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JUSTICE HARLAN AT TUB CONFERENCE IN PARIS OF THK BERING 8RA TRIBUNAL OF ARBITRATION, CONSTITUTED BY THB TREATY OF FEBRUARY 29, 1892, BETWEEN IIKK UHITANNIO MAJESTY AND THE UNITED STATES^ OF AMERICA, AND COMPOSED OF THE FOLLOWING MEMBERS: BAF.JN DE COURCEL, BmMar and AmboMaior tf Franat, Vreiident nf lA" TrOnrntif THE RIGHT HONORABLE LCRO HANNEN, Of Ortat BHtair, THE HONORABLE SIR JOHN THOMPSON, MUttittr tif Jtutie* and AUomtyOtntrdl (^ Oanadmi MR. JUSTICE HARLAN, A JtuUt$ qf Ik4 Suprm* Court <\fUu UniUd SMmi SENATOR MORGAN, A Btnalor ort of iiiotiou that Tribunal first detenniue its uoinii«tency or powers under the Treaty in respect to t-ertain matters 2. lTiH)n the question of the competency of the Tribunal to prescribe* regula- tions covering the waters of the Nortli Paoiilo Oceau, and which would ])rohibit pelagic sealing entirely Pag*. PART II. THK MKKITN OF THE TARIOVH qCGSTIONN SUBMITTKU TO THK TKIBDKAI, FOB UKTKK- aiNATION. I'aca. 1. (icneral statement of the facts out of which the present contiovorsy between tiiotwo nations arose, and the history of the negotiations resulting iu tlie Treaty of February 29, 1892 36 2. Jurisdiction and rights aiiserted anduY»roisod by Russia in Uering Boa, and in respect to the seal fisheries in that sea, prior to the cession of 1867 of Alaska to the (Jnited States. Effect of the Treaty conclutled in 1825 between Russia and Great Britain. The rights that passed to the United Stjttos by the Treaty of Cession of 1867 58 3. The right of property asserted by tlie United States iu the Pribilof herd of seals, and it>< right, whether as owner of the herd, or simply as owner of the fur-seal industry on the Pribilof Islands, to protect the seals against pelagic sealing IU 4. Concurrent regnlations 206 3 46541 /: [After the ar(;nmnnbi of oonniiel vrure oonolndnd. the Tribunal of Arbitration went into Conference to couHider and determine tlie varioua mutters submitted to it. All the questions disonssed wore exuminml and fully oousidurod by the ArbitraUint, nud in order that they mi{{ht \u\v\f an opportunity to put upon reoord in the form of written opiniont f If they so diutired), the vIown expressed by tliem in conferonrc, the Tribuniil, at the close of ifci deliberations, adopted and emboilied in the Protocol of Aui(UBt 14, 1893, the following resolution: "The right is reserved to each Arbitrator to ttle with the seorotary of this Tri:)unal, at any time aftor the udiourument, and beforo the lirot day of Junuiiry, liB94, ao opinion or opinions upon tlie i|ueiitiona or any of them submitted for dnturmination, and such opinion or opinions shall be regarded im iiu annex to this I'rotoool." The opinions below embody, substantially, what was said orally in coufort^nco liy Mr. Justice Harlan upon the (|uestionH or matters alluded to in those opinious,] . PART I. THE JURISDICTION OF THE TRIBUNAL OF ARBITRATION. 1. RRnABKM IN SVPPOBT OV MOTION THAT THB TRIBUNAT PIBST OBTRBiMINK ITS «OMPKTBNt)V OB POWRBM, VNOBB TniC TBBATV, IN BBMPBCT TO «BBTAIN WATTBBM. (These remarks were made at the Hrst mooting of the Arbitrators after counsel had i!onolndnd their arguments.) Mr. E'bbscdent: It has been suggested tliat tlie Arbitrators have a full interchange of viewn touching the questions submitted by the treaty for determination before any formal vote is taken. I entirely approve this suggestion. We ought to have the benefit of such an in- terchange of views before placing upon record the conclusions we have respectively reached. But, in my judgment, our first duty is to determine the competency of this Tribunal, under the treaty, to deal with the various niatters sub- mitted to us by the two governments. I move, therefore, that the Tribunal, before entering upon the consideration of these matters upon theii merits, determine its competency, so far as it may be in- volved in the following questions: 1. Is it competent, under the treaty, for this Tribunal to prescribe regulations applicable to such parts of the North Pacific Ocean, outside •( 1^ P SS^&^--".' 6 of tho jnrlsdictional limilrt of thu two govcrnmcntH, nn nrn travorsed by tho senlH frtMiiioiiting tho I'ribilof [hIivihIh, if, upon the fiictM, regiilA- tioiiHof that fhunicter lire iieceHHivry for the proper prote«;tioii liiid pres- ervtition of the fur seal in, or linbituiilly resorting to, Bering Heat 2. Is it competent, under tlio treaty, for this Tribunal to preseribo reguhitions for a closed season covering su<;li waters of lM»th Heri'ig Sea and tlie North Piu'itlc Ocean, outside the.jurisdictional limits of (ho two countries, as are habitually traversed by these fur seals, and embmcing the months er protection and pref>ervation of the fur seal in, or habitually resorting to, Bering Seat We And that counsel differ widely lis to the powers of the Tribunal touching the matters referred to in this motion. Tlio British (Government, in its Counter Case, and its counsel in their printed argument, question tho authority of the Triburdil, under the treaty, lo prescribe regulations applicable to the North L*iu;ilic ()(;ean, even if it bo ftmnd that regulations i^overing a part of that ocean are absolutely essential to the proper protection and preservation of these fiir seals. And that Government and its learned counsel, at whose head is the Attorney-General of Great Britain, while not expressly disputing our power to establish a ;i;one around the I'ribilof Islands within which pelagic sealing may be entirely ]>rohibiter MhouM bo put in nach position that it can b' Haiefore any vote is taken, and if tliey order my motion to lie uiM)n tho t^iblo fe upon the points em- bodied in that motion. Let me say in this coune«;tion that, the arguments having been eon- eluded, I am pro|>ared t<» indieaUt to any Arbitrator, whenever desired by him, the «!onclusion roiu;h«4l by me touching any question before us, whether relating t4> the merits of the case or to tho eompotency of the tribunal. Any such expression of views must, of course, be subject to the possibility of their being changed or moditled as tho result of our discussions in conference. If there are other (picstioDS of the Juris- diction of this Tribunal besides those named by mo in rpsi>oct to whi(^h any Arbitrator desires action by the Tribunal before coming to nnitters that must be covered by the award, 1 will C/Oiiperate with him in having such action, and this without reference to the nature of the question. If any Arbitrator wishes to know, in advance, what the Tribunal thinks as to its competency or i>owers, I shall deem it my duty, so far as my action can have ofl'ect, t United States to sign. It is not the treaty which the Pi-esident of the United States would have ap- provee uttaiiieil by ref^ulatioiiH Hppli<;nbln to the « iiUm-m of l>oth Burins Ht^naiul the North Pmtifli' Uc4>iiii travorHtHl by thcHO hoiiIh; if it ilccideH tliat it can not, for want nf power, make reuulations of tliat rharatitiT, I woahl deem niyM^lf wanting; in duty to l)oth of tho<;ouiitri(>H liere rep; :'Hent('n an a4y()iirnin«'nt of thiH Conference for Huch reaHoiiable time aM would give the ro.>«iM>cti\e (}overnmentH an opportunity to n<>);otiat4* for a Huppiemt-nttiry convention invcRtiiiK the Tribunal with full power to atrcomplirth the object wliicb, in every form of laiiKuaKc, tliey have expveHiUHl ai> <*arneHt dcHire to w^compiiHli, namely, the ]treHervation of thin race «»f fur HcalH, without reference to conHideratiouH of profit or advantage to any nation or t4> the individnalH of any nation. I beg you to nnderHtand that I do not aak the Tribunal to <,,' at thin time what regain tionH are necepsary U> secure the preHervation of tliOMe nnimals. If, upon examination of the evidence, it be found that regiila- tiouH which in t<>rniH or by ncceHgary operation prohibit or put an end altogether to pelagic sealing both in Bering Sea and in the North Ptuaflc Ocean are not nc«!eHMary for the proper protection and preservation of this race of animals, both countries must, in gfHxl faith, abide by that determination. 1 only ask that you declare in some form and in advance whether you have the |M)wer under the treaty to prescribe regulation, •^ of the charact4)r indicated by me, if the facts show them to be neettssary in order U) save this race from ext«rmiuatioii. I am nnwilling to remain silent uiton tnis question of the com{wtency of the Tribunal until I shall have asc«!rtained what your views arc on the several matters submitted for determination, and then bring up, or forbear to bring up, this <|aes- tiou of jurisdiction, as I may agree or disagree with the views yon express on the merits. OrOKT THB aURMTION OF THB VOnVKTKNW OF TUB TSIBVNAI^ TO PRKMCBIBB RRODI^ATIONM fiOVKRINO THB WATBRM OV THB NORTH PACIPIC 0€BAIV, AND WHICH WOVI^D PROHIRIT PBL,AeiC •BAI>IN« BNTIRBI^V. (The Tribunal having un a 8ub8ei|uont day of its aeaaions voted to oonaider the above motion, the remarkH below were made in its Hupport.) This Tribunal has been constituted in order that there may be an amicable settlement, by arbitration, of certain questions between the 9 Oov^rnmont of th« IThIUmI HtuU'x of Amcrloa ami tlio Gov«riimont of llt^r Itritiiniiit; MtijeHty, wlii«>li nvv Hrribv(l, ){oii«rally, in Article I of tliu ti-oiity of Ft'bniiu-y LM), IH1>2,* iw qiiuHtioiiH " concuniiiiK llio.jnriHdio- ■TUATY BITWUH THI UHITEO ITATXS OF AMIBIOA A>0 0BK4T BRnAIV COM- OLODEO rXBBVABT 30, U98. Tlie Unltoil Station oT Anu'ricii iiikI Hit Mujoitty th« Vucttii oftlie l'iilt<«l KiiiKdiiiii ol°li'r«nt Hritaiii uimI Intlutiil, lioiiiK il"")")!!!! In |iriivlM|ii'olivf '**" *'■" pri'MKrviitlun of thn •'i..'BiI In, or liitl>ituiill,v rcHorthiK to, t!ie miUI «<<», unit tilt' rIglilH of tliK fill ' itnil ».< Ji-cU "( iiilii-r c-iiintr,v iih i>'i{''rilN tlio tukinK thn fnr-m>iil in, or lititiitnitlly niMii 'inir '•>. tlio rhIiI w;;tem, Imve reauWttil lo Niiliuiit to itrliitrutioM the i|MUNtionit iin ol " tlxmnil of coni'liKliuKncouvtin- tion for tliiit imrpiMu liiivua|>)ioint( ! um t)ioir ri'xprctivit t'lenipotoutiiirieN: Tlie i'reiiiilunt of tiiu Unitoil H*iit<-H m Amnrint, .luniuN « In iluo and pro|Mtr form, have agrotsU to anil conuliiiinil the :' point. One of those points is embodied in the following question : arbitrator in tho place and stead of the arbitrator original'^ named by such head of a State. And in the event of a refusal or oniissiou for two months after receipt of the joint roqiicNt from the High Contracting Parties of His Excellency, the President of the French Republic, or His Majesty, the King of Italy, or His Majesiy, the King of Sweden and Norway, to name ac arbitrator, either to fill the original appointment or to fill a vacancy as above provided, then in such cose the appointment shall bo miule or tho vacancy shall be filled in such manner a« tho High Contracting Parties shall agree. Art. II. The arbitrators shall roett at I'aris within twenty days after the delivery of the counter cttsos mentioned in Ailicle iv, and shall proceed impartially and care- fully to examine and decide the iiut^stious that have been or shall be laid before them as heroin provided on the part of the Uovervmuuts of the United States and Her Britannic Majesty, respectively, AU iiuestious considered liy the tribunal, including the final deciaion, Shall be determined l>y a majority of all the arbitrators. Each of the High Contracting Parties shall also name one person to attend the tri- bunal as its agent to represent it gonera.'Iy in all matters connected with the arbi- tration. Art. III. The printed case of each of tbe two parties, accompanied by the docu- ments, the official corr^ispondence, and other evidence on which each relies, shall be delivered in duplicate to each of the arbitrators and to the agent of the other party as soon as may be after the appointment of tlio members of the triL)uual, but within a perioil not exceeding four montlis'from the date of the exchange of the ratifications of this treaty. Art. IV. Within three months after the delivery on both sides of the printed case, either party may, in like manner deliver in duplicate to each of the said arbitra- tors, and to the agent of the othur party, a counter case, and Hddit!o>i'>l docunients, corresiiondence, and evidence so presented by the other party. If, however, in consoiiuenoe of the distance of the place from which the evidence to be presented is to be procured, either party shall, within thirty dayx after the receipt by it« agent of the case of the other i>arty, give notice to the other party that it requires additional time for the delivery of such counter cimc, docu lents, correspond jnce, and evidence, such additional time so indicated, but not exceeding Mixuy days beyond the three months in this article jirovided, shall be allowed. If, in the cose submitted to the arbitrators, either party shall have specified or alluded to any report or document in its own exclusive possession, without anne:iing 11 '< 5. Has the United States any right, and if so, what right, of protec- tion or property in the fur seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary tliree-niile limit!" . Article VII is in these words: "If the determination of the foregoing questions as to the exclusive Jurisdiction of the United States shall leave the subject in sucli posi- tion tliat the concurrence of Great Britain is necessary to the estab- lishment of Regulations for the proper protection and preservation of the a copy, Buch party shall bo bound, if the other party thinku proper to apply for it, to fiirniHh that party with a copy thereof; and either party may call npon the other, through the arbitrators, to produce tlie originalH or certified copies of any papers adduced as evidence, giving in each iuatance notice thereof within thirty dayH aft-i^r delivery of the case; and the original or copy so requested shall be delivered as soon iiH may be, and within a period not exceeding forty days after receipt of notice. AiiT. V. It Hliall be the duty of the agent of each party, within one month after the expiration of the time limited for the deliv<>ry of the counter case on Itoth sides, to deliver in duplicate to each of the said arbitrators and to the agent of the other party u printed argument' showing the points and referring to the evidence upon which 'is Government relies, and uitlier party may also support the same before the arbitrators by oral argument of counsel; and the arbitratorn may, if they desire further elucidation with regard to any point, require a written or printed statement or argument, or oral argument of counsel, upon it; liut in such case tlie other party sliall be entitled to reply, either orally or in writing, as tlie case may be. AiiT. VI. In deciding the mattern submitted to the arbitrators, it is agreed that tlie following Ave points shall be submittaired to the United States under that treaty f 5. Has the United States any right, and if so, what right of protection or property iu the fur-seals frequenting the islands of the 1,'nited States in Bering Sea, when such seals are found outside tlie ordinary 3-mile limit t AitT. VII. If the determination of the foregoing questions as to the exclusive jurisdiotiou of the United States shall leave the subjeotin inch position that the n n \) 13 II I far seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall then determine what concurrent liegulations outside the jurisdic- tional limits of the respective Oovernmcnts are necessary and over what waters such Regulations sliould extend, and to aid them in that determination the report of a Joint Commission to be appointed by the respective Governments shall be laid before tliem, with such other evi- dence as either (Toverumer.t may submit. The High Contracting Parties furthermore agree to cooperate in securing the adhesion of otlier powers to such Regulations." Article XIV declares tliat "the High Contracting Parties engage to consider tiie result of the proceedings of the Tribunal of Arbitration, concurrence of Ureat Brituin i8 necessary to the eHtitblishnient of regulations for the proper protectiou nud ])rcHervation of the fur-seal in, or habitually resorting to, the Bering dca, the arhitrators shhll then deterniiBe what concurrent regalutions outside tlie jurisdictional limits of the respective OoTernments are necessary, and over what waters such regulations should extend, and to aid thcuj in that determi- nation, the report of a .loiut Cpminixsion to be appointed by the respective Qovern- ments shall be laioveru- ment iu equal moieties. Akt. XIII. The arbitrators shall keep an accurate record of their proceedings, and may appoint and eniidoy the necessary oflicers to ansist them. Akt. XIV. The High Contracting Parties engaged to consider the result of the pro- ceedings of the tribunal of arbitration, as a full, perfect, and final settlement of all the questions referred to the arbitrators. Akt. XV. The present treaty shall be duly ratitlwl by the rrcsideiit of the United States uf .\mericii, by ami with the advice and coiment of the Senate thereof, and by Her liritannic Majesty; and the ratitication shall be exchanged either at Wash- ington or at Loudon withiu six mouths from the date hereof, or earlier if possible. In faith whereof we, the respective Plenipotentiaries, have signed ihiMtreiity and have hereunto aiUxed our seals. IJone iu duplicate at Washington the tweuty-ninth day of February, one thousand eight hundred and ninety-two. Jamks G. Blaink. [hkai..] JUUAM Paukciwotb. [skal.] ^i " » iw nw i (! ,'jii J I) xo ; II 14 at London, had an interview with the Marquis of Salisbory, British Secretary of State for Foreign Affairs, in which the former proposed, on the part of the Oovemment of the United States, that by mutnal agreement of the two Governments a code of regulations be adopted for the preservation of the seals in Bering Sea from destruction at im- proper times and by improper means by the citizens of either country — such agreement to be entirely irrespective of any questions of conflict- ing jurisdiction in those waters. In this view his lordship promptly acquiesced, and suggested that tlie American minister obtain from his Government and submit a slcetch of a system of regulations that would be adequate for that purpose. U. S. Case, App. Vol. I, p. 171. The American Secretary of State, Mr. Bayard, being informed of this interview, wrote to Mr. Phelps, under date of February 7, 1888, suggesting that the only way to prevent the destruction of the seals ppeared to be for the United States, Great Britain, and other inter- ested powers to take concerted action restraining their citizens or sub- jects from killing them with firearms, or other destructive weai>ons, " north of 50° of north latitude, and between 160° of long**iide west and 170° of longitude east from Greenwich, during the pc ' period would be ineffectual as a preservative measure. This would clearly be so.dur- ing the approach of the seals to the islands. And after their arrival there snch a limit of protection would also be insufficient, since the rapid progress of the seals through the water enables them to go great distances from the islands in so short a time that it has been calculated that an ordinary seal could go to the Aleutian Islands and bp"'' in all a distance of 360 or 400 miles, in less than two days." In the same letter Mr. Bayard, referring to the threatt° area and divto, to carry on negoti»tio:is, h )piiig thereby to come to so. no arrange- ment for such a clu^iC season as is necessary in order to preserve the seal species from extinction, but tlie provisions of such an arrangement would always reijuiro legislative s in:!ti()n so that the measures thereby determined may be enforced." U. 8. Case, App., Vol. I, p. 220. The Marquis of Salisbury, in a letter to Sir Julian Pauncefote of June 20, 1890, inclosing, among otlier documents, a copy of the above letter of April IG, 1888, addressed to the British representatives at Washington iuid St. Petersburg: " Her Majesty's Government always have been, and are still, anxious for the arrangement of a convention which shall provide tchateeer cloic time in whatever localities is necessary for the preservation of the far seal species." British Case, App., Vol. Ill, p. 492; U. S. Case, App., Vol. I, p. 237. 1U92 2 1 tJ r !«. ( • 18 V-V 1/ nv >{ *( i III hit) letter to Bir Jalinn Pauncefote of December 17, 1800, Mr. Blaine said : "The United Stiites, in protecting the seal fisheries, will not inter- fere with a single sail of commerce on any sea of the globe. " It will mean something tangible, in the President's opinion, if Great Britain will consent to arbitrate the real questions which have been under discussion between the two Governments for the lust four years. I shall endeavor to state what, in the judgment of the President, those issues are : « First. What exclusive Jurisdiction in the sea now known as the Bering Sea, and what exclusive rights in the seal fisheries therein did Russia assert and exercise prior and ap to the time of the cession of Alaslca to the United States! "Secjmd. How tar were these claims of jurisdiction an to the seiti fish- eries recognised and conceded by Great Britain ? "Third. Was the body of water now kno\vn as the Bering Sea in- cluded in the phrase > Pacific Ocean' as used in the treaty of 1825 between Great Britain and Russia; and "'lutt rights, if any, in the Bering Sea wore given or conceded to Great Britain by the said treaty! *' Fourtli. 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 March 3U, 18G7, pass unimpaired to the United States under that treaty! "Fifth. What are now the rights of the United States as to the fur seal fisheries in tlie waters of the Bering Sea outside of the ordinary terri- torial limits, whether such rights grow out of the cession by Russia of any special rights or Jurisdiction held by her in siich fisheries or in the waters of Bering S8.i, or out of the ownership of the breeding islands and the habits of the seal in resorting tliither and rearing thefr young thereon and going out from the islands for food, or out of any other fact or incident connected with the relation of those seal fisheries to the territorial possessions of the United States! "Sixth. If the determination of the foregoing questions shall leave the subject in such poiition tha^ the concurrence of Great Britain is necessary in prescribing regulations f«)r the killing of the fur seal in any part of the waterd of Bering Sea then it shall be further determined : First, how far, if at all, outside the ordinary territorial limits, it is neces- sary that the United States should exercise an exclusive jurisdiction in i-iTJSggtJser^ 19 order to protect the noal for the time Uvirif; upon Mm' iHlniuIs of the United Stat«8 Jind feeding thorefrom. Second, wliptlnsr a closed season (during wldcli the killing of seals in tlu) waters i>f Bering Sea outside tlie ordinary territorial liiuits sliill be proliibitoil) l-i nenonsiry to save the seal-fishing industry, bo valuable and important to mankind, from dettirioration or destruction. And if so, tliird, wlnit montlis or parts of months should be included in such season, and over what waters it should extend." U. 8. Case, App., Vol. I, p. 28',, H.Sd. The Marcjuis of Salisbury, in a letter of Febrnary 21, 18!)1, to Sir Julian Pauncefote, ex[)ressed his assent to the ttrst, second, and fourth ([ue^tions propounded by Mr. Blaine, and, after criticising the third and fifth, proceeded: <'Tlie sixth ({uestioii, wlii(;h deals with tiie issues tliat will arise iu o8(Hl to luithorizo ine U^ Hi};n tlie Agrinont in t\w, pnHiiMe tcriiiH I'orniulaU'ti in your iiotcof .fiino 0, providiMl tlio<|iicH tioti of 11 .joint comniiHHion bu not lot't in doubt, and that your (iovt^rn- inont will giv(« an tiMMurani*4) in Home form that thoy will iMtnvur in a rnforuuco to a joint commiHHion t4> aHccrtain what pttrnianoiit mcaHuruH arc necoHsary for tim prew vation of tlie fur seal spccicn i« the Xorthviti Paeijic OceanP U. ^. Case, App., Vol. f, p. :iir,. To tliiH letter Mr. Wharton replie vl life should c:nbrace the whoUiof Bering Sea and portiiuiH of the Xorth Piirijlc (kemi, will have no hesitancy in agreein^i', in connection with ilcr Majesty's (lovernnient, to the ap[)ointment of a joint commission to ascertain what ])ermanent measureH are necessary for the prenerrotion of the Hcal kpeciea in the tpatera re/vrred to, such an agreement to bo signed simultaneously with the convention for arbitration, and to be without prejudice to the questions to be submitted to the arbitrators. A full reply to your note of June 3 relating to the terms of arbitration will not be long delayed." U. 8. Cojie, App., Vol. T, pp. 315,316. Under ilate of June 13, 1891, Sir Julian Pauncefoto wrote to Mr. Wharton : '■'■ I lost no time iu telegraphing to the Marquis of Salisbury the cont«nt4 of your note of June 11 convey'ug the assent of your (lov- ernment to the api>ointment, in connection with Her Majesty's Gov- ernment, of a joint commission for the purpose mentioned in my note to you of the same date, such agreement to be signed siutnltaneously with the convention for arbitration and to be without prejudice to the questions to be submitted to the arbitrators. I informed his hmlship at the same time that, in handing me the note und(;r reply, you had assured me that the President was anxious that the commission should be appointed in time to conunence its work this season, and that your Government would, on that account, use their utmost efforts to expedite the signature of the arbitration convention. I now have the honor to inf(u-m you that I have this day received a telegraphic rei)ly from Lord Salisbury in which, while conveying to me authority to sign the pro- posed agreement for a modun virendi contained in your note of June J), his lordship desires me to place on record that it is signed by me on the clear understanding that the joint commission will be appointed without .1 ; w 22 dehiy. On tli it luiili'rKtiindiiiK, tlinrvtoro, I hIiiiII bo prepared to iittoud nt the 8tute Department tor tlie piirpoHe of Hif^niiig tlie-ii(;reeinoiit at sueli time uh you may be gtMKl enon);ii to appoint.*' /'. H. Case, Vol. /, App., p. 'itii. On the Hiimedny Mr. \V]mrt«m wrote to 8ir Julian rauncetbte: "The I'reHident dinrtH me t<» Hay, in reH|)oiiHC to your m>te of thiH date, that, hirt assent to the i>ro[)OHition ibr a joint t-ommisgion, an expreHsed in my note of June !>, wasf^iven in the expectation that both OovenimcntH would UHe every prop(>r eti'ort to ad.juHt tlie remaining; {MiintH of differ- enee in tlie ;;encral <;orreHi>ondiMi('e relating to arbitration, and t4) a^ree u|H)n the detlnite terms of a submission and of the ap|M)iiitment of ajoiut commiHMion without unncuesHary r tliti ii|»|H>iiitiiieiit of u Joint ('oiaiiiiHHioii l»y tlu^ two (''o\ criiiiu'iitH, in nrcoMl- ,»ii('u witli tliK ivHsiiraiu'o givun l>y th» PioMidoiit. in tiie l»tUM- ot'.liiiio 11, mn, tVoin Mr. Wlnutoii to Sir Jiiliiiii riiiiii«(>rot(>. Tlio t iiuh of tiiis pi-o|ioHiil w<pt(>«l by Lonl SaliNliiiiy, aiitl tliey appnir in Article IX of the tronty. l'. S. (Uihv, Aihk, Vol. I, pp. .;/.'/,, ;;u Tli» Itritixh (lovurniiiuiit auu«)|>te(l tlie Hixtli i|iie.stioii as tliiis foriiiii- lated, ami tiiat ((iiustioii constitutes Article V'll of tliu treaty. I do not tlnd in niy part of tiie diploiaacic correspondence atij' criticism by representativus of tho British (loverpineiit of that iiiiostioii as last fontiiilated. Other evidence tlirows lij;;ht upon :ho inquiry wlietluT it was not well iinderstnod by the British (litverinnent. after thd sif^nin^ of the moihiM rivHiU for 18iH, if not bcioic, tliat the inipiiry as to what was nc(!es8ary t«> protect flio fur seal .'ace enibraiu'd both lltning Uea and the North Pacitlc Ocean. The <;oniini8sion issued June 15, 1801, by Her Majesty to the two comiinissioners appointed to investigate seal life recited that they were appointed ''for the purpose of incpiiry into the conditiinis of seal life and the precautions neirossary for preventing the extermination of the fur Heal apecies in leering Sea and otlirr jmrtu of the Xoith I'tieifie Oecan."^ SiibHtantially tln^ same recital h were made in the lett >•• of instructions issued to those commissioners by tlu^ Manpiis of Halislniry under date of June 24, 1801. Subsequently, on the intli January, 1802, after the two Governments iiad agreed in writing upon the terms embodied iuiuid constituting Articles VI, \^II, VIII, and IX of the treaty, the Marquis of Salisbury issued anotiier letter of instructions to tho British Commissioners, in which he said: "There are, however, a few points to which Her Majesty's GoverjMuent consider it desirable that your special attention si; )uld be directed. You will observe that it is intended that the report of the Joint Commissioners shall embrace recommendations as to all measures that should bo ailopted for the prexervntion of senl life. For this purpose it will be necessary to con- sider what Uegulations may seem advisable, whether within the. juris- dictional limits of the United States and Canada, or outside those limits. The Regulations which the Commissioners may recommend for adoption within the respective jurisdictions <»f the two (lountiies will, of course, be matter for tho consideration of the respective Govern- ments, while the regulations affecting w»t«rs outside the territorial liii 24 i! limits will have to be considered aiider clause 6 of the Arbitration Agreement * [Art. 7 of the Treaty] in the event of a decision being given by the Arbitrators against the claim of exclusive jurisdiction put for- ward f»n behalf of the United States. The Report is to be presented in the first instance to tlie two Governments for their consideration, and is subsequently to be laid by those Governments before the Arbitra- tors to assist them in determining the niore restricted question as to what, if any, Regulations are essential for the protection of the fur- bearimj seals outside the territorial jurisdiction of the two countries.''^ British Comm. Report, p. vii. And the report of these commissioners, presented to the British Government June 21, 18!)2, recites that they were appointed to inquire " into the conditions of seal life and the i)recautiona necessary for pre- venting the exterminption of the fur seal species in Bering Sea and other parts of the Iforth Pacific Ocean.^' 1 n the same report will be found "a general view of tlie couchisions at which we [the Briti b Com- missioners] have arrive of the sixth question was, beyond ail (]iiestion, to enable this Tribunal to prescribe concurrent regulations to protect (I I h I / 26 and preserve all fur seals that habitually resorteil to the islands of the United States in Bering Si»a, liltliiough tlit^y might not remain during the wliole of eai'h year in that sea. And the niDdifioatiou which the United States made of tlie sixtli (luostiou bi'oiiglit it into liariaony with the lifth question, previously assented to, wliich involved an inquiry as to whether tlie United States has "any right, and if so what right, of protei;tion or pro2)erty in th'b fur seal frequentlmj the islainh of the United States in Bering Sea when such seals are fouiul outside the oidinary tiiree-mile limit?" These seals do not the less frequent those islands, nor the less habitually resort to Hering Sea, because their habit — as both Governments well knew — was, in the fall of every year, at about the same time, to leave their breeding grounds at the Pril)ilof Islands and go to the south of the Aleutian Islands int4) the North Pacific Ocean, from which ocean, each year and at the same time, they returned to Bering Sea and to their established breeding grounds on the islands of St. Paul and St. George. But this is not all that is suggested by the iU')dirtcation made of the sixth question, lieourriug to the words of that (juestion, in its original form, it will be seen that one of the matters t;0 be determined in the event the conctirrence of Great Britain was necessary in prescribing regulations for the " killing'" of fur seals in the waters of Bering Sea was whether a "closed season (during which the killing of fur-seals in the waters of Bering Sea outside the ordinary territorial limits shall bo proliibited) is necessary to save th(» sea'-fishing industry, so valnable aud imjjortant to mankind, from deterioration or destru(!tion." Uere we have the su-jfgestion by the United States of a closed season, dur- ing which the taking of those se'als might be entirely prohibited. What was the reply of the Marquis of Salisbury to this suggestion? It was that if the reference to arbitration di2 only related to Bering Sea; and, consequently, it is argued, the two governments dile of Bering Sea and portions of the North Pacific Ocean." So, in his letter to Sir Julian Pauncefote of February 24, 1892, before the treaty was signed, Mr. Blaine, referring to the proposed modus Vivendi for 1892, said: "If Her Majesty's Government would make her efforts most effective, the sealing in the North Pacific Ocean should be forbidden; for there the slaughter of tlie mothers heavy with young is greatest. This would require a notice to the large number of sealers who are preparing to go forth from British Columbia. The number is said to be greater than ever before, and without any law to regulate the killing of seals the destruction will be immense. All this suggests tlie need of an effective modus. Holding an arbitration in regard to the rightful mode of taking seals, while their destruction goes forward, would be as if, while an arbitrat'on to the title of land were in progress, one party should remove all t.ie timber." Mr. Blpiiie would not have suggested that, pending the arbitration, the modus for 18;/2 be made applicable both to Bering Sea and the North Pacific Ocean, if he had not supposed that the treaty which he was abQUt formally to conclude on behalf of his Government, invested the Arbitrators with authority to establish regulations applicable to all the waters traversed by these seals in their migration routes from and to the Pribilof Islands. Two days after writing the letter last referr- d *o, Mr. Blaine communicated to Sir Julian Pauncefote a copy of a telegram, that day received by him from the United States consul at Victoria, in relation to the large number of sealing vessels about to sail, and said : " I think from this yoa will see that if we do not come to an under.standing soon, there will be no need of our agreement relating to seals in the North Pacific or in the Bering Sea." U. S. Case, Vol. 1, App. 333-4. Sir Julian Pauncefote replying, under date of February 28, 1892, 1 j i uilW ^ -j 29 wm U> Mr. Blaine's note of Fohruary 24, referred to tl>e Htateineiit of tlie latter that "if Her Majesty's Oovoriiinent would make their efforts most effective the sealing in the North I'svciflc Ocean should bo f(»rbidden." If, as is now contended, the treaty then about to bo signed, and which was signed the next day, did not contentplate regulations for the preservation of these fur seals whiie they were in the North Pacific! Ocean on their migration routes, it would iiave been easy for the Brit- ish Minister to state that fact as a conclusive reason why the modus Vivendi for 1892 should only apply to Bering Sea. But no such rea- son was assigned for the refusal of the British Government to extend the moduH for that year to the Xorth Pacific Ocean. The United States (lovernment was, unfortunately, in such condition at that time, in respect to the arbitration, that it was compelled to accept a niodtm for 1892, applicable only to Bering Sea, or leave both that sea and the North Pacific Ocean eiitirely open to pelagic sealing pending the arbi- tration. Notwithstanding the distinct declaiation made to the United States by the British Government, through its representative at Washington, that "the sole object of the negotiation is the preservation of the fur : seal species for the benefit of mankind, and that no considerations of advantage to any particuhir nation, or of benefit to any private inter- est, should enter into the (luestion;" notwithstaudiug the explicit assurance, given by the Marqius of Salisbury, that Her Majesty's Gov- i ernment "always have been, and are still, anxious for the arrangement of a convention which shall provide whatever close time in whatever I localities is necessary for the preservation of the fur seal species;" and, notwithstanding the exju'ess injunction ofthe treaty that the Arbitrators, upon finding the concurrence of Great Britain necessnry to the establish- ment of regulations "for the proper ))rotection and preservation of the j fur seal in, or habitually resorting to, the Bering Sea," shall "detci- mine wiiat concurrent regulations outside the jurisdictional limits of I the respective governments are nei;essary, and over what waters such regulations sJKmld extend," the contention now by Her Majesty's Attor- : ney General and his learned associates, is that the Tribunnl is witlumt i authority or jurisdiction, under the treaty, to i)rescribe regulations applicable to the North Pacific Ocean, or any regulations which in tterms, or by their necessary operatiitn, will result in the i)rohibi(i.»n of pelagic sealing. It is contended that no such power can be exerted (by this Tribunal, even if the Arbitrators find from the evidence that • \ -m -•=«>«sSiaUs«; ,1 i;)- i 1 1 'f 30 this race of animalH can only be properly protected and preserved by the absolute cessation, during the sonlin;; season, of the hnntinj; and tii!.>in^ of tliejie fur-seals in the waters both of Bering Sea and the North Pacific Ocean traversed by them outside the Jurisdictional limits of the respective governments. These two contentions are opijosed by the United States, whi«;h insists that, according to the evidence, the continuance of i)cliigic seal- ing in the open waters either of Bering Sea or of the Northern Pacific Ocean, during the numths of the year when these seals may be taken, is absolutely certain to bring about the extermination of the race in the course of a few years ; and that under the power to detennine tlie rights of tlie citizens or subjects of the two governments, as regards the taking of fur seal in, or habitually resorting tf», Bering Sea, and to i)rescribe concurrent regulations for tlie proper protection and i)re- serviition of such seals, and to declare over what waters sncli regula- tions should extend, it is competent for this Tribunal, and is its plain duty, under the treaty, to prescribe regulations looking to a prohibi- tion of pelagic sealing in any waters outside the jurisdictional limits of the respective governments which are traversed bj' these seals in their regular semiannual migration from and to the Pribilof Islands. In harmony with the views upon regulations which the counsel for Great Britain present, regulations have been submitted in behalf of Her Britannic Majesty, which, if approved, would establish a zone of 20 miles around the Pribilof Islands within which no seal hunt- ing shall be permitted at any time, nor rifles nor nets used by sealers, and a closed season Itoui the 15th September to the 1st July for Bering Sea. Under such regulations pelagic sealing could be car- ried on witliout restraint, and with shotguns — confessedly a destruc- tive, if not the most destructive mode of taking seals — not only in the North Pacific Oijeau (luring the entire season, when seals can be taken in that ocean, but in Bering Sea outside the proposed zone of 20 miles around Pribilof Islands between July 1 and September 15. Tlie regulations suggested, in behalf of the United States, call for a prohibition, during the entire year, of pelagic sealing in all the waters of Bering Sea and of the North Pacific Ocean, outside the jurisdic- tional limits of the two Governments, north of the thirty-fifth degree of north latitude, and east of the one hundred and eightietb meri- dian of longitude from Greenwich. These regulations, it is admit- ted, cover all the waters habitually traversed by these fur seals in a;;i'".^awi 81 tlieir mif^ration louteH from and to t'lie Pribilof Ts'iaiulH, and, if ap- pntved, would n^snlt in tlio pruhibition i)ra(!ti(;ally of all liuntini; and takinjj of these seals outside of territorial waters. Much was said, in argument, as to the authority of the Tribunal to prescribe regulations that would entirely i)rohibit jjehigie sealingf diir- infif the inontiis in each year when, by reason of the weather and the condition o^ the seas, the hunting: snid talking of seals is iinimvcticable. Thti British counsel c«»ntended that it is beyond the power of the Arbi- triitors to prescribe regain tions of that character. They argued that the Tribunal could not do indirectly what they could not do directly; thi.t prohibition, in terms, (u- by the necessary oi)erati<)n of regulations, is not regulation ; tliat the power to regulate is not a power to prohibit. This view, it may be observed, would place it beyond the power of this Tribunal to prescribe such regulations as those decideMt power to prescribe such regulations as are necessary for the proper protection and preserva- tion of this race of animals, then the result of its proceedings can not possibly be, as both countries intended it should be, " a full, per- fect, aud final settlement of all the ^questions referred to the Arbitra- tors.*' It is mere play upon words to say, in respect to this treaty, that prohibition is not regulation, and that regulations or rules, calling in expresis words or by their operation for a prohibition of pelagic sealing, are beyond the powers given to this Tribunal, even if it appeared that regulations of that character are absolutely necessary to prevent the extermination of the fur seals freq[ueuttng the Pribilof Islands. The manifest result of this interpretation of the treaty is that while the Tri- bunal may prescribe regulations for the proper protection and preserva- tion of these animals, the business of taking them in the high seas may still be carried on even though it should involve the destruction of the species. Can anyone believe tiiat Great Britain would have asked the United States to so stultify itself as to sign a treaty which, either in words or by neuesaary implication, would have admitted of such a result? Does anyone believe that a treaty rendering such a result pos- sible would have been signed by any diplomatic repre-ientative of the United States, or would have been approved by its President or by any member of the Senate of the United States! I express at this time no opinion as to what regulations are in fact, and upon a view of all the evidence, necessary to the proper pro- tection and i)reservation of those fur seals. Nor do I ask the Tribnnal now to make any declaration upon the weight of the evidence touch- ing that or any other issue. I am without knowledge of the views of i>i*W«i 38 IS are iii I lie Arhitrivtora upon tbe various queHtiona of ri|;)it or issues ot' fa«'t to bu doteriniiied by tlieni, aud I ask no cxprossiou of opinion toucli- in^ any of those questions in advance of their being reached in the lingular course of our proceedings in conference. But as indicating tlie grounds upon which a declaration is asked at this time, as tvt the powers of this Tribunal under tbe treaty, 1 may say that there is a large amount of evidence in the record tending to show that the hunting and taking of these fur seals, according to the methods uow piaeticed by pelagic sealers in the open waters either of the Bering Sea or of the North Pacific Ocean, if continued, will certainly result at no distant day in the complete extermination of the race. My purpose iiJ oiiiy to show that the power to prescribe regulations, which expressly or by their practical operation will prohibit pelagic sealing, was iiit>eiided to be conferred and has been conferred by the treaty, with i»i»pect tt) the waters both of Bering Sea and of the North Pacific Ocean, traversed by these fur seals in their going from aud returning to the Pribilof Islands. This Tribunal, I insist, has not been constituted for the purpose of conserving the interests of the Canadian and American sealers who, within the past ten years, have devised a mode of taking these fur seals in tlie open seas, by means which, all concede, are destructive, because not admitting of any discrimination as to sex, nor, still less, of any discrimination between females that are heavy with young and those that have not been impregnated. We are not here with authority to make an award, simply by way of compromise, so that each side In this dispute may have an opportunity to say that it has not been entirely unsuccessful in its contentions before this Tribunal. Our authority has a much wider field of operation. If the repeated avowals of the two nations, who seek an amicable settlement of their differences by means of arbitration, are not to bo wholly discredited, we are here, ill their names, and by tiieir joint authority, to protect and preserve tliis race of animak from extermination if we find that concurrent regulations to that end are necessary. A failure or refusal to exercise tlie iMiwer, plainly given, to prescribe such regulations as are neces- sary to preve'it the extermination of this race of useful animals, will, in my judgment; wholly defeat the principal object for which this Tribunal was created. Matters involving the jurisdiction and power of the Tribunal to deal with every aspect of this case, as it may affect the supreme object of 11492 3 ■■'ft'-, ; *! 34 1; i ,;■ the iH'utcction ami pruaurvatiun <»!' tlieHU (iir suiiIh, should, I niibinit, be pa8Hii befuru the ArbitratorH eiiUu- uimmi the coiiHiderutiuii u( the several questiuiis of right submitted tor determination. The duty of this Tribunal U> prescribe regulations arises when the determination of the qaestions submitted to us, ''as to tlie exelusive jurisdiction of the Unite^l States/' leaves the subject in such positioit "that the concurrence of Crreat Britain is ntMjessary to tin; establish- ment of regulations tor the (tropur protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea." Such are the express words of Article VIl. If tlie United States has not such exclu- sive jurisdiction — that is, such sovereign power — as enables it to enact laios, binding upon all, whether citizens of tlie irnited States or sub- jects of other countries, for the protection and preservation of those seals, in all the waters both of Bering Sea and of the North Pacitic Ocean traversed by them — and no suclt claim has been preferred before us — then we know, at this time, that tlie concurrence of Great Britain is necessary to the establishment of regulations, whatever conclusion may be reached uiH>n the issue as to property and protection presented by the tlfth question of Article VI. If it be held that the United States has no right of property in these seals, and no right to protect them when found outside the ordi- nary three-mile limit, then the duty to prescribe concurrent regulations becomes manifest. But regulations of tliat character are, in my judg- ment, necessary though, i>erhaps, not equally so, for the proper protec- tion and preservation of the seals, if the Tribunal holds that su(!h riglit of property or protection does api>ertain to the United States; for, mi that case, the oidy means which the Government of that country could employ would be those which the law permits to individual owners of property for its protection. But that would be ina^letjuate i>rotec- tion, without the ctmcurrence of Great Britain, manifested by such leg- islation as would bind its subjects wherever they may be, and (compel them, under proper penalties, to respetit any right of property or protection accorded to the United States by the award or decision of this Tribunal. So that it is certain that we nuist come to the subject of regulations for tha proper protection and preservation of this race of animals. If the Arbitrators believe that the race will be soon exterminated unless pelagic sealing is prohibited, in both Bering Sea and the North FaoiAc Ocean, during all the months when they may be taken in the ssswmmhswsssIh MfWB? 36 opnn waters, hut tliat the Tribiiiiiil in without [lowiir, uiulur the troaty, to itfuscribo regalatiouH of that chariUitiM-, ia it not, an I have htu-utotbru sn;;{jfe«tc(l, our duty to MUHjieud further action for a time, in order tliat tile two UovernmentH may have an oppiu'tunity to so amend the treaty, under whieli we are proceediiiK< as Ut enable um to proHerve thiu raee from extermination f Shall we ignore tlie faet that >>oth UovernmentH have protested, in every form of language, that they desired the pres- ervation of these animals without reference to considerations of pndlt or advantage to any nation or to individuals of any nation? iShall it be assumed that either of the great nations l)(;fore us wish the Trilninal to conclude its labors and atyourn without prescribing concurrent regu- lations that are, in fact, necessary for the preservation of tliese seals? As titese questions touching the competency of the Tribunal t4> deal with tlie subject of the preservation of these animals have been dis- tinctly raised by Great Britain and must be decided, 1 submit that they siiould be examined and decided, at the threshold of our proceedings in conference. Senator Morgan authorizes me to say that he concurs in this opinion. [At the close of the diHuUMiiioii Senator Morgan ottvrod, an a aulmtituto fur the nio- I ion of Mr. Jiiatiuu Harlan, the foHowing : "Thin Triliutiul ol° Arbitration iH oiu]ii)w- crud liy the Treaty of F«bru:ir,v 29, 1892, between the Uuitoil States auplicable to their rcHpoctive I'iti/.euH or Mubjects, outHide of their respective territorial limits and outside of Itoring Sea, for the protection and preservation of fur seals in, or habitually resort- iiig tu, liering 8ea." This substitute was accepted by Mr. Justice Harlan, and waa atlopted, one Arbitrator voting in the negative. It was agreed that the aonsider.v tinii of the subject erabra<-ed in the second branch of the original motion of Mr. .Justice Harlan be postponml until the Tribunal should roach the subject of rcgiila- tiuns in order, and should determine that regulations were made necessary by the cuuclusions reached apon other questions named in the treaty.] * PAUT II. THE MERITS OF THE VARIOUS QUESTIONS SUBMIITED TO THE TRI- BUNAL FOR DETERMINATION. «JR:«KHAI. MTATKnKNT OP THK PAf'TN OI'T Oi-' Wllllll TIIK PRKMKKT «!Ol1ITROVICRNV BBTWKKN TIIK TWO NATIONM AHOMK, AWD THK HIMTOHV OP TIIK WROOTIATIONM KKMUi.TINU IN THK THKATV OP PKBHVARV 'i9, tMIM. Before entering upon the oxaininntiun of the iiiiiMirtunt qiieHtiouK Hiibniitted for deterniiuation, it will bo well to recall tlic general course of the negotiations that prtceded the making of the treaty under which we are proceeding, and the principal fsictH out of which the pretKjut controversy between the two governments originated. Some of those fiicts have already been stated by me when considering, at a former session of this Tribunal, the tpiostion of its competency to make regu- lations applicable to the North Paciflc Ocean, and which also, in terms, or by their necessary operation, would put an end to pelagic sealing in the waters traversed by the Pribilof seals. But it is well, even at the risk of repetu!')n, to restate them in tliis connection. The contttn jrsy had its origin in certain seizures of vessels, alleged to belou;- i^ , or to be in the possession or under the .control of, British subjects who were engaged, at the time, in the waters of Bering Sea outside of the ordinary limits of territorial Jurisdiction, in hunting and t'iiking fur-seals which had their breeding grounds on the islands of St. Paul and St. Oeorge, two of tiie four islands in Bering Sea con- stituting the Pribilof group. The seizures referred to were nuide in IS80, 1887, and 1889 by public armed vessels acting under instructions from the Executive Depart- ment of the Government of the United States. The Pribilof Islaiuls are situated in Bering Sea, latitude 57° north, h>ngitude 170° west from Greenwich, about 300 miles from Cape Neweu- ham, on the mainland of Alaska Territory, and about 200 miles north ot the Aleutian Islands, the latter islands extending several hundred 36 I ..ii. M j iii u mimaassTBemaM t mimcT.m i d7 iiiileH weHtwiinlly uiil Houtliw<^8ter]y tVoiii tho peuinsiila of Alaska into the Pft(!itt»-:ain the limits I'eferred to in tlie treaty of 1867. I5y a subsequent at!t, passed MarJi 2, 1889, section l!>56oftlie Revised .S«;atute8, forbidding the killing of "any otter, mink, marten, sable or fur Hcal, or other fur-bearing animals within the limits of Alaska Terri- tory, or in the waters thereof," was declared "to include and apply to it'l the dominion of the L'nited States in the waters of Bering Sea;" and it was made the duty of the President, at a timely season in each year, to issue his proclamation warning all persons against entering said waters for the purpose of violating the i)rovi8ion8 of said section, and to cause one or more vessels of the United States to diligenMy cruise said waters and arrest all persons, and seize all vessels found to bti, or to have bee, engaged in any violation of the laws of the United States therein. En execution of the abovreservation of siich seals, witli such proportionate re3. When the lease heretofore mad<' by the Secretary of the Treasury t" the Alii.erminated, the Secret ary shall lease to proper and responsible w* I 40 Treasury has, from time to time, leased to an incorporated company the right to engage in the business of taking fur seals on the islands of St. Paul and St. (ieorge, under regulations prescribed by that -""fficer. It was under this state of thtj ia'v, so far sis the statutes of the United States were concerned, that seizures of vessels were made. The Brit- ish Government protested a.juinst those seizure.^ a an unauthoriiced interference with tlie rights o*:" its subjects on the high seas. Its Minis- ter at Washington, Sir Lionel Sackville West; in p. io*^>r dated Janu- ary 9, 1887, and addressed to Mr. Bayard, t>',e * „!>: •> Secretary of State, said: "It is unnecessary for me to alluMS ..t^l/W'' . ohe informa- tion with which Her Majesty's Croveruinent hav9 beeu furnished respect- ing tliese seizures of British vessels in the open seas, ai.d which for some time past Inis b^^n in the possession of the United iStates CJov- pai'tics, for the best advantuge uf the Uaitud States, having duo regard to the in- terest of the Uovernmeiit, the native inhabitantH, their comfort, inaiiiteuanco and <;dncation, oh well im to t}iu intereut of the parties heretofore engaged in trade, and the protectiuii of tlie iidherieH, tlieriglit of taking fur-seals on the islands herein named, and of sending a vessel or vessels to the islands for the skins of such seals, for the term of twenty years, at an annual rental of not less than fifty tho\isand «l(d- liu-s, to be reserved in snch lease and secured by a deposit of United State.i bonds to that amount; and every such lease shall be duly executed iu duplicate, and shtU not be transforablo. Sec. 1964. The Secretary of the Treasury shall take from the lessees of PU' . isii-.f ^h in all cp^es 11 bond, with securities, in a sum nut less, than five hundr -^ li'.iiijMi* dollars, conditioned for the faithful observance of nil the laws and req •'^.l --r Congress and the regulatiouM of tli'i Secretary of the Treasury touching th< >.. Mig of fur-seals and the disposing of the same, and for the payme>"t of all taxos m dues accruing to the I'nitetl Si'ates connected therewith. 8kc. 1965. No persons other )'hau American citi/ons shall be permitted, by lease or otherwise, to occupy the islands of Saint Paul and Saint George, or either of them, for the purpose of taking the skins of fur-seais therefrom, nor shall iiny foreign vessel l)e engaged in taking such skins; and the Secretary of the Treasury shall vacate and declare any lease forfeit«4d if the same be held or operated for the use, benefit, or advantage, directly or indirei;tly, of any persons other than Amcri'^ar 'izens. Skc. ItWT. Kvery person who kills any fur-seal iiu cithe 1' these ' :' "v.^d l>v iu the waters adjacent thereto, without authority of the li>88e jrooi; and .' -^ tArnan who molests, disturbs, or interferes with the lessees, .»: either of the)u,, r their agents or employes in the lawful prosooutidu i>f their bnsiness, under the provis- ions of this chapter, shall for each offense Ivo j.">ik'!i"d as described in section 1961; and all vessels, their tackle, appave., .ivp .rter.ap.ips. and cargo, whose crews are found ttugagod in any violation of tl> ; proviE't'/ic ,i ..-'otlons 1965 to 1968, inclusive, shall be forfeited to the United Statos. Skc. 1968. If any person or company, undur any leitse herein authorised, know- iiiarKJr-;; 41 criiiiiout, because Her Majesty's Goveriirneut do not doubt that if, on inquiry, it should prove to be correct, the Government of tho United States will, with their well-known sense of Justice, admit the illegal- ity of the proceedings resorted to against the British vessels and the IJritish subjects above mentioned, and will cause reasonable reparation t(» be made for the wrongs to which they ha''e been subjected and fitr tlie losses which they have sustained." TJ. IS. Case, Vol. 1, App., 156. Under date of April 12, 1887, Mr. Bayard, writing to the British minister, said: "The remoteness of the sce-^e of the ftir-seal fisheries imd the special peculiarities of that industry have unavoidably delayed Mie Treasury officials in framing appi-opriate regulations and issuing onh^.s to lJ:>ited States vessels to police the Alaskan waters for the pi'otcction of the fur b'^als from indiscriminate slaughter and conse- iiigly kills, or permits t« be killed, any number of seals exi;ee«ling the number for iiach island in this chapter proscribed, sr.uh person or company shall, in addition t« llm penalties and forfeitures hereiii provided, forfeit the whole number of skins of MCiils killed in that year, or, in eye the same have been disposed of, then such per- son or company shall forfeit the value of the same. Skc. 1969. In addition to the annual rental required to bo reserved iu every lease, :i.s jtrovided in section hiuetocn hundred and sixty-three, a revenue tax or duty of two dollars is laid upon each fur-seal skin takt-n and shipped from the islands of Saint Paul and Saint George during the continuance of any lease, to be paid into the Treasury of the United States; and the Secretary of the Treaanry is empowered to make all needful regulations for the collection and payment of the same, and to secure the comfort, maintenance, education, and protection of the natives of thosct islands, and also to carry into full effect all the provisions of this chapter except an iitlierwiso prescribfcd. Skc. 1970. The '^"cretary of the Treasury may terminate any leiute given to any person, compau' , or corporation on full and satisfactory proof of the violation of any of the provisions of this chapter or the regulations established by him. Skc. 1971. The lessees shall furnish to the several masters of vessels employed ))y them certifltd copies of the lease held by them respectively, which shall ha presented to the Govorumejit revenue officer for the time being who may be in ct.arge at thi^ islands as the authority of the party for landing and taking skins. Sec. 1972. Congress may at any time hereaft>er alter, amend or repeal sections from KMiO to 1971, both inclusive, of this chapter. Skc 1973. The Secretary of the Treasury is authorized to appoint one agent ami tiiree assistant agents, who shall be charged with the management of the seal flsh- eries in Alit8ka,and the performance of such other duties as may bo assigned to them l>y the Secretary of the Treasury. Skc. 1975. Such ageuts shall never be interested, directly or indirectly, in any lease 'if the right to take seals, nor in any proceeds or proHtn thereof, either as owner, liTi'iit, oartnt^r, or otherwisn. i te t 'I 42 quent speedy exteriuiiiatiou. The lawH of the United States in this behalf are contained in the Revised Btatntes relating to Alaska, in sec- tions 1956-1971, and have been in force for upwards of seventeen years; and prior to the seizures of last summer but a single infraction is known to have occurred, and that was proinpfly punished.. The. question of instructions to Government vessels in regard to preventing the indis.- criminate killing of fur seals is now being considered, and I will inform you at the earliest day possible what has been decided, so that British and other vessels visiting the waters in question can govern themselves acrx)rdingly." U. S. Case, Vol. 1, App., 160. Subsequently, August 19, 1887, Mr. Bayard addressed communications to the ITnited States ministers in Prdncs, Germany, Great Britain, Japan, Kussia, and Sweden and Norway, in which he said: "Recent occurrences have drawn the attention of this Department to the necessity of taking steps for the better protection of the fur seal fisheries in Bering Sea. Without raising any question as to the exceptional measures which the peculip.r character of the property in tjuestion mig{|jt justify this Government in taking, and without reference to any exceptional marine jurisdiction that might properly be claimed for that end, it is deemed advisable, and I am in8truct«d by the President to so inform you, to attain the desired ends by international cooperation. It is well known that the unregulated and indiscriminate killing of seals in many parts of the world has driven them from place to plsice, and, by breaking up their habitual resorts, has greatly reduced their number. Under these cir- cumstances, and in view of the common interest of all nations in pre- venting the indiscriminate destru«'.tioii and consequent extermination of an imimal which contributes so importantly to the commercial wealth and general use of mankind, you are hereby mstrmtted to draw the attention of the Government to wliich you are accredited to the sub- ject, and to invite it to enter into such an arrangement witli the Gov- ernment of the United States as will prevent the citizens of either wmntry from killing seal in Bering Sea at such times and places, and by such methods as at present are pursued, and which threaten the speedy extermination of those animals a«d consequent serious loss to mankind. The ministers of the United States to Germany, Sweden and Norway, Russia, Japan, and Great Britain htive been each simi- larly addressed on the snbjcit referred to in this instruction." If. N. Cane, Vol. J, App,, KtS. A copy of this communication having been received by Mr. Phelps, 48 United States luiuiHter at London, he had an interview with Lord Sal- isbury, the British Secretary of State for Foreign Attairs, and proposed tliat the two governments shonhl adopt a code of reguhitions for the preservation o^ the seals in Bering Sea from destrnction at improper times and by improper means by the citizens of either country — such iigr»!ement to be entirely irrespective of any questions of conflicting Ijurisdiction in tuose waters. This proposal, Mr. Phelps reported, was acquiesced in by Lord Salisbury, who suggested that the American Minister obtain firom his Government and submit a sketch of a system of regulations that would be adequate for the purpose. U. S. Case, Vol. 1, App., 171. Under date of February 7, 1888, Mr. Bayard wrote to Mr. Phelps disclosing, in some detail, the reasons why promjjt action was netiessary ill order to prevent the entire destruction of the fur seals frequenting the islands of the United States in Bering Sea, as well as those foand on tiie islands belonging to Russia. Responding to the suggesticni in respect to code of regulations, he said: "The only way of obviating the lamentable result above predicted appears to be by the United States, Great Britian, and other interested l)ower8 taking concerted action to prevent their citizens or subjects from killing fur seals with firearms or other destructive weapons north of 50 degrees of north latitude, and between 160 degrees of longi- tude west and 170 degrees of longitude east from Greenwich, dui-ing the period intervening between April 15 and November 1. To prevent the killing within a marine belt of 40 or 50 miles during that period would be. ineffectual as a preservative measure. This wonld clearly be so (luring the approach of the seals to the islands. And after their arrival tiiore such a limit of protection would also be insnflScient, since the rapid progress of the seals through the water enables them to go great distances from the islands in so short a time that it has been calculated t liat an ordinary seal could go ^ the Aleutian Islands and back, in all a distance of 300 or 400 milos, in less than two days." What would take place unless steps were taken to preserve this race Mr. Ba^ ard pi'o- cecded to show: "That the extermination of the fur seals must soon take place unless they are protected from destruction in Bering Sea is sliown by the fate of the animal in other parts of the world, in tlie absence of concerted action among the nations interested for its pre- scrvaticm. Formerly, many tlunisands of seals were obtained annually from the HouMi Piunfli; Islands and from the <',oa»tsof (!l)ile and V nith M \ 44 I Africa. Tliey were also coiiiiiiou in the Ftvlli^laiid iHlaiidB and tl?c adja- cent seas. But in thoHe islands, where hundreds of thoiixtvnds of skins were formerly obtained, there have been taken, Hccording to the best statistics, since 1830, less than 1,5U0 skins. In some caiies the indis- criminate slaughter, especially by use of firearms, has in a few years resulted in completely breaking up extensive rookeries. • • • It is manifestly for the interests of all nations that so deplorable a thing should not be allowed to occur. As has already been stated, on the Prib- ilof Islands this Government strictly limits the number of seals thai may be killed under its own lease to an American company, and citizens of the United States have, during the past year, been arrested, and ten American vessels seized for killing fur seals in Bering Sea." He fur- ther observed that Great Britain, in cooperating with the United States to prevent the destruction of fur seals in Bering Sea would aid in perpetuating an extensive and valuable industry in which her own citizens have the most lucrative share. U. S. Case, Vol. i, p. 173. Mr. Phelps, upon receiving this communiiiation, held an interview, in London, with both Lord Salisbury and the Russian AmbassiMlor, M. de Staal, and reported, under date of February 25, 1888, that his lo/d- ship assented to the proposition of Mr. Bayard, and that he would also join the United States Government in any preventive measures it may be thought best to adopt, by orders issued to the naval vessels in that region of the respective governments. U. 8. Case, Vol, 1, App., 173. The Russian ambassador concurred, so far as his personal opin- ion was concerned, in the propriety of the proposed measures for the protection of the seals, and promised to communicate at once with his Government. In reply to the last letter Mr. Bayard Avrote to Mr. Phelps: "It is hoiked that Lord Salisbury will give it favorable consideration, as there <;au be no doubt of the importance of preserving the seal fisheries in Bering Sea, and it is also desirable tlij>t this should be done by an arrangement between the governments interested without the United States being called upon to consider what special measures of its own the exceptional character of the property in question might require it to take in case of the refusal of foreign powers to give their coopera- tion. Whether legislation would be necessary to enable the United States and Great Britain to carry out measures for the i>rotectioa of the seals would depend much upon the character of the regulation; but it is probable that legislation would be reho 8oals would dopoiui upon tho kind of an'iin}j;uinuiit which (ireat Britain would bo witling to make with the United States lor the policing of the seas and for the trial of British subjects violating the regulations which the two governiuents may agree ainm for such pro- tection." U. 8. Case, Vol. 1, App., 175. During a temporary absence of Mr. Phelps from Loudon, Mr. White, the United States Charge d'Aftaires, had an interview with Lord Sal- isbury and the Bussian ambassador, and reported that M. de Staal expressed a desire, on behalf of his government, to include in the area to be protected by the convention the Sea of Okhotsk, or at least that l>ortion of it in which Robbon Island is situated, there being, he said, ill that region large numbers of seals whose destruction is threatened in the same way as those in Bering Sea; and that Lord Salisbury, in order to meet the Russian Government's wishes respecting the waters surrounding Robben Island, suggested that, besides the whole of Bering Sea, those portions of the sea of Okjiotsk aiid of the 1 'aciflc Ocean north of latitude 47 degrees should be included in tho pro- posed arrangement.. His lordship intimated, furthermore, that the l)oriod proposed by the United States for a close time, April 15 to No- N'cmber 1, might interfere with the trade longer than absolutely nen^es- sary for the protection of tho seals, and he suggested October 1, instead of a month later, as the termination of the period of seal prote<;tioii. U. 8. Case, Vol., 1, App., 179. Mr. Bayard, in reply, said that he did oijject to the inclusion of the Sea of Okhotsk, or so much of it as was necessary for the protection of the seals; nor did he deem it absolutely necessary to insist on the ex- tcuision of the close season till the Ist of November. Only such a period was desired as was re<]uisit« for the end in view. But that suc- cess may be assured in the eflbrts of the various governments inter- ested in the ptf^ieiition of the seals, it seemed advisable to take the 15th of October instead of the 1st as the date of the close time, althou<;h, the 1st of November would be safer. U. 8. Case, Vol. 1, App., 180. At the argument there was some controversy between counsel as to wliether Lord Salisbury had, in fact, agreed to any particular mode of protecting these fur seals from destruction. It is cjuite sufficient, in any view of this case, to accept the account Lord Salisbury hiin- seli' gave of the meeting between himself and the representatives of the Thiited States and Russia, on which occasion was considered the question of the preservation of the furseal species. The principal I I. fe i 46 iiiterviow on thJM Hiibjuct wan held on the 16th of April, 1888, and its rcHult \vu8 Mtsited the mime day in an utticial communication from Lord Salisbury to the British Minister at Washington. Lord Salisbury said: "At this preliminary discussion it was decided provisionally, in order to furnish a basis for negotiation, aud without definitely pledg- ing our governments, that the spaee to be covered by the proposed convention should be the sea between America and Russia north of the 47th degree of latitude; that the close time should extend from the 15th of April to the 1st of November; that duriug that time the slaughter of all seals should be forbidden, and vessels engaged in it should be liable to seizure by the cruiser? of any of the three powers and shoidd be taken to the port of their own nationality for condemna- tion; that the traffic in arms, alcohol, andi>owder, should be prohibited in all the islands of those seas; and that, as soon as the three powers had iMincluded a convention, they should join in submitting it for the assent of the other maritime powers of the northern seas. TheUnitetl States charge d'affaires was exceedingly earnest in pressing on us the importance of dispatch, on account of the inconceivable slaughter that had been and was still going on in these seas. He stated that, in addition to the vast quantity brought to market, it was a common practice for those engaged in the trade to shoot all seals they might meet in the open sea, and that of these a great number sank, so that their skins could not be recovered." British Case, Vol. 3, App., 196; U. 8. Case, Vol. 1, App., 238. A similar communication was sent to Sir K. Morier, the British Am- bassador at St. Petersburg. These negotiations resulteu in nothing of a practical nature because of the objections raised by the Canadian Government to any such plan as that to which the representatives of Great Britain, the United States atid Russia, "provisionally, in order to furnish a basis for negotiation," assented at the meeting of April 16, 1888. Mr. Phelps, luul p conversation with liord Salisbury on the 13th of August, 1888, and agiiin pressed for the completion of the convention, as the proposed extermination of the seals by Oauadiau vessels was un- derstood to be rapidly proceeding. His lordship did not question the propriety or importance of taking measures to prevent the wsin+on de- struction of so vuiuable an industry, in which, as he remarked, England had a large interests of its own. But he said th?t the Canadian Gov- ernment objected t|>eui'ossible, at such a solution as is proposed by Mr. Blaine." British Case, Vol. 3, App. 350-351. After this interview the British Government made complaints of other seizures of British vessels in the open waters of Bering Sea. Those complaints were mot by Mr. Blaine in his letter of January 22, 1890, addressed to Sir Julian Panncefote. As that letter contains a fuller statement of the position of the United States than had been made up to that time, nearly the whole of it is given, as follows: "In the opinion of the President, the Canadian vessels arrested and detained in the Bering Sea were engaged in a pprsuit that was in itself cortfra honos mores, a pursuit which of neces*'. i'.7olves a serious and permanent injury to the rights of the Government and people of the United States. To establish tliis ground it is not necessary to argue the question of the extent and nature of the sovereignty of this (ioverninent over the waters of Bering Sea ; it is not necessary to explain, certainly not to define, the powers and privileges ceded by His Imperial Majesty, the Empenn- of Bussia, in the treaty by which tlie Alaskan Territory was transferred to the United States. The weighty considerations growing out of the acquisition of that territory, with all the rights on land and sea inseparably connected therewith, may be safely loft out of view, Avhile the grounds are set forth upon 11492 1 60 which this OoveriiiiH'iit rests its Justitlcutioii for thenction coiiipliiini'd of by Her Majesty's (lovornmeiit. It vaniiot be imkiiowii U* Her Majesty's Government that one of the most vahiable sources of revenue from the Alaskan fMtssessions is the fur seal fisheries of tlie Bering Sea. Tliese flshories had been exclusively controlle ratio which constantly and rap- idly increases, and insures the total e ^termination of the species within a very brief period. It has thus become known that the only proiMjr time for the slaughter of seals is at the season when they betake them- selves to the land, because the land is the only place where the neces- sary discrimination can bo made as to the age and sex of the seal. It would seem, then, by fair reasoning, that nations not iM)S8essing the territory upon which seals can increase their numbers by natural growth, and thus afford an annual supply of skins for the use of mankind, sboald refrain from the slaughter in open sea, where the destruction of the species is sure and swift •iUmi *'--«- 61 " A.ft«r tho iMMinisition of Alaskn tho Govornmoiit «»f the Tlnltod HtatoM, tlirou^h rie.H. Proceeding by a ch>He obedience to tlie luwa of nature, and rig- idly limiting tlio number to be annually Hlaughteied, the (iovernment Hucceeded in increaHing the total number of Heala and adding corro- K|)ondingly and largely to the value of the flsh.'ries. In the course of a tew years of intelligent and interesting experiment tho nainbor that could be safely slaughtered was fixed at 100,000 annually. Tho com- pjmy to which the administration of the fisheries was intrusted, by a ieaste iVoui this Oovernment, has paid a rental of $50,000 per annum, and in addition thereto $2.62^ per skin for the total number taken, T1.8 skins were regularly transpoi" I to London to be dressed and pre- pared for the markets of the world, and the business had grown so 'arge that the earnings of English laborers, since Alaska was trans- ferred to the United States, amount in the aggregate to more than ii* 12,000,000. The entire business was then conducted peacefully, law- full.v, and profitably — profitably to the United States, for the rental was yi(!lding a moderate interest on the large sum which this Government had paid for Alaska, including the rights now at issue; profitably to the Alaskan Company, which, under governmental direction and restriction, had given unwearied pains to the care and development of the fisheries; profitably to the Aleuts, who were receiving a fair pecu- niary reward for their labors, and were elevated from semi-savftgery to civilization and ti the enjoyment of schools and churches provided for their benefit by ttie Government of the United States, and, last of all, profitably to a large body of English laborers, who had constant employ- ment and received good wages. ''This, in brief, was the condition of the Alaska fur seal fisheries down to the year 1880. The precedents, customs, and rights had been estab- lished and enjoyed either by Kussia or the United States for nearly a century. Tho two nations were the only powers that owned a foot of laud on tlio continents that bordered, or on the islands included within, the Bering waters where the seals resort to breed. Into this peaceful and secluded field of labor, whose benefits were so equitably shared l)y the native Aleuts of the Pribilof Islands, by the United States, and by England, certain Canadian vessels in 188(» asserted their right to enter and by their ruthless course to destroy the fisheries, and with them to destroy also the resulting industries which are so valuable. The H 62 ^i) •a course of conduct in the Bering Sea which she had carefull y avoided ever since the discovery of that sea! By what reasoning did Her Maj- jesty's Government conclude that an act may be committed witli impu- nity against the rights of the United States which had never been attempted against the samo rights wlien held by the Kussian Empire? "So great has been the injury to the fisheries fr' '>i the irregular and destructive slaughter of seals in the open waters of the Bering Sea by Canadian vessels that, whereas tlie Government had allowed 100,0(10 to be taken annually for a series of years, it is now compelled to reduce the number to (J0,0()0. [f four years of this violation of natural law and neighbor's rights has reduced tiie annual slaughter of seal by 40 per cent, it is easy to see how short a jieriod wiil be requiied to work the total destruction of the fisheries. "The ground upon which Her Majesty's Govei.rinent justifies, or at least defends, the course of the Canadian vessels r^sts upon the fact that they are committing their acts of destruction or. .'vehij;!i seas, viz, more than 3 marine miles from the shore line. It is doubtfu. whet..^r Her Majesty's Gove»"iment would abide by this riuo if the attempt were made to interfere with the pearl flslieries of Ceylon, w hich exten I' p 54 to concede much in order to adjust all differences of view, and ha«, in the judgment of the President, already proposed a .solution, not only equitable, out generous. Thus fur Her Majesty's Government has declined to ac(!ept the proposal of the United States. Tlie President now awaits with deep uiterest, not unmixed with solicitTide, any propo- sition for reasonable adjustment which Her Majesty's Government may submit. Tlie forcible resistance to which this (lovernraent is constrained in the Bering Sea is, in the President's judgment, demanded not only by the necessity of defending the traditional and long-established rights of the United States, but also the rights of good government and of good morals the world over. '' In this contention the Government of the United States has no occa- sion and no desire to withdraw or modify the positions which it has at any time maintained against the claims of the Imperial Government of Eussia. The United States will noit withhold from any nation the privileges which it demanded for Itself when Alaska was part of the Russian Empire. Nor is the (loNernment of the United States dis- posed l-o exercise in those possessions any less power or authority than it was willing to conoede to tbe Imperial Government of Bussia when its sovereignty extended over them. The President is persuaded that all friendly nations will concede to the United States the same rights and privileges on the lands and in tlie waters of Alaska wlii<'h the same friendly nations have always conceded to the Empire of Russia." U. S. Case, Vol. I, App., 300. In his letter of December 17, 1890, in reply to Lord Salisbury's letter of August 2, 1890, Mr. Blaine discusses with mv-.'h elaboration and with signal ability all tho questions then in dispute between the two governments. In that letter he says: "I am directed by the President to say that, on behalf of the United States, he is willing to adopt the text used in the act of Parliament to exclude ships from hovering nearer to the island of St, Helena than .S marine leagues, or he will take the example cuted by Sir George Baden- Powell, wheie, by permission of Her Majesty's Government, control over a part of the ocean GOO miles wide is to day anthorized by Austra- lian law. The President will ask the Government of Great Britain to agree to the distance of 20 marine leagues — within which no ship shall hover around the islands of St. Paul and St. George from the 15th of May to the 15th of October T>f each year. This will prove an eflfective mode of preserving the seal flslieries for the use of the civilized world — 55 a mode which in view of Great Britain's assumption of power over the open ocean she can not with consistency decline. Great Britain pre- scribed 8 leagues at St. TTelena; but the obvious necessities in the Bering Sea will, on the basis of this precedent, justify 20 leagues for the protection of the American seal fisheries. "The United States desires only such control over a limited extent of the waters fn the Bering Sea, for a part of each year, as will be suffi- cient to insi.re the protection of the fur seal fisheries, already injured, possibly, to an irreparable extent by the intrusion of Canadian vessels, sailing with tiie encouragement of Great Britain and protected by her tlag. The giavest wrong is committed when (as in many instances is the case) American citizens, refusing obedience to the laws of their own country, have gone into partnership with the British flag and engaged iu the destruction of the seal fisheries which belong to the United States. So general, so notorious, and so shamelessly avowed has this practice bewiine that last season, according to the report of the Ameri- can consul at Victoria, when the intruders assembled at Unalaslsa on the 4th of July, previous to enterinr Bering Sea, the day was celebrated in a patriotic and spirited maiiiicr by the American citizens, who at Che time were protected hv the Critish flag in their violation of the laws of their own country "With such agencies as these, des aed l)y the Dominion of Canada, iind protected by the flag of Great Britain, An rican rights and iin i ests have, vidthin the past four years, been itiimny international arrangement to forbid it; that Great Britain lias always claimed the freedom of navigation and fishing in the waters of Bering Sea outside the usual territorial limit of M ■]'■ 58 one marine league from the coast; that the pub'ic right to flsh, catch seals, or pursue any otiier lawful occupation on th«> high seas can not be liold to be abandoned by a nation from the mere fact that for a cer- tain number of years it has not suited the subjec; .s of that uatitm to exercise it; that fur seals were animals fene naturaC; and were rea nullim until caught; that no person could have prop'jrty in theiii until he had actually reduced them into possession by capture, and that any interference by the United States with the hunting and taking of these fur seals, in the open waters of the ocean, by the citizens or subjects of Great Britain, was a violation of rights secured to them by the law of nations. The result of the negotiations was the treaty of February 29, 1892, under which this Tribunal is proceeding. ) 2- JVRIIIDICTIOIV AND BIOHT8 AS8BRTKD AND KXERCISKD BV RITII- HIA IN BERINO SEA, AND IN BESPKCT TO THE ttKAI. FISHERIES IN THAT <^EA, PRIOB TO THE CESSION OF 1S67 OF AI , V ,i r; I i i! H / and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? The relations held by Russia to Bering Sea and to the fisheries therein, largely involve the interpretation to bo given to what are called the Ukases of 1799 and 1?21, to the treaty of 1824 between Russia and the United States, and the treaty of 1825 between Russia and (Ireat Britain. Those treaties were the result of negotiations that foHowod the vigorous protests made by the United States and Great Britain against tlio Ukase of 1821. I will later on consider their effect upon any claims of jurisdiction and authority asserted by Russia. The Ukase of 1799, as it is commonly called, was little more than a charter granted to the Russian American Company. The material I)ortions of it are in these words: "By the grace of a mercifu' God, we, Paul the First, Emporor and Autocrat of all the Russias, etc. To tJie Russian American Company under our hipfhest protection. The. benefits and advantages resulting to our empire from the hunting and trading carried on by our loyal subjects in the northeastern seas and along the coasts of America have attracted our imperial attention and consideration; therefore, having taken under our iuimediate protection a company organized for the above-named purpose of carrying on hunting and trading, we allow it to assume the appellation of "Russian American Company, operating under our Highest Protection;" and for the purpose of aiding the com- pany in it« enterprises, we allow the commanders of our land and sea forces to employ said forces in the company's aid, if occasion requires it, while for further relief and assistance of said company, and having examined their rules and regulations, we hereby declare it to be our highest Imperial will to grant to this company for a period of twenty years the following rights and privileges : "I. By the right of discovery in past times by Russian navigators of the northeastern part of America, beginning from the fifty-fifth degree of north latitude and of the chain of islandsextending from Kamchatka to the north to America, and southward to Japan, and by right of pos- session of the same by Russia, we most graciously permit the company to have the use of all hunting grounds and establishments now exist- ing on the northeastern coast of America, from the above-mentioned fifty-fifth degree to Bering Strait, and also on the Aleutian, Kurile, and other islands situated in the Northeastern Ocean. ini ii 61 " II. To make new discoveries uot only north of the flfty-flfth degree of north latitude but farther to the south, and to occupy the new lauds ft discovered as Russian possessions, according to prescribed rules, if they liave not been previously occupied by or been dependent on any other nation. "III. To use and profit by everything that has been or shall be dis- covered in those localities, on the surface and in the interior of the ciirtli, without competition from others. " IV. We most graciously )>ermit this company to establish settle- ments in future times wherever they are wanted, according to its best knowledge and belief, and fortify them to insure the safety of the in- habitants, and to send ships to those shores with goods and hunters,' without any obstacles on the part of the Government. " V. To extend their navigation to all adjoining nations and hold busi- ness intercourse Avith all surrounding powers, upon obtaining their free consent for the purpose and under our highest protection to enable them to prosecute their enterprises with greater force and advantage. "VI. Toemployfornavigation, hunting, and all other business, freeand unsuspected people, having no illegal views or intentions. • * • "X. Tlie exclusive right is most graciously granted to the coni])any for a i)eriod of twenty years, to use and enjoy, in the above extent of country and islands, all profits and advantages derived froni hunting, trade, industries, and discovery of new lands, prohibiting the enjoy- ment of these profits and advantages not only to those who would wish to sail to those countries on their own account, but to all former hunters ivud trapi)ers who have been engaged in this trade and have their vessels and furs at those places; and other companies which may have been formed will not be allowed to continue their business unless they unite with the present company with their free consent; but such l»rivate companies or 'traders as have their vessels in those regions can either sell their property, or, with the company's consent, remain until they have obtained a cargo, but no longer than is required for the loading and return of the vessel; and after that nobody will have any privileges but this one company, which will be protected in the enjoy- ment of all the rights mentioned. "XI. Under our highest protection the Russian- American Company will have full control over ail above-mentioned h)calitie8, and exercise Judicial powers in minor cases. The company will also be permitted to use all local facilities for forti&caliuus iu the defense of the country ( ,i 62 vM \ I l! *'l r. ! I t under their control agaiust foreign attticks. Only partners uf tiiu company shall Ue employed in the admiiuHtration of the now possessiouH in charge of the company," U. »V. Case, Vol. 1, App., 11. This is the trauslatiou of the Ukase of 1790 as given in the origi- nal Oases of both governments. It is also identical with that found in Bancroft's History of Alaska, the author stating tliat the translation adopt6rohibit hunting or fishing in its waters, beyond tlie ordinary territorial limits prescribed by the law of nations. Prior to 1790 numerous rival companies or associations, maintained by Bnssii'ii capital, were engaged in trading with the native inhabit- ants residing on the coasts or islands of Bering Sea. Many com jiiaints were made to the Emperor of cruelty and wrong practices by tiiose associations toward the natives. The " promyshleniki," it was said, "conld easily take by force what they had not the means to buy, or wiiatthe natives did not care to sell." ''Thus," says Bancroft, "for many years matters were all)wed to take their course; but toward the (Mid of the eighteenth century the thnatened exhaustion of the known sources of supply caused much uneasiness amo:ig the Siberian mer- chants engaged in the fur trade, and some of them endeavored to rem- edy the evil by soliciting special privileges from the Gov«^rninent for the exclusive right to certain islands, with the understanding that a fixed percentage of the gross yield — usually one-tenth — was to be paid into the public treasury. Such privileges were granted freely eiiougli, but it was iMiotiier mutter to make the numorotis half-pi raticul tiaders respect or even pay the least attention lo them." Uintory of Alanht, 375-6. And we have tht authority of a report made by a committee, under royal, permission, for saying that out of this condition of affairs arose the necessity recognized by the Russian Government of one strong company whicii " would serve on the one hand to perpetuate Russian supremacy there, and on the other would i)revont many dis- orders and preserve the fur trade, the principal wealth of the country, affording protection to the natives against violence and abuse, and tending toward a general improve'»«nt of their condition." Hence the creation of the Russian -American Company by the Ukase of 1799, 64 If <^ I \ I m '<, to whicli, according to the anmo report, " was grantotl full privi- leges, for a period of twenty years, on the oooHt of Northwestern America, l)C};iiining from latitude fyt^ north and including (he chain of inlandM extending from Kams(;hatka northward to Anierica and MouMiwardto Japan; the exclusive right to allenteri)ri808, whether hunting, trading, or building, and to new discoveries, with strict pro- hibition from profiting by any of these pursuits not only to all parties wlio miglit engage in tliumon tlioir own responsibility, but also tothost wlio formerly had ships and esti< jlishmonts there, except those who have united with the new company." liancro/Vn Uwiory of AlanlUy 379; Report on Ruhh, Amer, Colonivn, MS, ri, i.y. Undoubtedly it was intended that the Russian-American Comp uiy sliould enjoy tlieso riglits and privileges without competition — that is, exclusively, against all, whotlier Uussian suiijects or the subjects of other countries. But Lite rights and privileges so granted were only such as related to business carried on within the territorial domini'^ n or authority of Russia. If the translation of this Ukase, as given in the original Cases of the two governments be the correct one, the exclu- sive right granted to the Russian-American Company for twenty years WHS only to use and enjoy "in the above extent of country and islandu all ])ro(its and advantages derived from hunting, trade, industries, and discovery of new lands." If the translation embodied in the Brit- ish Oouurer Ca>o be the correct one, then the grant was of an " exclusive right to all acquisitions, industries, trade, establishments, and dis- covery of new countries " throughout the " entire extent of the lands and ialanis described." Neither translation supports the suggestion that the Emperor of Russia intended to assort sovereign power over any part of Rering Sea outside of territorial waters, and thereby in- terfere with the freedom of navigation in the open waters of that sea, or with any such use of thobe waters by the citizens or subjects of other (;ouutries as was sanctioned by the law of nations. He intended only to assert an exclusive right to control, for the benefit of a par- ticular company taken under his protection, all the profits and ad- vantages to be derived from the busii;ess, trading, and industries conducted tcithin territorial tpaters and on the coasts and islands of Russia. When the Ukase of 1799 was issued, the hunting of fur seals in the open waters of the ocean, beyond territorial jurisdiction, was unknown. The only part of the Ukase of 1799 that seems to give any support 66 \v!iHt4«V(!r to Mic «>piHmitu viuw ir .' thu wunU in tlio tli-Ht piiruttniph rercrriiiy to tlui bi'iu'tlts uiid lulvaiitaf^eM that rosiiltod to tlin Kiiipire tVoiii tlu^ liiuitin^aiHl trading t-arri'ul on l)y th« I'Jiipi^iiii'K loyal Mubjt'i-tM "in tin; aorthi'tiHh'ru ne»H and along tli« coants il' Aniorica." lint tliat was HHMt'ly a n-oital — in wliat may. not nnrciisonably, We trailed the prt'iunblc of tliii (unnpany's cliartor — of tin; fact that linssians had bi'(«n cngaiTtid in hnntin)i; and tradin;;, not only "along tlu' (toasts of America," bnt "in th« northoastorn seas;" not that tlioy had been so •'iigaged in thosi' waters, tti the exelnsion of the (titixens or subjects of other (MHintries riglittuliy engaged in commert-e and inivigation on the high seas. This is made clear by the granting clause of tiic cmnpany's charter, which, referring to the dis(!overy by Itnssian navigators of the north- eastern |nortliwestern| part of America, and of certain islainls, and of tiie possession held in those localities by Hussia, permits the company to have tiie use, (not of the nortlieastern seas, bnt) of all hunting grounds and establishments then existing "on the northeastern | northwestern] fomt of America," from the tifty-tifth degree of latitude to Bering Strait, "and also on the Aleutian, Kurile, and other Mi«««/«, situated in the Northeastern Ocean." And, as already stated, the e.'clusivc right, granted to tlie company, as (b'dared in section 1(», was "t!l and ISiil the waters of Bering Sea were visited by vessels from variims countries in c-harge of persons engaged in tiie hunting of wliales, and who also carried on illicit and forbidden trade of different kinds with the native inhabitants <»f Itussian territories, in violation of the establislied p«»licyof the Russian (iovernmeut. For the i)uri)ose of bieaking up that •. ad(! and enforcing the policiy of his Government, the Kmperor of Itussia issued the following Edict, c,f.lled the Ukase of 18L'l : " Observing from iep(nts subnutted to us that the trade of our t,ub- jects on the Aleutian Islandw and on the northwest c(»»st of Amei'ica, ai)pertaininguntiOltussia, is subjected, because of secretand illi innimuninatioii nlong the coast of eoHtern Silw- ria, the northwest couHt of A.merifii, diii the Aleutitin, Kurile, and other tHlandn.^^ .Vs given in the Oases of both (rovernments, they contain among other iirovision-s the following: "Sec. 1. The pursuits of ('ommercc, whaling, and fisiiery, and of all other industries, on all islands, ports, ami gulfs, incdnding the whole of the northwest coast of America, beginning from the IJering Straits, lo the fifty first degree, of northern latitude, also from the .Vlsutian Islands to the eastern coast of isiberia. as well a« along the Knrile Islands, from Bering Straits to the siontih (Japi! of the Ishuu. ,( Urup, viz: to the 4o° oO' northern la,titi>d<(, is exclusively granted to Russian subjectH, "Skc!. li. It is therefare ()V(>hibit(Ml t,o all foreign vessels, not only to land t le fifty-first parallel of ncuthern latitude, and like- wise on the Aleutian Islands and ahmg the eastern coast of Siberia, If! (! . .1 i 'U B8 iiud on the Kuiile Tslaiida; that is, from Bering Straits to the south- ern promontory ot tlie Ishind of Uvu}), viz, as far south as hititude 4.")^ 50' north, are exclusively reserved to subjects of the Russiiin Governnieut. "Si;(!. 2. A«'eoidiii{i:ly. no forei};ii vessel shall be iillowed either to put to shore at any of the coasts and islands under Russian dominion, as specified in the precediiif,' section, or even to approach the same to within a distan<',e of less than UH) Italian miles. Any vessel eontraveuiun' this provision shall be subject to confiscation with her whole cargo.*' U. 8. Cane, Vol I, App., L'24, .'.'.2i,. Does the ITkascof 1821 — lookint; first to its words only — import an assertion upon the ]»art of Kussia of exclusive jurisdiction ovei" th«' open waters of Uering Sea, or of exclusive riglits in what are called the seal fishetics in those waters? If iiot,^vhat was the extent and nature of the jurisdiction so asserted ? This Ukase appears, upon zts face, to be based upon reports sub- mitted to the Emperor tcmchiuf' the trade of his subjects. iu)t in liering Sea, but "«» the Aleutian hhiinls ami on the northwest must ot America." The first regulation has reference to "the pursuits of com- merce, whaling, and fishery,and of all other industry on all )«?«hW«, ports, and gulfs, incliuliufj the w hole of the northwest oonut of America," and ^-aloti:; tlie Kurile Islands." The same regulation according to the translation given in the letter of Secretary Blaine to Sir Julian Baunce- fote, refers to "the transaction of conunerce and the pursuits of whaling and fishing, or any other imlustry, on the inlnnds, in the harbors and inlets, a'ul, in general, all nlnnij the northwestern cotint of America." Considering next the circumstances under which this ITkase was issiuui, we t'lul that Russia had nunnn'ous colonial establi.shments and industries on certain coasts and islands. And there M'ere ])orts, gulfs, harbors, and inlets contiguous to its jwssessions, aiiil constituting part of its territorial waters, in whicli foreigners carried on trade to the prej u lice of the IkHsiui Au>.i(!:i;i '3 50'." This clearly indicates that the exclusive privileges grantetl to the IlussianAnierica.n Company had no reference tn hunting, trading, fisiiing, ami industries in theror sutticient for that purpose — of prev(;nting for- eigners from coming intxj contact with its cohniial trade and industries, and thereby interfering with the enjoyment by the RuHsian-Ainerican <"i»mpany of the exclusive rights and privileges granted to it. Tnniiug to the dipii.'natic correspondence between Russia and the United States, what do we find? This Ukase, and the regulations pronuilgiit«(l in ♦vxecntion of it, were brought to the attention of tlie governriienta of both the United States and of Oreat Britiau; to the 70 former, by M. de Poletica, the llussian minister at Washington, iu an orticiT.1 communication dated January 3D, 1822, addressed to .Fohn Quincy Adams, tlie American Secretary of State. Mr. Adams replied, under date of February 25, 1822, expressing, by direction of the Presi- dent, liiii surprise at this " assertion of a territorial claim on the part of Kussii extending to the flfty-flrst degree of north latitude on this continenv, and a regulation interdicting to all commercial vessels oUier than Russian, under the penalty of seizure and confiscation, to approach up;;n the high seas within 100 Italiaii miles of the shoie to which that dain. is made to apply.'' Aftei observiiijj that the exclu- sion of the ve^sels ot citizens of tiio Uuitod States from the shore "beyond the ordinary distance to which territoi'ial jurisdiction extends " had excited still greater surprise, he inquired whether the Buabiuu minister was authorized to give explanation of the grounds of right, upon principles geuevally recognized by tlie laws and usages of nations, which could warrswit the action of Kussia. I'. S. Case, Vol. 1, App., 13!J. It is clear that Mr. Adams did not interpret the Ukase as asserting Jurisdiction over IJering Sea, except to the exteilt of 100 Italian miles from the coasts specified. Equally explicit were the declarations of the American Minister at St. Petersburg, who in a confidential memorandum sent to Mr. Adams, said: "The extension of territorial rights to the distance of 100 Italian miles uiM)n two opposite continents, and the prohibition of approaching to tlie same distance from these coasts, or from those of all the intervci.ing islands, are iuuovatio) o on the law of nations, and measures unexampled." Amsr- ican State Papers, Vol. J, p. 452. M. Poletica, February 28, 1822, replied at some lengtli, in justifica- tion of the edict promulgated by the Kmperor of Kussia. He recited numertms facts which, in his judgment, sustained the claims of Russia to the extent specified in the regulations for the Russian-American Company — resting tlie title of his Government u|)on first discovery, first oocupancj, and peiicciible, uncontested posscssicm for more than half a century prior to the independence of the United States. In respect to the territory claimed by Russia, he said that the Imperial Governuieni, in assigninf, for limits to the Russian possessions on the northwest coast of America, oii the one side Bering Strait and on the othe'" the fifty-first degree of .lorth latitude, has oiily made a mod- erate use of an incontestable right, "since the Russian navigators, who were the first to explore that part of the American continent in 1741, ■ !' 11 pushed their discovery as far aortli as tlie forty-ninth (les;i'ee of north latitude." The flfty-first degree, therefore, he said, was no more than a mean point between the Russian establislunent of Xew Archangel, situ- ated under th " fifty seventh degree, and tlie American coUiny at the m countries. Those remon- strances, repeated at different times, remain constantly without ettect, and the inconveniences to which they ought to bring a remedy con- tinue to increase. * • * Pacific moans not having brought any alleviation to the just grievances of the Russian American Company against foreign navigators in the waters which euviron the establish- ments on the northwest coast of America, the Imperial Government saw itself under the necessity of having recourse to tlie means of coercion, and of measuring the rigor accorci ig to the inveterate ciiar- acter of the evil to which it wished to put a stop. Yet, it is easy to discover, upon examining; closely the i<.st regulation of the Russian- America'i Company, that no 8i)irit of hostility had anything to do with its formation. The most minute precautions have been taken in it to prevent abuses of autliority on the part of commanders of. Rnntuan VJ i: \> 72 cruisers appointed for the execution of said regulation. At the same time it has not been neglected to give all the timely publicity neces- sary to put those upon their guard against wliom the measure is aimed. Its action, therefore, can oi ly reach the foreign vessels wliifih, in spite of tiie notitlcation, will oxp;tse themselves to seizure by infringing upon the line markei out in thi; regulation. The ftoverninent rtattors itself that these cases will be very rare; if all remain as at present appears, not one. " I ought, in the last place, to request you to consider, sir, that the Russian possessions in the Pacitic Ocean extend, on the northwest coast of America, from Bering Strait to the liFty-first degree of north latitude, and on the opposite side of Asia and the islands adjacent from the same strait to the fortylifth degree. The extent of sea to which these possessions form the limits, comprehends all the conditions attached to Hhut nem ('niers fermt'jes'), and the Russian Government miglit conseiiuently judge itself authorized to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners. But it preferred assertiiiff only itn esuentinl rights, without taking any advantage of localities." Britinh Case, Vol. 1, App.jpp. 28, HO; V. a. Case, Vol. 1, App., l.H;i. Equally explicit were tiie declarations made by the Russian Gov- ernment, to the British Government, in an official communication, dated November 12, 1821, addressed by IJarou Nicolay, the Russian Ambassa- dor at London, to the Marquis ol' Londonderry, then at the head of the British Foreign Oflice. After referring to tiie complaints which the operations of smugglers and adventurers nUmg the northwest coast of America belonging to Russia have more than once given rise to, which operations had for tiieir object "■ a fraudulent commerce in furs and otlier articles whicii are exclusively reserved to tlie Russo American Com- pany." and betrayed a purpose to excite resistance or revolt, upon the part of tlie natives, to established authority. Baron Nicolay said : "It was, therefore, necessary to take severe measures against these intrigues, and to [irotect the company against the hurtful prejudices that resulted, and it was witli that end in view tliat tlie annexed regu- lation has Just been published. "T/its new regulation does not forbid foreign vessels to navigate the seas that wash the shores of the Russian Possessions on the northwest coast of America and the northeast coast of Asia. Snch a prohibition — which it would not have been diflicultto enfonie with asuflicientuaval force — would, of a truth, have been the most efficacious means of pro- 78 toctiui; the interests of the Russo- American Company; and, moreover, it would appear to be based upon incontestable rights. For, on the one liand, to remove all foreign ships, once for all, from the coast above referred to, would be to put an end forever to the illegal operations wiiich it is iieoossary to prevent. On the other hand — considei'ing the Russian possessions, whiiih extend on the northwest coast of Ameri(!a from the Bering Strait to the tlfty-ftrst degree of nortii latitude, as well as on the coast of Asia opposite and on the adjacent islands, from the same strait to 45° — it can not be denied that the sea of which these possessions form the bounds embraces all the conditions that the most widely known and best accredited publi(!ista have attached to the definition of a closed sea, and that, therefore, the Russian Government lias perfei't authority to exeniise the rights of sovereignty over that sea and particularly that of forbidding the.approach of foreigners, Never- tlieless, however important the considerations may have been that claimed such a measure, however legitimate such a measure would in itself have been, the Imperial Cirovernment did not wish, on this oc(«,- sion, to exercise a power which is assured to it by the most sacred title of possession, and which is, besides, confirmed by irrefragable author- ities. The (rovernment, however, limited itself— aa can be seen by the newly imblished regulation — to tbrbidding all foreign vessels not only to laud on the settlements of the American Company, and on the Peninsula of Kamschatka ami the coasts of th't Okhotsk Sea, but also to sail along the eoast of these [)osscssi(>ns, ai'd, as a rule, to o2>proach ihem within 100 ftalian mileti. '' Vesse.s of the Imperial Marine have Just been sent to see that this arrangement is carried out. The arrangement appears to us to be as lawful as it is urgent. For, if it is shown that the Imperial Govern- ment had strictly the right to close to foreigners that portion of the Pacittc Ocean wliicli is bounded by our possessions in America and Asia, any, and on tlie Peninsula of Kamschatka and the coasts of Okhotsk Sea, and from sailing along the coasts of those possessions, and, as a rule, from approaching them within LOO Italian miles." (2) That, in order to accomplish those ends, foreign vessels were not to infringe upon "the line marked out in the regulations," and therefore not to approach the coasts within a less distance than that specified. (3) That while Russia claimed that it coidd justly assert the rights of sovereignty over all the waters between the North American and Asiatic Continents, from Bering Sti-ait to the tifty-ttrst degree of north latitude on the American side, and from the same strait to the forty-fifth degree of north latitude on the Asiatic side, it limited in the Ukase of 1821 its a<;tnal assertiim of sovereignty over the waters witliin or inside of a certain line. It consequently declared that the Ukase of 1821 had refereuc« only to the waters within 100 Italian miles from the coasts mentioned. Additional proof of all this is found in the letter of Mr. Adams, the American Secretary of State, of March 30, 1822, replying to the above communication from M. Poletica, and in the latter of M. Poletica to Mr. Adams, dated April, A. D. 1822. Mr. Adams, in his letter, said: " With regard to the suggestion that the Russian Government might have justified the exercise of sovereignty over the Pacific Ocean as a close sea, because it claims territory both on its American and Asiatic shores, it may sutHce to say that the distance from shore to shore on this sea, in the latitude of 51 degrees north, is not less than 90 degrees of longitude or 4,000 miles." To this M. Poletica responded : " In the same manner the great extent of the Pacific; Ocean at the fifty-first degree of north latitude can not invalidate the right which Russia may have of considering that part of the ocean as close. But as the Imperial Government has not thought it tit to take advantage of that right, all further discussion on this subjerjt would be idle." U, S. Case, Vol. 1, App., 134, 135. The next point in Article VI to be considered is that involved in the inquiry : ^^ How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain f " !l 75 The use here of the word "jurisdiction" creates some doubt as to the precise object of the question. But it must bo assumed that the purpose was to ascertain wliether, in the judgment of this Tribunal, (h'oat Britain recognized and conceded any claim of jurisdiction, upon the part of Russia, over the waters of Bering Sea, or over any fish- eries in tliat sea, outside of tlie ordinary limit of territorial waters. So interpreting the question, I have no doubt of the answer which must be made to it. The oiBcial correspondence between the gov- ernments of Grreat Britain and Russia shows that throughout the whole of the negotiations following the Ukase of 1821, and result- ing in the treaty of 1825, Great Britain stood firmly by the posi- tion, not only that the territorial jurisdiction asserted by Russia on the northwest coast was in excess oi what it was entitled to claim, but that the prohibition by that Ukase of the approach of foreign vessels nearer than 100 Italian miles to those coasts was an assertion of sovereignty over the open waters oi' the Sea, which was forbioden by the established principles of international law. Let us see what was recognized and conceded by CIreat Britain dur- ing her negotiations with Russia. In his communication of January 18, 1822, addressed to Count Lieveu, the Russian Ambassador at London, in reply to the letter of Baron Nico- lay, covering a copy of tlie Ukase of 1821, the Marquis of Londonderry, then at the head of the British Foreign Office, said: "Upon the subject of this Ukase generally, and especially upon the two main princi])les of claim laid down therein, viz, an exclusive sovereignty alleged to belong to Russia over the territ<>rics tlierein described, as also the exclusive right of navigating and tiading within the maritime limits therein set forth, His Britannic Majesty must be understood as hereby reserving all his rights, not being prepared to admit that tlio intercourse which is allowed on the face of this iustruniont to have hitherto subsisted on those coasts, and in those sea^' can be deemed to be illicit, or that the ships of friendly powers, even supposing an unqualified sovereignty was proved to appertain to the Imperial Crown in the vast and very imper- fectly occupied territories, could, by the acknowledged laws of nations, be excluded from navigating within the distan(;e of 100 Italian miles as therein laid down, from the coast, the exclusive dominion of which is assumed (but, as His Majesty's (iovernment conceive, in error) to belong to His Imperial Majesty, the Emperor of all the Russias." British Case, Vol. 3, App., 14. \ W i t 4 I ■hi i-f t il i;l 76 Subse(HU'iitly, September 27, lHli2, Mr. (leorg*! Oamiiiig, tlie suo smels of otiiers from tlie seas on its coasts lo the ilistaiice o/ Jiiit Italittn mihs. Itritinh ('me, Vol. JI, p. 3:1. Tlie I>nkeof Wellinj;lon, writint; on the Hame day to Count Liovoii and repeating: the objentiou of the British Government to the Ukase, so far as it assiim<'d for Ifiissia an exclusive sovereij;nty in the eonti neiit of NorMi Ani(u-i(;a, observed: "The second ;j;round nn whicili we object to the Kkase is that His Imiterial Majesty f!ierel>y excludes from a certain coiisideruhle ext«nt of the open neo vessels of other nations, \Ve contend that the assumption of this power is con try to th<' law of nations, and we cannot found a ne^'otiation upon a p.iper in wiiieh it is aj^ain broadly asserted. We contend that no power whatever can exclude another from the use of the ojkmi sea. A power can exclude itself from the navigation of a certain coast, sea, etc., by its own actor engagement, but it cannot by right be excluded by another." lint'iMh Case, Vol. II, App. 25. 1 am unable to tind a single sentence in all tlui diplomatic corre- spondence that took |)lace betwei!) Russia and Great Britain, tcmching tlie Ukase of 1821, showing, m- tending to show, that Great Britain nioditied, in the slightest degree the position taken by its represents lives from the very outset, namely, that the maritime Jurisdiction (u- aiitluM'ity claimed by Uussia, uiioii whatever ground lestcd, to the extent of 100 Italian nules from its coasts, was inconsist«!nt with tiie law of nations. On tlie c(uitrary. after the ftxpii.ition of more than two years without an agreement being reached as to the disputed (|uestion8 of maritime sujiremacy and territorial sovereignty, and when serious apprehensions were felt that no satisfactory 8(dution of those (|nestions would be reached, Mr. Stratford (banning was sent by the Miitish Government to St. Petersbuig as Plenipotentiary to ettect, if possible, a settlement of the pending dispute. He re)f the Ukase of 1H21. So entirely and absolutely true is this propositi(m that the settlement of the limits of the respective possessions of Great Britain and Itussia on the Northwest coast of America was proposed by us only as a mode of facilitatin": the acyustment of the dirt'orence arising from the Ukase by enabling the Court of Russia, under the cover of a more comprehen- sive arrangement, to withdraw, with less appearance of concession, the ottensive pretensions of that edict. It is comparatively indifferent to us whether we hasten or postpone all questions respecting the limits of territorial possession on the continent of America, but the pretensions of the Russian Ukase of 1821 to exclusive dominion over the Pacific could not continue longer unrepealed without compelling us to take some measure of public and effectual remonstrance against it. • • " That this Ukase is not acted upon, and that instructions have been long ago sent by the Russian Government to their cruisers in the Pacific to suspend the execution of its provisions, is true; but a pri- vate disavowal of a published claim is no security against the revival of that claim. The suspensicm of the execution of a principle may be perfectly compatible with the contiiuuMl maintenance of the principle itself, and when we have seen in the course of this negotiation that the Kussian claim to the possession of the coast of Ainerica down to lati- tude 50° rests in fact on no other ground than the presumed ac(]uie8- cence of the nations of Europe in the provisions of the Ukase pub- lished by the Kmperor Paul in the year 1800 [1709J, against which it is aflirnied that no public remonstrance was made, it becomes us to be exceedingly careful that we do not, by a similar neglect, on the pres- ent occasion allow a similar presumption to be raised as to an acquies- cence in the Ukase of 1821. The right of the subjects of His Majesty to navigate freely iu the Pacific can not be held as a matter of indul- 70 f,'eiKre from any power. Having once been publicly quoHtioncd ituiUHt be publicly acknowlcWjjcd. • • • *'It will, of coui-Ho, strike the UusHiiin pleiiipotcntiarieH that by the iuloption of the Aiiioricaii article rcHpec,tin>( uavijfatioii, etc., the pro- \ isiou for iMi excluwive Hsliery of two leaKin--* from the coasts of our respective ])OHsessioiis falls to the (ground. Hut tlie omission is, in truth, immaterial. The law of nations assijjiis the exclusive Hoverei|;;nty of one league to eiujh power on ita own <-oast8, without anyspecitic Mtipn latiou, and tlumgh Sir ('harh^s llagot was aaths IVoiii tin* «',oa>*fs iiu'iititnicd in flu- IJkaso of IHi'l was imt iimre decided or iKTMiHtent titan tliat of tin- I lilted >Stat«M. 'I'ln- action takiMi It.v liic United Statew is not iriclc vaiit to tlu» prewMir diHciiHHion, bw-ausc. as will jneHeiitly appear, its eoiiiirtel iiiwistrt thai; HusHia'H treaty of lHl.'."i with (iieat Britain is to be int<'rpret4'd to mean just what the treaty of 18U4with the lJnit<*fl StateB N^iiS understood by KnsKia, with the knowledge of the Tnited Htates. to iiioaii. Referriii)!; to tii< rcasun^ assij^'iied by M. I'oletica u|mui which Hii»»ia ba^ed the territo i:il ami maritinie claims iwHer^'d in that Ckaue, Mr. Adams, the American 'H^-retaiy of Stat#i, said, in reply: "This pre- tension is to be conHi»l«re«l not (tiily with refeieinte to the (|Ue8ti«>n of territorial ripht. hut alwt to that |)roliibition to the vessels of other nations, incliidiii}; tiioi*e (»f the I 'nite(t States, t Ltaiiaii miles of the '^»asts. From the period of the? e.\isten«!e of the I iiitttd States as m in*le))endent nation, their vessels ha\(' freely !iiiiv -Mted those sea**. ^kihI the riect of this commerce by some of your predecessors, no sj>e<'itic jjiound of charge has ever been alleyetl by them of any transaction in it by which tln^ llnit?esof nations, bound either to restrain or punish. Had any sinli charge been made, it would h»ve received the most pointed attention of tliistJoveniment, wi'ih the sim-erest and tlrmest (iisi>osition to perform every atitandoblifr ^{(mof justice to yours which could have been reiiuired. I am coinmanied by the President of the United States t«. assure yimthat this disposition will continue to be entertaiued, together with the earnest desire that the harmonious relations between the two couiitr ics may b(> preserved. 81 Hritiith \U']y\ug ii|M*ii tin- asHuninco in your note of KJiiiiliU* iliH|H)sitionH rwip- locally entcrtuini't] l»y Mis lni|)4M-ial Majosty towards tlio Initwl States,tlu' President is |M>rsna«Ii>(l lliat tlu' citi/t'iiHttr tliis I'nion will nMiiain iu:niol<>MttMi in the prosecution of tiieir lawful conniieree, and tliat iioi'tVccf will 111' yiven to an i<' :diction manifestly ineuiuiuitilile with tiu'ir ri};lits." l'. S. i'.iiHe^ Vol, .', App., 131. .Mr. Middlet(«n, tiie Anieriean luinister at St. IVtershurg. writing,' to .Mr. Adams uinler date of Aujjust S, IHiiJ, Naid: "To Mr. SperanNky, (lovernor-dene.ral of Siberia, who had been one of the uounnittee origi- iialinjij this uu'asure. I stated my objections at lenjrtli. He informed ine that the first intention inid been (as M. I'oietica afti-rward wrotfi .\Mu) t/O (k'<-lare (lu^ northern portion of the I'acitic Ocean as mare I liiitxiim, but that idea hcin;/ uhandinunl. probably on account of its extravrtpmce, they deteriuine;ht a precedent and found the distau<'e ol M) lea^ruex rianutd in the treaty of I 'tr«'«rht, and which may be caleulated at about 100 Italian miles, sutlicient for all purpose.s. [ replied ironically that » still l>etter precedent mikht have been |>ointed out to them in the i»apal bull of I l!t;{, wliich est iblished as a line of demarcatiim between th<' Spaniards and Porru;;;uese a nu;ridian to be drawn at tlic distain;e ot' 1(H) miles west of the AziH-es, and that the e.\pressi«Hi 'Italian miles' used in the I 'kiwe,> ery naturally might load to thecoindusion that this wasjM'tually the precedent looked to. l£e took my remarks in good part, and I am ilispo.sed to think that this conversation led him to make reflections which did luit teiul to conlirm his tirst impiessions, for 1 found him afterward at dirt'erent time.s speaking conlideutially upon the subject. I'or some tinu>. past 1 began to perceive that the provisions of the Ukase would not bo [lersist-ed in. It a|)pears to have been signed by th« lliiipcror without sufficient e.Kaniination, and may 1)6 fairly considered IS iiaviiig been surreptitiously obtained. Tlii-re can be littU' »h)nbt, thcrctbre, that with a little patience ami management it will be molded into a less objocliiuuible shape." C H. Case, Vol. 1, App. 136. Hut tills i.s not at all. Mr. Adams, writing to Mr. Middleton, under dale of .luly '2'1. LSJ.J, said: " From the tenor of the Ukase tiie pre- tensions of the lini»erial Government extend to an exclusive territorial 114l>2 (i i ■HUll I (I UBJIO 82 ) : jiiriwluition from Mif forty-fifth dej;ro(> of north hititiule, on i\u' AsiaRtic coaMt, to the latitiidi' of fill y-oiic iiortli on the westfirn oosist of the Ai«eri<;an coutinoiit; aiul Mh'v ;(,H.sum« thti right of interdictinjj; the iiiivijjiitioii anf Mr. Adams, written ninler date of .^uly 2.'», l.s^.'J, to Mr. Ilusii, the AnieriP, and the navigation and fishing of all otluir nations are interdicted by the same Ukase to the extent of lOo Italwn mileHj'rom the coast. When M. I'oletiea, flu late Russian nniustei" her«', was called upon to set forth the grounds of right confoiinable to the luws of nations which antht.riz(Ml the issningof this decreei, he answered in his letters of February 1!8 a.nd April 2, I8ii2, by alleging first discovery^ occupancy, and uninterrupted i»<»ssessiou. It appears upon exatnina- tion that these claims have no foundation in fiM;t." In the same letter, after combating these claims and referring to tiie peenliar relations held by the Un ted States to the n of colonial establishnuMits on the North American continent, Mr. Adams said: " .V necessary consetiuenee of this state of .things will be that the American continents henceforth will no longer be subjects of colonisa- tion. Occupied by civilized independent nations, they will be accessible to ICuropeans ami to each other on that footing aUuie, and the Pacific Ocean in ereri/ piirt of it will remain open to the na\ itration of all nations in like itianner with the Atlantic. Incidental to tin' conditi(»n of ^atiuual independence and sovereignty, the rights of anterior navi- 88 ;j;ati(H» oftlM-ir livoPH will hfiloiifj tooiK'h of tlu^ Aukm! :ni iiuMoiis withJn its own (erritorii'H. The applicutiou of colonial priiu-iplcs of '.'xlc.s and proviisionH of (heir constitution. The ri^rht of tarrying on trade with the natives throiij^hout the northwest coast they (the United States) can not renounce. Wirh the Russian settlenientsat Kodiak, or at Xew .\rchansre!, they may fairly claim the advantajjeof a frese trade, havinji so long en.ioyeeous at least to those settlements »k to them. But they will not contest the rijfht of Uussia to prohibit the Initlic, as strictly contined to the Russian settlement itself and not extending to the miginai natives of the «'oast." /'. S. dniic, ]'ol, /, A pp., //"<, Ittl, //w. I'urther rctcrence, to the diplomatic correspondenc*^ relating to the the Ukiise of 1821 would seem Ui i»e unnecessary. The evidence i» nverwhelmiug that the positions taken by the United 8tato its coaaus than 100 Italian miles was contrary to the principles of international law and in violation of the rights of the citizens and subjects of other coun "es engaged in lawful business on the waters covered by that regulation. The negotiations between Russia and the United States resulted in the tieaty of 1824, the nuiterial jnu'ts of which are as follows: "Akt. 1. ft is agreed that in aov part of the (Ireat Ocean, com- monly calleca, the respective citizens or subjtM'ts of the High t'ontriW^ting Powers shall he neither disturbed mu' restrained either in navigation or in fishing, or in the power of rosm-ting t.o the coasts, upon poinis which nniy not already have been i>ccui)ied for the pnri)osc of trading with the natives, saving always, tlie ristrictions and coinlitions determined by the following articles. •' Art. 2. With ;■• view of preventing the lights of navigation aiul i>f lislnng exercised u])on the (treat ')cean by the citizens aud siitijeets of the High Contracting Powers froui becoming the pretext for an illicit !! n\ HU. '•'ii I [If I I *' J 84 trade, it in ujfrewl that the citizens of the United States shnll not resort to any point wliere there is h Russian establishment, witiiont the per- mission of the Oovernor or Coinnianiler; and that, ii'tipr«K:aily, tlie sub- Jeets of llussia sliali not resort, without permission to any establish- ment of the United States upon the Northwest Coast. "Akt. 3. It is moreover agre^jd that, hereafter, there shall not bo formed by the eiti/ens of the United States, or urnler the antlunity of the said States, any establishment up<»n tlie Northwest ( 'oast of Amer- iea, nor in any of the islands adjacent, to the nctrth of rtV' 40' north latitude; and that, in the same manner, there shall be none formed by UuHsiiirn subjects, or under the authority of Russia, south of the same parallel. "AHT. i. It is, nevertheless, understood tliat duriiij,' a term of ten years, eonnting from the signature of the present convention, the sliii)S of both powers ov whi<-li nuiy belong to their citizens or subjects respeciively, may reciprocally frcipuint, w ithout any hintiranee what- ever, the interior seas, gulfs, harbors ami c:eeks, ui»on the coast uhmi tioned in the preceding Article, tor the purpose of tisliing and trading with the natives of the country." U. 6'. IStat. col. tt,2>. 30;J, The negi>tiations between liussia and (ircat. Britain resulted in the treaty of l.SLT), as f(»llows: <* f. It Is agreed that the respe tive subjects of the high eontnu^ting Parties shall not be troubled or moUfsted, in any part of the (Ireat Ocean, cdminonly called the Pacilie Ocean, either in navigating the same, in tishing therein, or in landing at such parts of the coast as shall not have been alrewly occupied, in order to trade with the natives, under the restrictions and conditions spccitieti in the following arti«'h.s. " ir. IncM'derto prev«>nt theright of viavigatiiigand fishing, exercised upcHi the ocean by the subjects of the high contracting Parti«vs, iVinn becoming the pretext of an illicit commerce, it is agreed that the snb jects of His Britannic Majesty shall not laml at any place where there may i>c a Russian establishnn'iit, without the permission of the (iov- ernor t)r Commandant; ,>v.(] on that other hand, tliat Russian sultjeetH shall not land, without pe.inissiim, at any British establishnient of the Northwest coast. "Iir. The line of deniarkation between the possessions of the high contracting Parties, uixni thecoa-itot' thecontineiit and the Ishunlsot America to the Northwestj shall be drawn iu the manner following; :•! '' lii > 85 Commencing from tlio southernmost point of tlio island onllod Piiuco of Wiil((.s Lsliiiid, wliicV poirit lies in tlio jiaralh'l of 'tl dcj;rot.'s forty minntiis, noitli iivtitude, iiud botwetn tlio one hundre«l nml thirty-first, and the one huntlrcd and ^liirty-tlurd degrcv, of west lon<{itudM (Merid- ian of Grtienwicli), tlie said line ahall asrend t>o the nortli along the iliiinnel failed Portland Ohanncl, as far as the point ol the continent where it strikes Mit^ lilty sixtli dej,'ree of north latitiule; from this last nuMitioned point the liiu) of demarkation shall follow the snniinit of the n^onntains situated parallel to the coast, as far as the point of int««r»ec- tion of the one hundred and forty-firat degree, of west longitad<^ (of the same meridiani and, finally, from the said point of !iit»ri'eetion,the saivt- leding ajtich^s m rlie |)OKse«i*ioii. it the othfr: • )ns(Mpu nMy British snt^efts shall not i*»rm k m\ < - ^^liment eittwr upon the coast, or ••^iB the Itorder of uiie coiiiiiicsit . uuipriiiM'd within the limits of jtiie KawHJan |>os8eswon.s. as designate*!! in the ( svo prec;'diag articles; and, m like manner, no establishment shall be foriued by Roietsiau subjecta lj»!yond the saiti limits. '• VL It is understoo*! that the mvl»ieetH of His Britannic Wajesty, fr«i» *'hates»«r quarter they may an > 'ther fnnn the Oi^*Nui, or 86 ■k if ^*ll M I Ml, t- the interior of tlie (continent, sTiall forever enjoy the right of navigating freely, and witiwmt any liindnmce winifever, all thi- liveis and streams whieh, in their <'onrse towards tlie TatiHc Oeoan, may cross the line of deiuarkation npon the line of ex)a.st descril)©*! in article thi-ee of tlie present Convention. " VII. It is also understood tinit for the space of ten years from the signature of the jiresent eoiivention, the vessels of the two Towers, ov those belongini: to their res|»ective subjects, shall mutually be at lib- erty t«) frei|uewa. without any hindrance whatever, all the inland seas, the gulfs, ha>'«ns, and creeks on the coast mentioned in article three for the puri>*»seH of tishing anply to the trade in spirituous liipiors, in (ire arms, or other arms, gunpowder or other warlike stcu-es; the high contracting Parties reciprocally engag- ing not to permit the above nienti«)ned articles to be sold or delivered, in any manner whatever, to the natives of the (country. "X. Every Hritish or Russian vessel navigating the Tacific Ocean, which may be compelled by storms or l>y accident, t<» take shelter in the ports of the respective Parties, shall be at liberty to refit therein, to provide itself with all jiecessary stores, aiul to put to sea again, without paying any other port and lighthoust^ dues, which shall be the same as those paid !iy imtional vessels. In ease, however, the master of such vessel should be under the necessity of disposing of a i)art (»f his merchandise in order to defray his expenses, he shall conform him- self to tlie reguIaticHis and taritl's of the i)laee where he may have landed." From these treaties it will be seen that the lespeetive subjects or citizens of the High (5ontra<^ting Parties wertf not U> be molested or disturbed in navigating, or in lishing in, any part of the Paeitic Ocean, or iu landiw^j on the cousts ot either country, not then occupied, in order to tnulc wiiji the natives, except nnder certain specified coaditious which have no bearing upon the present controversy. 87 We now oome t4> the third point in Article vi (»f tlio Treaty — Wa^i tin; iHtdff oj iratir noir knoirn (in the lierintj iSea indttdvd in the Ithrane ^' Paeifk Owom," oj* med in the treaty of 182't between Ureal Hiitam and Huxnia; aiul what riyhtn, if anji, in the Uetiny Sea were hild and exeliisirely exereised hy Itunttia after saiil treatyf An ailinniitivo answer to tliisqiK'stiou wonldsnslain the [(oHJtion taken l)y Mr. lilaine, to Mie elVect tliat tlie treaty of lS2r», as hetween liiissiii untl (ireat Hritain, ir.ul refcrenee only Ui thu dispute in icspeetto tliobound- iiry line l>etwe«'n tliose eonntries on the north\v«Ht eoaat of America, soutli of the OOtli degree of north latitude, and t^) the waters of the PiM'iHe (X'eaJi south of the. Alaskan Peninsula, and in n<> way to the wat^'vs of iSeriiiK Sea, or to the Ukase of ISiil in its ai»plication to the waters of that Sea. If that position was well taken, it inif;ht ho fairly *;ontended that (treat Britain by signing the treaty of I82r», impliedly rec ia and the United Si,ates. Mr. (Jeorge Canning, in his letter of December Sth, 1821, refer/ing to a proji't proposed by (Jreat Britain, and which Itiissia rejected, and to a counter projct pro[)r prnjeV which relates t«'t maritime ri^dits anviis > onut Nosselrode. That committriie to Russia from carryiiif; out tiie treaty, tiu' rt'i»orl proceeds: •' 7. That hh tlie soverei^futy of K'ussia over the coiists of Silicria and th«' Alentiaii Ishiuds has hui}; beeu admitted by all tiie |io\vcrs, it foHows that tlie said coasts aud islands can not be alluded to in the articles of the said treaty, which refers only to the disputed territory on the northwest coast of AnuMJca and to the adjacent islands; that, even supposinjj the contrary, Uussia has established permanent settlements, not onlj' on the coast of Siberia but also (m the Aleutian };roup of islands; hence, American subjoets could not, by virtue of the second article of the treaty of April r»-17 land at the maritinu» phuies there, nor carry on sealing and tishing without the permission of our commandants ur j^overnoi's. Mmeover, the coasts of Siberia and the Aleutian Islands are not washed by the Southern Sea, of which alone mejition is made in the flrst article of the treaty, but by the Northern Ocean and the seas of Kamchatka and Ohkotsk, which form no part of the Soutliern Sea (m any known map ;>i- in any g(M)graphy. 8. Lastly, we must not h)8e sight of the fact that, by the treaty of April ."t-17 all the disput«'s to which the regulations of September 4 (10), 18JI, gave rise, are termi- nated, which regulations were issued at the formal and reiterateil request of the Kussian-American (Company; that thope disputes had already assumed important |»roi>(Utions, and would certaiidy be renewed if Hussia did not ratify the treaty, in which case it would Ix; impossible to foresee the end of them or their <'<)usc(pienc(!s. These weighty reasons impel the nnijority of the members of the committee to state as their opinion : " That the treaty of April 5-17 nuist be ratified, and that, for the pre- vention of any incorrect int(^r|)retatlon of that act, (icn. I'aron Tnyll may be instructed at the i»roper time to makr^ the d(H;Iaration mcn- tU)ned in the draft of the communication read by Count Nessclrode. The Ministtu- of Finance and Acting State Counselor Drushinin, while ad)iiittiug the nec^essity of ratifying the treaty of April />-17, express and place on rectord the special ojtinion hereto aiux^xed in the proct^xol, to the effect that Baron Tuyll should be iustru.ted at the exchange ol , , 1 ! t 90 ■', I ^'1 ,1^ VI I tlio ratillcatioii of that tn^ity to stipiilafo Miat tliu ri^Iit <>r frod Imntiii); and llsliin;; ^niiitiMl by flit- tw^'It'th articl)^ ut' tlio said treaty sliiill rxtciul only IVoiii r»4 40' to tln' latitmlc of Cross Soiiml.'' /'. S. Coitntcr Cone, l.'iti, l',7. Tliis rt^iiort was «-oiiiiiiiiiii*at«Ml hy tlie UiisHian Minister of Kinaiu-t! to Miu ItuHHiaiiAiiwricaii ('oiiipariy, ill a t-oriiiiiiiiiication wliicli clnstHl with tliosr. wortis: " l'"ioiii tiu^sc (hM-iiiiu'iits tlic Itoard will set- that, lor tiMt avoiilaiii'*' of all iiiisiiii iKMicssary iiiHti-uclions have* alritady l)«>«>ii ^\\i>.\\ to Haroii Tnyll, our iniiiistws; "67/i, ^fon(hu|. — l$aron Tnyll, the Hussian Miinster, wrote me a note requestiuf,' ;\u imintMliati! interview, in <'onse(iuene(> of instructions received yesterday from his «'ourt. lie came, and after intimating' that he was under some embarrassment in executing his iiistt actions, said that i\w. Biissian \meri(;an Com])any, upon h'arniii};^ the purport of the northwest coast convention, concluded last .Inne by Mr. Midroi»ose a modification of the conventictn by wliich our vessels shouhl be i»r(diibited from trading on the northwest coast north of latitude 57. With regard to the former of these points he left with me a minute iu writiug. 91 "1 told liiin that w«^ sliniiM IxHlispoHptl to than hy a new (-oiivtMition, and Ihiit Ihr innntnirtuni « the rjrhiiHiir of the nitiJirntiiiiiM hr nhe hinilinfi npon the eourfs nor npon thin nation. I ader- mit me to suggt^st to him w hat I thought would be his best course, it woidd be to wait for the exchange oftheratiticatious anthnakeit purely and simply; that afterware ttie uptM-ation of Mut convoiitiun bef«>re taking any i'urtlier Hiep, and 1 wan 4-«niti(lunt tliey would liear no complaint rcHuit- ing from it. If tliey sliouUl, tli(>n would be the time for adjuHting tlic con- Htniction or negotiating a modilii-ation of tlieeonv«Mition; and wlioever niiglit he at the lieae chcrisiit'd t4> remove all eaUHert of di8Hatisfa<;tion iind to a4-commodate the mIhIioh and the ju«t |K>liey of the lOniperor. "The Huron said that these ideas had o«-curre4l to himself; that he had made this application in pnrsiian<-e of his inHtructionu, but. he wan aware of the diHtrihution of ihucvvh in our VonHfitutiou and of the incompetriiei/ of the KxtTutire to niljiiHt ^iHestionM. lie would, there- fore, wait for the esehange of the nitlllcations without presenting his note, and reserve f(H' future <-onsid(M-ation whether to present it shortly afterwards or t«» infoi'ni Ids «;onrt of what he had done snid ask their further instructions as to what In; shall delinitively do on the sub- J3ct. lie thercfon^ ru(piested ine to consider what liiul now passed between nsas if it liiul not taken pliu'c ('' iion a venu''), U) which I readily assented, assuring him, as 1 hiul done heretofore, that the President hail tlie highest personal eonlidciicein him and in his exertions to foster the harmony between the two eountrics. I reported immediately to the President the substance of this conversation, and lu; coiicnrred in the propriety of the baron's linal detcrminaMoii/' Memoirs of ,lohn (fulncy AdaniH, Vol. ti, p. l:i'>. In conformity (it. may be assumed) wirli Mr. Adams' mlvice or inti- mations Huron Tiiyll foreborc t4> tile any ollleial iiot^e upon the subject prior to the ratification of the treaty liy the United Htates. The treaty having been ratilied January ir>, 1,S25, and .liinuary 2.1, \H'2't, Huron Tuyll, under instriictiims from his (loveriiment, filed in tin' Department ofState, the foMowing Kxiilanat^iry Note: "Explanatory note to be presented to theOovernment of the United States at the time of the exehange of ratifications, with a view to removing with more certainty all o'.ru'ion for (Uture dis(;iissions, by means of which it will be seen that the Aleutian Islands, th" coast of Liberia, and tht^ Itussian possessions in geiu^ral on the northwest coast of America to .W^ .'10' of north latitude are positively exeept^id fnmi the liberty (»f hunting, fishing, and commerce stipulated in favor of citizens of the United States for ten years. 98 "This setMiis t; Mfvioim of John (fnhwy Adnnis, Vol. (I, p. i;}'). In respect to these matters Mr. HIaine observed: "Of course hiH (Haron TuylPs) act at that time did not allcct the text of the treaty, init i( placed in the hands of the (iovernment of tlie United States an nnotlit iai nottMvhich signiiicautly told wiiat itussia's construction of liu! treaty wouhl Im) if, uniuippily, any ditlcrence as to its meaniu|r should arise between tiie two governments. Hut Mr. Adams' friense important matters were transpiring in Washington negotiations between Uussia and England (eutling in the treaty of l.S"J."») w«'re in pntgress in St. I'etersburg. The instructions to Huron Tnyll concerning the Russian American treaty were fully rellected in the care with which the Anglo Russian treaty was constructetl — a fa<'t t^) which I liavt' already adverted in full. There was, indeed, a possibility that the true nnnmingof the treaty with the United States might be misunderstmtd, and it was. therefore, the evident purpose of the Russian (iovernnu^nt to nnike the treaty with Kngland so plain and so clear as to leave no room fi»r doubt an«l to bailie all attempts at misconstruction. The (i(»vernment of the United States finds the full atlvautage to it in the <;aution taken by Russia in ■'\ ill -f / it; -) '1 I 94 1825, and v,a,n, thureforo, qaote the Anglo-Bassiaii treaty with the utmost coiilhloiice that itH ineiiiiing can not bo changed from that clear, unniiH- takablu text which tlirougliout all the articles suHtains the American contention. The liJxplanatory Note tiled with tb is (rovernmeut by Baron Tiiyll in so plain in its text that after the lapse of sixty-six years the exact meaning cui neither be niisappreheiided nor misrepresented. It draws the distinction between the i'acitic ()<%an and the waters now known a» the Bering iSea so particularly and so perspicuously that no answer cau be made to it. It will bear the closest analysis in every particular. It is not the intention of Uussia to imi)cde the free navigation of the Pacific Ocean. This frank and ex|ili(;it statement shows with what entire good faith Uussia Inul withdrawn in both treaties the offensive Ukase of Alexander so far as the Pticific Ocean wna nuule subject to it. Another avowal is e(|ually explicit, viz, that the coast of Siberia, the northwest coast of America to 51P ',W north latitude — that is, down to 51>° 'M', the explanatory note reckoned from north to south — and the Aleutian Islands are positively excepted from the liberty of hunting, fishing, and commerce, stipulated in favor of citizens of the Uuited States for ten years." U. /S'. Cojh; Vol. F, App., 277^ 378. It seems to me that the interview between Baron Tuyll aud Mr. Adams is of far less coiiset|uence tliau that attached to it by Mr. Blaine. Nor, in my Judgment, are the inftM-cnces wliich he draws from it justi- fied by the facts as disclosed l)y the Russian documents aud by the Diary of Mr. Adams. Kttcurring to the treaty :>*■ I.S24, it will be remembered that Article I stH'ured to the respective citizens and subjects of the crion the rxiast mentioned in the pre- ce, for the pur|M>80 of lishing and trndiug witli the natives of the country. Xow it is apparent from the proceedings of the Nesselrodo confer- Mwe of July 21, 1S24, tlic J)iary of Mr. Adams, and tlie Explanatory Not« of Baron Tuyll, that the Uussian-American Company were not at all disturbed by tlic broad recognition in Article 1 of freedom of navi- gation and lishing throughout the whole of the Great Oceiiu. Their uneasiness had reference to the jiossibility that the treaty could be construed as giving the right for ten ye«rs to trade on the vimnt of sihfi'ia and the Aleution hlondH. The substance of the answer made by the Uussian (loverninent to the Hussian-Amcrican Company was that the arti<;lc of the treaty reserving the right to resort for ten years to certain '*' iut^irior seas, gulfs, iiarbors, and creeks" referred to the waters that washed the coast mentioned in Article III, which was the coast most in dispute b'^tween the two countries, and, therefore, did not authoriKc citizens of tiic United (States to trade on the coasts of Siberia and the Aleutian Islands wiiich were never in dispute, aiid over which Uussia for a long time, and without question, Inid exercise«l >!)^^ ',W north latitude. Nowhere in the documents referred to is there a suggestion that Kiis- sia iinderstooti the tnmty of 1824 as reserving to itself any peculiar or paiamouiit authority over the waters of the raciiic Ocean outside of the ordinary limit of territorial jurisdiction. The only part of any do; u nuMit implying that, in the judgment of the Hiissian authorities, the treaty liiul no reference to Bering Sea, is the statement iiicidentidly i n the proceedings of the Nesselrode Conference and in the Kxplaiiatory Note of Baron Tuyll, to the effect that the coasts of Siberia and thi; Aleutian Islands were not washed " by tiie Southern Sea" mentioned in Article II. But there.is uq.evidence in Mr. Adams's Diary that he assented t<.i this view. He waived any discussion of the question. 96 (; .i' .( ,' M It WHH iinpoHHJblo for him to loivu aHsentcd to the viowsof Haroii Ttiyll «fxc4;|)t iiiHMi th(! theory that hu rouogiiizetl tlio treaty of 1824 an haviiifr no n'fcreiicc at all to the wutera of tlx^ Bering He::, an part of the Great (><-«'sin coniuionly calletl the l*auiti(; Ocean or South Hea, a concliitiion at variant-iMvitii all that he contendeil for throaf^hont the negotiations ariHing tToni the Ukaneof 1H2I. In niyo|>inion, Mr. Blaine waH niiHtaken in Haying that Mr. Adams ex|>reH.se»L' inU'rpretation of the treity. He frankly statetl to Barun Tuyll that the treaty as made nuist, when ratitii**!, be carried out according to its propiu- inter|»retation and nieitning. He warned him that if, on the exchange of the ratifications, he should deliver a note of the, purport of that intormaily delivered, he, Mr. Adams, should tell him "that tlic cousti-nctioii of treaties sed to acqui- cKce in that of the Russian (lovernment as annonnc4Ml by him, could not In' binding npim tiu' ctmrts nor upon this nation." Baron Tuyll distinctly said that he undcrstoiHl the relations subsisting in Amer- ica between the exe«;utive and judicial departments of (}«iverumeut. So that the utmost that can be said is, that the United Stiites had notice, iiefort; tlic ratiic-ation of the treaty of LSJt, of the interpretation which Russia, possibly, at some future time, would place u|N>n the treaty, so far as it t'mbnu;cd the subject to which Baron Tuyll referred in bib Kxplanatxiry Note. Tiie material inquiry, however. Is whether (ireat Britain had any notice of what took pliu;e in the interview between Baron Tuyll aud Mr. Adams. This question must be answered in the negative. It is not claimed that tin; Kxplanatory Note of Baron Tuyll was ever pub- lished or In-ought to ligiit from the tiles of the State Dtspartmuut of the United States until it was produced i.i this c.ise. Nor is it pre- tendecument relied upon to show knowledge upttn the part of Great Britain of the interpretation placed by the Uuite.I States upon the treaty of 18-' I is the letttn- of Mr. Addington, the B Cish representa- tive at Wiishingion, written August 2, IS24, to Mr. (ieorge Canning. Mr. Addington said: "A convention concluded between this Government aud that of Russia for the settlement of the respective uUums of the mm 97 two nations to the intercourse with the nortli western conat of America ntached tlie Department of State a few days muw Tlie main iMiints determined by this instrument are, as far as I can collect from the American Secretary of State, (I) the enjoyment of a free and unre- stricted intercourse by each nation with all the settlements of the other on the northwest coast of America, and (2) a stipulation that no new settlements shall be formed by Russia stuith, or by the United States north, of latitude ul^ 40', The (question of the mare olamiim, the sovereignty over which was asserted by the Kmperor of Ilussia in his celebrated Ukase of 1821, but virtually, if not expressly, re- nounced by a subsequent deitlanition of that sovereign, has, Mr. Adams assurt^s me, not been touched upon in the above- mentioned treaty. Mr. Adams seemeear that any such protocol was ever, in fact, executed; at any rate, we have no evidence that it was executed. If this were a case between the United States and Itussia, involving the question as to wliether the treaty of 1824, in using the words " Pacific Ocean," covered tho waters of Bering Sea, )tlier considera- tions might i>ossibly arise than tliose which must determine that ques- tion under the treaty of 1825 with Great Britain. Here tlie inquiry is wliether Great Britain and Russia in that treaty referred to " Pacific Ocean" as including Bering Sea. And that inquiry can only be deter- mined, ap.irt from the words of the tro.ity itself, by what pivssod between the representatives of tho^t two countries during the negotiations resulting in the treaty between th;)m, of wtiicli the only evidence is found in the letters and official documents having refevence to those negotiations. Did Russia and Great Britain intend that Article I of the treaty of 1825, by wliich thosn puwers agreed that their respective subjects " shall not be troubled or molested in any part of the Great Ocean com- monly called the Pacific Oiiean, either in navigating the same or in fishing therein," should be applicable to Bering Sea? Did either Gov- ernment at the time the negotiations were opened, or when the treaty was concluded, regard Bering Sea as outside of the ocean " commonly lHy 99 ctillecl the PaciHu C)ce)in''t In vinw of the };rnun«lH upon whi(;h Oreat HritAiii, during netfotiutions extvndiu}fover tlii-i'c ycii^H, Hteadily reHted its objections to the Uktise of 1821, can it be preHunu'd or HuppoHod that she intended to htave that IlkaHC in force an to the waters of Ber- ing Sea and thereby recognize the right of ItuHsia Ut prohibit British vessels from approaching any of the coasts of that sea nearer tlian 100 Italian milesT It seems to me that tliese (lucstions must all bo answered in the negative. What waters, according to the undor-standingof Itimsia, at the date of the treaty, wore in fact embraced in the Pacific Ocean T Upon this point there is scanM>ly room for doabt. In the letter of Baron Nicolay, dated November 12, 1821, in which ho gave notice to the British Government of the Uknse of 1821, he states that the pos- sessions of Russia '' extend on tlie n:)rtliwest coast of America from the Bering Strait to tite fifty- first degree of north latitude, as well as on tlie coast of A-sia opposite and on tho adjacent islands, from the same strait to forty- five degrees," and that if " the Imperial Government had striistly the right to close to foreigners that iwrtion of the Pacific Ocean which is bounded by our possessions in America and Asia, a fortiori, the right in virtue of wliich it has just adopted a much less restrictive measure should not bo called in question." In the letter, alreatly referred to, of February 28, 1822, in which M. Poletica stated fully the grounds upon which Russia based the Ukase of 1821, he stated that the first discoveries of Ituasia on the northwest coast of America went back to the time of Peter I, and belonged to the attempt made towards the end of his reign '< to find a passage from the Icy Sea into the Pacific Ocean"; implying that the Icy Sea, which is now known as the Arctic Oi;ean, was connected with the Pacific Ocean. In the same letter, in which lie describes the limits assigned to Russian possessions by the U!:ase of 1821, M. Poletica states that 'res of thu bweon that ionveutioii red for the ritatn con- the North I in that ng parties aavigatiou ng the «ea nolested in »aid ocean, understood subjects of IS fi'om the the British Excellency :rack Count assumption AS the line the naviga As to the new. But inder wUicU lie territorial le possessetl, Itraits. Tlie sum may not ily the same of wfiich it ) of Bering > a thing not be excluded, skill and sci- ence of our seamen has been and is still employed in enterprises inter- esting not to this country alone, but to tiie whole civilized worhl. Tlie protection given by tlif invention to the American coasts of each power may (if it is thought necessary) be extended in terms to the coasts of the Russian Asiatic territory; but in some way or other, if not in the form now prescribed, tlia free tmvigation of Bering's Straits and of the seas beyond them must bo secured to us." Britinh Caae, Vol. 2, App. 65. Of course Mr. Canninjr , when Jie framed the above draft of a conven- tion regarded the waters immediately south of "the sen witliin lier- ing Strait" as part of the Pacific Ocean. The same draSt stiow.t that lie contemplated the settlement of the rights of the two nations on tlie entire coasts and in all the waters south of Bering Strait. And such evidently was the purpose of Bassia, which offered a conn tur-/>r»/(!< of a eonvention, to settle, "according to tlie principle of mutual accoiuino- (lation, the boundary between their possessions and settlements on the northwest coast of America, as well as divers questions relating to (;oinmerce, navigation, and fishing by their respective subjects in the Pacific Ocean." After defining the line of demarcation between tliu ]>ossessions of the two high contracting parties on the northwest coast of America and the adjacent islands, and >M;cortling to the vessels and tlie subjects of the two powers the right in the possessions of the two powers, as defined, for ten years '< to freely frequent the gulfs, harbors, and creeks in those parts of the islands and of the coast which are not oi;cupied by either Russian or English settlements, and there to engage in fishing and commerce with the natives of the country," the Bu8»-.ian <-oiiuter-projet proceeds: "Art. IV. In f\iture no settlement shall be tbnned by His Britannic Majesty's subjects within the limits of Russian possessions set out in Articles I and 11, and, in like manner, none shall i)c formed by the subjects of His Majesty the Emperor of all the Russias ciitside of the said limits. Art. V. The High Contracting Parties stipn- liite moreover, that their respective subjects will have the right to ficely navigate the whole extent of the Paeijie Ocean, both toward* the north and south, without any hindrance whatever, and that they will e:iioythe right of fishery in the high seas, but that this latter right shall never be exercised within a distance of two marine leagues from the II >itst or possessions — whether Ru^^sian or British. Art. Vf . His Majesty tlie Emperor of all the Rassias, being anxious to give a special proof of Itis regard for the interests of His Britannic Mi^jesty's subjects, and to 1 1 t 102 . ro:idor imn-o tiRoriil tlio Nacc^.tH of tlio oiiterprUcs wliiirh will oventaally reHiiltin the ry ot'ii piiHMiiffo on the iiortli of thv, Aiiiorican <*oiiti- iKMit, coiiHuiitH tliiit the IVuiMloiii of iiiivi|;iiti(>ii muiitioiiiMl in Mim preced- ing iirtirJu hIihII iipiily, under tliu ••anie conditiouH, to Bering Strait, and to the. nea Mitaiitetl tit thr northward of mid ntrait. Art. VII. Any UnHHiiin or British Hliipn niivigiiting the Vacifio Ocean and the gea above mentumvd thitt may be obliged, }>y Htorins i>r by \r(Mit from this connt;0{ that Uussia '"^gardeil the *'sua situated ti> the northward" of Bering Strait, that is, the Arctic Sea, as being sojiarated from the PaiMflc Ocean only by the waters of that Strait, and therefore that what is now called Bering Soa was regarded by the Government of that country as part of the Pacific Ocean! If Russia did not then regard Boring Sea as a part of the Pacific 0(;ean, it woidd follow that the privilege given by Article VII of the C4janter-pr(>;e^ to "Uussian or British ships navigating the I'acific Oce^in and the sea above i.entioned''' (the sea north of Bering Strait) to take temporary refuge, in case of storms or damage, in the res{)ective ports of the two countries, could not be exercised by a British vessel navigating Bering Sea. A purpose to make such a dis tinctiou ought not to be imputed to Uussia. It ought not to be sup- po.Hed that liussia intended to assent to the navigation by British vessels of Bering Strait and the sea to the northward of it, and yet restrict the right of navigation in the waters immediately south of Bering Strait. This supposition is entirely inconsistent with the d(M;laratiou in the cAymitarprojet that tlie treaty which the two govern- ments were seeking to negotiate htul in view the settlement of ques- tions relating to commerce, na '. 'ion, and fishing by their respective subjects " in the Pacific Ocean." The docnmentiiry evidence to which we have referred all tends to show that Great Britain was chiefiy concerned about the assumption by Rus- sia, in the Ukase of 1821, of exclusive dominion over the Pacific Ocean, and that it regarded the question of territorial limits on the continent of America as subordinate and relatively unimportant. It earnestly sought the re{)eal of an edict that asserted ''exclusivcjorisdiction over lii. \ 108 nil (M*oAii of unmeaHurtMl extent." It withdrew it8 offer to oHtabliHh "(ill exuliiHive tlHliery of two Ictift'i^t* '■'"in the (M>A8tH^ of the reoixH-tive (■-oiintrieM, uiiil HiiK){eHt<>(l tliiit one league t4> each ]H»wor on itH own coaHtH, UH revogiiized by the law of iiations, would Hiittk-o and wuh all that Hhe would admit. Not long after thin letter of December S, 1H24, the treaty between Russia and Great Britain, in the fo'iii alwve given, was signed. Mr. Stratford Canning, in tiio lettoi .1 "-min^Mr. (ieorgo ('aiming of that fiu^t, said, among other thingH: > t'ith respitct to Bering BtraitH I am happy to have it in my i)ow<'> to assure you, on the joint authority of the Russian ])leiiiix>tent' es, that, the Kioikeror of Russin lius no intention whatever of maintaining ny oxriiisive claim to the naviga- tion of those traitH, or of the se-; ■« n > li of them." Is it to be sii[>poH(>«l tliat the British pleni^HitoiiUary (indui'sto(Ml RuHHia as asserting or reserving exclusive rights art hf the volnminous correspondence preceding the treaty of 1825 is there one word that expressly, or by necessary implication, indicates any pur- ]>ose tm the part of Russia to demand, or upon the part of (}reat Britiiin to concede, that the Ukase of 1821 should remain in force as to Bering Bea, as distinguished from the North Pacific Ocesvii. I have been a, tble to reach that onclusion. Nor can tiiat position be sustained consistently with the position taken by Russia itself after 1825 as to the neope and effect of the treaties of 1824 and 1825. The evidence is conclusive that Russia — whatever may have been em- bodied in the proceedings of the Nessdrode conference after the treaty of 1824 was signed — understood both treaties to have annulled the Ukase of 1821 in it« application to foreign vessels, so far as to secure M — mxi it m isff' m^^mmmimmmm mmmsm ^ m^mmmm * ml I., ,11 .n 4, I* I 104 to the citi/.eas of Great Britain and America entire fresdom of nAvi- gatiou and rij^lits of Ashing throagliout the whole of Bering Sea, out- side of territorial waters. In Tickmeuiof '8 " Historical Review of the formation of the Russian American Company and their procoeding.s to the prosenttime", published at St. Petersburg in 186:3 (Part I, pp. 130-139), it is said: "In 184'J Etoliu, governor of the colony, informed tiie company that in the course of hiii tour of inspe^ition he had come acro^^s sover.il Americati ships. Although circumstances had prevented his communicating with them at the time, he liad reason to believe that they were whalers. In cor- roboration of this iie stated that for some time he hitd been receiving reports from various parts of tlie colony of the appearance of American whalers in tlie neighborhood of the harbors and shores of the cr>lony. Amongst those reports the most notewortlty was that of Oaptain Kad- nikoff, the commander of the company's ship Nasliednik Alexander, who stated that, on a voyage from Sitka to Okhotsk, he had hailed a whaler dying the American flag. The tnaster I.: formed him that he had come from the Sandwich Islands in company with thirty other sliips to whale on both sides of the western e.vtremity of the peninsula of Alaska and the eastern islands of tlie Aleutian group belonging to that peninsula, and that as many as 200 whalers were coming from the United States the same year. Captain Kadnikofif' also ascertained from the master that in 18 tl he h;ict whaled in the same waters in company with fifty other ships, and that his ship secured thirteen whales, from which 1,(J00 barrels of oil were obtained." British Case, Vol. 1, App. 40. In reply to an application by the Russian American Company to pre- vent the Americans from Ashing in the waters of the colony, the Rus- sian foreign offlw, in 1843, said: "The claim to a tanre clamum, if we wished to advance sucli a claim in respect to the northern part of the Pacific Ocean, could not be theoretically justified. Under Article I of the convention of 1824 between Russia and the United States, which is still in force, American citizens have a right to fish in all parts of the Pacijip Ocetin. But under Article IV of the same convention, the ten years' period mentioned in that article having expired, we have power to forbid American vessels to visit inland seas, gulfs, harbors, and bays, for the purposes of fishing and trading %ith the natives. That is the limit of our rights, and we have no power to prevent American ships from taking whales in the open sea.'" Letter from the Department of Manufactures and Internal Trade, December 11, 1843, No. 5191, Dielo. Arkh. Kom., 1842, godn, No. It, str. 7. British Case, Vol. 1, App. 40. 105 . ^.gaiQ, in 1843, the question was presented to the Bussian Foreign Office whether the claim of foreigners to take whales in Russian waters ought not to be limited by a line drawn at a distance of at least three leagues, or nine Italian miles, from the shores of the colony. The Rus- sian Foreign Office, in 1843, said: "The fixing of a line at sea within which foreign vessels should be prohibited from whaling off our shores would not be in accordance with the spirit of the convention of 1824, and would be contrary to the proviaiona of our convention of 1835 with (treat Britain. Moreover, the adoption of such a measure, without preliminary negotiation and arrangement with the ctS'.er i>owers, might lead to protests, since no clear and uniform agreement has yet been arrived at among nations in regard to the limit of jurisdiction at sea." liritiah Case, Vol. 1, App. 41. Subsequently, in 1846, the governor general of Siberia, in conse- quence of what were regarded as new aggressions on the part of whalers, expressed the opinion tliat, in order to limit the witaling operations of .foreigners, it would be fair to forbid them to come within 40 Italian ' miles of the Russian shores, the i)orts of Pctropavlosk and Okhotsh to be excluded, aiiid a payment of 100 silver roubles to be demanded at those ports from any vessel for the right of whaling. He recommended the employment of a cruiser to watch foreign vessels. But the Russian Foreign Office, in 1847, said : " We have no right to exclude foreign ships /rom that part of the Oreat Ocean which fteparaten the eantern shore of Siberia from the northwestern shore of America, or to make tlie pay- ment of a sum of money a condition to allowing them to take whales." British Case, Vol.. 1, App. 41. Of course, the waters here referred to included the whole of Bering Sea, and the language used by the Russian Foreign Office leaves no room to doubt that Russia regarded Bering Sea as part of the "(jreat Ocean." Nor can we suppose that Itussia, after the treaty of 1825, re- garded the prohil>ition in the Ukase of 1821 against foreign vessels approaching its shores nearer than 100 Italian miles as in force against tlie subjects of Great Britain, or against the people of any nation at Ihe time of the cession of 18(17 tM America. It may bo said that the official declarations of the Russian Foreign Office as to tlie spirit and meaning of the treaties of 1824 and 1825 liad reference to the hunting of whales and not to the hunting of fur seals. But there is no ground to suppose that foreign vessels employed in hunting whales in Bering Sea had, in the judgment of the liigit I \ ■>?- — — -m i f trn m i : ; !,/ Ill ¥ ^^ I; 106 • contracting parties, any less rights than those employed in the hunt- ing of fur seals in the same waters. There is no trace in the record of any purpose upon the part of itussia to claim larger rights in the open watttrs of Hering Sea iu respect to the hnnting of fur seals than in respect to the hunting of whales. Iji fact, prior to 1807, there was no such thing known as the hunting of these fur seals in the high seas, except, pe'haps, a few were taken by the natives along the coasts with spears and harpoons. There is one argument, in support of the contention that " Pacific Ocean" iu tlie treaties of 1824 and 18J3 do not include Bering 8ea, which deserves examination. It is, that upon a vast number of maps pub- lished prior to 1823 the waters north of the Aleutian Islands and be tween Alaska and Siberia were designated separately from the waters south of those islands, and that if liussia and Great Britain intended that the ti'eaty of 1825 should embrace the waters of Bering Sea some reference would have been made to that sea in the form of words used on maps designating it as a separate body of water. To Mr. Blaine's letter of December 17, 1890, is attaciied i list ()f 105 maps, covering the period from 174^) to 1829, showing that on those maps the waters south of Bering Sea arc variously designat^id as the Pacific Ocean, Oct'au Pacidquc, Stilles Mecr, the lirreat Ocean, (Jrand Mer, Grosser Ocean, the Great South Sea, Grosser Sud-Sea, Nortli Pacific, Mer du Slid, etc. On those maps the waters north of the Aleutian Islands are as a general ruhi designated si>ecially, sometimes by the words "Sea of Kainschatka," and at other times by the name of "Berilig Sea." But, upon examining those and other maps, it appears tliat, in most instances, the words ''Seaof Kainschatka" and "Bering Sea" are oft!ean," "(h-eat South Sea," etc., lower down on the map, as to justify the conclusion tliat the former body of water was regarded as a part of the latter. This view is supported by the fact that on many charts, and in many geograt)hie.s, encyclopedias, and other publications prior to and since 1825 (referencei to some of which are given in the margin*) Bering "Morte'i American (i-e.tjnipky, Ltnnlon, 1794, p. 650: "Ruwiau Empire. This iiiiiimiiHi! eiu]iir(- Htrotclies from the Mitltic 8u:i and Sweden oii the w«Ht to Kmn- Huhatka iviid the I'uuillc Ocuiiu on the nitst, ivnd from thii Frozuii Ocean on the north to ahont thn forty-fourth dojfreo of latitude on tlio south." Malham'H Xnral Gate.teer, London, ITO'i, Fol. 2, p. 4: " Kamsohatka Sea is a lari[e branch of the Oriental or North Paoifto Ocean." K 107 Sea was often referred to as coustituting a part of the Pacific Ocean or Soutli Sea, or the North Pacific Ocean. These facts exphvin how it was tliat tlie treaty of 1824 described tlie Great Ocean, on wliich tliere Hhouhl be freedom of navigation and fisliing, as tlie body of waters . o')l : "2d. L'Oci^an paciti- que, la iner du sud, on la grand mer, qui est situde ontre les cAtes orieiitales d'Asie, el oicidontales d'Amdrique." (The PaciHt Ocean, the South Sea, or the UrcatSea, r.'hich is situated between the coasts of A'sia and the western coasts of America.) Encyclopedic du Dix-Neuvifsme Si(5cle (Eiicyclopa'dia of the lOtli Century), Paris, Vol. 17, p. 42!): Oo^an Paciftqiie on mer du sud, appelcu aiissi grande Mer outre rAmi5rii[ue et l'.\sie, eutrc le cei-clc |>i)lairn du iii>rasts and islands named in that Ukase. But, pending the negotiations to which that Ukase gave rise, Russia voluntarily suspended its execution, s^ fur as to direct its officers to restrict their surveillance of foreign vessels to the distance of cannon shot from the shores mentioned, an other countries. To the fourth. — All the rights of Russia as to jurisdiction, and as to the seal fisheries in Bering Sea, Ciu^t of the water boundary in the treaty between the United States and Russia of March 31), 1807, passed, under that treaty, unimpaired to the ITnited States. 1 TIIK BI«]HT OP rROPKRTV ANMKRTKD BY TIIK ITNITRD HTATKM IN Tilt: PRIMfl.OP IIKRD OP MKAI.M, ANU IVM RKJHT, %t'KKTIIKR AM OWNBR OP arUK HKBD, OR MimPI.Y AM OWNKR OP TIIK Pl'R MKAl. ilVBIJMTBV ON THE PRIBII.OP IHIiANDM, TO PBOTKCT TIIK MBAI.a AOAINMT PKI.AOIC' MKAI.INO. I come now to the most important aud interesting question ]>reseiited for determination, namely, that involved in the fifth point of Article VI of the Treaty: "ifa« the United Staten any right, and if no, what riyht of prote-ution or property in the furneah frequenting the inlands of the United States in Bering Sea when such nealn are found outside the ordinary three-mile limitt " It is necessary to a proi)er understanding of this (luestion, in its bearing upon the general subject of the preservation of this race of ani- mals, that we recall the facts (never before so fully developed as in the evidence now adduced) touching their liistwer of the Secretary of the Treasury to limit the right of killing, if that should become neces- Hary for the preservation of the seals, with such proportionate reduc- tion of the rents reserved to tlie Government, as was right and proper. The Secretary was required to lease for the term of twenty years, to proper and responsible parties, for the best advantage of the Govern- ment, the native inhabitants, their comfort, maintenance, and educa- tion, as well as to the interest of the parties previously engaged in the trade, and the protection of the fur seals, the right to engage in the business ot taking fur seals on the islands of St. Paul and St. George, and to send a vessel or vessels to those islands for the skins of the seals; taking from the lessee or lessees bond with sufficient sureties in the sum of not less than $500,000, conditioned fo. the faithful observ- ance of all the laws of Congress and of the regulations of the Secre- tary of the Treasury, touching the subject matter of taking ihr seals, and disposing of the same, and for the payment of all taxes and dues. It was further provided, that at the end of the lease, other like leases could be made; but no persons other than American citizens were permitted to occupy the islands or either of them, for the purpose of taking the skins of fur seals, nor any vessel allowed to engage in taking such skins; any lease made by the Secretary of the Treasury being subject to forfeiture if it was held or operated, directly or indirectly, for the use, benefit, or advantage of any person other than American citizens. These and other provisions having for their object the utilization of these animals for purposes of revenue av^. commerce, and their pro- tection against indiscriminate siaughl r on the islands, or in the adjacent waters, were preserved in the Revised Statutes of the United States of 1873, §§. 1964 to 1976, inclusive. 11492 8 m ! 114 By another act of Congress, approved March 2, 1889, it was provided that section 1950 of the Ucvised Statutes, prohibitiii;; the killing of any otter, mink, marten, sable or seal, or other fur-bearing animal, within the limits of Alaska Territory or in the waters thereof was declared to include and apply to all the dominion of the United States in the waters ot Bering Sea; and it was made the duty of the President, at a timely season in each year, to issue bis proclamation and cause the same to be published at eaoh United States |>urt of entry on the Paritlc (H>a8t, warning all persons against entering those waters for the purpose of violating the provisions of that section. 4. The Pribilof herd is found, en masHe, every year on the islands of St. Paul and St. George. They remain there about four or five mouths. Much longer time intervenes between the first arrival of some, and the depavture ftom the islands of those who last leave them (or thesoiisou. The period during which the herd abides on those islands, is <;alled the breeding season. They return there regularly tor the purpose of breeding and rearing their young, and of shedding and renewing their coats of fur. 5, The breeding males, called bulls, arrive in the early part of May or by the middle «>f tliat mnitli. K i(;1i bull, immediately after coming from the sea, establishes himself upon the rocky beach, appropriating as much space a» will be needed for his female companions after they arrive. The non-breeding males, or bachelors, arrive during the same month, and take position, substantially in a body, and, as a general rule, in the rear of the spaces occupied by the bulls. Sometimes the bachelors occupy spaces near the water, but separate from those occupied by the bulls and their female companions. Early in June the female seals, called cows, begin to emerge in bodies or droves Itom the sea, and to enter the spaces provided for them by the bulls. By the 10th of July substautially the entire herd is established on the islands. Each bull appropriates for the season at least fifteen or twenty female seals. Within a few hours, it may be, always within a few days, after reach- ing the islands, the mother seal, impregnated during the breeding season of the previous year, gives birth to a single pup, the period of gestation being eleven or twelve months, the pups born being about equally divided between the sexes. The pups are conceived on the islands during the breeding season. Cohabitation, for any efleotive purpose, in the water, is impossible. The females appear to' have an f lift nnerring instinct ai4 to the time when the periml of gestation will end. Ttie eowa, after being delivered of tlieir pnps, remain for a few weeks with the bulls by whom tboy have been appropriated. Tlioy go from the islands into tlie sea as often as natnre suggests to be necessary for tlie purpose of obtaining flsli for food by which tliey are nourished wbile suckling their young. A cow, while nursing its pup, often goes long distances tlt-om the islands in search of tish. Gapt. Hliepard, of the United States Marine service, who examined the skins taken from sealing ves- sels soiled in 1887 and 1880, over 12,(K)0 in number, two thirds or three- fourths being the skins of females, says: "Of tlie fumules taken in the Pacific Ocean, and early in the season in Bering Sea, nearly all are lieavy with young, and the death of the fonmle necessarily causes the death of the unborn pup seal; in fact, I have seen on nearly every vessel seized the pelts of unborn pups which had been taken from their mothers. Of the females taken in Bering Sea nearly all are in milk, and I have seen the milk come from the carcases of dead females lying on the decks of sealing vessels which were more than 100 miles from the Pribilof Islands. From this fact, and from the further fact tliat I have seen seals in the water over 150 miles from the islands during the summer, I am convinced that the female, after giving birth to her young on the rooker- ies, goes at least 150 miles, in many cases, from the islands iu search of foml." liobert H. McManus, a journalist of Victoria, who had devoted some attention to the sealing industry, referring to a catch of seals in Bering Sea when he was present, says that over three-fourths of that catch were cows in milk. This, he says, at a distance of 200 miles from the rookeries, shows that the nursing cows-ramble all over the Bering Sea iu search of their chief food, the codfish, though these are chiefly found on the banks along the coast of the Aleutian Islands. In the Canadian Fisheries Be^iort of 1886, it is stated that (»f the seals taken that year, " the greatest number were killed in Bering Sea, and were nearly all cows or fema7o seals;" and in the report of 1888, that •' over 00 per cent of the entire catch of Bering Sea is made up of female seals." The record is full of similar evidence. 6. Upon returning from her search for food the mother seal hunts up her pup, and will reftise her lailk to the pup of any other cow. An intelji- gent witness thus describes the general habits of the mother seal and its pup: "The cows appear to go to and come from the water quite fre- quently, and usually return to the spot or its neighborhood, ^"rhe^e they leave their pups crying out for them and recognizing their individual ^^i^ ipp 'W llf^ 116 crieH, though ton thonannd around all together should tilent at once. They quickly ningle out their own and attend tlieni. It wouhl be a very unfortunate niuttt^r if the inotliurH couhl not identify their young by Honnd, Hince their piips get t^igetlier lilte a great swarm of Imh>8. apread out upon the ground in 'po<^ v«ater where she liaH Iteen to witah, and i>erliapH to feed for th<^ List day or two, about where Hhe thinks her pup should be, but misscH it, and tlntiH insttMul a swarm of pups in which it h>M been iucorimrated, owing to itH groat fondness for society. The mother, without at fi entering into the crowd of thou- sands, calls out just, as a Hhee|> do' for her lambs, listeuH, and out of all the din she — if not at tii-st, at tli<- t;nd of a few trials— recognizes the voice of her oft'spring and then advances, striking out right and I' ;, and over the crowd toward the position from which it replies; but if ihe pup at this time happens to be asleep she hears nothing from it, even though it were close by, and in this case the eow, -^fter (tailing for a time without being answered, curls hors< 1f up sind takes a nap, or lazily basks, and is most likely more snccessfnl Avhen she calls again." Another witness of large experience sjiys: "As already stated, the females now mostly spend their time in the water, returning on shore only to suckle their young as they require food. On lauding the mother calls out to her young witli a plaintive bleat like that of a sheep ciUling to her lamb. As she approsiches the mass several of the young ones answer and start to meet her, re8i>onding to her call as a young lamb answers its parent. As she meets them she looks at them, touches them with her uose as if smelling them, and passes hurriedly on until she meets her own, which she at once recognizes. After caressing him she lies down and allows him to suck and often falls into a sound Bleep very quickly after." If the mother seal is killed while out at sea iu search of fish for food, her pap, left behind on the islands, and requiring the milk of its mother for eight weeks or more after its birth, will die from starvation. This fact is placed beyond dispute by the evidence, and is not, I think, seriously questioned. The pups do not take to swimming naturally. They are enticed or forced by their mother, from time to time, into the water and taught (o SMrim. K a pup, by accident, is born in the sea, it will immediately 117 oink and be drowned. As already Rta\'««l, the race it both conceived and comes into exiatence on laud, and iVom the necesHJtieaof ita physi- (!ul nature niiiHt abide upon laud during several mouths of the year. 7. In the latter part of September or early in October, the breeding Huasou having closed, the pups having learned ti> swim, and the ice around ttie islands increasing the difficulty of going into the sea for fish food, the lierd bvgins to leave the islands, in squads or bauds of different sizes, procueding in a southerly and southeasterly direction through the middle passes uf the Aleutian Islands into the North l*iu;iflo Ocean soutli of those islands, where they get into the warmer water of the Japanese current. Duiing the winter months many of the seals are seen off tlie coasts of CaMfornia and Oregou. The balls do not go so far south, and do nut « the one hundred and seventy- wjmumi^ ^w ^rmm \\\ ■! •- !|f.i w 1 I! ri 120 second meridian of weat longitude, while Attn Island, on the one hun- dred and seventy-third meridian east is never visited by young seals, and theriefore lies between the regular autumn migration routes of the seals going from the Pribilof and Commander Islands respectively." Sec%. 197, 198, 453, 454. 10. The herd habitually resorting to the islands of St. Paul and St. George is the same that has resorted there in the spring, summer, and fall of every year for the past century and more without any change whatever in their habits or in their migra- tion routes. Since the discovery of the islands, the seals frequenting them have never resorted, for any purpose whatever, to other coasts or lauds. This, no doubt, is due to the fact that they find on the Pribilof Jslands, and nowhere else, the isolation required for the breeding season, as well as the climatic and physical conditions necessary to their life wants, among which conditions are an uniformly low temperature and an overcast sky and foggy atmosphere that serves to protect them against the sun's rays while they remain at the rookeries during the long summer season. Whatever may be the reason for their never having landed upon any other shores, it is indisputably shown that they have regularly resorted to those islands as their breeding grounds for a period so long that the memory of man runneth not to the contrary. And the contrary is not asserted. 11. Prior to 1883 or 1885 the taking of these fur seals at sea was exclusively by Indians or natives inr.ide territorial waters, at any rate, quite near the coasts. Tliey employed for that purpose only small canoes and harpoons or spears. Their catch, however, has never been large in any year, and lias not materially att'ected tlie industry con- ducted at the islands of St. Paul and St. (Jcorge, nor apparently diminished the number of the herd. But in 1883 a schooner manned by hunters skilled in taking seals entered Bering Sea and returned with, more than 2,000 seals. This stimulated the business of taking tliese animals in tlie open waters beyond tlie territorial jurisdiction of the respective governments. In 1885 firearms were first used in hunting seals. Large schooners or vessels now go out into the ocean in the route traversed by the seals and send out small boats manned by hunters with rifies or shotguns. Ordinal 'ly, only the head of the seal can be seen as it moves through, or lies asleep, in the water; those thus asleep being, as a general rale, mother seals heavy with young, who, being dis- ^_^ 121 abled by their condition from making rapid movements, are easily approached and killed. It is indisputably shown by the evidence that at least 75 per cent of all seals shot by pelagic sealers and actually secured are female seals, the larger x)art of whom are far advanced in pregnancy when so taken. As soon as the mother seal is taken by pelagic sealers, her body is opened and the unborn pup thrown into the sea. It is also shown that large numbers of seals, tliat are shot at and wounded or killed, sink nnO. are entirely lost before the hunter can reach them with his small boat. The number so lost varies according to the skill of the hunter in using fire arms and the implements carried for the puriwse of securing the seal that has been wounded or killed, before it sinks. But, making a fair average of the per cent given by witnesses on both sides, it is ee;iain that, in addi- tion to the seals actually taken by hunters using fire arms, not less than 25 to 40 per cent of all seals wounded sink before they are reached by the hunter, and are entirely lost. In pelagic sealing there can be no selective Tcilliwi so far as sex is concerned, for it is agreed that a hunter can not tell ichether the seal at ichich he shoots in the water is of the male or female sex. Such an attack npon the breeding females, if continued for a few years, will, of co^^rse, result in the ex- termination of this polygamous race. The slaughter of the female seal not only involves the loss of the mother and its unborn pnp, but, as Mr. Blaine well said, " the future loss of the whole number which the bearing seal may produce in the successive years of life. Tlie destruc- tion which results from killing seals in the open sea proceeds, therefore, by a ratio which constantly an(V rapidly increases, and insures the total extermination of the species within a very brief period." Besides, in the long run, the killing of a female which lias not yet borne young, or which is too young to have borne many pups, is more desti-uctive than to kill one soniewhat advanced in years. The largest number of vessels engaged in liunting these fur seals on the high seas outside of territorial waters in any year previous to 1S86 was 16. Tiie number increased in 1880 to 34, in 1887 to 47, in 1889 to 68, in 1890 to 01, in 1801 to 115, in 1802 to 122. The catch, in the open sea by pelagic hunters of seals belonging to the Pribilof herd has steadily increased for ten years past, so that in the North Pacific Ocean, south of tlie Aleutian Islands, it amounted to 68,000 in 1801 and at least 70,000 in 1892, the morfu* ll j I I '• ' 122 Vivendi for those years excluding pelagic sealers only from Bering Sea. . During the breeding season of 1868, before the United States had established regulations for the taking of fur seals at the Pribilof Islands, and before its authorities had acquired any knowledge as to the necessity of imposing restrictions upon tlie number to bo killed for commercial purposes, seal hunters took on those islands alone about 208,000 of all ages and sexes. Tlie evil was, of course, remedied as soon as the act of 18DS w.vs passed. Prom 1869 to 1871, inclusive, the aver- age number killed annually on the iislauds for commercial purposes (taking for this estimate the report of the British commissioners) was «i!),w53, aud ♦'■•oni 1872 to 1889, inclusive, 98,211, exclusive, in each period, of the pups killed by natives for food and raiiueat. In 1890, when the disastrous eflfects of pelagic sealing began to ue more distinctly felt, only 20,995 young males suitable for taking could be found on the islands, and in 1891 only 12,071, including the 7,500 allowed by the modus Vivendi of thai year. By the modus vivendi of 1892 only 7,500 were allowed to be taken on the islands. In the present year, under the oi)eration of the latter arrangement, only 7,500 can be taken by the United States or its licensees on the islands, while pelagic sealers are at liberty to take all they can in the North Pacific Ocean. It is not doubted that they will take at least 80,000 this season in those waters. 12, The Commissioners appointed by the United States and Great Britain agree that " since tlie Alaska purchase a marked diminution of the seals on, and habitually resort'ng to, the Pribilof Islands, has taken place: that it has been cumulative in effect, and that it ic the result of excessive killing by man," They also agree that "for indus- trial as well as for other obvious reasoFis, it is incumbent upon all nations, and particularly those having direct commercial interests in fur seals, to provide for tlu'ir proper protection and preservation." i;^ But for the protection given to these seals while on the islands of St, Paul and St. George, first by Itussia, and, subsequently, by the United States, the entire herd, frequenting the Islands of St. Paul and St. George since the discovery of those islands (how much longer can not be now known), would long ago have been destroyed by raiders and seal hunters. If the i-are, supervision, and selfdenial practiced by the United States on the islands were withdrawn, the race would be swept out of existence within a very few years. It is common knowledge that at the close of the last century fur seals mi 123 of a somewhat di£Perent sitecies ftom the Northern Fnr Seals, but having most of tlie sanie characteristics, could be seen in numbers almost incredible on numerous coasts and islands in the Southern Ocean, off the coasts of South America. Acciording to the concur- rent testimony of navigators i :d nnturnlists, all these herds in the Moathern seas have been annihilated, or so reduced in numbers that it is no longer worth while to visit them, "owing," to use the language of Sir William H. Flower, the distinguished head of the British Natural History Museum, "to the ruthless and indiscriminate slaughter carried on by ignorant and lawless sealers, regardle.ss of everything but imme- diate profit." We have the authority of the same eminent naturalist for saying: "The only spot in the world where the fur seals are now found in their original, or even increased, numbers, is the Pribilof group, a circumstance entirely owing to the rigid enforcement of the wise reg- ulations of the Alaska Commercial Company. But for this the fur seal before now would have been added to the long lis£ of animals extermi- nated from the earth by the hand of man." Fifty-second Congress UniUd States, First session, Senate Ex. Doc. No. r>5, pp, 96-97. Dr. Philip Lutley Sclater, ,of the Zoological Society of London, in a recent article to which our attention hp.3 been called, says, substantially i n conformity with the evidence before iis : " In former days South Africa, Australia, and South America all supplied seal skins for the market, derived either from the shoi-es of the continents themselves, or from the adjoining islands, to wliich the fur seals resorted for the purpose of breeding and bringing up their young, ilut the Antarctic fur seal trade is now practically extinct, owing to the inalscriminate slaughter of these animals, which commenced at the end of 'he last century and w.as con- tinued until the reduction in their numbers rendered the trade altogether unprofitable. In a single year, it is snid that 300,000 seal skins were taken from the South Shetland Islands, and upward of 3,000,000 are stated to have been carried off from the island of TVIas-a-fuero, near Juan Fernandez, in the short space of seven years. In fai-t, the breepened in the Southern Ocean may serve as a warning to us. Less than a century ago these amphibia [fur seals] existed there in countless lierds. In 1808, when Fanning visited the islands of South Georgia, one ship left those shores carrying away 14,000 seal- skins behmgiiig to the species Arctncephulnx Au8trnlis. lie himself obtained 57,000 of them and lie estimated at 112,000 the number of these animals killed during the few weeks the sailors spent there that year. In 1822 Weddel visited the islands and he estimated at 1,200,000 the numlter of skins obtained in that locality. The same year 320,000 fur seals were killed in the South Shctlands. The inevitable conse- quences of this slaughter were a rapid decrease in the number of these animals. So, in spite of the measures of protection taken during the la«t few years by the governor of the Falkland Islands, the seals are still very rare, and the naturalists of the French expedition of the Romanche remained foi nearly a year at Terra del Fuego and the Falkland Islands withtmt being able to catch a single specimen. It is a source of wealth which is now exhausted. It will be thus with the CallorhinuH tirsinux in the North l'a(;itic Ocean, and it is time to insure to these animals a security which may allow them regular reproduction. I have followed with much attention the investigations which have been made by the Government of the United States on this subject. The reiwrts of the Commissioners sent to the Pribilof Islands have made known to naturalists a very large number of facts of great scientific interest, and have demonstrated that a regulated system of killing may be safely applied in the case of the^e herds of seals when i I- y '„; 126 }' f. J i r il l;/ there ia a superfluity of maleH. What might be called a tax on celi- bacy waa applied in this way in the moat aatiafactory manner, and the indefinito preservation of the species would have been aaaured if the emiffrantH, on their way baek to their breeding placen, had not been attacked and pursued in every jcay." U. S. Case, Vol. 1, App. 419. The record contai^ia the opiiiioii.4 of other acientitio gentlemen of high repute, in answur to written inquiriea on thia subject made by Prof. M'crri'im, of the United Slates Department of Agriculture, and based upon a full and accurate account of seal life. Dr. Nehring, I'rofeaaor of Zoology in the Royal Agricultural College of Berlin : '' I am like yourself of the opinion that the remarkable decrease of fur seals on the rookeries of the Pribilof Islands which has, of late years, become more and more evident, is to be attributed mainly, or perhaps exclusively, to the unreasonable destruction caused by the seal-hunters who ply their avocation in the open sea. The only rational method of taking the fur seal, and the only one that is not likely to result in the extermination of this valuable animal, is the one which has hitherto been employed on the Pribilof Islands under the super- vision of the Government." U. »S'. Case, Vol. 1, App. ISO. Prof. Balvadori, of the Museu Zoologico, Turin, Italy: "No doubt free pelagic sealing is a cause which Will act to tlie destruction of the seal herds, and to that a stoi> must be put as soon as possible." U. S. Case, Vol. 1, App. 122. Prof. Vf»n Schreuck, of the Imperial Academy of Sciences, St. Petersburg: -'lam also persuaded that pelagic sealing, if pursued in the same manner in future, will necessarily end with the extermination of the fur seal." U. S.-Case, ^ol. 1, App. 422. Prof. Giglioli, director of the Zoological Museum, Itoyal Superior Institute, Florence, Italy: "In any case, all who are competent in the matter will admit that no method of capture could be more uselessly destructive in the case of Pinuipedia than that called pelagic sealing; not only any kind of selection of the victims is impossible, but it ia admitting much to assert that out of three destroyed one is secured and utilized, and this for obvious and well-known reasons. In the case of the North Pacific fur-seal, this mode of cstpture and destruction id doubly to be condemned, because the destruction falls nearly exclu- sively on those, the nursing and pregnant females, which ought on no accouut to be killed. • • • i quite agree with you in maintaining that unless the malpraetice of pelagic sealing be prevented or greatly 127 on celt- , and the ed if the not been (19. a of higli by Prof, lid based ^ U.S. obecked, both in the North Pacific and in the Bering Sea, the eco- nomic extermination of CallorhinuH timinuit in merely the matter of a few yearn,^ U. 8. Cone, Vol. 1, Apit. t2H. Prof. Blanchard, of tlie Medical Faculty of PariM, and i^eneral hcc- retary of the Z(M)h>gicaI Hocicty of France: "Hy reason of the nuis- micrett of which it ia the victim, this species is advancing rapidly to its total and final destruction, following the fatal r«)ad on which the Rhy- tina Stelleri, the Monarchm tropku'tiliM, and tiic Maerorhinug nngtintiroH- trin have preceded it, to citit only the great inammiferB which but recently abounded in the American seas. Now, the irremediable destruction of an eminently useful animal species, such as this one, is, to speak plainly, a crime of which we are rendering ourselves gtiilty towards our descendants. To satisfy our instincts of cupidity we vol- untarily exhaust, and that forever, a source of wealth, which properly regulated, ought, on the contrary, to contribute to the prosperity of our own generation and of those which will succeed it. • • • With his harpoons, his firearms, and his nuicliines of every kind, man with whom the instinct of dcstruirtion attains its highest ))oint, is the worst enemy of nature and of mankind itself. Happily, while yet in time, the savants sound the alarm. In this century, when we believe in science, we must hope that their voice will not be lost in the desert." Profs. Lilljeborg and Nordeusk'iold, of the A(*ademy of Sciences, Sweden unite in declaring: "As to the former ({uestion, the killing of the seals on the rookeries, it seems at present regulated in a suita- ble manner to effectually prevent the gradual^diminishing of the stock. Ifa wider experience should require some modifications in these regula- tions, there is no dangef bu( that such modifications will be adopted. It isevidently in the interest of the owners of the rookeries to take care that this source of wealth shall not be lessened by excessive exploitation. Nor will there be any diflicnlty for studying the conditions of health and thriving of the animals during fhe rookery seasor , As to ))elagic sealing, it is evident that a systematic hunting of the seals in the opeft sea on the way to and from or around the rookeries, will very soon cause the complete extinction of this valuable, and, from a scientific point of view, so extremely interesting and important animal, espe- cially as a great number of the animals killed in tliis manner are preg- nant cows, or cows temporarily separated from their pups while seek- ing food in the vicinity of the rookery. Everyone having some expe rience in seal hunting can also attest that only a relatively small part ) I k mmmmmmfi ni 1^ 128 of the senls killed or noriounly wounded in the open sea can in this manner be cauglit. We uru therefore persuaded that a prohibition of pelagic, Healino in a neceiimry condition for the prevention of the total extermination of the fur neal." U. S. €a«e,Vol. /, App. 428. I'rof. Middeiulorf, an eminent Hcientist of RuHsia: ''The method of treating these animalM w1ii<;1i whh originally adopted by tlie RiiHsian- American Company at tliuir liome on tlio rril)iIof Islands is still con- tinued in tlie same rational manner, and has, for more than half a cen- t|iry, been found to h\3 excellent, both on account of the large number of seals taken and because they are not exterminated. So long as super- fluous young males arc killed, not only the existence but even the increase of the herd is assured." V. 8. Ca«e, Vol. 1, App. 430. Prof. Holub, of PrHgue, Austria-Hungnry : "If the pelagic sealing of the fur seal is carried on still longer, as it has been executed dur- ing the last years, the pelagic sealing as a business matter and a 'liv- ing' will soon cease by the full extermination of this useful animal.' U. 8. Case, Vol. J, App. 433. Tiie abundance of fur seals at the Island of Juan Feruandeis two hundred years ago is shown by Dampier, who visited that island in 1G83. In his Voyage Around tlie World, 5th ed., 1713, Vol. 1, pp. 88, 90, it is said: "Seals swarm as thick about this island (of John Fernando, as he terms it) as if they had no other place in the world to live in; for there is not a bay nor rock that one can get ashore on but is full of them. * ■ * • Those at John Fernando^s have fine, thick, short fur; the like I have not taken notice of anywhere but in these seas. Here are always thousands, I might say possibly millions of them, either sitting on the bays or going and coming in the sea around the island, which is covered with them (as they lie at the top of the water playing and sunning themselves) for a mile or two from the shore. When they come out of the sea they bleat like sheep for their young, and though they pass through hundreds of other young ones before they come to their own, yet they will not suffer any of them to suck. The young ones are like puppies, and lie much ashore, but when beaten by any of us th'ej', as well as the old ones, will make towards the sea, and swim very swift and nimble, tho' on shore they lie very sluggishly, and will not go out of our way unless we beat them, but snap at us. A blow on the nose soon kills them. Large ships might here load them- selves with sealskins and traneoyl; for they are extraordinarily fat." (;i!«io existence, upon the islands of the Unit«d States in Bering Sea, which, by formal legis- lative enactment, have been set apart as a land home for these animals, where they can breed, and rear their young, aiul reiu>.w their coats of fur, and to which they may return, and for more than a century have regularly returned, from their annual migration into the high seas; That these auimals, from the necessities of the race, must come info existence, and for a large part of each year must abide, upon laud; That the United States, in every form in which it could be done, consistently with the nature and habits of these animals, hn" t^kiMi Itossessiou of, and appropriated, this raf** as Ila property; 11492^ P I ' in 130 That tlio taking of fur sealH for commercial purposes at tlieir breeding };roiiii l>articalar question now uiuler <'onsilalMiriit.ely ovainined and pnfor<\(l by Seiwitor Mor- jjan. Nnthiiig can be added to 'vliat the learned SiMiator Iuih said iiIMJii that aubjoi^t. I prui>oHe to consider tlie HHbje«*ts of pro|t«>rty iMid |>i-ote<;ti«)n in the other anpoct named, and will, therefore, incpiire whether the chiiui of tlie l'nit..ar to year, whereby the benefits of an increase of their numbers can be obtained, is that such agents and lessees shall abstain from repelling them as they approach the land, defend Iheni after they have arrived against pursuit by hunters, disturb them as little as possible when making selections for commercial i»urpo8<*s, and take males only lor purposes of commerce; and ft; liii (i n ; 132 That the United States, its agents and lessees, do all that is neces- sary to secure their return each year to, and their remaining at, the Pribilof Islands for all the purposes for which they must come to, and for a time abide, upon land. These considerations, it is contended — assuming that these fur seals are of tlie class commonly called animals fer(B natttr'«t the qucNUou as to the ownership of these aniucils when they are 133 in tlio open waters of tlie ocean, the higbwayof all peoples, is to bo de- termined ultimately by the public law of nations — that is, by those i>rin- ciples common to, and recognized as binding by, all civilized countries in their intercourse and relations with each other. No other law vmix be appealed to for the settlement of a dispute between sovereign nations as to the ownership of animals when found on the seas beyond their re8i)ective territorial limits. But by what considerations are we to be governed in ascertaining what the law of nations recognizes, allows, or forbids! The counsel for the United States contended, in argument, that in determining wliat rights are recognized l)y the law of nations, the Tri- bunal is not to ignore, but must give effect to, those principles of right reason justice, humanity, and morality which have their foundation in the law of nature as applied to the institution of property. This view was earnestly coin bated by the counsel of Great Britain, anr* it wa«, in effwt, said that tiie teachings and precepts of the law nature were of no importance in the i)re8ent inquiry; that the riglits of these two nations could not be made to depend, in any degree, upon abstract princiides founded only on reason, justice, humanity, or morality, but must be determined upon grounds of jjositive law, resting in theaftirm- ative assent of the nations, independently of ethical considerations aris- ing oat of distinctions which the conscience of the world makes between what is morally right and what is morally wrong, or between what is 8uj'i.>>rted by sound reiisou and justice and what is not so supported. Of course, if there be any settled, recognized rules of the law of nations governing the particular question under consideration, they must con- trol our decision whatever may be our view of their justice. The two nations interested are bound by such rules and the Tribunal may not disregard them, or refuse to give effect to them. But if the precise case before it is not covered by some positive rule, decision or pre e- dent, founded on tho conventions or established usages of the civilized nations of the earth, and expressly set fortli in the writings of public u'lsts, we are not, for that reason, to hold that it is not pro- vided for by the law of nations. As a court sitting under mnnici]>al authority would be bound, in the absence of precedent, to give judg- ment acxjording to the principles of right rlorlved from the whole body of the law to which it lUay properly refer, so this Tribunal, constitutetl for the dererminatio i of questions depending ujion the law of nations, may, and if it fulfills tl.e objects for wliich it was constituted, must, look into the recognized sources of that law and seek in *•'••» 134 domain of general jurisprudence for the rule of decision in the case before it. One of the recognized sources of the law of nations are the principles of natural reason and justice a])plicable tc 'he relations jind intercourse of indepl societies. Those princi- ples may be said to have their origin in tl»e Law of Nature, or in what is sometimes called the Natural Law of Lquity, because ap- proved by the moral sense of numkind. No eartiJy tribunal, adminis- tering justice between individuals, or between iiai."<»r.- if unfettered by statute, or by binding precedent, may righfiti''- ai .;• nl the rules of reasou, morality, humanity, and justice denvti- unn-. ' i..it law. Those rules are not the less binding because not formulated in some book, ordinatu-e, or treaty. Certainly, this Tribunal of Arbitration must regard the rules of ■..;teriiational morality and justice, applicable to the sul)ject, and fairly to be deduced from the rights and duties of States and from the nature of moral obligations, as an integral part of the law of nations by which the matters submitted to it are to be det<'r- mined. The institution of property is ordained by society for its improvement and preservation. And there arc certain rules, aris- ing out of the very necessities of that institution, which are com- mon to the juiisprudenc«i of all civilized nations. While Ihejc '•ules may be more frequently found recognized in municipal hi they are so grcmuded i.i the well-being of man, and so thoroughly .,yi»' "ied by right reason, aiul natural jtistice, us to have become \v\ Vt: :'. l\ i-tc- ognized, and, therefore, must be rm' is in part unwritten and in part conveutions»5, ..nd that "to .i. tain tluit which is unwritten we resoit to tir-, ilcs of reason and justice; but as these prin^ iulfs v. ')■ ho differently understood by tlitt'erent nations under diiile degree, fixed anc' reiwlered stable by a series of judicial de.ci8h>ns." Thirty Uhdn. o/ Sugar vs. /ioj/Zc, r'- Vhile Ihcjc "-ules icipal lii ■ fhey lughly v.jiiy I'te^ } Ui' Vt:-^. '!;» i-ec- e coi.n«^Mv\ encc of organ i^'-.-d tl peoi)le8. s have been gen- •ntrolled by stat- I the decisions of al law. « ji ?r*^nie Court os8ible for tiie whole race of mankind to be united in one great society, they nmst nci-essarily divide into many, and form separate states, commonwealths, and nations, entirely independent of each other and yet liable to mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called the 'law of nations,' which, as noneof these states will acknowledge a superiority in the other, can not be dictated by any, but dejwnds en- tirely upon the rules of natural law, or upon mutual comi)acts, treaties, leagues, and agreements between those several communities; in the construction, also, of which compacts we have no other rule to resort to but tli; laic of nature, being the only one to which all the conununities me equally subject, and therefore, tlie civil law very justly observes that quod naturalin ratio inter omnea homines constituit vocatur jus yent- (M/rt." m. 1, p. 41, 43. In his (Jommentaries on International Law Sir Kobert Phillimore says: "Grotius enumerates these sources [of international law] as being ' ipsnnatura, legrs diviniv, mores, et pacta.'' In 17.">,'l the British Gincrn- nient made an answer to a memorial of the I'russian Government, wliuii was termed by Montesquieu reitonse sans riplique, and which hiu. been generally recognized as one of the ablest exi)ositi(Mi8 of international law ever embodied in a state paper. In this memorable document the law of nations is said to be founded upon justice, e<}uity, convenience, and the reason of the thing, and confirmed by long usage." 1 I'hilli- more, ch. 3,, ace. liO. In the judgment delivered by him in Queen vs. i 136 Keyn, Law Rep., 2 Exch. Div. 311, Dr. Phillimore states that this answer was framed by Lord Mansfleld and Sir George Lee. The same learned author declares that the sources from which international jurisprudence is derived embrace not only the universal consontof nations, as expressed by positive compact, and as implied by usajje, custom, and practice, as disclosed by precedents, treaties, public documents, marine ordi- nances, the decisioufj^of international tribunals, and the works of emi- nent writers upon international jurisprudence, but, also, "the Divine law, embodying the principles of eternal justice, implanted by God on all moral and social creatures, of which nations are the aggregates and of which governments are the international organs," as well as "the Revealed VViil of God, enforcing and extending these principles of natural justice," and " Beaaon which governs the application of these principles to particular eases " 1 Phillimore, p. 67, e. 8, § 58. In the above case of Queen vs. K-yn, Sir William Baliol Brett, now Lord Esher, Master of the Itolls, after observing that the authorities made it '•'oar that the consent of nations was re«][uisite to make any propositio?;- « part of the law of nations, well said: "Tiieir consjvit I>« to be assumed to the logical application to given facts f>f {.'ne ethical axioms of right and wrong. Such an application is the foundation of every system of law, including necessarily tlie li,^ of nations." L. li., 2 Exch. Div, 131. Chancellor Kent, whose writings are known to tlie jurists of all nations, states in his Commentaries, that the most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, (consent, and agreement, and that it would be improper to separate this law entirely from natural jurisprudence and not to consider it as deriving much of its force and dignity from the same prin- ciples of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced, and he says: "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," that great jurist continues, " to separate the science of public law from that of ethics, nor encour- age the dangenms suggestion that governments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to 137 other powers, as they are in the niaiiagement of their own local <-ou- oerns." States or bodies politic, he observes, "are to be considered as moral persons, having a public will, capable und free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individals in a state of natural equality and to the relations and conduct of nations; of a collection of usages and customs, the growth of civilization and commerce and a code of oonventioiutl or positive law." His con(!lnsio;ih upon this subject are thus stated: "In th«» absence uf tliese latter regula- tions, the intercourse and co'sdncfc of Uiitious are to be governed by priiicipleM fnirlj Ut be deduced from the rights and duties of nations .ma the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligations of nations and of individuals on similar grounds, and for considering individual and national 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 equally binding in every age and upon all mankind." KenVs Commen- taries, Part 1, Lect. 1, pp. 2-4, These views of Ohaucellor Kent seem to be approved by the instructed judgment of Sir Travers Twiss, the euiinent publicist of Great Britain, who has himself divided the Law of Nations into Natural or Necessary Law, and Positive or Instituted Law, The Law of Nations, ch. vi, sees. 83 and 10'>, ed. 188i, pp. 115, 170. Ortolan, in his work on International Rules and Diplomacy of the Sea, thus states his views: "It is apparent that nations not having any common legislator over them have frequently no other recourse for determining tlieir respective rights but to that reasonable sentiment of right and wrong, to those moral truths already broucht to light, and to those which are still to be demonstrated. This is what is meant wlien it is said that natural law is the first basis of international law." Vol. 1, bk. 1, ch. iv., p. 71. Vattel, in the preface of his celebrated work, states that the moderns a»'e generally agreed in restricting the appellation of the law of nations to tliat system of rij-ht and justice which ought to prevail between nations or sovereign states. And in the body of his work he says: "As men are subject to the law of nature, and as their union in civil ■' Mi 138 soiiiety can not have exemptod them from thw obligjition to obHervo tliose laws, since by that u!'.!r»ti they do not cease to be men, the entire natioK^ whose coinniou will is but the result of the united wills of the jitixens, remains subject t«) the law of nature, and is bound to respect them in all iier proceedings." We must, therefore, he says, apply to nations the rules of the law of nature, where they can be applied in a manner suitable to tlie subject, "in order to discover what their obli Rations are, and wliat their rights; conse(ineutly, the law of nationH is originally no other than the late of nature applied to nations." Ch, 5(1,, sees, 5, 6. Wheaton, whose authority is recognized by all publicists, says: "International law, as understood among civilized nations, may bo defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations, with su(;h definitions and modifications as nuiy be established by general consent." International Law, Pt. 1, ch. 1, sec. iH. Pomeroy, an American writer of distinction, observes: "What is calletl international law in its general sense, I would call iutei-national morality. It consists of those rules founded ui)on justice and equity, and deduced by right reason, according to which independent states are accustomed to regulate their mutual intercourse, and to which they conform their mutual relations." International Law, ed. Iti86, C. 1, S, 39. Woolsey, another American writtir, cited by both sides in argu- ment, says: "It would be strange if the state, that power which defines rights and maizes them real, wliich creates moral persons or associa- t applied to men, considered -''.midy as such, but to nations, states, or their chiefs, in the relations they have together, and the several interests they have to manage 139 between each otlier." Ed. 1833, Pf. TT, e. 0, pp. 135, (!. Tn tin's view Piiflfoadorf expressed his concurrence, obsorvin^^ that he recognized ''no other kind of vohiutary or positive international law. >i.t !g.i«i none having force of law, properly so called, and binding npon nations as emanating from a superior," Vol. 1, book 3, c. 3, ^ 33, p. 313, 5th. erf.; ed. 1739, EngliHh, Hi). Heinnecius: " Tlie law of nations is the law of nature itself respect- ing or applied to social life and the affairs of societies and indei>endent states, • • • Hence, we may infer that thg 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, Wlnerefore their opinion is groundless who speak of, I know not what, law of nations distinct from the law of nature." Vol, I, Ed, 1703, Sev. 31, p. Id, Hautefeuille : " What is true, and in my opinion, incontestable, is that notions of what i^Just ai>d right, ami what is unjust are found in all men; it is that all individuals of the human race that are in the enjoyment of reason have these notions graven upon their liearts, and that they bring with them into the.worhl 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. It cannot be denied that the idea of property is a natural and innate idea. * • The natural or divine law is thi- oidy one that can be applied among nations —among beings free from every bond and having no interest in common. • • International law is, therefore, based upon the divine and primitive law; it is all derived from this source." Vol. I, p. Hi, 18hs. Martens: "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, modiQed and applied to nations; and this is what is called the natural law of luitions. It is universal and necessary, because all nations are governed by it, even against tlicir will." Law of NatioiiH, German, Ith ed. 183!), p, 3 of Introduction, Ferguson : <' International'law, being based on international morality, dependsupon the state of progress miule in civilization. • • * in- vestigating tlms this spirit of law, we find the definition of International Law to consist of cartain rules of conduct which reason, pnnnpfed by conscience, deduces as consonant to justice, with sucli limitations and moditicatioiis as may be established by general consent, to nicest tiic exigencies of the present state of society as existing among nations and which modern civilized states regard as binding on them in their rela- te I r-- ^ 140 i1\ > t tions with oiio another, with a force comparable in nature and dofjree to that hindtng the coiiHcientiuiiH pei'Hou to obey the hiw8 of his country." Manual of International Law, Dutch, 18SI, Vol, 1, Pt, IF, chap. 3, sec. HI, p. 66. Carh)8 Testa: "This application of the precepts of natural law, which obliges nations to practice the same duties that it proscribes for individuals, constitutes the law of nations, which, when considered according to its origin (which is based upon natural hiw), is also called the primitive or neccssq^ry law of nations. • • • The origins of inter- uational law are therefore three in number: (I) The reason and the conscience of what is just and unjust, independent of any prescription ; (2) custom ; (3) public treaties. The principles, practices, and usages of the law of nations, in a<;cordanco with these limits, regulate tiie conduct of nations, and it is for this reason that in their generality they constitute international law. Conventional law may abrogate the law of custom, but it loses its character as a law if it establishes provisions at variance with natural law." Le Droit International Maritime {Portuguese), translated by H. lioutiron, 1886, Pt. 1, ch. 1, p. 46. Looking, then, to the reason of the thing, and to the concurrence of views upon this point, among jurists and publicists, I must withhold my assent from the proposition that this Tribunal, in ascertaining whether the law of nations sanctions and supports the claim of property niadio by the United States, may not consider- Uie question not being con- cluded by treaties or precedents — what is demanded in respect to the siubject of controversy by the law of nature, that is, by the principles of justice, sound reason, morality, and eroperty in these animals, which are conceived, and, if the race is to exist at all, must be born and reared, ou land, and which, although passing mn(;li time on the high seas, periodically return to, and, for a time, abide upon the terretory of the United States. And they return to and abide up- on that territory, under such circumstances, that the United States, the sovereign and owner of the land, and it alone, of all other nations, can, by the exercise of care, industry, and self-denial take the increase for the benefit of. the world, without, in any degree, diminishing or impairing the stock. If there is no recorded precedent based upon actual dispute between nations, which would determine such a case, we may properly, inquire whether there is such an agreement among civilized nations, in respect to the institution of property and the rules governing the acquisition of property, as will justify us in adjudging that the prest/Ut claim of the United St^ites rests upon principles universally recognized. If the rales embodied in the con- curring municipal law of the diiferent countries of the earth, and founded in reason, justice, and the uecessities of organized society, will sustain this claim, our judgment to that effect will be in iiccordance with the law of nations; for nothing to the contrary appearing in positive enact- ments, binding upon this Tribunal, it must be assumeil when dealing with a question of property, that the nations assent to snch rules in the law of property as are common to the jurisprudence of civilized countries. It has been well observed by Sir James Mackintosh, in his famous Discourse ou the Law of Nature and Nations, that the two in- stitutions of property and marriage constitute, preserve and improve society; that upon their gradual development depends the progressive civilization of mankind ; that on them rests the whole order of civil life; that the duties of men, subjects, princes, lawgivers, and States are all parts of one system of universal morality; and that " the principle of justice, deeply rooted in the nature and interest of man, pervades the whole system, and is discoverable in every part of it, even to its minutest ramification in a legal formality, or in the construction of an article in a treaty." When, therefore, a Tribunal, administering the Law of Nations, is required to consider a question of property, it may not dis- legard what the principles of justice, right reason, and the necessities !?"^ n ') k 142 of society, evidenced by tlie concurring municipal law of the world, demand at it« hands. Any other view is, I submit, inadmissible. The law of self-defense is a part of t!on its estimate of those acts, not because they are made crimes by any statute or convention binding upon the world, but uecause all man- kind, in recognition of the principles of eternal and natural justice, implanted in man by the Creator, regard tlicni in that light. It is said tliat even if there be grounds of reason and justice, that^is of natural law, why it might be proper and desirable that these fur seals should be held to be the subject of property, such considerations are of no weight whatever in the absence of the general assent of nations that they may be so regarded. Such an argument leads to this strange conclusion: That in the absence of any affirmative assent of nations to a right decision, that is, to a decision conformable to the principles of sound reason, justice, and the necessities of mankind, we must, for the want of such assent, make a wrong decision, that is, one forbidden by sound reason and justice and hostile to the best inter- ests of society. Thus, according to the argument presented, a Tribunal iulministering international law must, in the abseace of the express assent of the nations, reject every new affirmative proposition, however strongly supported by reason, justice, and morality, and thereby establish the contrary as the rule that should govern the conduct of nations. True wisdom, indeeS. The same author observes that "the Koman law may, in truth, be said to be the most valuable of all aids to a correct and full knowledge of international jurisprudence, of which it is indeed, historically speak- ing, the actual basis." Again : "Independently of the historical value of the Roman law us explanatory of the terms and sense of treaties and of the language of jurists, its importance as a repository of decisions, the spirit of which almost always, and the letter of which very fre- quently, is applicable to the controversies of independeut States, can scarcely be overstated. From this rich treasury of the principles of universal jurisprudence, it wUl generally be found that the deficiencies H .^~;rH'«*iMKfl«««*»tWW**»-'' il :/ •f !r "I ? 144 of pre('.e and :i7. Lord Stowitll said that a great part of the law of nations was founded on the civil law. The Maria, 1 Robinson's Adm. Rep., 363. "A great part, then, of international law," Henry Sumner Maine says, " is Uoman law spread over Europe by a proc(>H.s exceem (fentium; and of Home by the civil law. it in moHt convenient, then, to conuiience with the more ancient law. and it m clear that the more ancient is the natural law, niiice the nature of thi:iKH brought it into existence sinaultaneouHly with the human race itself; whilst civil laws began to exist when states wen^ flrst founded, magis- trates appointed, and 1 ws written. 12. Wild IwaHts, therefore, and birds and fishes, that is to ^ay, all aniiiials that live on the earth, in in the sea or in the air, ua mnm as they are t^anght by any one, become his at once by virtue of the ' <\v of nations. For whatever has inevi- oiisly belonged to no one is gmnted by natural reason t^) the Orst taker. Nor does it matter whether the man ca^^'^ies the v iid beast or bird on his own ground or on anotherV; although, a person purposing to enter on another's land for the puri>o8o of hunting or fowling may, of course, bo prohibited from entering by the owner if he perceive him. Whatever, then, you have (;auglit «)f thit, kind is «'Ogardeu desist from pursuit it ceases to l)e yours and again belongs to the first taker. Others have thought that it is not yours until you have m-tually caught it. And wo indorse the latter opinion, because many things may iiappen to pre- vent your catching it. 14. Bees, too, are naturally wild, Tlierefore, any bees which settle upon your tiee are no more considered yours, until you have hived them, than birds which have made their nest in that tree of yours; if, therefore, any one else hives them he will be their owner. The honeycomb, too, which they have made, anyone may take away. But undoubtedly if you see a jwrson entering upon your land before anything has been removed [in inteqra re) you may legally for- bid him to enter. A swarm which has flown from your hive is consid- ered to be yours, so long as it is in your sight and its pursuit not 11492 10 Tmmmmmmmmmie^ ^i] M '.i I iir !|( i46 difficult: otherwise it belongs to the first taker. 15. Teacocks and I>i$(cous are naturally wild, and it is not material that they get into a habit of Hying away and (doming back; for bees do the same, and their nature is admitted to be wild. Some iieople, too, have deer so tamed that they habitually go into thu woods and come home agsiin, and yet no one denies that these animals also are naturally wild. Still, with regard to aiiimalB of this sort, which ffo and come reyulnrly, the rule luut been adapted, that they are regarde ' ag heiitg yourn no long a« they iMve the intent of returning; for if they cease to have that intent tlioy also t.ease to be yours and become tlie property of the first taker. And they are held to have lost tiiei intent of returning when they cease from the iiabit of returning." Book IT, Title J, Abdy d: Walker^n ed., pp. 82, 83, Si. To the same effect iot Gains, who, in his Commentaries, says: "06. But not only those things whiijh be<»me ours by delivery are acquired by us on natural principles, but also tiiose which we iwrquire by occupation, on the ground that they previously belonged to no one; of which class are all things caught on lan^; in the sea, or in the air. G7. If, therefore, we havd caught a wild beast, or a bird, or a fish, *tny- thing we have so caught at once becomes ours, and is reganled as being ours so long as it is kept in our custody. But when it iias esi:a]:)ed from ourcnst(Hly and returned into its natural liberty, it again becomes the property of the first taker, because it ceaseiS to be ours. And it is (!onsidered to recover its natural liberty when it has either gone out of our sight or, althougli it be still m our sight, yet its pursuit is difficult. <>8. With regard to those animals which arc aveuMomed to go and return habitually, as doves, and bees, and dv er, which are in the habit of going into the woods and timing back a/ain, we have this rule handeil down : that if they ceas^ to have the intent of returning they also cease to be ours, and l)ecome the proi)ei ty of the first taker, and they are considered to cease to have the intent of returning when they have al)andoned the habit of returning." Bk. II, Secg. t>6, (17, and 68. Abdy jfc Walker^H ed. p. 98. 8ee, also, Hnnier'H Roman Law, 2d ed., p. 346. Van Leenwen, in his Commentaries on Boman-Dutch Law, enumer- ates among ns nulliiiH those which, " although not belonging to any- body, may yet be l)rought under the dominion or possession of another;" aiul while stilting that there are some wild animals, " as birds, fish, and beasts inhafnting the sea or other waters, the air, or the earth," which " u»ay, according to tho original iustitnitfoii of l^ws, l>p paptured 147 and owned by overyono witliunl. diistiiifUon," he siiys, in rt^+jMM'.t Ui others: "For the aninialM that are aoomtomcd to go out nmu return, as bewH, pigeons, dut!k«, geese, and the like, although wild by nature, and tV(in, after showing that dominion over things by natural right or by the right of nations may be acquired, or h>st, ii: various ways, says: "Occupation also includes shutting 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 \ br.ve abut them up iu a bive, tbau birils wbiob mmmmmmmmm pi ; lieasants, ]iar- tridges, or hawks, tamed or reclaimed, or doves in a dovecot, or young herons in their nest, or fish in a tank. " Hut,"' he says, "if deer, fowls, etc., tame r redaimetl, attain tlieir natural liberty, and hare m) incli- nation to return, the property shall he l()st," iniplying that tli« right of property is not lost, so long jis the aniniiil or fowl reclaimed or tamed, luis, when leaving. the pn^mises ol' the owner, the incliuation to return. l>ige»t. Tit. Jiienx, F. Vol. ,V, p. i:V>. In Bacon's Abiidgment it is said; "The wild animals, sudi as deer, h.ues, foxes, et,c., are undeistood to be those wlu wild nature, and in iiow it may subsist in any other things whet, aiider particular circumstances. "IMrst, then, a man may be invested \^ Mi a qualii -d, but not an absolute property, in all creatures that !.re fera; naturw, cither per indnstriam, propter impotentiam, or propter priviUqinm. "I. A qualitted property may sidisist in anim ih fern natura; per Influstriam hominis, by a num's reclaiming, and making them tame by art, industry, and education, or by so continiug them within his own immediate powei- that they can not escape and use tin ir ural liberty. And under this head some writers have ranked al lormer species of animals we have mentioned, apprehending none i^) be originally and naturally tame, but only niade so by art and cust^mi, as horses, swine, and other cattle, which, if originally left to themselves, woidd have chosen to rove up and down, seeking their food at large, and are only nmde domestic by use and familiarity, and are, therefore, say they, called mansueta, qna^ii maniii assueta. But, however well this notion may be founded, abstractly considered, our law apjirehends the most obvious distinctions to be between such animals as we generally eee tame, and are, therefore, seldom, if ever, found wandering at large, which it calls domiUe naiurw, and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically fer if: 150 naturce, though it may happeu that the latter shall be '■oinetimes tamed and confined by the art and fadustry of man — such as are deer in a park, hares or rabbits in an inclosed warren, doves in a dove house, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of man than while they continue in his keeping or actual possession J but if at any time they regain their natural liberty his property intntantly ceases, unless they have animum revertendi, which is only to ue known by their usiml custom of returning. A maxim which is borrowed from the civil law, revertendi animum videntur desi- nere habere tunc, cum revertendi consuetitdinem deseruerint. The law therefore, extends this possession further tlian the mere manual occu- pation; for my tame hawk, that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my prop- erty, for he has animum revertendi. So are my pigeons that are flying at a distance from their home (especially of the carrier kind), and like- wise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forester; all which remain still in my posses- sion, and I still preserve my qualified property in them. • • • Bees also are ferw naturw, but when hived and reclaimed, a man may have a qualified property in them by the law of nature, as well as by the civil law. • * • la all these creatures, reclaimed from the wildneas of tlieir nature, the property is not absolute, but defeasil)le; a property that may be destroyed if they resume their ancient wilduess, and are found at lar«e." Bk. 2, p. 391. Kent, in bis Commentaries, cays: " Animals /crrt; natunv^ so long as they are reclaimed by the art and power of man, are also the subject oi.' a qualified property; but when tliey are abaudonttd, or escape, and return to their natural liberty and foPKcity, without the animus recertentli, the property in theni cciises. While this qualified proi»erty continues, it is as much under the pn*- teotion of law >ta any cMier property, and every invasion of it is redressed in the same manner. The difliculty of ascertaining with pre- cision the aitplication ol tlie law arises from the w .ut of some certain determinate standard mp(u-ary ■1 151 • docility to the discipliue of mau, such as deer, flsh, and several kind of fowl, then the animal is a subject of qualified property, and whicii (■x)ntinues so long only as the taiueness and dominion remain." lieiier- ring to the difference of opinion among naturalists and writers, as to wliether all animals were originally tame, and owed tlieir wildness or ferocity to the violeuce of man, the autlior says: "The common law has wisely avc'ded all perplexing questions and refinements of this kind, and has iulopted the test laiys, 6heep, or any other cattle. Whenever they are so, and it is universally known, it would be ridic- ulous to say that when they are kept merely for profit they are not dis- trainable as other cattle, though it has been holden that they were not so when they were kbpt only for pleasure. The rules concerning per- sonal estates, which were laid down when personal estates were but small in proportion to lands, are quite varied, both in courts of law and equity, n«)w that personal estates are so much increased and become so cotisiderable a part of the property of this kingdom " The lace where they were kept, and the mode in which they had been treated, they could be regarded as tamejection that the jury had been misdirected, said: "That it was proper f'* leave the question t ) the jury in the terms in which the issue is expr-^ssly joined can not be tlisputed, and *' .iirection that that question must be deteriuinsd by referring to the place in which the deer were kept, to the nature and habitn of the animals, and to the mode in which they tcere treated, appears to the court to be a correct direction; and it seems dilHcult to ascertain by what other means the question should be determined, whether the evidence in the case was such as to warrant a conclusion that the deer were tamed and reclaimed. The court is, therefore, of opinion that tlie rale can not be 153 nupportcd on tlics gruuiul of iniM(lire«;tioii. It is not fontended tliat theru >vii8 no evidence fit to be Hubniittcd to tlie Jury, and tliat, tliei-etorc, tlie plaiutitt'onglit to have been noimnitcd ; but it is said tliat the weight of evidence was against the verdict. In considering wlietlier the evi- dence warranted the verdict npon the issue, wlietlicr the deer wi're tamed or reclaimed, the observations made by Lord (.'liief Justice VVilles in the case of Daviea vs. Poirell, are deserving of attention. The dif- ference in regard to the mode and object of keeping deer in modern times from that which anciently prevailed, as point«d out by Lord Chief .Tustice Willes, can not be overlookei«hed, as before stated, to animals kept for profit and food. vVs to some being wild and some tame, as it is said, individual animals no doubt differed, as individuals in aloiost every race of animals are 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 otln'rs quite irreclaimable, in tho sense of temijer and quietness. Viwu a question whether deer are tamed and reclaimed, each mite mu. depend upon the partk'uhtr fact» of H; and in this case the court think that the facts were 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 any sufficient grounds to warrant it in saying that the jury have (jome to a wrong conclusion upon the evidence, and do not feel authorized to dis- turb 'mq \erdict; and the rule for a liew trial must, therefore, be dis- charged." In Bladen vs. BujgH, (13 C. B. K, 8., 84i), in lOxehequer Chau.ber, on appeal, which was an action for the conversion of rabbits, with a count for assault, and which, strictly, ouly involved tlie ({uesMon wlietlier game found, killed, and taken by a trespasser upon the land of another bei'anie the property of the owner of the soil, mtione soli, ',n was the 1' 154 m 1 property of the trespaHuer, Buroii Wilde, an KiigliHli judge of high authority, Mellor, J., concurring, said: "It has been urged in this ca^e that an animal /erecame a justice of the Supreme Court of the United States, said : "Animals ferfe natural, when reclaimed by the art and power of man, 155 are the subjwjt of a qualified property; if they return to their natural liberty and wilduess, without the animus revertendi, it ceascH. During the existence ot the qualified proi)erty, it is under the protection of the law the same as any other property and every invasion of it is redressed in the same manner. Bees ave/erw naturw, but when hived and reclaimed a person may have a qualified property in them by the law of nature, as well as the civil law. Occupatiou — that is, hiving or inclosing them — gives property in them. They are now a common spe- cies of property and an article of trade, and the wildness of their nature, by experience and practice, has become essentially subjei^ted to the art and power of man. An unreclaimed swarm, like all other wild animals, belongs to the first occupant— in other words, to the person who first hives them; but if the swarm fiy from tlie hive of another, his qualified property continues so long as lie can keep them in sight, and possesses the powar to pursue them. Under these circumstances, no one else is entitled to take them 3 Black. Comm., 393; 2 KenVs Comm., 391.) The question here is not between the owner of the soil upon which the tree stood that included the swarm, and the owner of the bees : as to him the owner of the bees would not be able to regain his property, or the fruits of it, without being guilty of trespass; but it by no means follows, from this predicament, that the right to the enjoyment of the property is lost ; thatthebees therefore become again feranaturw and belong to the first occnp{int. If a domestic or tame animal of one person should stray to the inclosure of another, the owner could not follow and retake it without being liable for a trespass. The absolute right of prop- erty, notwithstanding, would stillcontinue in him. Of this there can be no doubt. So, in respect to the qualified property in the bees. If it con- tinued in the owner after they hived thcmselvijs and abode in the hollow tree, as this qualified interest is under the same protection of the law as if absolute, the like remedy existed in thecase of an invasion of it. It can not, I think, be doubted thatif the property in the swarm continues while within sight of the owner — in other words, while he can distinguish and identiiy it in the air — that it equally belongs to him if it settles upon a Itranch or in the trunk of a tree, and remains there under his observation and charge. If a stranger has no rigtit to take the swarm in the former case, and of which there seems no question, he ought not to be jMir- mitted to take it in the latt«r, when it is more confined and within the control of the occupant." There is nothing to the contrary of this in Gillett vs. Munon {7 Johns, 166 f :1- Hi), cited hy the letiriied coitiiHel for Great Hritain. In tliat case a mere fliider of bee-s claimed, as against one intereHted in tlie soil, the right to take them, upon the gt-oiind alone that lie luul marked the tree in which the bees were fonnd. But the court decided that he c/mld not ac(inire ownership by merely marking the tree, observing that <'tlie land was not his, nor was it in his posseHsion." In Smith's Treatise on Personal Property, a work recently published, the law is thus stated: "Another mode of obtaining title to personal property by original ac()uisition, through occupancy, is by reclaiming aninnda wild by nature, ferre natiira:. Wild animals belong to nobody in particular; yet they be<;ome the qualified property of any one who sub- jects them tc his possession or power. The qualified property thus lutquired continues in the captor while possession or control is main- tained, or until the animal becomes so far domesticated that it will not voluntarily leave without the animua revertendi. When this point is rea<;hed, the qualified has ripened into absolute property, the nature of the animal being changed from feras naturte to domttm tuitura;, wild to tame. Until thus changed, and while in the possession or power of the captor, his qualified property will be fully under the cognizance and pro- t(5ction of law; but if the animal escape and regain its natural freedom, without the anhmis revertendi, the captor's title is wholly lost, and any other person may rightfully take the fugitive, thereby acquiring the same qualified property possessed by the first captor; and so on indefi- nitely." After observing that the speculations of writers who attempt to draw the dividing line between the two classes of animals, wild and tame, and referring to animals that are classed as wild, the author proceeds: "Belonging to the latter [wild] class, are, however, some of an exceptionally mild type that frequently become domesti- cated, and hence absolute property in theii- owners ; among which are deer, horses, rabbits, doves, and others of like character. Honey bees are/erfc naturte; but, when reclaimed and hived, they become the sub- jects of qualified property. • • If be«8 when hived escape, or a swarm departs from the hive, the owner does not lose liM property in them so long as he pursues and is able to identify thein. While prop- erty in wild animals can be acjquinBd only by occupan'.ry, actual or con- structive, an actual taking is not always necessary t-j create title; it is sufiicieut if the pursuer bring the animal within hin power or control.^ See. 37. '■% From the principles thus announced by courts and jurists, this rule, at least, may be fairly deduced as resting in sound reason, in natural 157 juMticu, iiiid ill a vfim luiblic policy : Tlial, iilthiMi{;li aiiiiiiHls fern' naturae, liowevor valiiaUle t<» the world, lire not tlie Hubjeuts <»f prop- erty, while ill their original coudition of wildueHH, hrifond the control of man for any purpotit whotever, the law will y«'t recognize u right of property in tbeiu in favor of one who, by acting upon their imtiiral inatinctH, and by care, watchfulneuH, self-denial, and induHtry, iiiduccH or canses them to abide fo. stated periods in each year, upon IiIk preiniseH, so that Ac, and hr only, in in a ponition to deal with the raiw tu a whole, takintj itn increase regularly for commerci^il purposes without impairing the stock. The authorities proceed upon these grounds: That " occupation," as it is called, is the foundation of prop- erty ill animals ferw nuturat; that the right of property is not htst when the animals are away from their accustomed habitation provided for them upon the premises of the owner, as long as th(>ii- absence is accompanied with the intention to return; and that such inten- tion is deemed to exist while they have the habit of returning. Uccupatiou is a fact to be determiued with reference to the nature and habits of eaeh particular race of animals. What is sailicient occupation in respect to some animals may be wholly iuadequate to give a right of property in others. While eiu:h case must de{»eii(l uiiou its own facts, tlere must be, in every case of aniinals/errt' natura; in »rhich a right of ^^roperty is asserted, stick an occupation as will enable the owner or controller of the premises to whi(!h they lialtltually resort to establish a husbandry in respect to them — an occupation whicli give»«. at least, such certain, continuous control of them that their increase can be regularly taken for man's use without imitairing the stock. Of course, without occuiiatioii, the animus revertendi wiW not alone, or in itself, avail to give a right of property in wild animals. But the animus rcvertcndi will continue a riglit of property actiuired eflectively by occupation. The intention or habit of returning to the premises of the occupier must cot^-xist, at all times, with flic fact of occupation. If that intention or habit ceases, that is, ii' the iinimals permanently depart from the premises of the owner, the rights aci]uired by occupation are lost, and they will became the property of the first taker. It is this liability to change in ownership resulting from the loss of control by me !', to which writers refer when they speak of quHHfic'»; naturtt', wliirli, lUTonliiig Ut iiiii- vcrsiil law, iiiiiy bucoiiie tlio Hubju<;t of individual property. TliiH mode of reuMoning, iilthough pronounced in argument to be unitafe and likely to niiHle:ul, haH the Hanctiou of experience. A very large proimrtion of the judicial decimouH in both the Unitiul States and ( ' at Britain rcHt upon the application that haH been made in caHCH, new in their circuniMtance8, of the principle of rules announced i n prior cases. Parke, J. in Mirehouae vs. liennell,S liitujham^ii. al5, declared it to be of import- ance to keep this princiide of decision steadily in view, not merely for the determination of the particular case, but for the interests of the law as a science. And Dr. Phillimore has well said that anahigy has great influence on the decisions of international as well as of iminicipal tribunals. 1 I'hiUitaore, § 39. Another writer declare anal.igy tobe the instrument of the progress and development of the law . Bowyvr^H Meadiiujs, ])■ 88. If the conditions, which courts and jurists have heltl to be sutticient to give a right of property in certain iiKcful animals J'erte naturw, substiintially exist in che cases of other wild animals, valuable to mankind, and in respect to which no ruling lias been made, then the principle of the prior cases, so far as applicable, may well be recognized and enforced in subsequent cases. In what way, aecording to the authorities, may property be ae^inired in a swarm of Ixiesf All that need be done by man, as a condition of iu-(iuiring property in them, is to i)rovide, on his premises, a place or hive where they may abide, to which they may come and go at will, and at which a proper proportion of their honey can be obtained from time to time. While in some countries bees are fed, as a general rule they gather, here and there, witlumt man's aid, all that is necessary to nourish them. The owner never puts his hand upon the swarm, or upon individual bees, though he might shut them up, from time Xa time, in their hive. It has never occurred to any writer or court to consider whether owiiershipof the 8w.irmdepen>H<*.nt tVoni their liive, tliu law i^ivtM to the owiiur of the prcmiMeH a ri^^'ut of property in the Hwarni. I'ctHtw^HHion, in fact, of the Hwarrn, or of tlie individui-.l bees, in not olhcrwiHc neccHHary, l*oH.seHHion, in h»w, exiHtu, if the Hwarni roguhirly abiduH in the liivo Ko that tiie product can be rc);ularly obtained for niau^H uMe. And when tlio Hwarui tlies abrowl the ri^lit of property \h not hmt a8 long ah it can be purHiied and ideutiOcd, and docH not establish another habitation. And this right attaches not only to the swarm that has coiitiniioiiNly o<*/Cupied the hive provided for it, but to new swarni8 which go out from overpopulated hives in search of another home. The latter, equally with the original swarm, remain the property of the owner of the hive, wherever they may go, as long as they can be idcntitied and until ail hope of their being recovered is abandoned. In the case of wild pigeons, what must man do that ho may iw(|uiro pro{>erty in themT Nothing more than to provide a place or box in which they can take shelter, and where they can breech and rear their yoang in safety. There is no {mssession in the owner otiier than that coming from hfs occu|)ancy of the land, and from his ownership and control of the place provided for the use of the tlock. There is no handling (as there c(mld not be) of individual pigeons constituting the Hock. But the owner holds siu;h relations to the Hock that he can r«'g- ularly take its increase without diminishing the stock, so long as they continue to ft-equent the plsice provided for them. While tin* capac- ity to do that exists, the original "occupation," tlie foundation of the right of property, remains in full force. In the case of deer, naturally wild, all that is essential to the actiuisi- tion of property in them by man is that he provide or keej) a plac« for them, to which, by reason of his care, industry, and forbearance they habitually resort, and where they remain with such regularity under his general supervision, control, and i)rotection that he can, without impair- ing the stock, reap the benefit of the increase. In the cases cited from the English courts, it does not appear that the deer were taken into actual custody. Their owner simply built a fence around a forest of vast extent, in which the deer roamed at will. Their owner could not lay his hands upon the deer at pleasure. They could be actually taken only as other deer of the forest were taken, by shooting, or with dogs. The owners simply protected them and made a iiusbandry of th. ui. Similar observations may be made in respect to geese and swans, If i^ 1 ^■' 1 ( I I 1 , M 160 by kM*', Mid iuduHfciy n plsuu; is provided for thuiii, wliere they can ubide ill Hiifcty for the puriKwes ct breediu^;, to which th«y habituiiHy come, iiiid where they are proteroperty in them. While these «;oiiditions exist, the right of property remains. The instinct of a wild animal to resort, for the first time, to a par ticiilar placif is not, in the case of bees, pigeons, deer, wild geese, or swans, the cmation of man. But, in a substantial sense, their subse- ({uent return to and remaining at that jilace from time to time, so that a liusbaiidry can be estsiblished with res)>ect t«> tlieiii, is due to the self denial, t^ure and industry of the person who provides for them a place which he maintains and protects for their use. They do not, under the cipcumstauces stated, beoses ahea assent of the United States, they were met, as rtiev migiit be, at tin shoiv .,t tlie islands, and driven back into the water f Would they lei'iain on the islands during the breetiing season t-xcept for the tare takfo. under regulations pre8cril)ed by the I'liited States, to indn«t^ tnem f« do ««, and except for the pr«)tectiou attbrdcd them, while on tlic ishinds. lurainst tlie pursuit (»f seal hunters having in view iiniiMtliate i>rotit tor themselves rathei thaa the l>reHervation >f these animals tor the benefit of mankind! These tiuestioati uuist receive an answer iu the negative. In view of the ' ) % 161 habits of the seals, and of the absolnte necessity of their beinu upon land, for several months in esicb. year, for pnrposes, at least, of breeding and of rearing their yonng, it cannot be doubted that the V'vy existeuct of the race depends upon their being cared for and protected at the place to which they habitually resort, and to which, wlien going back" into the sea, they will certainly return the suc- ceeding spring and summer. It will not do to say that these animals, if not allowed tf) occupy the Pribilof Islands, would seek some other breeding grounds; for, if any change of location should ever take place, the same quastions would arise between the owner of the new breeding grounds and pelagic sealers that are presented in this case. But the possibility that these seals, if driven to that tion is conclusive that there are no coasts, near or on the migration-route of these animals, whicli present the same climatic and other conditions as are found by thejn at Pribilof Islands. In respect to the fur seals frequenting the I'ribilof Islands, what did Bussia do, and what has the United 8tatt«, succeeding to [in rights, done, in order tu bring them within the rules of proporty applicable to au'mals ferte naturm which may be the basis of a permanent hus- bandry! Neither hive, box, park, iior other enclosure, has been pro- vided for them, as in the case of bees, j)igeon8, and deer, respectively, because such a provision is forbidden by the nature and habits of the animals, and would be absolutely useless foi any practical purpose. But ii.i abiding place for all the purposes for which they must, of uejessity, come to and remain upon land, has been provided for them. Upon tlie discovery by Russia of the Pribilof Islands it was ascer- t uneil t-iiat this rac^ made it their land home. Russia desired this condition of things to continue in order that these animals might bo 11492 11 'S 162 utilized for public and commercial purposes, and U^ that eud regula- tions wore established restricting tiie number to be taken annually for audi purposes. Tliat system Las been perpetuated a'ld improved by the United States, with the ro'^uic that the return of these seals to the Pribilof Islands, from year to year, in the same montus, and their remaininj; upon the islands for stated periods, and so that a due piuportion of males may be taken without at all disturbing the herd in its entirety, is absolutely assured, provided only the extermi- nation of the race by pelagic sealing is prevented. But this is not all. We have seen that by an act of Congress, passed soon after the United States acquired Pribilof Islands, the islands of St. Paul and St. George were set apart as the land home of these animals. A place was thus provided for them where they could abide while breeding, and rearing their young, and wliile their coats of fur were undergoing a change. Only a limited number of persons are allowed to go to or remain on the islands. Regulations have been estab- lished preventing the herd from being unduly disturbed while there. Enormous expense has been incurred in providing vessels to guard (he breeding grounds against marauding parties engaged in seal hunting; and the Government of the United States protects the race against indiscriunuate slaughter while on land. The precautions thus taken for the preeervation of the herd may sometimes have been evaded, but it is not to be doubted tluit if raiders were permitted, without restric- tion, to capture and kill these seais while on the i8laule8t and most general form, the truth, which the authorities cited enforce, is that whenever any useful thing, not already appropriated, is dependent for its existence on the art and industry of man — whenever man can trnly say of a particular useful thing that it is the product of his care and labor, or would not exist without his care and labor — then he may claim that thing as his prop- erty. Do not all these conditions exist iu the case of the fur-seals fre- quenting the Pribilof Islands! Are they not met more certainly in respect to these animals than in the case of those wild animals whi(;h the authorities uniformly (l& iare may be appropriated by and become the property of man? Are not these fur seals, when on the Pribilof Islands, so completely iu the power of the United States that the entire herd could be taken in any one breeding season? Is it not due to the care, self-denial and supervision of the United States that these ani- mals regularly return, at stilted times, to those islands, and remain there, for such long periods, and under such circumstances, that a proper proportion of their increase can be readily taken for purposes of revenue and commerce without at all endangering the race? Must not the race perish — would it not long since have perished from the earth — except for the care aiid self-denial ])ractised towards it by the United States? Is it not beyond dispute tliat pelagic sealing is certainly and rapidly destructive of this race? Can this race be preserved for the world unless it is recognized as the property of that nation wliich, alone of all the nations, can protect it from rxtormina- tiou? The care a! id labor which the United States exerts in respect to these animals is to withdraw the Pribilof Islands from all other pos- 168 Hible U8es and devote them to these seals ; to guard them, at onorinous expense, from outside depredation; and to refrain from taking any females, and only a due proportion of males, thereby leaving the st<»ck unimpaired. If either one of these forms of care be withdrawn the race would be swept away with a rapidity only commensurate with the neglect. Human society can have no other interest in useful animals, bestowed for the comfort and sustenance of man, except to preserve the rivce so that its product may be perpetually enjoyed. If it can obtain this service from one nation only it must of necessity employ that nation and decree to it the appropriate reward. The United States is in a position to render that service. Other nations and their subjects can touch these animals on the sea alone; but they can touch them oidy to destroy, because the animals cannot possibly be taken on the sea, to any material extent, without speedily exterminating the race. The divine law, reason, justice, and the municipal jurisprudence of all civilized nations, and therefore, as I submit, international law, all con- cur in declaring that the right thus to destroy that v, hich all mankind is interested in preserving does not exist. The suggestion has beien earnestly pressed that there can be no such appropriation or occupation of these animals, as is requisite to give property, except in respect to such of them as are captured and taken into actual, physical possession. The idea underlying this suggestion is, that there cannot be any legal possession of these far- seals until they are confined or shut up in an iuclosure of some kind. But this view entirely ignores all consideration of what, in view of the nature and habits of the particular animals, is essential to be done in order that they inay come under such control that their increase may be regularly taken for use, leaving the stock unimpaired. As to some animals ferw naturw, no such result can possibly be attained unless they are eflfectively restrained in their liberty by actual confine- ment. In cases of that kind the right of property is of course lost when manual custody ceases, for the obvious reason that the increase of such animals can never be obtained for the use of man in the absence of their actual continnous confinement. When, therefore, the right of property rests, as in the case of some animals it unquestionably does, alone on actual physical custody, such right is lost when the custody ceases. But, when continuous confinement or custody is not essential in order that the product may be regularly and certainly obtained, then such control as <■. ii«Pivi«nvp>pv^ 169 in conHistent with the nature nf Uw aiiiinaln and as will Hiini«-o to eu;il>lu mail to establish a huHbandi-y in respect toiit mnii*) ar^pocta of Mii'h cjiho, or iliiUcr as w«> may al>out the weight of ovidoiiue iipuii Home poiutH, {\i\» Ih »I>8o- liitely certain: If the United State liad actual manual fUHtody of <-a«th of those animalti, at all timen in i a; year, it coultl not fnniwihi dral with tlieni in any other mode than that pursued by it, namely, to take (mly Hiich part of the malen inch yii' ax will kare the rii. c or he>i1 mtim paired in itn entirety for the une of man. And they can not possibly be dealt with in that manner, and with such re/iults, except hy the United 8taten or it« licenxeeH, or at any other place than at the hreeding grounds on its inland. All this is so (dearly ••stablinhed that no one, Imvin^ the ; 'it^'litest r iuteroHtfl depending npon the action of this Trihnnnl. The treaty idtniti- lluH the lierd to wliicii reguIutiouH are to apply by the fm-t of tiieir liabitn- uily resorting to tlie waters and ishuidH of Mi'iing Hva. It' the award so deHcrihes them there will b«i no uncertainty in the decree. Natioiial legiHlatures and courts will find no difliculty in I'oilowing the award, cither in making lawH or in ai)plying them to the proper Heals. The only possible objection that can be urged against tUe claim of ownership of these fur seal animals by the United States is the general rule that animals feras natures are not subject to individual owner- ship. But we have seen that, according to settled principles of law, au exception to this nde has been handed down to us, and is everywhere recognissed, which admits of individual ownership of useful wild animals, the supply of which is limited, ami which, by reason of their nature and habits, and the cnfl territorial waters, maybe appropriati-d as property by the nati it, and letierrin;; to the<5eylon and other ILsheries, say that tliis claim "may l)e lejiitimatcly made to oyster beds, pearl fisheries, and coral reefs." ButhM)kingai the <;rounds upon which property in pearl and other oysiiPT lieds, coral reefs, and the like, rest, it immediately appears that tiMme things are incapable ox occupation or p.istsessiou in the ordinary sense of those words. That they are attached to the soil under the sea is not, it sticnis to me, at all controlling in the inquiry as to property. No such reason is assigned by the writers upon international law. What they d') say on the subject h-.tb reference U) social utility and to the right of the nation, near who.se territory, these things are found, to enjoy the advunfageH of it^ piculiar relation to them. Su(!h t'lings are exhaust- ible; there is not enough for all; if left optu to Indiscriminate and unregulated attack they would bo destroyed; w'lereby a particular nation would be injured. I'littendcu'f says: "As for llshing, though it hath much more abuiid- iint subject in the sea than in lakes or rivers, yet 'tis manifest that it. may in ))art be exhausted, v "\ (lat if all nations should desire such right and liberty near the cr. '^^ of any parti(;ular coi^ try, thatccmntry ITf) must \te very inncli projudiccKl in this reHpoct; eHpocirtlly since 'tis vtM-y iisHftI thftt 8«)iue particuhir kind of tisli, or perliapH Home ii»o c yecions coiiiiiiodity, as pearlH, coral, amber, or tlie like, are to V>o found «»iily in oue part of the sea, i> .•* that of no coiisidurablu extiMit. In this ciuw, there is no reason wis . the borderers siiouid n(»t vaMier challentre I41 themselves this happiness of a wealthy shore or sea thiin those who are sealed at a distance from it." Law of Suture and NatUtm, lik. f, (Jhap. 5, Seo. 7. Vattel, upon the same general subject: "The various iises of the sea near the coasts render it very susceptible of i»r',perty. It I'urnishivs tish, shells, pearls, amber, etc. Now, in all these respects, its use is not inexhaustible; wherefore the nation to whom the coasts belong nniy appropriate to themselves, and convert to their own protit, an advan- tage which nature has so placed within their reach as to enable them conveniently to take possession of it in the same manner as they pos- sessed themselves of the dominion of the land tliey inhabit. VVlio can doubt that the pearl fisheries of Bahren and (jeylon may lawfully become property? And, though, where the cat<;hing of flsli is tJi« only object, the fishery appears less liable to l>e exhausted; yet, if h nation have on their coast a particular fishery o<' a profitable nature, and of which they may become masters, shall they not be permitted to appropriate t/O themselves that bount«'()Us gift of nature, as an appendage to the country they |»ossess, and to reserve to tiiemselves the great advantages which their com>nerce may thence derive in case there be a sutticicnt abundance of fisli to furnish the neighboring nationsf Again: "A nation may appropriate to herself those things of which the free and common use would be prcyudifial or dangerous to her. This is a second reason tor wliicli governments extend their dominion over the sea along their coast as far as they are able to protect their right." Laic of Natiunn, lik. 11, Chap. .'.;, Sci, or zoophites, or ft)8sil substances, may .belong in certain i»arts exclusively to an individual nation." Gh. XT, 8ec. 191. The essential grounds upon which the doctrine is pla«',ed in these extrai'ts is precisely that upon which the similar decisions have Ixien made in the instances from municipal law of bees, pigwMiN, and the like, it is that these properties would be destroyed and lost unless they i UUHWMIHUIHW WWMIUMUT 176 Mi it wero, jirotw.teil by tliict care, indiiMtry, and 8<^lfflenial wluc.li can be (tailed iiit<" activivy only Ivy tii»> n^asoiis wbicli the iiisiituti'iii of pioptirty oIIVmh. It is bwiinirte the iidfihburiii^ nations and no^ie others can ex- ercise thewe qualities and thus iMjrf'orm the service of preservation. It is iHiCivuse they fall under the jjeneral inoposttion that where any ns»iful tliinj< is dependent foi its existence upon the care and self-denial of particular men, those men have a pro|)erty in the thing. That thy its ownership of Pribilof Islands, fs in a riet«rship has b'jer, asserted. The seiitiment in which this doctrine originated is absolutely ineeoncil- able with that in frequency and uncertainty of proprietary rights which distinguish the beginning of civilisation. The true basis seems to be not a distinctive bias towards the institution of property, but a presump- tion, arising out of the long continuance of that institution, that enery- Ihiiuj ought to hare an owner. When possession is taken of a 're« unUim,^ that is, of an obje<',t, which is not, or has never been, reduced to dominion, the possessor is permitted to be<;ome i)roprietor from a feeling that all valuable thii.g.rope!'t,v, and be<;aii8«} no one can be pointed out ius liuving better right than he to tlie proprietorship of this particuliiv thing.'* Uf course. "•» wo have seen from the authorities cited, the possesHiitn of which the le^xrtied writer siH'-aka, in Jiot necessarily actual manual p<»sse8sion, con- tinuously held, which in nuiny cases is imi)rrtcli<'able, but that posses- sior. in law, that general control, vvliich may exist, although the thing ])08se8Hed is temporarily absent from itM own«ir with the animus rever iendi. So, Mr. Howyer, in his Commentaries on the Consfitv.tional Late of Em/land, 2d FaI., London, 18 U!, p. 427: "HI. The third primary right of the citizen is that of ])roperty, which consists in the free use, enjoy- ment, and disposal of all that is his, without any control orr^lminution, save by the law jf the land. The institution of property — that is to say, the appnvpriation to pav ticmlar persotis and uses of things which were given b; (Jod U^\\\\ mankind — is.>f >irtf«»vr/ Unp. The reason of this is not dif!icuit to dis(;ovcr, for the increase of mankind must soon have rendered community \)\ goods exceedingly inconvenieiit or imp<»ssil)le consistently with the peace of society ; and, indeed, by far the greater number of things canncit be maile fully subservient to the use of man- kind in the most b'iuettcial manner unless they he f/ovenicd by the laws of exclusive appropriation.^^ The suggestion has been much pressed that the authorities cited in support of the claims of property by the United States refer to animals /era' natnra- that have l)een either tamed or recJutmed by the art or industry of man. And it was said that tiiese iur seals are neither tamed nor reclaimed. But upon careful atter.tiou to tlie reast)ns assigned by courts Uiid writers for the recognition of property, under given circumstances, in bees, pigeons, deer, wild geese, and swans, it will become manifest that there was no i)urp.me to declare in respect to any of these animals that they had lost all of their original wild- ness. Some wild animals nuiy be so tamed, or beconie so subdued by the treatment accorded to them or by the circumstances attending their situation, as to exhibit very little timidity or siiyness in the pres- ence of man. Other animals, usually called wii.l, but not gentle in their nature, are more ditlicult to a]tj)roach. Still other!; retain, under all circumstances, so uuich of their oiiginal wiiduess, and so much of their innate fear of man, that it is iujpossibh^ to liaiulle them as can often be done in the case of some strictly domestic animals. When, 11492 12 PHP m fl f 178 therefore, tlio imthoriMcrt speak of bees, pigeons, deer, wild geeso, and 8wan8, as tamed or reclaimed, tliey mean, aud could mean only, that thair original .vildnoss had, by the art and power «;f man become so far dimished, mo(lilled,or controlled, that man is able to establish a hus- bandry in respec; to them, and obtaiti the beneHt of their increase with- out impairing the race. If auimal8,originally wild, come under the power and cy actual confinement, or by some other mode that depriven tlii*nn <>f t**«r natural liberty. To tiiis it may bo answered, that the priiunili' irtw* I have maintained has no application to those usefni a lu respect to which the care, industry, aud labor of m»u is li^tftect- ual or unnecessary to Jitilize their increase, while i>reservinjji; tlie stock. Some of theni cannot \»c brought within the rea^ih or efforts of roan; some have not the sure iiiHtink8 had been used to res(»-t and build their nests and rear their young by reason wli«reof he had been nsetl to kill and take the rooks arid the young thereof, from wliici great i»'«>lit and advantage had accrued to li mi: yc! tlic defemlant. wrongfully and maliciously, intend- ing to injure the plaiiitilf and alarm and drive away the lonks, and to caiise them to tVn-sjike the trees of the ]>laintift, wrongftill. and injuri- (Uisiy caused guns loade*! with gunpowder to be dischar^ ' near the pUuntitt'V cl«Me and ther«'b\ disturbed and drov<' away the rooks, in ctMiwtquence x4' w)»4cii tltc pfiin:!!' was (trevented fn.ni killing the nM»k** and takinp^fllir young tJu . mi. Tlic plea was not guilty, liayley, J., wwd: "The pia»Htif!' d«t»>s not state any spwial nght in him to have tJie nM»ks i-RHort U> his trees; he relies ffijton that, general right whk-h All the Kitif^'s subjects Ji»ve, aiwi he descTS)e« the protit t*» arise to bini, not from tli«» eggs, but from killing tne birds and rhoii- yoaug. To uniintain an ;M>twH rhe plaiuttii iiMist hav* had a rigkb. snd tiH"det« ud ant UMint hav«- d«Ht^ a wp*«»g, A man's rigkth me tl»* T^>ts of personal liberti, {lersffual swMirity. and iiriviete prf>|»iis-'t\ . P^vate j(rope»ty is either property in jwssession, property iii roperty that an individual has a dpeciai rigjit to acjuire. Ihe .ujaiy in this case ()«m 1 IIP m lao not affe<'.t any right of ixM-soiml seonrity or iM?r«otial liberty, nor any property in pu.ssession oi in ac-tiou; and the queutiou then is, whether there is any injnry to any |>roi»erty the ])laintitt' had a special rifiht to a4-qnire. A niiiii in trade has a ri^ht in his tali chances of profit, and lie gives up tinit^ and capital to ./otain it. it is for the good of the public that he shouid. But has it ever been held that a man has » right in the chance of obtaining animals /er>t protected by any statute, but on the contrary have been declared by the legislature to be a nuisance to the neighb«u'hood where they are. That being so, it is qnite clear no |)erson can claim a right to have them resort to his lands, nor can any person be<'ome a wrongdoer by preventing their so doing. Keeble v. HickerintjUl bears a stronger resemblance to the pres- ent than any other case, but it is uistinguishable. There it was decided that an action on the case lies for discharging guns near the decoy ili JiM 181 pond of aiiotluM', with design to damnify the owner by frighteniiij; away the wild fowl resorting Mieroto, by wliicli tlio wild fowl are I'right- cMied away and tiie owner damnified. But in the lirst pliiec it is observa- ble that wild tbwl are protected by tl.e statute (25 H.8. eii.): that tliey ex>nstit:ite a Icnown article of food, and that a i)er8on keeping up a decoy exi)ends money and employs skill in taking that which is of use to the publie. It is a jtrotltable mode of employing his lantl, and was eonsidererotected either by common law or by statute, and that the plaintif!' is at no expense with regard to them, we are of opinion that the plaintiff bad no right to insist upon having them in his neighborhood and that he can not maintain t'lis action." The case of Keeble v. Ilichci\,:^ill (11 East, 574), above referred to, illusirates the rule in respect to animals ferae nctume that are useful. That wa« an action on the case. The plaintiff was the owner of a decoy pond to which wild fowl used to resort. i\.t his own costs and charges, he prepared and procured divers decoy dlu-ks, net's, niiuihiiies, and other apidiances for the decoying and taking of wild fowl, and enjoyed the benefits in taking them. The defendant, knowing these facts, and intending to injure the plaintiff in his vivary, and to fright and drive away the wild fowl, used to rewrt thither, and to deprive hiia of his profit, frecputitly d'.-f(!harged loaded guns at the head of the pond and vivary, wlnroby lie drove awiiy the wild fowl then in the pond. There whs n verdict for the i)liiinriff. Chief .liistico Holt said : " I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, first, this using or making a decoy is lawful; secondly, this 182 euployincnt of hiHgrouiul to that uhi* i» profitable to the phiintitt', as m the Hkill and nmiiafj^oinent of t)iat eiiiph>yinciit. As to tiic firHt, every man tlnit hatli a prop<;rty may enjoy it for his ph-asure and profit, as for alUiriii^ and procuring ducks lo come to liis pond. To h;arn the trade of sedueing other ducks to conie there in order to be taken is uot proliibited either by the law of the hind or the moral law; bat it is as lawful to use art to seduce them, to cat (;h them, and destroy them for the use of nuinkind as to kill uul destroy wild fowl or tame catthi. Then, when a man useth his art or his skill to take them to sell and dispose of for ^ is profit, this is his trade; and he that hinders another in his trade o^ livelihood is liable for an action for so hindering him. • •••••• " And when wo do know that of long time in the Kingdom these arti- ficial <'ontrivance8 of dcnoy ponds and decoy ducks have been used for enticing into these ponds wild fowl in order lo be taken for the jH'ofit of the owner roperty in them should be awarded to the United States; for, according to all the authorities, a right of property in aniraals/c/w natiirw depends upon the capacity of the party asserting such a right, exclusively to take the increase of such animals from time to time without destroying or impairing the stock. If, therefore, an award of property in favor of the United States will give that country, practically, a monopoly in the business of taking these fur seals for use, it will bo a monopoly which all civilized nations are interested in fostering. When a monopoly iu ^ Im- I W: 184 li piirticulur nation is the only or thu bent mode of proHervin;; to man a gift of nature, then the world \n not interoHted in breaking it down in order Himply that a few, whose nietliods of utili/.ing that gilY. will surely d«*Htroy it, may reali/c Hiifjht tcmitorary ^ain. The natioi-n do not iKigrudge the ••njoyinent by (Ireat Ihitain anil Konie of its colonieH of a monopoly in pearl and other llHlieries off their reKi)ective coaHtH, far out in the open Hea beyond territorial waters. And no of tlie e«>ral in which l''rance and Italy are interested, and of the ilaherieH on whi(rh the prosperity of Norway ho much depends. This cas*!, then, although new in its special circumstances, because relating to animals which, in many respects, are unlike all other known animals, is not, to use the M'ords of Chief .lustico Holt, new in the reason or principles of it. Bringing together the principal facts, and the conclusions arising from them, the case presented by the United States, and upon which it asks a judgment at the luinds of this Tribunal sustaining its claim to own these seals, not only while they are at their breeding grounds, but when temporarily absent therefmm in the high seas in (juest of food, is as follows : (a) This race of animals is exhaustible in number and is valuable for purposes of raiment and food. They are not a product of the sea, for they are conceived on land, can not be conceived in the ocean, and must, of necessity, come into existence, and for a considerable part of each year abide, upon land. (b) When away from their land home it is for temporary purposes, and with the absolute certainty that, unless waylaid and killed by pela- gic sealers, while they are beyond territorial waters, they will return to that home at a particular time, and remain there for several months, in every year, during which a proper proportion of their increase can be readily taken, leaving the herd unimpaired in its integrity. (c) The land on which they were born — the islands of St. Paul and St. (leorge — became the propei'ty of the United States in 1867, and has been uiiiiutuiucJ foi more than a century, tiist, by llussia, and after- wards by the United States, exclusively as the habitation of this race, to which they could resort, in safety, and to which for a period so long that the memory of man ruuueth not to the contrary, they have regularly resorted, for the purpose of breeding and rearing their young, and of renewing their coats of fur. (d) VV hile on the islands, during the breeding season, they are protected ih 186 at {frent expense aifiiiiiNt iiulisitriiniiiato Hlnti(;htor by raidcrH aiul Heid- liuiiters. In addition, and that tiioy may not bo unduly diMturlxnl while on tli«i hrcedinj; ^roundH, tli« rnitcd States exrlud«*M all imthoiih flponi the inlands of St. Paul and St.Oeorjro, except such aHaro required in eoniiection with the industry there eondueted under itn authority or li«;enHO — ^.that induHtry bein^; the taking, tor |iur(M)He8 of revenue and commerce, hucIi proportion of males as can be safely taken withh seas to any ext<>nt that isprotlt- able to those engaged in it involves the very existence of the race, because the killing by pelagic hunters of seals heavy with young, or suckling mothers, or impregnatiMl females, will inevitably re^mlt in the speedy extermination of the race. (fl) So that the taking of these animals at the breeding grounds for commercial pur]ioseH, under regulations that emtble a proper proportion of males to be taken* for use, and the killing of them in the o]ien waters yf the ocean, where no discrimination as to sex is possible, is the dilVerence between i)re8erving the race for the benetit of the world ami its speedy extermination tor the benelit of a few Canadian and American sealers prosecuting a business so barbarous in its nuihods that President Harrison fitly characterized it as a crime against nature. {h) The couung of these animals from year to year to the I'ribilot islands and their abiding there, so that their increase can be taken for man's use without impairingthe stock, being due entirely to tiie care and supervision of the United States, if that care, industry, and supervision be omitted or withdrs- v'u, the speedy destruction of the race will cer- tainly follow. The same result will inevitably follow if i)elagic seal- ing be recognized afi a ri^ V /i y 1.0 1.1 11.25 L&I2.8 12.5 lu l&i ■2.2 u lii •if |j£ 12.0 U 11.6 Photographic Sciences Corporation 23 WIST MAIN STMET WEBSTIt.N.Y. USSO (716) •72-4503 »«!^> ♦V'^ V ^ s> nl 186 by the United States in theHe animalH would secure, beyond all qnes- tion, the preservation of these animals. Natural justice, right reason, and the interests of mankind, demand that this recognition be given by this Tribunal ; for the United Stiites, alone of all the nations, holds such nrlations to these animals, that it can preserve the race from ex- termination while utilizing it for the purposes for which it was bestowed upon man. No possible harm, but only good, can come from a judg- ment to that eilect. Such a judgment will declare that the law of nations is adequate to preserve valuable animals whose existence is endangered by the acts of a few who seek temporary profit for them- selves in the extermination of the race. For the reasons stilted, I am of opinion that these fur seals, con- ceived, born, and reared on the islands of St. Paul and St. George, be- longing to the United States, are, when found in the high seas on their way back to their land home and breeding grounds on those islands, the property of the United States, and that this right of property is qualiUed only in the sense that it will cease, when, but not before, they cease to have the habit of i*eturuing to the Pribilof Islands after their cus- tomary migration into the open waters of Bering Sea and (he North Pacific Ocean. If the claim of the United States to own these fur seals rests, in law, upon a sound foundation, the next inquiry is whether it may protect its property? There can be but one answer to this question. Manifestly it would have the same authority to protect its property that an individual has for the protecti«)n of his property. The United States may, to that end, employ any means which the law, under the like ci4'cuiH8tances, permits to an individual for the protection of his property. No one questions its right to aflbrd protection, to that extent, while the seals are on its islands, and while they are within territorial waters. That right — if the United States oinig the seals — is not lost while they are temporarilly absent in the high seas, beyond territorial waters; for, they are rightfully in the high seas, and the United States is right- ftdly present wherever its ships may be in the high seas. It is scarcely necessary to cite authorities in support, o ' this position. The Attorney-General of Great Britain concedes tliat "if the fur seal is to be treated as an article of pmperty, there is the right to defaiid it on the high seas if attacked"— "the ordinary right of defense of ixis- session whicii belongs to an individual owner of property." li-i^-MS -'. -- .JJKJ f Jl /.!*».— n 187 But does the right of the United States to protect tliis race of animals from extermination by pelagic hunters d<>pond upon its ownership uf the herd, while the seals are beyond jurisdictional limits in the high seasT Does that country have such npecial pecuniary intereHt in tlM> preservation of the race that it may, consistently with the law of nations and independently of any right of ]>roperty in the hei-d itself, interpose, if need be by force, to prevent their wanton destruction while absent from the Pribilof Islands t I say wanton destruction, because no one can for a moment doubt that pelagic sealing, if it continues to the extent practiced within the past Ave years, will soou exterminate this mce. The principal facts upon which the United Slates rests the contention that, independently of property in this herd of seals, it may use such means as are necessary {a prevent the destruction of the race by p(;]agic sealers, are suminuri/.ed in the following extracts imxn the printed argu- ment of the counsel of the United States : " Ilere is a herd of amphibious animals, half human in their intelli- gence, valuable to numkind, almost the last of their species, which from time immemorial b ive established their home with a constant animuH revertendi on islands once so remote from the footsteps of man that these, their only denizens, might reasonably have been expected t^) be permitted to exist and to coutiuue the usefulness for which the benefi- cence of the Creator designed them. Upon tliese islands their young are begotten, brought forth, nurtured during the early months of their lives, the land being absolutely necessary t^i these prn of re|>ro- duction, and todestn»y the pregnant females on their way to the islands, the nursing mothers after delivery while temporarily oft' the islamls in pursuit of food, and thereby the young left there to starve after the .t • ■ JJ, h' i I ^' 188 moLherH have been Hlauglitererinciple8 of self-protection or self-preservation, employ, even upon the high seas, such force as is necessary to prevent that destruction and thereby pro- tect the industry which is maintained on its islands for pur^rases of rev- enue and commerce as well as for the comfort and maintenance of the native inhabitants of those islands — the exintence of which industry de- pendn abHolutely upon the existence of this race of animals. This proposition is disputed by Her Britannic Mi^esty, who insists, by counsel, that her subjects, unless forbiddeu by the laws of Great Britain, or by some treaty or convention to which that country is a party, are entitled under the law of nations t*) capture and kill for use or profit, any animals, however valuable, found in the high seas; that this rigiit does not depend in the slightest degree upon the inquiry whether the particular methods employed in Capturing and mF, 189 killing the aniinnis are or are not barbaronn, or wliethor the prosecn- tion of the buHinens will or will not losnlt in the spt'cdy extermina- tion of the nice, or in tlie deatruction of the fur seal induHti-y miiintained by, or under the authority of, the United Stat<>8 on its islands; and that any interference whatever by other nations with the exercise of this right by British subjects is forbidden by tlie doctrine of the freedom of the seas as recognized by international law. In re8|)ect to that branch of the general proposition advanced by the United States which assumes that pelagic sealing, condn<;ted according to the destructive methods and to the ext<>,nt now practice«l, involves the siMjedy er^.termination of the race, and, conseerty is to his welfiure; that, in all ages and in all countries, man has instituted property as the nec- essary reward of labor, and that property has become a law of his species. Bk. tf, chapters 1, 2, .V, and 4. But no writer has ever main- tained the monstrous proirasition that society when instituting prop- erty, recognized the wanton, reckless extermination of a race of useful animals as one of the rightn inherent in man, or as tolerated by the prin- ciples of justice, benevolence, and right which constitute the basis ttf the law of nations. All will concede that one of the great objects, i^' not the supreme object, which society expected to accomplish by the institution of property, was to preserve and increase those things, ani- mate and inanimate, that are bestowed u;H>n nmn for his use. Man- kind is entitled to participate in the enjoyment of the things thus 1m)- stowenferH upon individuals or asHociatiouH a right to employ luotliodH for the tukiugof useful animals found in the high seas which will exterminate the race, i?liun all know, or nuty easily know, that hucIi animals may be readily taken at their breeding grounds, and not else- where, by methods that regularly give their increase for man's use without at all impairing or diminishing the stock. One method results in the extermination of the race, whereby the object of its creation is entirely defeated; the other results in its preservation, whereby that object is secured. It is inconceivable that the law of nations gives or rccogni/es the right to employ the former. No civilized nation does or would permit, within its own territory, the destruction or extermination of a race of useful animals by methoils at once cruel and revolting. And yet it is said that such conduct, if ]>racticed on the high seas, the common highway of all peoples, is protected by international law which rests, as jurists and courts agree, primarily uiran those principles of morality, justice, right, and humanity, by which the conduct of individuals and states are, and ought to be, guided. Thus the law to which all civilized nations have assented is made, by the contention in questiorary gain for themselves at the expense of the rights of the general public. But it is said: "Grant that the taking of these animals in the high seas, by methotls destructive of the rac«, is not a right under the law of nations: srant that the employment of such methods is inhuman and injurious to the best interests of mankind; grant that the fur seal iudustry maintitined at the Pribilof Islands depends absolutely ni>ou those animals not being killed while they are temporarily in the high seivs in search of food, or while they ard ou their way back to their 198 breodliig grnandB; by wluit nutliority doos tin* United States inteiTuro witli the iiioveiiioiits (if tlii' Huhjects of otliiT coiiiitiios on tlie lii^fli *ea8, and by tlie uk« of for {ground — propounded, not, indeed, in words, butjneftect, by tlie arf^u men t of conn sol — that, without su|>port from tre itiesor conventions between tlie nniritinie nations of tlio world, the United States is powerless, under the hiw of nations, to preserve tlie industry eHtab1i8heon the high seas. These acts are so character'-^ed, because the killing of these fur seals in the high seas, as now practiced, where no tliscrimination as to sex is possible, and when the extermination of the race will be the inevitable result t>f such killing, is forbidden by every consideration of humanity, reason, and justice. And, in view of the facts disclosed by the record, it is clear that the killing of these animals by pelagic scalers, while they are in the high seas, on their migration-route, is as certainly destructive of the industry maintained by the United States at the Pribilof Islands an if the pelagic luintem came pernoiiaUy to the islnmh, durhif) tlie breed- ing iieaHon, and engaged there in the indincriiiiinute daughter of the ani- malft, without regard to their Hex or age. That the United States can rightfully control the killing of these animals both on the Pribilof Islands and within its territorial waters will not be disputed. This much, all admit, may be done in virtue of its sovereignty over such country and waters. Rut as the important industry maintained on the islands can be preserved onUj by preventing the destruction of these animals after they hare passed beyond terri- torial waters into the high seas, with the intention of returning to their breeding grounds the sitrceeding spring and summer, does not the right ofselfprotection or self preservation, which beh)ngs to every independent nation, entitleit to protect these animals while temporarily absent from their land home ! Vattel says : " In vain does nature prescribe to nations, as well as to individuals, the care of self preservation, and of advancing their own perfeiition and happiness, if site does not give them aright to preserve themselves from overyt'oiiHtiblo ohligatiuii; tor wlieii wc can not uho tMHiHtraint in order try un- «!flrtain. It in tliia ri^lit t4> pruHt^rvu itsi'lt' t'roni all injury that i» called the rifiht of Hvcuritjf." Hk.HiyC. I. Dr. l'iiil!inif her conduct in this respect." Again, the same author: '' We have hitherto considered what measures a nation is entitled to take for the preserva- tion of her safety tcithin her dominions. It may happen that the same right nuiy warrant her in ext«nding precautionary meafiures irithout these limits, and even in transgressing the b(»rders of her neighbor's territory. For international law considers the right of solf-prcserva- tion as prior and paramount to that of territorial inviolability, and, where they conflict, .justifies the maintenance of the- former at the exiMinse of the latter right." 1 I'hillimorr, 2n2-ii5.% c. 10, §§ 311, 211, 3d cd. Hall says: " In the last resort almost the whole of the duties of states are subordinated to the right of self-protection. • ♦ • There are, however, circumstances falling short of occasions upon which existence is immediately in question, in which through a sort of extension of the idea of self-preservation to include self-protection against serious hurl, states are allowed to disregard certain of the ordinary rules of law, in the same manner as if their existence were involved." Hall Int. Law, PL 11, C. 7, 2 ed., p. 2U. It has been suggested that the doctrine of selt-protection, referred to by writers uiwn international law, has application only where the acts against which the state defends itself involve its existence, inde- l>endence, or safety, or the inviolability of its territory, and do not justify in time of peace, any exercise of authority or power by a state, beyond its jurisdictional limits, in order merely to prevent the doing of that which, in its direct efle(;ts, will work injury to its material interests. A familiar illustration of the extent to which a State may go in defending its existence or providing for its safety, is that of a blockade which interferes with the commerce of neutral nations. " The greatest liberty," Manning says, "which law should allow in civil government is the pow^r of doing everything that does not injure any other person, 195 ftiid the Kr'^ivtost liberty which justice Hinnii^ iiivticniH doiniindH i« that every Htftto may do luiything thut doen not injure any otiier Httiie witli which it i» iit iiinity. T\w freedom of commerce and tlie rijflitH of war, lH»tli undoubte II, i 196 ity for tlio broiul Htatvnieiit tliat a iiutioii iniiy i)«)t iihc, n|)on tlin liigli HeiiH, ill tiiiioof |H.MM'v, Hiirli thri'.e m \» iimrcHHjtry t4» prvvoiit tlio miii- iiiiHHioii of iMttH which liave no Hiiiictioii in the hiWH of iintioiiH, iini in thoniiw;lvi'M wroii);,Hiid, if«-uininitt«(l, will iiiuvitubly iloxtroy itn|M>rt»iit indiiHtrii-H eHtiibliHiiod itnil inniiitiiiiicil by tliiit niition within itH U>rritory lor puriMiMVH of roveniiu and comiiicrce. Thn iiiitioii thiiM (imploying force for the protection of itM hiwl'iil iiidiiHtri«^H«iooH not thereby uppropri- »te to itself any part of the ocean, or oxt<>iid8 its doiiiinion, or inter- fere with an innocent uko of the Hca fur pur]HjHeH ot navigation or fiHliing. It only in-cvcntH the d<»ii.g of what can not be rightfiilly done, and thereby prcHcrveH what no one has a ri^ht to dcHtroy. The dcMrtrine of the fri>edoin of the Heas does not authorize or minction the deHtriiction of the Miatcrial ! itcrcHts of a nation by iiieanH of act8 done on the high kc^m which arc in thcin^elvcH iinjuHt and wrong, bcoaiiHe hostile to the intereiitH of mankii.d, and contrary t<» those rulex of mor- ality jnHticc, and right reaHon which govern the conduct of individuals and nations with each other. V.r. Ulaino well said: "The law of the sea is not lawlcMsnesH. Nor can the law of the sea and the lil>erty which it confers and which it protects be perverted to justify acts whicli are immoral in themselves, which inevitably tend Ut results against the interests an against the welfare of mankind."^ As declared by Mr. Justice Story, speaking for the Supreme Court of the United States, in thecascof tiie Mariaiina Flort, (It Wheaton,!, IS): <' Upon the ocean, then, in time of peace, all jKissess an entire oipiality. It is the oommoii highway of all, appropriated to the use of all ; and no (me can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing hei own lair/ul business without interruption; but, whatever be that busi- ness, she is bound to pursue it in such a maimer as not to violate the rights of others. The general inaxini in such cases is xic utero too, ut non alienum IcedoH."" Observe, that the business upon the high seas, the uninterrupted prosecution of which is protected by the doctrine that the free use of the ocean for navigation and tishing is common to all mankind, is that which is "lawful.'' This doctrine can not be invoked to support the use of the high seas for the i>erpetration of wrongs or injuries. On the contrary, the principal ground on which that doctrine rests is that the sea is so vast in extent, and so inexhaustible in its pro- ducts, that its free use for purposes of navigation aud flsjiing can do no harm to any one. Twiss, in his work upon the Law of Nations, after observing that ►. A 197 tlio open Mea ia by iiutiiro not ('aimbh^ orboiiiK milncwl into Mi«poN(u>n Mi«ni, K i-esput-t iit HUfHcit'iit tor all nuinkind. Hut nature dmm not pfivu t«i nnin a ri^lit to appropriate to liiniself tliiuf^H whicli may be innocrntly med hy all, and irhivh arc iiu>-hn,intiblr ami HufHrienl for all. For gince tlioHe tliingH, wliiiHt eoninion , all, are Nntllcient ti> Mupply the wttiita of each, wlioover Hhould att 'in|)t to render himself nolo pniprietor of them (tothe*xeluBioao<" Moth' r partieipantH) would unreaHoinibly wrest the bounteous xills . nature fro'-i the parties ex- ' aded. Further, if the free arul cmiirnHi use . piejudii ial or daiigenniH to a nation, the earoof its own safety woniil aiiliiorize it to reduce tliAt thing under its exclusive empire, if (xissible, in order to restrict the use of it on the part of others, by smth prei-autious as prudence mij^h* dic- tate. Hut this is not the case with the open sea, ii|)on which all per- sons may navigate without the least prejudice to any nation whatever, and without exposing any nation thereby to danger. It would thus seem that there is no natural warrant for any nation to seek to Uiko possession of the open sea or even to restrict the innocent use of it by other initions." Again, the same author: " The right of tlshtng in the open sea or main ocean is common to all nations, on the same principle which sanctions the common right of navigation, namely, that he who tlslies in the open sea d<}eii no injury to any one, and the prodavtM of the Ilea are in this renpect inexhaustible and Hufflvient for all." Tteisti, haw of Nations, Title, Riyht of the Sea C. 11, §§ 17JS, /.s.j. So Oro- tins: " It is certain that he who would take possession of the sea by occupation couhl not prevent a peaceful and innoeent navigatiim; such a transit can not be interdicted even on land, tliuugh ordinarily it would bo less necessary and more dangerous." Hk. !i, c. 3, § 12, page 4i'>. Vattel: "It is manifes*; that the use of the open sea which consists in navigation and lis'ting is innocent and inexhaustible ; that is to say, he who navigates or gsh'^.s is sutticient for all man- kind." Chap. 33, Sec. 291. Aznni, in his work on the Maritime Law of Europe, well says that tiie sea is intended by Prnvideniie to be common t«> the ditl'erent nations of the world, "to contribute to the wants, the commerce, the well-being and the prosperity of all who i. FTPT 198 [H^ W n have tlio meaiia of navigating its snrface" — not that it may be used of right to the injury of mankind in order that a few may reap a temporary I)rofit from tlie destr action of that which has been bestowed for the benefit of all. Pt. 1, c. i, § 11. In view of these authorities, how can it be said that the doctrine of the freedom of the seas justifies and protects the use of the seas for the purposeor with the inevitable effect of destroy- ing a i-ace of valuable animals, limited in numbers, easily exhaustible by waste, and in the preservation of which all mankind is interested! If the United States does not own this herd of seals, and if, in order that they may reap temporary profit, British subjects may, of right, exterminate it when found in the higii seas, aiid temporarily absent from its land home, and thus destroy an important industry maintained for more than a century within the present territory of the United States, then, I admit, that any interference by the United States with the hunt- ing and killing of these animals in the high seas by British subjects would be a marine trespass of which their country could rightfully complain. But I deny that any use of the seas for the puriwse, or with the cer- tainty, of producing that result, is a lawful use of tu3 ocean, or that the right of the United States to preserve its material interests, thus directly attacked, depends upon the consent of other countries to be manifested by treaty or legislation. The nation, whose interests are thus assailed may stand upon its inalienable right of self-protection, and by force, if need be, prevent the commission of such acts, even if it may not in its own courts infli>!t persotial punishment for such wrongs uiH)n the subjects of other countries who commit them. If it emidoys for its self-protection more force than is reasonably necessnry it will be res{H)nsible therefor to tlie country upon whose subjects such force is used. But its inability to intiict such punishment, in its on Ji courts, can not affect its right, by such force as is necessary, to preserve its material interests by repressing the nets of wrongdoers directly injurious to those interests. When the books speak of the equal rights of all people to use the ocean for purposes ot' navigation they mean navigation for purposes that are innocent and lawful, and not for purposes which are, in tluunselves, uiyust and injurious to others. These views are not at all in ooiiflict with tlie general rule that a state may not exercise sovereign authority or jurisdiction beyond the line of territorial waters, whether that hne be a marine league fntm its shores, or at such distance as may be measured by cannon shot. That rule has its origin in the necessity which every state is under to j)rovide for the safety of its own people and interests. But the right of self- 199 protection or self-preservation does not end with the outer line of mftr. ffinal or territorial waters. In the very nature of things it <;ould not end with that line without rendering the right valueless. Rutherford, in his Institutes of Natural Law, gives expression to views upon the doctrine of self protection which are univ«M-sally aot^eptcd. lie says: "In short, the true [)rinciples upon which our right of defending either our persons or our goods depends is this: The law of nature does not oblige us to give tlieui up wlien any one lias a mind to hurt them, or to take them from us ; and that the law of nature does not oblige us thus to give them up, is evident; i>ecauso our right to them would be unintelligible, or would, in effect, be no right at iiU if we were obliged to suffer all mankind to treat them as Ihey pleased, Avithout endeavoring to prevent it. If this, tlien, is the i)rin(!ipli^ upon which the right of defense depends, we can not expect to find that the law of namre has exactly defined how far we may go, or what we may lawfully do, in endeavoring to prevent an injury which any one designs and attempts to do us. The law allows us to defend our persons or our property; and such a general allowance implies that no particular means of defense are i>rescribed to us. We may, however, be sure that whatever means are necessary must be lawful, because it would be absurd to suppose that the law of nature allows of defense, and yet forbids us at the same time to do what is necessary for this purpose." BTc. 1, 0. 16, 2d American ed. An illustration of these principles is furnished by the case in the Supreme Court of tlio United States of Church vs. Hubbart {2 Crunch's Reports, Ibli, 231), decided in 1801. That was an action upon policies of insurance upon the cargo of a vessel, which contained pro- visions exomi)ting the insurance company from liability in civse of a seizure of the vessels by the Portuguese for illicit trade. During tlie life of the policies the vessel was seized by the Portuguese and con- denuied in one of its municipal tribunals for a violation by it of the lawj ((f Portugal prohibiting commercial intentourso between its colo- nies and foreign vessels. On behrlf of the insured it was contended, among other things, that the policy of insurance did not exempt tiie company from liability, unless the seizure was Justified by the laws of Portugal and by the law of nations. His counsel said: "Tlie sentence does not go on the ground of illicit trade. At most it oidy expresses a suspicion. The vessel was seized five leagues from the land, at anchor on the high s >as. Tlie seizure was not Justified by their [Portuguese! laws. She was not within their territorial jurisdiction, IJy the law i iUMi jT" II T T-flW 111 - nntrntnaimt'-^?^ 200 h I -nit I of nations territorial jurisdiction can extend only to tlie distance of cannon shut from the shore. Vattel, B. /, c. 23, h. 380, 289. A vessel has a right to hover on the coast. It is no cause of coiideniuation. It can, at most, justify a seizure for the purpose of obtaining security that she will not violate the laws of the country. The law which is pro- duced forbids the vessel to enter a port, but does not authorize a seiz- ure upon the open sea. Great Britain, the greatest commercial nation in the world, has extended her revenue laws the whole length of the law of nations, to prevent smuggling. But slie authorizes seizures of vessels (mly within the limits of her ports, or within two leagues of the coast; and then only for the purpose of obtaining security". 4 Bac. Abr., 5i3. (Counsel for the insurance company, referring to the rule cited fwna Vattel, and observing that it had reference only to the rights of a neutral territory in time of war, said: "It is a very indefi- nite rule indeed, even fstr the purpose t ) which it extends, for it makes the extent of a nation's territory depend upon the weight of metal or projectile force of her cannon. It is a riglit which must resolve itself into power, and comes to this, tiiat territory extends as far as it can be made to be respected. But this principle does not apply to the right of a nation to cause her revenue and colonial laws to be respected. Here all nations do asmtme at least a greater extent than cannon shot; and other passages from Vattel show the distinctions which are acknowK-dged on this point." I have given these extracts from the arguments of counsel to show that the question was distinctly presented whether the seizure of the vessel by the Portuguese authorities, outside of its territorial waters five leagues from land, was, for that reason merely, illegal uAder the law of nations. Upon this question the Supreme Court of the United States, speaking by Chief Justice Marshall, said: "That the law of nations proliibits the exercise of any act of authority over a vessel in the situation of the Aurora, and that this seizure is, on that iWiuonnt, a mere marine trespass, not within the exception, can- not be admitted. To reason from the extent of protection a nation will afford to foreigners to the extent of the means it may use for its own security does not seem to be perfectly correct. It is opposed by princi- ples which are universally acknowledged. Tlie authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But 201 its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Uptm this principle the right of a belligerent to searcb a neutral vessel on the high seas for contrabrand of wai- is universally admitted, because the belligerent has a right to prevent the injury done to himself by the assistance intruded for liis enemy; si> too a nation has a right to prohibit any commerce with its coh>nies. Any attempt to violate the laws made to protect this right is an injury to itself which it may prevent, and it has a right to use tlio means necessary foi its prevention. These means do not appear to be limited within any certain marked boundaries, whicli remain the same at all times and in all situations. If they are such as unnecessarily to va: and harass foreign lawful commerce, foreign nations will resist their exercise. If they are sucli m are reasonable and necessary to secure their laws from violation, tliey will be submitted to. "In different seas, and on different coasts, a wider or more contracted range, ;;i wliich to exercise the vigilance of the government, will be assented co. Thus in the cliannel, where a very great part of the c om- merce to and from all the north of Europe passes through a very naiTow sea, the seizure of vessels on suspicion of attemittiiig an illicit trade, must necessarily be restricted to very narrow limits; but on the coast ot South America, seldom fretpiented by vessels but for the purjjose of illicit trade, the vigilance of the government may be extended some- what further; and foreign natious submit to such regulations as are reasonable in themselves, and are really necessary to secure t!iat monopoly of colonial commerce which is claimed by all nations holding distant posessions. " 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 recollected, complained of the right claimed by Spain to search their vessels on the high seas, which was carried so far that the yuarda coHtaa of that nation seized vessels not in the neighborhood of their coasts. This pra G,,;iiion of Chief Justice Marshall, the Lord Chii'*' .J.nsiice proceeds: "To this class of enactments brlcu^ the acts imposing penalties for the viola- i'^ 203 tion of nenlrality and tbe ao-called 'Hovering Acts' and acts relating to the custom 8." I bave not understood counsel to question the validity, under the law of nations, of the statutes of either England or the United States, commonly linown as hovering acts, by wlii(;li tliose (;ountries assume to exert their authority (if need be, employing force) beyond tlie lino of territorial waters, when that becomes necessary for the protection of her revenue against tliose who intend to violate their customs laws and regulations. This is done, to repeat the words of Lord Chief Justice Gockburn, in the exercise of " the right of a state to take all necessary measures for the protection of its territory and rights and the prevention of any breach of its revenue laws." Suppose individuals shonld organize in England a plan for smuggling g«>ods into the United States in violation of its revenue law, and to that end should load a vessel at Liverpool with the goods thus intended to be introduced clandestinely into the United States and sail from one of the ports of that country in direct execution of their illegal scheme. Would any one doubt the right of the United States, if the circumstances nmde that ccmrse necessary, to anthorize the seizure of the goods in mid-ocean and oonflscate them! Must the United States, in such a case, forbear to take any steps whatever for the protection of its rights and its revenue until the vessel gets near to its coasts! Upon what principle can the right to cause such seizure outside of territorial waters and within the distance from the shore fixed by hovering acts, be any greater than that of seizing, under the circumstances stated, in mid- ocean ! Suppose, again, that a vessel laden with rags infected with yellow fever were on its way to one of the ports of the United States. Can any ono doubt that the goverumeut of that country wouhl be entitled, under the law of nations, to cause the seizure of the infected rags in mid ocean and their destruction, if that mode of proceeding were, under all the cir- cumstances, necessary to protect its people against the danger of yellow fever ! It seems to me that the question as to the extent to which a nation may go ia piotecting its ri^nts depends entirely on the circumstances of each particular case. If the rights assailed are such as the nation may defend and preserve against the wrongful acts of others, then it niay emph>y, rt< thd place of attack, from ichich the injury itroeeeds, certainlt/, if that place be not within the exclusive jurisdiction of another power, all the ^:; MgHai HP''' ''rf--fi iJiia ):/ i^jamn 204 means necessary to [(rever.t. the eominiasinn of tiioso acts. In the case before us it appears, hy overwhelminjj evidence, tJiat if prchigic sealing continues to any material extent, the important industry which the UnitBd States lias cstablislicil and maintains, at gn'nt expense, on the Pribilof Islands, for purposes <»f revenue and commerce, and for the benetit of all countries, must perish by the acts of individuals and as- sociations of individuals committed beyond its jurisdictional lindts, on the high seas, where the ships and peoples of all nations are upon an equality — an industry which has never been interfered with until pelagic sealers devised their biirbarous methods for slaughtering fenuUe seals, aonui impregnated, some heavy with young, and others suckling mothers in search of food for the snstenance of themselves and theii- oftspring. If, as already suggested, these acts are done iu the exercise of a right recognized and secured by the law of nations, then tliey can not be prevented or restrained by the United Statt^s, however injurious they may be to any business conducted within the territory of that uatioTi. But if those at-Xs are not recognized and protected by the law of nations; if Qo one can claim that all the natimis have asscnteil to the doing of that on the high seas which no single nation would permit to be done within its own territory; in short, if no one has the right, for mere temporary gain, to dest y useful animals by methods that will inevitjibly and 8i»eedily result in the extermination of the race, then the United States, whose revenue and commerce are directly involved in thepreserrntiou of that race, may, consistently with the law of nations, protect its interests by preventing the commiSoion ol those wrongful acts. If the views which I have expressed are shared by a majority of the Arbitrators, the answer to the fifth question of Article VI of the treaty should be Tli.it the herd of fur seals frequenting the islands of St. Paul and St. George in Bering Sea, when found iu the ocean, beyond the ordinary three-mile limit, are the i>roperty of ttie United States, and as long as those animals have the habit of returning from their migration-routes to, and of abiding upon, tliose islands, as their bieetling grounds, so that their increase may be regularly taken there, and not elsewhere, with«mt endangering the existence of the race, that nation, in virtue of its ownership of such herd and islands, may rightfully employ, for the pr tection of those animals against pelagic S"aling, such means as the law permits to individuils for the protection of their property; and. That iudeiMJiidently of any right of property iu the herd itself, the ~--'»ijS 205 Unitert States, nimply as the owner of the fur seal industry inaintaiued by its uuthority on tlie islands of St. Paul and St. (JeorKe, and under the doctrine of 8elfproteertains equally to all nation.s, and that it has no right of property in, nor aiiy right to pro- tect, the fur seals frequenting its islands in that sea, when they are found outside of the ordinary three-mile limit, what is our duty in respect to Concurrent Regulations for the protection and preservation of these animals? "We have seen that by the Seventh Article of the Treaty, under which the Tribunal is proceedinf;, it io provideil: "If the detciiiiination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall then determine what «'ou<'urrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that deter- mination the report of a Joint Commission to be appointed by the respective Governments shall be laid before them, with such other evidence !is either Government may submit. "The High Contracting Parties furthermore agree to coiiperate in securing the adhesion of other powers to such Regulations." It is unnecessary to determine whether the words " foregoing ques- tions" in this Article refer to the questions specifically mentioned in Article VI, or to those of a more general chanu-ter enumerated in Article " of the Treaty. In either case, we must proceeil to i-onsider the subject of Regulations; for, if the United States has uo 'f exclusive jurisdiction" over the waters traversed by these seals in their annual migrations (as clearly it has not); if, as the majority of the Arbitrators ,U i I > l a im ••ir5g«»f^S?rr^'»B!W^**''^"^TT3E 20G liavu inioii, tlie evidence eonchi- sively shows — tliat tills race can not be preserved, but will be entirely do8troyee, Vol. I, Ajip., 319.) It haviu); been proposed that the two (Governments should sign the text of the seven artirles to be inserted in the Arbitration Agreement, and of the Joint Commis- sion Article, as settled in the diplomatic correspondence, in order to record the ! i: \ 1 I 1^ '4 " ■*^ --'r--*»vj*5.swr»*' mmmk ■■/ if ) .V) U 208 t4> hIkii the iirticles wliicii tlio twu Govurniiieiits agrctHl Hlioiild Ih> iiis«M'tiMl ill tlio Arbitration A(;reoiiioiit, with n rcMurvatioii tliat tlin lUf(;iilatioiiH would not bouoiiiu oblipttory on (treat Itritain and tliu United States "until tliey have been acceptea( maritime powers. France, Spain, Portugal, Italy, Austria, Turkey,Russia, Germany, Sweden, Holland, Belgium, are all maritime powers in the sense that they niaintiiin a navy, great or small. Iu like manner Brazil, the Argentine Confedera- tion, Chile, Peru, Mexico, and Japan are maritime powers. It wonld require a long time, three years at least, to get the assent of all these powers. Mr. Bayard, on the 19th of August, 1887, itddressed Great Britain, Germany, France, Russia, Sweden and Norway, and Japan with a view to securing some regulations in regard to the 209 • Goverument would retain the riglit of raisinjir the point siiggCHted " rhen the qiioHtion of framing the regnhitions came before the Arbitra- tors." rie wished it understood that the Arbitrators would have full discrctioii in the matter, and might attach '< Hu«;h(;onditionHto the reg- ulations as tliey may « />r»»>r« judge Ut l>o iiei-eHsary and .jnst t« the two powers, in view of tlie diitlculty poiutetl out." lint to tliis suggestion ■joals iu Iteriiig Seu. Kritiute, .lapnn, niul liiiii in repliod with liiiigiiid iixlittereiice; (jreat Hritiiin ii«vor r<-|ilis shall make their aaleT8 of Great Britain and the United ^'tatee by the regulations. "Great circumspection is called for in this direction, as British uud American sealers might recover their freedom and evade all regulations by simply hoisting the flag of a nonadhering power. "How is this difflcnlty t4/ be uietT Lord Salisbury suggests that if, after the lapse of one year from the date of the decree of regulatious, it shall appear to either Government that serious injury is occiisionod to the flshery from the causes above mentioned, the Government complaining may give notice of the suspension of the regulations during the ensuing year, and in such case the regulations shall be sus- pended until arrangements are made to remedy the complaint. "Lord Salisbury further proposes that, in case of any dispute arising between the 11492 14 IJ i if M IfftgmmtmigMgtmi Mi^iSmimSkms^ii 210 ^^ Preaideiit ITnrritMMi reftiHed \i\» HHm>iit, aii«I c^xpreHHly deuiet' (he right of the HritiHli (Soveniiiimt to iippcal to the ArbitmtorH t«) N of Arbitration. Mr. Blain«\ Hiieak- ing for th<^ l'r«'Hi»t Urituin at Wusliin^t^in, by tlie direction of Lord 8alit>- two 0ov<*riiiiifiit4 AH to tlif Kruvity uf lliu injury ruiim-d to tho llalirry ur m to any otlicr furl, tli«ii in riiiitroviTHy xliiill 1)it rt'lurritil Tor ileciaion to n liritiHhnnil an Anierii-iin lulniii.il, wlio, if tlii\v hIhhiIiI Ii<< mniibln to aKi'***'i ■■»>' Hel«>ct hu uiii|>irfl. " I^ril HaliHiiiiry il«iiiri-H me to aMcerttiiu wliKtlinr Home provision of tli« above nitturo woiilil not meet the viowH nf your Oovernmnnt." Mr. niaini-, iinilwr diitn of Dei-fnlier 2, IK91, in ruply: "Tlie I'rmiilent in nualile to Hev (he iliinKnr wliich I Inkinx hciiIh n-gmnlli-HN of tbe »{(rpi '-nt I)4-tww>i (irnat Krituin iinti lh<> I'nited Hlut'<»t. Thi* tliHpnlo betwocn tb« t\V' :ionR has now buen in |)ro)(rs will Ite allowed to ]u-oceod nn the agreement regularly and promptly. It is of grriat <-on8er|uenee to both nations that the dispute be ended, and that no delay be caused by introducing new elements into the agreement to which both nations have given their consent." Sir .Julian Pannceforte, December 8, 18!M : "The Marquis of Halisbury, to whom I telegraphed the contents of your letter of the 2d instant on the subject of the sixth article of the proposed Bering Sea Arbi- tration agreement, is under the Impression that the President has not rightly under- ^^ 211 bary, signed tliom, iliHtiiicMy Ht4ttiiig that they were Kigned (u proponed in Mr. Blainr'a noU; tliut in, " iritkont any rewrnttiun irliatrrer^ Ami, nuw, it Ih coiiteiidotl tliiit wliilu tliiH Tritmind may not inuiic tlie ndlie- Hioii of other inaritiiiiu |M)werH Ut our Itegulatioiirtut^Miditioii |m>ctMl(>nt to their being obligatory upon t\w rni(|ii-iihii({aK« in thi< fur huuI tinhery in viobitioii of the rvKiilatioiiH. Siinh rcriiitiil in lii){hly |ir( iiuble lu vii-w of thu Jealoiiity which exiiitA an to tliu right of Mcart'h on the high Hi'ait, iiuil (ho ('oni«e<|Uonce must inevitably bit that tliirinx the sloNtt m'aNon xoalinK will gi> on iiiiiler other llagH. " It can not bu the intention of tho two (iovernniui'tH, in Hignin); thu |iro|>o8e«1 agreement, to arrive at snch it ri>i<eu In tllHpute (now nearly six years) not one ship fu)in Franco or (ieriiiany liaa ever engaged in sfiuliug. This ttifords a strong preHuni]>tiou that none will engage in it in the future. "A still stronger giound against their taking part is that they can not all'ord it. From France or Germany to itering Hea by the sailing line is nearly 2(),U00 nules, and they would have to mrke the voyage with a larger ship than can be prolitably em- ployed in scaling. They would have to start fironi homo the winter preceding the sealing season, and risk an unusually hazardous voyugo.^ When they reach the tish- ing grounds they have no territory to which they could renort for any purpose. "Third. If we wait until we get France to agree that her ships shall be searched by American or British cruisers we will wait until the last seal is taken in Bering Sea. "Thus much for Franco and Germany. Other European countries have the same disabilities. Kussia, cited by Lord Salisbury as likely to embarrass the United 8tat»!8 and England by interference, 1 should regard as an ally and not an enemy. Nor is it probable that any American country will loai its dag to vessels engaged in violating the Bering Sea regulations. "To stop the arbitration a whole month on a que^ion of this character promises p^ if) ll' % 212 suppress or materially diminish pelagic aealiny, lioweve; necessary such regulations may be for the protection and preservation of this race of animals, if, in view of all the probabilities of the situation ^'C ion- Jecture — it can be nothing more than coniectnro — ctiat other nations will not approve tliem. This would enable Great Britain to accomplish precisely whfit it could have accomplished had it been permitted to sign the Treaty with a reservation of authority for the Arbitrators to make the assent of the maritime powers a condition of our regulations. ill for it8 HitficeHs. Some other Iohh importaut question cvou than this, if it can be found, may probably be started. The effect can only be to exhaunt tlie time allotted for arbitration. We must art nnitually on wliat is probable, not on what is re- motely possible. "The rresident suggests again that the proper mode of proceeding is for regula- tions to be agreed upon betwcon the United States and Great Britain and then sub- mitted to the principal maritime powers. That is an intelligent and intelligible process. To stop now to consider the regulations for outside nations is to indefl- nitely postpoue'the whole fjuostion. Tlie President, therefore, adheres tc his ground first announced, that wa uiust liave the arbitration as already agreed to. He sug- gests lo Lord Salisbury that any other process might make the arbitration impiac- ticable within the time specified." Sir .Julian Pauiicefote, under date of December U, 1891 : "I have the honor to inform yon that I telegraplied to the Marquis of Salisbury the substance of your note of yesterday respecting the sixth article of the proposed Itering Sea arbitration agrexmont, and that I have received a reply from his lord- ship to the :ollowing effect: In view of the strong opinion of the President, reiter- ated in your note of yesterday, that the danger apprehended f)y Lord Salisbury, and explained in my note of the 8th instant, is too remote to justify the delay which miglit l)e incurred by guarding against it now, his lordship will yield to the Presi- dent's appeal and not press for further disvjussiou at this stage. " Her Miijesty's tioverament of coarse retain the right of raisiiig the point -.vhen the question of framing the regulations comes before the arbitrators, and it is under- stood that thi- latter will have full discretion in the matter, .»nd may attach such conditions to the regulations as they may a priori judge to be necessary and just to tiio two powers in view of the dilticully poiuted out. " With the above ol)servatious Lord Salisbury has authorized mo to sign the text of the seven articles and of the joint comiuission article referred to in my note of the 2:)d ultimo, and it will g've me much pleasure to wait upon you at the State Department for that purpose at any tiuu* you may appoint." Mr. Mlaine, Decemlicr 14, 1891, in reply : " 1 have the honor to advise you that I submitted your note of the llth instant to the President. After mature deliberation he h»s instructed me to say that he objects to \jOTt\ .Sulisbury's making any reservation at all, aud that he cannot yield to him the right to appeal to the arbiti'.ttors to decide any point not embriicod in the arti- cles of arbitration. The Presidrnt does not admit that Lord Salisbury oan reserve ■ ■'•.8Hfa*JMH''>,iffl3lW,*^ ' 213 whether self-ercGuiing or not, becoming obligatory upon Great Britain tiiiti the United States. I can not believe that this Tribunal will pro- ceed upon any such ground as that now suggested by the Counsel for Great Britain. ' During the argument much was said about the mode in which the business of taking fur sealn ou the Pribilof Islands had been conducted by the licensees of the United States, It was said then, and the sug- the right in any way to affect tUe decision of tlio arbitrators. We understand that the arbitration is to proceed on the seven points which are contained in the articles which you and I certify wore the very points agreed upon by the two Governments. "For Lord Salisbury to claim the right i,o su tmit this now point to the Arbitra- tors is to entirely change the arbitratio.x, I'ue President might, in like manner, submit several questions to the Arbitrators, and thus enlarge the subject to such an extent that it would not be the same arlntration to which we have agreed. The President claims the right to have the seven points arbitrated, and respectfully insists that Lord Salisbury shall not change their meaning in any particular. The matters tc be ari>itrated must be distinctly understood before the Arbitrators are chosen. And after an arbitration is agreed to, neither of the parties can enlarge or contract its scope. "I am prepared now, as I have been heretofore, to sign the articles of agreement without any reservation whatever, and ijr that purpose I shall be glad to have you call at the Stitte Department on Wednesday the 16tli instant, at 11 o'clock a. m." Sir Jul ian Pauncefote, December 17, 1891 : "I have the honor to inform yon that I conveyed to tlie Marquis of Salisbury, by teleg^ram, th'. aubstJinue of your note of the 14th instant, respecting the sixth article of the propi>sed Bering Sea Arbitration agroen) jut, and that I liavo recei , jd a reply from his lord^ship in the following sense: "Lord Salisbury is afraid that, owing to the dilflcultios incident to telegraphic communivatiouf, ho Una been imperfectly understood by tlie President. He con- sented, at the) President's request, to defer for the present all further discussion as to what course the two Giovornmonts should follow in the event of the regulations pr scribed by the Arbitrators being evaded by a change of flag. It was necessary that in doing so Ive tdiould guard himself against the supposition that by sucli con- sent he h«d narrowed the rights of the conl;onding parties oi of tbe Arbitrators under the agreement. "But in the conimuiiicaticni whiuh was omliodiod in my note of the 11th instant, his lordship made uo roaorvatiou, as tlie Pre.sident seems to think, nor was any such word used. A reservation would not be valid unless assented to by tlie otiier side, and no such assent was ask'Ml for. Lord Salisbury entirely agree.s with the Presi- dentin his objection to any point Ijeing submitted to the Arbitrators which is not embraced in the agreement and, in conclusion, his lordship authorixea me to sign ' the articles of the arbitration agroumeni, as proposed at tlie close of your note under reply, whenever yoii may be willing to no so." (U. 8. Case, vol. 1, App. 339 to 345). 214 If) gestioii haa been repeated, here, that the present depleted condition of this race is due largely, if not princii)ally, to unreasonably lar^e drafts made, for many years past, upon male seals while they wor<< on tlie breeding grounds, whereby vast numbers of that sex; competent for service, and which ought to have been preserved for purpoees of repro- duction, have been killed. This suggestion is unsupported by any fair view of the evidence. What has been said on that subject by some wit- nesses, notably by Trofl Elliott, is in gross exaggeration of the facts. No complaint can be justly made of the rules that have been prescribed by the United States in regulation of the taking of these seals on the islands. And it must be con<;etled that those rules, if observed, do not admit of the taking of an undue proportion of males. The killing of female seals on the islands is absolutely prohibited. While in particular years there Wiis mismanagement to some extent on the islands, nothing done or omitted to be done there, at any time within the past fifteen or twenty years, accounts for the recent and extraordinary diminution in the number of seals frequenting those islands during the breeding sea- son. There is, in my judgment, no possible escape from the conclusion that such diminution is the direct result of pelagic sealing. What has or has -not been done or omitted on the islands, or what may hereafter be done there, can not be made an element in the present inquiry. This Tribunal has no autliority to deal with the management of the seals while at their breeding grounds on the islands of St. Paul acd "^t. (leorge, any more tlian with the mode of taking them within the territorial waters of (Janada. The United States would never have submitted to this or to any other Tribunal a question involving its complete control over these seals while on its islands or witliin its ter- ritorial waters. It would not brook any interference with the authority which appertains to it within its own territorial limits. Proper resjiect for the Government of that nation compels us to assume that it has the desire to correct, and will correct, any abuses tliat have existed, or that may hereafter exist, in the conduct of the fur seal industry on the Pribilof Islands; just as we must assume, that the Govern- ments of Great Britain and of Canada, after this Tribunal has made its award, will properly control tlie taking of seals within territorial waters. Tlie two nations hero represented took care to exclude from the con- sideration of this Tribunal all nuitters affecting their sovereign authority within jurisdictional limits, and therefore restricted ihquiry touching the proper protection and preservation of theae seals " to concurrent A. RP \ 216 regulations outside the jurisdictional limits of the respective Govern- ments." Tlie irrelevancy, when cousi«lering the subject of regulations, of any inquiry as to what lias been done or omitted to be done on the islands, is apparent in view of one fact clearly establislied by the evi- dence, namely: That pelagi question of regulations in the light of the facts now disclosed. If we prescril)e regulations that are inadequate, we will not stand iicquitted in our own consciences, or before the world, by the circumstance that that which is done may have been approved by the two Governments or either of them at sometime in the past, when the facts were not fully developed. At a former meeting of this Tribunal I presented a scheme of reg- ulations which, in the judgment of my colleague. Senator Morgan, and njyself, are adeciuate for the proper protection and preservation of these seals outside the jurisdictional limits of the respective Governments. That scheme provides that no citizen or subject of eit^ iv country sboold jl U-'t f !"•■■ "il^ 218 kill, capture, or pursue these tur seals anywhere in the waters of Bering Sea or of the North I'acific Ocean, outside tlie jurisdictional limits of the respective governments, north of the 35° of north lati- tude (south of which chis herd have never been known to go in its migrations) and east of tlie 180° of longitude from Greenwich. It also jirovides that offending vessels may be seized by the naval or duly- commissioned officers of either Government, and handed over, as soon as practicable, to the authorities of the nation to which they respec- tively belong, to be dealt with by that nation — the witnesses and proof necessary to establish the offense or to disprove the same being also sent with the vessel seized. It further provides that every person guilty of violating tliese regulations sliould, for each offense, be fined not less than $200 nor more than $1,000, or imprisoned not more than six months, or both ; such vessels, their tackle, apparel, furniture, and cargo to be forfeited and condemned. Only regulations of this character, which prohibit pelagic sealing altogether, in all the waters traversed by these seals, will, in my judgment, make the preservation of this race of animals absolutely certain. Of course, a closed season, covering all of such waters and all the mouths of the year when the weather admits of pelagic sealing, will give, practically, the same security as regulations «f a prohibitory cliaracter covering the whole year. (Mr. .lustiue Harlan here eatoriMl upon au cxamiuivtion of the evidence in detail for the purpoHe of nhowing t)iat ho had not over^tiited thi; effect of pelagic sealing upon tUe Pribilof herd of Heals. He read, iit length, from the depositions, reports, tables of flgures, etc., introduced by the respective (lovernments, to show the disastrous results of pelagic sealing. It is unnecessary to enciiinbor this opinion with the details of the evidence to which he referred. When the subject of Regulations was under consideration in the Conference, Mr. .lustice Harlan offered the following resolution, as embodying the views of Senator Morgan and himself on the (jucstion of the competency of the Tribunal: "ItrKoUrd, That the purpose of Article VII of the Treaty Is to secure in any and all events, the proper protection and preservation of the herd of seals frequenting the I'ribilof Islands; and in the framing of Kegulations, under the Treaty, no ex- tent of pelagic sealing should be allowed which will seri(Mi8ly endanger the accom- plishment of that end." He BubHoqnently presented, with the concurrence of Senator Morgan, the following motion : " This Tribnnal has power, and it is its duty, under the Treaty, to prescribe such concurrent Regulations, covering the waters, outside the jurisdictional limits of the two countries, of both Bering Sea and the North Facilic Ocean, traversed by the fur seals in, or habitually resorting to, Hering Sen, as may be found necessary for the proper protection and preservation of such seals, even if such Hegulations, when ■■■ 219 Banotioned by the legislation of the two Oovernmentd, shonld, by reason of their exprcHS provisions, or by their practical operation, resalt in preventing the hunting and talcing of these seals during the seasons when the condition of said waters admits of fur seals being taken by pelagic Healers.") Tlje scheme proposed by myself may be objected to upon the ground that the regulations which it embodies are self-executing, whereas it is argued this Tribunal has only the power to recommend the adoption of regulations, leaving it to the two Governments to enforce them by legis- lation. I do not assent to this view of the competency of this Tribunal. The two Uovernments contemplated, and we are so informed by the Treaty, that the result of our proceedings should be considered " as a full, perfect, and final settlement of all the questions referred to the Arbitrators." (Article XIV.) Our final decision or award, when madje, will become, in legal etfe<'-t, a part of the Treaty, as much so as if it was embodied in it. But the Treaty, when thus i)erfected, will not be a full, perfect, and final settlement of the controversy, if the decision or award is so framed as to amount to nothing practically until the two nations shall have had further negotiations and agreed upon such additional concurrent legislation as will be required in order that the award shall become 0})erative for the proper protection and preservation of this race. I find nothing in the Treaty looking to such a condition of things as the result of our proceedings. Under the Constitution of the United States, a treaty, mitde pursuant to that instrument, and duly ratified, becomes "the supreme law of the land," without the aid of legislation, except that Icj.rislation will be required where the treaty provides for the pay- ment of iJioney. This exception arises from the provision in that Con- stitution that "no money shall be drawn from the Treasury but in con- sequence of appropriations made by law." Of course, if, under the British Constitution, regulations established by the Tribunal, providing for the seizure of vessels and the punishment of persons offending against such regulations, can not be made applicable to British vessels and British subjects, without legislative sanction, we must rely upon the good faith of the two Governments interested to give effect to our decision by appropriate eniuitments. But I do not understand the British Constitution to require legislative approval of the regulations prescribed by the Tribunal before they ciin become oi>erativo against British vessels and British subjects. We have been invested by the two Governments with full pt)wer, as Senator Morgan has well said, to write into the Treaty of February 2!), 1892, such regulations as we find necessary and such as will be immediately effectual for the proper pro- tection and preservation of these fur seals when they are outside the ii m M 220 jurisdictional limits of tlie respective nations. The engagement of" the two Governments with respect to regulations was that they wouhl coop- erate in securing the adhesion of other x)owers ''to such Begulations'' d — tlu! Arhifcriito>'8 uamed by the Governments of Great Britain and tlie United States having alone participated in tliat discussion — the matter was taken nnder advisement by the Arbitrators from France, Italy, and Norway, and they submitted a scheme of roguhttions for the consideration of the Tribunal. A copy of that scheme is appended to i,his opinion, and it became tlie subject of discussion .'iuiong the Arbitrators.) I confess some disappointment in finding that the majority of the ' Tribunal do not favor regulations which, in terms or by their necessary operation, will put an end to all pelagic sealing in the waters travers. d by these fur seals. It is very much to be feared that the theory of ctmipromise has had more weight than, as I submit, it ought to have upon the determination of the pending question. A compromise, between conflicting views, which leaves the preservation of tliis race in doubt, as far as their i)re8ervatioii depends upon regulations, ought not be favored. It seems to mo that the supreme object of regulations, the protection and preservation of this race of animals, could not be certainly accomplished except by regulations of the kind proposed by me, with the concurrence of Senator Morgan. . -; mg \i „ ft % li. Bat, aa our views are not accepted by the Tribunal, the question i8 presented whether tlie report made by Baron de Oourcel, MarqtiiM Vis- conti-Venosta and His Excellency M. dram, shall receive our support. (Tpon mature reflection, we have concluded to vote in favor of the scheme of regulations recommended by those Arbitrators, altlioufrh it contains some provisions not acceptiible to us. It establishes a /one of GO miles around the I'ribilof Islands, inclusive of territorial waters, within which the taking of seals at any time by the (dtizens or subjects of either country is to bo prohibited. It establishes a closed season, between April 15 and July 31, both inclusive, for all the waters, both of the North Pacific Ocean and of Bering Sea, north of the thirty-fifth degree of north latitude. It allows only sailing vessels to take part in fur seal fishing operations. It forbids the use of nets, firearms, and explosives in fur seal fishing, with the exception of the shotgun in the North Pacific Ocean prior to April 15. While it permits a new examination,'by the two Governments, every five years, of the proposed regulations, to ascertain whether there is any occasion to modify them, the regulations now proposed, if adopted, are to remain in force until they shall have been, in whole or in part, abolished or modified by "com- mon agreement" between the two nations. The features of this scheme that are chiefly objectionable are these: (1) *It permits pelagic seal- ing with shotguns, in the North Pacific Ocean, prior to April 15; (2) it allows pelagic seosed, escape destruction at the hands of pelagic sealers. For that reason, and in the interest of peace between the two nations, Senii- toi Morgan ; »nd myself have determined to give our votes in support of this scheme, as the best solution likely to be obtained from the Tribunal of the question of regulations. (Protocol LIV will show the votes in Coufereiico upou the several resolutions, mo- tions, »ud plans presented by Arbitriitors, relating to regulations, and also votes upon different amendments niaKOI>ONi:n HY MK. JUMTICK HAKI.AN, COXCl'KKKD lH HY NKNATOK MOKUAN. AUTICI.K 1. No oitizon or mibjuct of tho Unitod MtutusorOreat Hrititin Hhiill in aiiy mannor kill, capture, or piiniiio nnywliero upon the moim, williiii tbe liniitH and I)uiin(lurie8 next liureinuft«r proncribetl for tho opnriitiou of thiH roKnlation, any of the nuimalH commonly called fur sualH. Aid'. 2. Tho fore^oln;; ro){ulation Mhull apply to uuil extend over all those waters, xntside thejuriitdictioual limitx of the aliovo-inoutioned natioiiH, uf the North I'u- oillc Ocean and Merinx Hea which are North of the thirty-Hfth parallel of north lati- tude and east of the one hundred and eightieth meridian of longitude from Green- wich. Akt. 8. Hvery vessel or perMon olfeudiiig agaiUHt thette rcgulatiouH may be sei/.ed and detained by the naval or duly commiHsioned oUicorH of either the United States or()}reat liritain, but they Hhall be handed over as soon n» practicable to the authori- ties of the nation to which they respectively belong, who alone shall have Jurisdic- tion to try the olfense and impose penalties for the same. The witnesses and proof necessary to establish the oft'cnse or to disprove the' same found on tbe vessel shall also be sent with them. Akt. 4. Every person guilty of violating these regulations shall, for each ottense, be fined not less than $'M) nor more than $1,000, or imprisoned not more than six months, or both; and vessels, their tackle, apparel, furniture, and cargo, found en- gaged in violating these regulations shall be forfeited and condemned. I' r RKtillliATIONS PROPOHEI) BY NIB JOHN TH01IP80N. Akticlk 1. No sealing except by licenses which are to be issued ^t two United Htatcs and two Canadian ports on the Pacittt; coast. These licenses to be granted only to sailing vessels, and not to be granted earlier than a date that wonld correspond with the Ist of May in the latitude of Victoria, British Columbia. Akt. 2. Each vessel carrying snch license to use a distinctive flag and to keep a record in the official log of the number of seals killed or wounded, and the locality in which the hunting takes place, from day to day; all snch entries to be tiled with the collectors of customs on the return of the vessels. Art. a. The use of rifles and nets in seal flshiug is pndiibited. Art. 4. Tlie killing of seals to be prohibited within a zone of 30 miles from the Pribylov Islands, and within a zone of 10 miles around tho Aleutian Islands. Art. a. The killing of seals to be prohibited in Kering Sea (east of the line of demarcation adopted in the treaty of cession from Russia to the United States) before the Ist of July and after the ist of October in each year. Art. 6. The forgoing regulations shall be brought into force from and after a day to be agreed upon by Great Britian and the United States, and shall continue in operation for ten -ears from the above HIR RXCKLrKIVfT M. URAI. Aktic'LK 1. The Uoveruineuts of the United Htotes and uf (trent Britain •hull tur- bid their citizenii an (# jl i 11 take measures to control the Ataess of the men authorized to engage in fur eeiU Ashing; these men shall have been proved At to handle with sufficient skill v.'i. .voapons by means of which this fishing may be car- ried on. Art. 8. The regulations contained iu the preceding articles shall not apply to Indians dwelling on the coasts of the territory of the United States or of Great Britain, and carrying ou in their canoes, at a small distance from the coasts where they dwell, fur seal fishing. Art. 9. The concurrent regulations hereby determined with a view to the protec- tion and preservation of the fur seals shall remain in force until they have been, in whole or in part, abolished or modified by common agreement between the govoru- ments of the United States and of Great Britain. The said concurrent regnlatiocs shall be submitted every five years to a new examination, so as to enable both interested governments tu consider whether;, in the light of past experience, there is occasion for any modification thereof. I 225 riNAI. DRCniVlf. Now wo, the mM Arbitruton, having impiirtially and carefully exam i nod tlio naUX (IiieBtJons, do in like manner by this our award decide and dotermiue the said qiioft- tions in manner following, that U t« say, wo decide an4l determine im to the five points mentioned In Article VI, ua to which our award \» to embrace a distinct decision upon each of them : ' As to the first of the said five points, we, tlio said Baron do Courcel, Mr. .Instico Harlan, I^rd Hani.on, Sir John Tliitrnpson, Miirquis Visoonti Venosta, and Mr. Oregers Uram, being the minority of the said Arbitrators, do decide and dol;erniiue as follows : By the Ukase of 1821, Russia claimed Jurisdiction in the sea now known as the Bering Seo. ' i the extent of 100 Italian miles from the coasts and islands bolougin the waters in which the fur seal fishing is allowed, only sailiug vessels shall be pttrmittod to carry on or take part in fur seal lisiiiug operations. They will however bn at liberty to avail themselves of the use of such oanoes or undecked boats, pro|)c!led by paddles, oars, or sails, as are in common use as fishing boats. AliXICLK 4. Koch suiliug vessel authoiized U> flsli for fur seals muct be provided with a special license issued for that purpose bj its Government, and shall bo required to ciir<"r a distinguishing flag to be prescribed by its Govemn.ont, Article 5. The masters of the vessels engaged in fur seal fishing shall enter accurately in their official log book the date and place of each fur seal llsliiitg operation, aiul also the number and sex of the seals captured upon each day. TLese entries shall be communicated by each of the two Governments to the other at the end of each fishing season. Article C. The use of nets, fiiearms, nnd explosives shall be forbidden in the fur seal fishing. This restriction shall not apply to shotguns when such fishing takes place outride of Bering's Sea during tlic season when it may be lawfully carried on. .%.. 227 Article 7. The two Governmeiits shall take measures to control the fitness of the men author- ized to engage in fur seal fishing; these men shall have heeu proved fit to handle with sufBcient skill the weapons by means of which this fishing m.y bo carried on. Article 8. The regulations contained in the preceding articles shall not apply to Indians dwelling on the coasts of the territory of the United States or of Great Britain, and carrying on fur seal fishing in canoes or undecked boats not trausnortod by or used in connection with other vessels and propelled wholly by paddles, oars or sails, and manned by not more than live persons each in the way hitherto practiced by >;be Indians, provided such Indians are not in the employment of other persons, and provided that, when so hunting in canoes or undecked boats, they shall not hunt fur seah) ontsido of territorial waters nnder contract for the delivery of the skins to any person. This exemption shall not be construed to affect the municipal law of either country, nor shall it extend to the waters of Bering Sea or the waters of the Aleu- tian Passes. Nothiug herein contained is intended to interfere with tlio employment of Indians as hunters or otherwise in connection with fur sealing vessels as heretofore. Article 9. The concurrent regulations hereby determined with a view to the protection and preservation of the fur seals, shall remain in force until they have been, in whole or in part, abolished or modified by common agreement between the Governments of the United States and of Great Britain. The said ooucnrrent regnlations shall b« submitted every five years to a new examination, so as to snable both interested Governments to consider whether, in the light of past experience, there is occasion for any modification thereof. DKCIiABATIONS MAPK BV THE TKIBVffAL OV ARBITBATION AND RKFGBRKD TO THE OOV- KRKMKNT8 OF THK BJflTK© STATES AND GREAT BRITAIN FOB THEIB CONSIDERATION. I. The Arbitrators declare that the conoui-rent regulations, as determined upon by tlie Tribunal of Arbitration, by virtue of Article VII of the treaty of the 2»th of February 1892, being ajiidicable to t!i<^ high sea only, should, in their opinion, be supplemented by other regulations applicable v ithin the limits of the sovereignty of each ol'the two povvers interested an:' to bo nettled by tlieir common agreement. II. In view of the critical condition to which it appears cortain that tlie race of fur seals is now ruducod in consetiuer.oe of circuinstunces not fully known, the Arld- trators think fit to revommend both Goveniiiients to cime to an understanding in order to prohibit any killing of fur seals, eitJier on Ir.nd or at sea, for n period of !i) i ast a Mi»|i>^^ SI h 228 two or three yean, or at least one year, aubjeot to saoh exceptions as the two Qot- ernments might think proper to admit of. Snob a measnre might be recnrred to at ocooaioual intervals if foun«l beuefloial. III. The Arbitrators declare moreoyer that, in their opinion, the carrying ou,^ of tUo regulations determined upon by the Tribunal of Arbitration, should be aasiueO b> * system of stipulations and measures to be enacted by the two powers, and that ;;*ie Tribunal must, in oonsefineuoe, leave it to the two powers to decide upon the dk^ ,| » I