20,^ of schedule) contain an, item for " Ions of prohahh; catch," " lo8n of eatimated catch," ^'balance of probable catch,^' "probable catch," etc.* ■ ■ All of which statement : will more fully appear by the following tabulated Ao. 1. Carolina, ostiiimtcd catch No. 2. Thornton, estimated catch No. 3. Onward, estimated catch N»). 4. Favorite, estimated loss of catch Nt). 5. Sai/ward, probable catch of 1887 No. 6. Orarr, probable catch No. 7. -iHHrf -Bfc^, ])robiiblc cHtcli No. 8. Dolphin, probable catch $IG,6(!7 lG,6(i7 16,6()7 7,000 l!t,250 23,100 17,32a 24,750 ' Article VIII of 'J'reaty of Arbitration. - Chhc of Her Majcst^v's Oovcnniicnt, .Schedule of t'lainis, p. 30. ■' ll.iil., p. 57. ' Ihitl., )1|). 1 o'\. any facts ,!• affirma- ed by ono or subject y that, it it presents 3clude any it l)y the Ha can not I'sion upon laving pi'u- ms as pi'o- e do insist papers and )e benefited sh subjects, here there » a British and tile 0/ prohahU: '■^probable >• tabulated lG,6(i7 16,667 7,000 10,250 23,100 , I7,32;t . 24,7JO DAMAGES CLALMED BY GREAT BRITAIN. 221 No. 9. Alfred Adams, probable cateli 819,250 Xo. 10. Ada, probable catch 15,818 No. 12. JiiHiala, estimated cntoli .... 9,42-t No. 13. I'athfinder, estimated catcli 15,363 No. 14. 2 rt'wwjjA, estimated cat 'li .... 19,121 No. 15. 5iaci' 2)(nmoH(/, estimatcii catch ..~ ... 16,192 No. 16. Zi7y, balance of catch 14,136 No. 17. ^rte?, balance of estimated catch 9,24S No. 18. ATaifp, balance of catch 10,960 No. 19. Minnie, balance of catch 16,112 357,353 All the.se items are subject to the objection that they are prcspective pirSts, uncertain and contingent in their nature, and can not be made tlio basis of a claim for compensation to the owners of these vessels. In Sedgwick, on the " Measure of Damages," p. (59, sixth American edition, it is said : . . The early cases in both the English and American conns, generally tioDC'urred in denying profits as any part of the damage to be compensated, hethcr in cases of contract or tort. In a case for illegal capture, where one of the items of the claim for damages was the profits on the voyage broken up by the capture, the court said : Independent, however, of all authority, I am Patisfied upon principle that an allowance of damages upon the basis of a calculraion of profits is inadmissible. The rule would be in the highest degree unfavorable to the interests of the community. The subject would be involved in utter uncertainty. Tlie calculation would proceed upon contingencies and would require a knowledge of foreign markets to an exactness in point of time and value, which would sometimes present embarrassing obstacles. Much would depend upon the length of the voyage and the season of the arrival ; uiu.;li upon the vigilance and activity of the master, and much upon the noiaentary demand. After all, it would be a calculation upon conjeotn c . tid not upon facts. ' Ir til" viii'' r-£ the Ainiahle Nancy, Mr. Ju.stico Story, speaking for the United Sto ' 1 Supreme Court, said : Another :.■'':.. is §3,500, for the loss of the supposed profits of the voyage on which the Amiabh' Nancy was originally bound. In the opinion o^ the court, this item also was properly rejected. The prob- able or possible benefits of a voyage, as yi t in fieri, can never afford a saf'j rule by which to estimate damages in cases of a marine trespass, 'i'here is so much uncertainty in the rule itself, so many contingencies which may vary or extinguish its application, and so many dilKcul- tien in sustaining its legal correctness, that the court can not believe it p per to entertain it. In several cases in this court, the claim for ■^1 ■ r.;> 'I I lil iii- [HC] Tlie sohooner Lireli/, 1 Uallison, 314, •vi il % ii-i! I I;' ii 222 ARGUMENT OF THE UNITED STATES. i ii i profits bas been expressly overruled ; and in Del Col v. Arnold (3 Dall., 333) and The Anna Mann, (2 Wheat., 327), it was, after strict considera- tion, held that the prime cost, or value of the property lost, at the time of the loss, and in case of injury, the diminution in value by reason of the injury, with interest upon such valuation, afforded the true measure for assessing damages. This rule may not secure a complete indemnity for all possible injuries ; but it has certainty and general applicability, to i-ecommend it, and, in almost all cases, will give a fair and just i-ecompense. * And in Wood's Mayne on Damages, - the author, speaking of damages in cases of tort, says : In general, however, injuries to property, where unaccompanied by malice, and especially where they take place under a fancied right, are only visited with damages proportionate to the actual pecuniary loss sustained. While it is coucedef^ that thei-e has been some relaxation of the rigid I'ule of the early casei ' ' jland and the United States, in regard to the allowance of profits . -n element for the award of damages or compensation, it is undoubtedly still the mie in both countries that profits can only be allowed as damages where they are in tha contemplation of parties, in cases arising on contract, and where they ai-o the necessary and proximate result of the injury in cases of tort, and in those latter cases only where they can bo proven or established with substantial certainty. •'' These vessels were all engaged in a hazardous' voyage upon the boisterous waters of the North Pacific Ocean and Bering Sea, subject to all the perils of the sea, and the mind can hardly conceive any event more uncertain and contingent than the number of seals they would have captured if they pursued their voyages unmolested. Shipwreck and eveiy other element of uncertainty, including the proverbial uncertainty which is always an element in fishing and hunting expeditions, would seem to attend all sucli ventures, and the cogent reasoning of Mr. Justice Story in the cases just cited seems unqualifiedly applicable to the items of "probable catch," etc., presented in this schedule of claims. The Tribunal will bear in mind that the United States do not occupy the po.sition of a tort-feasor, subject to exemplary or vindic- tive damages. " The King (Sovereign) can do no wrong." The act^, in respect to which compensation is nskcd on behalf of these] Britisli ' 3 Whenton's U. S. R*pts., 546; see also Smith rs. Coudry, 1 How. U. S. Repts.,28-;n. ^ First American edition, from third English Edition, p. 56. " Hfld1«T »'«. Bflxendale, 9 Exch. 341 ; Mnsterton rs. Mayor of Brooklyn, 7 Hill, 62. DAMAGES CLAIMED BY GREAT BRITAIN. 223 ' Qenera Arbitration, Congressional publication, vol. IV, p. 63; see also Wheaton's International Law (Bojd's 3d English edition), sec. 639, t, p. 692. ^ Case of Her Majesty's Government, Schedule of Claims, pp. 6, 9, 14, 19, 23, 27, 31, 36. ^■1 subjects, wero performed by the Uniterl States in the cxerolso of its sovereignty, and the execution of its statutory laws, and no malice or other unjust motive can be imputed to those acts. Among the claims pi'csented by the United States in behalf of its citizens to the Tribunal of Arbitration upon the Alabama claims, which met at Qeneva in 1872, under the treaty between Great Britain and the United States, were a large number of claims like those now nnder consideration, for the prospective earnings of ships destroyed by the rebel cruisers in the late civil war of the United States, and that tribunal, by the unanimous vote of its members, said in regard to such claims : And whereas prospective earning.s can not properly be made the subject of compensation inasmuch as they depend in their nature upon future and uncertain contingencies, the tribunal is unanimously of opinion that there is no ground for awarding to the United States any sum by way of indemnity under this head. ' It is therefore respectfully submitted that the rule of decision adopted in the case of the Alabama claims is well establisbed in the jurisprudence of the two nations now at the bar of this High Tribunal } and in the light of the authorities cited the undersigned respectfully insists that the items in these claims for " probable catch," " estimated catch," etc., which amount in the aggregate to over two- thirds of the grand total of the claims presented, must be considei-ed as wholly speculative and so uncertain that Groat Britain is not entitled to any finding as to any fact involved therein, except the fact of their uncertainty, which appears on the face of the claims themselves. In the claims gi'owing out of the seizures of the Carolina^ Thorntouy Omvard, Sayward, Orace, Anna Beck, Dolphin, and Ada there are also items for the futnre earnings of those vessels,' namely : No. 1, Carolina, seized 1886 : Claims for earnings in 1887 Claims for earnings in 1888 Xo. 2, Thornton, seized in 1886 : Claims for estimated loss to owner by detention in 1887.... Claims for estimated loss to owner by detention in 1888.... No. 3, Onward, seized in 1886 : Claims reasonable profit for season of 1887 Claims reasonable profit for season of 1888 $6,000 6,000 6,000 6,000 6,000 5,000 ■M pi I li \i 224 ARGUMENT OP THE UNITED STATE8. I m 1 In No. 5, Snt/irard, soized in 1867 ; riuiiiis for I'ariiiiifjis in coasting trade in fall of 1887 l']iiniin(j;s for season of 188H.,.. .... .... Xo. (!, Grace, scizi'il in 1887 : v'lnitns for ))robabl(> oarnings in full of 1887 I'laiins for |)rol)al)l(.< earnin, No. 19.- It seems, from the declaration accompanying the claim, that she left Victttria the fore part of May on a sealing voyage in the North Pacific Ocean and Bering Sea. She entered Bering Sea on the 27fch of June, at which time she had caught 150 seals. She hunted seals in the Bering Sea until July 15, during which time she had taken 270 skins, which was at the rate of 15 skins per day. She was seized on the 15th of July ; leaving her 16 days of July and 16 in August, making 82 days in all of her sealing season, during which time she would have caught, at the rate of 15 per day, 480 seals ; to which adding the 420 she had taken previously, makes a total catch for the sealing season of 900 ; while her " estimated catch " is 2,500 seals for the season. Take also the claim of the Ada, No. 10.'' She entered Bering Sea, as is shown by the declaration accompanying the claim, about the 16th day of July, 1887, and continued sealing in the said sea until the 25th day of August, which was beyond the time when skins taken arc considered merchantable,* and within two weeks of the time when, as the British Commissioners admit,' the sealing season closes, and yet her entire catch up to that time was only 1.876 skins, v^hilc the " estimated " or " probable catch" is put at 2,876. The value and tonnage of these vessels is also largely overstated, as is shown by the tables submitted with the Counter Case of the United States," and the value of several of the vessels seized Avas ascertained by sworn appi-aisers of the District Court of Alaska and shown to be much lower than the value stated in this schedule of claims.' That the.se ' Beport of Br. Com., p. 73, sec. 407. ' Case of Her Majesty's Government, Schedule of Claims, p. 5C. s jbid., p. 34. ♦ Counter Caec- of the United States, Appendix, pp. 357, 376, 384, » Beport of Br. Com., sec. 212. * Counter Case oi' the Unit»tl States, Appendix, pp. 339, ef q. i Ibid., pp. 829-38. mm catch com- more trnst- DAMAGES CLAIMED BY GREAT BRITAIN^ 227 appraisals were fair ami showed tlio suhstantial and fair value of the property i« ovidonced by the fact that, although the owners of the vcsselH had the privilege of releasing them upon bonds, none of then., except the Sn,,war Doc. 106, 50tli t'oiig., Second Sess., pp. 28, 74. »r.stated, as the United asccitaincd hown to bo That these '^' t^ u it--- > '1l 4 • 1 228 AROUMRNT OF TIIK UNITED STATKH. r> SIXTH. SUMMARY OF THE EVIDENOE. To the oiul Uiat the Hipfh Contracting Parties should become fully informed of all the facts bearinjif upon the differences between them, and ns a right method of securing evidenct! as to those points tonching which si dispnt^e might exist, it was stipulated by Article TX of the Treaty tliat two Commissioners on the part of eacli Government should be appointed to mako a joint investigation and to report, in order that such reports and recommendations might in duo form be submitted to the Arbitrators, should the contingency therefor aris3. The Commissioners were duly appointed in compliance with this pro- vision of the Treaty, and so far ns they were able to agree, they made a joint report, which is to be found at page 307 of the Case of the United States. It will be seen from this joint report that the Commissioners wore in thorough agreement that, for industrial as well ns for other obvious reasons, it was incumbent vpoih all nations, and padiciiladij upon ihosr havivij direct commrrcial intevest^ hi fur-seals, to provide for their proper protection and preservation. They were also in accord aa to the fact that since the Alaska purchase a marked diminution of the number of seals on and habitiialhj resorting to the Vrihilof Islands had taken place ; that this diminution was cumulative in effect and was the result of excessive killing by man. Beyond this the Commissioners wei'C unable, by reason of considerable difference of opinion on certain fundamental propositions, to join in a reporf, and they therefore agreed that their respective conclnslons should be stated in several reports which, under the terms of the Treaty, might be submitted to their respective Governments. The United States have submitted, with the report of their Commis- sioners, a voluminous mass of testimony which appears to have been elicited from all classes of persons who, by their education, residence, training, etc., might be enabled to give information of practical value and of a reliable character to the contracting governments. It has ^1 SUMMARY OF THE EVIDKNCK. 229 been tho iiitoution, in procuring evidence, to follow, as closely as tlio circiinistnncos pormittoil, the principles and methods obtainin Ciiarai' iiMiisircs OK Tin; Kiii-Skai,. It in unfoi'tanato thut oven upon ho familiar a subject and one so ofton treated ns the seal, its nature, and habits, there should be a wide diver- gence bc'tween the American and Brifisii Commissioners. In fact, it would HDcm that the animal observed by tho Commissioners from Great Dritaiii was an entirely different animal from that considered and studied by the Commissioners appointed by the United States. Tliis is the more remarkable because for morj than a century a multitude of observers, scientists, government agents, and over8eer.4 have been giving their attention to the nature, habits, and life of the fur-bearing seal, the best method of protecting tho animal from destruction, and the wisest course to secure an annual increase for the purposes of com- merce ; tho reason for which the supply of these valuable creatures has diminished ; tho number of animals yearly killed, etc. They certainly by this time ought to have become fairly ascertained and known and to be placed beyond the reach of discussion or dispute, and so, in fact, they seem to be. There has been a general concurrence among the observers referred to, as complete as may be found among the same class of persona in relation to the nature and habits of ordinary domestic animals. But it has become apparent that tho British Commissioners have in their separate report thought tit to make an elaborate defense of tho j)rrtctice of p'lagic scaling and to have imparted to their invostigiitions and the formulation of their conc^lusions so strong a desire to protect tho supposed interests of their peojde as to lead them to most extraor- dinary conclusions ; indeed, this unfortunate result seemed almost inevitable, the premises upon which they started being conceded. To defend pelagic sealing, the main feature o£ which consists of slaughtei'- ing gravid females or nursing mothers, it was almost inevitable that some fundamental mistakes should be made as to the natui-o and habits of the animals and that statements should be adopted and theories advanced which, upon their face, are utterly unworthy of countenance or respect. The animal discovered by the British Commissioners might be defined to be a mammal essentially pelagic in its natural condition and which might be entirely so if it chose to be ; an animal, too, which is gradually assuming that exclusive character. Crition takes place very frequently and more naturally in the water. It is a polygamous animal and when on land exhibits extreme jealousy to guard its harem, I t-SfiAl,. no so often v'u\c divcr- t, it would )at Ih'itnin id studied liJH iH the iltitudo of have been fur-bearing m, and the ?.s of com- eatuves hnH y certainly known and so, in fact, among the ^ the flame )f ordinary jra have in cnHO of the restigiitions to protect jst cxlraor* led almost ceded. To slaughtei'- itable that and habits nd theories ountenanco uers might d condition , too, which Lakes place lolygamouH its harem, SUMMARY OF THE EVIDENCE. 231 bnt whether this diflpoaition is preserved and exhibited in the water, and how or whether this in a disappearing trait, does not appear. Two pnps are not infrequently dropped at a birth, and the mothers, with a generous disregard for the ordinary rules of maternity in nature, Huckle their own when it is convenient, bnt take up other pnps indifferently, pro- vided the strange offspring does n«»t betray the odor of fresh milk. Hy this indiscriminate display of maternal instinct the generality of pups nro supported until they are able to pi-ocure their own food. The loss of an individual mother becomes in consequence ot this a matter of small moment, and, to make the peculiarity of the animal especially renuirkablo, it is said to abstain, during several weeks of the nursing period, from seeking food for itself and for the yonng offspring that would generally bo supposed to drain its vitality. Such is the seal and such arc the habits, especially of the females, as seen and described by the HritisU Commissioners. The expression of an opinion so directly iu conflict with those generally received would seem to require the most cogent proofs. Reliablo authori- ties should be cited and their names given. Hazardous conjectures should be wisely laid aside; ignorant, hasty, and prejudiced gossip should bo treated as it deserves, and some effort made to reconcile individual obser- vation with generally accepted and accredited facts. The coiinsel for the United States have no hesitation in saying that if the question to be decided were one in which the common-law rules of evidence prevalent in both parties to the Treaty were applied, they would respectfully insist, with moch confidence, that there is ho disputu really as to the main facts in this case. A controversy as to facts iu the juridical sense implies nn assertion on the one side and a contra- diction on the other ; but contradictions can not be predicated on state- ments unauthenticatcd. by proof and unsupported by general experience. It would suffice to show that the Report of the Commissioners from Crreat Britain simply presents the assertions and conjectures of gentle- men who, however respectable their character may bo, were not. called upon to express, and are not justified in laying down cmclusions, except in so far as they have reached them by an examination into actual facts, the sources of which both Governments would bo entitled to consider. Justice to the disputants, as well as a proper respect for the Tribunal, would seem to dictnto this ni cessity of avoiding the rash expression of conjectures generally unsupported, but occasionally founded on other 232 ARGUMENT OF THE UXITP:D S^TATE«, like conjectures emanating from ignorance and hasty observers whose names are not infrequently withhekl. It may, however, facilitate the loarnod Arbitrators in inquiries into the facts referred to, to indicate the nature of the evidence bearing upon the different points respectively and the places where it may be found. It is believed that nothing more is i-oquisite. Of matters not in any manner drawn in question, little or no notice will be taken. II. — The DiVTERENCii bktwkk.n thk Al.vskax and the Russian Fl'k-Seal!s. The marked difforoncos bjtwesn the Alaskan and the Russian seals are such as to be plainly and rcalily discernible to persons familiar with the two herds and thoir characteristics. This once established would naturally prove that there is no commingling of the respective herds. But we are not left to inference upon this point, and may confidently claim that the pi*onosition is affirmatively established by testimony respectable and creditable in itself, while it is wholly uncontradicted by proof. This is the statement in the Case of the United States : Tlie two gi-eat herds of fur-seals which frequent the Bering Sea and North Pacific Ocean and make their homes on the Pribilof Islands and Commander (Komandorski) Islands, respectively, are entii-ely distinct from each other. The difference between the two herds is so marked that an expert in handling and sorting seal skins can invariably di.s- tinguish an Alaskan skin from a Commander skin. In support of this we have abundant and most respectable testimony. Mr. Walter E. Martin, head of the London firm of C. W. Martin & Co., which has been for many years engaged in dressing and dyeing seal skins, describes the difference as follows : " The Copper Island (one of the Commander Islands) skins show that the animal is narrower in the neck and at the tail than the Alaska seal and the fur is shorter, particularly under the flippers, and the hair has a yellower tinge than the hairs of the Alaska seals." In this statement he is borne out by Snigeroff, a native chief on the Commander Islands and once resident on the Pribilof Islands. C. W. Price, for twenty years a dresser and examiner of raw seal- likiiis, describes the difference in the fur as being a little darker in the Commander .skin. The latter skin is not so parous as the Alaskan skin, and is more difficult to unhair. The difference between the two classes of skins has been further recognized by those engaged in the seal-skiii industry in their different market A'alue, the Alaska skins always being lield from 20 to 30 per cent more than the " Coppers " or Commander skins. This difference in value has also been recognized by the Russian Government. fiFm m SUMMARY OF THE KVIDKNCE. 233 ose names (A) THE HERDS ARK DIKt'KRKNT. Jilf. George Banfclo (p. 508, ApptMidix to Case of the United States, Vol. II), one of tlio witnesses upon this point, is a j)acker and sorter of raw far-skins. Ho had been in that business, at tho time of testifying, twenty years, and had liandled many thousands of skins. Ho says : J can tell hy examiuing a skin whether it was caught in season or out of season, OMiZ whether it teas caught on the Rm^nian side or on the American xide. A Russian skin is generally coarser, and the under wool is generally darker and coai'ser, than the skins of seals caught on the American side. A Russian skin does not make as fine a skin as the skins of tho seals caught on the American side, and are not worth as much in the market. I can easily distinguish one from the other. Mr. H. S. Bevington, il. A. (ibuL, p. 551), a subject of Her Britannic Majesty, forty years o$ age, tho head of the firm of Bevington and Morris, 28 Common street, in the city of London, was swoni and testified uj)on tho subject. His testimony is interesting, and may be found at page 550, Volume II, of the Appendix to United States Case. Upon the subject of the variations oljservable, he says : That tho difference's between the three several sorts of skins last mentioned are so marked as to enable any person skilled in the busi- ness or accustomed to handle the same to readily distinguish the skins of one catch from those of another, especially in bulk, and it is tho fact that when they reach the market the skins of each class come separ- ately and are not found mingled with those belonging to the other cljisses. The skins of the Copper Island catch are distinguished from the skins of the Alaska and Northwest catch, which two last- mentioned classes of skins appear to be nearly allied to each other and are of the same general character, by reason cf the fact, that in their raw state the Copper skins are lighter in c jjor than either of tlie other two, and in the dyed state there is a marked difference in the appearance of f.he fur of the Copper and the other two classes of skins. This difforenci" is difficult to describe to a pei-son unaceustonu>d to handle skins, but it is nevertheless clear aid distinct to an expert, and may be generally de- scribed by saying that the Copper skin.'? are of a close, short and shiny fur, particularly down by the flank, t-^ a greater extent than the Alaska and Northwest skins. Joseph Staidey-lirown {ihiil., p. 12) a geologist of distinction, resid- ing at Mentor, Ohio, was commissioned by the Secretary of the Trea- sury to visit the Pribilof Islands for the purpose of studying the seal life found thereon; he spent ono hundred and thirty days in actual inves- tigation and study of the subject. Wliiic he does not claim to have become an expert in that time as to the various a id distinguishing 234 ARGUMENT OF THE UNITED STATES. characteristics of tho animals, ho state i the result of his efforts to ascertain the truth in this respect : I learned that fur-seals of the species Callorhinns uisinus do breed and haul out at the Commander Islands and " Robben Reef," hut the statements made to me were unanimous that they are a separate herd, the pelt of which is readily distinguished from that of tho Pribilof herd, and that the two herds do not intermingle. I''' J K Isaac Liebes, a fur merchant of twenty-three years standing, residing at San Fx'aucisco, claims to have handled more raw fur-seal skins than any other individual in the United States or Canada and more than any firm or corporation except the lessees of the sealeries of the Pribilof and Com- mander Islands. His whole deposition, based as it is upon long pi-aetico and expeiience, may be read with profit. On the subject of the differeuets between the skins of animals belonging to tho respective herds, ho says (ibid., p. 4.45.) The seals to which I liave reference are known to myself and to the trade as the Northwest Coast seals, sometimes called " Victorias." This herd belomjs solely to the Pribilof Islands, and is easily distinguishable by the fur from the fur-seals of the other northern rookeries, and still easier from those of the south. All expert sealskin assnrfers are able to tell one. from the, otlun- of either of these different herds. Each has its own characterise tics and values. To the same effect is the deposition of Sidney Liebes, a fur dealer of Snn Francisco. He had been engaged in the fur bu.siness for the last s'x years at the tinie of testifying. He testified in substance, as did the other wit- nesses, as follows (ibid., p. 516) : My age is 22. I reside in San Francisco, and am by occupation a furrier, having been engaged in that business for the last six years. T have made it my business to examine raw seal-skins brought to this city for fale, and am familiar with the difiFex-ent kinds of seal-skins in the market. I can tell from an examination of a skin whether it has been caught on tho Russian or American side. I have found that the Russian skins Avere flat and smaller, and somewhat different in color in the under wool, than those caught ox. the American side. In my opinion they are of an inferior quality. The Alaska skins are larger and the hair is much finer. Tho color of tho under wool is also difTorent. I have no difliculty in distinguishing one skin from the other. I am of opinion that they belong to an entirely scparnte and distinct held. In my examinatiou of skins offered for .sale by sealing schooners I found that over PO per cent were skins taken fi-om females. The sides of the female skins are swollen, and are wider on the belly than those of males. The teats are very discernible on the females, and it can be plainly seen where the yonng have been suckling, The hend of the female is also mncli narrower. i^ti*? SUMMARY OF THE EVIDENCE. 23i ascertain reed and tatements of which the two esiding at than any any tirni ind Coni- r pi"acticu iifferenccs , he says Mr. Thomas F. Morgan was tlie agent, in 1891, of the Russian Sealskin Company of Petersburg. Prior to that time he had been engaged in seal fishing ; he resided several years, as agent of the Ahiska Commercial Company, on the Pribilof Ishmds. His long and varied e.xperience fitted liini in an especial manner to testify intelligently on the subject. He says (Ibid., p. Gl) : The Ahisl-a fur-seal breeds, I am thoroughly convinced, only upon the Frihilqf I^ilands; that 1 have been on the Alaska coast and also along the Aleutian Islands ; that at no points have I ever observed seals haul out on land except at the Pribilof Islands, nor have I been able to obtain any nutlieutic infoi'iualion which causes me to believe such is the case. The Alaska fur-seul is migratory, leaving the Pribilof Islands in the earlj' winter, going soutlnvai'd into the Pacific and returning again in AIny, June, and July to said islands. 1 have observed certain bull seals I'eturn year after year to the same ])lace on the rookeries, and I have been infoi-med by natives that have lived on the islands that tins is a well-known tact and has been observed by them so often that they stated it as an abso- lute fact. ■im r^M ind to the as." This isViable by still easier to tell 07IG charaderis- aler of Snn t 8'x years other wit- Bupation a : years. 1 •ht to this l-skins in her it has i that the it in color le. In my I are larger (o difTerent . I am of herd. In Ifound that of the jf mal les es. seen Jlainly also mufli It is also interesting to note, from his supplemental sworn statement, that the IJi'itish Commissioners had sonw testimony to show that there was no identity between the herds (ibid., p. 201) : I was on the Bering Island at the same time that Sir George Baden- Powell and Dr. George M. Dawson, the British representatives of the Bering Sea Joint Commission, were upon said island investigating the Russian sealeries upon the Komandoiski Islands; that I was present at an examination, which said Commissioners held, of SniegorofP, the chief of the natives on the Bering Island, who, prior to the cession of the Pribilof Islands by Russia to the United States, h l resided on St. Paul, one of the said Pribilof Islands, and that siu' tliat time had been a resident on said Bering Island, and during the latter part of said residence had occupied the po'ition of native chief, and as such, superintended the taking and killing of fur-seals on said Bering Island; that during said examination the Commissioners, through an interpreter, asked said Sniegeroff if there was any ditfercnce betwee.i the seals found on the Pribilof Islands and the seals found on the Komandorski Islands ; that said Sniegeroff at once replied that there was a difference, and on further qnestiouing stated tliat such difference consisted in the fact that the Konxandorski Island seals Were a slimmer animal in the neck and flank than the Pribilof Island seals; and fur- ther, that both hair and fur of the Komandorski Island seal were longer than the Pribilof Island seal ; said Commissioners asked said Sniegeroff the further question whetlui he believed that the Pribilof herd and Komandorski herd ever mingled, and he replied that he did not. .Mr. John N. Lofstad (ibid., p. 51G), a fur merchant of San Francisco,, testifies that he can easily distinguish the Copper Island seal in its. [317] Q 230 ARGUMKNT OF THE UNITED STATES. undressed state from that of the Alaskan and Northwest Coast skins. They are of an entirely distinct and separate herd, while those of the Northwest Coast and Pribilof Islands are of the same variety. He .says : I have bc"n in tlie business for twenty-eight years during which time 1 have bought large numbers of dressed and undressed fur skins, and I am thoroughly familiar with the business, i can easily distinguish the Copper Island fur-sealskin in its undressed srate from that of the Alaskan and Northwest Coast skins. They are of an entirely distinct and separate herd, while those of the NortliAvest Coast and Pribilof Islands are of the same vai-iety. To the same effect Mr. Gustave Niebaum (ibid., p. 78), Mr. Niebaum's experience was such as to entitle him to speak as an expert. His oppoi-tunities to inform himself thoroughly on all matters connected with sealeries were of the best, and at the same time he had no interest whatever in the sealeries or the seal-skin trade. He is a native of Fin- land and became an Amei'ican citizen by the transfer of Alaska to the United States. He was vice-consul of Russia at San Francisco from 1880 to 1891 . He says : I was formerly, as I have stated, interested in the Commander seal islands, as well as those of Alaska. The two herds are separate and distinct, the fur being of different (juality and appearance. The two classes of skins have always been held at different values in the London market, the Alaskan bringing invariably a higher price than the Siberian of the same weight and size of skins. I think each herd keeps upon its own feeding gi'onnds along the I'espective coasts they inhabit. It may be unnecessary — as it would certainly be monotonous — to mul- tiply citations. Otlier witnesses, however, testify to the same effect. The American Commissioiiers have given their names and addresses, as well as their sworn statements. The Arbitrators will, therefore, be enabled to determine whether or not the evidence is, as we claim that it is, absolutely conclusive. In a court of law, such a concensus of opinion and statement made under the sanction of an oath and uncontradicted, save by more or less ingenious but unsustained conjecture, would satisfy the judgment of the most exactinr; judge. Other depositions equally important may be ijuoted in addition to the abov3. Mr. Walter E. Martin (ibid., p. 509), was, at the time of giving his testimony, a subject of Her ^Majesty, residing at tbe city of St. Albans. He had been engaged, on a very large scale, in the- business of dresa- :t ii SUMMARY OF THE EVIDENCE. 2;J7 3t skins. B of tbe by. Ho cli time 1 and I am le Copper askan and L separate are of the Niebaam's ,ert. His connected no interest ive of Fin- aska to the icisco from Commander |are sepai'ate ■anee. The lines in the price than ik each herd coasts they [ous — to mul- cffect. The ses, as well as \e enabled to is, absolutely ^nd statement ro by more or judgment of prtaut may be of giving his |,f St. Albans. Iness of dress- ing and dyeing sealskins. He sayt that if one thousand Copper Island .skins were mingled among ninety-.nine thousand Alaska skins, it would be possible for any one skilled in vhe business to extract nine hundred and fifty of the Copper Island skins and to separate them from the ninety- nine thousand and fifty of he >".laska catch, and t'iVe versa. Mr. N. B. Miller (ilnd., p. VJd). Mr. Miller was at the time of testi- fying an assistant in the scientific department of the United States Fish Commission steamer Albafross. He had made five cruises in Alaskan waters ; he says : The seals of the Commander Islands are grayer in color and of a slighter build throughout the body. The bulls have not such heavy manes or fur capes, the hair on the shoulders being much shorter and not ne;irly so thick. The younger seals have longer and more slender necks apparently, I noticed this difference between the seals at once. Mr. John J. Phelan (^ibid., p. 518_) was a citizen of the United States and a resident of Albany, N. Y. He was 35 years of age at the time of giving his deposition, and since the age of eleven had been in the fur business. His ])ractical and active expei-ience was very large during those twenty-three years. He had noticed the difference in the seals, both in their raw state and during the processes of di-essing. He explained minutely the point of difi'erence. Mr, Henry Poland (ibid., p. 570) was a subject of Her Majesty and the head of the firm of P. R. Poland & Son, doing business at 110 Queen Victoria street, in tlie city of London. The firm of which he was a member had been engaged in the business of furs and skins for upwards of one hundred years, having been founded by his great-grandfather in the year 1785. His judgment, evidently, is entitled to great respect. He corroborates the other witnesses, and says that the three classes of skins are easily distinguishable fi-om each other by any person skilled in the business. He had personally handled the samples of the skins dealt in ly his firm, and would Iiave no difficulty in distinguishing them. In fact, the skins of each of the three classes have different values and command different prices in tlie market. Mr. Charles W. Price (ibid., p. 521) is a very expert examiner of raw fur-skins, of San Francisco. He had been engaged in the business twenty years when he was examined by the Commissioners of the United States ; he hail had a large practical experieni'o. He gives the points of difference between tho Russian and Anieriean skins, and states, as did Mr. Poland and other witnesses, that the seals on the Russian [317] Q 2 '/in 238 ARGUMENT OF THE UNITED STATES. side ni'G a distinct and diffei-eut herd from those on thb American side, and are not as valuable. Mr. George Rice (ihi'd., p. 572) is another witness whose testimony sliouid command respect. He was fifty years of age and a subject of Her Majesty. He had been engaged actively in the busitiess handling fur-seal skin.s for twenty-seven years and had acquired a general and detailed knowledge of the different kinds of fur-seal skins and of the differences which distinguish them, as well as the hstory, character, and manner of conducting the fur-seal sealskin busir.ess in the city of London. Ho says that the differences between the sidveral classes of skins are very marked, which enable anybody who is fikilled in the business to distinguish the skins of one class from the skins which belong to either of the other classes. He also stated, as did the other experts, that these diffcicnces are evidenced by tlie fact that the skins obtain different prices in the mai'ket. The testimony of this gen- tleman deserves special attention ; it is intelligently given and is very instructive. Mr. Leon Sloss (ibuL, p. 90) is a native of California and a resi- dent of San Francisco. He was for several years a director of the Alaska Commercial Company, and a member of the partnership of Louis Sloss & Co., and had been engaged for fifteen years in dealing- in wools, hides, and fur-skins. At the time of testifying he had no interest in seals or sealeries. He had been superintendent of the Alaska sealeries pro tempore fi-om 1882 to 1885, inclusive, and spent the sealing season of those thiee years on the Pribilof Islands in the personal management of the business. He became acquainted, as ho testifies, with every aspect of the business. All advices from the Lon- don agents and information in regard to the sealskin market, from all sources, passed through his hands, and instructions to agents of the company in regard to the classes of skins desirsd emanated from time to time from him. He was emphatic in his statement that the difference between the Northern and Southern skins that came to the port of San Francisco could be detected at once. While it was not as easy to dis- tinguish the Alaskan from the Asiatic skins, experts in handling them do it with unerring accuracy. Mr. William C. B. Stamp (ibid., p. 574) was 51 years of age at the time of testifying, and a subject of Her Majesty. He was engaged in the business at 38 Knightrider street, London, E. C, as a fur-skin merchant. Ho had been engaged in that business for r"er thirty SUMMARY OF THE EVIDENCE. 239 m years and had personally handled many thousand of fur-seal skins, besides inspecting samples at practically every sale of fur skins mado in London d''.ing the whole of the time he had been in business. He had thus acquired a general and detailed knowledge of the history of the business and of the character and differences which distinguish the several kinds of skins on the market. He stated it as his judgment that the skins of the several catches are readily distinguishable iVom each other, and the skins of the different sexes may be as readily dis- tinguished as the skins of the diiferent sexes of any other animal. He Added that the difference between the skins of the three catches are so marked that they have always been expressed in the different prices obtained for the skins. He instances the sales on the list, which were as folloAvs : For the Alaska skins, 125 shillings per skin ; for the Copper skins, 68 shillings per skin ; and for the Northwest, 53 shillings per skin. Emil Teichmann (ibid., p. 576), was by birth a subject of the King- dom of Wurtcmburg, and had become a naturalized citizen of Her Majesty from the time of reaching his manhood. He was 46 years of age at the time of testifying. He had been engaged in the fur business since 1868, and had resided in England and done business in Loudon. From 1873 to 1880 he had been a member of the firm of Martin & Teichmann, who were then, as its successoi's, C. W. Martin & Son still are, the largest dressers and dryers of sealskins in the world. He had 'personallij handled many hundreds of thousands of fur-seal skins and claimed to be, as well he might, an expert on the subject of the various kinds of such skins. His testimony is minute and givi s details as to the peculiarities vhich distinguish the skms. He states hat all those dliferences are so marked as to enable any expert readily to distinguish Copper from Alaska skins, or vice versa, although he adds that in the ca.se of very young animals the differences are much less marked than in the case of adults. George H. Treadwell (ibid., p. 523)., at the time of testifying, was 55 years of age. He was a citizen of the United States and a resident of Albany County, in the Sta.te of New York. His father, George C. Tread weil in 1832, started a Avhole.sale fur business of a general character, and his son, the witness, became associated with him in x858, and upon his death, which occurred in 1885, he succeeded to the business. That business is now conducted under the name of The George C. Treadwell Company, a corporation formed under the >5, 240 J\RGUMENT OF THE UNITED STATES. laws of the State of New Jersey, of Avhich corporation the deponent is president. He entirely agrees with what Mr. Pholan says concerning his experience in the handling and dressing of skins, and from what he knows of his character and ability ho believes that everything stated by him in his affidavit is correct. Henry Treadwell (ibid., p. 524), at the time of testifying, was 70 years of age, and resided in the city of Brooklyn, in the State of New York. He was a member of the firm of Treadwell Pribilof Islanda do not mi.v with those of the Commander and Kurile Islands at any time of the year. In summer, the two herds i-emain entirely distinct, separated by a water interval of several hundred miles, and in their winter migrations those from the Pribilof Islands follow the American i-oast in a southeasterly direction, while tiiose fi-om tiie Commander and Kurile Islands follow the Siberian and Japan coasts in a southwesterly direction, the two herds being separated in winter by a water interval of several tiiousand miles. This regularity in the difForeut herds is in obedience to the well-known law that miijiatonj a)tiiiirtls follow dpjbiiti' routes in mlqntt'nm and ri4nrii Hear after year to the sainr ^)/a'V'.v' to hri-rd. Were it not for this law, there would be no such thing as stability of species, for interbreeding and existence under divei-se physiographic conditions would destroy all specific characters. The testimony in support of this proposition seems to be conclusive and certainly must stand until the leaimed counsel for the (lovernment of Her Majesty succeed in prodncing the evidence of witnesses who are able and willing to express a diftWent view. It can not be expected that the witnesses shall speak in the same positive and unqualified manner upon this matter, which, to some^extent, must be predicated upon conclusions drawn from facts, as they would and do iipon the actual and observable differences between the two families of seals. But it will be found that the testimony is the best obtainable under the circumstauces and can leave no reasonable doiibt in the minds of impartial persons that the two herds are distinct, that they follow definite routes in migration, and that they return year after year to the same plaoo to breed and never intermingle. Mr. John G. Blair (Appendix to Case of the United States, Vol. II, p. 193) was at the time of deposing an American citizen, 57 years of age, and had been for fourteen years previous and until recently master .■:} :?" ■■f- Mi 242 ARGUMENT OF THE UNITED STATES. 'f'. &■ of tlio scboonop icujj, tlieu employed by tho llassiiiu .Soalskin Com- pany. He bad been constantly engaged in tbo fur-sealinuf industry and was familiar witb tho babits of tbosc animals, both on tbo land aud in tbe water. Ho was in cbargo of and attended to the killing of seals on Robbon Island for the lessees from 1878 to 1885, taking from 1,000 to 4,000 seals per annum. With the exception of two years, whe)» he was sealing on the Commander Islands, he had visited Robbon Lsland every year from 1878 to 188"). H's testimony upon this point is as follows : I am told and believe that the Robben Island seals can be distins^nishod by experts fi-om those on the Commander Islands, and am satisKed that they do not minglo with them and are a separate and distinct herd. They remain on and about the islands in largo numbers until late in tho fall. I have been accustomed to leave in October or early November, and sf>als were always plentiful at that time. I am of opinion that they do not migrate to any great distance from the island during the winter. A few hundred young pups are caught every winter by the Japauose in nets off the north cud of Yesso Island. I have made thirty-two voyages between the Aleutian Archipelago and the Commander Islands, but have never seen seals between about longitude 170 west and 165 oast. I am .satisfied that Alaska seals do not mix with those of Siberia. 1 have seen seals in winter and known of their being caught upon the Asiat'c side as far south as 30 north latitude. William H. Brcnnan (ih'ul., p. .S58) : Mr. Brennan, at the time of testify- ing, resided at Seattle, in tho State of Washington. Ho was an English subject by birth and had spent the best part of his life in the close study of the inhabitants of the sea, including seals and the modes of capturing them. He had passed his examination as second mate in London in 1874, and had been to Australia, China, and Japan. 1 n the last country he had remained several years. Since that time he has followed the sea as sailing captain, pilot, and quartermaster on vessels sailina^ out of Victoria, British Columbia. He testified as follows : In ray opinion, fur-seals born on the Copper, Bering, or Robbon islands will naturally return to tho rookery at which they wore born. The same thing is true of those born' on the St. Paul or St. George islands. No vessel, to my knowledge, has evei' met a band of seals in midocean in the North Pacific. I have crossed said water on tlireo different occasions, and each time kept a close lookout for them. The greater part of the seals that we find in tho North Pacific Ocean are born on the islands in Bering Sea. Most of them leave there in October and November. 0. H. Anderson (ibid., p. 205) : Mr. Anderson was a master mariner by tccapation, residing in San Francis?o, and had been sailing in Alaskan waters since 1880. He say.s : <^ sr.MMARY OF THE EVIDENCE. 243 skill Coiii- •j; industry in tlie land ! killing of iikin,;^ from yroarH, when 2(1 llobbcn .his point is stinjjfiiisliud ttisHiJtl that 4tinct herd. I late in the Novonibor, :hat they do winter. A Japanuso in wo voynj,'es Is, but have east. I am 1 have seen at'.c side as e of testify- an English close study capturing on in 1874, ntry he had a as sailing )rla, British or llobbcn Avore born. St. George of seals in on tlireo them. The Ocean arc in October sr mariner by in Alaskan I think the Commundcr islands seals are a dilTercnt body of seals altogotlicr from those of the Pribilofs, and that the two herds never mingle. [ think the C'oinTnander Islands herd goes to the southward and westward toward the Japanese coast. I never knew of fur-seals hauling out to rest or breed at any place in the Aleutian chain, or anywliere, in fact, except the well-known rookeries of the several seal islands oF IJering »Sca. Cliarles Bryant (/'///., p. !•) : ^Ir. Bryant, at the time of testifying, was 72 years of ago and liad resided in Plymouth County, ^lassacliiiseltH. Krom 18-iO to 18."i8 ho had been engaged in whaling in the Ncu'th Pacitlc Ocean or Beiing Se;). During the latter portion of tlie time he coni- nianded a whaling vessel, fn 18(58 ho was appointed as Special Treasury Agent to go to the Pribilof Islands to investigate and to report as to tlio habits of the fur-seal, the conditions of the islands and the most advan- tageous plan to adopt for the government and management of the same. He I'cmained on St. Paul [sland from March, 18G9, to September of that year. He returned July, 1870, and remained until the fall of 1871. Then in April, in 1872, he again arrived on St. Paul Island as Special Agent of the Tieasury Department in cliargo of the seal islands, and he spent there the sealing seasons from 1872 to 1877, inclusive, and three winters, namely, 1872, 1874, and 1876, since which time ho has lived in retirement at Mattapolsett, Plymouth county, Ma.ssachusetts. His testimony ujion this point is as follows : Tli<; Alasl.a fnr-si'iil hrccds noivhrre cxcpt on the islands. I took par- ticular cai'c in investigating the question of what became of the seal herd while absent [\\m\ the islands. ^ly inquiries were made among tlio Alaskan Indians, half-breeds, Aleuts, and fur-traders along the Xorth- west Const and Aleutian Islands. One man, Avho had been a trapper for many years along the coast, stated to me that in all his experience he never knew of but one ease where seals had hauled out on tho Pacific coast, and that was when four or five landed on Queen Charlotte Island. This is the only ease 1 ever heard of seals coming ashore at any other place on the American side of the Pacific, except tlie Pribilof Islands. These seals are migratory, leaving tho islands in the early winter and returning a^ain in the spring. The Pribilof herd does not mingle with the held located on the Commander Island. This I know from the fact that the hei-d goes eastward after entering tho Pacific Ocean, and from questioning natives and half-breeds, who have resided in Kamschatka as employes of the Russian Fur Company, I learned that the Commander herd on leaving their island go south-westward into the Okhotsk Sea and the waters to the southward of it and winter there. This fact was further verified by whalers who find them there in tho early spring. The Alaskan seals make their homo on the Pribilof Islands because they need for the period they spend on land a peculiarly cool, moist, and cloudy clinnite, with very little sunshine or heavy rains. This pe- culiarity of climate is only to be found on the Pribilof and Commander ■i I, 244 ARGUMENT OP THE UNITED STATICS. iNlanclK, and during my long oxpoiienro in tlio North Pacitlc nud Ber- ing Sou I novop t'oiind anotlior locality wiiic-li jJossiNscd tlu-so condi- tions HO favorablo to seal liu . Add to fcliiH tact tliu isolatoil coiiditioii of the seal islands and wo can readily nco why thu Hoal sduclud this homu. Mr. Alfred l''ra.;t'r (ihitl., pp. .")54, TiSS) is another witness to whoso testimony exceptional importanco should bo attached. Ho was of o[)inion that the herds from which skins aro obtained do not in fact intorminglo with each other, hccaiiso the skins classified under the head of I'oppcr catch aro not fomul amono' the consignment of skins i-eccivod from the Alaska catch, and ci'rr nisu. His testimony is quoled at some lent a oifferent bi-eed, but they keep over by themselves ; at least I don't tliink so. They follow their own stream along there. There is so much water there whei-o there are seals, and so much where there are not. They are by them- selves. Samuel Kalioorof (ibid, p. 214) : Kahoorof is a native of Attu Island, 52 years of age, and a hunter of the sea otter and blue fox. He had lived ' f% 'iK I liiT 246 ATIGUMENT OF THE UNITED STATES. in the same place all his life. We extract that part of his tesHmony which Ijoars upon the quostion now under immediate consideration : Have seen only three fur-seals in this region in twenty years. Saw them in May, 18!)U, traveling along the north side of Attn Island, about 5 miles off shore, and making a northwesterly course. They were young males, I think. Fur-s-^ala do not regularly visit these islands now, but about twenty-five or thij-ty years ago I used to see small squads of large seals during the month of June feeding and sleeping about the kelp patches off the eastern shores of Attn and Agattu Islands. They came from the southward and traveled in a northwesterly direction. Never saAV any fur-seals east of the Semichi Islands and do not think that those of the Commamler Islands herd go farther to the eastward than that. They decreased in numbers gradually, and during th3 last twenty yeai'S T have only seen the thi-ee above mentioned. Have never seen a nursing or mother cow or black or gray pup in this region, and do not think they ever visit it. John Malowansky (ibid., p. 198) : Mr. -Malowansky is a resident of San Francisco, an American citizeu, but a Russian by birth. He was, at the time of testifying, a merchant by profession and an agent for the Russian Sealskin Company. He resided on the Commander Islands in 1SG9, 1870, and 1871, and was then engaged in the sealing business. He was there again in 1887, as ngen. of the company. He formerly lived in Kamtchatka and frequently visited the Commander Islands between 1871 and 1887. He was an expert in all mattei's relating to the fur-seal trade, especially on the Russian side of the Bering Sea. The following is an extract from his testimony : The seals of the Commander Islands are of a different variety fx'om those of the Pribilofs. The fur is not so thick and bright and-is of a somewhat inferior quality, '.ney form a distinct herd from that of St. Paul and St, Oeorge, and in my opinion the two do not intermingle. I was present as interpreter when the English Commissioners were taking testimony on Bering Island. They examined among others, when I was present, Jelim Siiigerotf, Chief of Bering Island, he being the person selected by them there from which to procure the testimony I'elatiug to the habits and killing of seals. This Snigeroff testified that ho had lived on the Pribilof Islands for many years and knew the distinctive characteristics of both her.ls (Commander and Pribilof) and their habits and that ho removed from thence to Bering Island. He pointed out tiiat the two herds have several ditlerent characteristics and stated that in his belief they do not intermingle. Filaret Prokopief (ibid., p. 21G) : Prokopief is a native of Attn Island, 23 years of age, and the agent and storekeeper at thit place of the Alaska Commercial Company. His occupation was that of hunter lor sea-otter and iox, but never for fur-seal. This occupation he pursued until the time when he was made agent. His hunting grouml was Attn, Agattu, and the Semiclii Islands. This is his testimony : m SUMMARY OF THE EVIDB:NCE. 24r mony which y'ear.s. Saw slaiid, about were yoiiucf Is now, but. ^(ls of largo Lit the kelp They camo on. Never think that itward than last twenty u'ver seen a , and do not dent of San 3 was, at the the Russian , 1869, 1870, Jo was there •ly lived in ids between ) the fur-seal foilowinor is y from those a somewhat Paul and St. iioners were lers, when I g the person atin<>; to the lad lived on aracteristit^s and that he le two herds elief they do Attn Island, f the Alaska [or sea-otter ntil the time ittn, and the I never saw but one fur-seal in the water. Tt was a young male which Avas killed in this bay in September, 1884. I do not know of any fur-seal rookery or other places where fur-seals haul out on the land to breed or rest in the Aleutian Islands, nor where the old bull fur-seals spend the winter. I do not knoAv at what time or by what routes the seal herds move to and from iho Bering Sea ; have heard old hunters say the Commander Islands herd used to pass close to the western shores of these islands on their way north. Eliah ih'okopief (ibid., p. 21')) is a native of Amchitka Island of the Aleutian chain ; 52 yeai-s of age; had been a hunter all his life, but had never hunted or killed a fur-seal. His hunting ground was about Attu, Agattu, and the Semichi Islands. His testimony is as follows : b'ui'-seals do not regularly frequent these regions, and I have seen none but a few scattering ones in twenty years. Thirty ycai's ago, when the Russians conti'olled these islands, I used to see a few medium- sized fur-seals, one or two at a time, in the summer, generally in June, traveling to tlie northwest, and bound, I think, for the Commander Islands. The farthest east 1 have ever seen them was about 30 miles t'a.st of the Semichi Islands ; do not think those going to the Commander Islands ever go farther east than that. Those most seen in former times were generally feeding and sleeping about the kelp patches be- tween Attu and Agattu, and the Semichi Islands, where the mackerel abounds. They decreased in numbers constantly, and now are only seen on very rare occasions. Have seen but half a dozen in the last twenty years ; they were large seals — bulls, I judged from their size — traveling to the northwest, about 30 miles east of the Semichi Islands. This was in May, 1888. Have never seen any pups, black or gray, or nursing female seals in this region, and do not think they ever visit it. Do not know of any rookeries in the Aleutian Islands, nor any places where fur-seals haul out regularly on the land or kelp to breed or rest except the Russian and American seal islands of IJering Sea. Do not know where the old bull fur-seals spend the winter, nor what route the fur-seal herds take to and from the Commander and Pribilof Islands, nor at what times the herds pas.s to and from. Am quite sure the herds do not come near enough together to mingle in these regions. Have never known of fur-seals being seen between Amchitka and a point 30 miles east of the Semichi Islands. Do not think there are now as many far-seals as there were thirty years ago, bxit do not know the cause of the decrease. Sealing schoonera do not regularly visit these islands. Last August (1891) three of them came in here to get water, but only stayed a few hours each ; they had been to the Commander Islands and were going south. Gustave Niebaum (ihUL, ji. 202) : The testimony of Mr. Niebaum has been cited above and his qnalitications given. Upon the subject of the alleged or possible commingling of the different herds, he says {ibid., p. 204) : I am satisfied that the seal herds respectively upon the Pribilof group, the Commander Islands and Robben Bank, have each their * . ; . i« :; :■»*•■ , 1 1 248 AUGUMKNT OF THE TXlTEl) STATKS. 4 own distinctive feeding grounds an(l peculiar syrounds of migration. Xo doubt tliey arc of tlio saiiu' sjiccies, but there is a marked diifer- encc in the fur of the skins from the respective places, which can be distinguished by experts. C. A. Williams {ibiil., p. 535) : Mr. Williams is a citizen of the Unitcii States, a resident of the city of New London, in the State u2 Connec- ticut, and was at the time of testifying 6'A years of ago. Ho hail been largely engaged for a period of upwards of forty years in the whaliui;- and sealing business, in which he had employed upward of twenty-tivc vessels. He says that there is no intermingling of the herds. The testimony of Alexander McLean (ibid., p. 4:56) is to the same effect. !Mr. McJjean is a master mariner and had been engaged for ten years, at the time of making his deposition, in the business of hunting seals in the Pacilic or Bering Sea. To tiie like effect is the testimony of Danit'l ilcLcan (ihid., p. 44:>J. He, too, is a master mariner, and is of opinion that the Rus.sian and Alaskan herds aio dift'crent herds of seals altogether. His testimony is as follows : Q. Tu your opinion, do the seals on the Russian side intermingle with those on the Pacitic side:' A. No, sir; I do not think so. They are different seals in my opinion. It is only just to add that the IJritish Commissioners virtuallj' maki the admission that these liei'ds are separate and distinct, although the inference may bo drawn, fi'om some of their statements, leading to a contrary conclusion, when the practical question arises in connection with an appreciable difference in the value of skins. Thus, for instance, the suggestion is made of a prohaliJily in tlu- future, in a coui'so of years, that a continued " hai'assing" of one grouji might result in a corresponding gradual accession to the other, by which it is no doubt intended to convey the idea that nnless tho killing on the Pribilof Islands is discontinued tho seals will migrate and adojit n Russian domicile (Sec. 453). But the same paragraph admits (hat "the fur-seals of the two sides of the North Pacilic belong in tho main to practically distinct migra- tion tracts." They add that it is not believed that any voluntary or systematic movement of fur-seals takes place from ono group of breed- ing islands to the other (Sec. 453). See also section 108 of Biitish Com- missioners' report, that '' while there is cvcrij reason to belicvr, that the seals become more or less co'nraingled in Behring Sea during tho sum- Zll m Sl'MMAHY OF THK EVIDENCE. 249 a two sides mer [a purely gratuitous assumpticm], the migration routes of the two sides of the Nortli Pacific are essentially distinct." (See also Sees. 170, 198, 210, 220.) Without any evidence, then, on the side of the United States, it might bo asserted, on the Report of the British Commissioners ahme, that any inter- mingling of the two herds is abnormal antl exceptional, although these gentlemen are inclined to think that in the remote future this sej)aration may disappear. (c) TIIIO AI,ASK.VX irU-SKALS HAVE BUT O.VK UOMK, XAMKI.V, THK lianiLOK l.SLAMIS. THKY NEVKK l-EAVI) I'HIS llOMK WllllOlT THK ANIMliM KEVi:i!Ti;xi>i, Axi) Ai!h xi:vi;i; si:kx ashork ixcki'T ox tho.si: ISLANDS. The testimony as to this fact is uncontradicted except by the curious and utterly unsupported statement of the British Commissioners that the animals actually enjo}- and occupy two homes ; that is, they have it winter domicile, wliicli is not given except by a vague ami general dosignatioa (British Commissioners' ileport, Sec. 27), and a suuimer place of resort, which is the Pribilof Islands. 'I'lvn- in no preten."!- thaf tiny n-fr land vUinolwre. The force of this original suggestion of a double residence would be much increased if the slightest indication were given to enabl'j us to test the accuracy and to aid tlio Commissioners in satisfying the world of scientists that a grave error lias heretofore been committed and continuously accepted. But as we are endeavoring to treat the assertion as seriously and respectfully as possible, wo submit that in the face of absolute and uncontradicted proof, corroborated by general scientitic experience, we are not bound to ilevotc any (•onsiderablo space to the demonstration that the fact must be taken to bo as we have stated it. In fairness to the Commissioners for (ireat Britain, it may l)c jiroper to call attention to their own ianguage, noting, however, the singular process by which thi>y make the nn'gratiou of the seals commence at an nucfrtaiu ■point in the Vacijk to reach their well-established home and place of nativity in the north. The absurdity chargeable ui)on the British Commissioners of thus beginning at an uncertain point to reach a certain one is shown by Capt. Scammon, who has been an officer in the United States licvonue- Mariue Service since 1H08. ^Ir. Scammon is also the autiior of the woi'k entitled " The Marino Mammals of tlin Northwestern Coast ■;K f) k'V.) 250 ARGlJilENT OF THE UNITED STATKS. of North America," published by J. H. Carmanj &. Co., Sail Francisco, 1874. Ho says : The certainty that the seals caught in the North Pacific are in fact a portion of the Pribilof herd, and that all are born, and reared tor the first few inontlis, npon the islands of that group, naturally leads tlic observer to regard tliem as quite domesticated, and belonging upon their island home. The more orderly way to describe them, therefore, would be to commence ivith their bir/h upon the island and the beginning of their migrations, rather than at the end of some one of their annual rounds away from home. We now quote the language of the Report of the British Commis- sioners : osfenlitxlly pelagic, which, during the greater part of each year, has no occasion to seek the land and very rarely does so. For some portion of the year, hoivever, it naturally resorts to certain littoral breeding places, ivhere the young are brought forth and stickled on land. It is gregarious in habit, and, though seldom found in defined schools or compact bodies at sea, congregates in large numbers at the breeding places. (Sec. 20.) Then they describe the migrations and continue : The fur-seal of the North Pacific may thus be said, in each case, to have two habitats or homes between which it migi'ates, both equally necessary to its existence, under present circumstances, the one frequented in summci', the other during the winter. Unless the vast expanse of sea between the Aleutian Islands and Califor- nia may be considered a tcinter habitat, it is difficult to see upon what foundation these gentlemen have felt justified in making the statement of a double home. The object of such an argumentative assertion is too plain to require consideration, at least in connection with this point. The truth upon this question of habitat or home is as stated by the American Commissioners in their report. They use the following language : The Pribilof Islands aio the home of the Alaskan fur-seal (Callorhinus ursinus). They are peculiarly adapted, by reason of their isolation and climate, for seal life, and because of this ]ieculiar adaptability were undoubtedly chosen by the seals for their habiisition. The climatic con- ditions are esp'^cially favoro,ble. The seal, while on land, needs a cool, moist, and cloudy climate, sunshine and warmth producing a very injurious effect upon the animals. These requisite phenomena are found at the Pribilof Islands, and nowhere else in Bering Sea or the North Pacific save at the Commander (Komandorski) Islands. (Case of the United States, p. 89.) SUMMARY OF THE EVIDENCE. 251 Whafc might bo the result if tho seals were prevented from luiiding to drop their young at the Pribilof Islands is wholly a matter of conjecture. It would seem from the testimony in the Case quite certain that the pregnant females would lose their young if they wore on tho point of delivery when reaching the islands, and if driven off by man, or by accident ; they certainly would be exposed to great danger Avhile looking for another home, even assuming this exercise of sound judgment in extremis to be probable. Such difficulties do not, howevei-, trouble the Commissioners, who are satisfied that if they were to be debarred from reaching the islands now chiefly resorted to for breeding purposes, they would speedily seek out other places upon wjiich to give birth to their yoang. (Report of British Commissioners, Sec. 28.) This is based upon "experience recorded elsewhere." We fail to find any such recorded experience which would justify so wild an assertion. On the contrary, it appears that when the heavy females have been debarred by ice from the land they were delivered in the water and the young perished. The experience of tho South Sea seals is directly opposed to this theoiy. Exclusion from their usual haunts meant destruction. Why did they not when shut off from the resort of their choice seek out a new home, with the proper conditions of climate, soil, and food, to take the place of the old home from which man had driven them ^ We know of no reasonable theoi-y upon which it may be plausibly argued that the Pribilof seals would, under the like circumstauces, act differently. ] ..I Xf ■ J. .i'fe ill!. III. — MOVKMENTS OK THE SeALS AfTEE THE BlKTH OF THE YOUNO. It being conceded that the fur-seals known as the Alaska seals breed, " at least for the most part" (Report of British Commissioners, Sec. 27), on the Pribilof Islands in summer, it becomes important to know what their movements may be after the birth of the young. There is no very material difference between tho statements of the Commissioners of tho respective governments on this point. The breeding males begin to arrive on the Pribilof Islands at varying dates in May and remain continuously ashore for about three months, after which they are fi'eed from all duties on the breeding rookeries and only occasionally return to tho shores. Tho breeding females arrive, for the most part, nearly a month latei*, bearing their young immediatel}'^ on landing, and I'emain ashore, jealously guarded by the males, for several weeks, after which they take every opportunity to play in the water close along the beaches, and f^boiit a mpnth later they also begin [317] R 252 AKGUMENT OF THE UNITED STATES. Il; t to leave the islands in search of food and migrate to their winter habitat. The young males and the yomig females come ashore later than the breeding seals, and at more iiregular dates, and haul out by themselves. Lastly, the pups of the year born in June and July commence to pod, or herd together, away from their mothers, towards 'he middle or end of August, and after that frequent the beaches in great numbers and bathe and swim in the surf. They remain on the islands until October, and even November, being among the last to leave. (Report of the British Commissioners, Sec. 30.) The United States Commissioners make the following statement, which is corroborated by abundant evidence. The bulls are the male seals from five or six to twenty years of age, and weigh from four hundred to seoen hundred jjounds. They arrive on the breeding ground in the latter part of April or the fii-st few days of May, but the time is, to a certain extent, dependent upon the going out of the ice about the island. (Case of the United State«; p. 108.) Toward the latter part of May or first of June, the cows begin to appear in the waters adjacent to the island and imme- diately land upon the breeding ground. The great majority, however, do not haul up until the latter part of June, and the arrivals continue until the middle of July. Some of the bulls at this time (about the first of August) begin to leave the islands, and continue going until the early part of October. [Oaso of United States, p. 112, citing witnesses as to this point.] The bachelor seals, or non-breeding males, ranging in age from 1 to 5 or 6 years, begin to arrive in the vicinity of the islands soon after tt;e bulls have taken up their positions upon the rookeries, but the greater number appear toward the latter part of May. They endeavour to land upon the breeding grounds, but ai-e driven off by the bulls and compelled to seek the hauling grounds. As to the depai'tui-o of the seals from their home on the Pribilof Islands, there does not aoem to bo any question that the statement in the United States Commissioners' Report is correct. The length of time that a i)up is dependent upon its mother, as hereto- fore stated, compels her to remain upon the island until the middle of November, when the cold and stormy weather induces her to start, her pup being then able to support itself (pp. 119, 120). The bachelor seals generally leave at the same time as the cows and pups leave the island, though a few bachelors always are found after that period (p. 122 of the case of United States). The Alaskan herd has had but one breeding place, which is the Pribilof Tslands. While there is no expres.s contradiction a.«! to this in the irteport of ■f SUMMARY OF THE EVIDKNOE. •253 the Britisli Cotumissionera, it may be interestiug to oito some of the proof in support of this assertion. (a) The islands are in every particular adapted by climate and con- ditions to the purpose. While it is suggested, as Ave have seen above, by the British Commissioners, that the seals would find no difficulty in pro- curing another suitable place for breeding and for passing the summer months, this is manifestly a conjecture and need not be dwelt upon, (b) There is no evidence that the animal has ever i-esorted to other places, but all the evidence before this High Tribunal of Arbitration leads to the inference above stated. Tlie language of the Case on the part of the United States is as follov/s (p. 89): The climatic conditions are especially favorabU'. The seal, while on land, needs a cool, moist, and cloudy climate, sunsliine and warmth producing a very injurious effect upon the animals. These requisite phenomena are found at the Pribilof Islands and nowhere else in Bering Sea or the North Pacific, save at the Commander (Komandorski) Islands. This is abundantly sustained by the proof. 8ee upon this point the testimony of Charles Bryant (Appendix to Case of the United States, Vol. II, p. 4), Capt. Bryant having been long engaged in whaling and having acted as Special Treasury Agent at the Pribilof Islands. Also Samuel Falconer {ibid., p. 164). Mr. Falconer had had long experience as Treasury Agent on the islands, and otherwise, and is a fully competent witness upon this point. He assigns the reason for the selection of this breeding locality by the seals in the following lan- guage : The reason the seals have chosen these islands for their homo is be- cause the Pribilof group lies in a belt of fog, occasioned by the waters of the Arctic Ocean coming down from the north and the wai*mer waters of the Pacific flowing north and meeting at about this point in Bering Sea. It is necessary that the seals should have a misty or foggy atmosphere of this kind while on land, as sunshine has a very injurious effect upon them. Then, too, the islands are so isolated that the seal, which is a ver}' timid animal, remains here undisturbed, as every precaution is taken not to disturb the animals while they are on the rookeries. The mean tem- perature of the islands is during the winter about 26° F., and in summer about 43°. I know of no other locality which possesses these pecu- liarities of moisture and temperature. The grounds occupied by the seals for bi'eeding purposes are along the coast, extending from high-water mark back to the cliffs, which abound on Saint George Island. The young males or bachelors, not being allowed to land on these breeding places, lie back of and around these Vneeding grounds on areas designated hauling grounds. [317] i: -J 'my l\ f fix,- 4 254 ARGTTMKNT OF THE UNITED STATES. Cn])tain ilorsyiin soys (ibid., p. 61) : I believe that tlie cause the seals choose these islands for their homo is because of the isolation of these Pribilof Islands and because the climatic condition of these Pribilof Islands is peculiarly favorably to seal life. Daring the time the seals are upon land the wCather is damp and cool, the islands beinsr almost continually enveloped in fogs, the average temperature being about 41° F. during the summer. See, too, Daniel Webster, local agent for the North American Coun niercial Company, and stationed on St. George Island, who uses ths follow- ing language (ibid., p. 180) : 'flipse islands are isolated and seem to possess the necessary climatic conditions to make them the favorite breeding grounds of the Alaskan fur- seals, and it is here they congregate during the summer months of each year to bring forth and rear their young. Mr. Kedpath, a resident of St. Paul Island, Alaska. He had resided on the seal islands of St. Paul and St. (Jeorge since 1875, that is to say, at the time of giving his deposition, some seventeen years. He testified as follows upon this point {ibid., p. 148) : The Alaskan fur-seal is a native of the Pribilof Islands, and, unless prevented, will return to those islands every year with the regularity of the seasons. All the peculiarities of nature that surround the Pribilof group of islands, such as low and even temperature, fog, mist, and perpetual clouded sky, seem to indicate their fitness and adaptability as a home for the Alaskan fnr-seal ; and with an instinct bordering on reason, they have selected these lonely and barren islands as the choicest s])ots of earth upon which to assemble and dwell together during their six months stay on land ; and annually they journey across thousands of miles of ocean, and puss hundreds of islands, without pause or rest, until they come to the place of their birth. And it is a well-e.stabli.shed fact that upon no other land in the world do the Alaskan fur .seal haul out ol water. IV.-TuK ExriKK On 11 1; mi- ItKi'iioui cjiux and Rk.vkixij ov Yolxu is .\M) .MUST UE PKKFOIiMKli (IX La.\1>. " The act of coition takes place upon land " (Case of the United States, ]). 110). The correctness of this assertion is settled beyond controversy by the overwhelming proof furnished by the United States Commissioners. But had they produced no evidence whatever, it is clear that the data fur- nished by the British Commissioners themselves are insufficient to cast reasonable doubt upon the proposition, (a) The British Commissioners, in their report, begin with the broad and incorrect) statement that the fur-seal is an animal in its natnre SUMMARY OF THE EVIDKXt'K. 2;j.) r homo is e climatio » seal life, d cool, till! mperatuvo ican Coui- Hi3 follow - •y climatic laskan fur- 1x8 of eacli resided on say, at tlio I as follows and, unless Bgulnrity of he Piibilof mist, and daptability bordering ids as the ther during ^ thousands ise or rest, established al haul ont YoUMi IS ited States, troversy by imissioners. le data iur- ont to cast the broad its nature " essentially pelagic," which " for some portion of the yeai*, however, naturally resorta to certain littoral breeding places, where the young are brought forth and suckled on land " (Sec. 261). Why it is and how it happens that an " essentially pelagic " animal should naturally resort to land for the most important function of its life does not appear, and yet the exceptional singularity of the circumstance might have made ex- planation reasonable. It is enough for the present purpose to give, in a word, the explanation of this practice of resorting to land. It may be found in the universally conceded fact, that when the yonnij happen, to he born at sea they perish. Ability to swim does not come spontaneously or naturally to this "essentially pelagic " animal. It is part of its educa- tion, and is not always acquired without difficulty. The race would be at once extinguished, by failure of living offspring, if it were confined to its own element. Passing this anomaly for the present and again seeking information from the British Commissioners' Report, we learn that the breeding males begin to arrive on the Pribilof Islands at varying dates in May and remain continuously on shore /or about three months, after which they are freed from all duties on the breeding rookeries. * * * The breeding females arrive for the most part nearly a month later, bearing their young immediately on landing and remaining ashore, jealously guarded by the maleK for several weeks (Report of British Commissioners, Sec. 3U). It is plain that the impi-egnation of the female takes place during these months or weeks. The " jealous " care of the breeding males, their sojourn on the land " until they are freed from all duties on the shore," their patient waiting for the females ; all these facts show that there is n regular season of coition, which extends as they admit from May until July or August (see Report of British Commissioners, Sec. 306), and that the act takes place on the land. If this assertion needs further demonstration, it may bo readily furnished. Assuming, as we must, and as the British Commissioners themselvoa declare, that it is natural for the seal to resort to land for the purpose of bringing forth and suckling its young, it being, moreover, uncon- tradicted that there is but one breeding place for this herd of seals, viz., the Pribilof Islands, it is indisputable that the period of coition and impregnation must so correspond with the period of return to the islands as to enable the mother to time the period of deliveiy with that of i-eaching land. Nature is a wise and careful monitor in her dealing . : n 25(5 ARGUMENT OP THE UNITED STATES. with those and other animals and they heed her teachinjfs. Notliin^if is left to chance in the all-important matter of perpetuating the species. Coition and impregnation at sea and at irregular limes would 8im[)ly mean irregularity of birth and consequent destruction. Tf the females wore impregnated at any other season their young would be born at sea, and, notwithstanding their "essentially pelagic nature," would inevitably perish. This is further demonstrated by inexorable figures. The breeding females, say the British Commissioners, arrive at the islands nearly a month later than the males — that is to say, in June — and " immediately " di'op their young. Given the date of birth (some time in June or July) and the period of gestation (about fifty weeks) (Case of the United States, p. 113), it is not difficult to fix the season of fertilization, but it is impos- sible to fix it at any other time than the period of the breeding mother li* at ay at the islands. Such evidence as this outweighs the most ingenious and finely drawn conjecture. Even were it possible to show occasional acts of coition in the water after the females have been " released by their jealous male companions " on land, the fact would only be interesting from a scientific standpoint. It would not practically affect the question nor alter the fact that the coition which results in fertilizing the female is per- formed on land, as a result of natural laws, the violation of which to any considerable extent must eventually endanger the existence of, if not promptly and absolutely destroy, the race. The British Commissioners, undeterred by those very obvious objections and misled, no doubt, by inaccurate and undisclosed information, assei-t that there is a certain class of "immature males," known as " half bulls " or "reserves," that poach upon the preserves of the seniors and cover many of the females which escape the attention of the older males upon the rookery grounds and in siich cases the act of coition is usually acconu plished at sea ! (Sec. 287.) It v-i unfortunate that an assertion inconsistent Avith scientific investiga- tion and completely refuted by abundant proof should have been thus lightly made and suffered to rest upon mere affirmation. The statement is certainly not correct ; but, even if it were, it merely states, and this most vaguely, that an irregular practice is sometimes followed in excep- tional cases. But the important point that the " breeding females " are only served by the " breeding males " on land is shown by the report of the British Commissioners themselves : aiMMAHY OF THK KVJDKNCK. 257 'J'lio roinaining — nntl, at the time iii ({uestioii, most importaiit - cIiins is that of tho lirL'ediii}^ feinali-.-). Thivso, sowtiino ujter the biith of the youny and /ho mihurrjufnl cupnlnlinii vilh (he male, hv^'m to Umivc tho rookery f,'rounil ami seek tlie wator. Tliis they are able to do because of the lessened interest of the lieiich-niasters iu them, and more particiihirly after many of the beaeli-masters thcmselvea begin to leave their stands. («ec. 306.) I u section 309 Bryant is quoted thns : Bryant, after desc ibing the rohixation in watchfulness of tlie male after impregnation has ' en accomplished, says of the femaU? : " Fi-om tliat time she lies either sleeping near her young or spends her time either ,/loating or playing in the water near the nhore, returning occasionally to suckle her pup." This opinion is especially important, as the same person is relied upon iu another place as authority ♦,> show that tho habit of coition on land has been somewhat modified since .874. It certainly seems strange that if coition on land was the rule and tho [exceptions rare prior to 1874, "coition on land seems not to he the natural method." (Sec. 296.) There is evidently an error, either in the transcription or in the original state- ment. Mr. Bryant adda that " only rarely — perhaps in three cases out of ten — is tho attempt to copulate under such circumstances effectual." This is in direct contradiction to the conceded and establi.shed fact that the breeding females are fertilized on land. It is difficult to suppose that Natui'e did not teach these animals from tho earliest date V - most " natural " way of satisfying their instinct and perpetuating their species. Perhaps the British Commissioners would not have been driven to the extremity of quoting such statements were it not for the necessity of sup- porting their theory, viz., the mischievous diminuti-on of the malus by slaughter on the islands. Taking these statements altogether, they clearly prove the habits of the breeding animal to be as we have contended, subject possibly to alleged exceptions which, even if firmly established, would not impair the sub- stance of the contention. It might, perhaps, be safe to rest this branch of the case at this point and to submit to this learned Tribunal that the inconsistencies and self-repugnances of the Report are such as to deprive it of all value as a guide upon this branch, at least, of the discussion. We shall, however, even at the risk of importunity, pursue the subject still further. The statement in the Case of the United States as to the habits of the seals in the act of reproduction is as follows (p. 110) : ;, - I li L'Sft ARGUMENT OP THK ITXITED STATES. The act of coition taken place upon land, which by reason of the for- mation of the genital organH is similar to that of other mammals. It is violent in character and consames from five to eight minutes. This statement is not a mere affirmation unsupported by authority. It is based in part upon the evidence of which we hero give abstmcts : Mr. Joseph Stanley-Brown (Appendix to Case of the United States, Vol. II, p. 14), a geologist by profession, and as such employed in the United States Geological Survey, says : Pelagic coittnn I beliave to be impossible. The process upon land by reason of the foi-mation of the genital organs is that of a mammal, is violent in character, and consumes from five to eight minutes. The relative sizes of the male and female are so disproportionate that coition in water would inevitably submerge the female and require that she remain under water longer than would bo possible to such an am- phibian. I have sat upon the cliffs for hour.4 and watched seals beneath me at play in the clear water. It is true that many of their antics might bo mistaken for copulation by a careless observer, and this may have given rise to the theory of pelagic coition. I have never seen a caso of the many observed which upon the facts could properly be so con- strued. Mr. John M. Morton, United States shipping commissioner at San Francisco, went to Alaska in 1870, arriving at St. Paul Island in October. He remained until the close of the season in the following year. In 1872 he visited all the trading posts of the Alaska Commercial Company. The summer of 1873 he spent on the Island of St. George. In 1875 and 1876 he again visited and spent both summers on St. Paul Island. He was at all times greatly interested in observing the movements and habits of these animals, and scarcely a day passed that he did not visit one or more of the rookeries. During the seasons of 1877 and 1878, while serving in the capacity of special Treasni-y Agent, he devoted his best attention and study to this subject. This is his language in his sworn deposition which appears at page Q7, Volume II, of the Appendix to the Case of the United States : I desire also to express my belief concerning the seal life that the act of copulation can not he successfully performed iti the water. Those who have witnessed its accomplishment on the rookeries must coincide with such opinion. A firm foundation for the support of the animals, which the ground supplies and the water does not, is indispensable to oppose the pushing motion and forceful action of the posterior parts of the male which he exerts during the coition. The closest observation which I have been able to give to the movements and habits of the seals in the water has furnished no evidence to controvert the above opinion. NUMMARY OF THE EVIDRNCK. •J 5 9 S. R. Nettloton, a i-eNidont of Seattle, Wash., was aiipointed Special Agent of the Treasuiy Department in the autumn of 1889, at which time he went to the island of St. Paul in the performance of hiH duticH. Ho returned to the States in 1890, and in 1891 returned to St. Paul Island, and remained there through June and July, and was then transferred to the island of St. George, where he remained until Juno, 1892. In the discharge of his duties as Treasury agent, he made such ohservations as could be taken from the breeding rookeries and the waters immediately adjacent thei-eto. His statement of facts is based upon personal observa- tion as well as the information received from the natives of such islands nnd the white men resident tlicrodn. This is jiis langungo f Appendix to C'ase of the United States, "\'ol. II, 1>. 75) : Rfcferriug to the question as to whether pelagic coition is possible, I have to say that 1 have never seen it attempted, but from my observa- tions I have come to tlie conclusion that pelagic coition is a physical impossibility. Dr. H. H. Mclntyre, superintendent for the lessees of the Pribilof Islands, during the entire term of their lease, visited the islands twice in the summer of 1870, and there he remained constantly from April, 1871, until September, 1872, and thereafter went to the islands every summer from 1873 nutil 1889, inclusive, excepting 1883, 1884, and 1885. His opportunities for observation were excellent, for he remained on the islands four months, from May until August, in each season, supervising the annual seal catch, examining the condition of seal-life, slndying the habits of seals, and, in brief, doing sueli work as the interests of the lessees seemed to demand. He says (Appendix to Case of the United Statf^p, Vol. II, p. 42) : It has been said that copulation also takes place in the water between these young females and the so-called " nonbreeding males," but with the closest scrutiny of the animals when both sexes were swimming and j)laying together under conditions the most favorable in which they are ever found for observation, I have been unable to verify the truth of this assertion. After coitus on shore, the young female goes off to the feeding grounds or remains on or about the beaches, ilisporting on the land or in the water as her ineliiiation may lead her. The male of the same nge goes upon the " hauling grounds" back of or beside the rookeries, where he remains tlie greater part of the time, if unmolested, until nearly the date of his next migration. Mr. Arthur Newman had lived, at the time of his deposition, over twenty years on the Aleutian Islands. For eight years he had been r^ r »i < ., (. 260 AuaUMENT OF THE UNITED STATES. • .1 • ' fi agent for the Alaska Commercial Company, at Chernofsky, and for ten years bo had acted in the same capacity at Uranak. He had every opportunity, as will appear from his deposition on page 210, Vol. II, of the Appendix to the Case of the United States, to observe the habits of the seals. Tliis is his language : I have seen seals sleeping on kelp and feeding about it, but have never seen them copulate anywhere except on a I'ookery. 1 do not believe that pups born on kelp could be properly iiui-scd and brought up. I do believe that it is iiLcessary to their snccessfnl existence that they be born on Innd, since they can not swim at hirth. Norman Hodgson (ibid., p. 3t37), a resident of Port Townseud, in the State of Washington, and a fur-seal hunter by occupation, gives many in- teresting details as to the habits of the seal. On the point now under con- sideration, he says : I do not believe it possible for fur-seals to breed or copulate in the water at sea, and never saw or heard of the action taking place on a patch of floating kelp. I have never seen a young fur-seal pup of the same season's birth in the water at sea on a patch of floating kelp, and, in fact, never knew of their being born anywhere save on a rookery. 1 have, however, cut open a gravid cow and taken the young one from its mother's Avomb alive aiul crying. 1 do not believe it possible tor a young fur-seal pup to be successfully raised unless born and nursed on a rookery. 1 have seen fur-seals resting on patches of floating kelp at sea, but do not believe they ever haul up for breeding purposes anywhei-e except on the rookeries. Charles Bryant, who had spent considerable time on the Islands and had acted during a period of nine years as special agent of the Treasury Department, says {ibid., p. 6) : In watching the seals while swimming about the islands, I have seen cases where they appeared to be copulating in the Avater, but I am certain, even if this wei-e the case, that the proj)agation of the species is not as a rale effected in this way, the natural and usual manner of coition being upon land. Capt. James W. Budington, who testified to his experience, which was considerable, in seal hunting at Cape Horn and in the Southern Atlantic Ocean, says (ibid., p. 505) : I am also convinced that coi)ulation takes place on land before they migrate, the period of gestation being about eleven months. Samuel Falconer, a witness whose experience and qualifications have been mentioned heretofore, says {ibid., p. 1G5) : wM 1 i i „•• ST'MMARV OF THK KVIDKNCE. 2(51 I and for aad every rol. II, of jits of the ave never ?lieve that do believe n on land, nd, in* the ! many in- inder con- As a general nilo, the ini])regnation is by the bull to whose harem slie belongs, and not by the young males, as has sometimes been stated. These young males also pursue a female when she is allowed to leave the harejn and go in tlie water, but she refuses them. I am positive from my ob- servations that copulation in the water could not be effectual, and would be a most unnatural occurrencv. .Fohn Armstrong, for a long time an employe in the Alaskan service in connection witli the sealeries testified with much caution, and is the only one of the witnesses who does not speak with absolute confidence. His testimony is as follows (ibid., p. 2) : I am asked whether the seals copulate in the water. It is a question that is often discussed at the islands, and neither the scientific observers noi- the unscientific are able to agree about it. I h ive seen seals in position wiieu it seemed to be attempted, but doubt whetj ci' it is effectually accom- plished. If it were, I think we should sec pups sometimes born late and out of seasou, but such is not the case. ate in the lace on a Lip of the kelp, and, jokery. 1 le from its )r a young a rookery, bvit do laot ept on the [s and had Treasury have seen m certain, is not as a tion being vliich was 11 Atlantic fore they ions have V. — The Pup is Entirely Dependknt upon its Mother for Nourish- AIENT FOR SEVERAL MOXTHS AFTER 1X3 BiRTU. The Cows will suckle their owx Purs only a\i> the .Slcklinu i^^ nONE ONLY ON LaNH. As in the case of all mammalia, the young must be dependent for nourishment during a certain period upon the milk furnished by the mother. The proof, moreover, is uncontradicted, and the British Commis- sioners admit that the suckling is done only on land. There is a question raised, however, which it may be useful to discuss, namely : Are tlie pupa suckled only by iheir mothers or do these act indiscriminately and give nourishment to such young as they may happen to find conveniently at hand ? It is asserted in the Case of the United States that these animals constitute no exce]»i:on to the general rule by which the mother recognizes lier own offspring and nourishes it alone. 'I'his is the language of the Case (page 114) : A cow, as soon as a pup is brought forth, begins to give it nourish, ment, the act of nursing taking place on land and never in water, and she will only suckle her own offspring. This fact is verified by all those who have ever studied seal life or bad experience upon the islands. William Brennan (Appendix to Case of the United States, Vol. Tf, p, y59). The testimony of Mv. Brennan, a native of Cireat Britain and a resident, at the time of making hia deposition in 1892, of Seattle, in the State of Washington, is interesting and enters into minute details, \\hicb '20 2 ARGUMENT OF THK CMTEI) STATFJ. V'> sub- ject. He snys : ■ In May tbe bulls commence to baul np on the rookeries, and the cows come throe or four weeks later. Tbe bulls choose sucb ground as they mean to bold tbroujjb the summer, fipbt savagely, and the strongest wins. Each lias bis own family, and ^ bould a stranger ap- proach, there is wai-. On the rookeries one may see all classes of seals, apart from each other, the bulls and breeding cows in one place and the young in another. The pups are born on the rookeries, and remain with their mothers, living wholly upon their mother's milk until they can go into the sea and care for themselves. There is nothing on the beach for tbe old ones to eat, and they go several miles from the rookeries out to sea to obtain food. When the pups are born they can not swim, and the mothers take them to the water's edge, where one can see thousands paddling and struggling in the surf. The noise made by the mothers crying for their pnps, and the bleating of the pups in answer, make a constant roar. The cow is three years old before she bears young. The pups are about forty-five days old before they can go into the water, bnt they nurse the mother as long as they stay on the island. This testimony, if reliable, and there is no reason to dispute its accuracy, establishes the dependency of the pup upon its mother not only for food, but for care and instruction in swimming. Joseph Stanlej'-Brown, whose contributions to the subject of fur-seal life and their habits are extremely valuable and are frequently referred to in the Case of tbe United States, is very emphatic and satisfactory upon this subject. His qualiticatlons have already been .stated in connection with other propositions. He says (ibid., pp, 15-1(5) : Kor the first few days, and possibly for a week, or e\ en ten dav«, the female is able to nourish her young oi- offspring, but she is soon compelled to seek the sea for food, that her voracious j-oung feeder may be jiroperly nourished, and this seems to be permitted on the part of the male, even though under protestation. The whole physical economy of the seal seems to be arranged for alternate feasting and fasting, and it is probable that in the early days of its life, the young seal might be amply nourished * * * without herself resorting to the sea for food. The female gives birth to but a single pup. The labor is of short dura- tion, and seems not to jiroduce, great pain. In the first weeks of its life, the ]iup does not secf« to recognize its mother, but the latter will recognize and select her off.'spring among hundreds. The young, upon being born, have all tbe appearance of pups of a New- foundland dog with flippers. On emerging from tlieir warm resting plat" into the chill air, tney *tera plaintive bleat not unlike that of a young lami). I'lio mother fomiles then with many demonstrations of affection, and they begin nursing soon after their birth. * * * The young seals require the nourixbing care of their mother for at least four months, and pups have bcm kiUed on the island late in November the stomachs of which were filled with milk • # * The [mps are afraid of tbe water; they have to L-arn to swim by re- peated efforts, and even when able to maintain themselves in the quiet F ' I "iv < i 5s T ^ I tlie siil- the cows ground as and the fan go r ap- s of seals, place and eries, and lier's milk There is ,-eral miles s are born iter's edge, surf. The ileatingf of ) years old old before s they stay s accuracy, ly for food, of fur-sea^ referred to ictory upon connection dav-«, the compelled be piopcrly male, oven seal seems Ac that in * * # ;liort dura- of its life. 1 recognize of a Xew- stiiip plat" 111' a young affection, for at least vember tlie wini by re- the quiet SUMMARY OF THE EVIDENCK. 2(53 waters will rush in frantic and I'ldicrous haste away from an approaching wave. I have taken pnps 2 or 3 weeks old and carried them o' t into still water and they awkwardly, but in terroi", floixudered towa d the shore, although they could have escaped me by going in the other direction. In three trials, paddling in all about (30 feet, the pups became so o.vliausted that they would have been drowned had I not rescued them. If the pups, when collected in groups or pods near the shore, were to be overtaken by even a moderate surf, they would be drowned, and such accidents to them do occur on the island before they bavo entirely mastered the art of swimming. Charles Bryant has been quoted in connection with other propositions contained in the Case of the United States. He testifies upon this point as follows (ibid., p. 5) : The pup is nursed by its mother from its birth so long as it remains on the islands, the mother ka\ing the islands at different intervals of time after the pup is 3 or 4 days old. I have seen pnps, which I had previously marked with a ribbon, loft for three or foui' da\'s C(mseontively, the mothers going into the water to feed or batlie. A mother seal will instantly recognize her offspring from a large group of pups on the I'ookery, distinguishing it by its cry and smell ; but I do not think a pup can tell its own mother, as it will nose about any cow which comes near it. A female seal does not suckle any pup save her own, and will drive away any other pups which approacli her. I am positive that if a mother seal was killed her pup must inevitably perish by starvation. As evidence of this fact, 1 will state that I have iaken stray, niothei-less pups found on the sand beaches and placed them upon the breeding rookeries beside milking females, and in all instances these pups have finally died of starvation. Testimony such r.s this must be conclusive, except on the theory of absolute and intentional perjury. It is a satisfaction to the counsel for the United States to be able to state that no witness has been Avillin^. so far as they know and so f\ir as appears from the British Commissioners' Report, to put himself upon record, wit'i or without oath, as directly con. Iradictiug these emphatic statement's. John Fratis, a native of Ladrono Ipcands, went to St. Paul Island in 18t)9, married a native woman of that place, and became one of the people. Was made a native sealer and resided on the island ii-om that time on. His exi)erience, therefore, is valuable. H..' s ys {ibid., p. 108) : The pups are born soon after the arrival of the cow-, and they are help- less and can not swim and they would drown if put i.ito water. The pups have no sustenance except what the cows furnish and no cow suckles any pup but her own. The pups would suck any cow if the cow would lot them. After the pup is a few days old the cow goes into the sea to feed, and at first she will only stay away for •o few hours, but as the pup grows stronger she will stay away more and more until she will sometimes be away for a week. ■I'-:: i 'I 264 ARGUMENT OF THE UNITED STATES, .1 \ Numerous other witnesses Avero called who agreed that the only means of sustenance for the pup while it remained on the island, that is, for throo or four months after its birth, is its mother's milk, and that it would perish if deprived of the same. Upon this point the followinq; testi- mony may be read : William Healey Dall (ibid., p. 23) ; Samuel Falconer (ibid., p. 165) ; William S. Hereford (ibid., p. 35) ; Nicoli Krukoff (^ihul, p. 135). H. W. Mclntyre says (ibid., p. 13G) : Within a few days after landing (it may be but a few hours or even minutes, as T have seen) the female gives birth to her young, but one being brought forth each year. The reported f)ccasional birth of twins is not verified. These little ones (puj)s as they are called) are comparatively helpless, particularly awkward in movement, and, nnlikc the hair-seal, are unable to swim. They are nursed by the niothei', who, after copulation has taken place, is ))ermitted by the old male to go at will in quest of food. At about six week.s old, the young gather in gi-oups and shortly after learn to swim, but depend for a long period upon the mothar for sustenance ; hence her destruction must result in the death of the young through starvation. tSo, also, J. H. Moulton (ibid., p. 72). Mr. Noyes says (ibid., p. 82) : The pup is entirely dependent upon its dam for sustenance, and when it is a few days old she goes into the sea to feed, returning at intervals of a few hours at first, and gradually lengthening the time as the pups grow oldei' and stronger, until she will be, sometimes, away for a whole week. During these journeys, it is my opinion, she goes a distance of from 40 to 200 miles from the islands to feed; and it is at this time she falls a prey to the pelagic hunter. Returned to the rookery, the cow goes straight to where she left her pup, and it seems she instantly recognizes the spot by smelling, and it is equally certain that the pup can not recognize its dam. I have often seen pups attempt to suckle cows promiscuously, yet no cow will suckle any pup but her own. J. C. Redpath (ibid., pp. 148, 149) : No cow will nurse any pup but her uwn, and I have often watched the pups attempt to suck cows, but they were always driven off; and tliis fiict convinces me that (lie cow rocognizcs lior own pup iind tiiat tin- pup dofs not know its dam. At birtli and for several weeks after, the pup is utterly helpless and entirely de|icn(l(';it upon its dam for susten- ance ; and should anytliing )ii'cvent lier I'etnrn during this period it dies on the rookery. This has been demonstrated beyond a doubt since the sealing ve.ssels have operated largely in th(( Behring Sea during the months of July, August, and Septembei', and which, killing the cows at the feeding grounds, left (he |)ups to die on the islands. At about 5 weeks old the pups begin to nm about and congregate in bunches or "' pods,"' and jit t> to S weeks old they go into the shallow r I: t ■ 1 SUMMARY OF THK EVIDENCK. 265 Illy means lat is, for ad that it ivinp; tcfiti- p. 165) ; I'S or even t one bcin often seen suckle any VI atched the ; and this 1 that tlu> after, the for sustpu- iod it dies )t since the during the the cows cong'regate the shallciw water and gradually learn to swim. They are not amphibious when born nor can they swim for several weeks thereafter, and were thev put into the water would perish beyond a doubt, as has been well established by the drowning of pups caught by the surf in stormy weather. After learning to swim, the pups still draw sustenance fi-om the cows, and I have noticed at the annual killing of pups for food, in Novem- ber, that their stomachs were always full of milk and nothiug else although the cows had left the islands some days before. I have no knowledge of the pups obtaining sustenance of any kind except that furnished by the cows ; nor have I ever seen anything but milk in a dead pup's stomach. Daniel Webster asserts positively that the death of every mother "ansrs the death of he^- pup, which is entirely depettdent upoa her for itu ansti'iiaitcr. Mr. Webster's testimony is valuable not only for its intrinsic value, but because its reliability is vouciied for by the British Commissioners thum- selves (Sec. t)77). Tt will be observed that all the witnesses cited above are men spe- cially capable, of long experience and a knowledge of the subject suffi- cient to enlighten any court whoso function it may be to ascertain the facts connected with seal life. Such testimony can not fail to be con- clusive in the judgment of this Court, unless it should be rejtcted as willfully and intentionally false. No gi-oand for such a wholesale impu- tation upon the character of apparently intelligent and reputable men can be suggested. The functions of every court of justice become im- possible, and decisions on questions of fact must be left to the caprice of judges, if such testimony may be arbitrarily disregarded. Sui'oly tlu; conjectures and conclusions of an iidversarv unsupported by tlic slightest pretense of prcjof, in a legal sense, can not bo deemed a sufficient ground for such a chai-ge. However high may be the chaiucter of the Bi'itish Commissioners for intelligence and integrity, their bald assertions can not take the place of th SOMK- HUNDRF.n lptl'bk by p. 115): con pi'Uecl offspring. js into the i lengthen • a week at in the evi- [jiding this special ut- amissjoners the general such cases. Case of the erwhelmiug tcs, Vol. II, and no seal |io leaves its e from my I her search er from the tempting to ther will at er. This I ■oaclied her, rc she recog- |long expori- and whoso If his actual Itaicts place first born the pup can ntit swim, and docs not, \rnvn sm to do until it is si.v or eight weeks of age. It is tliorel'orc uttorl}- impossibh; for a pup to be born in the water and live. I liave noticed that wlien a pup of tliis age is put in the water it seemed to have no idea of the use of its flippers, and was very much terrified. A pup is certainly for the first six oi- eight weeks of its life a land aninuil, and is in no sense ami)hibi()us. During this period also a pup moves ver}' much like a young kitten, using its hind flippci's as feet. A niotlier seal will at once recognise her pup by its cry, hobbling over a thousand l)leating ])ups to reach her own, and every other approaching her, save this one little animal, she will drive away. * * * A pup, however, seems not to distinguish its mother from the other females about it. William Healey Dall, a scientist whoso studies were completed under Prof. Louis Agassiz, at Cambridge, in the year 18G3, and who has been since that time engaged in scientific work, gave the result of his personal examination made during the several years that he visited St. George Island and the Aleutian Lslauds. His opportunities to familiarise him- self with aquatic seal life were excellent raid are fully detailed in his deposition on pages 23 and 24 of the Appeniil.x: to the Case of the United States. He says : Fi'om my knowledge of natural history and from my observations of seal life, I am of the opinion that it would be imposslbh^ for the young seals to be brought forth and kept alive in the water. When it is tlio habit of an animal to give birth to its young upon the land. It is contrary to biologic teaching and common sense to suppose they could successfully bring them forth in the water. It does not seem to mo at all likely that a mother would suckle any pup other than her own, for I have repeatedly seen a female select one pup from a large group and pay no attenilon to the solicitations of others. I'nps require the noui'Ishment from their mothers for at least three or four months after their birth, and would perish if deprived of the same. I have had ample opportunity to form an opinion in regard to the effect upon the herd of killing fenuilo seals. The fonuilc brings fortli a single oflspriug annually, and hence the repair of the loss by death is not i-apid. It is evident that the injury to the herd from the killing of a single female, that is, the producer. Is fai' greater than from the death of the male, as the seal is polyganu)us In habit. The danger of the herd, therefore, is just in propoi'thn to the destruction of temah; life. Killing in the open waters is peculiarly destructive to this animal. No discrimination of sex in the water is possible, the securing of the prey when killed is under the best of eircunistauces uncertain, and as the period of gestation is at least eleven niontlis and of nursing three or four months, the death of the female at any tiniuj means the destruction of two, herself and the foetus ; or when nursing, three — herself, the nursing pup, and the foetus. All killing of females is a menace to the herd, and as soon as such killing reaches the point — as it inevltalily must If permitted to continue — where the animal increase will not make good the yearly loss, then the destruction of the herd will bo equally rajild ami certain, regarded from a commercial standpoint, though a few individuals might survive. Karp Buteriu, a native of St. Paul Island, on which island he had lived [317] I1 .« I « '^t ^m h 1 tm n :.!(.S ARGUMENT OF THR UNITED STATKS. up In llic lime of inakiiijjf liis deposition, wlieu he was 39 years of age, Iiad been engaf^ed in driving seals, clu1)bing and skirning them ever since lie was able to work; he says (Appendix to Case of the United States, Vol. II, p. 103): Sehooners kill cows, pups die, and seals are gone. Some men tell me last year, " Karp, seals are sick." I know seals are not sick ; I never seen a sick seal, and I eat seal meat every day of my life. * * ♦ No big seals die unless we club them ; only pups die when starved, after the cows aie shot at sea. When we used to kill pups for food in November they were ahvays full of milk ; the pups that die on the rookeries have no milk. The cows go into the sea to feed after the pups are bom, and the schooner men shoot them all the time. The same rule as to exclusive nursing of her own pup.s by the cow is proven to exist in the Antarctic regions by Mr. Comer. George Comer (thid., p. 598) says : I have never seen a "clap-matcli " suckling more than one pup, and it is my impression that a " clap-match " would not nurse any pup except her own, for I have seen her throw other pups aside and pick out one parti- enhir one from the whole number on the rookery. Anton jMelovedoff, a native of Alaska, testifies as follows (ibid., p. 144) : When the pup is born it is utterly helpless and would drown if put into water. Tliose born nearest the Avatcr are often drowned in the surf when the sea is rough in stormy weather. When the pup is a few days old the cow goes into the sea to feed and as the pup grows older the cow will stay longer and longer until sometimes she will be away for a week. When the cows return they go to their OAvn pups, nor will a cow suckle any pup but her own. The pups would suck any cow that would let them, for they do not seem to know one cow from another. H. H. Mclntyre, to whose valuable deposition attention has been hereto- fore called, uses this language (ibid., p. 41) : At this time ihey arc simply land animals, with less aquatic instinct and less ability to sustain themselves in water than newly hatched ducklings. When the pups are a tew days old the mothers leave them (generally soon after coition upon the rookeries with tlie old male) to go to the feeding grounds, returning at intervals of one to three or four days to suckle their young. The pups do not appear to recognize their own dams, but the mother distinguishes her own offspring with unerring accuracy and allows no otlier to draw her milk. Louis Kimmel, at one time assistant Treasury agent on St. George Island and a resident of that place for over one year, testifies as follows (ibid., p. 174) : A cow ncv'cr suckles any but her own pup. When a strange pup approaches a cow she will drive it away from her, and out of thousands of pups huddled together she will single her own. It is my opinion that if a mothei- is killed off her offspring dies of starvation, h SUMMARY OF TflR KVIDFATK. •26f> fi of age, iver since id States, a tell me lever seen No big ■ the cows aber they 9 no milk. I schooner r IS proven np, and it except her one parti- ., p. 144) : if put into surf when lys old the (V will stay When the ly pnp but n, for they 3en hereto- istinct and ducklings, erally soon le feeding uckle their 18, but the and allows orge Island owH (ibid., range pnp onsands of on that if To" the saino effect is tlic teHtimoii}- oF Dr. lleret'ord. Willmni S. Hereford, a physician of character and experience, a graduate of Santa Clara College, S. J., and of the University of Pennsylvania (ihid., p. 33) : It is a well-known fact that the female seals leave the islands and go great distances for food, and it is clearly proven that many of tliem do not return, as the number of pups starved to death on tlic rookeries demonstrates. The old mother seal will not nurse any but its own oifspriug and can single it out of a band of thousand, even after an absence of days from the islands. The difference between a well-nourished pup and one; starving to death is also easily recognized, one bein? plump and lively, growing extremely rapidly, the other slowly dwindling away, its l)ody becoming lean, long, and lanky, the head being the largest and most conspicuous part. The poor little thing finally drops from sheer ex- haustion in its tracks, it being only a matter of time before it succumbs to starvation. Dr. Hereford narrates in a highly interesting manner the efforts made to raise " Little Jimmie," a child of adverse circumstances, whose mother had been accidentally killed. This narrative may be found on pages 33 and 34 of the Appendix to the Case of the United States. Several other witnesses concur in testifying that the mother will readily distinguish her own offspring from that of others and will not permit the young of any other seal to suckle her. If there is anything in the Report of the Commissioners of Great Britain which rises to the dignity of evidence and which may bo weighed against this overwhelming mass of testimony, we have failed to discover it. The plausible suggestion that they make in explanation of the apparent effoi-t of the mother to distinguish her offspring by smelling the various pups, is that she thus goes about until she finds one that does not smell of fresh milk. (See. 323). Vri. — Dkath op thk Cow Causks tiik Deatk of thi; Pur. The materiality of the question last discussed, and of the fact asserted and demonstrated that the mother nurses only her own pup, lies chiefly in the correlative assertion that the death of the cow causes the death of the pnp. Assuming the premises to be established that the pup depends n\um its mother for food and can be fed in no other way than by that mothei', the conclusion establishes itself without the necessity of extrinsic proof. The testimony directly upon this point is voluminous, and, it is snbnutted, entirely satisfactory. It goes very far to exjtlain one of the general causes for the diminution of the species. [317] * 2 270 AlUil'MKNT OK THK I'MTKD StATKS. m So iiuuiy witnosHCs liavu tcsti tied upon lliis point, and it in ko doubtful whether any testimony at all is needed if it be established that tlie pup depends wholly upon its mother, that we shall confine ourselves to brief abstracts. (ieorye Ball (Appendix to Case of the United States, Vol. II, j). 481), a shipmaster and a sealer, does not hesitate to say that the pups perish with the cows that he and his companions kill. William Brennan sums up the situation with the conclusive argu- ment that " it stands to reason that if the mothers are killed while away from the island and the pups are left there alone they will surely die, and it is a fact that many mothers are killed in Bering Sea" (ibid., p. 363). Henry Brown, seaman, engaged in pelagic sealing and residing at Victoria, British Columbia, gives his experience in the slaughter of gravid females as well as the females taken in the Bering Sea whicli arc not gravid, he says : These were cows in milk. Every seal captured causes the death of either an unborn pup or the death of a young pup by starva- tion on the islands. He says (ibid,, p, 318) : If pelagic sealing is continued, especially with guns, in a few years the seal herd will become commercially destroyed. Luther T. Franklin, a seal-catcher, being asked, "Do the pups perish with the cows that you kill ? " answered, " naturally they must." (Ap- pendix to Case of the United States, Vol. II, p. 426.) Charles Lutjens testifies, with probably unconscious force, as to the brutality of the occupation in which he is engaged (ibid., p. 469) : Q. Do the pups perish with the cows that you kill? — A. Certainly Not alone that, but they generally leave, while they go into the Bering Sea, a pup on shore, which also dies from not being able to get any sustenance. The seal which is killed in the Bering Sea may be Avith pup and also has a pup on shore, Avhich made the killing three seals to one. Alexander McLean says that if you kill a female seal you kill the pup with her (ibid., p. 437). For other testimony upon this point, see Daniel Claussen (ibid., p. 412), Luther T. Franklin (ibid., p. 425), Louis Kimel (ibid., p. 174), and many others testifying to the same fact. Multiplication of extracts could not add to the force of testimony so reasonable and conclusive upon its face. Indeed, the evidence is so complete that the victims of pelagic H «TTMMARY OF THK KVIDFNrK. 27 doubtful , the pu[) 3 to brief p, 481), a jrinli with ive ai'gu- iled while /ill suvely a" {ibid., laiding afc of gravid li arc not ^ed causes by starva- years the ips perish It." (A.p- aa to the Certainly le Bering ,o get any y be with e seals to 11 the pup l, p. 412), and many timony so )f pelagic slaughter arc mainly, if not wholly, femiileH, as lo forbid (•(.ntvudiclioii. Wo accoi'dingly find that rho British CorimissioncrH make this adiiiis- .siou; " It is V7iil(mbtedly true that a comulcrable proportion of the seals taken at _8ea are females, as all xi-ah of Idlhhlr size arc killed vlilioul discrimination of sex" (Sec. 78). It is true that they hasten to add that this disproportion is due irt, part to the persistent killing of young nmlos on land. Possibly this may be true. Undoubtedly if the poachej's found killable males as well as gravid females, they would slaughter both and the disproportion would bo less marked. But the Commissioners do not pretend that the absolute number of females killed would bo any smaller. The pelagic hunter would kill them all with indiscriminate impartiality. How the situation would be helped by this is not stated, although it may show how the scope of the business might bo enlarged. This curiosity is stimulated, but not satisfied, by the admission that their disproportion is in part explained as stated ; it might have been just to the Tribunal to state what else might bo said to throw light upon the subject. The cows, while suckling, go to sea for food and sometimes to distances as great as 100 to 200 miles, and are during such excursions exposed to capture by pelagic sealers (see Cnse of the United States, p. 115). The statement in the Case to this effect is borne out by the testimony and by fully substantiated facts. The vagueness of the statement madi^ by the British Commissionci-s fails to conceal the evident intent to create the impression that the females, like the males, may live and nurse their young for a long time without food. In section H07 of their Report this language is used : It is very generally assumed that tlie female, on thus begiiniiug to leave the rookery ground, at once resumes her habit of engaging in the active quest for food, and though this woiild appear to be only natural, particularly in view of the extra drain produced by the demands of the young, it must be remembered that, with scarcely any exception, the stomachs of even the bachelor scal.s killed upon the islands are found void of food, and that all seals resorting to the islands seem, in a great degree, to .share in a common abstinence. The concession of an crfra drain upon a nursing female is genorou.sly followed up by the statement " that it may be considered certain that after a certain period the females begin to seek such food as can be obiained." Tt is then stated that "there is a very general i)elief among the natives, both of the Pribiloi' and Commander i.^lands, to the effect that the I'emiiles do not leave ilu; land fo feed while engaged in sucklinu' ■' t| li^ ! 4-,.' I . ■ i s^. IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 11.25 Ui U|2 .2.2 1^ ^ m us Its u lAO U 11.6 Photographic Sciences Coiporalion 4^ ■l^ <^ ^ .1 tttTkST MAIN STRin WftSTIR,N.Y. )4SM (716)t72-4S03 Ci^ ml 27: AROriMEST OF THE UNITED STATE>^. their young." That there is any such general belief is most strenuously denied on the part of the United States, is dispioven by the few witnesses fited by the British Commissioners themselves, and is negatived ovor- wholmiiigly by the testimony on the piirt of the United States. 'IMio painful attempt to justify pelagic sealing by distortion of commonly accepted facts is nowhere more apparent than in section .'J08 : It appeal's to ui- to be quite probable, however, that toward the close of the season of suckling, the female seals may actually begin to spend a considerable portion of their time at sea in search of food. It is unlikely that this occurs to any notable extent until after the middle of September, before which the season of pelagic sealing in Bering Sea prac- livalhj closes. Comment would be absurd on this. "Bryant," .says the British. Commissioner, "after describing the i-elaxa- tion in watchfulness of the male after impregnation has been accomplished, .says of the female : ' From that time she lies either sleeping near her young or spends her time floating or playing in the water near the shore, returning occasionally to suckle her pup.' " That she should go to the water to play and float and neglect the opportunities of replenishing her energies, wasted as they are by nursing, seems utterly incredible. It is well to note the admission, however, that during this period the suckling is on land whither she retnrns to accomplish it. Elliott is ({uoted in the same section as stating that " the mother nurses lier pup every two or three days," but adds, " in this I am very likely mistaken." Again, Elliott says of the mother, coming up from the sea, that " she has been there to wash and perhaps to feed for the last day or two." In another reference given by the British Commissioners from the same authority, ho is made to say : Soon after the birth of their young, they \eave it on the ground and go to the sea for food, returning perhaps to-morrow, perhaps later, even not for several days, in fact, to again suckle and nourish it, having in the meantime sped far of to liistant feeding banks. (Sec. 309). It will be observed that this agrees entirely with the testimony produced by the United States. The report then goes on to cite authorities showing how far the cows go out for food. Taylor is quoted as saying that they go out every day a distance of 10 or l.*) miles, or even farther. T. F. Ryan says that the main feeding grounds of the seal during the summer stay upon the islands, and to which the cows are continually going and coming, are to be found 40 to 70 miles south ef St. George Island. SUMMARY OF THK KVIDKXCK. 273 treuuonsly witnesses ived ovor- : commonly i the close n to spend )od. It i« ) middle of 1/ Sea prac- the 1-ela.xa- icomplished, ig near her r the shore, neglect the ley are by ) admission, whither she other nurses very likely 'om tlie sea, last day or rs from the md and go to oven not for he meantime ny prodnced ties showing Ig that they seal during continually St. George G. R. Tingle, in tho same report cited, sa^vs the soul's probably go '20 miles out, in souio cases, in search of food. The British Commissioners, in this oxcoptioiiiil iiistsinco, aro to bo ci-ed- ited not only with having been diligent, but with disclosing tho names of the persons from whom information was obtained. It might have been desirable that these statements should be mndo in tho langungo of tlin pei-sons themselves. However, wo quote it as it is given us. Tingle, in section 312, extends the feeding area from 20 niiios, which he has named above, to AO or ecen 40 miles from tho laud. llodpath uid not know of tho feeding grounds, but believed that the females go from 10 to 15 miles from tho islands for tho purposo of feeding. Daniel Webster (whom they graciously indorse as a truthful witness) concurred witli Ryan, and expressed the opinion that wiion feeding in the autumn the seals went 60 miles to the southward of St. ({conje Island. He be- lieved that there was a favorite feediiiy ijroxmd iii that vicinity, untl stated the reasons of this belief. Mr. Webster is a reliable niid iulel- ligent witness, who has frequently b'.'on quoted by the American Com- missioners. While he does not state tho distance as being more tliau GO miles, he certainly places it, with other reliable witnesses, siiHieiently far out to sea to enable the poachers to destroy this class of seals. It may not bo material whether the distance bo 60 or 100 miles : wiien tho men bent upon slaughtering seals, irrespective of condition and sox, have discovered the feeding grounds of the mothers, all that they will ask is that the distance be sufficiently great to secure to them immunity in their destructive work. Mr. Fowler stated to the Commissionei's (See. .'{12) that lie believed that there was a favorite feeding ground of tho seal about ."{0 miles off tho north-east point of St. Paul's Island. This was not from personal knowledge, but dependent upon statements that seals had been seen in abundance there. That the seals caught on tho feeding grounds must bo females is the conclusive inference from the statements and argument of tho British Commissioners themselves. They statu that all seals resorting to the islands seem in a great degree to share in a eomnion abstinence, and assert that tho stomachs of oven the bacheloi- seals killed upon the islands are found void of food. As all the authorities cited by them confine themselves to the f*ualcs, it is worse than idle to argue that those which resort to the feeding grounds are either old males or young ones. The statement is attributed to natives of St. Paul tiiat tho fen •;ile» from 274 ARGUMENT OF THK UNITED STATES. tho rookeries wont only -i or l niilos to soa, and always i-oturaod to Hieir younf^ on shore the haiuo clay (Sec. ;n2). A statement so Taf^ue aa to names and qiialifieations liurdly deserves notice. It may bo important, however, as showing that the natives have observed that females do return to tiieir young for the purpose of nursing them. Mr. Grebnitsky did not agree with most of the natives, who thought " that tho females did not feed during tliis period," but stated as tho result of his own personal observation and long experience that they wont out to sea while suckling the young, but not further than half a mile or a mile from the shore. If food is to bo procured so near the land by the mother, it may bo that when she was seen tloating or playing in tho water near the shore by Mr. Bryant, and then returning occasionally to suckle her pup, she had also been employed upon tho moi'o profitable mission of securing milk-producing material. Snegiloff thought that the females leave their young for several days to go as far aS 10 miles from land to feed, while Klugo, the agent of tho Russian Government in charge of the Copper Islands, thought that the females went as far as 2, 3, or 4 miles, but returned to tho rookery every night. To this undigested mass of information, thus unsatisfactorily reported, the magnanimous admissir side, the positive evidence shall be credited ; otherwise the effect would be to stamp ono party with perjury because what he is stated to have seen or said or heard or done was unnoticed or unobserveil STTMMAHY OF TIIK FVIDRXPR. *>7> 3(1 to their ,^uo as to mportant, do return o thought the result rent out to 3 or a mile ho mother, ev near the le her pup, }f securinR svei-al clays gent of the it that the )kery every ly reported, statements the pelaijic 10 British ahnost ex- nd seeking 3S, and are istaut from rod on th(! eiico of the elements in ion to the for the re- intary that, evidence on herwise the what he is unobserveil by the witness tcstifyinj^ in the negative. If, therefore, the sworn testi- inony (if rejintable persons is piodnci-d extending the area in which the female seals have been observed in quest of food, preference must bo given to them rather than to those witnesses whose opportunities may not have been the same or whose powers of observation may not have been equal. Where witnesses testify p^7 and 1891 the rookeries were covered with dead pu])s. In his sixty-seven yeai-s' residence on the island he never saw anything like it before. No sickness was ever known among tlio pups or seals, atid he had ncvci- seen any dead 276 ABOUMENT OF THE UNITED STATES. pups on ihe rookeries, except the few killed by the old balls when Kghting or by drowning when the surf washed them oif (ibid., p. 100) . Ho 8tateti that four or five days after the birth of the pap the mother seal Icavus her offspring and goes a>\ ay in the sea to feed, and when the pup is two or three weeks old the mother often stays away live or six days at u time. William C. Bennett (ibid., p. 356) had been a seal hunter all hia life ; ho was 32 years old at the time of deposing. He had hanted the seal with spear and sometimes with a shotgun. Most of the seals taken by him were cows. He thought that the cows slept more and are more easily approached. The sex of the seal not being ascertainable in the water, he shot everything that came near his boat, and when the seal is Hhot dead it sinks very quick and is hard to secure under those conditiuuN. He also agreed with the other witnesses that seals were decreasing in number very fast, and he atti-ibuted this to the indiscriminate killing in the water. . . •. , •! Joseph Stanley-Brown, a geologist, whose testimony on other points has lic!i.'t,ofoi*e been given attention, says : For the first few days, and possibly for a week or even ten days, the female is able to nourish her young or offspring, but she is soon compelled to seek the sea for food, that her voracious young feeder may be properly nourished, and this seems to be permitted on the part of the male though under protestation. The whole physical economy of the seal seems to be arranged for alternate feasting and fasting, and it is probable that in the early days of its life the young seal might be amply nourished by such milk as the mother might herself afford without resorting heraelf to the sea for food. John C. Cantwell (ibid., p. 408), second lieutenant in the United States Revenue Marine, had been on duty in Behring Sea during the yeai's 1884, 1885, 1886, and 1891. He hod paid particular attention to the seals, and whenever opportunity offered had visited the rookeries for the purpose of photographing and sketching the animal, etc. He had boarded a large number of vessels fitted out as sealers and engaged in sealing, and had conversed with the masters and crews on the subject of pelagic sealing. This is his testimony : i . c , ■ i i. i y/ From information gathered from these and other soarces, and by com> parison of testimony given by the seal banters, would say that at least 60 per cent, of seals killed or wounded escape and are never recovered, and that 75 per cent, of seals shot in the North Pacific Ocean are females heavy with young, and that 80 per cent, of seals shot in Behring Sea from July 1 to September 15 ai'e females, most of which have given birth to their young, and are mostly caught while feeding at various distances from land. srMMAia or thk evidence. 277 Capt. Cnrthcut (ibid., p. 101), ii inastiT mariner, ongagud in Imiitiug the far-hcala for 10 years, cxtendinfr from 1877 to 1887, during tlio latter part of the iinio in Uuring Sou, Kpcnks on his personal knowledge, and makes a valuable contribution to the knowledge which wo have upon the Kuhject. One of the icasons which he aHsignK for the great slaughter of fenuile s«-als is that maturity makes thorn tamo and easily approachable. Ho says : About 80 2)61' cent, of tho seals I caught in the Behring Sea were iiiofhi'm ill inilli, and wore feeding around the Hshing banks just north of the Aleutian Islands, and I got most of my seals from M to 2.')0 miles from tho seal islands. I don't think I ever sealed within 25 miles of the i'ribilof Islands. Tlrny are very tame after giving birth to their young, and aro easily approached by the hunters. When tho females leave i\w islands to teed, tlu-y go very fast to tho fishing banks, and after they get their food thoy will go asleep on tho waters, 'riiat is tho hunter's great chance. I think we secured more in propor- tion to the number killed than we did in tho North Pacitic. I hunted with shotgun and rifle, but mostly with shotgun. Seals were not nearly as numerous in 1887 as they were in 1877, and it is my belief that the decrease in numbers is due to tho hunting and killing of female seals in the water. I do not think it possible for seals to exist for any length of time if tho pi-esent slaughter continues. The killing of tho female means death to ber born or unborn pup, and it is not reasonable to expect that this immense drain on the herds can be continued without a very rapid decrease in their numbers, and Avhich practically means extermination within a very few years. Christ Clausen {ibid., p. «U*.)), a master mariner, was engaged in seal hunting as mato of the British schooner G. II. Tupper, in 188J>. Ho resides at Victoria, British Columbia, and also was navigator in the British schooner Minnie. His testimony is worth reproducing some- what extensively. Unless willful perjury be attributed to him, his testimony, based on actual observation and experience in the business of slaughtering seals, should be accepted as conclusive on several of the points under consideration : The Indian hunters, when they use spears, saved nearly every ono they struck. It is my observation and experience that an Indian, or a white hunter, unless very expert, will kill and destroy many times more than he will save if he uses firearms. It is our object to take them when asleep on the water, and any attempt to capture a breach- ing seal generally ends in failure. The seals we catch along the coast ai-n nearly all pregnant females. It is seUlpm we capture an old bull, and what males wo get ai-e usually young ones. I have fi-equently seen cow seals cut open and tho unborn pups cut out of them and they would live for several ilays. This is a frequent occurrence. It is my experience that fully 85 per cent, of the seals I took in Behring Sea were females and had given birth to their pups and their teats would be ■,'i. •_'7M .NKflT'MENT OF THK INITKn STATKS. full (pf milk. I liave ran^^ht soiiIh of lliis kind lOO to \W mill's from I'l-iltilof Islaiiiis. It i» my opinion tliat s|i(>arH should 1)0 used in liuntin;^' seals, and if tlii-y are tu bo kujjt from cxtciuiiuation tliu Hliotju[uu ishould lie discardcfl. ' 'ctiT Collins, also enpnged in soaliug as a sailor, testified as to tliu manner of shooting the seals ((/>/(/., |>. 4 III). Fully three-fourths of the seals shot in the North Paeific, he says, were females with young. Ho swears that ho has soon mothers with their breasts full of milk killed 100 miles or more from the seal islands. He knows that thoy go great dis- tances for food. His testimony is that of a practical man who evidently enteitained no prejudice on the subject of killing the mothers with In-easts full of milk. Ho was apprehensive, however, that his business would bo destroyed. He says : There were not nearly as many peals to ho found in 1S80 as there wore in 188H. I think tlie decrease Avas caused by the great destruction of females killed in the sea by the hnnters, and if something is not done to piotect them from slaughter in the North Pacific and JJehring Sen, they will all be gone in a few years. Cnpt. Conlson (ibid., jip. 414-416), of the United States Revenue Marine, makes a very interenting deposition. His experience was pi-actical and extensive. He says : In company with Special Agent Murray, Capt. Hooper, and Knginecr Brerton, of the Corwin, I visited the reef and Gobateh rookeries, St. Paul Island, in August, 18!)1, and saw ono of the most jtitiable sights that I have ever witnessed. Thousands of dead and dying pups were scattered over the rookeries, while the shores were lined witli emaciated, hungry little fellows, with their eyes turned toward the sea, uttering plaintive erics for their mothers, which were destined never to return. Numbers of them were opened, their stomachs examined, and the fact revealed that starvation was the cause of death, no organic disease being apparent. The great number of seals taken by hunters in 1891 was U) the west- ward and north-westward of St. Paul Island, and the laigest number of dead foiuid that year in rookeries situated on the west side of the island. This fact alone goes a great way, in my opinion, to confirm the theory that the loss of the mothers was the cause of mortality among the young. After the mothei- seals have given birth to their young c,i the islands, they t;o to the water to feed and bathe, and / have obsn-vi-d them, not only around the island, but from 80 to 100 viiles out at sea. In different years the feeding grounds or the location where the greater number of seals are taken by poachers seem to differ ; in other words, the seals frequently change feeding grounds. For instance, in 1887, the greatest number of seals Avcre taken by poachers between Unamak, Akatan Passes and the seal islands, and to the south-west- ward of St. (leorge Island. Tu 1889, the catching was largely done to the southward and eastward, in many cases from .W to 160 miles dis- tant from the seal islands. In the season of 18!'0, to the southward St .M.MAi.v or Tin; r,viitii\( i:. > miles fi'Diii (1 in liuiitiii)^' iin bIiouKI III' ed OS to tilt' )iirth8 of tlio yoang. Ho Ik killed 100 ^o great di«- ho evidently with bi-eastH lesH would bo ns there were k'struction of is not done to ing Sen, tliey renuc Mnriiic. pi-actical nnd md Engineer rookeries, St. itinble sights pups were I emaciated, sea, littering r to return. and the fact isease being to the west- •gest number side of the c(mfirm the y among the the islands, leni, not only where t ho er ; in other instance, in lers between south-west- gcly done tf) miles dis- sonthwanl and weutsvard, also to northwrst a id iim-tlKMst of tlu> isiiinds, showing that the Hoals have been sraltercd. The season of 1><1M, the greitest number were taken to northward and westward of St. Paul, and at various ilis- tances fi-om 25 to 150 miles away. The testimony of such a witne.ss, speaking of his knowleilge, doelaring npitu hU oath that he had sfi/i females feeding HO to 1(»0 miles from the Pribilof Islands, ought to outweigh the negative and loo.so statements of any conceivable number of natives or otlusr informants upon whom the British Commissioners have relied. Charles Challall (ibid., p. 410), a scaler who had boon sealing up the coast imd in Bering Sea three seasons, testified as follows : Most of tho seals wo killed up the coast were females heavy with pap. I think nil out of eveiy ten were females. At least seven out of every eight seals caught in tho Bering Soa were mothei-s in milk. Tilt vessels 1 went out in had from four to si.\ boats each. Each boat had three men, a hunter and two pullers. Tho average hunter would got one out of every three that ho sh>it ; a poor hunter not nearly so many. There are twenty-one buckshots to a shell. I think a great many seals a. J wounded by hunters that are not taken. The gunshot wounds more seals than the rifle. 1 tliiiik the aim of the hunter is to kill the seal rather than to wound it. When they are in schools sleeping we get a good many. We did iu)t get as many we shot at in tho Bei-ing Sea as we did on the coast. If wo got one out of every three that we wounded in the Bering Sea wo were doing pretty well. 1 do not know of any place whei-e the seals haul up. on this coast except on the seal islands. Mr. W. II. Dall (upon whose manusi-ript note, said to have been supplied to Prof. Allen, tho British Commissioncrsrely to show coition in tho water). He testifies to having seen seals in the water of Bering Sea 100 miles or more from the Islands. His testimony, too, seems conclusive, if he is a reliable witness. This is his language r The Pribilof Islands are tho chosen home of tho fur-seal (Callorhinus wrxiMMs). Upon these islands they are born; there they first learn to swim, and more than half their life is spent upon them and in the water adjacent thereto. Here they tjice birth to their yoHmj, breed, nurse their pups, and go to and from their feeding iironnds, lehich may tie miles distant from the islands. I hare seen seats in the icaters of Bering Sea distant 100 miles or more from the islands at various times between the 1st of July and Odoljer. These seali were donhtless in search of food, which consists, according to my observation, of fish, squid, crustaceans, and oven mollusks. Upon the approach of winter tho seals leave their homes, influenced doubtless by the severity of tho climate and decrease in tho food supply (Appendix to ('asc of the United States, Vol. II, p. 23). James Henry Douglas (ibid., p. 419), was by occupation a master and pilot of vessels, and had had long oxperiuuce sailing in the North Pacific •2P0 Anfif.MKNT OF TIIF, I'MTKr* STATFS. (lud ikTiiijLr Si'ii ; Imil ^'oiio lo I lie kciiI iFtlaiiilH in lliu Itittur kcii ov\m- Iwi'iity years ago, ami bi-oii tlicn; inimy tinicK HubHcqiicntly while in the employ of (lie Govcrtiineiit. Ho tcstlfus thai his ohNerviitiou and inforniatioii af^rocij with that of niuuy other witncfsses. He sayH : Aly information and oliservation is that a very larpo proportion of thocn killed along the const and at sea liom Orejjon to the Aleutian Islands are female seals with puns; I think not less than !>."> percent. The proportion of female seals killed in the Uering Sea is equally larpe, but the destruction to seal life is much i^reater owinj,' t<> the fact that when a mother seal is killed her suekiiTij,' |inp left at the rookery also perishes. Imprej^nation havinfi; also taken place before .she left the rodkery in seareh oF food, tin foetus of the next year's birth is likewi.se destroyed. I also found that j'emahs affi-r ijlviiitj bnth In fhi'ir yoiinij at flm rimh-envif svrl: tin- ctnljiah Ixinlm at varintM pointH ni a distnnce nf from 40 hi 125 miliitfrniii fh<' ulatnlnforfoml, and are frequently absent one (»r moi-o days at a time, when they return to li nd their young. I have noticed that the females when at sea are less wild and distrustful than the bachelor seals, and dive less quickly in the presence of the hunter. After feedin;,' plentifully or when resting after heavy weather they appear to fall asleep upon the surface of the water. It is then they ])eeomp an easy target for th(> hunters. George Dishow, of Victoria. Uritish Columbia, was by oeeupation a seal hunter and pursued that business six years (ibid., ]). .'i23). t use a shotijim t'.i'chtsirely for Ittkimj seal. Old huutfrs lose hut very ft ir xeah, hut heginiiers lose a ijn'at iiiniii/. I use the T'arker shotgun. A lanjr froportion of all mals taken an' females irilh p>ii>. A very few yearlings are taken. 1 never examined them as to sex. JJut very few old hulls are taken, but five being taken out of a total of 900 seals taken bj- my schooner. Use no discrimination in killing seal, but shoot cvrrjifhuHi that comes near the boat in the shape of a seal. Hunters shoot seal in the most ex|)Osed part of the body. Have never known any pups to bo born in the water, nor on the land on tlu- coast of Alaska anywhere outside of the Pribilof Islands. Have never known fur-seal to haul up on the land anywhere on the coast «'xcept on the Pribilof islands. Most of the seals taken in Bering Sea are females. Ifan- tdk'.n tlnvi 70 mllenfriiin the iskmtls that were full (f milk. I think a closed season should 1x3 established for breeding seal from January 1st to August Iftth in the North Pacific Ocean and Bering Sea, George Fairchild (ihi'd., \^. 4"2M), made a sealing voyage to the Nortli Pacific Sea as sailor on the Sadir Clyde, sailing fi-om Victoria on the lOth of April, 1888. They went north to the Bering Sea, sealing all the way u)), and got 1 10 seals before entering the sea : *' ^fosf (if them,'' he says, '* inre coh:<, nearly all rf which had pnps in- them, ll'e took some of the piqis alivr out of the bodies of the females. We entered the Beriuy Sea May 25, and vr got 704 sitals in there, the yreater quantity of which were females with their hreasts full of milk, a fart whirJi I kmnv by reaeon of having seen the milk floiv on the deck whtv Sr MMAKV OF THr; KVir»t:N(F.. •:«i owl" twcjit.y lio employ of at ion a^rci'il ,i(»n of tliOHd 11 iKliindH arc bo proportion p dcstructioti lot her Hciiil is Impregnation of food, the fountl that rtitljiuh lidnlis liuiiln for food, hoy rctnrn to nd distrnstfnl 81'nce of tlio eavy weatluT iH then thoy npation n seal f but very fill- Efiin. -I lanir few yearlinKs few old hulls taken hy my rrrjifhiiMf that il in the raoHt )0 born in the mtside of the on the land of the seals im thi' ishinil" tablished for 'acific Ocean to the North a on the 10th 1 the way n|). hail pvps ill- the females. in there, thr U of milk, a the deck u'hav Iheij were Iwimj nkiiinrrt. Wo had 5 hoals un Iniard, eaeli boat having' a hunter, bout puller and Hteerer. Wo used sliotgiins and riHes. We got one out of every •> oi- tJ that we killed or wounded. We wounded u jfreat many that wo did not get. We caught thom from 10 to 50 miles oflF the Heal islands." This is tho apnrtumnnlike method of hunting hcuIh of which the Britiflh CommissionerR speak in terms of undisguised admiration I Samnel Falconer (ibid., p. 16'>), deputy collector of customs in 1S()8 and 1869, then purser on hoard the steftmer ('o»»»^n(/in«, was also in ehargc of •St. Paul Island sovei-al years. It was a part of his duty to make a very careful and full study of seal life. It was his opinion that if a pup li>nf its mother by any accident it would certainly die by starvation. When the young seal are 6 or 8 weeks of age their mothorr force them into the water and teach them to swim. After repeated trials the pup learns to swim, and from that time on spends a great deal of time in tho water, but still the greater portion of these tirst months of its life are spent on land sleeping and nnrsing. Tho cow, after bringing forth her young, remains on tho rookery until again fertilized by th» bull, which is, I believe, within two weeks. After the fertilization she is allowed to go to and fi,^m the water at will in search of food, which she must obtain so she can nurse her pup. She goes on these feeding excursions sometimes, I believe, 40 or more miles from the island, and as she strtms with great rapidity, carers the distance in a short time. She may go much farther, for I have known a cow to be absent fwm her pup for two days, leaving it without nourishment for this period. This shows how tenacious of life a young seal is, and how long it can liv(! without Rustenanco of any sort. Tho H-year-old male has meanwhile landed on the hauling ground and is now the most available age to kill fv))- his pelt. John Fratis (ibid., p. 108) Avas of opinion that the cows were killed by the hunters when they go out in the sea to feed, and the pups are left to die and do die on the islands. He saj-s : The pups are born soon after tho arrival of the cows, and they are helpless and can not swim, and they would drown if put into tho water. The pups heve no sustenance except what the cows furnish, and no cow suckles any pup but her own. The pups would suck any cow if the cow would let them. After the pup is a few days old the cotv goes into the sea to feed, and at lirst she will only stay away for a few houi-s, but as the pup grows stronger she will stay away more and more until she will sometimes be away for a week. William Frazer gives his experience as a sealer. The hunters use shot- guns, lie says (ibid., p. 427), and got about one out of every six they ■hot at or killed, and sometimes they got none. The great majority of :s' AKtil MINI <»|' IIIK IMII.I. .ST.M'IX. tlii'iii Wiw friiiiiliH. M'»t of lilt) tViniiloft killftl liiUi' uiiluM'ii pii.is or wiro cowH ill till' milk. 'I'lii'v diil not kill iiiiy on tlio islaiul liei'iiusL' llicy never went ill cioHi' I'l.tii^'ii. llu U'NtilieH po.titivuly thiit '* wu," niciiiiiii^ liis conipaiiioiiH iiMil liiiiiself on the Charles Wilmm, "killed femuluH ^ivint; milk more than KM) miles from the Neal iHlanda. Most of the Neals Hiiiik or (love out of si^rht wlu-ii killed or wounded, and a f;reat many of them we could not get." On one oeuiiHion ho got tiOO hohIh. He does not know win : ler it was on tho Ameriean side or not. They were almost nil females, lie notieed when ho skinned them that they were fonmlos in milk, ns the milk would run from tlieir breasts on to tiie deeks. lie eoneurs with the other witnesses as to the diminution in the iiumbt.T of seaJH. Normuii Hodgson (ibid., p. 3(16) observed nurslnij cvtvn fruv- (!0 Id HO iitllvs Jrom the Pribilof Islands, where thoy were ranging to feed. I do not think it possible for fnr-,seals to breed or eopiilato in water at sea and never saw nor heard of the aetion taking place on a patch of floating kelp. I have never seen a young fnr-seiil pup of the same season's birth in the water at sen nor on a patch of floating kelp and in fact never knew of their being Lorn anywhere save on a rookery. / have, lioici'ViTy cut (ijicH a tjravid roi" and lakeii. Ilir youiiy one from itn viitthcr's womli alive and cryinij. I do i;ot belii've it pobsible foi- a fur-seal to be successfully raised unless born and nursed on a rookery. I have seen fur-scais resting on patciies of fioating kelp at sea, but do not believe they over haul up for breedii.g imriioses anywhere except on rookeries. (Muvd (jcorgo {ibid., p. iWo) 27 years old and a seal hunter since ho was a more boy, has been engaged in the killing of seals and speared everything that came near his boat, regardless < f sex. He had killed seals 200 miles fro.n the Pribilof Islands thai were full of milk. H. A. Gliddon (ibid., p. 210), stated that tho females during the entire scaling season are going and coming to and from tho water for the purpose of feeding, and iu his opinion while tho females are thus going to and from the feeding gi-ouud and through tho Aleutian passes they are intercepted and shot by open-sea sealers. Capt. E. M. Greenleaf, a resident of Victoria, British Columbia, a sea- faring man, holding a commission as master mariner, captured at one time sixty-three seals, all of ichich were females and all were pregnant (ibid., p. 324). He was informed by conversation with Bering Sea seal hunters that they killed seal cows 20 to 2U0 miles from tho breeding grounds, and that these cows had evidently given birth at a recent time to young. As to the proportions of seals fired at and killed or wounded, it is his 111. IS or Wfi'o u they never iiicuiiiii^ liis null's ^rivinp it' the Kciils i;iTat niiiny huhIh. Ho Tlioy wtMo t thi-y were to tlie tlocks. 10 minibcr "f 10 to 80 miles ato in wntor ■ on a putcli of the sunic kol|> luul in 1 a rookery. (iiif from it.i "or a fm-HC'iiI ery. I have but do not e oxcopt on since ho was (1 overythinj,' ah 200 miles iig tlic entire tlie jiui-posc to ami from intercepted inbia, a nea* ured at one gnant (ibid., seal hunters [rounds, and o to young, ed, it is his aiTMM.MtV OF TflF, KVinENfK. •J 8. 3 jadf^ment that, taking the run of liuntei-K, (((hmI and bad, tho bett ijet ,.boHt 50 jjcr cent, of those sliot at, and the poorest not more than onu out of tiftoen. Cuniuhitivo testimony to this ofToet might bi; cited to tho extent of wearisomo repetition, but if the learned Arbitrators should (h'siro to pursue tho subject as far as the evidence will |>ermit, wo give below references to the testimony to bo found in the Ap|>endix and not specially quoted. Wo submit that it is absolutely conclusivo unless, ns wo havo au^i^oRtod before, for somu unknown reason it should be rejected as inteutioiially and criminally false, Arthui' Griflin {ibid., p. 325) captnred females from 2U to 200 miles from tho rookeries. James Griflin {ibid., p. -133) killed female seuL fill of milk 90 miles from the islands. Martin Mannoo {ihid,, p. 44")) killed them full <>/ milk 100 miles from the seal islands. Jam"8 Hairison {ihid., p. 326) caught 200 seals in the liehring Sea about the mi of June, mostly mothers. James Hay ward {ibid., p. 327) caught them 150 viiles from the shore and skinned them when their breasts wmfnll if milk. Ho says tliat they travel very fast and go a long way to feed. J. Johnson {ibid., p. 331) killed female seals full of milk 7"» miles from the island ; used a shotgun and killed everything. Louis Kimmel {ibid,, p. 173) had observed them at least 20 miles from the islands. Andrew Laing (ibid., p. 334) had caught them 75 to 100 miles from the inland, and in skinning thrm the milk would run out of the Ivats of the females, they having given birth recently to young on the islands. William H. Long {ibid., p. 457) killed mothetsin milk all the way from lO to 200 miles of shore. Thomas Ijowo (ibid., p. 371) in 1889 hunted in the Bering Svafrom 80 to 100 mi:i'.< o^'the Pribilof Islands. Two-thirds of his catch were cows in. milk. Thomas Lyons {ibid., p. 400) about tho 26th or 28th of June went into the Bering Sea and caught 389 seals, nearly all of which were mothers in milk. He knows it as he saw the milk tlow on the deck while skinning them. William M. McLaughlin {ibid., p. 461) killed them 50 lo 00 miles ofi shore, most of them with milk. [317] T !H4 AlKilMKNT OF THK INITED STATES. Aloxander McLean (Ibid., p. 436) killed them as far off as l.'iO vtiles ofi' the land. They were mothers with young. Daniel .McLean (ibid., p. 444) killed mothers all the way from 20 to 65 miles off St. George and St. Paul. Robert H. McManus (ibid., p. 335), a i-esident of Victoria ; by profession a newspaper correspondent ; went for his health on a sealing expedition. His deposition \h exceptionally minute and interesting. The men on his ship (Schooner Otto) killed them at a distance of 200 miles from the rookeries. Over tiiree-fourths of his catch were cows in milk. Judged from the number of shots tired that it took about one hundred to secure one seal ; one day there was u total catch of seventeen seals ; great proportion were in milk ; horrid sijijht; could not stay the ordeal out till all were flayed. Thomas Madden (ibid., j). 463) has spent or had been going to the Bering Sea over 12 years, which he eiitered about June. Most of the seals killed were cows, and he saw the milk run out of their bi-easts on the deck a.s they were being skinned. G. E. Miner (ibid., p. 4GG) killed seals ivith milk 250 miles from the Pribilof Islands. Thomas F. Morgan (ibid., p. 60) says that the female goes 40 milcg ar n'en farther from the island. Niles Nelson (ibid., p. 469) sxoears that he has killed mothers in milk 100 miles or more from the island. Dr. Noyes (ibid., p. 82), resident physician and sometimes schoolmaster on the islands, says that the female mother goes a distance of fi'om 40 to 20U miles from the island to feed. His deposition is very full and interest- ing. It is valuable as .shedding light on most, if not all, of the questions hero involved. • John Olsen (ibid., p. 471) swears that he shot tiventy-eight himself from 50 to 150 miles off the seal islands. They toere mothers full of milk. Other witnesses estimate the distance at 60 miles, 100 miles, etc. See T. F. Uyun (ibid., p. 175), C. M. Scammon (ibid., p. 473), Adolphus Sayres (ibid., p. 473), L. G. Shepard (ibid., p. 187), William H. Smith (ibid., p. 478), Z. L. Tanner (ibid., p. 374). Ca])t. Tanner, lieutenant-commander in the United States Navy, makes a deposition which is entitled to particular consideration. The fpi'cwing is u short extract ; Seals killed in Bering Sea after the birth of pups are largely mother seals, ntid the farther they are found from the islands the greater tJie per- SHMMAUV OK THK r,VII>K\rK. •2Hit 150 viiles 01)' ram 20 to 65 jy profession r expedition. ! men on his es from the ilk. Judged ed to secure seals ; great •deal out till ^oing to the t of the seals i on the deck lies from the 3 40 mtlfls or J in viilk 100 schoolmaster fi'om 40 to and interest- rhe questions mselffrom 50 Ik. es, etc. See phus Sayres ith (ibid., p. Navy, makes fpi' owing is rgely mother ater tJw per- centai/ii will he. The i-eusoii tor tliis sceminf;; paradox is \vvy siuiph-. Tho young males, having no family rcsimnsibilities, lan alTonl to hunt neaivr liome, where food can bo found if siifficicnt tinu- is devoted to the search. The mother does not leave; lier young excej)t wlien necessity compels her to seeks food for its sustenance. She cannot afford to waste; time on feeding gi-ounds already occupied by younger and more active feeders ; hen(!o she makes the best of her way to richer fields farther away, gorges herself with food, tlien seeks rest and a quiet nap on the surface. Undei" these circumstance she sleeps soundly, and becomes an easy victim to the watchful hunter. A double waste occurs when the motnoi- seal is killed, as the pups will surely starve to death. A mother seal will give sustenance to no puj) but her own. I saw sad evidences of this waste on St. Paul last season, where large numbers of ])ups were lying al)out the rookeries, where tiiey had died of starvation. Adolph W. Thomp.son (ibid., p. 48G) killed fcnmles in milk, although he tii-ver went nearer to the island than 25 or '.iO miles. Michael White (ibid., p. 489) killed seals in milk not h'ss than 100 /" 200 miles from the island. William H. Williams (ibid., p. 9'.i), United States Treasury agent in charge of the seal islands in Bering Sea, states that it is a welUknown fact substantiated by the statements of I'cputable persons Avho have been on sealing vessels and seen them killed 200 )niles or nn ire from ihr islands, and who say that then have seen the drrks of the vessels slijiperij of milkjlowing from the iarcn.sses of the dead females. He alludes to the thousands of dead pups left on the rookeries starved to death by the destruction of their mothers as conclusive evidence of the destruction and havoc wrought by the pelagic seal hunters. If this cumulative and unimpeachable evidence does not establish tiic fact which we have undertaken to prove, we nmst despair of satisfying this High Tribunal or any other tribunal of the correctness of our stiito- ments. We submit, however, that it is more than made out — that it must be taken as a fact in the discussion of this case — that the cows, while suckling, go to sea for food ; for they travel long distances, sometimes as great as 200 miles ; and that during such excursions they are ruthlessly slaughtered by pelagic sealers, in many cases without profit, as tliey sink and are irretrievably lost. The sickening details, abundantly furieisiied by the witnesses, sufficiently ciiaracterize the business, and justify the harshest expressions of condemnation. The slaughter tlms descril)ed constitutes a crime, for it violates the most common instincts of our nature and would be punished by the laws of every civilized nation, if jurisdiction could only be acquii-ed over the wnmg doers. And yet the ConimissionerH for (Ireat Britain undertake to justify this practice for its [317] X 2 28r, ARGUMENT OF THE UNITED STATES. sportsmanlike qualities, and to eulogize it because it gives the seals a fair sporting chance for their life (Sec. G25). It is really, they say, huntitig as distinguished frov. slaughter (ibid.). It is not easy to discuss these pro- positions with that patient and respectful consideration which is duo to the importance of the questions involved. VIII. — The Flb-Skal is a Polygamous Animal, and the Male is at LEAST Four Timks as Laiuik as thk Female. As a Rule, each Male serves aholt FiriEBN ob Twenty Females, hut in some Cases as Many as Fifty or Moke (Case of the Unitkd States, p. 327). A great diminution in the number of females making up a harem has been noticeable in late years. Formerly there would be on an average 30 cows to a bull ; now they will not average 15 (Case of the United States, p. 344). The British Commissioners are in substantial accord with the statements above quoted as to the service of the female by the male. They cite from Bryant to show that the proportion is I male to 9 to 12 females ; from Elliott, that the mean number is 5 to 20, and from Mr. Grebuitzky, that the ratio should not exceed I to 20 (Sec. 54). This is sufficient for our present purposes, especially as they add that it is no uncommon event, during the last few years, to find a single male seal with a harem numlering from 40 to 50, and even as many as 60 to 80, females (Sec. 55). With their deductions from these facts we are not at this moment concerned. It is apparent, on the face of the report, that the Commissioners had a theory to support and that the facts were read by them in the light of that theory. An amusing illustration, among many, is found in the statements on this very point. Bearing in mind the severe criticism of earlier sections (54, 55, and 50) upon the system of sacrificing males so that the bulls are forced to supply the necessities of 40 to 60 and even 60 to 80 females, read section 48.'?, describing the ci>ndition of seal life as far back as 1842 : In the well-known Penny Cyclopedia, published so lately as 1842 [half a century ago], the seal is described as follows : * * * "When these migratory seals appear off Kamtchatka and Kuriles early in the spring, they ai'e in high condition and the females are pregnant. They remain on and about the shore for two months, during which the females bring forth. They are polygamous and live in families, every male being sur- rounded by a crowd of females (from 50 to 80), u'hom he guards with the greatest jealousy." (Sec. 483.) It would seem from this extract that the polygamous practices and habits of the seal have not changed since 1842 and that the service by ■■■■■I SUMMARY OF THE EVIDENCE. 287 ouu nmlc oi a large number of females is not new and in not the result of excessive Hlaughtcr on the land. We are not left, hov.evor, to the statements, inconsistencieN, and cita- tions of the British Commissioners' report. The testimony of many witnesses bears out the propositions stated in the Case- of the United States and disposes at the same time of the pretense that the bulls nre now compelled to pei-form increased and exhaustive duty by reason of n j-eduction in the number of young bulls. The fact seems to be well established that the boll is possessed of extraordinary powers. He is able to subsist several months without tasting food and to fertilize at the same time an almost indefinite num- ber of cows. The limitation in the number of his harem depends gen- erally upon his ability to secure a larger or smaller proportion of females. He gathers about him as many cows as he can. Joseph Stanley-Brown speaks on this subject from actual observation. Ho describes the breeding bull as possessing " a vitality unsurpassed by any other mem- ber of the animal kingdom." He testifies that the very large harems were unfrequent and that the average number in the season immedi- ately preceding was about 20 to 25. (Appendix to Case of the United States, Vol. II, p. 18.) Charles Bryant places the average at 15 to 20 cows for each bull. {Ibid., p. G.) Samuel Falconer testifies to having seen 20 cows or more to a bull, but of coui-se, he added, the exact num- ber in a harem is a matter of conjecture, as many cows are absent in the water after the season has fairly commenced. {Ibid., p. 160.) T. F. Morgan testifies that the bull returns to the i.sland about the Ist of May and hauls up to the breeding x-ookeries, provided he is able to maintain himself there, which takes many bloody conflicts. There he (jathers about him as many females as ho t»- able. (Ibid., p. 3.) Cnpt. Olsen is quoted by Theodore T. Williams as placing the number of females served by one bull at 20 or 25 (ibid.,]). 505). The respective weights of the animals is placed in the Case of the United States at 400 to 700 pounds ; that of the cows at 100 (pp. 107, 113). This great disparity in bulk shonld be borne in mind Avhcn we consider the probability of pelagic copulation. The Encyclopedia Britannica states the weight of the animals sub- stantially as it is stated in the testimony and case. The male seal is said to weigh 600 to 700 pounds, the females 80 to 100. There seems to be ' 288 AH(tUMENT OF THR TXTTED STATES. no dispute rb to tlioso estimates. (Tho Cyclopedia also states that soon after tho landiiipf tho female gives birth to one pup, weighinjf about 6 pounds.) Tho real conflict between the report of the Uritish Commissioners and the Case of the Tin i ted States seems to be as to the number of cows in a harem. The British Commissionei-s assert that the number is unduly large of cows served by one bull ; the United States pinduco credible and experienced witnesses to show that, on the contrary, the number of females is decreasing. A comparison is invited between tho two state- ments and the quality of proof adduced in favor of each. It is plain that the ]iritisli Commissionei-s could not admit tho diminution in number of female seals without admitting that decrease to be wholly due to pe- lagic slaughter. They are thei-efore reduced to the necessity of insist- ing that there is a redundancy of females and a deficit of males on the Islands. They are kind enough to admit, however, that " the sparing of females, in a der/ree, prevented, for the time being, the actual depletion of seals on the islands " (Sec. 58). It is not probable that any reasonable person will take issue with them on that point. The intelligence and legislation of the civilized world, not to speak of humanity in its broad sense, have concurred that to spare the female was. not the best, but the only effective me i hod of preventing depletion and eventual exter- mination. I'A'en if we should concede, for the sake of the argument and in dii-ect disregard of the fact, that the diminution is due to the smaller number of males, we would venture to remind this High Tribunal, if such u reminder were needed, that the pirates or poachers who pursue and slaughter the pregnant and nursing females are killing, by starvation in tho one ease, by the mother's death in the othei', a large nnmher of males. Even, according to their own showing, the British Commissioners must realize that pelagic sealincf rV responsible, to some extent at least, for the decrease in the number of males, as well as of females. They may speak of this " industry," as they term it, and glorify it as requiring all the courage and skill which caii be brought to bear on it (whatever that may mean). (See. 609.) They may contrast its " sportsmanlike " char- acter with tlu' " buteliery " committed on the islands (Sec. 610) ; but they cannot fail to perceive that tlie mode of destruction which principally deals with gravid Females, necessarily strikes at the very foundation of life and must evenlually extinguish the race, because, us they mildly state it, it is imdidij destructive (Sec. 633). SIMMARY OK THK EVIDKNl K. •-'8!) IS that soon hin<; about sioners and f cows in a is unduly redible and number of two state- plain that numbei- of duo to pe- y of insist- ales on tho sparing of 1 depletion ' reasonable igonco and a its broad best, but tual oxtor- d in direct ler number if such a mrsue and starvation tmmher of imissioners it at least, They may juiring all itever that ike " char- but they principally tidation of ildly state The pelagic sealer not only kills or attempts to kill tho inulos that ho happens to meet, but prevents the birth of maios to take their place. He often kills three with one discharge of his rifle, viz,: the mother, the unborn young, and the pup at home; but he does it in a '" sportsmanlike " manner, and he gives the sleeping animal a " fair sporting chance for its life." (Sec. 610.) In many cases ho either misses his object or wounds it and loses it. So that there is by this manly process an utterly useless waste of life, in many cases a waste moi-e or less appalling as the " sports- man " is more or less skilful. How destructive in reality this pntcess is jtroveii to bo may bo seen from the British ("onimisMioners' rcpoit under the head of " Proportion of Seals Lost" (p. 104, Sec. 003). It must be u consolation to those disposed to extol this kinil ot" sport that while m-iirly " all the pelagic sealers concur in the opinion that the fur-seal is annually becoming more shy and wary at sea," it is certain that " the dcvtirify oj tlf hunters has increased pari passu with the wariness of the seals," (British Commissioners' Report, Sec. 401.) That the number of the seals has been diminished in recent years and at a cumulative rate, and that such diminution is the consequence of destruction by man, is certifled by the Joint Report of all the Commis- sioners. That this hr.nan agency is pelagic sealing exclusively, and not the mode, manner, or extent of capture upcm the bfecf 50,000 young males on the breeding islands, can not certainly with the least consistency assert that the captui-e limited to 100,000 malvs would be cxccasivu. Nor could they !'!•:«■ 200 ARGUMENT OF THE UNITED STATES. consistently assert this even though the pelagic slaughter should be restricted (by some means which no one has yet suggested) to 10,000 females. It requires no argument to show that the destruction of even that number would be rapidly disastrous to the herds. (?») And when we turn to the proofs, they are conclusive that prior to the practice upon any considerable scale of pelagic sealing, the nnnual draft of 100,000 young males did not tend to a diminution of numbers. (c) Of course it is easily possible that the indiscriminate slaughter effected by pelagic sealing may soon so far reduce the birth rate as to make it difficult to obtain the annual draft of 100,000 young males. This di-aft, under such circumstances, would not necessarily at once diminish the birth rate, for, the number of females being less, a less number of males would be required. The number of the whole herd might be rapidly diminished by the slaughter of females .nnd the consequent diminution of the birth I'ate, and still 100,000 males continue to be taken for a time without damage. How soon a point would be reached at which so large a draft of males from a constantly diminishing number of births would operate to produce an insufficiency of males, is a problem which from want of precise knowledge of the relative numbers of the sexes, it would bo difficult to solve. The British Commissioners' Report upon this subject is as follows : The systematic and persistent hunting and slaughter of the fur-seal of the North Pacific, both on shore and at sea, has naturally and inevitably given rise to certain changes in the habits and mode of life of that animal, which are of importance not only in themselves, but as indicating the effects of such pursuit, and in showing in what particular this is injurious to seal life as a whole. Such changes doubtless began more than a century ago, and some of them may bo traced in the historical precis, elsewhere given (Sec. 782 et seq.). It is unfortunately true, however, that the disturbanne to the normal course of seal life has become even more serious in recent years, and that there is therefoi'e no lack of material from which to study its character and effect even at the present time. in the zeal of their advocacy on behalf of pelagic sealing and their denunciation of the methods in use on the Islands, the Commissioners have experienced much and evident difficulty in framing their theory. If they admitted, in unqualified terms, a decrease in number, the obvious deduction from the concession would be that the unlimited slaughtei- of females must bear the blame and burden of such a result. To that extent pelagic sealing must be condemned. If, on the other hand, they should assi .t that the number actually increased, this SUMMARY OF THE EVIDENC?:. 291 ' should be ) to 10,000 ion of even I that prior jealing, the minution of e elanghter I rate as to lales. This ce diminish number of t be rapidly diminution 1 for a time h so large a irths would 1 from want it would be illows : he fur-seal Lurally and lode of life ves, but as particular tless began le historical ately true, has become )i'e no lack ?en at the and their imissioners eir theory, mber, the unlimited 1 a result. the other ased, this would only be consistent with an approval of the metiiods in use on the land. Between this Scylla and this Charybd's a way of escape must be found and it was found. The ingenuity hero displayed deserves full :iotico and acknowledgment. The Joint Report contains this state* ment : We find that since the Alaska purchase a mai-ked diminution in the number of seals on and habitually resorting to the Pribilof Islands has taken place, that it has been cumulative in effect and that it is the result of excessive killing by man. Bearing in mind that the fur-seals forming the object of this controversy have no other home or land than the Pribilof Islands, and that the British Commissioners themselves concede that they, for the most part, brrcd on those islands ; bearing in mind, too, that these gentlemen have not yet dis- covered any other summer habitat for the seals, it would seem that this declaration is equivalent, in its fair sense and meaning, to a statement that the fur-seals that frequent the Am,encaii coast and the Bering Sen have suffered n marked decrease. Perhaps it was so intended by the British as it was by the United States Commissioners ; but if so, the former gentlemen have lost sight of their original intention and have been led to rice distinctions, which we shall now examine. That the seal, although " essentially pelagic " (Sec. 2G), has not yet learned to breed at sea is not denied, although to the vision of the Com- missioners the prospect of such a transformation or evolution is evidently not very remote. We must, in justice to them, quote one single passage which admirably illustrates the complacency and self-confidence w^ith which they wrest -to their own purposes, with unhesitating violence, the laws of nature and the mysteries of ulterior evolution. If this quotation does not give a just idea of the imaginative powers of these officials nothing but a perusal of the whole of their work will do them justice : The changes in the habits and mode of life of the seals naturally divide themselves into two classes, which may be considered separately. The first and most direct and palpable of these is that shown in the increased shyness and wariness of the animal, which, though always pelagic in ita nature, has heen forced bij circnmstancos to shun the land more than before, so that, but for the necessity imposed upon it of seeking the shore at the season of birth of the young, it viight probably ere this have become entirely pelagic. An animal "always pelagic," forced by circumstances to shun the land more than befo-ic, and which would become entirely pelagic long before 292 AKOUMENT OF THK UNITED STATES. this if it were not oUlijed to seek the nliore for ho ti-iflinp; an object as giving birth to its young certainly deHorves to bo olasued among tljc curioaitieM of natnre. The difference between animals (now) always pelagic and thoHe (in the future) entirely pelagic may not readily bo understood without explanation not vouclisafod. How can tlwy hi- always pelagic if thoy are obliged to seek the land or perish and why is it reason- able to talk of the probability of their becoming something different from what they are when that conjecture in based upon nothing but reck- less and grote8()uo assumption ? Of course this and other specimens of iifl'ront to common sense are mei'cly gratuitous and pointless vagaries. lini the thesis must bo sustained viz : that the seals are not even amphi- bious animals ; their resort to land is a merely accidental necessity, and therefore the United States can no more claim a right to or possession in them than in other " essentially pelagic animals," such as the whale, the codfish, or the turbot. If anything more were needed to emphasize the absurdity of this defiance of well-known facts and settled distinctions in the animal world wo might still further cite the British Commissioners on the subject of the seal pelage or shedding of hair. It seems that these pelagic animals Averc not endowed by nature with the proper skin to pei'form this function in their native element. Unless thoy can find a suitable place out of water they retain the old hair and disregard the laws which would compel an annual shedding. Lest this seem an exaggeration, read their Report citing Mr. Grthnitsky : " During the ' stagey ' or shedding season their pelage hecovH'S too thin to aford a suitahle protection from the water. (See section 202, also 281, 631, (i32.) It is hardly necessary to say that this theory, so gravely and seri- ously advanced, that the seal is naturally and essentially a ])elagic animal, is uttt rly unsustained by evidence, is refuted by the language of the Commissionei-s themselves and disputed by elementary writers. It is only necessary to ascertain how natumlists define pelagic animals and then compare such definition with the known characteristics and rudimentary elements of seal life (see especially for this the books of Johns Hopkins University). Besides, the unanimous and unquestioned testimony of the agents for the Government and the company shows that the fur-seals spend at least four months of the year on the Pribilof Islands. Having found, with the American Commissioners, a marked diminu- tion in the number of seals on and habitually resorting to the Pribilof Islands, the British Commissioners proceed to show that the seals oxv SUMMAUY <)!• TICK EVIDKNCK. 293 1 objoot as (imong thu >aij8 pelagic nnderstood s pelagic if it rea8on> \g different g but reck- pecimens of IK vagariuH. iveii ampbi- ^essity, and osHcssion in I whale, the )hi8 defiance d we might of the seal lis were not ion in tbeir ivater they il an annual lort citing bhoir pelMiji; section 202, Y and 8eri- a ])elagic language iry writers. ^ic animals ri sties and \e books of iquestioned shows that lof Islands. ed diminti- be Pi'ibilof le seals ai-c more nunn'rmix than ever. They have, no doubt, demonstrated this to their entire satisfaction on pages 72 and 7M of their Report. Capt. WaiTen they quote as saying that ho noticed no diminution in the number of seals during the twenty years that he had been in the business, and, if any change at all, an increase. (Sec. 40:].) To tho same effect, Capt. Lcnry, who snys that in the llcring Sea they were more numerous than he had ever seen them (Sec. 408) ; while Mr. Milne, collector of customs at Victoriii, reports, what others have said to him, that owners and masters do not entertain the slightest idea tluit the seals are scarce. (Sec. 408.) What a tribute this must bo to tho manage- ment of tho Pribilof Islands if, notwithstanding the conceded destruc- tion of gravid and nursing females, these statements should be true. Capt. W. Cox took 1,000 seals in four days, 100 miles to the weslicarU of the Pribilof [slands. (Sec. 405.) Ho found the seals much more plentiful in Bering Sea than ho had ever seen them before. It would have added much to the interest of Capt. Co.v's statement if he had told us how many of these seals gave evidence of having left their pups at home. The British Commissioners multiply the evidence to show that the general experience as stated to them has been that seals wore equally or more abundant at sea at the time of their examination than they bad been in former years. It is difficult to treat this with the respect that a report emanating frf)m gentlemen of charactei' and high official position should meet. Kitber tho statement in the Joint Report is true and tho assumption of an increase is untrue, or vice versa. In view of tho evidence that these seals have no other home than the Pribilof Islands, it is plain, beyond the necessity of demon.stration, that all the seals killed bij ( 'apt. Cox and others in the Bering Sea were inhabitants of those islandx, and the testimony only goes to show that the mothers do go out to sea 100 miles or more, as is sworn to by the witnesses for the United States, and that it is while they are on the feeding grounds, or searching abroad for food, that they are captured by the Canadian poachers. If this is not so, then let the Commissioners or those advocating their views tell us whore these seals slaughtered by Capt. Cox and others found their " summer habitat." Any pretense that the seals are decreasing at home — i.e., where they live through the summer, and breed, and nurse, and shed their hair — and at the same time are increasing in tlie sea is simply an absurdity. It would have added much to the vulno of the tcatimouy of all these masters il 204 yVROlTMENT OF THK UNITED STATK8. they had not nedaloaHly avoided ntating tho sex of tho animulH thut they killed. There is one, and one explanation only, of this, and that explanation makes tho stories above quoted plausible. The pelagic sealers were engaged in hunting nursing mothers on the feeding grounds, where those animals are found in large numbers. The decrease proved, and, indeed, admitted to exist (see Joint Report), had not yet been so great as to be manifest to those sealers who were so fortunate as to fall in with a number of females either intent upon finding the food necessary to produce a flow of milk or sleeping on the surface of the water after feeding. And here we may note another illustration of the thesis and its advocacy. Having satisfied themselves that pelagic sealing rather operated to in- crease the supply of seals, they remembered that the killing of young males was objectionable and likely to result in extermination, and there- upon discovered the fact that " a meeting of natives was held " at which the aborigines unanimously expressed the opinion that the seals had diminished and woulc" continue to diminish from year to year (an opinion, too plain, we think, for argument), but they at onca assign the i-eason, which is not the killing of many females, but the extraordinary fact that " all the male seals had been slaughtered without allowing any to come to maturity upon the breeding grounds" (Sec. 438). Having thus proved that the seals were in a flourishing condition of increase, and that they were decreasing in an alarming degree, the con- clusion is reached that the decrease is on the land and the increase in the water : ^,.. , . . . The general effect of these changes in the habits of the seals is to mini- mize the number to be seen at any one time on the breeding islands, while the average number to be found at sea is, at least proportionat«ly, though perhaps in face of a general decrease in the number of seals, not absolutely increased (Sec. 445 of British Commissioners' Report). Would it be ii'relevant to inquire what was the " summer habitat" of the numerous seals slaughtered by Capt. Warren, Capt. Leary, and Capt. Cox ? Were they not all of the Pribilof family ? Did not the Commissioners who quoted Capt. Cox to the effect that he had, no doubt in true sportsmanlike fashion, with a shotgun, killed 250 seals a day for four days, know that the enormous majority of these were nursing mothers, whose pitps were starving at home P SUMMARY OF TUB EVIDENCE. 'J95 H tbut tlioy Dxplanation Balers were nds, whore roved, and, en HO great ,s to fall in d necessary water after t8 advocacy, rated to in- g of young I, and there- d " at Avhich e seals had (an opinion, the i-eason, ary fact that y to come to condition of ree, the con- rease in the s is to mini- ands, while tely, though t absolutely )itat"of the Capt. Cox? ssionerw who )ortsmanlike now that the ere starving IX. — Dkstuuition nv Pklaoic Sealino and its Kxtrnt — Thk Hkmkdy Proposki) hy the Bbitisic Commission Kits — Tiik Tkuk ani> only Rkmkut Consists in Ahsolute pRouiniTioN of Pkla(1ic Sbalkno. It has been heretofore sought to show that the Commissioners for Great Britain in drawing up tlie report had endeavoured to roach a conclusion favourable to the slaughter of seals at sea, an " industry," as they call it, in which they apparently saw little that was objectionable and which they believed it to bo the interest and policy of their country to protect. In the course of their examination, however, they have neces- sarily been furnished with facts palpably inconsistent with their theory and have been reluctantly compelled to produce proofs of the barbarous, savage, and destructive processes by which the Canadian poachers secured their prey. (a) The Commissioners allude in sarcastic vein to the fact that " there is a ' remarkable agreement' found among those interested in decrying pelagic sealing, to the effect that the pelagic sealers do and must kill a large number of female breeding seals." Why this " agreement," which undoubtedly exists, should be mentioned as " remarkable," we fail to perceive, the evidence produced by the Commissioners themselves plainly showing that no discrimination is or can be made by the pelagic hunters and that they slaughter indiscriminately all the animals that appear within reach of their shotguns. They tliemselves admit that " a considerable proportion of gi-avid females " are slain (Sec. 048), and their own witnesses describe the process of skinning them on deck, in the course of which milk and blood flow freely together, while in some cases fully formed young are taken from the slaughtered mothers. Under such circumstances there is no ground for any criticism nor any reason shown why general acqui- escence in such a proposition should be treated with a sneer upon the truth of the statement. (6) It is cm-tain, they say, that females with milk are occasionally killed at sea by the pelagic sealers (Sec. 314). That they should not be able to give the exact proportion of the pregnant and nursing females to the rest may be due to the fact that their informants, while exulting over the largo slaughter that they succeeded in accomplishing in Bering Sea, do not appear to have stated how many of such breeding females they had suc- ceeded in capturing (page 73). 2f)rt Al{(;i MKNT ol' Till', INITKI) STATKS. (r) it it* (ilaiim'd, Iiowi-vit, tluit pfliigic sciil-liHliiii^' is iiof tlio only caiiHo for tlio clerrcnBc of tlio houIs on the I'rilibof iHliinds, and tliin '\a Hnpportt'd hy ii (piotution to bo found lit pngo IH7 of tlicir Itoport. an to tlio probabU- fate of the fur-seal in America. The ])ara>;raphB rclatinj; to the objectionabio fealurcH of polaj,'ie scal-Hsliinff seoni to he omitted and indicated by aHtcrisks, but the paper in quoted to Hhow that drivinjf of the Heals on the ioland is one of the cviU wliich may be remedied. The concluhion of Mr. Palmer, the authority thus cited, is (1) that no seals should he killed hy itinj our at any time in the waters of Jierimj Sea ; (2) that all seals driven on the islands sliouhl hv killed ; none, he flayfl, kIiouUI be driven and aijain iilloweil to enter the .sea (p. iK'). Certainly Mr. Palmer's paper is very interesting and if his facts and conclusions are adopted 2ielaijic *^ seal-jishiiiii" mast be |)roliibited. "Tlio killiiif,'' of seals as condaetud on the islands," he says, " is as near theoretical perfection us it is possible to get it. They are quickly dispatched and without pain. One soon recognizes, as in the killing of sheep, that in the quickness and neatness of the methoil lies its success, all things considered " (p. 187). This certainly does not agree with the " sportsniiuilike " view of the IJritish Oommis-sioners, but embodies what we i,'ht call the humane and common-sense aspect of the subject by .showii ^ that, so fai* from the desirability of giving the seal "a chance for its life," there should be a selection made in each case and the animal should be pain- lessly and immediately slaughtered. The object should be, not to provide sport to adventurous men and keen hunters, but to secure as many animals as possible with humanity and a due regard to the preservntion of the race. ((/) It is respectfully submitted that as between the two systems, one of which is "theoretically perfect" and in the course of which the animals are selected and " promptly and neatly killed," on the one hand, and indiscriminate sealing at sea on the other, thcve can bo no room for hesitation. But the evident and unquestionable supe- riority of the niethoils adojited on the islands consists, also, in the fact that it is by its nature susceptible of indefinite improvement. No argument is needed to show that the " theoretical " perfection may with care become " practical " perfection, and that, if driving bo really open to the objections made by Mr. Palmer it is not impossible — indeed it must be comparatively easy — to remedy them in the manner suggested by himself or otherwise. In the preservation of pelagic sealing all concur that it is impossible to select the seals which it is >rM\IA|{V or TMK FAIIiKSrH. '207 le mnuiier tIeHirabIti to kill and tliat tliu ciicitmHtaiuTM atui nutiiru of tlir aiiiintil aro such that in nioHt vuhvh tlio ftMiuilo |rregiiaiit or giving suck muNt tall a vtctiiii to thi> wcnpoiiB of tliu poacher. Indeed tho liritiHh CommiHHionHi'M tlicmHolvoH Htato (Sec. (i48) that it is yenfrally iidniillvd that a rotmiilinihli' portion uf gravid i'emalcH arc found ainonf^ thu muo' < taken in tho early |»art of ea(!li Healing HeaHoii. Hetweon two such HystoniH, wo repeat, thei-o can bo no hoHitancy oh to which should be proferrctl, tho ono based on humane and intelligent princi[)U>s, and which tho inteivHt of the parties concerned would naturally make as perfect as poHHible, tho other, which by ilH very nature leads to brutality and undue destruction, and which is pvotitablo only when it is cruel and indiscriininate. These considerations ai-o reenfoi"ced by the very significant fact that the Invediuij j'emahs irhcii foinul at sea arc always jnrgnatit w uiirsimj, and frequently loth. This follows from the undis])uted facts (1) that tho period of gestation is over eleven months; (2) that they reach the i.slands when on tho point of delivery; (3) that they remain there until fertilized, and (4) that during the period of their stay they nurse the yoing, which depend wholly upon their milk for sustenance. ((') The British Commissioners' suggestion as a rfinedy for tho slaughter of the mothers and nurses, contained in section lii5, subdivision c, does not seem to be one which can have been very seriously entertained by iheniselves. They suggest a provision that a close season be provided p,>'tending from the 15th of September to the 1st of May in each year, during which all killing of seals shall be prohibited, with the additional provision that no sealing vessels shall enter Bering Sea before the let of July in each year. They state as a fact in section 049 that " Bering Sen is uov mnally entered by the pelagic sealers between tho '10th of June and the 1st of July and in Bering Sea the same conditions hold" that are described in section 648, namely, that a covsiderahle portion of gravid females are found among the seals taken in the early part of each sealing season. They also say that the pregnant females begin to " bunch up " and to travel fast toward Bering Sea, at the latest, the 1st of June. In other words, the best seasor for hilling nursing and pregnant females in tho Bering Sea is precisely the season recommended by the commissioners as the jiroper one for allowing the slaughter. Surely the pelagic sealers could ask no better protection for their " industry " in Bering Sea than this, nor could any better method of (continuing the abuse and hastening tho destruction be devised than opening the catch to the pelagic sealers at their favorite season. • . * •. 2i)8 ARGUMKNt OF THE UMITED STATES. To understand this extraordinary recommendation fully, sections 648 and 649 of the British Commissiouers' Report should he read together. It may be taken for granted that the pelagic sealers need not be told when the hunting season in Bering Sea is at its best. Experience has taught them, and they have pi'ofited by the instruction, that their operations in Bering Sea could be most profitably conducted during the ncotiths of July ami August. Hence it has been their usage to enter Bering Sea between June 2 ) and July 1 (Sec. 649). They would probably not rebel against a possiijle and occasional delay in ojjening the season, by ten days. The nursing mothers would be still especially open to capture, and would still constitute the staple article of their " industry." In their search for food and in the instinctive confidence which the mothers of dependent ofPspring almost universally exhibit the seals would be less " wary " than at other seasons, and good shots might still carry on their mission of destruction with the superadded comfort that their business was made reputable by law. As if to make even this small restriction upon the liberty of the pelagic sealer less objectionable, he is reminded that " after about the 20th of May or at the latest the 1st of June, very few females with young are taken." (Sec. 648.) His loss would thus be trifling so far as Bering Sea as a field of profitable opei-ation is con- cerned. It seems that in fine sealing weather the schooners can not keep up with the females. Hence they are not all slaughtered. At this time, after May 20, or Juno 1, the pregnant females begin to " bunch up " and the catch consists chiefly of young males and barren females (Sec. 648). Why, then, even this restriction ? When are the breeding females captured ? Is it really intended to assert that the only injury done is that " at a later date in the summer a feic females in milk, and therefore presumably from the breeding places on the islands, are occasion- ally killed, but no large numbers " ? So extiuordinary a statement made in the face of overwhelming pi-oofs requires no discussion. The British Commissioners should have vouchsafed information as to the thousands of nursing mothers killed during the season from July to September and should have told us whence they came and where was their " summer habitat." It i? very li''ely, as they assert, that very feiv females with young are taken after Juno 1. The obvious reason is that they have become nursing mothei's by the Ist of July, those that escaped the shot- gun, the rifle, the spear, and the gaff having found temporary shelter and protection on the islands. {f) Although we have laid much stress upon this in other parts of SUMMARY OF THE KVIDENCE. 299 jctions 648 i together, lot be told erience bas tbat their during the enter Bering robably not ason, by ten to capture, lustry." In the mothers ould be les8 Try on their leir business 11 restriction ia reminded f June, very ould thus be ation is con- liers can not ed. At this to " bunch rren females le breeding only injury in viilk, and ire occasion- ;emont made The British thousands of itember and ir " summer females with t they have d the shot- shelter anil ^ler parts of this argument, the suhject is so important that we again recur to it and L-all attention once more to the admissions and inconsistencies in the British Commissioners' Report. The Commissioners in section 612 exhibit much indignation at the free use that has been made of the appellation " poachers " as applied to the pelagic sealers in general and to Canadian sealers in particular. This, they say, has been done with the obvious purpose of prejudicing public opinion. They then proceed to claim that "adventurers" from the United States are mainly responsible for the reduction of seals brought about in the southern seas. The killing of seals, they say, has always and everywhere been carried out in the indis- criminate, ruthless, and wasteful manner described in detail in several of the works cited in their Report, and in most cases a greater part of the catch has consisted of females. (Sec. 612.) It is certainly no part of the purpose of counsel for the United States to defend " adventurers " guilty of these barbarous pmctices, whatever the nation to which they belong. It is rather a question of humanity than of nationality, and the United States would not hesitate to undertake and to assure the repres- sion of practices which cannot be described in overharsh terms if their own citizens alone were engaged in the business. It is only to prevent " the indiscriminate, ruthless, and wasteful slaughter " by pei*sons who claim the protection of a foreign flag that these methods of arbitration are resorted to. But the waste of the seals lost, in addition to the destruction of the fetns or of the pup, as the case may be, is shown to some extent by the Report of the Commissioners for Great Britain. We refer especially to sections 613, 614, 615, 617, 618, 619, 620, 621. The discrepancy between the two classes of statements given by them- selves is very marked. The agents of the United States, captains in the United States Navy, the superintendents, and others testify that 40 to 60 per cent, of the seals are lost. It would seem, however, from the testimony in defence of pelagic slaughter that old hunters are much more successful than the young ones. Green hands, says the captain of thii Eliza Edtca-ds, might lose as much as 25 per cont. of the seals shot, but experienced hunters would bag their game io the extent of 95 per cent. ; that is to say, they would lose but 5 per cent, of the females shot. (Section 625.) The number of gi-een liands on board the schooner Otto, on which Robert H. McManns, a journalist, was a pas- senger, sailing for his health, must have been very great in proportion to the whole crew. It seemed to him that they did not get over one [317] u 300 ARGUMENT OF THK TXITED STATES. IPfw ^1 ii K^ Ri}u«ffl '% iPi^ ■i mm 11 seal to every hundred shot at. (Vol. 11, p. 335, of the Appendix to the Case of the United States.) We shall now lay before this High Tribunal additional testimony as to the nature and extent and effect of pelagic sealing. The extracts and references about to bo given may seem monotonously cumulative, but it is important to shoAv, otherwise than by mere afBrmation, how far the existence of the herd is menaced ond how soon extermination may be expected unless prompt and efficient measures of redress bo adopted. The evidence of credible witnesses, dealing neither in generalities nor in speculation, leaves no doubt as to the appalling extent of the massacre. It is impossible to assume that the witnesses produced for the United States deliberately perjured themselves as to numbers, dates, and distances. Even if any reason were given for throwing a suspicion upon their character, the raticenco of many of the witnesses examined by the British Commissioners as to the sex of the animals killed is significant. It is to the credit of these persons that while they did not hesitate to state that they had slain large numbers of seals in Bering Sea without discrimi- nation, they refrained from giving any precise data as to the sex of the animals that they captured. If, however, it is desired to know how far this ruthless and exter- minating process is cai-ried, the desire for information may readily be gratified. The sealing schooner Favorite, McLean, mastei', according to Osly, a native sealer who went to the Bering Sea on her as a hunter, captured 4,700 seals, most all of which were cow seals giving milk. They were captn'-jd at a distance of about 100 miles from the Pribilof Islands. In 1888 the same hunter was on board the Challenger, Captain Williams, master. They were less successful and caught only about 2,000 seals, most of which were cows in milk. In 1889, he again went to sea on the schooner James G, Swan, but the seals were not so abundant ; they were rapidly decreasing. (Appendix to the Case of the United States, Vol. II, pp. 320, 391.) Niels Bonde (ibid., p. 315;, of Victoria, British Columbia, was a sea- man on board the schooner Kate. Ke went to the Bering Sea, arriving there in July, and left in the latter part of August. They had caught about 1,700 seals in that time between the Pribilof Islands and Un- alaska. Th*' were caught from 10 to lOO or more miles off St. George Island. The seals caught in Bering Sea were females that had given Sl'MMARY OF THE EVIDENCE. 301 xdix to the jstimony as 'he extracts cumulative, nation, how t termination redress bo eralitiea nor ae massacre. the United ad distances. upon their J the British leant. It is tate to state )ut discrimi- sex o£ the IS and exter- y readily he to Osly, a ter, captured They were ands. lin Williams, )0 seals, most 'wan, but the (Appendix to was a sea- Sea, arrivinf? had caught ids and Un- ffi St. George \t had given birth to their young. He often noticed milk flowing out of their breasts. He had seen live pups cut out of their mothers and live ni-ound on the decks for a week. ' Peter Brown {ibid., p. 377), a native, part owner of a scliooner for abou seven years and owner of the James 0. Swan for about tliree years ; hunted in Bering Sea in 1888 ; the catch was nearly all cows tliat had given birth to their yoiing and had milk in their teats. His people hunted with the spear and therefore did not lose many that they hit. Thomas Brown, No. 2 (ibid., p. 406), made a sealing voyage to th;> North Pacific and Bering Sea on the Alexander. They caught 25(t seals before entering the sea, the largest percentage of which were females, most of them having young pups in them. He saw some of the young pups taken out of them. They entered the sea about the Ist of May and caught between 600 and 700 seals, from 30 to 150 miles off the seal islands. Four out of five were females in milk. He saw the milk running on the deck when he skinned them. They used mostly shotguns, and got on the average 3 or 5 out of every 12 killed and wounded. Evidently these were what has been termed " green hands." • Charles Challall, who has been heretofore quoted, a sailor in 1888 on the Vanderbilt, in 1889 on the White, and in 1890 on the HamiUon, give.s his experience, which may be found at pages 410 and 411. They cap- tured a great many seals on the fishing banks just north of and close by the Aleutian Archipelago. Most of the seals they killed going up the coast were females heavy with pup. He thinks nine out c f every ten were females. At least 7 out of 8 seals caught in the Bering Sea were mothers with milk. . > , , • Circus Jim (ibid., p. 380), a native Makah Indian, captured a great many cow seals that were giving milk. Most of the seals he caught in the sea were giving milk. His theory as to the decrease of tlie animal, which he states as an undoubted fact, is that the white hunters had been hunting them so much with guns. " If so much shooting at seals is not stopped they will soon be all gone." James Claplanhoo (ibid., p. 381), a native Makah Indian, evidently found the business profitable, for he was the owner of the schooner Lottie, of 28 tons burden Formerly he used nothing but spears in hunting seals, but he had since that resorted occasionally to the use of a gun. He says that about one-half of all the seals that he had captured in the Sea or on the coast were full grown cows with pupa in them. In 1887, about the first of June, he went into Bering Sea in his own [317] u 2 i: ,■,'.1 l'.!'l 302 ARGUMENT OF THE UNITED STATES. schooner, the Lottie, and hunted aboat sixty miles o£E the Islands, and secured about 700 seals himself, all of which were cows in milk. These cows had milk in their breasts but had no pups in them. He returned to Bering Sea in his own boat, the Lottie, in 1889, and also in 1891, and sealed all the way from 100 to 180 miles from the St. George and St. Paul Islands. The catch of those two years was about the same as those caught in 1887, that is, mostly females that Lad given birth to their young and were in milk. Louis Culler (ibid., p. 321). According to him the white hunters in 1888 must have been nearly all " green hands," for they did not secure more than two or three out of every 100 shot. He was aboard the Otto in 1891, on board of which were two newspaper correspondents, King- Hall, representing the New York Herald, and Mr. McManus, of Victoria, They entered the sea through the Unamak Pass and captured therein about 40 seals, most all of which bad milk in their breasts. After taking these seals they returned to Victoria, British Columbia, about the 25th of September. John Dalton was a sailor and made a sailing voyage to the North Pacific and Bering Sea in 1885 on the schooner Alexander, of which Captain McLean was master. They left Victoria in January and went south to Cape Flattery and Cape Blanco, sealing around there about two months, when they went north, sealing all the way up to the Bering Sea. They had between 100 and 300 seals before entering the sea. Most all of them were females with pups in them. They entered the sea about June and caught about 900 seals in there, two-thirds of which were mother seals, with their breasts full of milk. He saw the milk flowing on the decks when they skinned them. Alfred Dardean (ibid., p. 322), a resident of Victoria, British Columbia, and during the two years preceding the making of his deposition, which was in April, 1892, he had been a seaman on the schooner Mollie Adams. They left Victoria, British Columbia, on the 27th of May, 1890, and commenced sealing up the coast, toward Bering Sea. They entei-ed Bering Sea through the Unamak Pass about July 7, and sealed around the eastern part of Bering Sea until late in the fall. They caught over 900 seals before entering the sea, and the whole catch dur- ing that year was 2,159 skins. Of the seals that were caught off the coast fully ninety out of every one hundred had young pups in them. The boats would bring the seals killed on board the vessel, and they would take the young pups out and skin them. If the pup was a good SUMMARY OF THE EVIDENCE. 303 Islands, and lilk. These returned to n 1891, and George and the same as >irth to their iters in 1888 secure more the Otlo in lents, King- of Victoria, ured therein After taking t the 25th of ) the North jr, of which ry and went )re about two Bering Sea. Most all of a about June were mother )wmg on the ah Columbia, i deposition, looner Mollie f May, 1890, Thej entei-ed and sealed ) fall. They lie catch dur- tught off the ups in them. }1, and they p was a good one they would skin and keep ;it for themselves. He had eight such skins himself. Four out of five, if caught in May or June, would be alive when they cut them out of the mothers. They kept one of them nearly three v/eeks alive on deck by feeding it on condensed milk. One of the men finally killed it because it cried so pitifully. They got only three seals with pups in them in the Bering Sea. Most all of them were females that had given birth to their young on the island, and the milk would run out of the teats on the deck when they were skinned. They caught female seals in milk more than 100 miles off the Pribilof Islands. The same witness states that they lost a good many seals, but he does not know the proportion that was lost to the number killed. Some of the hunters would lose four out of every six killed. They tried to shoot them while asleep, but shot all that came in their way. If they killed them " too dead " a great many would sink before they could get them, and these were lost. Sometimes they could get some of them that had sunk by the gaff hook, but they could not get many that way. A good many were wounded and escaped only to die afterward. Frank Davis (ibid., p. 383), a native Indian of the Makah tribe, was sealing in the Bering Sea in 1889. He says, agreeing in this with all the other witnesses, that nearly all of the full-grown cows along the coast have pups in them, but the seals that he caught in Bering Sea were most all cows in milk. Jeff Uavis {ibid., p. 384), and also a native Makah Indian, says that most of the seals that were captured there that season — that is, in 1889 — were cows giving milk. Capt. Douglass {ibid., p. 420) : His testimony is that a very large pio- portion of the seals killed along tiie coast and at sea, from Oregon to the Aleutian Islands, are female seals with pups ; in his judgment not less than 95 per cent., as has been quoted heretofore. He also says that the proportion of female seals killed in Bering Sea is equally large. Peter Duffy (ibid., p. 421). By occupation a seaman on board the Sea Otter, Captain Williams, master. They left San Francisco aad fished up the coast until they entered Bering Sea in July, and sealed about the sea until they were driven off by the revenue cutter Corwiv. From there they went to the Copper Islands. The whole catch amounted to nine hundred skins, and most of them were killed with rifles. They only got one out of about eight that they shot at, and they were most all females giving milk or in pup. When they cut th-j if; .304 ARGUMENT OF THE UNITED STATES. liido off you could seo the milk runnini^ from the breasts of the seals. Tiio second year they were more fortunate and got over .1,300 skins ; some of them were cows with pups in them, and almost all of the rest were cows giving milk, and sonic of the latter were killed as far from the rookeries as Unimak Pass. William Fraser (page 426), of San Francisco, had made three trips to the North Pacitic and Bering Sea within the last six years. His busi- ness was that of a laborer; he acted as a boat-puller. They used shot- guns and killed about 300 seals in the North Pacific. Most of the females killed had unborn pups or were cows giving milk. The next trip that he made was on the Vanderbilt. They did not enter the Bering Sea on that trip either. They got about 350 seals, almost all females. Finally he made a trip on the C. G. White, but does not know if he was on the American side or not. They killed about 600 seals on that trip, nearly all females. He noticed when they skinned them that they were females in milk, as the milk would run from their breasts on to the deck. John Fyfe {ibid., p. 429), of San Francisco, a '■ealer and boat-puller on the schooner Alexander, McLean, master. They entered Bering Sea about April and got 795 in there, the largest part of which were mother seals in milk. When they were skinning them the milk would run on the deck. Some were killed 50 to 100 miles off the seal islands. When they shot the seals dead they would sink and they could not get them. Thomas Gibson (ibid., p. 431) had been engaged in sealing for ten years. He gives his experience in detail and the number of seals that he killed in each season. He says : I did not pay much attention to the sex of seals we killed in the North Pacific, but know that a great many of them were cows that had ])nps in them, and we killed most of them while they were asleep on the water. I know that fully 75 per cent, of those we caught in the Bering Sea were cows in milk. We u.sed rifles and shot-guus and shot them when feeding oi- asleep on the Avater. An experienced hunter, like jnyself, will get two out of three that he kills, but an ordinary luinter would not get more than one out of every three or four that he kills. Arthur GritFin (ibid., p. 325), a seafaring man who resides at Victoria, British Columbia, sailed from that place on February 11, 1889, as a boat-puller on the sealing schooner Ariel, Buckman, master. She rai'ried six hunting boats and one stem boat and had a white crew who used shot-guns or rifles in hunting seals. They began sealing off the northern coast of California and followed the sealing herd north- ward, capturing about 700 seals in the North Paoific Ocean, two-thirds SUMM\RY OF TFIR EVIDKXCK. 305. £ the seals. 1,300 skins; of the rest as far from iree trips to His busi- r used shot- ^lost of the The next it enter the I, almost all 58 not know 300 seals on d them that r breasts on mt-puUer on Bering Sea (vere mother onld I'un on nds. When it them, ling for ten seals that ho lied in the vs that had sleep on the the Bering I shot them hunter, like nary hunter kills. at Victoria, 1889, as a aster. She white crew sealing off herd north- two-thirds of which wore females with pup ; the bahiiice were young seals, both male and female. They enteied Bering Sea on the VMh of July, through the Unimak Pass and <'aptnred between WUO and 1,000 seals therein, most of which were females in milk. Tliey returned to Victoria on the Slst of August, 1889. It will be obseived here that Arthur Grittin'.-< experience and success would not lead him probably to object to the )noi/i(s operandi suggested by the British Commissioners. His operations by which 900 or a 1,000 seals, mostly females in milk, were secured in the brief space of six weeks, could be carried on not only with equal propriety, but with the additional advantage of being lawful. His experience in 1889 was not exceptional. He went out again in 1890 in the E. B. Marvin, McKiel, master. They again captured between 900 and 1,000 seals on the coast, most of which were females witli pups. They entered the sea on July 12 through Unimak Pass and captured about 800 seals in those waters, about 90 per cent, of which were females in milk. His experience was that a good hunter will often lose one- third of the seals he kills. A poor hunter will lose two-thirds of those he shoots. On an avex'age huntei's will lose two seals out of three of those they shoot. M. A. Healey (ibid., p. 27). Capt. Healey, an officer in the United States Revenue Marine service, on duty for nearly the whole of twenty- five years in the waters of the North Pacific, Bering, and Arctic seas. He speaks from experience and says : My own observation and the information obtained from seal hunters convince me that fully 90 per cent, of the seals found swimming in the Bering Sea during the breeding season f.re females in search of food, and the slaughter results in the destrnction of her young by starvation. I firmly believe that the fur-seal industry at the Pribilof Islands can be saved fi'om destruction only by a total prohibition against killing seals, not only in the waters of Bering Sea, but also during their annual immigration northward in the Pacific Ocean. This conclusion is based upon the well-known fact that the mother seals are slaughtered by the thousands in the North Pacific while on their way to the islands to give birth to their young, and extinction must necessarily come to any species of animal where the female is continually hunted and killed during the period required for gestation and rearing of her young ; as now practiced there is no respite to the female seal from the relentless pursuit of the seal-hunters, for the schooners close their season with the departure of the seals from the northern sea and then return home, refit immediately, and start out upon a now voyage in February or March, commencing upon the coast of California, Oregon, and Washington, following the seals northward as the season advances into the Bering Sea. ... . ' ; t. . i 1'' •306 AlUJUMENT OF THK rVITKD STATES. il f James Kean {ibid., p. 4'18), a resident of Victorin, Dritish Columbia, and seaman and seal faant«i*, gives bis experience. He went seal-hunt- ing in 1889 on the schooner Oscar and Hattie. He left Victoria in the latter part of February and went off south to the Columbia Biver, and commenced sealing off there and followed the herd along the coast up to Bering Sea, arriving there some time in June. Thej captured somew 'ii'e about 500 seals before entering the sea. There were a good many females among them. The old females had young pups in them. He saw them taken out and a good many of them skinned. They entered the sea and caught about 1,000 in there. Sometimes they were over loO miles off the seal islands ; sometimes they were nearer. He paid no attention to the proportion of females, but he knows that they skinned a gr jat many that were giving milk, because the milk would run from t'leir breasts onto the deck while they were being skinned. They killed mother seals in milk over 100 miles from the seal islands. They generally got them when they were asleep on the water. He went out again in the Walter Rich in 1890, with very much the same experience. He thinks that he got half of what he killed and wounded, but he did not believe that the green hunters get more than one out of every four or five that they kill. For detailed and circumstantial evidence that the proportion of females taken to males was enormous, and that nearly all of these when taken in •Bering Sea were nursing sows, see : William Hermann, page 445 ; Norman Hodgson, page 366 ; O. Holm, page 366 ; Alfred Irving, page 356 ; Victor Jacobson, page 328. James Jamieson (ibid., p. 329) : This witness, Jamieson, had been fail- ing-master of several schooners and had spent six years of his life sealing. He testified that he always used a shot-gun for taking ""^als ; that over half Avere lost of those killed and wounded. A large majority of the seals taken on the coast were cows with pups. Once in a while an old bull is taken in the North Pacific Ocean. No discrimination was used in killing seals, but everything wus shot that came near the boat in the shape of a seal. The majority of seals killed in Bering Sea are females. He had killed female seals himself 75 miles from the islands, and they were full of milk. To the same effect as to the large proportion of females nursing their young, see James Kennedy {ibid., p. 449). James Kiernan, who had been engaged in sealing since 1843 : My experience, [he says,] has been that the ' sex of the seals usually killed by hunters employed on vessels under my command, both in the SUMMARY OF THE EVIDENCE. 307 Columbia, seal-huat- >ria in the bia River, the coast Y captured ere a good IS in them, led. They they were earer. He 1 that they nilk would ig skinned, jal islands. He went experience. ) he did not four or five I of females taken iu Norman J56 ; Victor been fail- life sealing, that over of the seals old bull is d in killing shape of a had killed ill of milk, rsing their als usually oth in the North Pacific Ocean and Bering Sea, were cows. I should say not Ichs than 80 per cent of those caught each year were of that sex. I have observed that those killed in the North Pacific were mostly females carrying their young, and were generally caught while asleep on tlie water, while thoso taken in the Bering Sea were nearly all mother seals in milk, that had left their young and were in search of food. My experience con- vinces me that a large percentage of the seals now killed hy shooting with rifles and shotguns are lost. My estimate would be that two oat of every three killed are lost. See the testimony of Francis R. King-Hall, the journalist. Edward Nighl Lawson, a resident of St. Paul's, Kadiak Island, Alaska (ibid., p. 221), killed females in milk in Unimak Pass, and even out in the Pacific Ocean 200 miles from land. They can not distinguish between the sex of fur-seals in the water ; on tho contiary, everything in sight is taken, if possible, except large bulls, whose skins are useless. He recommends, in order to prevent the extermination of the fur-seal species, that a close season in the North Pacific Ocean and in Bering Sea should be established and enforced from April 1 to November 1 in each year. Abial P. Loud (ibid., p. 37), a resident of Hampden, Me., special assistant treasury agent for the seal islands in 1885, 1886, 1888, and 1889. William Mclsaacs (ibid., p. 450). Capt. James E. Lennan (ibid., p. 369), master mariner of eight years' experience. William McLaughlin (ibid., p. 451), boat-puller on board the Triumph. Robert H. McManus (ibid., p. 335), a journalist, whose qualifications have been spoken of heretofore, gives, on pp. 337 and 338, extracts from his diary. This deposition should be read in whole. Patrick Maroney (ibid., p. 464), of San Francisco, a seaman. Henry Mason (ibid., p. 465), of Victoria, British Columbia. Moses (ibid., p. 309), a native Nitnat Indian, gives his experience in 1887 on the schooner Ada. They sealed around TJnalaska, but did not go to the Pribilof Islands. They caught 1,900 seals. Most all of them were cows in milk, but when they first entered the sea they killed a few cows that had pups in them. The next year they secured only 800, and the year following eight or nine hundred. The seals caught were mostly cows with milk, • John O'Brien (ibid., p. 470), of San Francisco, a longshoreman, made a sealing voyage to the North Pacific and Bering Sea on the Schooner Alexander, which sailed from Victoria in January, 1885. He was a boat- puller. They headed north into the Bering Sea which they entered it 808 ARGUMENT OP THE UNITED STATES. tho latter end of Mny. Up to that time tliey had caught 250 or 300 seals of which 80 per cent, were females. After they entei-ed the Boring Sea they caught about 700 seals, most all of them being females in milk. He also shows that there is a very considerable waste of life from killing or wounding and losing animals. John Olsen (ibid., p. 471) of Seattle, Wash., a ship-carpenter, entered the Bering Sea about the 5th of June, 1891, on board the Labrador, Capt. Whiteleigh, commander. They wei'e ordered out of the sea on the 9th of June. In going up the coast to Unimak Pass they caught about 400 seals, mostly females with young, and put their skins on board the Danube, an English steamboat at AUatack Bay, and after they got into the Bering Sea caught about 220. After entering the sea they got one female with a very large jjup, which he took out alive and which he kept for three or four dajs when it died as it would not eat anything. All the others had given birth to their young and their breasts were full of milk. He also states how large a loss is made by failure to recover the animals that are killed. Osly (ibid., p. 391), a native Makah Indian, went to the Bering Sea in 1886 on board the Favorite, McLean, master They captured about 4,700 seals, almost all of which were cows giving milk. Four years before that he had gone to Bering Sea as a hunter in the sealing schooner Challenger, Williams, master. There were 3 white men in each boat and 2 Indians in a canoe. We caught about 3,000 seals, most of which were cows in milk. William Short {ibid., p. 348), of Victoria, British Columbia, is by occupation a painter. On January 14, 1890, he sailed as a boat-puller from Victoria on the British sealing schooner Maggie Mac, Dodd, master. She carried six sealing boats that were manned by three white men each, who used breech-loading shotguns and rifles. On the 12th of July they entered the sea through the Unimak Pass. Befoi*e this they had captured 1,120 seals on the coast. They lowered their boats on the 13th and captured about 2,093 seals in tliose waters and then returned to Victoria on the 19th of September. In July, 1891, he sailed out of the port of Victoria as a hunter on the British sealing schooner Otto, O'Reily, master. Failing to procure the Indian crew of sealers that they had expected, they returned to Victoria, after proceeding up the coast, on the 1st of August. While cruising along the coast their pi-incipal catch was females with pups. Fully 90 per cent, of all seals secured by them while in the Bering Sea were cows with milk ; that is to say, out of 2,093 all but about 300 were nursing mothers. I' 300 sea Ik Jering Sea milk. He killing or ?r, entered ador, Capt. I the 9th of 1 400 seals, Danube, an Bering Sea lale with a or three or others had k. He also lis that are ring Sea in about 4,700 j-ears before g schooner h boat and which were iibia, is by boat-puller )dd, master, e men each, >f July they ad captured 13th and to Victoria the port of sily, master, pected, they of August, a with pups. Bering Sea ut 300 were SUMMARY OF THK EVIPENCE. 309 Profitable as the business a|)pearH to havt been to Mr. Short, he is candid enough to say that in his opinion — It is a shame to kill the female seal before she has given birth to her young. Pelagic sealing in the North Pacific Ocean before the middle of June is very destructive and wasteful and should bo stopped. * * * Sealing in the sea should be prohibited until such a time as the pup may have grown to the age at which it may be able to live without nurse from its mother. James Sloan (ibid., p. 477), of San Francisco, by occupation a seaman, made three voyages to Bering Sea, in 1871, in 1884, and in 1889. A great many of the females that they killed had their breasts full of milk, which would run out on the deck when they skinned them. In 1889 they went to the Okhotsk Sea and sealed there about two months. They got about 500 seals, of which more than one-half were females, and the most of them had pups in them. They entered Bering Sea about the 17th of May and caught about 900 seals. Most of them were mother seals. Mr. Sloan pi'edicts an early extermination of the seals unless the destructive processes are stopped. As he says, the hunters kill them indiscriminately and all the hunters care about is to get a Jikia. See, also, the testimony of Fred Smith (ibid., p. 349), of Victoria, a seal hunter. Of Joshua Stickland (ibid., p. 349), also of Victoria, a seal hunter who declares that out of 111 seals killed by him in the last year he killed but three bulls. John A. Swain (ibid., p. 350), of Victoria, a seaman, gives his experi- ence in 1891. He was on board the steamer Thistle, Nicherson, master. They caught about 100 seals. They were all females that had given birth to their young. In 1892 they caught 270, most of them pregnant females which were caught along the coast. Theodore T. Williams (ibid., p. 491), an intelligent gentleman, by pro- fession a journalist, employed as city editor on the San Francisco Examiner, makes a very interesting deposition. In pursuit of his pro- fession he had not only had occasion to make extended inquiries into the fur-sealing industry of the Aleutian Islands and the North Pacific, but had gone to the North and had made a complete and exhaustive examina- tion of the open-sea sealing, its extent, probable injury, etc. The perusal of the whole of this very interesting document is recommended. As the result of his investigation in the Bering Sea and North Pacific he asserts the following facts : 310 ARGUMENT OF THK UNITED STATES. First. That 95 per cent, of all the seals killed in the Bcrinjif Son are females. Second. That for every three sleeping Keals killed or wounded in the water only one is recovered. Third. For every six travelling seals killed or wounded in the water only one is recovered. Fourth. That 95 per cent, at least of all the female seals killed are either in pup or have left their newly-born pup on the islands, while they have gone out into tlie sea in search of food. The result is the same in either case. If tlie mother is killed the pup on shore will linger for a few days, some say as long as two or three weeks, but will inevitably die before winter. All of the schoonera prefer to hunt around tlie banks where the female seals are feeding, to attempt to inter- cept the male seal on their way to and from the hauling grounds. This overwhelming and practically uncontradicted evidence certainly justifies the statement of the British Commissioners as to the " remark- able agreement " upon this subject. How the facts could be disputed without impeaching witnesses taken from every class of society where knowledge could be found, it is impossible for us to conjecture. Officers from the Navy of the United States; British sea captains as well as American seamen, journalists, natives, all concur as to the fearful destruc- tion which is going on. It is not possible to read the testimony, even making far more allowance for exaggeration than the nature of the case will justify, without reaching the conclusion that pelagic sealing must bo stopped or all hope of preserving the herd abandoned. Palliation, com- promise, and mitigating processes are out of the question. The outrage must be cut at the root and its continuance made impossible. Females that are pregnant eleven months of the year, and nursing mothers three or four months, must be left undisturbed, and if, as all agree, it is impossible to discriminate in pelagic sealing between the mothers and the males, then the other alternative is inexorably before us, and that is absolute interdiction. (g) The principal fact ihfst a decrease, alarming and continuous, has been noted, is by the proof.'i and admissions made evident. It required no proofs, as it is conceded 1. y t'ae Commissioners on both sides to exist, and it is for the purpose of remedying the evil that this Arbitration has been entered into. It is claimed on the part of the United States that the diminution which threatens extermination is wholly due to pelagic sealing, a practice which does not permit the hunter to spare the gravid or nursing females: while at the same time, and cooperating with this principal source of undue destruction, the methods used by the hunters frequently result in the death and simultaneous loss of the animal. It need hardly be said, that prima facie, to such a system inj? Son are ndcd in tlio 1 the water B killed uro 1, while they I the pup on :hree weeks, efer to hunt ipt to intor- ds. CO certainly le " remark- be disputed (ciety where re. Officers I as Avell OB rful destruc- imony, even I of the case ling must be iation, com- rhe outrage e. Females lers three or s impossible the males, is absolute tinuous, has It required ies to exist, Arbitration nited States oily due to to spare the cooperating )ds used by I loss of the h a system SrMMAKY OF THK KVIDKNCE. sn must be attributable the undue dosiruction which it ia desired to prevent. Those who undertake the dufensu of .such methods and of such a Hystom can not convpla\u if the burden of proof is placed upon them of justifying a couihf which has received the coiiilemnation of mankind. It is diffioulr to perceive any good v< ason why the ordinary and usual rules that liavo always been (oUowod as essen- tial to the preservation of a species should be dispi used with in the case of the fur-Hoals. It matters little whether it is an absurdity or scien- tifically correct to designate them as essentially or natui-ally or wholly pelagic. Important controversies between enlightened nations will not turn upon nice questions of scientific nomenclature. The animal whoso existence is at stake is useful to man, dnd it is therefore the interest and policy, as it will be to the honor of both nations, to preserve it. The time has long since gone by when the selfishness of nations may have been the controlling factor in such debates. But were it otherwise. Great Britain will suffer as seriously as the United States from the ex- termination rf a herd of seals which the United States alone can pre- serve, which the United States alone can foster, guard, and protect, be- cause it happens that the vital functions of procreation and delivery are performed on its soil. The United States may and will discharge this duty, to its own people and to the world, provided its efforts are not baffled and its beneficent action neutralized by the indiscriminate slaughter of which it complains. That the Government of the United States has power, both in law and in fact, within the limits of its own jurisdiotion no one disputes, but the suggestion is made that the methods adopted on the islands which constitute the only land resort of the seals are imperfect in practice while perfect in theory. Certain objections are made to show that while care ia taken to preserve the female from destruction, so many young males have been slaughtered that the necessary vitality is lacking in the service of the females. Thus it is claimed that the two sources combine to endanger the permanency of the seal family, admitted and undue destruction at sea and unwise or excessive killing on the islands. Conceding for the sake of argument, and only for the argument, that this is true, it must be apparent that the necessity of preventing pelagic sealing is only the more pressing, in the interest of the industry which it is desirad to conserve. The methods of the United Stat«s may be faulty, but it should not be forgotten that the Government is especially interested in maintaining an industry r^ 312 ARGUMENT OF THK UNITED STATES. which beU)uc;a td itsolf. Tho faults impnted air, utter all is Kaitl. faults of detail and oxocution, which do not in any manner affect the principle adopted. They are susceptible of remedy, and it is idle and absurd to suppose that a valuable commerce, susceptible of expansion by judicious methods, will bo wantonly suffered to go to ruin. Self- interest, if no higher motive, may be trusted to impi'ovo the means now in use, in so far as they may require improvement ; experience will constantly throw its light upon the best means of performing the duty, while tho apprehension of loss will stimulate the efforts of those most nearly concerned in the financial success of the business now carried on at the Islands. But it is not, in fact, admitted that any such objections exist. Tho number of males killed did turn out to be excessive and was therefore reduced. This, however, only became manifest after the ruthless de- struction at sea had begun to bo felt on the Islands. That destruction is only limited by the capacity of tho destroyers. They profess no scruples and tboy show no mercy. Their " legitimate business " requires courage and skill, it is said, but it is incompatible with tho onlinary feelings of humanity. Present gain is tho only object in view. The poachers' horizon is limited by the season's catch. Is it not an insult to common sense to deny that the pursuit of pregnant females and the slaughter of nursing mothora on their feeding grounds are wholly, abso« lutely, brutally inconsistent with any system that requires nioderation, self-denial and humanity ? Leaving out all other questions as irrelevant, is it not enough for tho United States to say, " We can preserve for the benefit of the world the animal which your poachers are destroy- ing ; you can only do it by a prohibition cf methods which you would not for ftii instant tolei-ate in analogous cases within your jurisdiction. Of what avail are small criticisms upon our system of protection when we are so largely concerned in carrying them to the point of the highest perfection ? " When suggestions ai-e asked as to any other icay of repressing or cii"cumscribing this destructive slaughter, the British Commissioners propose as a remedy that Bering Sea be closed when stealing is un- profitable, and opened during the season when the horror, and tho profits of the buainess both reach their climax. Tho language of cho Counter Case of the United States, commenting upon thi,) extraordinary suggestion, is couched in singularly moderate terms : ; " SrMMARY OF THK KVIDENCE. 313 all is Kiiiil, *r iiffect the is idle nnd f expansion ruin. Solf- nioans now Brienco will ig the duty, those moKt arriod on at exist The as tliei-ofore ruthless de- destruction profess no 58 " requires ho ovilinary view. The )t an insult les and the liolly, abso. moderation, 3 irrelevant, -n preserve we destroy, you would jurisdiction, action when the highest ii'essing or iimissioners ing is un- '. and tho ago of cho traordiiiary The rofOMMUondatiim by the Commissioners of a series of roi^ulations siK'h as Miose abov(> considered, is clearly indicative of the bias and partisan spirit which appear in nearly everv section of tiicir Report (p. 128). • * . This subject is treated at length in tho Counter Case (p. 125) and also in another part of this argument (ante, pp. 100-21-i) ; it need not be dwelt upon here. In conclusion it is submitted, as the facts show that pelagic .sea I in <>• bv its very nature leads to and necessarily depends for success u]ion indis- criminate slaughter, that tho females killed are with mre exceptions, either gravid or u rsing mothers and form a largo proportion of tho pelagic catch ; that tho slaughter of a breeding female of necessity involves the destruction of the nursing pup at homo as well as of the ujiborn fetus, thus destroying three animals at one blow ; that the only practical and in- telligout method of preserving the race is to stop pelagic sealing, leaving the United States to contiime and to improve, if possible, those mea- sures best calculated to secure an end which it is to tho interest of both parties to reach. In other words, the experience of men has taught that the preservation of the breeding female was and is the only means of preserving and perpetuating the race. Until it has been shown that the animal does not share the conditions of other animals born and suckled on land, the usual means of preserving them must l „ adopted. Unless these propositions are conceded, tho hope of preserving the fur- seals of the Pribilof Islands must be abandoned. Present greed is not controlled by possibilities of remote loss. Tho South Sea seals and their fate have taught the world a lesson which the United States are seeking to improve in tho common interest of mankind. They will succeed if this High Tribunal by its decision shall prevent practices rcpugmmt to tho growing humanivy of tho age. Tho fox-egoing statement of facts has been prepared in part with the aid of a collated edition of tho testimony ptrsented with the Case of the United States, and which is heiowith submitted to the Tribunal of Arbitration as an Appendix to tho printed argument of counsel. F. R. Coui>Ein'. 314 ARGUMENT OF THE UNITED STATES. SEVENTH. POINTS IN REPLT TO THE BBITISH COUNTER CASE. 'i. 4»; Since the preparation o* the Argument on the part of the United States, on the facts as so far appearing, the British Counter Case has been delivered. It contains a large quantity of matter concerning the nature and habits of the fur-seals, the methods and characteristics of pelagic seal- ing, and the methods of dealing with the seals at the breeding places, which matter, so far as it is relevant at all, is relevant to the question of the alleged property interest and rights of defense of the United Sta^os. f.j"^ to the regulations which may be necessary in order to prevent th<> f.vij mination of the animal. This matter is accompanied with a protest (page 3), that, so far as matter relevant only to the question of regulations is concerned, its intro- duction before the Arbitrators is at present improper, and that it has been incorporated into the Counter Case without prejudice to the contention on the part of Great Britain, that the Arbitrators can not consider the ques- tion of regulations until they have adjudicated upon the five questions enumerated in Article VI of the treaty. The counsel for the United States conceive that there is no ground upon which such an interpretation of the treaty can be supported. That inter- pretation assumes that there are to be two separate and distinct hearings and two separate and distinct submissions of proofs. There is absolutely nothing in the treaty to warrant such a view, and the distinct provision respecting the Cases and Counter Cases, their contents, the times when they are to be submitted, the preparation of the arguments, the times when they are to be submitted, when the hearing is to begin, and when the matter is finally to be decided, all point to the conclusion that there is to be but one hearing, one submission of evidence, one argument, and one determination. It is indeed contemplated by the treaty tl^at in a certain contingency it may not be necessary for the Tribunal to consider the question of concurrent regulations. This, however, simply involves a condition exceedingly common in judicial controversies, that sevei-al questions ited States, B has been • the nature )c1agic seal- laces, which ition of the Sta^os. i.rr\ ,t the (•:. ■f'lJ • b, so far as (d, its intro- i it has been intention on er the ques- re questions [round upon That inter- ict hearings absolutely ct provision limes when times when i when the there is to nt, and one contingency question of a condition questions POINTS IX RErLV TO THE BRITISH COUNTER CASE. 315 may be made the subject of trial iit the same time, and yet the nature of the decision be such as to dispense with the necessity of determining all of them. Assuming that the interpretation of the treaty insisted upon by the counsel of the United States is the correct one, the procedure adopted on the part of the British Government is wholly irregular and unauthorized, and the matter thus irregularly sought to be introduced before the Tribunal should be excluded from its view. Otherwise the Governmenb of the United States would bo placed under a disadvantage to which it shouhl certainly not be subjected. In the first place, all the testimony and proofs, which bear alone upon the question of regulations, would come before the Tribunal without any opportunity on the part of the United States for m<^iking an answer to it. No such possibility is contemplated by the treaty, nor should it be .allowed. No proceeding is entitled, to the name of a judicial one which allows one party to introduce proofs without giving to the other an op- portunity to meet and contradict them. Tjiere i° another disadvantage scarcely less onerous : The govern- ment of Great Britain li thus waiting until the proofs of the United States had been offered secured to itself the very great and unjust ad- vantage of obtaining a knowledge of its adversary's Case before com- mitting itself to its own view. It was thus enabled to withhold evi- dence which it would otherwise have introduced, and to give evidence which it would otherwise have withheld. Such advantages at once de- stroy that equality between contesting parties which is a pi-ime requisite of every judicial proceeding. But matter bearing Upon the question of property was, even in the view of the Government of Great Britain, relevant in the original Case, and any evidence or proofs which the Government of Great Britain de- sired to submit upon that point ought to have been embraced in their original Case. Manifestly, everything relating to the nature and habits of the seals is of this character. It is u])on these that the question of jiroperty depends. All matter of this description, except such as plainly tends to impeach and was designed to impeach the evidence offered by tlio United States, should have been exhibited in the original Case, and should not be allowed to be introduced under cover of the Counter Case. Surely it cannot be the privilege of Her Majesty's Government to so introduce its proofs as to deprive the United States of all opportnnity either to answer 'or impcnch thciu. ■ ' [:^17] X HKi ARftrMKNT OF THE rXlTED STATES. And the samo civcumstance which deprives the United States of its just right of answering by connteracting pi-oofs the new matter contained in this Connter Case also deprives them of the ability to fully treat of finch matter in argument. Entirely occupied as they are, and must necessarily be, in the final work of translating and carrying through the press the argument already prepared by them upon the original Cases, they have no time at their disposal in the short period between the delivery of the Counter Case and the time appointed for the submission of the arguments within which to carefully review and comment upon thia new matter. Even the evidence in respect of the claim for damages made by Great Britain is chiefly comprehended in the Counter Case, so that the United States Government has no opportunity to introduce counter proof, nor even to :>':M/yze in written argument the evidence so submitted. The Ul t vtes Government therefore protests against the considera- tion by the Ai .vatoi'S of any evidence or proofs which in their judgment should, under the true interpretation of the treatj', have been embraced in the original Case of Her Majesty's Government. The only qualification of the unusual advantage which Her Majesty'ri Government would gain from the permission to lay before the Arbitrators allegations and proofs which the United States have had no opportunity to answer, comes from the circumstance that most of the new matter referred to is of so little materiality or of such small probative force, that the privilege of answering is of less importance than it would otherwise bo. There is a failure everywhere in this last document, as there was in the principal Case of Great Britain (including as part of it the separate report of the British Commissioners), either squarely to assert any proposition vital to the merits of the controveray, or to attempt directly to maintain it by evidence or argument. There are, aside from the matters relating to sovereignty and jurisdiction, several material questions in this controversy, substantially stated in the Case of the United States. S'ii-st. Do the Alaskan fUf.seals, under the necessary physical conditions of their life, habitually so return to the Pribilof Islands and so submit themselves there to the control of the proprietor of those places as to enable the latter to make them the subjects of an important economical husbandry in substantially the same way and with the same benefits as in tha ease of domestic animals F Second. Has the Government of the Unitevl Stales, the occupant states of its tter contained fully treat of •e, and must g thi'ougli the riginal Cases, 1 between the he submission lent upon thia nade by Great at the United ter proof, nor ed. the considera- heir judgment n embraced in Her Majesty's he Arbitrators opportunity to atter referred roe, that the otherwise bo. re was in the eparate report y proposition [to maintain it Id jurisdiction, stated in the leal conditions id so submit places as to Int economical [benefits as in I the occupant POINTS IN REPLY TO THE BRITISH COrXTKR CASF,, 317 and proprietor of those islands, availed itself of this oppoi-tunity, and bj wit, industry and self denial made these animals the .subjects of such husbandry, and thereby furnished to commerco and (lio woild the benefits of the product, at the same time preserving the stock 'i Third. Do not these facts, under the circumstances proved, give to the United States Government, upon the just principles applicable to the case, and in accordance with the general usage of nations in similar instances, such a right of property in the seal herd and tlu; husbandry thus based upon it as entitles that Government to protect it from destruction, at tlie tijnes and in the manner complained of ? Fourth. Even if it were possible to conceive that tliis right of pro- perty, unquestioned so long as the seal herd remains within the terri- torial waters of t;;e United States, is suspended as to each artd any individual seal as soon and so long as it can be found outside the terri- torial line, however temporarily, and with whatever intention of return- ing, are individuals of another nation then entitled to destroy such animals for the sake of private gain, if it is made clearly to aj)peai- that such destruction is fatal or even largely injurious to the important material interest of the United States (}overnment so established and maintained upon its territory, for the benefit of itself, its people, and man- kind V More especially if the manner of such destruction is in itself so barbarous and inhuman that it is prohibited in all places wlicre civilized municipal law prevails ? Is such conduct a ])art of the just freedom of the sea ? Fifth. Ts any practicable husbandry possible in pelagic scaling, or is not that pursuit essentially and necessarily destructive to that interest, and certain, if engaged in to any considerable extent, to result in the loss. commercially speaking, of the animal to the world ? Who will say that Her Majesty's Government, in its principal Case, or in its ('oniiter Case, takes a square attitude upon either of tliese questions V Who will say that it squarely negatives either of the two first or afTinns tho last of these questions, as matters of fact, or meets with any satis- faefory answer, either upon principle or authority, the propositions of the other two 'i What, then, is the character of this Counter Case, so far as respects the matter referred to ? It seems to consist in great part of desultory obser- vations, suggestions, and conjectnies, probable or improbable, upon imma- terial points ; or, where the points are material, the matter is vague and indefinite, and the preof.s slight, often inconsistent, and everywhere nnsatis- [317] X 2 31.8 ARGUMRNT OF THE INITED !HTATF,i>!. factory. Observations made in one place are qualified in another, con- tradicted in another, and perhaps reasserted in another. To follow such a Hue of discussion with minute criticism would be an endless task, and when it was concluded it would be found to be nearly use- less. The best method of dealing with such a sort of contention will be to briefly state the points to which it seems to be directed, and to offer such observations upon these and the matters relating to them as seem most pertinent. First. Considerable importance seems to be assigned to the point whether seals are more aquatic than ten-estrial in their nature, and surprise is expressed that they should be viewed, in the case of the United States, as being very largely land animals. But whether they are principally aquatic or terrestrial is of little import- ance. It is certain that they are amphibious, and that they live sometimes upon the land and sometimes in the sea. The only important question is whether they have those qualities, which, under the principles upon which the law of property rests, make them property, or render it expedient that an industry established by the United States in respect to them should be protected by a prohibition of slaughter upon the high seas. Second. Much stress is also laid upon the question whether coition may be had in the water. Of what consequence is this ? We know it is a fact that it is had principally, if not exclusively, on the land, to an extent which in its circumstances forms the most prominent distinctive and con- trolling feature in the habits and movements of the fur-seal. The births certainly take place upon the land, and it is there that the young arc nourished and brought up. Third. A good deal in the way of conjecture is stated and sought to be supported, to the effect that the seals may have had, in times of which we know nothing, other breeding places, of which wo know nothing ; and may again be driven to other haunts. It is not perceived that these conjectures are in any manner relevant. They are purely conjectures, and were they determined one way or another, it would not matter. What we are dealing with is an animal which has had uniform habits ever since anything has been known about it ; and the only reasonable conjecture which we can make is, if it were of importance to make any, that it will continue to have, in the future, the same habits, as under the same circumstances it has had in the past. Fourth, in the report of the British Commissionerti, submitted with POINTS IN REPLY TO THE BRITISH COUNTER CASE. 310 iher, con- How such less task, larly use- jn will be d to offer ,1 as seem the point id surprise ted States, tie import- Bometimes question is iples upon render it respect to m the high Coition may low it is a an extent ve and con- The births young arc ought to be -which we g ; and may conjectures and were Vhat we are ce anything lich we can ue to have, 8 it has had itted with the original Case, it was in substance admitted that the Alaskan herd was entirely separate and distinct from the herd on the opposite side of the Pacific Ocean. A good deal of matter is set forth in the Counter Case tending to support the opposite notion, that the members of these different herds commingle. It is enough to say in answer to all this, that the atmost which is asserted is mere conjecture, and as such should be dismissed as wholly unworthy of consideration. Surely this Tribunal will find other grounds than conjecture upon which to base its decision. And besides, the absence of any commingling between the herds Avorthy of consideration is fully proved by the evidence. It is suggested in the Counter Case that the distinctive features which the Alaskan herd exhibits are probably those only which ore due to a long residence under peculiar geographical conditions. Let this be con- ceded. How otherwise could they be denied 1^ Upon the speculative question whether these different herds of seal are of different species or not, or whether they Avere once derived from a common stock, we are at liberty to amuse ourselves with such conjectures as may please us. It is of no importance how the Alaskan herd acquires its distinctive l)hysical peculiarities, if they have actually been acquired so that they (an be distinguished from others, and of this the testimony of the fumers, to go no fui'thcr, is conclusive. But what if it were proved even that the herds did commingle ? It is not perceived that this would be of any material consequence. Would it be for this reaROn any the less a crime against the law of nature to destroy them ? Would it he any the less important that the seals filiould be regarded generally as property or any the less important that such regulations should be adopted as would prevent their exter- mination ? Fifth. It is again insisted, as it was in the i-eport of the British Com- missioners, that it is not proved that the females go long distances from the breeding i)lnces into the sea to seek for food while they are nourishing their young. But in t'le face of the evidence that the females actually do go into the water universally, that they are destroyed tlioro in large numbers, and that they have in numerous instances been found and killed by pelagic sealers at long distances from the shore with their breasts filled with milk, how can it be sug- gosted, with any expectation of belief, that the fact is not proved V For what purpose ili< the females resort to the v/ater ? What is the 320 AUUIJMENT or THE UNITED STATER. object of their distant oxcui-sions into Borinpf Sou, where tlioy havo been known to he? Is it not reasonable to suppose that nursing mothers require nourishment ? And how else are the young sup- ported F But hove, again, suppose it wore true that those excursions were not made for tliu purpose of food. They are yet madv, and the danger of their being slaughtered by pelagic sealers is as great as if the object of their excursions were food. Sixth. Much space is devoted in this C'ounter Case to the subject of the frequent finding of numerous dead pups ; and here also conjecture is abundantly re.sorted to. It is suggested tlnit they may have been killed by di.sease, or by the rush of other seals over them, or by the waves of the sea, or by their mothers having been killed by being driven to the hauling gi-ounds and thus injured and jn-evcnted from finding their way back to their young. But to what purpose is it to suggest that a great variety of things may have happened, of no one of which any proof is given ? Doubtless it is true that some of the young die from a variety of causes of which we know nothing, as is the case with all animals. The question is, whether the slaughter of their mothers by pelagic sealing is not a cause, and the pi'incipal cause of this mortality. When wo know that the mothers do habitually resort to the sea, where they are killed in great numbers, Avhen we know that they have often been killed at long distances from the shore with their breasts distended with milk, when we know that suckling is the natural and only mode of nourishment to the young, and when we know that u number of the pups dead upon the islands are extremely emaciated, and exhibit all the appearances of having died in consequence of the loss of nourishment, the conclusion seems plain enough that their mothers have been killed at sea and they starved in consequence, and no amount of con- jecture can displace it. Seventh. It is said by way of argument against the allegation of a property interest that the seals, although they return to the same general breeding place, do not always return to the same island, or to the same place upon the same island. This may or may not be true ; but of what importance is it, when it appears that all the islands ever have been, now are, and are likely to continue to be the property of one propiietLT, the United States Government ? And if it were otherwise, if there were many different proprietors r " the different islands and of different places on the same islands, of what consequence would it be POlNTal IN HEPtY TO THE PRITIHH ('OUNTEB CASE. 321 upon tho general questions of propoi'ty intovost or what I'oguliitiona woro iioooHSui'y in order to prosorvo tho lierd 'r' All tho points above enumerated, made [hy tho nrilish Counter Cane, are, it is conceived, essentially immaterial. Tiiey might bo deoided tho one way or the other without touching the merits of tho real question of the conti'oversy. In saying this, however, wo by no means intend to intimate that anything is contained in this Counter Case, by way of evidence, which in any Avay modifies or weakens the proofs which the United States have in their principal Case addaoed to support the poBi< tions taken by them. There are, however, some points which the Counter Case deals with which are of greater importance ; but in respect to these, although tho points themselves are material, the new evidence which is brought for- ward or the new views which are suggested are not perceived to bo material. Some brief observations should be bestowed upon them. First. Pelagic sealing is again defended, but how is it defended ? Is it denied that it is in its nature destructive as involving the killing of females to a much greater extent than males? Is it denied that the greater part of these females are either pregnant or nursing, and sometimes both ? Is it denied that a great many victims ai'e killed and wounded which ai-e never recovered ? Is it denied that many young perish'on account of the death of the mothers ? There is no denial upon either of these points. What then is assorted or suggested in the Counter Case ? Simply that tho statements upon this subject ai'e exag- gerated. It would enable counsel for the United States to better answer any position taken on the part of the Government of Great Britain upon these points if the counsel for the latter would commit themselves to some definite proposition or assertion, but this is cai'ofuUy avoided by them. They say, indeed, that the statements upon this head are ex- aggei'ated ; but whose statements are exaggerated ? And hotu much ave they exaggerated? The evidence given in the Case of the United States in gi-eat abundance shows that from 75 to 90 per cent, of the entire pelagic catch is composed of females. If it be this which it is insisted on the part of Great Britain is an exaggerated statement, then how much is it exaggerated ? Is it exaggerated 5, or 10, or 20, or 40, or 50 per cent. ? What, according to the best information obtainable by the counsel for Great Britain, is the most reasonable statement of the proportion of females in the pelagic catch ? They giv3 us no infor- TOO ARGUMENT OF THE UNITED STATi:: niatioii upon these points. 1*1167 offer no estimate; and if wc recur to the proofs contained in the depositions which are given, we are still worse off. These vaiy froni 5 to 80 per cent. Most of them, those that place the amount nt less than lialf, every one can see must bu false. For what purposes are such proofs presented r* Is it expected that they will be believed to bo true ? It will perhaps be suggested that the truth may be found by taking an average of these inconsistent statements. Such a course has been pursued on the part of the Gov- ernment of Great Britain upon the point of how many seals are killed or wounded that are never recovered ; but the method of endeavoring to obtain the truth by taking an average of lies seems to be open to question. Upnu this whole matter the counsel for the United States will content themselves by offering the following summary of considerations : I. The assertion in the Case of tho United States is, that the propor- tion of females in the pelagic catch is at least 75 per cent. The reason- ableness of this is supported in multiform ways. (1) It is r\o\\\\(iVi> denied in the report of the Commissioners on tiie part of Great Britain, nor even in the British Counter Case. (2) Upon any fair construction of the answer of one party to tho allegation of another, it must be taken as admitted. The admis- sion is reluctantly made in the British Commissioners' Report and . in the British Counter Case also that a " considerable proportion " of tho pelagic catch consists of females. What does a " considera- ble proportion " mean ? Five per cent., or 10 per cent., or 2Q, or 50, or 75, or 80 ? The language is sufficiently broad and indefinite to cover eitlier of the proportions named, and, as tho assertion made on the part of the United States is not denied, the admission in (luestion must be taken to be an admission of the facts substantially . as asserted on the part of the United States. (3) Tho proofs adduced by the United States from persons en- gaged in pelagic sealing or with definite knowledge of it, over-, vvhelmingly support the assertion. . , " . (4) The proofs contained in the British Counter Case also support it. They are the statements of the pelagic sealei's themselves, a . class of witnesses in the highest degree interested and not very much to be depended upon. They must be taken most strongly against the parties making them. And excluding those that are •. mmifestly false, we find enough remaining to fully support the cou-% c recur to » are still lem, those B must bu t expected suggested aconsistent t the Gov- are killed mdeavoring oe open to vill content 3 : the propor- rhe reason- iHsioners on Case. party to the rhe admisi Report and proportion " consideru- 3r 2Q, or 50, ndefinite to ertion made dmission in substantially persons en- of it, over-. also support lemselves, a d not very jst strongly ose that are oi't the con« POINTS IX REPLY TO THE BRITISH COUNTER CASE. .^23 tention of the United States. Among those witnesses there are a large number -who place the proportion of females in the catches made by them, respectively, higher than 60 per cent. (5) But the proof furnished by the furriers is absolutely decisive, and this makes the proportion fully equal to the assertion by the United States. (6) If we look at the^ probabilities of the case, no assertion in opposition to the contention of the United States can be enter- tained for a moment. When we consider that the female at sea is as a general rule, more easily approached, and therefore more easily secured, than the male, an J that the number of breeding females is, as compared with the breeding males probably twenty to one, how is it possible that the slaughter of the females should not embrace anywhere from three-fourths to four-fifths of the entire catch ? If indeed, we could credit the assertion continually put forward in the report of the British Commissioners and in the Brit- ish Counter Case, that there has been for years on the Pribilof Island.s an excessive slaughter of young males, and that thus the number of breeding males has been very much reduced, so as to make the harems three and four times as large as they formerly were, the excess of females over males would be vastly multiplied, and the wonder would almost be how any breeding male should ever bo killed. II. Considerable attention is given to an attempt to controvert the position of the United States, that a large number of seals struck by pelagic sealers are lost •without he'wg recovered. Of course the United States have had no opportunityjto controvert the proofs presented upon tiiis point in the British Counter Case. They contain no evidence except that of pelagic sealers, and this must be taken most strongly against them. Upoft this point the reasonable and probable inferences from incontestible facts, are of greater weight than the loose and suspicious statements oE the witnesses referred to. We know that \;]>en a seal is killed he sinks at once, because his specific gravity ii f^reater thau that of the watei-, although he may sink more quickly in some in- stances than others. We also know that when a seal is wounded, but not killed, he has great capacity to escape the pursuer. We know that skill in shooting and skill in recovery must vary very much among dif- ferent men. Under these circumstancps, it is not reasonable to believe that half the seals fatally wounded are sQoured. 324 AftGl'MKNT UF TUE UNl'lKD HTATKH. III. Fui'thci' attention is j^'ivon to ivlitigod niisnuinagemont of tlio .seal herd upon tlio I'rihilof IwlandH. Jjittlr oi* nothing now in tho way oF cvith"K'o iH otiei'cd upon tho hubjcot, but tho iisscrtions contiiinod in the Uritish CommissioncrH' report are repeated and onhirgod. Tlie poiiits on wiiich particulars ni thiH alleged mismanagement are stated are : (1) the excessive killing of young males ; (2) injuries committed by what is called " overdriv ing " ; (3) j-aids upon tho islands. (1) Concerning tho excessive slaughter of the young males, there is no trustworthy evidence than an annual draft of 100,000 was, before any injury effected by pelagic sealing, excessive. It is undoubtedly true that such a draft upon the islands, coupled with any considerable amonnt of captures at sea, would be excessive, and consequently we find that after pelagic sealing had reached considerable proportions it became increasingly difficult to make the annual draft of the 100,000 upon tho islands, which difficulty increased to such an extent that in 1890 it was arrested by tho action of the agent of the United States Government. If at that time, or prior to that time, the extent of pelagic sealing had been known and its effects upon the herd ascertainable, action would have sooner taken place to restrict the killing upon the is' i. In this suggestion the damages occasioned by pelagic sealiii insisted on as its defense. (2) In respect to over-driving, no proofs are submitted which fui-nish any considerable support to the assertion. It is un- doubtedly true that from the very nature of the case there may bo more or less seals included in the drives unfit, by reason of being females or otherwise, for slaughter. These are allowed to drop out to regain the herd. The business of driving may be, if negli- gently conducted, ti-ying and injurious to the subjects of it, but it is not necessarily so in any considerable degree. There is no proof worthy of attention that it is so negligent. The interest of those engaged in it is largely tho other way. And the evidence that it is well conducted is ample. (3) Upon the Islands it is to be said that undoubtedly there have been in the past, and may be in the future, attempts, some times successful on the part of marauders, to take seals by night. But of what consequence is this to the argument? Does it show anything more than that there ought to be kept an adequate guard ? And certainly we know that it is in the interest of the proprietors rolNTH IN RKPLY TO THK bHlTlSH UOUNTliR CA«E. 325 tho Hoal J way *>1 id in e points un 1 (1) tho i is called g males, f 100,000 HBive. It ipled with oxcessivo, i reached to make difficulty ;ed by the If at that ; had been fcion would the isi i- lealin tted which It is un- Bre may bo n of being d to drop (6, if negli- it, but it lere is no interest of le evidence ledly there ipts, some by night. |es it show |ite guard? proprietors to keep ono, Wliiil Nolt.iuti'i'ost will not move men. to d(», they will lint do from any other luotivr. JJut whence dn tlieso raids conir'r Kroiii till* vm-y sciiliii),' vcNhi-Is oiij^iiged in |ielugit* sealing. That is oiio of till" nilHchit't's of that itiirsiiit, (4) Touching the allfg.itions u\l misniangoment upon thu iHlandn, embracing tho throe forms of possible injury to tho seals which huvo boon mentioned, there is this to bo .said: they may possibly occur in consc(iuenco of cai-olessness or nogloot; but every motivt" and every interest stimulates tho Uniteil States as well as their lessees, to make tho evils as small as possible. And uDncurning the e.\tent to which these evils exist, the conclusion must be formed upon tho statements of actual witnesses, and not upon lectures or articles in newspapers based by the writers wo do not know upon what evidence or whether upiju any cvidenco at all. (5) But what is the point supposed to he established or sup- ported by this matter eonceruing misnmnagemont upon the islands': What is tho object for which it was intrmlucod "r* Wliat conclusiim would it justify if tho assertions were proved to their fullest extent? Do they show that pelagic sealing is any less mischievous ? Do they show that iu that form of sealing malts are taken and not females ? Do thoy show that in that form of sealing a great numy aro not wounded and crippled that are never recovered-' Do they show tlmt in administering a herd of such animals on the land t'emales should ho slaughtered and not nuiles ? Do they sIkjw, or are thoy intended to show, that the United States has not adopted methods grounded upon tho right principles? Do they sliow ov are they intended to show that a different set of proprietors than tho United States would attend to the business in a better and more economical manner and with better methods ? If so, what sort of proprietors .should they bo ? What sclieme of administration should be followed ? How should the selectiouf, for slaughter be made ? Answers to these questions would bo extremely pei'tinent, but none seem to have been suggested. (6) The report of the British Commi.ssioners more than intimated, although quite "nconsistently Avith admissions made by tliem, that the capture of seals upon the land was an error, and that the ideal mode of dealing with this animal was to confine the pursuit to tho sea. The Counter Case on the part of Great Britain does not avow 326 ARGUMENT OF THE UNITED STATES. this proposition. Is it the intention on the part of the Govern- ment of Great Britain to support that view ? If so, some intimn- tion to that effect wonld have been extremely pertinent in this Counter Case. And when that view comes to be supported, if at all, it is to be hoped that those who advocate it will take into consideration and give satisfactory explanations upon the following points : (a) What man of science, familiar with the races of animals and tlic causes which tend to their destruction or their preservation, entertains a like view ? What man acquainted with the business of practical husbandry and dealing for proSt with a race of animals polygamous in its nature, thinks it wise to slaughter males and females inaisoriminately for the market, or rather, to make their selections for slaughter consist in the proportion of 75 per cent, of females. b) Is it likely that any better provision for the preservation of the race of filr seals can be suggested than that which assigns the rewards of preservation to those who alone have the ability and the disposition to exercise the best methods of preservation ? Is the method which has preserved in undiminished numbers for one hundred years and upwards the herd of seals resorting to the Commander Islands, a mistake, and is the same method which has been pursued for nearly the same period on the Pribilof Islands, and with the same effect until the ravages made by pelagic sealing were committed, also a mistake ? And wherein is there any essential difference between the methods pursued on the two groups of islands? And, tinally, were it even admitted that the United States Gov- ernment mismanages its own business to the detriment of its own interests, would that destroy its i-ight of property in the business r" Or deprive it of the right of self-defense ? Or justify a slaughter by tho poachers which would otherwise be unjustifiable ? Or even render it probable that such mismanagement would not be corrected by experience ? It is worthy of remark, in conclusion, upon the subject of regulations, so largely dealt with in tho British Counter Case — 1. That Avhilo it is now professed on the part of Great Britain that Her Majesty's Government is willing that just regulations for the preserva- tion of the fnr-seal should be adopled, it is solely owing to the refusal the Govoi'n- some intiran- this Cotinter 1, it is to bo ,tion and give ' animals and preservation, the business ,ce of animals r males and o make their 5 per cent, of )reservation of 3h assigns the ;he ability and preservation ? [ numbers for jsorting to the hod which has ribilof Islands, pelagic sealing is there any the two groups ed States Gov- lent of its own the business ? fy a slaughter ible'r* Or even ot be corrected of regulations, ritaiii that Her r the pi'cserva- to the refusal POINTS IN HKI'LY TO THK FUUTISH COUXTEB CASE. 327 of that government to consent to auy such regulations, on account of the objections of Canada, that this controversy lias arisen and this arbitration has been rendei'cd necessary. The attitude of Canada on tliis subject plainly shows that it quite well understands that any regu- lations adopted for the preservation of the seal whieli would be at al' adequate for that purfjose most substantially, if not entirely, put an end to pelagic sealing. The object of the adventurers, which tluit Province thinks it right to protect, is simply to make what profit is to be derived out of the destruction of the fur-seals in the few yearn required for its completion. 2. In the British Counter Case, every objection possible to be brought forward to the making or enforcing of any regulations, is insisted on. The real position assumed is that of opposition to any regulations that would be of sufficient value io be Avorth adopting. Those proposed by the British Commissiouers are for the benefit of pelagic sealir >• and an en- hancement of its profits, and its consequent destruction by restricting the unquestioned right of the United States to take the seals on its own terri- tory. In answer to ilie proved charge that pelagic sealing conduces to the inevitable extermination which it has produced everywhere else, and that the methods employed by the United States Government t^url to the preservation of the animal while making its product available to the world, it is gravely proposed by the British Conimis.sionera to adopt regu- lations which would diminish that use which is consistent with the pi'otec- tion of the seal, and which is not called in question by the treaty, so as to increase the use which is destructive ; and to sidd to the losses already suffered by the United States in its tei-ritorial interest, b*' increasing the profits of those who are engaged in desti'oying it. It is dilficult to deal seriously with sucli proposals. E. J. PlIKU'S. James C. Cabtfr. H. W. Blodgktt. F. R. COLLERT. w M I WKm >.*■ Ji •'i4<