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C: GOVERNMENT PRINTING OFFICE. 1893. 152S86 WLa 1 -M Tlie The f^ ''A Coi Cla TABLE OF CONTENTS. FIRST. Pare WLatlaw Is to govern the decision 1-9 Appendix to part first (Mr. Carter's argument) 10-26 Citations from writers upon tlie law of nature and nations, sliowing the foundation of international law, its relations to the law of nature, and the sources from which the knowledge of it is to he derived 10 SECOND. The acquisition hy Russia of jurisdictional or other rights over Bering Sea and the transfer thereof to the United States 27-40 THIRD. The property of the United States in the Alaslcan seal herds, and their right to protect their sealing interests and industry 41-107 I. The property of the United States in the Alaskan seal herd 41 The form of the institution— community and private property. 57 Ownership not ahsoluto 58 Summary of doctrines ostahlished 68 Application of the foregoing principles to tlie question of pro- perty in the Alaskan herd of seals 69 Principal facts in the life of the fur-seal 75 Appendix to part third, division I (Mr. Carter's argument) 108-129 Authorities upon the suhjcct of property in nniniala, fcra; natura 108 II. The right of the United States to protect their sealing interests and industry 130-179 Appendix to part third, division II, (Mr. Phelps Argu- ment) 180-189 Additional authorities on the question of property.... 180 FOURTH. Conconent regulations 190-214 FIFTH. Claims for compen- tion 215-227 I. Damages claimed hy the United States 215 II. Damages claimed by Great Britain 217 UI IV TABLE OP CONTENTS. ^ M > >>i SIXTH. Summary of the evidence 228-313 I. The general nature and characteristica of the fur seal 230 U. The difference between the Alaskan and the Rnsf-' n fur-seala 232 A. The herda are different 233 B. The Alaskan does not mingle with the Russian herd 241 0. The Alaskan fur-seals have but one home, namely, the Pribilof Islands. They never leave this home without the animu§ revertmdi, and are never seen ashore except on those islands . . 249 m. Movements of the seals after the birth of the young 251 IV. The entire office of reproduction and rearing of young is and most be performed on land 254 y. The pup is entirely dependent upon its mother for nourishment for several months after its birth The cows will suckle their own pups only, and the suckling is done on land. 261 YI. The cows, while suckling, go to the sea for food, and sometimes to distances as great as 100 and 200 miles, and are during such excursions exposed to capture by pelagic sealers 266 VII. Death of the cow causes the death of the pup 269 YIU. The fur-seal is a polygamous animal, and the male is at least four times as large as the female. As a rule, each male serves about fifteen or twenty females* but in some cases as many as fifty or more (Case of the United States, p. 327) 286 IX. Destruction by pelagic sealing and its extent — the remedy proposed by the British Commissioners— the true and only remedy con- aists in absolute prohibition of pelagic sealing 295 SEVENTH. Points in reply to the British Counter Case 314-327 228-313 230 232 233 241 •ibilof mimut mda.. 249 251 I mast 254 )nt for ling is 261 mes to gsnch 266 269 at four seryes ) many 286 oposed ly con- 295 314-327 Washington, February 23, 1893. Sra: We have the honor to hand you herewith the argument pre- pared by us as counsel of the United States, in order that in pursuance of Article V of the treaty between the United States and Great Britain, of 29th February, 1892, it may be presented to the Tribunal of Arbitra- tion constituted by that treaty. Very respectfully, your obedient servants, E. J. Phelps. J. 0. Carter. H. M. Blodgbtt, F. B. COUDERT. Hon. John W. Foster, Agent of the United Statet, eu pa sei ch he to cai wl thi an cai ag do 8h< an no he po t pa ARGUMENT OF THE UNITED STATES. The undersigned, counsel for the United States, conceive that before entering upon the argument which it has been made their duty to pre- pare, they owe more than a formal and ceremonious expression of their sense of the importance and dignity of the occasion and of the august character of the Tribunal which they are to address. Iii8tan«!e8 have heretofore occurred in which nations have submitted their controversies to peaceful arbitration; but the most important of them have been cases in which mere pecuniary reparation was sought in respect to acts which could not be recalled. To-day two most powerftil nations agree that their conflicting claims to permanent dominion shall be reconciled and determined without a resort to those methods of violeMce which carry with them sucb limitless destruction and sufl'ering. A just hom- age is thus paid to the civilized sentiment of mankind that war is sel- dom, if ever, necessary ; and that the conclusions of reason should be made to supersede the employ m tut of tbrce. 1 ' > ' 1,1* , •..;,.'.. FIRST. WHAT LAW IS TO GOVERN THE DECISION! The undersigned believe it to be in a high degree important that it should at the outset be clearly understood what principles and rules are to guide the Arbitrators in reaching their conclusions. Otherwise no argument can be intelligently framed. We do not indeed api)re- heud that there can be any serious difference of opinion upon this X)oint. The consciousness and immediate conviction of every one having any part in the proceeding— Arbitrators aud counsel alike— might be safely 2 AKOUMENT OF THE UNITKI) STATES. tippoalod to for tlio response that the (l(>tcrniiniiti()ii iiiiiKt bo {n'oniidcd upon priiniplcH lA'ru/ht. It can not bo that twonreat nationH liavo vohiii- tarily waivt'd their own convictions and wubniittc*! their rival chiinis to the detci minations of cii price, or merely temporary expediency. It in not toHUch empty and sljiftyexpedicnts that national pride and power have paid their homage. The arbitrament of force can be worthily replaced only by that of riflht. Tliis Tribunal would be robbed of its Hupreme dignity, and its Judgnn'nt would hwe its value, if its deliberations should be swayed in any ItiHiiot lowerhave y repla«'A'd ts supreme libt'iations an those of 5 nation for reiiared to nay declare the proofs. e described though not \g that the ired, that it ut this may 18 exhibited ular nation, lions of the tion can not ,tion is to be een two dif- »f a tribnnal 8. Tt is im- 38 and rnles dge; thsc. is rd of jtistice national laic, m. legishvtive ice whicli is in the larger eneral staud- ;y. There is, ^ord, for the pare of the yet there ia for the latter un always existing laip by which .cry controversy may be determined. Tlie only difVu'rcMicc «^xliil»ited by the former is that it has no rcguliirIy-c»»nstitutiM| body of f.ipertx, cuIIimI Jndges, clothed with authority to declare the law. And this distinction is wiped away in the case of the present controvia-sy by the cxmstitu- liuii of this tribunal. That there is an international law by whicii evei'iv controversy between nations may be adjudged and determined Will scarcely be questioned anywluiro; but luue no sucli questioning is* allowabh>. The parties to tlie controversy are, to employ a word familiar to them, estopped from raising it. They have voluntarily made tuemselves parties to a judicial proceeding. For wluit puri>ose is it that these nations h.-ve submitted rival claims to judicial decisiou if there is no leg:il rule whicli governs themt Why is it that they have provided for the seic*;tion of arbitrators prei'minent for their knowl- edge of law, except that they intended that the law cthould determine their rival claimsT Nay, what is the relevancy, or utility, of this very argument in wliicrh we are engaged unless there is an agreed standard of justice to which counsel can appeal and upon which they can hcipe to convince? The undersigned conceive that it will not be disputed that this ai'bitration was planned and must be conducted upon the as- sumption that there is no place upon the earth, and no transaction either of men or nations which is not subject to the dominion of iaw. Nor can there be any substantial difference of opinion concerning the sources to which we are to look for the international stjindard of justice which the undersigned have referred to as but another name for international law. Municipal and international law flow equally from the same source. All law, whether it be that which governs the conduct of nations, or of individuals, is but a part of the great dcmiain of ethics. It is founded, in each case, upon the nature of man and the environment in which he is placed. Tlie formal rules may indeed be varied according to the differing conditions for which they are framed, but the spirit and essence are everywhere and always the same. Says Sir James Mackintosh: The science which teaches the rights and duties of men and of states has in modern times been styled " the law of nature and nations." Under this comprehensive title are included the rules of morality, as thoy ))re- scribe the conduct of private men towards each other in all the various relations of human life; as they regulate both the obedience of citi /ens to the laws, and the authority of the magistrate in framing laws i....i ad- ministering government; and as they modify the intercourse of inde- pendent commonwealths in peace and prescribe limits to their hostility 4 ARGUMENT OF THE UNITED STATES. in war. This important science comprehends only that part of private ethica which is capable of being reduced to fixed and general rules.' And Xord 13acon has, in language often quoted, pointed to the law of nature as the source of all human jurisijrudence: For there are in nature certain fountains of justice, whence all civil laws are derived but as streams, and like as waters do take tinctures and tastes from the soils through which tliey run, so do civil laws vary aiicording to the regions and governments where they are planted, though they proceed from the same fountain.* This original and universal source of all law is variously designated by ditterent writers; sometimes as "the law of nature," sometimes as "natural justic<5," sometimes as "the dictates of right reason;" but, however described, the same thing is intended. "The law of nature" is the most approved and widely employed term. The universal obli- gation which it imposes is declared by Cicero in a passage of lofty eloquence which has been the admiration of jurists in every succeeding age.3 .And the same doctrine is inculcated by the great teacher of the laws of England in language which may have beou borrowed from the greai Roman : This law of nature being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over the globe, in all countries, and at all times; no human laws are of any validity if contrary to this, and sudh of them as are valid derive all their force and all their authority, mediately or immediately, from this original.* The dependencj'^ of all law upon the law oi" nature is happily ex- pressed by Cicero in another often quoted passage: '■'■ Lex est suprenia ratio insita a natura qucc jubct ca quco facleiufa sunt, prohihetque con- ' Dissertation on the Law of Nature and Nations. 'De Angnientis Scioutiarum. '"Est quidom vera lex recta ratio naturae confrruens, diffusa in omnes, constans, Bempiterna, quae vocet ad offlciuni jubcudo, votuudo a iraude deterreat, quae tameu netjue prolios frustrajubet aut vetiit, nee inipvobos jubondo aut vetando movet. Huio leni nee obrogari fas est uequo derogari ex ^ac aliquid licet neque tota abrogari po- test, nee vero aut per sonatuiu aut per populuui solvi bac lege possumus, neque est quaerendus explaualoruut iuterpres ejus alius, nee eritaliu lex Koinae, alia Athenis, alia nunc, alia postbac, sed et onines gentes et omni tempore una lex et senipiterua et iunuutabilis cout(nebit uuusquisque erit communis quasi magister et imperatur omuium deus: ille legis bujus inventor, disceptatoi', lator, cui qui non parebit, ipso HO fugiet !(c uaturcau hominis asperuatus boo ipso lurt maxiuias poenas, etiam si caoteraHiippli(iaquaoputiiutur,omigerit." (Doltepuulica,Lib.Ul. Cap.XXII, J33.) *iiluvketoue, Ovm., Buvk I, }>. iX. WHAT LAW IS TO GOVERN THE DECISION'? of private I rules.' ) the law 5 all civil 1 tinctures laws vary Q planted, lesignated iietimes as ion;" but, )f nature" rersal obli- ge of lofty succeeding of the laws a the greai ;ed by God is binding laws are of ilid derive ately, from lappily ex- 3s< suprema betque con- traria.'"^ And it is very clearly illnstrated by the fact that the groat expositors of the Roman law in seeking for a concise formula which would express its original and fundamental principles, have simply borrowed or framed a statement of the dictates of natural justice: "e/ttm precepta sunt hoec: honesta vivere, alterum non Icedere, suum vuique tribuere.^' Some writers have been inclined to question the propriety of designat- ing as law that body of principles and rules which it is asserted are binding upon natious, for the reason that there is no common superior power which may be appealed to for their enforcement. But this is a superficial view which has received no considerable assent. The pub- lic opinion of the civilized world is a power to which all nations are forced to submit. No nation can afford to take up arms in defence of an assertio'; which is pronounced by that opinion to be erroneous. A recent writer of established authority has well answered this objection: It is sometimes said that there can be ud law between nations, because they acknowledge no common superior authority, no interna- tioni)! executive capable of enforcing the precepts of international law. This objection admits of various answers: First, it is a matter of fact that states and nations recognize the existence and independence of each other, and out of a recognized society of nations, as out of a society of individuals, law must necessarily spring. The common rules of right approved by nations as regulating their intercourse are of themselves, as has been shown, such a law. Secondly, the contrary position con- founds two distinct things, namely, the physical sanction which law derives from being enforced by superior power, and the moral sanction conferred on it by the fundamental principle of right; the error is similar in kind to that whicli has ied jurists to divide moi-al obliga- tions into perfect and imperfect. All moral obligations are equally perfect, though the means of compelling their performance is, humanly speaking, more or less perfect, as they more or less fall uiu'er the cog- nizance of human law. In like manner, international justice Avould not be less deserving of that appellation if the sanctions of it were wholly incapable of being enforced. 168, constans, ;, quae tauieii novet. Iluio I abrogari po- ms, neque est alia Athonis, et sempiterua et imperator 1 parebit, ipso enas, etiam si p.XXlI,433.) But irrespectively of any such means of enforcement the law must remain. God has willed the society of States as He has willed the so- ciety of individuals. The dictates of the conscience of both may be violated on earth, but to the national as to the individual consirience, the language of a profound philosopher is applicable : " Hiid it strength as it had right, had it power as it has manifest authority, it would ab- solutely govern the world." • *••••• Lastly, it may be observed on this head, that the history of the world, and especially of modem times, has been but incuriously and unprofitably resid by him who has not perceived the certain Nemesis which overtakes the transgressors of international justice; for, to take » Cic. De Logibus, Lib. I, c. VI, J 6. "Just. I, 1.3. 6 ARGUMENT OF THE UNITED STATES. but otio, inatiiiico, what an " Iliad of woes " did the precedent of tlie first partition of Tolaud open to the kingdoms wIjo i)articipated in that grievous infi-actiou of international law ! The Roman law uobly ex- piesses a ja:roat moral truth in the maxim, " Jnrisjurandi contempta religio satis Deiim habet ultorem." The commentary of a wise and learned French jurist upon these words is remarkable and may not in aptly close this first part of the work : " Paroles (he says) qti'on pent appliquer dgalemont il toute infraction des loix naturelles. La justice de I'Auteur de ces loix n'est pas moins armi^^e contre ceux qui les trans- gresseut que contre les violateurs du serment, qui n'ajoute rien a I'obli- gatiou de les observer, ni j\ la force de nos engagements, et qui ne sert qu'^ nous rappeler le souvenir de cetto justice inexorable." (Philli- more's International Law, third edition, London, 1879, vol. I, section LX.)' That there is a measure of uncertainty concerning the precepts of the law ofnature and, consequently, in International, law which is derived from it, is indeed true. This uncertainty in a greater or less degree is found in all the moral sciences. It is exhibited in municipal law^ although not to so large an extent as in international law. Law is matter of opinion ; and this differs in different countries and in diflferent ages, and indeed between different minds in the same country and at the same time. The loftiest precepts of natural justice taught by the most elevated and refined intelligence of an age may not be acquiesced in or appreciated b^ the majority of men. It is thus that the rules actually enforced by municipal law often fall short of the highest standard of natural justice. Erroneous decisions in municipal tribunals are of fre- quent occurrence. Such decisions, although erroneous, must necessarily be accepted as declarative of the rule of justice. They represent the ' The duties of men, of subjecta, of princes, of lawgivers, of magistnitps, and of status arc ;ill parts of oiio eonsistiiut system of universal morality. Between the most abstract and elementary maxims of moral philosophy and the most complicated oontrovereies of civil and public law there subsists a connection. The principle of justice deeply rooted in tlio nature and interests of man pervades the whole system and is discoverable in every part of it, even to the minutest ramification in a legal formality or in the construction of an article in a treaty. — (Sir James Macintosh, Discourse on the Law of Nature and. Nations, sub fine.) Mr. Justice froaches are made to the truth. So also in inter- national law, the actual practice of luitions does not always conform to the elevated precepts of the law of nature. In such cases, however, the actual practice must be accepted as the rule. It is this which exhibits what nuiy be called the int43rnational standard of justice; that is tosay, that standard upon which the nations of the world are agreed. As municipal law embraces so much of natural justice, or the law of nature, as the municipal society recognizes and enforces upon its members, so, on the other hand, international law embraces so much of the same law of nature as the society of nations recognizes and enforces upon its members in their relations with each other. The Supreme Court of the United States, speaking through its greatest Chief Justice, was obliged to declare in a celebrated case that slavery, though contrary to the law of nature, was not contrary to the law of nations ; and an English judge, no less illustrious, was obliged to make a like declaration.' Perhaps the same question would in the present more humane time be otherwise determined. But, although the actual practice and usages of nations are the best evidence of what is agreed upon as the law of nations, it is not the only evidence. Tiiese prove what nations have iii/aot agreed to as binding law. But, in the absence of evidence to the contrary, nations are to he presumed to agree upon what natural and universal justice dictates. It is upon the basis of this presumption that municipal law is from time to time developed and enlarged by the decisions of judicial tribunals and jurists which make up the unwritten municipal jurisprudence. Sovereign states are presumed to have sanctioned as law the general principles of justice, sind this constitutes the authority of municipal tribunals to declare the law in cases where legislation is silent. They are not to conclude that no law exists in any particular case because it has not been provided for in positive legislation. So also in interna- tional law, if a case arises for which the practice and usages of nations have furnished no rule, an international tribunal like the present is not to infer that no rule exists. The consent of nations is to be presumed in favor of tlie dictates of natural justice, and that source never fails to supply a rule. If the foregoing observations are well founded, the law by which this 'The Antelope 10, Wheaton's Reports, p. 120; The Louis, 2 Dods, 238. 8 AR0T15IENT OF THE UNITED STATES. Tribunal is to be guided is the law of nations; and the sources to wliicli we are to look for that law upon any question which may arise are these : First. The actual practice and usages of nations. These are to be learned from history in the modes in which their relations and inter- course with one another are conducted ; in the acts commonly done by them without objection from other nations; in the treaties which they make with each other, although these are to be viewed with circum- spection as being based often upon temporary and shifting considera- tions, and sometimes exacted by the more powerful from the weaker states; and in their diplomatic correspondence with each other, in which supposed principles of the law of nations are invoked and acceded to. Second. The judgments of the courts which profess to declare and administer the law ot nations, such as prize courts and, in some in- stances, courts of admiralty, furnish another means of instruction. Third. Where the above mentioned sources fail to furnish any rule resort is to be had to the great source from which all law flows, the dictates of right reason, na> ixal justice; in other words, the law of nature. Fourth. And in ascertainiug what the law of nature is upon any particular question, the municipal law of States, so far as it speaks with a concurring voice, is a prime fountain of knowledge. This is for the reason that that law involves the law of nature in nearly every con- ceivable way in which it speaks, and lias been so assiduously cultivated by the study of ages that few questions concerning right and justice among men or nations can be foui.u .or which it does not furnish a solution. Fifth. And, finally, in all cases, the concurring authority of jurists of established reputation who have made the law of nature and nations a study is entitled to respect. Mr. Chief Justice Marshall has expressed from the bench of the Supreme Court of the United States what we conceive to be the t* ae rule. He says: The law of nations is the great source from which we derive those rules respecting belligerent and neutral rights which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten we recur to the great principles of reason and justice; but as these principles will be differently understood by dif- ferent nations under different circumstances, wc consider them as being, in some degree, rendered fixed and stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received WHAT LAW 18 TO GOVERN THE DKCISION'? 9 es to wliicli 1 are these : I are to be 1 and inter- ly done by which they th circuni- considera- }he weaker ir, in which seded to. eclave and in some in- iction. jh any rule flows, the bhe law of upon any peaks with I is for the every con- cultivated md justice furnish a )f jurists of ad nations och of the »e the ti^ae erive those recognized d America. ascertain reason and )od by dif- r them as J of judicial far as tiiGy •e received not as authority, but with respect. The decisions of the courts of every country show liow the lawof nations, in the given case, is under- stood in that country, and will be considered in adopting the rule which is to prevail in this.* James C. Carter. ' Sixty Hogsheads of Sugar v. Boylo, 9 Cranch, 191, 197. The views stated in the text concerning the foundation of the law of nations and the sources from which it is to ho gathered, are, it is helieved, supported hy the concurrent voices of writers of estaljlished authority. Dill'eroncos will bo found in the modes of statement; but there seems to be no substantial disagreonicnt. A col- lection of extracts from many writers of difl'ereut nations will be foaud in the Appen- dix immediately following. a. 10 ABOUMEMT OF THE UNITED STATES. APPENDIX TO PART FIRST (MR. CARTER'S ARGUMENT). CITATIONS FROM WRITERS UPON THE LAW OF NATURE AND NATIONS, SHOWING THE FOUNDATION OF INTERNATIONAL LAW, ITS RELATIONS TO THE LAW OF NATURE. AND THE SOURCES FROM WHICH THE KNOWLEDGE OF IT IS TO BE DERIVED. [POMEROY. Lectures on Interaational Law, ed., 1886., ch. i, sees. 29, 30, 31, 33, pages 23-26.] Seo. 29. (2) A large number of rules wliich govern the mutual rela- tions of states in their corporate capacity are properly called interna- tional law, on account of the objects which they subserve and the rights and duties they create. They are also properly law, because they have been established by particular states as a part of their own municipal systems, and are enforced by their judiciary and executive in the same manner as other portions of the local codes. They are in fact principles of the law of nature or morality put in the form of human commands, and clothed with a human sanction. (3) What is called international law in its general sense, I would term international morality. It consists of those rules founded upon justice and equity, and deduced by right reason, according to which independent states are accustomed to regulate their mutual inter- cou'se, and to which they conform their mutual relations. These rules have no binding force in themselves as law ; but states are more and more impelled to observe them by a deference to the gen- eral i)ublic opinion of Christendom, by a conviction that they are right in themselves, or at least expedient, or by a fear of provoking hostilities. This moral sanction is so strong and is so constantly increasing in its power and effect, that we may with propriety say these rules create rights and corresponding duties which belong to and devolve upon in- dependent states in their corporate political capacities. 8ec. 30. We thus reach the conclusion that a large portion of inter- national law is rather a branch of ethics than of positive human juris- prudence. This fact, however, alfords no yiomiJ for the jurist or the student of jurisprudence to neglect the science. Indeed, there is the greater advantage in its study. Its rules are based upon abstract jus- tice; they are in conformity with the deductions of right reason; hav- ing no positive human sani^tion they appeal to a higher sanction than do the precepts of municipal codes. All these ^^atures clothe them with a nobler character than that of the ordinary civil jurisprudence, as God's law is more perfect than human legislation. Sec. 31. The i)receding analysis of the nature and charaeteristics of international law enables us to answer the general question, What are its sources? If we confine our attention to that portion which is in every sense of the terra strictly international, and is therefore, as we have seen, morality rather than law, these sources are plainly seen to be: (1) Tiio Divine law; (2) Enlightened reason acting upon the ab- stract principles of ethics; and (3) The consent of nations in adopting the particular rules thus drawn from the generalities of the moral law 1 APPENDIX TO PART FIRST. 11 ENT). PRE AND ATIONAL ^ND THE S TO BE 9, 30, 31, 33, Litual rela- (1 interna- tbe rights they have muuicii>al I the same principles ommands, I would ided upon g to which tual inter- s. These i are more the gen- y are right hostilities, sing in its Jes create ^e upon in- in of inter- imaujuris- rist or the lere is the )stract jus- ason; hav- ction than otlie them sprudence, terit^tics of , What are vhich is in tore, as we Illy seen to on the ab- II adopting moral law by the aid of right reason. It is only with this portion of intornational law that we need now concern ourselves. That other portion which I have already described as international only in its objects, and strictly national and municipal in its creation and sanctions, springs from the same sources whence all of the internal law ot a particular Stat<> arises — from legislatures and the decisions ot courts. We will then briefly con- sider these principal sources, or, if I may use the expression, fountains from which flow the streams of the jus inter gcntes. Sec. 33. (2) Reason. But Uie precepts of the moral law, either as con- tained in the written word, or as felt in the consciousness of the liuman race, are statements of broad, general principles; they are the germs, the fructifying powers; they must be developed, must be cast in a more practical and dogmatic form to meet the countless demands of each in- dividual, and of the societies we call nations. To this end we must appeal to reason; and hence the second source which I have mentioned, namely, enlightened reason acting upon the abstract principles of morality. I can not now stop to illustrate this proposition ; we shall meet many pertinent examples in the course of our investigations. I wish now, however, to dwell upon one fact of great importance — a fact which will help you to avoid many difficulties, to reconcile many dis- crepancies, to solve many uncertaincies. This fact is, that an interna- tional law is mainly based upon the general principles of pure morality, and as its particular rules are mainly drawn therefrom, or are intended to be drawn therefrom, by reason, it is, as a science, the most jnogres- sive of any department of jurisprudence or legislntion. The improve- ment of civilized nations in culture and refinement, the more complete understanding of rights and duties, the growing appreciation of the truth that what is right is also expedient, have told, and still do tell, upon it with sudden and surprising effect. The result is that doctrines which were universally received a gener- ation since are as universally rejected now; that precedents whi(;h were universally considered as binding a quarter of a century ago would at the present be passed by as without force, as acts which could not endure the light of more modern investigation. More par- ticularly is this true in respect to the rules which define the rights of belligerents and neutrals. The latest works of Er'-opean jurists are, as we shall see, conceived in a far different sp^irit froin standard treat- ises of the former generation. It was the entire ignoring or forgetful- noss of this evident and most benign fact by Mr. Senator Sumner, in the celebrated and elaborate speech which he delivered a few years since upon the international policy of England, that rendered the speech utterly useless as an argument, exposed it to the criticism of European jurists, and left it only a monunumt of unnecessary labor in raking up old precedents from history, which no civilized nation of our own day would quote or rely upon. The itoman law, that wonderful result of reason working upon a basis of abstract right, is largely appealed to in international discussions, as containing rules which, at least by analogy, may serve to settle inter- national disputes. No one can be an accomplished di])lomalist without a familiar acquaintance with much of this immortal code. r.Fliilliinore. Intornational law, 1871, ch. iii, pa^es 14-28.] XIX. • * • What are in fact the fountains of international jurisprudencef " • * * XX. Grotius enumerates these sources as being '' ipsa natura, legca divince, mores, et pacta." 12 ARCiUMKNT OF THE UNITED STATES. In 1753 the British Government made an answer to a memorial of the Prussian Government wliieli was termed by Montesquieu rqjLuse sans rSpHiiue, and whicli lias been generally recognized as one of the .ablest expositions of international law ever embodied in a state pajier. In this memorable document "The Law ot Nations "is said to be founded upon justice, equity, convenience, and the reason of the thing and cou- lirmed by long usage. XXI. These two statements may be said to embrace the substance of all that can be said on this subject. • • • XXII. Moral persons are governed partly by Divine law, • • • which includes natural law — partly, by positive instituted human law. • • • States, it has been said, are reciprocally recognized as moral per- sons. States are therefore governed, in tlieir mutual relations, partly by Divine and partly by i)ositive law. Divine law is either (1) that which is written by the finger of God on the heart of man, when it is called natural law ; or (2) that which has been miraculously made known to him. • * • XXIII. The primary source, then, of international jurisprudence is Divine law. XXVI. * • * Cicero maintains that God has given to all men conscience and intellect; that where these exist, a law exists, of which all men are common subjects. Where there is a common law, he argues, there is a common right, binding more closely and visibly upon the mem- bers of each separate state, but so knitting together the universe, '' ut jam universuH hie mundus una civitatt sit, communis Deorum atque homi- num existimandaJ" That law, this great jurist says, is immortal and unalterable by prince or people. * • • XXXI. This would be called by many who have of late years written on the science, international morality; they would restrict the term laic absolutely and entirely to the treaties, the customs, and the practice of nations. K this were a mere question as to the theoretical arrangement of the subject of international law, it would be of but little imi)ortance. • • * But it is of great practical importance to mark the sub- ordination of the law derived from the consent of states to the law de- rived from God. XXXII. • • • Another practical consequence is that the law derived from the consent of Christian states is restricted in its opera- tion by the divine law; and just as it is not morally comiietent to any individual state to make laws which are at variance with the law of God, whether natural or revealed, so neither is it morally competent to any assemblage of states to make treaties or adopt customs which con- travene that law. Positive law, whether national or international, being only declara- tory, may add to, but can not take from, the prohibitions of divine law. '■'■(jivilis ratio civilia qiiidem jura corrumperc potest, naturalia non utique," IB the language of Koman law; and is in harmony with the voice of international jurisprudence as uttered by Wolff: ^^Absit vero, ut existimes, jus gentium voluntarium ab curum voluntate itaprofis- oisci, ut libera sit earum in eodem condendo voluntas, ct stet pro ratione sola voluntas, nulla habita ratione juris naturalis.''^ XXXIII. This branch of the .subject may be well concluded by the invocation of some high authorities from the jurisprudence of all couutries in support of the foregoing opinion. APPENDIX TO PART FIRST. 13 rial of the )i. use nans ;lie ablest aper. In e founded ; and cou- substance * • • iman law. noral per- ns, partly gr (1) that when it is Lsly made nidence is bo all men , of which he argues, I the mem- verse, '' ut itque homi- p by prince rs written term law )ractice of gement of iportance. the sub- le law de- i.t the law its opera- ent to any the law of (ipetent to vhich con- y declara- of divine naturaUa nony with ff: ^^Absit ita profis- ro ratione ed by the ice of all Grotius says emphatically: ^^Nimirnm humana jura mvlta. comtit- uerepossunt pb^teb naturam, OONTBA nihil." John Voet speaks witli great energy to the same ettect: '^^ Quod si contra recUe rationis dictamen t/entcs VHU qua'dum intr<»du.rerint, NON ea jus gentium rcctd du'eris, SED pessimam potius morum itumani gen- eris OOREUPTELAM." Suarez, who lias discussed the philosophy of law in a chapter which contains the germ of most that has been written upon the subject, says: '■^ Leges autcm ad jus gentium rertinentes vera; leges sunt, ut expli- catum manet, propinquiores sunt legi naturali quam leges civiles, ideoque iinpossibile est esse contrarias wquitati naturali.^^ Wolff, speaking of his own time, saj s : '• Omnium ferd animos occupavit perversa ilia opinio, quasi pons juris gentium sit utilitas pro- pria; undue contingit, idpotentice coceqtiari. Damnanius hoc in privatis, damnamus in rectore civitatis^ sed iEQUE idem damnandum est in GENTIBUS." Mackintosh nobly sums up this great argument: " The duties of men, of subjects, of i>rinces, of lawgivers, of magistrates, and of states, are all parts of one consistent system of universal moniiify. Between the most abstract and elementary maxim of moral pi iksophy, and the most complicated controversies of civil or public la^v, tli^re subsists a exjnnection. The principle of justice, deeply rootetl in the nature and interest of mail, 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.'* [Henry Sumner Maine, International Law, pages 13-47.] In modern days the name of International Law has been very much confined to rules laid down by one particular class of writers. Tliey may be roughly said to begin in the first half of the seventeenth cen- tury, and to run three parts through the eighteenth century. The UJimes which most of us know are, first of all that of the great Hugo Grotius, followed by Puffendorf, Leibnitz, Zouch, Selden, Wolf, Bynker- shoek, and Vattel. The ;ist does not absolutely begin with Grotius, nor does it exactly end with Vattel, and indeed, as regards the hither end of this series the assumption is still made, and I think not quite fortunately, that the race of law-creating jurists still exists. * # • Their [the writers nauied and a few others] system is that couventiou- ally known as International Law. A great part, then, of International Law is Eoman law spread over Europe by a process exceedingly like that which a few centuries earlier had caused other portions of lioman law to filter into the interstices of every European legal system. The Eoman element in International Law belonged, however, to one special province of the Roman system, that which the Romans themselves called natural law, or, by an alter- native name. Jus Gentium. In a book published some years ago on " Ancient Law" I made this remark : " Setting aside the Treaty Law of Nations, it is surprising how large a part of the system is made up of pure J\oman law. Wherever there is a doctrine of the lioman juris- consults ailirmedby them to be in harimmy with the Jus Gentium, the Publicists have tbund a reason for borrowing it, however plainly it may bear the mark of a distinctive Roman origin." • • * * Seen in the light of stoical doctrine the law of nations came to be ideu tilled with the law of nature; that is to say, with u number of sup- u AUGUMENT OP THE UNITED STATES. posed principles oleonduct wh'w.U man in society obeys simply becanse he is man. Tims the law of natiue is simply t)ie law of nations seen in the li}>:ht of a peenliar theory. A passage in the Koman institutes shows that tlie exi)re8sion8 were practically convertible. The greatest function of the law of nature was discharged in giving birth to modern international law. • • * The impression that the Koman law sustained a system of what would now be called internatioiiid law, and that this system was iden- tical with the law of nature had undoubtedly much influence in causing the rules of what the Itomans called natural law to be engrafted on, and ideutitied with, the modern law of nations (page 28). It is only necessary to look at the earliest authorities on international law, in the " De Jure Belli et Piicis" of Grotius tor example, to see that the law of nations is essentially a moral and, to some extent, a religious system. The appeal of Grotius is almost as frequent to morals and religion as to precedent, and no doubt it is these iiortions of the book ♦ * • which gained for it much of the authority which it ultimately obtained. (Page 47.) [From Whoaton, International Law, part I, oh. I, sees. 4, 14.] The princi])les and details of international morality, as distinguished from international law, sire to be obtained not by applying to nations the rules which ought to govern the conduct of individuals, but by as- certaining what are the rules of international conduct which, on the whole, best promote the general happiness of mankind. International law, as understood among civilized nations, may be de- fined 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 such definitions and modifications as may be established by general consent. [Kent's Commentaries, Part i, lect. 1, pages 2-4.] • • * The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience. We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous suggestion that govern- ments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to other powers, as they .are in the management of their own local concerns. States or bodies politic are to be considered as moral persons, having a public will, capable and free to do right 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 coutrol his conduct in pri- APPENDIX TO PART FIRST. 15 y becaiiRo iiiHtitiiteH B grtiateMt uioderu 1 of wliat was itlen- 11 causing jd on, and irnational e, to see extent, a to morals ns of the wLicli it nguislied nations ut by as- i, on the ay be de- duces, as among } as may ations is, sent, and ' entirely much of the same nction of deduced, ler every ict itself )n of the nations, and it is )ligatory aw from govern - fcice, and sment of nsidered ight and jf whom binding t in pri- vate life. The law of nations is a complex system, composed of various ingredients. It consists ()f general principles of right and Justice, eipmlly suitable to the government of individuals in a state of natural equality and to the relations and conduct of nations; of a collection of usiiges, customs, und opinions, the gn)wth of civilization and commerce, and of a code of conventional or positive law. In the absence of these latter regulations, the intercourse and con- uiict of nations are to be governed by princii)les fairly to be deduced from the rights and duties of nations rnd the natun^ of moral obliga- tion; and we have the authority of the lawyej's of antiquity, and of some of the first masters in the modern school of public* law, for plac- ing the moral obligation 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 i>rinciples of natural law, is equally binding in every age and upon all nutnkind. • * • [Halleok, lutcrnatioual Law, ch. ii, sec. 13, page 50, and boo. 18, page 54.] Seo. 13. It is admitted by all that there is no univ<'rsal or immutable law of nations, binding upon the whole human race, which all nuinkind in all ages and countries have recognized and obeyed. Nevertheless, there are certain principles of action, a certain distinction between right and wrong, between justice and injustice, a certain divine or natural law, or rule of right reason, which, in the words of Cicero, "is congenial to the feelings of nature, diffused among all men, uniform, eternal, commanding us to our duty, and prohibiting every violation of it; one eternal and immortal law, which can neither be repealed nor derogated from, addressing itself to all nations and all ages, deriving its authority from the counnon Sovereign of the universe, seeking no other lawgiver and interpreter, carrying home its sanctions to every breast, by the inevitable punishment He inflicts on its transgressors." It is to these principles or rule of right, reason, or natural law, that all other laws, whether founded on custom or treaty, must be referred, and their binding force determined. If, in accordance with the spirit of this natural law, or if innocent in themselves, they are binding upon all who have adopted them ; but if they are in violation of this law, and are unjust in their nature and ettects, they are without force. The prin- ciples of natural Justice, applied to the conduct of states, considered as moral beings, must therefore constitute tlio foundation upon which the customs, usuages, and conventions of civilized and christian nations are erected into a grand and lofty temple. The character and dura- bility of the structure must depend upon the skill of the architect and the nature of the materials; but the foundation is as broad as the i)rin- ciples of justice, and as immutable as the law of God. Sec. 18. The first source from which are deduced the rules of con- duct which ought to be observed between nations, is the divine laic, or l)rinciple of Justice, which has been defined " a constant and i)erpctual disposition to render every man his due." The peculiar nature of the society existing among independent states, renders it more difficult to apply this principle to them than to individual members of the same state; and there is, therefore, less unitbrmity of opinion with respect to the rules of international law properly deducible from it, than with respect to the rules of moral law governing the intercourse of indi- vidual men. It is, perhaps, more ])roperly sjieaking, the test by which the rules of positive international law are to be judged, rather than the IG AU(SUMENT OF THE UNITED STATES. Bourcefroin wlii. 1, tit. I ; rhiilimore, Ou Int. Law, Vol. i, sec. 23; Dymond, Trin. of Morality, Kssay 1, pt. 2, ch. 4; Manning, Law of Nations, pp. 57-58; Cotelle, Droit des(iens, pt. 1; Ilcinuccius, Elcmonta Juiiti !Nat. et Gent., lib. 1, cap. I, sec. 12.) [WoolHey : lutrudiictioii International Law, ed. 1892, seo. 16, pago 14.] Seo. 15. • * • But what are the rational and moral grounds of international lawT As we have seen, they are tiiesame in general with those on which the fights and obligations of individuals in the state and of the single state towards the individuals of which it consists, repose. If we define natural jm to be the science which from the nature and destiMati(ni of man determines his external relations in society, both the question, What ought to be the rights and obligations of the indi' lual in the state? and the question. What those of a state among stii ought to bef fall within this branch of science. That there are si. u rights and obligations of states will hardly be doubted by those who admit that these relations of latural justice exist in any case. There is the same reason why they should be applied in regulat- ing the intercourse of states as in regulating that of individuals. There is a natural destination of states, and a divine purpose in their existence, which makes it necessary that they should have certain ftmctions and powers of acting \viiiun a certain sphere, which external force may not invii'le. It would be strange if the state, that jwwer which defines lights and makes them real, which creates moral persons or associations witii rights and obligations, should have no such rela- tions of its own — should be a physical and not a moral entity. In fact, to take the opposite ground would be to mfiintain that there is no right and wrong in the intercourse of states, and to leave their conduct to the sway of mere convenience. [Wolflf, quoted by Vattel, preface to seventh American ed., page ix.] Nations do not, in their mutual relations to each other, acknowl- edge any other law than that which nature herself I is established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual persons living together in the state of nature; and, for that reason, we must apply to them all the duties and rights which nature prescribes and attributes to men in general, as being naturally born free, and bound to each other by no ties but those of nature alone. The .'aw which arises from this application, and the obligations resulting from it, proceed from that inimutable law founded on the nature of man ; and thus the law of nations certainly belongs to the law of nature; it is, therefore, on ac- count of its origin, called the natural, and, by reason of its obligatory force, the necessary, law of nations. That law is common to all nations; and if any one of them does not respect it in her actions, she violates the common rights of all the others. But nations or sovereign States being moral persons and the subjects of the obligations and rights resulting, in virtue of the law of nature, from the act of association which has formed the political body, the nature and essence of these moral persons necessarily dift'er, in many respects, from the nature and essence of the physical individuals, or APPENDIX TO PART FIRST. 17 men, of wliom tliey are coinposed. When, thoreforo, we would apply to uatious the duties whicli the law of nature preHeribes to individual man, and the rights it confers on him in order to enable him to fulltll his duties, since those rights and those duties can be no other than what are consistent with the nature of their subjects, they mii;iige8 46, 12 et seq. TrauHlution.] He (God) has given to nations and to those who govern them a law which they are to observe towards eacih other, an unwritten law, it is true, but a law which He has taken care to engrave in indelible char- acters in the heart of every man, a law which causes every human being to distinguish wh.at is true from what is false, what is just from what is unjust, and what is beautiful from what is not beautiful. It is the divine or natural law; it constitutes what I shall call primitive law. This law is the only basis and the only source of international law. By going back to it, and by carefully studying it, we may succeed in retraining the rights of nations with accuracy. Every other way leads infallibly to error, to grave, nay, deplorable error, since its immediate result is to blind nations and their rulers, to lead them to misunder- stand their duties, to violate them, and too often to shed torrents of hu- man blood in order touphold unjust pretensions. The divine law is not written, it has never been formulated in any human language, it has never been promulgated by any legislator; in fact, this has never been possible, because such legislator, being man and belonging to a nation, was from that very fact without any authority over other nations, and had no power to dictate laws to them. This lack of a positive text has led some publicists to deny the existence of the natural law, and to reject its application. They have baser Mieir action in so doing more particularly upon the different way in which each individual interprets that law, according as his organiza- tion is more or less perfect, more or less powerful, if I may thus express myself; hence, it results that this law is different for each individual and for each nation, that is to say, that it does not exist. One of these writers, in support of his denial of the natural laM', lays down the prin- ciple that man brings nothing with him into this world except feelings of pain or pleasure, and inclinations that seek to be satisfied, which can never be entitled to the name of laws, since they vary according to the organization of each individual, because they are by no means the same among all nations and in all climates.^ These opinions would perhaps have some appearance of reason if the natural law were represented as a written system of legislation or as a complete code similar to those which govern human society and the members who compose it. Then it might be said with Moser: "What ' What is natural in man is liis feelings of pain or pleaflure, bis inclinations; Lutto callthfsc feelinpn inul inolinations laws, is to introduce a false and dangerous view and to put lang!!;:-; in cKiitradiction with itself, for laws must be made for the very purpose of repr»'«eing these inclinations. * • * (Jeremy Beuthom, Falae Mauaer of KeiUMMMUg «L Maitcra of Legislution.) -2 18 ARGUMKNT OF THE UJ'' ED STATES. is this law which is ao much talked about? Must we seek its princi- ples in Grotius or Hobbes?"' Some one might ask to see that code which is destined to prevent all wars by foreseeing and condemning all unjust claims in advance. It is not thus, however, that the natural law is presented by thoso au- thors who have taken its teachings as the basis of their writings; they have never sought to give it a body or to put it in the form of a v ritten law. What is true, and, in my ojiinion, incontestable, is that notions of what is just and 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 hearts, and that they bring with them into the world when they are born. These notions do not extend to all the details of law as do civil laws, but they Jiave reference to all the most prominent points of law, if I may thus express myself. It can not be denied that the idea of i)roperty is a natural and innate idea. The same is the case with the idea which impels every individ- ual to exercise care for his own preservation with that which forbids men to enrich themselves at the expense of others; which imposes the obligation to repair a wrong done to one's fellow-man, to perform a promise made, etc., etc. These first and innate notions, which every, man brings with him into the world Avlien he is born, are Ihe preeepts of the natural law; and human laws are all the more perfect the nearer they approach to these divine prec^epts. The natural or diviwe law is the only one that can be applied among nations — among beings free from every bond and having no interest in common. From these general rules of divine law it is easy to form secondary laws having for their object the settlement of all questions tluit can arise among all the peoples of the universe. T.; cite but a single exam- ple, it is evident that from the principle of the law eman n ting from God, that every nation is free and independent of every other nation (which principle is recognized by all men), this consequence ressults, which is necessary and absolute, as is the principle itself, viz: That every na- tion may freely exchange its superHnous possessions, trade with whom- soever it may choose to seek in order to make such exchan,a;e and to carry on such trnde, without being under any necessity of applying for the permission of a third nation. The only condition that it must ful- fill is that it must obtain the conf entof the other party to the contract. It need not trouble itself about the annoyance tiiat sucli excliange may cause a third nation, provided such trade does not interfere with the positive and natural rights of such nation. This second rule gives rise to several others which are as clear and absolute as it is itself. In a word, all international law is the outgrowth of natural and primitive law. Viewed in this light, it seems to me im- possible to dispute the existence of the primitive law; it is a kind of mathematical truth, and I do not fear to reply to Moser; the principles of this law are not only in Grotias and Hobbes, but they are in the hearts of all men, they are in the heart of you who ask where they are found. International law is, therefore, based upon the divine and primitive law; it is all derived from this soiuce. By the aid of this single law, I firmly believe that it is not only possible, but even easy, to regulate all relations that exist or may exist among the nations of the universe. This common and positive law contains all the rules of justice; it exists ' (Moser, "Esa.ai sur lo droit rtcs gous dos plus modoruos des uations europdeuueN en puix et eu guerre, 177»-1780.") ■ APPENDIX TO PART FIRST, 19 )nnci- int all It so au- they ritten :)tion8 at all have them nd to to all i JL inrlopendeTitly of aM legislation of all human institutions, and it is one for all nations. It governs peace and war, and traces the rights and duties of every position. The rights which it gives are clear, positive, and absolute; they are of such a nature as to reciprocally limit each other without ever coming into collision or contradiction with each other; they are coi'relative to each other, and are coord'nated and linked with the most perfect harmony. It can not be otherwise. He Avho has arranged all the parts of the universe in so admirable a man- ner, the Creator of the world, could not contradict himself. * * * « « * • The natural law is, from its very nature, always obligatory. The treaties which recall its provisions and regulate their application must necessarily have the same perpetuity, since, even if they should cease to exist, the principles would not cease to be executory just as they were when the stipulations were in force. * * * Certain usages have become established among civilized nations without ever having been written in any treaty, and without ever hav- ing formed the subject of any special and express agreement. These usages, few in number, in harmony w ith primitive law, whose applica- tion they serve to regulate, form a part of international law which might be called the law of custom; it seems to me preferable to consider them as a part of secondary law. [From " Le Droit de la Nature et des Gens," par le Baron de Pufendorf, traduit da Latin par Jean Barbeyrac. 5th ed., Vol. 1, Book 2, chap. 3, sec. 23, pages 243 et seq. Translation.] FinsiUy, we must further examine here, whether there is a positive law of nations, different from the natural law. Learned men are not well agreed on this subject. Many think that the natural law and the law of nations are, in point of fact, but one and the same thing, and that they differ in name only. Thus, Hobbes divides the natural law into natural law of man and natural law of states. The latter, in his opinion, is what is called the law of nations. "The maxims," adds he, " of both these laws are precisely the same; but as states, as soon as they are found, acquire, to a certain extent, personal characteristics, the same law that ib called natural, when the duties of private indi- viduals are mentioned, is called the law of nations when reference is made to the whole body of a state or nation." I fully subscribe to tliis view, and I recognize no other kind of volun- tary or positive international law, at least none having force of law, prop- erly so called, and binding upon nations as emanating from a superior. There is, in fact, no variance between our opinion and that of certain learned men who regard that which is in harmony with a reasonable nature as belonging to natural law, and that which is based upon our needs, which can not be better provided for than by the laws of socia- bility, as belonging to the law of nations. For we maintain sinii)ly that there is no positive law of nations that is dependent upon the will of a superior. And that which is a consequence of the needs of human nature should, in my oijinion, be referred to the natural law. If we have not thought proper to base this law upon the agreement of the things which are its object, with a reasonable nature, this was in order not to establish in reason itself the rule of the maxims of reason, and to avoid the circle to which is reduced the demonstration of the njitural laws by this method. Moreover, the majority of the things which the Koman jurisconsults ivnd the great body of learned men refer to the law of uatiousj auaU 20 ARGUMENT OF THE UNITED STATES. as the diifereiit kinds of acquisition, contracts, and other similar things, either belong to the natural law or form part of the civil law of every nation. And, although in regard to those things whi(;h are not based upon the universal constitution of the human race, the laws are the same among the majority of the nations, no particular kind of law results from this, for it is not in virtue of any agreement or of any mutual obliga- tion that these laws are com mem to several peoples, but purely and simply from an eft'ect of the particular will of the legislators of each State, who have by chance agreed in ordering or forbidding the same things. Hence it is that a single people can change these laws of its own accord withoiit consulting others, as has frequently been done. We must not, however, absolutely reject the opinion of a modern writer, who claims that the Roman jurisconsults understand by law of nations that law which concerns those acts which foreigners could per- form, and the business which they could validly transact in the states belongingto the lioman people, in contrast with the civil law that was particular to Eoman citizens. Hence it was that wills and marriages, which were valid among citizens only were referred to civil law, while contracts were considered as coming under the law of nations, because foreigners could make them with citizens in such a manner that they were valid betine the Roman courts of justice. Many also apply the name law of nations to certain customs, especially in matters relating to war, which are usually practiced by a kind of tacit consent, among the majority of nations, at least among those that pride themselves on having some courtesy and humanity. In fact, inasmuch as civilized nations have attached the highest glory to distinction in war; that is to say, to daring and knowing how skill- fully to caus(i the death of a large number of persons, which has in all ages given rise to many unnecessary or even unjust wars, conquei'ors, in order not to render themselves wholly odious by their ambition, have thouglit proper, Avhile claiming every right that one has in a just war— have thought proper, I say, to mitigate the horrors of war and of military expeditions by some appearance of humanity and magna- nimity. Hence the usage of sparing certain kinds of things and cer- tain classes of persons, of observing some moderation in acts of hos- tility, of treating prisoners in a certain way, and other similar things. Yet while such customs seem to involve some obligation, based at least upon a tacit agreement, if a prince in a just war fails to observe them, provided tliat by taking an opposite course he does not violate natural law, he can be accused of nothing niiu-e than a kind of dis- (!ourtesy, in that he has not observed the received usaue of those who regard war as being one of the liberal arts; just as among fencing umsters, one who has not wounded his man according to the rules of art is regarded as an ignorant person. Thus, so long as none but just wars are carried on, the maxims of natural lawalone may be consulted, and all the customs of other nations maybe set at naught unless one is interested in conforming thereto, so as to induce the enemy to perform less rigorous acts of hostility against us and against our party. Those, however, who undertake an unjust war, do well to follow these customs, so as to maintain at least some moderation in their injustice. As, however, these are not reasons that are generally to be considered, they can constitute no universal law, obligatory upon all naticms; especially since in all things that are only based ui)on tacit consent anyone may decline to be bound by them by exi)ressly declaring that he will not be so bound, and that he is willing that others should not be thereby bound in their dealiugs with him. APPENDIX TO PART FIRST. 21 We observe tliat not a few of these cUvS torn shave, in course of time been abolished, .ind that in some cases directly opposite customs have been introduced. In vain has a certain writer impugned our opinion as if it were sub- versive of the foundations of tlie safety, advantage, and welfare ot na- tions ; for all that is not dependent upon the customs just referred to, but upon the observance of the natural ]av% which is a much more solid principle and one deserving of much greater respect. If its rules are carefully observed, mankind will not have much need of these customs. Moreover, by basing a custom upon the maxims of natural law, a nuich more noble origin is given it, and also much greater authority than if it were made to depend upon a mere agreement among nations. [Ortolan. International Rules and Diplomacy of the Sea. Paris, 18G4, vol. i, book 1, ch. IV., pa<;;e 71. Translation.] It is apparent that nations not having any common legislator over them have frequently no other recourse for determining their respective rights but to that reasonable sentiirient of light and wrong, but to those moral truths already brought to light and to those which are still to be demonstrated. This is what is meant when it is said that natural law is the first basis of international law. ThivS is why it is important that Governments, diplomats, and publicists that act, negotiate, or write upon such, matters should have deeply (rooted) in themselves this sentiment of light and of wrong which we have just defined, as well as the knowled ?e of the point of certainty (point de certitude) where the human mind has been able to attain this order of truths. But nations are not reduced only to that light, too often uncertain of human reason, for defining ther reciprocal rights. Experience, imitation of accomplished precedents, and long practical usage habit- ually and generally observed add to it what is termed a custom which forms the rule of international conduct and from which flows on one or the other side positive rights (adroits). The binding force of custom is founded on consent, the tacit agreement, of nations. Is'ations have thus tacitly agreed among themselves, and they have bound tliem- selves through this tacit agreement, for the reason that they have practiced it so long and so generally. The supremacy of custom is much more frequently exercised and much more extensive in international law than in private law; pre- cisely because in international law there is no common legislator to restrain such supremacy by formulating the rule of conduct in writ- ing. Custom is often comformable to the light of reason upon that which is right or wrong because it emanates from communities or col- lections of reasonable beings ; but frequently also it is contrary to it, because the reason of man, individual or collective, is subject to error; finally, it tends more and more intimately to approach it, because the path of man, an essentially perfectible being, is a path of improvement and progress. , • •••••* It must be stated that treaties, far from justifying the exclusion of moral truths of what is right or wrong, among luitions, which one wishes to deduce from them, precisely only obtain their binding force but from one or the other of those truths. It is because the natural uentinient of right dictates to all that a regular agreement of inde- pendent wills between qualified persons on allowable subjects and cases binds the contracting parties to each other, it is therefore that treaties 22 ARGUMENT OP THE UNITED STATES. are recogiiizod aa obligatory. They only draw, therefore, their funda- mental authority except from natural law, employing for an instant this term, the sense of which we have before explained. And it is also from natural law that is generally deduced the int to nations, States, or their chiefs, in the relations they have together, and the several interests they Itave to manage between each other. VI. There is no room to question the reality and certainty of such a law of nations obligatory of its own nature, and to which nations, or the so /ereigns tliat rule them, ought to submit. For if God by means of right reason imposes certain duties between individuals, it is evident he is likewise willing that nations, which are only human socigties, should observe the same duties between themselves. (See ch. v, sec. 8.) Sec. IX. * • * There is certainly an universal, necessary, and self-obligatory law of nations, which diflfers in nothing from the law of nature, and is consequently immutable, insomuch that the people or sovereigns can not dispense with it, even by common consent, without transgressing their duty. There is, besides, another law of nations which we may call arbitrary and free, as founded only on au express or tacit convention, the eflfect of which is not of itself universal, being obligatory only in regard to those who have voluntarily submitted thereto, and only so long as they please, because they are always at liberty to change or repeal it. To this we must likewise add that the whole force of this sort of law of nations ultimately depends on the law of nature, which commands us to be true to our engagements. Whatever really belongs to the law of nations may be reduced to one or other of these two species; and the use of this distinction will easily appear by applying it to particular questions which relate either to war, for example, to ambassadors, or to public treaties, and to the de- ciding of disputes which sometimes arise concerning these matters between sovereigns. Seo. X. It is a point of importance to attend to the origin and nature of the law of nations, such as we have now explained them. For, be- sides that it is always advantageous to form just ideas of things, this is still more necessary in matter of practice and morality. It is owing perhaps to our distinguishing the law of nations from natural law, that we have insensibly accustomed oursel ves to form quite a ditterent judg- ment betv. ^en the actions of sovereigns and those of private people. Nothing is more usual than to see men condemned in common for things which we praise, or at least excuse in the persons of princes. And yet it is certain as we have already shown, that the maxims of the law of nations have an equal authority with those of the law of nature, and are equally respectable and sacred, because they have God alike for their author. In short, there is only one sole and the same ride of justice for all mankind. Princes who infringe the law of nations commit as great a crime as private people who violate the law of nature; and if there be any difference in the two cases, it must be charged to the prince's account, whose unjust actions are always attended with more dreadful consequences than those of private people. Other citations might be added almost indefinitely. The following references may be added: F. de Martens, Int. Law, Paris, 1883, Vol. 1, pages 19, 20; Li. E. P. Tuparelli d'Azeglio, de la Compagnie de J6sus, Traduit de I'ltalien, deux ed. tome ii, ch. 2; Grotius De Jure, Belli ac Pacis. Proleg; Heff- ter, Int. Law of Europe, page 2; Bluntschli, Le Droit Int. Codifid, pages 1, 2; Pasquale Fiore, book 1, ch. 1; Ahrens, Course of Natural Law and The Philosophy ot Law, Vol. ii, book iii, ch. 1; M. G. Masse, Commercial Law in its Eelations to the Law of Nations, etc., Paris, 1874, book 1, Lib. ii, ch. 1, page 33; Louis Keuault, Introduction a r^tude da Droit International, Paris, 1879, pages 13, 11. JUJJISBICTIONAL AND OTHER KlGHTa OVEU BEEIXQ SEA. 27 the sof tlie uld SECOND. THE ACQUISITION BY RUSSIA OF JURISDICTIONAL OR OTHER RIGHTS OVER BERING SEA AND THE TRANSFER THEREOF TO THE UNITED STATES. The first four questions submitted to the High Tribunal by the Treaty are these: 1. What exclusive jurisdiction in the sea now known as the Behrinff's Sea, and what exclusive rights in the seal fisheries tlieroin, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain ? 3. Was the body of water now known as the Behriug Sea included in the phrase ' Pacific Ocean,' as used in the treaty of 1825 between Great Britain and Eussia; and what rights, if any, in the Behring Sea were held and exclusively exercised by Russia after said treaty? 4. Did not all the rights of Russia as to jurisdiction, and as to tlie seal fisheries in Bering Sea east of the water boundary in the treaty between the United States and Russia of the 30tli of March, 1867, pass unimpaired to the United States under that treaty ? The learned Arbitrators may have themselves had occasion to ob- serve, and, if not, it will at an early stage in the discussion of this con- troversy become manifest to them, that in the consideration by writers upon international law and by learned judges administering that law, of the authority which nations may exercise upon the high seas, two subjects, essentially distinct, have been habitually confounded, and have not, even at this day, been clearly separated and defined. One is the exercise of the sovereign right of making laws operative upon the high seas and binding as well upon foreigners as citizens, which right must necessarily be limited by some definite boundary line. The other is the protection afforded by a nation to its property and other rights by reasonable and necessary acts of power against the citizens of other nations whenever it may be necessary on the high seas with- out regard to any boundary line. Much of this confusion has arisen and been fostered by the lack of precision in the meaning of words. The term "jurisdiction" has from the first been indifferently employed to denote both thiigs. It has thus become a word of ambiguous import. 28 ARGUMENT OF THE UNITED STATES. These two subjects may appour to have been to some extent con- ibnniled, or blended, in the minds of the negotiators of the treaty, for the four questions now about to be considered appear, at first view, to embrace both. The Tribunal is called upon to determine, on the one hand, what ejcclusive jurisdictioii in Bering Sea Bussia has asserted and exercised, which may not unreasonably be viewed as referring to the exercise of the sovereign power of legislation over that sea, tai.iamount to an extension of territorial sovereignty. It is also called upon to determine what exclusive right in the " seal fisheries " in Bering Sea Eussia asserted and exercised prior to the cession to the United States — a totally diflferent question — although a decision of it, aflftrming the exclusive right, might carry with it, as a consequence, the right to protect such fisheries by a reasonable exercise of national power anywhere upon the seas where such exer- cise might be necessary. And yet it is not probable that the negotiators, even if the two ques- tions were to them distinctly in view, really intended to assign a dis- tinct and separate importance to the first. The real controversy was upon the second, and t\i.Q first was intended to be included, only so far as it might have a bearing upon the second. This is quite manifest from the circumstance tliat in neither of the four questions is the first of the two rights or claims stated alone and apart from the other; and still more from the language of the second question, which clearly im- plies that the claim of a right to exercise authority on the sea in defense of a property interest is the one principally intended to be submitted. The language is as follows : " How far were these claims of jurisdiction a« to the seal fisheries recognized and conceded by Great Britain.'' This language clearly shows that the Eussian claims of exclusive jurisdic- tion designed to be submitted to the Tribunal were such only as as- serted a right to protect the sealing interest of Eussia by action upon Bering Sea. And there is nothing in the dijilomatic correspondence ■which led up to the treaty disclosing any assertion on the part of the United States to the effect that Eussia had ever gained any right of exclusive legislation over that sea. On the contrary, such assertion had been emphatically disclaimed. It is by no means intended in what has been said that the question what authority on Bering Sea, or, to use the ambiguous word, what *' jurisdiction" in Bering Sea, Eussia had asserted and exercised in relation to her sealing interests, is unimportant. That question, although JURISDICTIONAL AND OTHKlt UIGHT8 OVER BERING REA. 29 in no sense a vital one, has a material bearing, and was designed to bo embraced by the arbitration. The question whether property rights and interests exist, is one thing; the question what the nation to which they belong nniy, short of an exercise of the sovereign power of exclu- sive legislation, do by way of protecting them, is another; and both are by the treaty submitted to the Tribunal. Should it appear that Kussia had for nearly a century actually asserted and exercised an authority in Bering Sea for the purpose of protecting her sealing interests, and that Great Britain had never resisted or disputed it, it would be quite too late for her now to draw the reasonableness of it into question. A studied effort is made in the Case of Great Britain to make it appear that the United States have shifted their ground from time to time in relation to the subject of this controversy, by first asserting that Bering Sea was mare clausum; then by setting up an exclusive jurisdiction over an area with a radius of 100 miles around the Pribilof Islands; and, lastly, by abandoning both those positions, and asserting a property interest in the herds of seals. This appears from the deliberate statement which, closes the Seventh Chapter of the Case of Great Britain, as follows: The facts stated in this chapter show: That the original ground upon which the vessels seized in 188G and 1887 were condemned, was that Bering Sea was a mare clausum, an inland sea, and as such had been conveyed, in part, by Russia to the United States. That this ground was subsequently entirely abandoned, but a claim was then made to exclusive jurisdiction over 100 miles from the coast- line of the United States' territory. That subsequently a further claim has been set up to the eflFect that the.United States have a property in and a right of protection over fur- seals in nonterritorial waters. It will be necessary, in order to expose the error of this statement, to briefly review the several stages of the controversy, and draw atten- tion to the grounds upon which the Government of the United States has taken its positions. It was in September, 1886, that the attention of that Government was first called by Sir L. S. Sackville-West, Her Majesty's minister at Wash- ington, to a reported seizure in Bering Sea of three British sealing vessels by a United States cruiser. Information only respecting the affair was at first asked for, and considerable delay occurred in procuring it; but, prior to September, 1887, copies of the records from the United States District Courtof Alaska of the seizure and condemnation of these vessels had been fiiruisUed t^ the British Goverumeut. It appeared 80 ARGUMENT OP THE UNITED STATES. from tlioso that the soi/Jires wore in ide in Bering Sea at a greater distauc-e than tliree miles from tlie land; and thereupon Lonl Salisbury, apparently assuming that the statutes of the [Jnited States which au- thorized the seizures, were based upon some supposed jurisdietiou over lieiing Sea ac(iuired from Russia, addressed a not(^ to Sir L. S. Sack- vi lie West, in which he called attention to the Russian ukase of 1821, which asserted a peculiar right in that sea, the objections of the United States and Great JJritain to that assertion, and the treaties between those two nations, respectively, and Russia of 1824 and 1825, and insisted that these documents furnished evidence conclubively show- ing tluit the seizures were unlawful.' The United States Government did not then reply to the point thus raised; but its first attitude in relation to the matter was to suggest, by notes addressed to the difterent maritime nations, that a peculiar property interest was involved, which might justify the United States Government in exercising an exceptional marine jurisdiction; but that inasmuiih as the race of fur-seals was of great importance to commerce and to mankind, it seemed the part of wisdom for the nations to con- sider whether some concurrent measures might not be agreed to which would, at the same time, preserve the seals and dispose of the cause of possible controversy.* The first attitude, therefore, taken by the United States was the suggestion of a property interest, and of an exceptional maritime right to protect it by preventing the destruction of the seals; but that all nations ought to unite in measures which would preserve them, and thus avoid occasion for controversy concerning the right. On the 22d of January, 1890, Mr. Blaine, who had succeeded Mr. Bayard as Secretary of State, had occasion to make answer, in a note to Sir Julian Pauncefote, to further complaints on the part of the British Government concerning the course of the United States cruisers in intercepting Canadian vessels while engaged in taking fur- seals in the waters of Bering Sea. In the outset of his communica- tion Mr. Blaine begins by pointing out that it is unnecessary to discuss any question of exclusive jurisdiction in the United States over the waters of that sea, because there were other grounds upon which the (loursc of the United States was, in his opinion, fully iustifled. He thus expresses himself: In the opinion of the President, the Canadian vessels arrested and detained in tlie Behring Sea were engaged in a pursuit that was in itself — ^- — ' — ■ . ' Case of the United States. Appendix, Vol. i, p. 162. ?Caae of tlie Uuitod States. Appendix, Vol. i, p. 168, JIIKISUICTIONAL AND OTMKR lilOHTa OVKR IIHRINO SEA. 31 contra bonos mores, a pursuit vlii<'li of necessity involves a serious and pornianeut iiijuiy to tlie riglits of tlie (Joveriiineut and people of the United States. To establish this {jroniid it is not necessary to arf,'ne the question of the extent and nature of the sovereijjnty of tliis (lov- ernnient over the waters of the Px'hrinf;- Sea; it is not necessary to explain, certainly not to define, the powers and privilef^es ceded by His Imperial Majesty the Eniperor of Kussia in the treaty by wiiii-h the Alaskan territory was transferred to the United States. The weij^hty considerations growing- out of the acquisition of that territory, with all the rights on land and sea inseparably connected tlu^rewith, may be safely left out of view, while the grounds are set forth upon which this (lovernment rests its justittcation for the action complained of by Her Majesty's Government. Mr. Blaine then proceeds to point out tluit long before the acquisi- tion of Alaska by the United States the fur-seal industry had been established by Russia upon the Pribilof Islands, and that while she had control over them, her possession and enjoyment thereof were in no way disturbed by other imtions ; that the United States, since the cession of 1867, had continued to carry on the industry, cherishing the herd of fur-seals on those islands and enjoying the advantage thereof; that in the year 1886, vessels, mostly Canadian, were fitted out for the purpose of taking seals in the open sea, and that tlie number of vessels engaged in the work had continually incireased; that they engaged in an indiscriminate slaughter of the seals, very injurious to the industry prosecuted by the United States, and threatening the e termination, substantially, of the species. He insisted that the gr' > id upon which Her Majesty's Government was disposed to defend loso Canadian vessels, viz., that their acts of destruction were committed -t a distance of more than three miles from the shore line, was wholly insui- ficient; that to exterminate an animal useful to mankind was in itself in a high degree immoral, besides being injurious to the interests of the United States; that the "law of the sea is not lawlessness," and that the liberty which it confers could not be " perverted to justify acts which are immoral '!i themselves, and which inevitably tend to results against the interests and against the welfare of mankind." It is, therefore, entirely dear that Mr. Blaine improved the first occasion upon which he was called upon to refer to the subject, to place the claims of the United States distinctly on the ground of a property interest, which could not be interfered with by other nations upon the high seas by practices which in themselves Avere essentially immoral and contrary to the law of nature.' fl *Mr. Blaino to Sir Juliau Pauuccfote, Case of tbeUuitod States, Appendix, Vol. i p. 200. I 32 ARGUMENT OP THE UNITED STATES. This correspondence was followed by fiirtlier diplomatic communica- tions looking to the establishment of regulations designed to restrict pelagic sealing; and on the 22d of May, 1890, the Marquis of Salis- burj addressed a note to Sir Julian Paixncefote, in the nature of an answer to the note last above mentioned from Mr. Blaine, and it ap- pears fron this, very clearly, that he did not misunderstand the posi- tions taken by Mr. Blaine. He thus expresses himself : Mr. Blaine's note defends the acts complained of by Her Mjyesty's Government on the following ground: 1. That " tilt) Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that is in itself contra bonos mores — a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States". 2. That the fisheries had been in the undisturbed possession and under the exclusive control of Eussia from their discovery until the cession of Alaska to the United States in 1867, and that from this date onwards until 1886 they had also remained in the undisturbed posses- sion of the United States Government. 3. That it is a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to the extinction of the species, and that therefore nations !;ot possessing the territory upon which seals can increase their numbers by natural growth should refrain from the slaughter of them in the open sea. Lord Salisbury, ?.n this note, ins'ets that whatever may be the value of the industry to the United Staies, they would not be authorized in preventing by force the practice of pelagic sealing; but he does not choose to enter into any discussion of the question whether the indis- criminate slaughter of seals manifestly tending to the extermination of the species could b'e justified. His lordship, however, in answer to the alleged exclusive monopoly of Russia in the far-seal industry, referred tti the Russian ukase of 1821, as if Mr. Blaine had insisted upon claims similar to those advancti' in tim'c document, and quoted some lan- guage from a communication of Mr. John v'^uincy Adams, when Secre- ary of State, to theUuited States minister in Russia, contesting the pretension set up in the ukase.^ Meanwhile further diplomatic communications were taking place in relation to the establishment of restrictions designed to limit the prac- tice of pelagic sealing and pi-evont, in some measure at least, its de- structive operation ; and it would seem that these efforts had been nearly successful, and would liave been entirely consummated, but for objections interjioscd on the part of Canada.'* Tnso of the United States, Appexdix, Vol. i, p. 207. • Caec of tlie Uuitod ytatoe, Appendix, Vol. i, pp. 212-224, JURISDICTIONAL AND OTHER RIGHTS OVER BERING SEA. 33 On the 30tb of June, 1890, Mr. Blaine addressed a note to Sir Julian Pauncefote in which he referred to Lord Salisbury's note, above men- tioned, of May 22, and especially to the passage quoted in it from the communication of Mr. John Quincy Adams to ;he American minister in Eussia, in which the pretensions advanced y Eussia in the ukase of 1821 were resisted. He endeavored, in an ai guraent of some length, to show that the cliiim set up by Eussia in 1821 to a peculiar jurisdic- tion had not been surrendered by the treaties of 1824 and 1825 with the United States and Great Britain, respectively, so far as related to Bering Sea, and had not been otherwise abandoned. He insisted that the ukase of 1821, while not designed to declare the Bering Sea to be mare clavsum, assumed to exclude, for certain purposes at least, other nations from a space on the high seas to the distance of 100 miles from the shore, and that this pretension on the part of Eussia had never been surrendered or abandonee* ind had been, in substance, acquiesced in by other nations, and in particular by Great Britain.' The views thus expressed by Mr. Blaine, which were really not essen- tial to the main controversy, and were drawn from him by the reference which Lord Salisbury had made to the Eussian ukase of 1821, and the K«ubsequent protests, negotiations, and treaties between Eussia and the United States and Great Britain, respectively, were responded to in a note from Lord Salisbury to Sir Julian Pauncefote of August 2, 1890.' In this note his lordship considered the subject at much length, and argued that, on general principles of international law, no nation can rightfully claim jurisdiction at sea beyond a marine league from the coast. This general principle, so far as it is one, had never been denied by Mr. Blaine, his position being that there might be, and in some in- stances were, cases which called for oxceptions from the operation of the general rule, so far, at least, as to give a nation a right to exclude, for certain purposes, foreign vessels from a belt of the sea much wider than three miles. On the 17th of December, 1890, Mr. Blaine, in a note to Sir Julian Pauncefote,'-' referred to the note of Lord Salisbury, last mentioned, and veajjscrtpd. bis j)osition. The controversy respecting the claims of Eu?dia now bt'c.ame, substantially, whether, in the treaties of 1824 unu 1825 between the United States and Great Britain, respectively, 'Ca«e of the United States. ' ppendix, Vol. T, p. 221. •Case of tho United ISintea, Appendix, Vol. i, p, 242. 'C'lMe of tho Uuitod States, Appeudix, Vol. i, p. 263. 14749 3 34 ARGUMENT OF THE UNITED STATES. the term "Pacific Ocean," as used in the treaties, was intended to include the body of water now known as Bering Sea. If it were true, as Lord Salisbury contended, that Bering Sea was thus included, then it would follow that the pretensions made by Eussia in the ukase of 1821, so far as they were surrendered by the treaties above referred to, were surrendered as well in respect to Bering Sea as in respect to the Pacific Ocean south of t'-.' '■, ."'< y-iaine in some measure mag- nified the eflfect which might flow iiun; ri> , pretensions made by Russia in the ukase of 1821, so far as tLcy were . jv: esced in by Great Britain and the United States. But what is absolutely certain is that the original attitude takon by the United States, as already mentioncjl, folhnved up and reasserted in more than one diplomatic communication, was never, at any time, in the slightest degree abandoned or changed, and this is conclusively evidenced by the last communiea , i> of Mr. Blaine, already referred to. Near the close of that note* he i m a: In the.iudgment of the President, nothing of importance would be settled by proving that Great Biitain conceded no jurisdiction to Kussia over tV.o s)-„i fisheries of the Bering Sea. It might as well be proved 'at liuf.siii i^inceded no jurisdiction to England over the river Thamet By do^ i^ /lothing in each case, everything is conceded. In neithei cas3 is anything asked of the other. "Concession," as used here, means simply acquu'sccnce in the rightfulness of the title, and that Js the only form of concession which Kussia asked of Great Britain or which Great Britain gave to linssia. •Case of the United States, Appendix, Vol. i, p. 285. JURISDICTIONAL AND OTHER RIGHTS OVER BERING SEA. 35 The second oflfer of Lord Salisbury to arbitrate, amounts simply to a submission of the question whether any country has a right to extend its jurisdiction more than one marine league from the shore. No one disputes that, as a rule; but the question is, whether there may not be exceptions whose enforcement does not interfere with those highways of commerce which the necessities and usage of the world have marked out. * * * The "epeated assertions that the Government of the United States demands that the Bering Sea be pronounced mare clauaum, are with- out foundation. Tlie Government has never claimed it and never de- sired it. It expressly disavows it. At the same time the United States does not lack abundant authority, according to the ablest exponents of international law, for holding a small section of the Bering Sea for the protection of the fur-seals. Controlling a comparatively restricted area of water for that one specific purpose is by no means the equiva- lent of declaring the sea, or any part thereof, mare clausum. Nor is it by any means so serious an obstruction as Great Britian assumed to make in the South Atlantic, nor so groundless an interference with the com- mon law of the sea as is maintained by British authority to-day in the Indian Ocean. The President does not, however, desire the long post- ponement which an examination of legal authorities from Ulpian to Phillimore and Kent would involve. He finds his own views well ex- pressed by Mr. Phelps, our late minister to England, when, after failing to secure a just arrangement with (ireat Britain touching the seal fisheries, he wrote the following in his closing communication to his own Government, September 12, 1888: " Much learning has been expended upon the discussion of the ab- stract question of the right of mare clausum. I do not conceive it to be applicable to the present case. " Here is a valuable fishery and a large and, if properly managed, permanent industry, the property of the nation on whose shores it is carried on. It is proposed by the colony of a foreign nation, in defi- ance of the joint remonstrance of all the countries interestea, to de- stroy this business by the indiscriminate slaughter and extermination of the animals in question, in the open neighboring sea, during the period of gestation, when the common dictates of humanity ought to protect them, were there no interest at all involved. And it is sug- gested that we are prevented from defending ourselves against such depredations because the sea at a certain distance from tlie coast is free. "The same line of argument would take under its protection piracy and the slave trade when prosecuted in the open sea, or would justify one nation in destroyingthecommerceof anotlier by jilacing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that can not bf allowed to be done on the open sea with impunity, and against which every sea is mara Jauaum ; and the right of self-defense as to person and pioperty prevails there as fully as else- where. If the fish upon Canadian coasts could be destroyed by scat- tering poison in tlie open sea adjacent, with some small jwofit to those engaged in it, would Canada, upon the just principles of international law, be held defenseless in such a case? Yet that process would be no more destructive, inhuman, and wanton than this. " If precedents are wanting for a defense so necessary and so proper, it ie because precedents for such a course of conduct are liiiewise un- known. The best international law has arisen from precedents that have been established when tlie just occasion for them arose, undeterred by the discussion of abstract and inadequate rules." 36 ARGUMENT OF THE UNITED STATES. The design of the foregoing review of the principal points made in the diplomatic discussions which preceded the Treaty under which this Tribunal was constituted has been to show that the main grounds upon which, from first to last, the claims of the United States were based were the property and industrial interests of that nation; and that the purpose of Mr. Blaine, in taking up the discussion tendered by Lord Salisbury in relation to the ukase of 1821 and the subsequent treaties of 1824 and 1825, was simply to point out that the assertions by Russia of exceptional authority over certain portions of the high seas were, so far as respects Bering Sea, not only never abandoned by her, but were practically conceded and acquiesced in by Great Britain, and that, consequently, the United States could assert against Great Brit- ain a i"ight to protect their sealing interests, not only upon general principle^ of international law, but upon the additional and reinforc- ing ground that Russia, in order to dei<^ud the same interests, had asserted and exercised an exceptional authority over Bering Sea for nearly half a century with the acquiescence of Great Britain, and that any right thus acquired had passed to the United States by the cession of Alaska. In the view of the undersigned, Mr. Blaine was entirely successful in establishing his contention that the assertion by Russia of an ex- ceptional authority over the seas, including an interdiction of the approach of any foreign vessel within 100 miles of certain designated shores, while abandoned by her treaty with Great Britain in 1825 as to all the northwest coast south of the COth parallel of north latitude, was, so ftir as respects Bering Sea, and the islands thereof, and the coast south of the 60th parallel, never abandoned by her, but was acquiesced in by Great Britain. And if the undersigned believed the point to be one upon which any of the claims of the United States really depended, they would deem it their duty to again present the argument of Mr. Blaine, together with further suggestions which would reinforce it. But they greatly prefer to place the case of the United States upon its real and original grounds, which, as it seems to them, admit of no dis- pute, and not to rely upon arguments which, however successful in their avowed purposes, are yet, perhaps, to be deemed somewhat aside from the main question. Tliey prefer to submit to this Tribunal that Russia had for nearly a century before the cession of Alaska established and maintained a valuable industry upon the Pribilof Islands, founded upon a clear and indisputable property interest in the fur-seals which JURISDICTIONAL AND OTHER RIGHTS OVER BERING SEA. 37 make those islands their breeding places, an industry not only prof- itable to herself, but in a high degree useful to mankind; that the United States since tlie cession have, upon the basis of the same property interest, carefully maintained and cherished that industry, and that no other nations, or other men, have any right to destroy or injm-e it by prosecuting au inhuman and destructive warfare upon the seal in clear violation of natural law; and that the United States have fiill and per- fect right, under the law of nations, to prevent this destructive warfare by the reasonable exercise of necessary force wherever upon the seas such exercise is necessary to the protection of their property and indus- try. The undersigned therefore submit the question concerning the assertions of maritime authority by Russia and the acquiescence therein by Great Britain upon the argument of Mr. Blaine, contained in his notes to Sir Julian Pauncefote of June 30, 1890, ' and December 17, 1890.* It is, however, important that the real nature of these assertions should not be misunderstood. The words " exclusive jurisdiction in Bering Sea " are used in the questions formulated in the treaty by way of description of the claims of Eussia, and the same, or similar, lan- guage will be found ' in various places in the diplomatic argument to have been employed in a like sense. From this it might be thought that what Eussia was supposed to have asserted, and what the United States claimed as a right derived from her, was a sovereign jurisdiction over some part of Bering Sea, making it a part of their territory and subject to their laws. This would be entirely erroneous. Eussia never put forward any such pretension. Her claims were that certain shores and islands on the Northwest coast and in the Pacific Ocean and Ber- ing Sea Avere part ot her territory, acquired by discovery and occupa- tion, upon which she had colonial establishments and fishing and seal- ing industries. She chv. .e, in accordance with the policy of the time, to confine the right to trade with these coh)nies, and the fishing and fur- gathering industries connected with those territorial possessions, to her- self. Concerning her right to do this there never was, or could be, any dispute. So far as her pretensions to exercise an exceptional umritirae authority were concerned, they were limited to such measures as she deemed necess.iry for the protection of these admitted rights. She did not claim to make laws for the sea. The particular assertion of authority which was the interesting point in the discussion be- 'Case of the Uuitod States, Appomlix, Vol. i, p. 221. tlbid, p. 263. 88 ARGUMENT OP THE UNITED STATES. tween Mr. Blaine and Lord Salisbury was the interdiction to foreign vessels of an approach to the shores and islands referred to nearer than 100 miles. This, of course, was no assertion of exclusive juris- diction, or of jurisdiction at all, in the strict sense of that terra. It was the assertion of a right to protect interests attached to the shore fifom threats and danger of invasion. It was in no wise dif- ferent in its nature from a multitude of assertions of a right to exercise national authority over certain parts of the sea made by different nations before and since, and by none more frequently or ex- tensively than by Great Britain. It was an assertion of power essen- tially the same as that of which the hovering laws are instances. The extent of the interdiction from the shore — 100 miles — might have been extreme, although this is by no means certain. A distance which would be excessive in the case of a frequented coast, the pathway of abundant commerce, might be entirely reasonable in a, remote and almost uninhabited quarter of the globe to which there was little occasion for vessels to resort except for the purpose of engaging in prohibited trade. It must be remembered that the interdiction was not made for the pur- pose of preventing, or restricting, pelagic sealing. That pursuit had not even been thought of at that time. Had that danger then threat- ened the sealing interests of Eussia a much more extensive restriction might justly have been imposed. As already observed it is not intended by the undersigned to inti- mate that the question what authority over Bering Sea Eussia claimed the right to exercise and how far the claim was acquiesced in by Great Britain, has no importance in the present controversy ; but to point out the nature of that claim, and to indicate its appropriate place in the present discussion. It has a very distinct significance as showing that assertions on the part of Eussia of a right to defend and protect her colonial trade and local industries by the reasonable exercise of force in Bering Sea were assented to by Great Britain during the whole period of the Eussian occupation of Alaska, and, by consequence, that the present complaints of the latter against a siniikir exercise of power by the United States are wholly inconsistent with her former attitude and admissions. Again referring to the broad distinction between that power of sov- ereign jurisdiction exercised by a nation over nonterritorial waters, which consists in the enactment of municipal laws designed to be opera- tive upon such waters against the citizens of other nations, and the exercise of authority and power over such waters limited to the neces- JURISDICTIONAL AND OTHER RIGHTS OVER BERING SEA. 39 sary defense of its property and local interests, the undersigned insist that the former has no material place in this discussion. Eussia never insisted upon it so far as respects the regions to which our attention is directed, or the industry of sealing which is here a subject of discus- sion. The United States never have claimed it and do not now claim it. Themselves a maritime nation, thev assert, as they always have asserted, the freedom of the seas. But tliey suppose it to be quite cer- tain that the doctrine of the freedom of the seas has never been deemed by civilized nations as a license for illegal or immoral conduct, or as in any manner inconsistent with the general and necessary right of self- defense above mentioned, which permits a nation to protect its property and local interests against invasion hy wrongdoer wherever upon the sea the malefactors may be found. This right and the grounds and' reasons upon which the present caSe calls for an application of it, are directly embraced by the Fifth Question which is submitted to the Tri- bunal, and are, in tlie opinion of the undersigned, the proper subjects of principal attention, and they will elsewhere, in the appropriate place, devote to them that deliberate and full consideration which importance their demands. We may, however, briefly observe here, that according to the best authorities in international law the occupation of a new country which is sufficient to give to the occupying nation a title to it depends very largely upon the nature of the country and the beneficial uses which it may be made to subserve. In the case of a fruitful region capable of supporting a numerous po[)ulation, it might not be allowable for a nation first discovering it to maintain a claim over vast areas which it did not actually occupy and attempt to improve; but where a remote and desolate region has been discovered, yielding only a single or few products, and all capable of being beneficially secured by the dis- covering nation, a claim to these products asserted and actually exer- cised, is all the occupation of which the region is susceptible and is sufiic.ient to confer the right of property; and that whatever au- thority it may be reasonably necessary to exercise upon the adjoin- ing seas in order to protect such interests from invasion may properly be asserted. Says Philliniore, who seems to have understood the Ore- gon territory as embracing the whole northwest coast of North America: A similar settlement was founded by the British and Eussian Fur Companies in North Americ^a. The chief portion of the Oregon Territory is valuable solely for the ftir-bearing animals which it produces. Various establishments in 40 ARGUMENT OF THE UNITED STATES. dififerent parts of this territory organized a system for securing the preservation of these animals, and exercised for these purixtses a con- trol over the native population. This was rightly contended to be the only exercise of proprietary right of which these particular regions were at that time susceptible, and to mark that a beneficial use was made of the whole territory by the occupants.' The first four questions submitted to the Tribunal by the Treaty should, in the opinion of the undersigned, be answered as follows: First. Russia never at any time prior to the cession of Alaska to the United States claimed any exclusive jurisdiction in the sea now known as Bering Sea, beyond what are commonly termed territorial waters. She did, at all times since the year 1821, assert and enforce an exclusive right in the " seal fisheries " in said sea, and also asserted and enforced the right to protect her industries in said " fisheries" and her exclusive interests in other industries established and maintained by her upon the islands and shores of said sea, as well as her exclusive enjoyment of her trade with her colonial establishments upon said islands and shores, by establishing prohibitive regulations interdicting all foreign vessels, except in certain specified instances, from approach- ing said islands and shores nearer than 100 miles. Second. The claims of Russia above mentioned as to the " seal, fisheries" in Bering Sea were at all times, from the first assertion thereof by Russia down to the time of the cession to the United States, recognized and acquiesced in by Great Britain. Third. "The body of water now known as Behring Sea was not included in the phrase * Pacific Ocean,' as used in the treaty of 1825, between Great Britain and Russia;" and after that treaty Russia continued to hold and to exercise exclusively a property right in the fur-seals resorting to the Pribilof Islands, and to the fur-sealing and other industries established by her on the shores and islands above mentioned, and to all trade with her colonial establishments on said shores and islands, with the further right of protecting, by the exer- cise of necessary and reasonable force over Bering Sea, the said seals, industries, and colonial trade from any invasion by citizens of other nations tending to the destruction or injury thereof. Fourth. "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 U^ted States and Russia, of the 30th of March, 1867," did " pass unimpaired to the United States under that treaty." James 0. Oartbb. ' Int. Law, vol. i, pp. 259, 260. PAOrEK'iT IN TUB ALASKAN SEAL HEBD. 41 THIRD. THE PROPERTY OF THE UNITED STATES IN THE ALASKAN SEAL HERD AND THEIR RIGHT TO PROTECT THEIR SEALING INTER- ESTS AND INDUSTRY. I. — The Property of the United States in the Alaskan Seal Heed. The subject which, in the order adopted by the treaty, is i;ext to be considered, is that of the assertion by the United States of a property Interest in the Alaskan seals. Under this head there are two ques- tions, which, though each may involve, in large measure, the same con- siderations, are yet in certain respects so difterent as to make it neces- sary or expedient that they should be separately diseussed. The first is wiiether the United States have a property interest in the seals themselves, not only while they are ui)on the breeding islands, but also while they are in the high seas. The second is whetlier, if they have not a clear property in the seals themselves, they have such a property interest in the industry long established and i)rosecutcd on the Pribi- lof Islands of maintaining and propagating the herd, and appropri- ating the increase to themselves for the purposes of commerce and profit, as entitles them to extend their protection to such herd against capture while it is on the high seas, and to require and receive from other nations an acquiescence in reasonable regulations designed to afford such protection. The material ditference between these questions will be perceived from a glance at the consequences which would flow from adetermin.a- tion of each of them respectively in favor of the claims of the Unite States. If it were determined that the United States had the propei y interest which they assert only in the industry established on the shore, it might, with some show of reason, be insisted that, if the industry were not actually established, they would have no right to forbid inter- ference with the seals in the open sea; but were it determined that the United States had the property interest which they assert in the seals themselves, it would follow that they would have the right at any time to take measures to establish such an industry, and to forbid any inter- 42 ARGUMENT OF THE UNITED STATES. ferenco with the seals wliicL would tend to make its establishment impossible or difficult. The proposition which the undersigned will first lay down and en- deavor to maintain is that the United States have, by reason of the nature and habits of the seals and their ownership of the breeding grounds to which the herds resort, and irrespective of the established industry above mentioned, a property interest in those herds as well while they are in the high seas as upon the land. It is first to be observed that although the established doctrinesof municipal law may be properly invoked as affording light and informa- tion upon the subject, the question is not to be determined by those doctrines. Questions respecting property in lands, or movable things which have a fixed situs within the territorial limits of a nation are, indeed, to be determined exclusively by the municipal law of that na- tion; but the municipal law can not determine whether movable things like animals are, while they are in th& high seas, the property of one nation as against all others. If, indeed, it is determined that such an- imals have a aitns upon the land, notwithstanding their visits to, and migration in the sea, it may then be left to the power which has dominion over such land to determine whether such animals are property; but the question whether they have this situs must be resolved by interna- tional law. The position taken on the part of Great Britain is, not that the seals belong to her, but that they do not belong to any nation or to any men; that they are res communes, or res nullins; in other words, that they are not the suhject of property, and are consequently open to pursuit and capture on the high seas by tlie citizens of any nation. This position is based upon the assertion that they belong to the class of wild ani- mals, animals /errt! natvrw, and that these sire not the subject of owner- ship. On the other hand, it is insisted on the part of the United States that the terms ?c«7d and tame,ferce and (lomitre, waifMra!, are not suffl- oiently precise for a legal classification of animals in respect to the question of property; that it is open to doul)t,in many cases, whether an animal should be properly designated as wild or tame, and that the as- signment of an animal to the one class rather than to the other is by no means decisive of the question whether it is to be regarded as prop- erty. In the view of the United States, while the words wild and tame describe sufficiently for the purposes of common speech the nature and habits of animals, and indicate generally whether they are or PROPERTY IN THE ALASKAN SEAL HERD. 48 are not the subjecta of property, yet there are many unimala whi 1 i fcberefore, extends this possession furtber than the mere ma,nnal occupation; tor my tame hawk, that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is never- theless my property, for he hath anmwn reverteudi. So are my pi- geons that are flying at a. distance from tlieir home (especially of the carrier kindi, and likewise 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 possession, and I still preserve my qualified property in them. But if they stray without my knowl- edge, and do not return in the usual manner, it is then lawful for any strtiiiger to take them. But if a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure, or if a wild swan is taken and marked and turned loose in the river, the owner's property in him still continues, and it is not lawful for anyone else to take him; but otherwise if the deer has been long absent without returning, or the swan leaves the neighborhood. Bees also are/e>Yt' naturce; 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. And to the same purpose, not to say in the same words with the civil law, si)eaks Bracton; occupation, that is, hiving or including them, gives the property in bees; for, though a swarm ligiits upon my tree, I have no more property in them till I have hived tliem than I have in the birds which make their nests thereon; and. therefore, if another hives them, he shall be their proprietor; but a swarm, which fly from and out of my hive, ate mine so long as I can keep them in sight and have power to pursue them, and in these circumstances no one else is entitled to take them. But it hath b»'en also said that with us the only ownership in bees is raiione soli, and the cnarter of the forest, which allows every freeman to be entitled to the honey found within his own woods, aflbrds great countenance to this twctrine, that a (lualified property nay be had in bees, in consideration of the prop- erty of the soil whereon they are found. In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible: a propei'ty that maybe destroyed if they resume their .ancient Nvildness, and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering -t large in their. proper element, they become fercB naturce asain, and are free and open to the first occupant that has ability to seize them. But wldle they thus continue my qualified or defeasible property, they are as much under the i)roteft;Jon of the law as if they were absolutely and indefeasibly mine; and an action will lie against any man that detains them from me or unlawfully destroys them. It is also as much felony by (jommon law to steal sucli of them as are fit for food as it is to steal tame animals; but not so if they are only kept for pleasure, curiosity, or whim; as dogs, bears, cats, a])eB. parrots, and singing birds; because their value is not intrinsic, but depending only on the caprice of the owner : though it is su(^h an invasion of prop- erty as may amount to a civil injuiy, and be redressed by a ii, for which tliere was a very peculiar forfeiture. And thus m"ch of qualified property in wild animals, reclaimed j>t;r industriam. li b a n k- PROPERTY IN TKE AI^ASKAN SEAL HERD. 47 From the geiiersil doctrine rtms declared no dissent will, it is be- lieved, be anywhere found, it tia« been reafflrmod in many instances by the conrt.s both of Great Britain and tlie United States. The special attention of the Tribunal should be given to the utterances upon this question both by judicial tribunals and by jurists of estal)li.shed antliority, Riid a somewhat copious collection of them will be found in Appendix. It will be observed that the essential facts whitli, according to these doctrines, render animals commonly designated as wild, the subjects of property not only while in the actual custody of their masters but also when temporarily absent therefrom, are tli.^i, the care and industry of man acting upon a natural disposition of the ■Animals to return to a place of wonted resort, secures their voluntary and habitual return to his custody and power, so as to enable liini to deal with them in a similar manner, and to obtain from them simitar hcnefits, as in the case of domestic animals. They are tlius for all the purjjoses of property assim- ilated to domestic animals. It is the nature and hahits of the animal, which enable man, by the practice of art, care, »'?u? industry, to bring about these useful results that constitute the foundation upon which the law makes its award of property, {ind ext Mids to tliis producjt of human industry the protection of ownership. This species of property is well described as property per industriam. The Alaskan fur-seals are a typical instance for the application of this doctrine. They are by the imperious and unchangeable instincts of "^Iwir nature impelled to return from their wanderings to the snvic place; they are defenseless against man, and in returning to the !-ame i)laco voluntarily subject themselves to his power, and enable him to treat them in the same way and to obtain from them the same bene- lits as may be had in thecase of domestic animals. They thus become the subjects of ordinary husbandry as much as sheep or any other cattle. All that is needed to secure this return, is the exercise of care and industry on the part of the hunum owner of the place of resort. He must abstain +Vom killing or repelling them when they seek to return to it, and must invite and cherish such return. He must defend them against all enemies by land or sea. And in making his selections for slaughter, he must disturb them as little as possible and take males only. All these conditions are perfectly supplied by the United States, and their title is thus fully substantiated. What ground of difference in respect to the point in question can '^ 48 ARGUMENT OF THE UNITED STATES. be suggested between these seals and the other animals, such as deer, bees, wild geese, and wild swans, which appear by the authori- ities referred to to be universally regarded as property so long as they retain the animum revertendi f Will it be said that this animus is cre- ated by man in the case of those animals, and in the seals is a natural instinct? If this were true it would be unimportant. The essential thin 9; is that the art and industry of man should bring about the useful result; and to this end human art, care and industry are as necessary and as effective in the one case as In the others. If man did not choose to practice this care and industry in respect to the seals, if he exhibited no husbandry, but treated them a* mid animals, and attacked and killed them as they sought the land, they would be vlriven away to other haunts* or be speedily exterminated. But it is not true that the disposition to return is created by man. The habitual return of the other animals mentioned is due to their natural instincts just as much as that of the seals is to theirs. Many races of animals have what may be called homes. It is natural instinct which prompts them to return to the spot where they rear their young or can find their food or a secure place of repose. What man does in any of these instances, and as much in one as in another, is, to act upon this instinct and make it available ro secure the return. If the seals will return to the same place and voluntarily put themselves in the power of man with less efibrt on his part than in the case of the other animals, it shows only that they are by naturo less wild and less inclined to fly from the presence of man. In the case of the bees, for instance, it is plain that their nature is no more changed by man than that of the seals. They are as wild v?hen dwelling in an artificial hive as when they are in the woods; nor does man feed them; they gain their food from flowers which, for the most part, belong to ijersons other than their mastiCrs. Will it be said that the wanderings of the seals are very distant! Of what consequence is this so long as the return is certain! Bees wander very long distances. Will it be insisted that it makes any difference on the question of property whether a cow seal goes five, or a hundred miles in the sea to obtain food to enable her to nourish her offspring on the shore! Probably the long duration of migration to the south in the winter will be urged as a striking distinction between the case of the seals and the other instances; but what difference can this make if the animus revertendi remains, as it unquestionably does, and the same beueflicial results are secured! T PROPERTY IN THE ALASKAN SEAL HERD. 49 I The difficulty of identification may be suggested, but it does not ex- ist. There is no conimiugling with the Russian herd. Every fur-seal on the Northwest coast belongs indisputably to the Alaskan herd. But if there were any such supposed difficulty, it would matter nothing. If a man, without authority, kills cattle wandering without guard over the boundless plains of the interior of the United States, he is a plain trespasser. It might be difficult for any particular owner to make out a case of damages against him, but he would be none the less a tres- passer for that. If a man kills a reclaimed swan or goose innocently, and believing it to be v.'ild, he is, indeeu, excusable, and if there were different herds of fur-seals, some of them property and others not, it might be difficult to show that one who killed seals at sea had notice that they were property; but there are no herds of fur-seals in the North Pacific which are not in the same condition with those of Alaska. It does not, therefore, appear that the differences observable between the fur-seals and those other animals commonly designated as wild, " hich are held by the municipal law of all nations to be the subject ot viHTsliip, are material, and the conclusion is fully justified that if the hitter are prcperty, the former iimst also be property. But then- IS another and broader line of inquiry, by following which all doubt upon his point luay be removed. What are the grounds and reasons upon which the institution of property stands'? Why is it that society chooses to iward, through the ijistrumentality of the law, a right of property ir- anythin,:?'? Why is it that it makes any dis- tinction in this respect between wild and tame animals; and why is it that, as to animals commonl; designated as wild, it pronounces some to be the subjects of pi'M ty and denies that quality to others? It can not be that these inij xntant but diflfering determinations are founded upon arbitrary reasons. Nor does the imputation to some of these ani- mals of what is termed the animus revertendi, or the fact tbf"^ ♦^^hey have a habit of returning which evidences that intent, of themst ' .es, explain anything. They would both be wholly unimportant unless they were significant of some weighty social and economic considerations arising out of imperious social necessities. If we knew what these reasons were, we might no longer entertain even a doubt upon the question whether the Alaskan seals are the subjects of property. If it should appear upon inquiry that every reason upon which bees, or deer, or pigeons, or wild geese, '-wA swans are held to be property requires the same determination in respect to the Alaskan seals, the differences 14749 4 m 50 ARGUMENT OF THE UNITED STATES. 1 observable between these various species of animals must be dismissed as wholly unimportant and the conclusion be unhesitatingly received that the fur-seals are the subjects of ownership. The attention of the tribunal is, therefore, invited to a somewhat careful inquiry into the original causes of the institution of property and the principles upon which it stands; and the counsel for the United States will be greatly disappointed if the result of the investigation should fail to satisfy the Tribunal that there is a fundamental principle underlying that institution which is decisive of the main question now under discussion. That princiide they conceive to be this, that when- ever any useful loild animals so far submit themselves to the control of jarticular men as to enable them exclusively to cultivate such animals and obtain the annual increase for the supply of human wants, and at the same time to preserve the stock, they have a property in them, or, in other words, whatever may be justly regarded as the product of human art, industry, and self denial must be assigned to those who make these exertions as their merited reward. The inquiry thus challenged is in no sense one of abstract specula- tion, nor is it a novel one. It proceeds upon the firm basis of the facts of man's nature, the environment in which he is placed, and the social necessities which deterniine his action ; and the pathway is illumined by the lights thrown upon it by a long line of recognized authorities. The writers upon the law of Nature and Nations, beginning with Gro- tius,^ h.ave justly conceived that no system of practical ethics would be coiniilete whic'li did not fully treat of the institution of property, not only in respect to nations, but also in respcitt to private persons. Rec- ognizing the fact that a nation could not defend its possessions against other nations by an appeal to any municipal law, they hrive sought to find gi'ounds for the defense of those possessions in the law of nature which must be everywhere acknowledged. It is upon che bror.d, general principles agreed to by these authorities that we shall endeavor to establish the proposition abce stated. It is easier to feel than it is to precisely define the meaning of the word property; but as the feeling is substantially tlie same in all minds there is the less need of any attempt at exact definition. It is cou;- ' Grotins, de Jure Bi'lli ao Pacis, Book ii, chap, n; Puircndoif, Law of Nature and Nations, Book iv, clinp. v. So« also BliRkstone's ck'stiiit chupter on "Prop- erty in General," (Commentaries, Book 2, pp. 1, et acq.)', and Locko ou Civil Uovern- ment, Chap. y. PROPERTY IN THE ALASKAN SEAL HERD. 51 ti monly said to be the right to the exclusive possession, use, and disposi- tion of the thing which is the subject of it; but this defines rather the right upon which property rests, than property itself. The somewhat abstract definition of Savigny more precisely states what property really is. " Property," says he, " according to its true nature, is a widening of individual power."* It is, as far as tangible things are concerned, an extension of the individual to some part of the material world, so that it is affected by his personality.* But whence comes the right of the individual to thus extend his power over the natural world, and what are its conditions and limita- tions! In thus speaking of rights, moral rights alone are intended, for the law knows of no other, if, indeed, any other exist. There are no natural indefeasible rights which stand for their own reason. II rights exist, it is not for themselves alone, but because they subserve the happiness of mankind and the purposes for which the human r?ce was placed upon the earth. Even the right to life, however clear in general, is not natural and indefeasible. It is held subject to the needs of mankind, and in a great number of cases may be justly taken by society. In order to ascertain the source and foundation of the right of property, we must look, as all moralists and jurists look, to the nature of man and the environment in which he is placed. We find that the desire of exclusive possession is one of the original and prin- cipal facts of man's nature which will and must be gratified, even though force be employed to vindicate the possession. We know, also, that man is a social animal and must live in society, and that there can not be any society without order and peace. Even in savage life it is a necessity that the hunter should .h^vo. xHe ewlusiye ownership of the beast he has slain for food and of the, weapon he has made for the chase. Otherwise life itself could not be maintained.. His yude society, even, is not possible unlejjo .it ffj.nislies him wjth aoroe guaranty i^iat these few possessions be secured to him. Otherwise he is at war with his species, and society is gone. The existence of property, to at least this extent, is coeval with the existence of man. It stands upon the imperi- ' Jurid. Relations (Lond., 1834, Ratteguin'a TranH.), p. 178. ' Locke expresses tlie same idea : " The fruit or venison which nourishes the wild Indian * » » niust be his, and so his, i. e., a part of him, that another can no longer have any right to it," etc. (Civil Government, Ch. v, $ 25.) "In malting the object ujy own I stamped it with the mark of ray own person; whoever attacks it attacks mo; the blow struck it strikes me, for I am present in it. Property is but the periphery of my person extended to things." Ihoring, quoted by George B. Newcomb, Pol. Science Quarterly, vol. 1, p. 604. 52 ARGUMENT OP THE UNITED STATES. i ous and indispu^able basis of necessity. " Necessity begat property."* Neither history, nor tradition, informs us of any people who have in- habited the earth among whom the right of property to at least this extent was not recognized and enforced. And an interesting confirma- tion is found in the circumstance that the rude originals of the admin- istration of justice are everywhere found in contrivances designed for . punishment of theft. The circumstance that in the early advances of society from savage to industrial conditions we find that in many things, especially land and the products of land, community property is found to obtain in place of individual property, does not impair in any degree the force of the views just expressed. The institution of property is in full operation, whether society itself— the artificial person — asserts ownership, or per- mits its members to exercise the privilege. Wherever the supreme necessities of society, peace and order, are found to be best subserved by ownership in the one form rather than in the other, the form most suitable will be adopted. Community property was found sufficient for the early stages of society, and it is the anticipation, or tho dream, of many ingenious minds that the expedient will again, in the further ad- vance of society, be found necessary. . But the desire of human nature for exclusive ownership is not lim- ited to the weapons and product of the chase, as in savage society, or to the reward of a proportional share, as in early industrial communi- ties. Man wishes for more, for the sake of the comfort, power, consid- aration and influence which abundant possessions bring. He wishes to better his condition, and this is possible only bj increiise of posses- sions. And the improvement of socieiy, it has been found, can be effected, or best ettected, only throaigh the'i Blackatone's Com., Book 2, p. 8. w ^W— 111 . l>feOPERTV In the ALASKAN SEAL HERD. 5d Bitiea of human condition, the peace of society, and its progress and advancement in wealth and numbers, both founded upon the strongest desires of man's nature, the institution of property has its foundation. There are several features of this institution which in this discussion should be well understood and carried in mind; and, first, the extent of its operation. Manifestly this must be coextensive with the human desires and necessities out of which it springs. Wherever there is an object of desire, not existing in suflQcient quantity to fully satisfy the greed of all, coniiict for possession will arise and consequent danger to peace. Society finds its best security for order in extending the privi- lege of ownership to everything which can be owned. The owner may be the state or community, as under early and rude social conditions; or private individuals, as civilization advances; but, in either case, nothing is left as a subject for strife. The grounds and reasons which society, after the introduction of individual property, may allow as suffi- cient for awarding ownership to one rather than to another are various; but they all dep3nd upon some consideration of superior merit and desert. That one .'nan has by his labor and skill formed a weapon or a tool is instantly recognized as a sufficient ground to support his title to it. And if he simply takes possession of some things before unap- propriated by any one, or finds property to which no other owner asserts arclaira, his right, though less impressive, is still superior to that of any other. We therefore easily reach the conclusion that the necessi- ties which demand the institution of property equally demand its ex- tension over every object of desire as to which conflict for possession may arise. But it is not only the necessity of peace and order which requires that all-embracing extent of the institution of property. It is alike demanded by that high moral purpose already alluded to as constitut- ing part of the foundation of the institution, namely, the improvement of society and of the individual man. j'^his, as has already been seen, can be brought about only by the cultivation of the arts of industry by which nature is made to yield a more abundant provision for human wants. Thtae arts will not be practiced unless the fruits of each man's labor, whether it be the product 0/ the field, of the workshop, or the increase of animals which are the subject of his care, are assured to him. We find, therefore, that the institution of property is so imbed- ded in the nature of man, that its existence is a necessary consequence of forcee iu operation wherever man is found, or wheresoever his power 54 ARGUMENT OP THE UNlTfit) fetAtfiS. may extend, and that the fundamental formula by which the institution is expressed is that every object of desire, of which the supply is limited, must be owned. It is with this proposition that Blackstone closes his chapter upon "Property in General." "Again, there are other things in which a permanent property may subsist, not only as to the temporary use, but also the solid substance; and which yet would frequently be found without a proprietor had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution ot lands. Such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well known appellation of game. With regard to these and sonje others, as disturbances and quarrels would frequently arise among in- dividuals, contending about the acquisition of this species of property by first occupancy, the law has therefoi'e wisely cut up the root of dis- sension by vesting the things themselves in the sovereign of the State, or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly mojcim of assigning to everything capable of ownership a legal and deter- minate owner."^ ' Sir Henry Maine, after tracing with hia wonted acutenesa the courae of the de- veTopnient of the conception of property, alao finds that it finally resnlta in the proposition that everything must be owned. " It is only when the rights of property gained aaanction from long practical invio- lability, and when the vast majority of objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the begin- ning of civilization. The true basis seems to be not an instinctive bias towards the institution of property, but a presumption, arising out of the long continuance of that institution, that everything ought to have an owner. "When possession is taken of a ' rea nulUus,' that is, of an object which is not, or has never, been reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally subjects as an exclusive enjoyment, and that in the given case there is no one to invest with the rights of property except the occupant. The occupant, in short, becomes the owner, because all things are presumed to be somebody's pro- perty, and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing." (Ancient Law, Ch. viii, p. 249.) Lord Chancellor Chelmsford made the proposition that every thing must be owned by some one, the ground of his decision in the House of Lords of the case of Blades v. Higgs. (Law Journal Reports, N. S. 286, 288.) From Commentaries on the Constitutional Law of England. By George Bowyer, D. C. L., 2d ed. London, 1846, p. 427: "III. The third primary right of the citizen is that of property, which consists in the free use, enjoyment, and disposal of all that is his, without any control or dimi- nution, save by the law of the land. The institution of property — that is to say, the appropriation to particular persons and uses of things which were given by God to »I1 mankind — ^is of natural law. The reason of this is not difficult to discover, for the inoreaae of mankind must soon have rendered community of goods exceedingly m PROPERTY IN THE ALASKAN SEAL HERD. 55 Nothing wUioU is not au object of human desire — that is, nothing which has not a rejogiiized utility — can be the subject of property, for there is no possibility of conflict for the posse ssion. Property, there fore, is not predicable of noxious reptiles, insects, or weeds, except under special circumstances, where they may be kept for the purposes of science or amusement. The supply, indeed, may be limited; but the element of utility, which excites the conflicting desires which property is designed to reconcile and restrain, is absent. Nor is property pred- icable of things which, tliough in the highest degree useful, exist in inexhaustible abundance and within the reach of all. Neither air nor- light nor running water are the subjects of property. The supply is unlimited, and where there is nbundamo to satisfy all desires there can be no conflict. There is a still further qualification of the extent to which the insti- tution of property is operative. Manifestly, in order that a thing may be owned, it must be susceptible of ownership, that is, of exclusive ap- propriation to the power of some individual. There are things of which this can not be asserted. Useful wild animals are the familiar instance. Although objects of desire and limited in supply, they are not, as a general rule, susceptible of exclusive appropriation. They are not subject, otherwise than by capture and confinement, to the con- stant disposition of man as he may choose to dispose of them. We can hold them only by keeping them in captivity, and this we can do only in respect to an insignificant part. What, in the view of the laio, eonstitiites this siisocptibility of exclusive appropriation is an interesting and important question, which will be hereafter discussed in connection with the question what animals are properly to be denominated as wild. The importance of the conclusion reached by the foregoing reasoning should be marked by deliberate restatement. The institution of prop- erty embraces all tangible things subject only to these three excepting conditions: First. They must have that utility which makes them objects of human desire. Second. The supply must be limited. TMrd. They must be susceptible of exclusive appropriation. inconyeniont or impossible consistently with the peace of society; and, indeed, by far the greater number of thiiij^s can not be made fully subservient to the use of mankind in the most beneficial manner unless they be governed by the liws of ex- clusive appropriation." 66 ARGUMENT OF THE UNITED STATES. This conclusion is a deduction of moral right drawn fi-oni the facts of man's nature and the environment in which he is plac ed ; in other words, it is a conclusion of the law of nature; but this, as has been heretofore shown, is international law, except so far as the latter may appear, from the actual practice and usages of nations, to have departed from it, or, to speak more properly, not to have risen to it. Turning to the actual practice of nations, that is, to the observed fact, we find that it is in precise accordance with the deductive conclusion. No tangible thing can be pointed out, which exhibits the conditions above stated, which is not by the jurisprudence of .all civilized nations pronounced to be the subject of property, and protected as such . This seems so manifest as to justify a confidence that the assertion will not be disputed. In the foregoing reasoning no distinction ha s been observed between ownership by private individuals under municipal law, and by nations under international law. There is no distinction. Nation s are but ag- gregates of individual men. They exhibit the same ambitions, are sub- ject to like perils, and must resort for safety and peace to similar ex- pedients. Just as it is necessary to the jieace, order, and progress of municipal societies that everything possessing the three ch.aracteri sties above enumerated should be owned by some one, so also it is necessary to the peace, order, and progress of the larger society of nations that everything belonging to the same class, but which from its magnitude is incapable of individual ownership, should be owned by some nation. This truth is well illustrated by the practice of nations for the last four centuries in acknowledging as valid titles to vast tracts oi the earth's surface upon no other foundation than first discovery. Nearly the whole of the American continents was parceled out among Euro- pean nations by the recognition of claims based upon such titles alone.' ' The practice and doctrine of European nations npon thissnbjcct are clearly sot forth by Mr. Chief Justice Marsliail, in delivering the opinion of tl> s Supreme Court of the United States in Johnson vs. Mcintosh (8 Wheat., 543, 572.) A short extract will be pertinent here : "As the right of society to prescribe those rules by which property may be ac- quired and preserved is not, and can not be, drawn into question ; as the title to lands, especially, is, and must be admitted, to depend entirely on the law of the na- tion in which they lie, it will be necessary, in pursuing this inquiry, to examine, not simply those principles of abstract justice which the Creator of all things has im- pressed on the mind of his creature, man, and which are admitted to regulate in a great degree the rights of civilized nations, whose perfect independence has been acknowledged, but those iirinciples also which our own Government has adopted in the particular case, and given as the rule of decision. "On the disooyery of this immense contineut, the great nations of Europe were R PROPERTY IN THE ALASKAN SEAL HERD. 57 And, for the moat part, tl»e vast territories thus acquired were not even seen. Tlie maritime (ioasts only were explored, and title U> the whole interior, stretching from ocean to ocean, or at least to tlie sources of the rivers emptying upon the coasts explored, was asseit^ul upon the basis of this limited discovery. Some limitations were placed upon these vast claims resulting from conflicts in the allegations of priority; but, for the most part, the etfectiveness of first discovery in giving title to great areas which had not been even explored was recognized. If the mere willing by tiie first discoverer that things suscejjtible of ap- propriation should be his property was held sufUcientto make them so, it could only have been from a common conviction that ownership of every part of the earth's surface by some nation was so essential to the general peace and order, that it was expedient to recognize the slightest moral foundation as sufficient to support a title. The principle has been extended to vast territories which are even incapable of human occupation. The titles of Great Britain to her North American terri- tory extending to the frozen zone, and of the riiited States derived from Bussia to the whole territory of Alaska have never been qiios- tioned. THE FORM OF TEE mSTITUTION— COMMUNITY AND PRIVATE PROP- ERTY. But although the existence of human society involves and necessi- tates the institution of property, it does not determine the form which that institution assumes. The necessity that all things susceptible of ownership should bo owned is one thing; but who the owner shall be eager to appropriate to themselves so much of it as thoy could respectivoly acquire. Its vast extent afFordod an ample field to the ambition and enterprise of all ; and tlie character and religion of its inliabitants afforded an apology for considering them as a people over whom the superior genius of Europe miffht claim an ascendoucy. The potentates of the world found nodifflciity in eouvincing themselves that they made ample compensation to the inhabitants of the now, by bestowing upon them civili- zation and Christianity, in exchange for unlinited independence. But, as they were all in pursuit of nearly the same object, it vras necessary in order to avoid conflict- ing settlements, and consequent war with each other, to estahlisli a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, shonld be regulated as between themselves. This principle was that dis- covery gave title to the governments by whose subjects, or by whoso authority it was made, against all other European governments, which title might be consum- mated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives anr thonaands at the most, would suffice to supply all the needs of the scanty papulation living on the islands where they are found, or along the shores of the seas through which they pass in their migrations. Indeed, the Pribilof Islands would never have been inhabited, or eA^en visited, by man except for the purpose of capturing seals in order to supply the demands of distant peoples. The great blessing to mankind at large capable of being att'orded by this animal would have been wholly unrealized. The solt- condition upon which its value depends, even to those wuo pursue and capture it, is that they are able, by exchang- ing it for the products of other and distant nations, to furnish them- selves with many blessings which they greatly desire. This truth that nature intends her bounties for those who need them, wherever they may dwell, may be illuscrated and made more clear by inquiring upon whom the loss would fall if the gift were taken away. Take, for j istance. the widely used and almost necessary article of India rubber. It is produced in but few and narrowly-Uuiited areas, and we may easily suppose that by some failure of nature, or lui scon- duct of nuui, the production is arrested. A loss would, no doubt, be felt by those who had been engaged in gathering it and exchanging it for other (M>mmodiiies ; and a still more extensivo one would fall upon the largely greater number whose labor was applied in manufacturing it into the various forms in which it is used; but the loss to both these classes would be but temporary. The cultivators ould raise other l)roduct8, and the manufacturers could employ their industry in other fields. The opportunities which nature offers for the employment of labor are infinite and inexhaustible, and the only effect of a cessation of one industry is to turn the labor devoted to it into other channels. But the loss to the consumers of the article, the loss of those who need that particular thing, wcmld be absolute and irreparable. If these views are well founded it iollow& that, by the law of nature, every nation, so far as it possesses the fruits of the earth in a measure more than sufli(!ient to satisfy its own needs, is, in the truest sense, u them thTonch all nationi*. that so each tieedinfj another's help he might thereby lead men to KORiety; and to tluH (^nd hi> discovored unto them tht> art of niorcliiindising, that 8o wliataocver any nation produced might be communicated uuto othan." " • • flo ThcBeua speaks very pertinently — " What to one nation nature doth deny, That rfhe, from otliers. doth by sea supply." (Orotins; Do .Tnre Belli ac Pacis, Bookli, Cliap. ii, $ 13.) See also Phillimoro, inter- national Law, vol. I, p. 261, 262. PROPERTY IN THE ALASKAN SEAL HERD. 61 trustee of the surplus for the benefit of those iu other parts of the world who need them, and are willing to give in exchange for them the prod- ucts of their own labor; and the truth of this conclusion and of the views from which it is drawn will be found fully confirmed by a glance at the approved usages of nations. It is the characteristic of a trust that it is obligatory, and that in case of a refusal or neglect to perform it, such performance may be compelled, or the trustee removed and a more worthy cu3tx)dian selected as the deposit ory of the trust. It is an admitted principle of the law of nature that commerce is obligatory upon all nations; that no nation is permitted to seclude itself from the rest of mankind and interdict all commerce with foreign nations. Temjjorary prohibition of commerce for special reasons of necessity are, indeed, allowed; but they must not be made permanent.* ' The instramentality of commerce as a part of the scheme of nature in securing to mankind in general the enjoyment of lier various gifts, in whatsoever quarter of the earth they may be found, has been pointed out by many writers upon the law of nature and nations. A few citations will be sufliciout, the views in which all con- cur. It will appear from those which are Iiereiu furnished — 1. That man does not bejjin to desire the benefit of the gifts to be found in other ands and in which he is entitled to share until ho has made some advances towards civilization, and, conse of all the productions of the earth a:i>l of its industry. The cotton, sugar, coffee, and tobacco of the New World have become articles of prime necessity for the European, and an immense trade is carried on in them. The American, in turn, can notdispe.ise with the varied productions of European manufacture. The development of commerce, that is to say, the satisfaction of man's instincts of BooiabUity uud porfeutibility, has greatly ooutributod to^ cuuuecting all the nations f ■*,■ m J" 62 ARGUMENT OP THE UNITED STATES. A sure guaiauty for the observance of this trust obligation 16 found m the imperious and universal motive of self-interest. The desire of ecvilized man to gratify his numerous wants and to better his coudi- tmn. so strongly impels him to commerce with other nations that no ocher inducement is in general needed, 'rhe instances in history are rare in which nations have exhibited unwillingness to engage in com- mercial intercourse; but they are possible under peculiar conditions, aasd have sometimes actually occurred. Such a refusal is generally *>elieved to liave been the real, though it was not the avowed, cause of Hie war waged by (iieat Britain against China in 1840. For the purposes of further illustration, a case may be imagined Btionger than any of the actual instances referred to. Let it be sup- ix»8ed that some particidar region from which alone a commodity deemed of the nnivorso; it has served as a vehicle, so to speak, for the performance of the duties of humnnity. Cominorce is really, therefore, an institution of primitive law; it has its source and its origin in the divine law itself." Prom Vattol (7th Amer. Ed., 1819, Bk. ii, oh. ii, sec. 21, p. 143) : "Skc. 21. All men ought to find on earth the things they stand in need of. In the j)riinitivo state of comniunion they took them wherever thoy happened to meet with them if anothtr hud not before approi)riiitcd them to his own use. The introduction of dominion and propeity could not de]prive men of so essential a right, and, conse- (lueutly, it can not take place without leaving them, in general, some moans of pro- curing what is useful or necessary to them. This means commerce; by it every man may still supply his wants. Things being now become property, there is no obtain- ing tlicm without the owner's consent, nor are they usually to be had for nothing, but they may be bought or exclinnged for other things of equal value. Men are, therefore, under an ohJujaUon to carry on that commerce with each other if they wish not to deviate from the vkivs of nature, and this obligation extends also to xvhole nations or states. It is seldom that nature is seen in one place to produce everything neces- sary for the use of man ; one country abounds in corn, another in pastures and cattle, a third in timber and metals, etc If all those countries trade together, as is agree- able to humiiu nature, no one of them will "je without such things as are useful and necessary, and the views of nature, our common mother, will be fullillcd. Further, one country is fitter for some kind of products than for another, as, for instance, titter for the vine than for tillage. If trade and barter take place, CA'ery nation, on the certainty of procuring what it wants, will onijdoy its lands and its industry in the most advantageous manner, and mankiiul in general prove gainers by it. Such are the foundations of the general obligations incumb nt on nations reciprocally to cultivate commerce." From "Lemons do Droit da la Nature et des Genu," par M. le Professeur Fdlice, Vol. II. (Droit des Gens). Pariw, \KW. Leoon x\n, page 293; "The need of this exchange is based npon the laws of nature and upon the wise arranj^cment whiih tlie Supreme Being has established in the world, each region and each jiortion of which furnishes, indeed, a great variety of ]irodnctions, but also lacks certain things required for tlio comfort or needs of man; this oliliges men to exchange theu' commodities with each other and to form bonds of friendship; PROPERTY IN THE ALASKAN SEAL HERD 63 necessary by man everywhere, such as Peruvian bark, could be pro- cured, was within tlie exclusive dominion of a particular power, and that it should absolutely prohibit the exportation of the commodity; could there be any well-founded doubt that other nations would be justified, under the law of nature, in compelling that nation by arms to permit free commerce in such commodity? And this trust, of which we are speaking, is not limited to that sur- plus of a nation's production which is not needed for its own wants, but extends to its means and capabilities for production. No nation has, by the law of nature, a right to destroy its sources and means of production or leave them unimproved. None has the right to convert any portion of the earth into a waste or desolation, or to permit any part which may be made fruitful to remain a waste. To destroy the source from which any human blessing flows is not merely an error, it lip i whereas, otherwise, their passions would impel them to hate and destroy each other. * * * "The law of commerce is therefore haned upon the obligation under which nations are to assist each other mutually, and to contribute, as far ii8 lies in their power, to the happiness of each other." From Levi (Iiitcruationai Commercial Law, 2d ed., 18(53. Vol. i, Preface, pp. xxxix, xl) : * * * " Commerce ia a law of nature, and the right of trading is a natural right. (*) But it is only an imperfect right, inasauKh as each nation is the sole judge of what is advautagious or disadvantiigoons to itself; and whether or not it he convenient for her to cultivate any branch of trade, or to open trading intercourse with any one country. Hence it is tliat no nation has a right to compel another na- tion to enter into trading inti.'rcourse with licrselC, or to pass laws for the benclit of trading and traders. Yet the refusal of tliis natnril riglit, whether as against one nation only, or as against all nations, would constitute an offense against interna- tional law, and it was tliis refusal to trade, and the exclusion of Itritish traders from her cities and towns, that led to the war with China. From Flallock (Inteinational Law (FA. L8G1), Ch. xi, sec. 13, p. 280): "Sec. 13. To tliia right of trade there is a corresponding duty of mutual commerce, fouutU'd on the general law of nature; fnf, says Vattd, ' ono, conntry abcmnds in corn, another in pastures and cattle, a tliird in timber anil luetalx; all these countries trading together, agreealdy to human nature, no one will he without such things as are useful and necessary, ami the views of nature, our couimon nmthei-, will be ful- filled. Further, one country is titter for sonu; kind of products than another; as for vineyards more than tillage. If trade and barter take placie, every nation, on the certainty of procuring what it wants, will euijiloy its industry and its ground in the most advantageous manner, and mankind in general ])rove8 a gainer by it. Such are the foundations of the general obligation incumbent on nations reciprocally to cultivate commerce. Therefore, everyone is not only to join in trade aa far as it reasonably can, but even to countonauco and prouuito it.'" Roddie (Inquiries into International Law. 2d Ed. 1851, Ch. v., Pt, u., sub sec. ii., Art. II, p. 207) : "But the chief source of the intercourie of nations in tlioir individual capacity III k il;?i}. '■■!»: ■1^ ' Vttttul, b. I, ch. 8, see. 88. 9 64 ARGUMENT OP THE UNITED STATES. 4 Is a crime. And the wrong is not limited by tlie boundaries of nations, but is inflicted upon tliose to whor . tlie blessing would be useful wher- ever they may dwell. And those to whom the wrong is done have the right to redress it. Let the case of the article of India rubber be again taken for an illus- tration, and let it be supposed that the nation which held the fields from which the world obtained its chief supply should destroy its plantations and refuse to continue the fulcivation, can it be doubted that other nations would, by the law of nature, be justified in taking possession by force of the territory of the recreant power and establishing over it a governmental authority which would assure a continuance of the culti- vation ? And what would this be but a removal of the unfaithful trus- tee, and the appointment of one who would perform the trustt' is the exchange of commodities, or natural or artificial production. The territory of ouc State very rarely produces all that is requisite for the supply of the wants, for the use and enjoyment of its inhabitants. To a certain extent one state gener- ally abounds in what others want. A mutual exchange of superfluous commodities is thus reciprocally advautagtous for both nations. And, as it is a moral duty in individuals to promote the welfareof their neiglibor, it appears to be also the moral duty of a nation not to refuse commerce with other nations when that commerce is not hurtful to itself." From Kent (Commentaries on American Law. (TLe Law of Nations, part 1.) Ed. 1866. Ch. II., p. 117). "As the aim of international law is the happiness and perfection of the general society of manliind, it enjoins upon every nation the punctual observance of benev- olence and good will, as well as of justice toward its neighbors. This is equally the policy and the duty of nations. They ought to cultivate a free intercourse for commercial purposes, in order to supply each other's wants and promote each other's prosperity. The variety of climates and productions on the surface of the globe, and the facility of communication by means of rivers, lakes, and the ocean, invite to a liberal commerce, as agreeable to the law of nature, and extremely conducive to national amity, industry, and happiness. The numerous wants of civilized lila can only be supplied by mutual exchange between nations of the peculiar productions of each." 'Cases in which nations have supposed themselves justified in interfering with the territory and aft'airs of other nations liave frequently occurred. The war celebrated in Grecian history as the first Sacred War was an early and illustrative instance growing out of the religious sentiment. The temple of Apollo at Delphi wasthepriu- C.' pal shrine in the religion of Greece. It was within the territory of the state of Krihsa, whose people had desecrated by cultivation the surroundiugsof thespotwhere it was situated, and by levying tolls and other exac ions had obetructed the pilgrinuiges which the votaries of the god wore wont to r.iake. A large part of Greece arose to punish this violation of the coniuion right, and in a war of ten years' duration de- stroyed the town of Krissa, and consecrated the plain around the temple to the service of the god by docieeing that it shculd forever remiau untillod and uuplnntcd. (Groto, History of Greece, Loud., 1817, ^ ol. IV, p. 84.) Chi:ia has furnished one of the few iustances in modern times of uawillingnosR to engage in foreign coi 'uierce. This was not the avowed but was probally one of the real causes of the war vt uged against that nation by Great Britain in 1810. PROPERTY IN THE ALASKAN SEAL HERD. 65 It is, indeed, upon this ground, and this ground alone, that the con- quest by civilized nations of countries occupied by savages has been, or can be, defended. The great nations of Europe took possession by force and divided among themselves the great continents of North and South America. Great Britain has incorporated into her extensive empire vast territories in India and Australia by force, and against the will of their original inhabitants. She is now, with France and Ger- many as rivals, endeavoring to establish and extend her dominion in the savage regions of Africa. The United States, from time to time, expel the native tribes of Indians from their homes to make room for their own people. These acts of the most civilized and Oltristiaii nations are inexcusable robberies, unless they can be defended, under the law of nature, by the argument that these uncivilized countries were the gifts of nature to man, and that their inhabitants refused, or wore una- ble, to perform that groat trust, imposed upon all nations, to make the capabiUties of the countries which thoy hold subservient to the needs of man. And this argument is a sufficient defense, not indeed for the thousand excesses which have stained these conquests, but for the conquests themselves. The second proposition above advanced, namely, that the title which nature bestows upon man to her gifts is of the usufruct only, is, indeed, but a corollary from that Avhich has just been discussed, or ratlier a part of it, for in saying that the gift is not to this nation or that, but to mankind, all generations, future as well as present, are inteaded. The earth was designed as the permanent abode of man through ceaseless generations. Each generation, as it appears upon the scene, is entitled only to use the fair inheritance. It is against the law of nature that any waste should be committed to the disadvantage of the succeeding ten- ants. ' The title of each generation may be described in a term familiar ' Since the power of man over things extends no further than to use thorn accord- ingly as they are in their nature usable, thiugs are not matter for consideration in law except in regard to the use or treatmeui of whicli they are capable. Hence no right to things can exist beyond tho right to use them according to their nature; and this right is Property. No doubt a person can wantonly destroy a subject of property, or treat it in as many ways which are rather an abuse than a use of the thing. But su?h abuse is wasteful and immoral; and that it is not at the same time illegal, is simply because there are many duties of morality which it is impossible, inexpedient, or unnecessary for the positive law t'.o encoi^porate or enforce. I there- foi'e define property to be the righi; to tho exclusive use of a thing. It will, perhaps, be objected to this that if gathering the acorns, or other fruits of the earth, etc., makes a righO to thoiu, thou any one muy engross as much as ho will. 14740 5 m' '■m- M 66 ARGUMENT OF THE UNITED STATES. to English lawyers as limited to an estate for life; or it may with equal propriety be said to be coupled with a trust to transmit the iuheritauce to those who succeed in at least as good a condition as it was found, reasonable use only extjepted. That one generation may not only con- sume or destroy the annual increase of the products of the earth, but the stock also, thus leaving an inadequate provision for the multitude of successors which it brings into life, is a notion so repugnant to reason as scarcely to need formal refutation. The great writers upon the law of nature and nations properly content themselves with simply affirm- ing, without laboring to establish, these self-evident truths. The obligation not to invade the stock of the provision made by nature for the support of human life is in an especial manner imposed upon civilized societies; for the danger proceeds almost wholly from them. It is commerce, the fruit of civilization, and which at the same time extends and advances it, that subjects the production of each part of the globe to the demands of every other part, and thus threat- ens, unless the tendency is counteracted by efficient husbandry, to encroach upon the sources of supply. The barbaric man with sparse numbers scattered over the face of the earth, with few wants, and not engaged in commerce, makes but a small demand upon tlie natural in- crease. He never endangers the existence of the stock, and neither has, nor needs, the inteUigent foresight to make provision for the future. But with the advance of civilization, the increase in population, and the multiplication of wants, a peril of overconsumption arises, and along with it a development of that prudential wisdom which seeks to avert the danger. The great and principal instrumentality designed to counteract this threatening tendency is the institution of private individual property, which, by holding out to eveiy man the ptomise that he shall have the exclusive possession and enjoyment of any increase in the products of nature which he may etfect by his care, labor, and abstinence, brings into play the powerful motive of self-interest, stimulates the exertion in every direction of all his faculties, both of mind and body, and thus To which T answer: Not so. The same law of nature that does by this means give us property, does also bound tliat property too. " God has given us all things richly," (1 Tim. vi, 17,) is the voice of reason con'^rmed by inspiration. But how far has he given it to us t To enjoy. As much as any one cau make use to any advantage of life before it spoils, so much he may by his labor fix a property in. Whatever is beyond this is more than hi^ share, and belongs to others. Nothing was made by God for man to spoil or des ;roy. (S. Martin Leaks, Juiid. Soc. Papers, Vol. 1, p. 532.) PROPERTY IN THE ALASKAN SEAL HERD. 67 leads to a prodi|rioasly increased production of the fruits of the earth. There are some provisions to this end which are beyond the power of private men lio supply, or for supplying which no suflBcient induce- ment can be held out to them, inasmuch as the rewards can not be secured to them exclusively; and here the self-interest of nations sup- plements and cooperates with that of individuals. A large share of the legislative policy of civilized states is devoted to making provision for future generations. Taxation is sought to be limited to the annual income of society. Permanent institutions of science are established for the purpose of acquiring a fuller knowledge of natural laws, to the end that waste may be restricted, the earth be made more fruitful, and the stock of useful animals increased. The destruction of useful wild animals is sought to be prevented by game laws, and the attempt is even made to restock the limitless areas of the seas with animal life which may be made subservient to man. The same policy is observable in the ordinary municipal law of states. Whenever the possessor of property is incapable of good husbandry, and therefore liable to waste or misapply that part of the wealth of so- ciety which is confided to him, he is removed from the custody, and a more prudent guardian substituted in his place. Infants, idiots, and insane persons are deprived of the control of their property, and the state assumes the guardianship. This policy is adopted not merely out of regard to the private interests of the present owner, but in order also to promote the permanent objects of society by protecting the interests of future generations. There are some exceptions, rather apparent than real, to the law which confines each generation to the increase or usufruct of the earth. Nature holds in some of her storehouses the slow accumula- tions of long preceding ages, which can not be reproduced by the agency of man. The products of the mineral kingdom, when con- sumed, can not be restored by cultivation. But here the operation of the institution of private property is still effective, by exacting the highest price, to limit the actual consumption to the smallest extent consistent with a beneficial use. Again, it is not possible to limit the consumption of useful wild birds to the annual increase; for they can not be made the subjects of exclusive appropriation as property, and consequently can not be increased in numbers by the care and al 3ti- nence of individual man. The motive of self-interest can not here be brought into play. But society still makes the only preservative effort It n 68 ARGUMENT OP THE UNITED STATES. in its power by reatricting consumption through the agency of game laws. So, also, in the case of fishes inhabiting the seas and reprodncing their species therein. It is impossible to limit the extent to which they may bie captnreu; but here nature, as if conscious of the inability of man to take care of the future, removes the necessity, in most cases, for such care by the enormous provision for reproduction which she makes. The possible necessity, however, or the wisdom of endeavoring to sup- plement the provision of nature, has already been taken notice of by man, and efforts are now in pr'^gress to prevent an apprehended de- strnction of the stock. The case of fishes resorting, for the purposes of reproduction, to interior waters, has, for a long time, engaged the attention of governments, and much success has followed efforts to make the annual increase adequate to human wants. I SUMMAEY O^ DOOTEINES ESTABLISHED. The foregoing discussion concerning the origin, foundation, extent, form, and limitations of the institution of property will, it is believed, be found to fiirnish, in addition to the doctrines of municipal law, decisive tests for the determination of the principal question, whether the United States have a property in the seal herds of Alaska ; but it may serve the purposes of convenience to present, before proceeding to apply the conclusions thus reached, a summary of them in a concise form. First. The institution of property springs from and rests upon two prime necessities of the human race: 1. The establishment of peace and order, which is necessary to the existence of any form of society. 2. The preservation and increase of the useful products of the earth, in order to furnish an adequate supply for the constantly increasing demands of civilized society. Second. These reasons, upon which the institution of property is founded, require that every ustful thing, the supply of which is limited, PROPERTY IN THE ALASKAN SEAL HERD. 69 and wliich is capable of owncrsliip, sliould be assigned to some legal and determinate owner. Third. TUe extent of the dominion which, by the law of nature, is conferred upon particular nations over the things of the earth, is limited in two ways: 1. They are not made the absolute owners. Their title is conplod with a trust for the benefit of mankind. The human race is entitled to participate in the enjoyment. 2. As a corollary or part of the last foregoing proposition, the things themselves are not given; but only the increase or usufruct thereof.* APPLICATION OT" THE FOREGOING PRINCIPLES TO THE QUESTION OF PROPERTY IN THE ALASKAN HERD OF SEALS. In entering upon the particular discussion whether, upon the princi- ples above established, the United States have a property interest in the seal herd, it is obvious that we must have in mind a body of facts which have not, as yet, been fully stated. "We were obliged, indeed, while showing that the seals mast be re- garded as the subjects of property under the settled and familiar rules of municipal law, to briefly point out that the question whether they were, under that law, the subjects of property depended upon their nature and habits, and not upon whether they were to be classed under one or the other of the vague and uncertain general divisions of wild and tame; and also that they had, as part of their nature and habits, all the essential qualities upon which that law had declared several other descriptions of animals commonly designated as wild to be, nev- ertheless, the subjects of property. But this brief description is not sufficient for the purposes of the broader argument upon which we are now engaged. We should have in mind a complete knowledge of every material fact connected with these animals. ' In the foregoing discussiou, -wliich involves only the most general prlnciplcB, and concerning which there is little controversy, wo have avoided frequent refer- ence to authorities in order not to interrupt the attention. But an examination of the authorities shonld not be omitted. To facilitate this, somewhat copious cita- tions are gathered and arranged in the Appendix to this portion of the argument. m I: 1 70 ARGUMENT OF THE UNITED STATES. i The first step, tliereforo, in the further progress of our argunioiit must be to assemble more precisely and fully our information concern- ing the utility of these animals, their nature and habits, the modes by which they are pursued and captured, Mie danger of extermination to which they are exposed, from what modes of capture that danger arises, whether it is capable of being averted, and by what means. We pro- ceed, therefore, to place before the learned Arbitrators a concise state- ment of the facts bearing upon these points. And first, concerning their ntilily. That they belong to the class of useful animals is, of course, a conceded fact; but in this general admis- sion the extent of the utility, the magnitude of the blessing which they bring to man, may not be adequately estimated. They are useful for food, and constitute a conciderable part of the provision for this pur- pose which is available to many of the native tribes of Indians vho inhabit the coasts along which their migrations extend. They are ab- solutely necessary for this purpose to the small native population of the Pribilof Islands. These could not subsist if this provision were lost. They are useful for the oil which the> afford; but their principal utility consists in their skins, which afford jlothing, not i>uly to the native tribes above mentioned, but, when prepared by the skill which is now employed upon them, furnish a garment almost unequaled for its com- fort, durability, and beauty. There is, indeed, no part of the animal which does not subserve some human want. The eagerness with which it is sought, and the high price which the skins command in the mar- kets of the world, are further proof of its exceeding utility. Its prodi- gious numbers, even after the havoc which has been wrought by the re- lentless war made upon it by man, exhibit the magnitude of the value of the species; and if we add to these numbers, as we justly may, the increase which would come if its former places of resort, which have been laid waste by destructive pursuit, should be again, by cateful and protected cultivation, repeopled, the annual supply would exceed the present yield perhaps tenfold. Leaving out of view here the unlawful character of the employment, we may say that there is a further utility in the employment given to human labor in the pursuit and capture of the animal and the manu- facture of the skins. There are probably two thousand persons em- ployed for a large part of the year in the taking of seals at sea, and a large number in the building of the vessels and making of the imple- ments required in that occupation. A much larger number, princix)ally PROPERTY IN THE ALASKAN SEAL HERD. 71 inhabitants of Great Britain, are wholly tMnploycd in the propiuation of the skins for market. The animal value of the manufactured i)roduct can scarcely be leaa than $5,000,000 or $6,000,000. But this last mentioned utility, that which arises from the employ- ment given to Industry, is not absolnte and permanent. . If the industry were destroyed by the total destruction of the seals, some inconvenience would doubtless be felt before the labor could be diverted into other channels. It could, however, and would, be so di- verted, and the loss would thus be repaired. But, as already observed, the case would be different with the loss inflicted upon those who w«ethe skins. No substitute could supply this loss; nor would there be any corresponding gain. In the case of some useful wild animals, the American bipon, for instance, which inhabit the earth and subsist upon its fruits, and which are necessarily exterminated by the occupation of the wild regions over which they roam, there is a more than compen- sating advantage in the m re numerous herds of tamed animals which subsist xipon the same food. But the seal occupies no soil which would otherwise be useful. The food upon which it subsists comes from the illimitable storehouses of the seas, and could not otherwise be made productive of any distinct utility. We are next to take into more particular consider.ation the nature and habits of the seal, and the other circumstances above adverted to which enable us to measure the perils to which the existence of the race is exposed, and the means by which these may be best counter- acted. It is here that we encounter, for the first time, any material contradiction and dispute in the evitlence; and, inasmuch as it is in a high degree important that we should ascertain the pi'ecise truth upon these points, it should be clearly understood what evidence is really before the arbitrators, and what measure of credit and weight should be allowed to the different classes of evidence. Any critical and de- tailed discussion of the evidence, if incorporated into the body of the argument, might involve interruptions too much protracted in the chain of reasoning, and will, for that reason, be separately presented in ap- pendices; but some general notion should be had at the outset of the relative importance of the various pieces of evidence. First. There is a large body of common Jcnowlcdge respecting the natural history of animals and the facts of animal life, which all intel- ligent and well educated minds are presumed to possess. In the ab- Bcnce of those facilities, such as municipal tribunals ati'ord for the pro- m\ I m Mm I fii- ^T 72 ARGUMKNT OF THE UNITED STATES. i ill (Itictinn and cxaniiinition of witiiossos, it is supposed by tho undor- Bigncd that this common kno\vled{,'(' niay, with largo latitude, be deemed to be already possessed by the learned Arbitrators, and to be available in the discussion and decision of the controversy. Second. In tho next place this knowledge may be supplemented by an appeal to the authorative writings of scientific and learned men, and also to the writings of trustworthy historians and of actual ob- servers of the facts which they relate. Third. The reports, botii joint and separate, of the Commissioners appointed in pursuance of the ninth article of the Tre<\.ty, are, by the terras of the Treaty, wat/eevideiice, and were undoubtedly contemplated as likely to furnisii most important and trustworthy information. Fourth. The testimony of ordinary witnesses, actual observers of the facts to which they testify. This is contained in ex parte depositions, but must, notwithstanding, be received as competent. No mode hav- ing been provided by which witnesses could be subjected to cross-ex- amination, these depositions must be accepted as belonging to the class of best obtainable evidence. The necessity of caution and scrutiny in the use of it is manifest; but it may be found to be of great value, de- pending upon the number of concurring voices, and the degree of intel- ligence and freedom from bias which may be exhibited. Concerning the reports of the Commissioners, some observations are appropriate in this place. Their duties were defined in concise but very clear language in the ninth article of the Treaty, as follows: Each Government sh.all .appoint two Commissioners to investigate, conjointly with the Commissioners of the other Government, all the fa(!ts having relation to seal life in Eering Sea, and the measures necessary for its proper protection and preservation. The four Commissioners shall, so far as they may be able to agree, make a joint report to each of the two Governments, and they shall also report, either jointly or severally, to each Government on any points npon which they may be unable to agree. They found themselves unable to agree, except upon a very few points, the most important of which are expressed in the following language: 5. We are in thorough agreement that, for industrial as well as for other obvious reasons, it is incumbent upon all nations, and particu- larly upon those having direct commercial interests in fur-seals, to pro- vide for their protection and preservation. • • # 7. We find that since the Alaska purchase a marked diminution in the number of seals on and habitually resorting to the Pribilof Islands has taken place; that it has been cumulative in effect, and that it is the result of excessive killing by nian.^ > Case of the United States, p. 309. 1' PUOr-KIlTY IN THE ALASKAN .",.,AL HERD. 78 Tlu'so gentlcMucn wcro, some of tlieiii at U'list, inou etaineiit in the world of scitMice, imd sickiiowied^^'cd experts upon the subject committed tiO them for examination. The hinguape of the treaty simply called for their opinions and julvice upon a question mainly scientific. What was the reason which prevented them from coming to au agreement I Was it that the question was a difficult and doubtful one upon which men of science might well differ? It would seem not. It is described in the joint report as being <* considerable difference of opinion on certain fundamental propositions." What it really was appears from the separate Report of the Commissioners of the United States.' They conceived, as is therein stated by them, that the only subject which they were to consider was the facts relatitig to seal life in the Bering Sea, and what measures were necessary to secures its preservation. If there were any question of property, or international right, or political expediency, involved, it was, presumably, to be determined by others. They had no qualifications for such a task, and were not called upon to perform it. But the Conjmissioners of Great Britain took a different view. In that view the question of the respective national rights of Great Britain and the United States was one of "fnndamental importance," and no measures were entitled vo consideration which denied or i,onored the supposed right of subjects of Great Britain to carry on pelagic sealing. Their understanding of the question upon which they were to give an opinion was not simply what measures were necessary to preserve the seals fro m extermination but what were the measures most effective to that end which could be devised consistently loith a supposed right on the part of nations generally to carry on pelagic scaling. It is not surprising that no agreement <;ould be reached. There was a radical diiTerence of opinion between the Com- missioners in respect to their functions. According to the views of the United States Commissioners, a question mainly scientific was sub- mitted to them; but their associates on the part of Great Britain thought that legal and political questions were also submitted, or, if not submitted, that they were bound to act upon the view that the range of their scientific inquiry was bounded and limited by assump- tions which they were required to make respecting international rights; in other words, their functions were not those of scientific seekers for the truth, but diplomatic agents, intrusted with national interests, and charged with the duty of making the best agreement they could con- sistently with those interests. 'i&W., pp. 316-318. II 74 AIlGr:MENT OF THE UNITED STATES. It fiPPvnH very clear that this coiicpption of thoii- ]iowors aitd functions was -wljolly erroneous. There were difterences between (xreat Britain and the 'Jnited. States respectinf? the subject of pelagic seal hiinting • but both nations were agreed that it was extremely desirable that the capture «>t seals should be mt regulated, if possible, as to prevent the extermination of the species. It was extremely desirable to both parties t<> know one thing, and thirt was, whether any, and if any, what laeaanres were necesamry in order to prevent this threatened exteniL.nation. This was a mainlip- scientific question ; but whether the mexujunes which might be found to be thus necessary could be acceded to by boti parties to the (jontroversy was (|uite another question, the decision o' which was lodged with the political representatives of the res|)ectrve governments. If they should be prepared to accede to them, all difficuii,,. W(tuld be removed. If they should not be able to agree, a trirninal was provided with power to determine what should be done, and the reports of the Commissioners were to be laid before it for its instruction. Such beingfhe view which the Commissioners of Great Britain took of their own fimcttions, therr report should be regarded as partaking of the same charsbct^r, and s'lch it appears to be upon inspection, Ihere is in no part <'r it any purpose discernible to discover and reveal the true cause wh.yh is operating to diminish the number; of the fur-seal, and to indicatfi- the remedy, if any, which science points ont. It is ap- parent throughflut the report that its authors conceived themselves to be charged with the defense of the Canadian interest in pelagic sealing; and it consequently openly exhibits the character of a labored apology for that interest, particularly designed to minimize its destructive tend- ency, and to support a claim for its (iontinued prosecution. This being iia distinguishing feature, it is, with great respeitt, submitted that any weight to bo allowed to it as evidence should be confined to the state- ments of facti> which fell under the observation of its authors; that these should be regarded as the utt. ranees of unimpeachable witnesses of the highest character, testify ug, however, under a strong bias; and that the opinions atid reasonings set forth in it sliould be treated with the attention which is usually accorded to the arguments of counsel, but as having no value whatever as evidenct. In thus p: 'li'iDg out the general character of the Report of the Com missioners .. Great Britain, no reflection is int.*' ded upon its authors. Similar observatious would be applicable tu the Report of the Umted rRorcuTY IX the alaskan seal iieud. 75 Stiites Commissioners had they taken the same view of their functions. Their conception, however, of the duties imposed upon them was widely different. They regard«!d themselves as called upon simply to ascertain the truth, whatever it mifj^ht be, concerninj? "'seal life in Behring Sea .lud the measures necessary for its jjroper i»rotection and preservation." This seemed to them essentially a scientiflc inquiry, and not to embrace any consideration of national rights, or of the freedom of the seas — a class of questions which they would probably have deemed themselves ill qualified to solve. They are not, indeed, to be presumed to be less interested in behalf of their own nation than their associates on the side of Great Britain; but as they did not conceive themselves charged with the duty of protecting a sui^posed national interest, they could remem- ber that science has no native country, and that they could not defend themselves, either in their own eyes, or before their fellows of the scien- tific world, if they had allowed the temptations of patriotism to swerve them from the interests of truth. Their report is earn estly recommended to the attention of the IMbunal as containing a statement of all the material facts relating to seal life, uncolored by national interest, and clearly presenting the scientific conclusions which those facts compel. From the evidence classified as above, which may be regarded as being before the Tribunal, we now proceed to collect the principal fiu^ts relating to seal life, and the methods by which the animal is pursued and captured, so far as those facts are material in the iufjuiry whether the United States have the property interest asserted by them. For the principal facts of seal lite we borrow the statement contained in the FB- port of the United States Commissioners. PEINOIPAL FACTS IN THE LIFE HISTORY OF THE FUR SEAL. 1. The Northern fur seal {CallorJdnus ursinus) is an inhabitant of Bering Sea and the Sea of Okhotsk, where it breeds on rocky islands. Only tour breeding colonies are known, namely, (1) on the Pribilof Islands, belonging to the United States: (2) on the Commander Islands, belonging toliussia; (3) on Robben Kecf, belonging to Kussia; and (4) on the Kurile Islands, belonging to Japan. The Pribilof and Com- mander Islands are in Bering Sea; Robben Ktef is in the Sea of Okhotsk, near the island of Siighaiien, and the Kurile Island save be- tween Yezo atid Kamchatka. The spe<;ies is not known to breed in any other part of the world. The fur-seals of Lobos Island and the south seas, and also tl»oseof the Galapagos Isiands and the islands off h)wer California, belong to widely different species, and are nhiced in diii'ercnt genera from the Northern fur-sciil. 2. In si'inter the fur-seals migrate into the North Pacific Ocean. The herds from the Commander Islands, Robben Reef, and flie, Kurile Islands move south along the Japan coast, while the herd belonijing to T6 ARGUMENT OF THE UNITED STATES. 1 Lii ' 4 , the Pribilof Islands leaves Bering Sea by tbe eastern passes of the Aleutian chain. 3. Tbe fur-seals of tbe Pribilof Islands do not mix with those <.f tbe Commander and Kurile Islands at any time of the year. In summer the two herds remain entirely distinct, separated by a water interval of several hundred miles; and in their -winter migrations those from the Pribilof Islands follow tbe American coast in a s(mtlienaterly direction, while those from the Commander and Kurile Islands follow the Siberian and Japan coasts in a southwesterly direction, the two herds being seftarated in winter b\ a water interval of several thousand miles. This regularity in the movements of the different herds is in obedi- ence to tbe well-known law that migratory animals follow definite routes in migration, and rrlurn year after year to the same plaoes to breed. Were it not for this law. there would be no such thing as stability of species, for interbreeding and existence under diverse physiographic conditions would destroy all speciti r^acters.' The pelage of the Pribilof fur-seai. -.i rfers so markedly from that of the Commander Islands fur-seals that the two are readily distinguished by experts, and have very different values, the former commanding iiiuch higher prices than the latter at the regular London sales. 4. The old breeding males of the Pribilof herd are not known to range much south of the Aleutian Islands, but the females and young appear along the Aniericati coast as far s«juth as northern California. lieturn- ing, the herds of females move northward along tbe coasts of Oregon, Washington, and British Columbia in January, February, and March, occurring at varying distances from shore. Fol lowing the Alaska coast northward and westward, they leave the North Pacific Ocean in June, traverse the eastern passes in the Aleutian chain, and proceed at once to the Pribilof Islands. 5. The old (breeding) males reach the islands much earlier, the first coming tbe last week in April or early in May. Tbey at once land and take stands on the rookeries, where they await the arrival of the fe- males. Each male (called a bull) selects a large rock, on or near which be remains until August, unless driven off by stronger bulls, never leaving for a single instant, night or day, and taking neither food nor water. Both before p^nd tor sometime after the arrival of the females (called cows) the bulls fight savagely among themselves for positions on the rookeries and for possession of the cows, and many are severely Avounded. All the bulls are located by June 20. (>. Tbe bachelor seals (hoUuschickie) begin to arrive early in May, and large numbers are on the hauling grounds by the end of May or first week of June. They begin to leave the islands in November, but many remain into Deceniber or January, and sometimes into February. 7. The cows begin arriving early iu June, and soon appear in large schools or droves, immense numbers taking their places on the rook- eries each day between the middle and end of the month, the precise dates varying with the neather. They assemble about the old bulls in compact groups, called harems. The harems are complete early in J uly. It ' The botae of a species is tbe area over which it breeds. It is well known to uat- uruhsts that migivitory auiuials, whether niatumalH, birds, fislies, ornienibers of other groups, leave their liomos for a part of the year because the climatic conditions or the food supply bocorao uiiciaited to their uoods ; and that wherever the home of a spe- cio« is 80 situated as to provide a suitable climate and food supply throughout the year, suob species do not mi;rr»te. This is the explanation of the fact that the northern fur-seals are migrarita, whiie the f iir-aeals of tropical aud warm ttsmperate latitudes do not migrat«. 1 1 PROPERTY IN THE ALASKAN SEAL HERD. 77 at which time the breeding rookeries attain their maximum size and compactneas. 8. The cowH give birth to their young soon after taking their phvces on the harems, in the latter part of June and in July, but a few are de- layed until August. The period of gestation is between eleven and twelve months. 9. A single young is born in each instance. The young at birth are about equally divided as to sex. 10. The act of nursing is i)erformed on land, never in tlie waterl It is necessary, therefore, lor the cows to reutain at the islands until tl»e young are weaned, which is not until they are four or live montlis old. Each mother knows her (,wn pup, and will not permit any otlier to nurs<' This is the reason so many thousand pups starve to deatli on the rookeries when their mothers are kiUed at sea. VV^e liave repeatedly seen nursing cows come out of the water and search for theii young, often traveling considerable distances and visiting group after group of pups before finding their own. On reaching an assemblage of pui)8, some of which are awake and others asleej), she rapidly moves about among them, sniffing at each, and then galloiis off to the next. Those that are awake advance toward her, with the evident pnrposeof nursing, but she repels them with a snarl and passes on. Wlun she imds her own, she fondles it a moineut, turns partly over on her side so as to present her nipples, and it pronjptiy begins to suck. In one instance we saw a mother carry her pup back a distance of fifteen meters (50 feet) before allowing it to nurse. It is said that the cows sometimes recognize their young by their cry, a sort of bleat. 11. Soon after birth the pups move away from the harems and hud- dle together in small grou]>s, called '• pods," along the borders of the breeding rookeries and at soiie distance from the water. The small groups gradually u:iite to form larger groups, whicli move slowly down t4) the waters edge. When six or eight weeks old the pups begin to learn to >'',wim. Not only are the young not born at sea, but if soon after birth they are washed into the sea they are drowned. 12. The fur-seal is polygamous, and the male is at least live tin»es as large as the female. As a rule each male serves abt)ut lifteen or twenty lemales, but in some cases as numy as iifty or more. 13. The act of copulation takes i)lace on land, atid lasts from five to ten minutes. Most of the cows are served by the middle of July, or soon after the birth of their pni)s. They then take tiie water, and come and go for food while nui'sing. 14. Many young bulls succeed in securing a few cows behind or away from the breeding harems, particularly late in the season (after the middle of July, at which time tlie regular harems begin to break up). It is almost certain that many, if not most, of the young cows are served for the first time by these young bulls, either on the haul- ing grounds or along the water front. These bulls may be distinguished at a glance from those on the reg- ular harems by the circumstance that they are fat and in excellent con- dition, while those that have fasted for three months on the breeding rookeries are much emaciated and exhausted. The young bulls, even when they have succmmUhI in capturing a number of cows, can be driven from their stands with little difficulty, while (as is well known) the old bulls on the harems will die in their tracks rather than leave. 15. The cows are believcl to take the buU first when two years old, and deliver I heir first ])up when three years old. lU. liulls first take stands on the breed! ng rookeries when six or seven 11 1 78 ARGUMENT OF THE UNITED STATES. ! I ^ li. years old. Bei'ont tliis they are not powerful enough to fight the older bulls for ]>()siti<»iis on tiie harems, 17. CowH, Avhen Tiursiiiff, regularly travel long distances to feed. They are frequently lound 100 or 150 miles from the islands, and some- times at greater distances. 18. The food of the fur-seal consists of fish, squids, crustaceans, and probably other forma of marine life also. (See Appendix E.) 19. The great majority of cows, pups, and such of the breeding bulls as have not already gone, leave tlie islands about the middle of Novem- ber, the date vai ying considerably with the season. 20. Part of the noubreeding male seals (holluschickie), together with ». few old bulls, remain until January, and iu rare instances until Feb- ruary, or even later. ;il. The fur-seal as a species is present at the Pribilof Islands eight or nine months of the year, or from two-thirds to three fourths of the time, and in mild winters sometimes during the entire year. The breeding bulls arrive earliest and remain continuously on the islands about four months; the breeding cows remain about six months, and part of the nonbreeding male seals about eight or nine mouths, and Bometimes throughout the entire year. 22. During the northward, migration, as has been stated, the last of the body or herd of fur-seals leave the iTorth Pacific and enter Bering Sea in the latter part of June. A few scati;ered individuals, however, are seen daring the sumuier at various ixints along the Northwest Coast; the>'e are probably seals that were so badly wounded by pela- gic sealers that they could not travel with the rent of the luMd to the Pribilof Islands, it has been alleged that young fur seals have been found in early summer on several occasions along the coasts of British Columbia and southeastern Alaska. While no authentic case of the kind has come to our notice, it would be expected from the large num- ber of cows thar are wounded each winter and spring along these coasts and are thereby rendered unable to reach the breeding rookeries and niusi: perfoice give birth to their young — perhaps prematurely — wher- ever they may be at the time. 23. The reason the northern fur-seal inhabits the Pribilof Islands to the exclusion of all other islands and coasts is that it here finds the climatic and physic;! conditions necessary to its life wants. This spe- cies requires a uni: oimly low temperature and oveic»st siy and a foggy atmosphere to prcAent the sun's rays from injuring it during the long summer season when it reniains upon the rookeries. It requires also rocky beaches on which to bring lorth its youang. No islands to the nortliward or southward of the Pribilof Islands, with the possible ex- ception of limited areas on the Aleutian chain, are known to possess the requisite combination of climate and physical con«iitions. All statements to the efl'ect that fur-seals of this species formerly bred on the coasts and islands of California and Mexico are erroneous, the seals remaining there belonging to \ridely «littV',rent species. In the general discussion of th*' questicra submitted to the Commis- sion it will be convenient to consider the subject under three heads, namely: Conditions of seal life in the region under consideration at the pres- ent time. CauHct. the operati<«n of whi'li lead to existing conditions. Remedks, which if a|)i)lied would resu't in the restoration of seal life to it* normal st.ite, and to its continued preservat iou in that state. PROPERTY IN THE ALASKAN SEAL HERD. 79 m We make no apology for adopting these statements of the Unitod States Commifjsioners in their own language. The facts could hardly be more l>recisely expressed, and it is belie /ed that every jjart of tlie statement will be accepted by the Tribunal as true. There is, indeed, bnt little to be found even in the report of the Commissioners of Great Britain in the way of direct contradiction. In order, however, that the Arbitrators '.iiay be facilitated in the verification of any facts as to which they may be in doubt, a brief discussion of the facts as to which any ques- tion has been made in the Eeport of the British Commissioners will bo found in Part Sixth of this Argument (pp. 228-313). There are certain material propositions of fact which are not wholly embrafjed in the above above quoted extract from the Report of the Com- missioners of the United States, although tliey are substantially contained therein, which deserve formal and separate statement. First. In addition to the climatic and physical conditions above enumerated as necessary to render any place suitable for a breeding ground for the seals, exemption from hostile attack or molestation by man, or other terrestrial enemies, should bo included. The defence- loss con iition of these animals upon the land renders this security indispensable. If no terrestrial spot could be found possessing the tavorable cHmatic and physical requirements above mentioned, and which was not at the same time exempt from the unregulated and indis- criminate hostility of man, the race w^ould sjjeedily pass away. Second. The mere presence of ma ?i jjpon the breeding places does not repel the seals, nor operate unfa^'orably upon the work of reproduction. On the contrary, presence and the protection which he alone is capable of affording, by keeping off marauders, are absolutely necessary to the preservation of the species in any considerable numbers. Third. If man invites the seals to come upon their chosen resorts, abstains from slaughtering them as they arrive, and cherishes the breeding animals during their sojourn, they will as confidingly submit themselves to his power as domestic animals are wont to do. It then becomes entirely practicable to select and separate from the herd for slaughter such a number of nonbrecnling animals as may be safely taken w^ithout encroaching ui>ou the poi'maueut stock. ^ t 80 AEGUMENT OF TUE UNITED STATES. Fourth. If the herd were exempt from any depredation by man, its numbers would reach a point of equilibrium at which the deficiency of food, or other permanent conditions, would prevent a further increase. At this point, the animsil being of a polygatnous nature, an annual draft from nonbreeding males might be made by man of 100,000 — perhaps a larger nrmber — without causing any appreciable permanent diminu- tion of the herd. Fifth. Omitting from view, as being inconsiderable, such killing of seals as is carried on by Indians in small boats from the shore, there are two forms of capture at x)resent pursued: That carried on under the authority of the United States upon the Pribilof Islands, and that carried on at sea by vessels with boats and other appliances. Sixth. The killing at the Pribilof Islands if confined, as i« entirely practicable, to a properly restricted numb(u- of nou -breeding males, and if pelagic sealing is prohibited, does not involve any danger of the ex- termination of the herd, or of appreciable diminution in its normaJ numbers. It is far less expensive than any other mode of slaughter, and furnishes the skins to tlie markets of the world in the best condi- tion. The killing at these islands, since the occupation by the United States, has been restricted in the manner above indicated. It has been the constant endeavor of the United States to carefully cherish the seals and to make no draft ex(!ept from the normal and regular increase of the herd. If there has at anytime been any failure in carrying out such intention, it has been from some failure to carry out instructions, or want of knowledge respecting the condition of the heid. The United Statos are under the unopposed influence of the strongest motive, that of self-interest, to so deal with tlie herd as to maintain its numbers at the highest possible point. Tlie annual draft made at the islands since the tHV-upation of the United States has been until a recent period about UHMKM). This draft would be in no way excessive were it the only one made ui)ou the herd by man. Seventh. Pelagic; sealing has three inseparnblo incidents: (1) T>K' killing van not be ronfined to niaU's; and such are the greater l;*cilities for taking tcuiolcs that they comprise throe-fourths t^i" the whole cii>tuh. PROPEKTY IN THE ALASKAN SEAL HERD. 81 (2) Many seals are killed, or fatally wounded, which arc not recovered. At least oue-tbiirtli as many as are recovered are thus lost. (3) A largo proportion of the fenuiles IvHUmI are either heavy with young, or have nursing pups on the shore. The evidence upon these points is fully discussed iu Appendix. Eighth. Pelagic sealing is, therefore, by its nature, destructive of the stock. It can not be carried on at all without encroaching 2'»*t> tanto upon the normal numbers of the herd, and, if prosecuted to any con- siderable extent, will lead to such an extermination as will render the seal uo longer a source of utility to man. Eetnrning to the main proposition hereinbefore established, that some legal and determinate owner must be assigned to all tangible things which are (1) objects of desire, and (2) limittnl in supply, and (3) capable of ownership, the (piesLion is, do the Alaskan fur-seals exhibit these three essential conditions of property? llespocting the first two, no discussion is needed. That this animal is in the highest degree useful to man, and an object of eager human desire, is not questioned, and this earnest controversy is abundant proof of it. That the sui)ply is limited and in danger of being cut off by the depredations of man is agreed to by the parties,' Whatever difference there may be, nuist and does arise upon the question whether the animal is susceptible oj ownership. Doubt and difference are indeed possible here, and the first step in the effort to remove them should be to have a clear understand- ing of the meaning of the term, susceptibility of ownership. The delinition whicli would natmally be iirst given is susceptibility of ai)propriation by the owner to bis own use to the exclusion of all others. But this does not render the whole language entirely intelligible. We still need to know how it is possible for man to malce this sort of axclusive appro- priation to himself, What are the acts which are sufficient to constitute it? Must the thing, in order to be thus appropriated, bo actually in manu, or otherwise physically attached to the person of the owner, or even within his immediate reach and sight, so that he can immediately assert his appropriation and forbid all intrusion upon it? It is hero that the concei)tion of ownership, as distinct fn.m mere possession, GOiviGS into view, and, inasmuch as it has a close bearing i; kl ' it f I'l' ' if 'I t, 'Joint Report, Case of the United States, p. SOD. 14749 82 aroumi:nt d rs a rnaxim that once acquired pro]ierty is never lost without the act of the owner, and that it is preserved even after the owner has lost possession or detention of the thing, and when it is in the hands of a third party. Thus property and possession, which in theprimitive state were confounded, be- came by the civil law two distinct and independent things; two things which, according to the language of the laws, have nothing in common between them. Property is a right, a legal attribute; possession is a fact. It is seen by this what prodigious cliauges have been wrought in property, and how much civil laws have changed its nature. Sec. 72, This change was effected by means of real action that the laws granted against the possessor whoever he might be, to compel him to surrender the tbing to the owner who had lost possession thereof. This action was granted to the owner not alone ag.ainst the possessor in bad faith, but also against the posst'ssor in good faith, to whom the thing had come without fraud or without violence, without his being cognizant of the owner's rights, and even though he had acquired it from a third party by virtue of a legal title. Skc. 73. Property was, therefore, considered a moral quality inherent in the thing, as a real tie which biuds it to the owner, and which can not be severed without an net of his. This right of reclaiming a thing in whatever hands it is found is that which forms the principal and distinctive characteristic of property in the civil state. (Tcuilier French Civil Law, Paris, 1812, 5th ed., vol. 3, tit. 2, oh. 1.) I ■ 4 m t^il IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I [25 12.2 M' 14^ 12.0 6" ii 1.8 1^ iu mil 1.6 /] v: ^j^? % m /A '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. US80 (716)872-4503 I :\ \ 86 ARGUMENT OF THE UNITED STATES. II i 1 its complete establishment by the instrnmentality of formal inter- national copyright laws is impatiently awaited. These considerations lead up to the particular problem upon which we are engaged, namely, what is capability of otcnership, that is to say, under what circumstances, and to what extent, will and does society step in and aid the infirmity of individual power by stamping the char- acter of ownership upon things which are out of the actual possession and away from the presence of the owner T The general answer is ob- vious; it will do this whenever social necessities require, and to the extent to which they require it. And this answer is best justified by pointing out what society, through the instrumentality of the law, uni- versally does. We may first look to the instance of land. In respect to the earth itself, society will recognize no title which is not directly, or indirectly, acquired from itself. No man is permitted to assert in respect to uninhabited countries, or countries inhabited only by savages, a private title. But nations may assert a title thereto, al- though there is a limit to such assertion. No nation can assert an ownership over such lands to an extent greater than it can reasonably occupy and improve. The limit is found in that principle of the law of nature which declares that the earth was made for mankind, and in order to enable the human race to carry out its destiny, and that to this end civilized nations may supplant barbarous ones; but that every nation in thus appropriating to itself the waste places of the earth, must not take from others what it can not itself improve and apply to the great destiny for which in the order of nature it has been given. In respect to individual ownership of lands, the state will recognize and maintain private titles to such lands as it chooses to give. Some, times, as we have already shown, in early and rude social conditions, it prefers to give nothing, but to retain the ownership in itself. In general, however, civilized societies permit and encou age the acquisi- tion of lands by individuals and place no limits upon the extent of ac- quisition. Society acts upon the assumption, for tha most part undoubt- edly correct, that under individual ownership its territories will bo best improved and turned to the purposes intended by. nature. That the underlying motive upon which society acts is the intention that the soil should be devoted to those purposes to which the law of nature dictates that it should be applied, is well manifested by the circum- stance that, where the action of the private proprietors tends to count- eract this policy, the state is often moved to revoke its gifts, and make PROPERTY IN THE ALASKAN SEAL UERD. 8^ lal inter- on which is to say, >8 society the char- toBsession vrer is ob- id to the stifled by law, oni- i which is >mitted to )ited only lereto, al* issert an iasonably he law of Id, and in d that to hat every the earth, I apply to given. recognize B. Some, editions, t«e]f. In e acquisi- ient of ac- undoubt- II be best That the that the )f nature > circam- to count- ind make a new disposition of its lands in harmony with natural law. This tendency is observable where great proprietors reserve large tracts of land for game preserves, for the purposes of mere pleasure, or hold them under a system of rental unfavorable to agricultural improvement, and not adapted to supply the wants of an increasing population. The recent legislation of Great Britain in respect to Ireland is a notable instance of an assertion by the State of that supreme dominion over itB lands which a ntttion always retains, to the end that they may be made the more subservient to the purposes for which the eartli was destined. From what has just been said it is apparent that land, although no individual can actually appropriate more than a very small area to his exclusive use, is nevertheless regarded in the law as msceptible of ex- cltisive appropriation. The state permits its citizens to assert title to it to an unhinited extent, and the assertion may be made without even any formal physical act of possession. ISo fences or inclosures even are necessary. The execution of an instrument in writing is of itself sufficient. The law steps in to aid individual power and enables a private person to hold title to a province as securely as he holds the harvests he reaps from his fields with his own hands. And the reason is immediately obvious. It is only by the award of property that the earth will be cultivated. ISo man will sow that another may reap; but if the law will lend its aid to human jwwer by protect- ing the owner of land in his exclusive enjoyment of it, he can and will draw from it by his art and industry its annual product without im- pairing its capacity for production, and will even increase that capacity. This is the only way in which an increased population can be sup- ported. Social necessity, therefore, requires that land should be deemed susceptible of exclusive appropriation, and all structures affixed to the land become a part of it and are property together with it. In respect to such movable things roperty, where he can protect them 9d AROUMEirr OP THE UNITED STATES. from other enemies and take iirom them a part of their accnmnlatod stores. He is thas also enablied to capture the new swarms which are produced, by following them as they take their flight. In this way the art and industry of man may increase the stock of bees and the useful food which they supply. The municipal laws of all nations therefore declare that bees thus dealt with are property. Any one who destroys them, even when away from the land of the owner, commits a wrong for which the laws will afford full redress; and the right of property remains even in respect to a swarm which takes its flight beyond the boundaries of the owner, so long as he can identify and pursue it. It would be manifestly impossible to protect that right any further. There is no change effected in the nature of the bees by this action of man. They are as wild as their follows which have their homes in the forest. Man simply avails himself of their natural instinct to accept a suitable place for their home and storehouse. A similar instinct is possessed hypigeoiu which leads them and their offspring to take up their abodes in places prepared for them by man. They may be first wonted to it by confinement, or attracted by feeding; but when they have adopted it, if protected against enemies and cher- ished with care, their number may be greatly multiplied, and by judi- cious drafts upon the increase a delicate food may be procured in con- siderable quantities. There is in the case of these animals a difficulty in securing to individual owners all the remedial rights which protect property arising out of the tendency of flocks to commingle, and the impossibility of identification. But, in spite of this, in the opinion of many jurists, they are to be deemed property. The obvious ground is the social beneiit which maybe secured by offering to this art and industry its natural reward, and thus encourage the practice of it. Without such encouragement society would lose the benefit it receives from this animal. There is a like opportunity to take advantage of the instincts of wild animals, and thus gain over them a power which makes them subservi- ent to the wants of man in the case of wild geese and swans. These also may be made wonted to a particular place, from which they will widely wander over waters belonging to different owners, or to the state, but to which they will habitually return, and where they will rear their young. They thus submit themselves voluntarily to the power of man, and afford him a control over them which enables him at once to pre- serve the stock and take the increase. On these grounds a right of mUtU. PROPERTY IN THE ALASKAN SEAL HERD. n property in them is conceded fo the owner of the Rpot which they make theii" home, which la not lost by the temporary departarcs therefrom. Any killing or canture of these animals by another, having notice of their habits, is aviolation of property rights for which the law famishes redress. So also in the case of deer ordinarily kept in an inclosnre, and fed, and from which selections are made for slaughter. The habit of retoming is here only imperfectly established. The animals are apt to resnme their wild nature; but nevertheless, the economic uses they subserve aresufiBcient to sustain a property interest in them, inasmuch as they are thu.s made, to borrow the language employed in relation to them by the English Court of Common Pleas, " as much a sort of husbandry as horses, cows, sheep, or any other cattle." • It is observable that these doctrines relating to property so familiar in the municipal jurisprudence of civilized nations, relating to the sev- eral descriptions of animals above mentioned, have not had their origin in special legislation, but in the unwritten law. They are the fruit of the unconscious action of society manifesting itself in the formation of usages which eventually compel the recognition of law. This means that they have their origin in natural law which is the basis of all un- written jurisprudence. They are the dictates of universal morality, cultivated, abc*;.:.. lined, and formulated by judicial action through long periods of time. It is this which stamps them with that character of approved, long established and unchangeable truth which makes them binding upon an international forum as being the indubitable voice of natural and universal law. The inquiry which has thus been prosecuted into the grounds and reasons upon which the institution of property stands fully substantiates, it is believed, the main proposition with which it began, namely, tiMt tchere any useful animals so far subject themselves to the control of particu- lar men as to eiMble them exclusively to cultivate such animals and obtain the annual increase for the supply of human wants, and at the same time to preserve the stock, they have a property interest in tliem. And this conclusion, deducible from the broad and general doctrines of the law of nature, is confirmed by the actual fact as exhibited in the usages and laws of all civilized states. Wherever a useful animal exhibits in its nature and habits this quality, it must be denominated and treated as the subject of property, and as well between nations as between > Davies v. Powell, Willes, 46. 92 ABGUMENT OP THE UNITED STATES. iDdir'daal men. This is the real groand npon wliich the mnnicipal law declares the several descriptions of wild anim.'Us, above particularly adverted to, to be property. This is what is intended by making the question of property depend npon the existence of the animus rerertendi. In the added light thrown by this inquiry into the foundations of Ifte institution of property the case of the fur-seal can be no longer open to doubt, if it ever was. It is a typical instance. Polygamous in its nature, compelled to breed upon the land, and confined to that element for half the year, gentle and confiding in disposition, nearly defenceless against attack, it seems almost to implore the protection of man, and to offer to him as a reward that superfluity of increase which is not needed for the continuance of the race. Its own habits go very far to effect a separation of this superfluity, leaving little to be done by man to make it complete. The selections for slaughter are easily made withcmt disturbance or injury to the herd. The return of the herd to the same spot to submit to renewed drafts is assured by the most imperious instincts and necessities of the animal's nature. During the entire period of all absences the animiu revertendi is ever present. The conditions are, as observed by the eminent naturalist. Prof. Huxley, ideaV All that is needed to make the full extent of the blessing to mankind available is the exercise on the one hand of care, self-denial, and industry on the part of man at the breeding places, and, on the other, exemption from the destructive pursuit at sea. The first requisite is supplied. A rich reward is offered for, and will certainly assure, the exercise of art and indnstry npon the land. All that is demanded from the law is that exemption from destructive pursuit on the sea which the award of a property interest will in;:iure. Kor should we omit to call attention to an aspect of the question pre- sented by the extent of the possession and control of, and over, this race of animals bestowed upon the United States in virtue of their ownership of the lands to which it resorts. This ownership carries with it the power to destroy the race almost at a single Htroke. It carries with it also, if interference by other nations is withheld, the power to forever preserve. The power to destroy is shared by other nations. The power to use, and at the same time to preserve, belongs to the United States alone. This power carries with it the highest obligation to use it for the purpose for which it was bestowed. It is in the highest and truest sense a trust for the benefit of mankind. The United States > Case of tlie Uuitod Stutos, Appendix, Vol. I, p. 412. PROPERTY IN THE ALASKAN SEAL HERD. 98 ncknowIe<1ge the trust aud have hitherto discharged it. Can anything be clearer as a moral, and ander nataral laws, a legal obligation than the duty of other nations to refrain from any action which will prevent or impede the performance of that trustf The only oiilce which belongs to other nations is to ^ ?e that this trust is duly performed. In this the whole world has a direct interest. However much interference by one nation in the affairs and couduot of another may be deprecated, it is not to be denied that exigencies may arise, as they have arisen, in which such interference may Le defended.' * We have habitually referred to art, indiutry, and lelf-denial on the part of man saocessfully practiced for the purpose of inereaaing th« annual product of the earth as being the main foundation upon which society awards a property interest. The exercise of these qualities is eujoined by natural law, and nature always aattigns to au observance of her dictates its appropriate reward. That art aud industry should be thna rewarded is obvious, but the merit of lelf-denial or abstinence, is not so imme- diately plaiu. It will be found, however, upon reflection, to possess the same mea«- ure of desert. In the case of the seals, for instance, the immediate temptation is to turn the whole mass to present account. Had this beeu done, the herds would long since have been practically exterminated. Their present existence is the result of a policy of denial of present enjoyment in the hope of a larger and more permanent advantage. It is quite unnecessary to enlarge upon the prodigious importance to mankind of such a policy. Indeed, without it the race could not have emerged from barbarism. The fur-seals thus preserved are as truly the fruit of human industry and effort as any of the products of the artisan. This merit of abstinence is the sole foundation upon which economists and moral- ists place the right to capital, and interest for its use. Capital is the simply the fruit of abstinence. The following citations are pertineut in this place: From N. W. Senior, Politiciil Economy, 6th ed., London, 1872, p. 68 et seq. "But although human labour and the agency of nature, independently of that of man, are the primary productive powers, they require the concurrence of a third pro- ductive priuciple to give them complete efiQcicncy. The most laborious population inhabiting the most fertile territory, if they devoted all their labour to the produc- tion of immediate results aud consumed its produce as it arose, would soon find their atmost exertions iusuHlcient to produce even the mere necessaries of existence. "To the third principle or instrument of production, without which the two others are inefficient, we shall give the name of abstinence, a term by which we express the conduct of a person who either abstains from the unproductive use of what he can command, or designedly prefers the production of remote to that of immediate reisults." After defining capital as " an article of wealth, the resnlt of human exertion em- ployed in the production or distribution of wealth," he goes on to say: "It is evi- dent that capital thus defined is not a simple productive instrument. It is in most cases the tesult of all the three productive instruments combined. Some natural agent must have atforded the material; some delay of enjoyment must in general have reserved it from unproductive use, and some labour must in general have been employed to prepare and preserve it. By the word abstinence tee wish to express that agent, distinct from labour and the agency of nature, the concurrence of which is nec- essary to the exiitenoe of capital and which stands in the same relation to profit as labour does to wage*. We are aware that we employ the word abstinence in a more exteu- 94 ARGUMENT OF THE UNITED STATES. It aeems impossible to imagine any ground upon which this demand can be resisted, and even difBcnlt to understand how a question could have been made rejecting it. If there were even the semblance of a moral reason upon which opposition could be rested, there might be room for hesitation and debate; if anything in the nature of a right to siveBenae than is warranted by common usage. Attention is usually drawn to absti« nenoe only when it is not united with labour. It is recojruized instantly in the oon- dnot of a man who allows a tree or n domestic animal to attain ita full growth, but it is less obvious when he plants the sapling or sows the seed corn. The obserrer'a attention is oocnpied by the labour, and he omits to consider the additional sacrifloe made when labour is undergone for a distant object. This additional sacrifice we comprehend under the term abstinence. * * * of all the means by which man can be raised in the scale of bein^, abstinence, as it is perhaps the most etTectiTe, is the slowest in increase, and the latest generally diffused. Among nations those that are the least civilized, and among the different classes of the same nation those which are the worst educated, are almost the moat improTident and oonseqaently the least abstinent." (At page 69) : " The savage seldom employs, in making his bows or his dart, time which he could devote to the obtaining of any object of immediate enjoyment. He exercises, therefore, labour and providence, but not abstinence. The first step in improvement, the rise from the hunting and fishing to the pastoral state, implies an exercise of abstinence. Much more abstinence, or, in other words, greater use of oapital, is required for the transition f^om the pastoral to the agricultural state; and an amount not only still greater, but constantly increasing, is necessary to the prosperity of mauufactuics and commerce." From " Essai sur la Repartition des Riohesses," par Paul Leroy-Deaoliea, 2d ed. Paris. 1883: - The first cause of interest is the service rendered to the borrower, the inoreaaa of productivity given to his labor, industry, commerce. The second cause of inter- est is the puina taken by the lender, the sacrifice necessary for alwtinence in depriv- ing himself of immediate consumption for a delayed profit." From " American Political Economy." Francis Bowen, p. 204, oh. xi t "Capital being amassed as we have seen by frugality or abstinence, profits are the teward of abstinence Just as wages are the remuneration of labor, and rent is the compensation for the use of land." From " Some leading Principles of Political Economy Newly Expounded." By J. E. Caimes, New York, 1874, p. 80: " The term abstinence is the name given to the sacrifice involved in the advance of oapital. As to the nature of the sacrifice it is mainly of a negative kind, consist- ing chiefly in deprivation and postponement of enjoyment implied in the fact of parting with our wealth, so far at least as concerns our present power of command- ing it." , From " Principles of Economics." Alfred Marshall, professor in the University of Cambridge, London, 1870. Vol. 1, bk. vii, oh. vu, sec. 2, p. 612: "A man who, working on his own account, makes a thing for himself has the nsance of it as the reward for his labour. The amount of his work may be de- termined in a great measure by custom or habit, but in so far as his action is deliber- ate he will cease his work when the gains of further work do not seem to him worth the trouble of getting them. But the awakening of a new desire will induce him to work on further. He may take out the fruita of this extra work in immedi- PBOPERTY IN THE ALASKAN SEAL HERD. 95 capture seals at sea could bo pretended, it would bo necessary to pause and deliberato. It may indeed be said that there is no power in the United States to prevent sealing upon the high seas; but this is a beg- ging of the question. If they have a property ^'itorest in thesoiils, the power to protect it cau not be wanting. But let this question go By ate and passing enjoyment, or in lasting but distant bonofits, * * * or in inrple- meuts wbich will aid him in bis work, * * * or, lastly, in things which he can lot out ou hire or so invest as to derive an income from tlem. Man's nature, how- ever, beiug impatient of delay, he will not, a$ a rule, select any of the three latter methods unless the total benuUt which he expects in the long run suoms, alter allow- ing for all risks, to show a surplus over its benefits to be it proHt, though it enriched him, was no seltlub course; luxuri- oaa expenditnre would have boon the real rcli^ibnuHii. Uy going in for profit he benefltHHociety. His aavingH nre an advantage to othbrsaa well aa to bimsolf. * • * Profit is the last thing which should be grudged, for piotit is the creator of capital, and capital is the life blood of civiliz^don and conimunial progress." From " Manual of Political Economy." Henry FawcoU. London, 1877. I3k. II, oil. V, p. 157: "As capital is the rosu/t of saving, the owner of oapitnl exercises forhoarance when he saves bis wealth iustedd of spending it. Profits tliorofuru are the ro\'ard of abatlneuce in the same manner that wages are the reward of physical oxer- tion." From "The Science of Wealth." Amasa Walker. Boston, 1877. Cli. vi, p. 288: "Interest has its justification in the right of property. If a man can claim the ownership of ary kind of wealth, he is the owner of all it fairly produces • • • whoever by labour produces wealth and by self-denial preserves it should be ( Ilowed •11 the benel\t that wealth can render in future production." From " Introduction to Political Economy." A. L. Perry. New York, 1877. P. 115. "The origin of all capital is in abstinence, and the reward of this abstinence is profit." From " A System of Political Economy." J. L. Shadwell. London, 1877. P. 159. "They (capitalists) desire to obtain it (profit) because the savingof capital implies the exercise of abstinence, as the capitalists might have exchanged it for other things for their own Immediate oonsuraptiou; but if they forego their ei\joyment in order to produce commodities they require some compensation for the sacrifice to which they submit." From John Stuart Mill. "Principles of Political Economy." Boston, 1848. Vol. II, p. 484: "As the wages of the laborer are the remuneration of labor, so the profits of the capitalist are properly the remuneration of abstinence. They are what he gains by forbearing to consume his capital for his own uses and allowing it to be consumed by productive laborers for tiicir nses ; for this forbearance he requires a recompense." And again, at page 553: "Capital • » * being the result of abstinence, the produce of its value must be sufllcient to remunerate not only all thu labor required but the abstinence of all the persons by whom the remuneration of the difiurent classes of laborers was advanced. The return for abstinence is profit." From "Manuel d'l^couomie Politique." Par M. H. Baudrillard. 4th ed. Paris, 1878. P. 382: "The first element of interest is the privation to which the lender subjects him- self, who surrenders his capital for the benefit of another." (7ntly available sliall not be improved; and if you ask us for a reason we ^dve you i\' -e, except that wo so choose, and can, for a few years at least, make a i)r<>tlt to our- selves by carrying on the work of destruction; the see 's iree," Ahrens' states: The dellnitions of tho right of i>. .iperty give'i by positive lawo „ ■ .orally noncedo to the owner the i)ower f«i dispose of hiF bject in an almost absolute manner, to use and abuse it, and even through caprice to destroy it;* but this arbitraiy power is not in keeping with natural law, and positive legislation, obedient to tiie voice of common sense and reason in the interest of sociisty, has been obliged itself to establish numerous restrictions, which, examined from a philosophic view of law, are the result of rational principli^s to which the right of property and its exercise are subjected. The principles which goveru socially the right of property relate to substance and to form. I. As to substance, the following rules may be established: 1. Property exists for a rational purpose and for a rational use; it is destined to giitisfy the various needs of human life; consequently, all arbitrary abuse, all arbitrary destruction, are contrary to riijht {droit) and should be prohibited by law {loi). But to avoid giving a false ex- tension to this principle, it is important to recall to mind that, accord- ing to personal rights, that which is committed withiu the sphere of the soil to retain the soil itself as well as tlie aurfaoo. OthorwiHO ho will use the soil as a possessor who is iu haste to enjoy it. 'Vhcnt a thoiiglit of tho fiitiiru is wanting there will be no real improvement, no nunie:ou8 and well-supported pop- ulation, no civilization with deep roots either moral or material." * * * " All these advantages can be tho outgrowth of uuti.lng but permnuont ownership. For the same reason it is well for ownership to be individual and not collective; of this we tind proof in the religious communities of the middle ages, and in onr own time in the very imperfect condition of property held in common. Collective ownership is attended with this drawback, viz, that it does nut sulU- oieutly stimulate 'he activity of the owner." > Ahrens: Course of Natural Law, Leipzio, 1876, vol. 2, book I, div. 1, sec &l. ' Soman law gave the owner the jus utendi et abutendi ; after the Austrian codo (11, 2, seo. 362), he has the power to destroy arbitrarily that which belongs to him. The Code Napoleon which detlnes property as "tho right to enjoy and to dispose of things in the most absolute manner, provide' no use bo made of tlium forbidden by the laws or by the regulations," interposed social interest by this restriction. 14740 7 98 ABGUMENT OP THE UNITED STATES. private life and of that of the family does not come under the appli- cation of public law. It is necessary, therefore, tlmt the abuse be public in order that the law may reach it. It belongs to the legisla- tions regulating the various kinds of agricultural, industrial, and commercial property, as well as to penal legislation, to determine the abuses which it is important to protect; and, in reality legislations as well as police laws, have always specified a certain number of cases of abuses.^ Besides, all abusive usage is hurtful to society, because it is for the public interest that the object should give the owner the advan- tages or the services it admits ol? It is assumed throughout the Eeport of the British Commissioners that pelagic sealing is not necessarily destructive, and that, under regulation, the prosecution of it need not involve the extermination of the herds. This assumption and the evidence bearing upon it will be elsewhere particularly treated in what we may have to say upon the subject of regulations. It will there be shown that it is not only destructive in its tendency, but that, if permitted, it will complete the work of practical extermination in a very short period of time. But so far as it is asserted that a restricted and regulated pelagic sealing is consistent with the moral laws of nature and should be allowed, the argument has a bearing upon the claim of the United States of a prop- erty interest, and should be briefly considered here. Let it be clearly understood, then, just what pelagic sealing is, however restricted or regulated. And we shall now deccribe it by those features of it Avhich are not disputed or disputable. We pass by the shocking cruelty and inhumanity, with its sicken- ing details of bleating and crying oflfspring falling upon the decks from the bellies of mothers, as they are rii)ped open, and of white milk flow- ing in streams mingled with blood. These enormities, which, if at- tempted within (ho territory of a civilized State, would wpeedily be ' On the occasion of the debate of Art. 544, which defined property, Napoh^on expressed energetically the necessity of suppressing abusos. " The abuse of prop- erty," said he, "should be suppressed every time it becomes hurtful to society. Thus, it is not allowed to out down unripe grain, to pull up famous grapevines. I would not sudor that an individual should smite with sterility 20 leagues of ground in a graiu-bearmg department, in order to make for himself a park thereof. The right of abuse does not extend so far as to deprive a people of its sustenance." ' Koman law says in this sense, see. 3, 1, Do patr. pot. 1, 8: "Expedit enim reipubli- 08B ne sua re quis male utatur." Leibnitz further expands this principle of the Koman law by saying (De notionibus juris, etc.) : " Cuiii nos nostraque Deo debeamus, ut roipubliou>, ita multu ma;j;is uuiversi interest uo qnis re sua male utatur." PBOPERTY IN THE ALASKAN SEAL HERD. 99 made the subjects of criiuiual puiiisbiiient, are not relevant, or ai'e less relevant, in the discussion of the mere question oi" property. It is not contended that in pelagic sealing (1) there can be any select- ive killing; or (2), that a great excess of females over males is not slain; or (3), that a great number of victims perish from wounds, without being recovered; or (4), tliat in most cases the females killed are not either heavy with young, or nursiiig mothers; or (5), that each and every of these incidents can not be avoided by the selective killing which is practiced ou the breeding islands. We do not stop to discuss the idle questions whether this form of slaughter will actually cMermi- natc the herds, or how long it may take to complete the destruction. It is enough for the present purpose to say that it is simple destruction. It is destructive, because it does not make, or aim to make, its draft upon the increase, which consists of the sui)ei"fluous males, but. by taking feumles, strikes directly at the stock, and strikes at the stock iu the most diMuaging way, by destroying unborn and newly-born pups, together with their mothers. "Whoever undertakes to s?it up a moral right CO prosecute this mode of slaughter on the ground that it will not necessarily result in comjdete destruction, must maintain that while it may be against the law of nature to work complete destruction, it is yet lawful to destroy I But what the law of nature forbids is any destruc- tion at all, unless it is necessary. To destroy a little, and to destroy vmcli, are the same crimes. If there were even somcihiiig less than a Wf/Af, or rather some hno degree of right — for nothing other than rights can be taken notice of here — some mere convenience, it might be worthy of consideration ; but there is none. It cm not even be said that pelagic sealing may furnish to the world a sealskin at a lower i)rice. Nothing can be plainer than that it is the most expensive mode of capturing seals. It requires the expenditure of a vast sum m vessels, boats, appliances, and human labor, Avhich is all unnecessary, because the entire increase can be reaped without them. This unnecessary expense is a charge upon the consumer and nuist be reimbursed in the price he pays. In no way can pelagic sealing result in a cheapening of the product, except upon the assumption that the stock oi" seals is inexhaustible, and that the amount of the pelagic catch is an addition to the total catch, which might be made on the land if capture were restricted to the land; and this as- sumpticm is admitted ou all bauds, and even by the Oommissiuuers of .Great Britain, to be imtruo. 100 ARGUMENT OP THE UNITED STATES. If there were any evilj or inconvenience even, to be apprehended from a confiuement of the capture of the seals to the breeding phices, it might serve to arrest attention; but there is none. Much is said, in- deed, in the Bepoi't of the Gouiuiissioners of Great Britain concerning a supposed monopoly Avliich would thus be secured, as is pretended, to the lessees of the breeding islands which would enable them to exact an excessive price lor skins; but this notion is wholly erroneous. The annual drafts made at the island from the increase of the herds are not made for, and can not be monopolized, or appropriated, by the United States. They are made for mankind everywhere, and find their way to those who want them and are able to procure them wherever upon the face of the world they may dwell. To the owners of these islands, whoever they may be, they are intrinsically useless, except the insignificant number which may be useful for food or clothing. Their only value to them is as articles of commerce, as means by which needed commodities may be obtained from others who may have a superior desire for the benefits afforded by these animals. They are furnished through the instrumentality of commerce to those who want them upon the same terms upon which they are furnished to the citi- zens of the United States. The human race thus perfectly secures to itself the benefit which nature intended the animal should supply. Nor can the United States exact from the world whatever jirice it pleases for the product of the animal. It can not exact a penny more than the world is willing to give; and this, as in the case of every other commodity, is its just value. " The cost of i)roduction, and the operation of supply and demand will determine the price of this, as of eveij other, commodity. Any other mode of capturing the animal for the market is obviously and confessedly more expensive, and must necessarily, other things being equal, involve an increased price, and simply impose an additional tax upon the consumer. There are, indeed, instances of commodities in which the possible supply greatly exceeds the wants of the world, and where, if the whole product were thrown upon the market, it would become almost worth- less, producing a sum much less than would have been gained had a comparatively small part only been offered. In such cases, if the sources of supply are a monopoly under a single direction, a large profit may sometimes bo secured by an artificial limitation of the supply. It is said that the Dutch once found an advantage like this from a voluntary destruction of a large part of the product of the Spice Islands. But PROPERTY IN THE ALASKAN SEAL HERD. 101. the case of the lessees of the Pribilof Islands is tlie opposite of this. They never can be even tempted to limit the supply, Nature herself has limited it all too rigidly. A large profit is derivable from every seal which pruileuce will permit to be taken. The temptation is to take too largely. Abstinence, and not waste, is the true policy. Indeed, the Keport of the Commissioners of Great Britain makes it a principal charge against the management of the lessees that they make drafts upon the herds too large, instead of too small. Now, where the entire product of a source of supply is thrown upon the market, the price will be governed by the demand. The world will pay a certain amount for it and no more; and the circumstance that there is a monopoly of the commodity is unimportant.' Divers charges are made in the Beport of the British Commissioners of neglect and mismanagement by the lessees of the islands in the conduct of the business of caring for the seals and making the annual drafts from the herds. These topics have but a small measure of rele- vancy here. They are, with some unimportant exceptions, whollv de- nied, and will be elsewhere in this argument shown to be erroneous. But if it be intended by these charges to show that the prime object of the law of natui'e to make the increase of animals available to man- and at the same time to preserve the stock, is not most certainly g-aiiied in the case of an anlmiil like the seal by declaring a property interest in those who have the power to secure it, some observations upon them are pertinent here. In this aspect these charges proceed upon the assumption that a scheme of protection by care, industry, and select, ive killing is necessary. If this be so, when and how can it be adopted and maintained except through the recognition of a property interest? It can not be questioned that this care and prudenc^e are best secured by bringing into play the motive of fseif-iuterest. How can this be done except through the recognition of a property interest? What other device has human society found in any stage of civilization in any land or iti any age? What new sr bstitute has the wisdom of these Commissioners to suggest? Is it necessary to tell the breeder of sheep that he must preserve his flocks and make his main dralts for the mar- ket upon his superfluous males? It may be admitted that the United States may sometimes fall into errors and neglects against their own interest. They assv .i,for themselves no infallibility; but they do insist that there is no error and no neglect which they could as owners and 'MUl. Pol. Ecoii., ])()uk II, Chap. 5, ( 2. 102 ARaiTMENT OP THE UNITED STATES. cultiv.ators of these herds commit which would be in violation of the teachin(!^s of science and the laws of nature and operate to obstruct the enjoyment by mankind of the full product of the animal, which would not at the same time, and in larger measure, result in loss and injury to themselves. They have not and can not have, upon the grounds taken in this argument, any interest which, in the slightest degree, conflicts with that of the world at large. They would be grate- ful to have any errors in the management by them pointed out, to the end that they might apply a remedy. And what is true in respect of the United States is true also of their lessees. The latter can hjive no interest not in harmony with the intei'ests of all. This observation is subje* t to a qualification limited to lessees wliose lease is about to ex- pire. An outgoing tenant is, indeed, sometimes under a temptation to commit waste. Against this possible mischief the United States have endeavored to guard by the policy of making long leases. It is believed to have been entirely effectual. But all suggestions of the insufficiency of the guaranties furnished by a recognition of a property interest to carry out the dictates of science and natural law in respect to animals having a nature and hab- its such as the fur-seal exhibits are absolutely silenced by a reference to the conclusive teachings of actual and long experience. Russia en- joyed during the whole period of her occupation of the islands the full benefit practically of a property interest. She maintained an exclu- sive dominion of the herds upon the land, and no attempt to interfere with them by pelagic sealing was made. By her care, industry, and self-denial, tempted and rcAvarded by the profits of the industry, the normal numbers of the herds were maintained, and at the same time large annual drafts were made. And whon, as happened more than once from exceptional causes which could not be prevented, the num- bers were greatly reduced, a more rigid and self-enforced abstinence brought about a full restoration. At the beginning of the occupation of the United States, and before their authority and oversight were fully established, an irregular and excessive slaughter again greatly reduced the herds, and this damage was again fully repaired by an exercise of similar abstinence. The numbers were, perhaps, more than restored, and it became possible to make larger drafts than had ever been taken under the Russian management without any discoverable diminution of the stock; and there is no reason to suppose that such drafts might not have been continued indefinitely had not the destruc- PROPERTY IN THE ALASKAN SEAL HERD. 103 tive warfare by a constantly increasing fleet of Canadian sealers made it impossible. The experience at the Commander Islands has been the same. The exercise of art, industry, and self-denial produced by the ojjeration of the same motive has been followed by the reward of still abundant herds. Nor is there any obstacle in the way of a recognition of a property in- terest growing out of any difficulty in identifying the Alaskan herd upon the high seas. Suggestions of a possible commingling with the herds belonging to the Russian islands on the western side of the Pa- cific and Bering Sea are contained in the Report of the British Com- missioners; but these are coupled with the admission that this com- mingling, if it exist at all, is confined to a few individuals. They are supported by no evidence. The Russian herd s are separated by a broad tract, hundreds of miles in width, and it seems entirely certain that all sen''' found on the eastern side of the Pacific and Bering Sea are ri nbers of the Alaskan herds. may be urged, as an objection to the recognition of a property in- terest in the United States, that it would be inconsistent with the con- tinued pursuit of seals by the Indians on the Northwest coast for the purposes of food and clothing. This consideration deserves respectful attention. It is the only form of capturing seals upon the high seas which can assert for itself a moral foundation under the law of nature. Attentif^" ^as more than once oeen called in this argument to the dif- ferent degrees of the extension of the institution of property in barbaric and in civilized life. The necessities of society, everywhere and at all times the measure of the extension of the institution, do not in barbaric life require a recognition of property in but comparatively few things. With a scanty and sparse population, little is required by way of cul- tivating the earth or its animals; and bo*,h can be, and generally are, allowed to remain in a wild condition, open to indiscriminate use. A full supply of the wants of such society in respect to most animals can be had by indiscriminate killing, without in the least degree endan- gering the stock. That peril is one which civilization brings along with it; and, as we have seen, the safeguard comes also in the shape of the extension of the institution of property. Nothing better illus- trates this than the case of the fur-seals. Before the occupation of its haunts by civilized nations, the only draft made by man upon the pro- diKiottS herds was limited to a number sufficient to supply the wants 104 ARGUMENT OF THE UNITED STATES. of a few Inindred people. But, after such occupatiou, through the in- struineiitiility of commerce, the wliole world made its attack. This demand, of course, could not be supplied consistently with the preser- vation of the si)ocies without an immediate change from barbaric to civilized methods; that is to say, from indiscriminate capture, which threatened the stock, to a selective capture conflned to the increase. But this condition creates no difBculty. The demand thus made is comparatively insignificant, and does not threaten any danger. The United States hnve no desire or intention to cut off from these rude inhabitants any of their means of subsistahce. Their history and cir- cumstances have made tliem familiar with tlie survivals of barbaric life in the midst of civilized conditions. They have steadily pursued the policy of securing to such tribes, as long as possible, the benefit of the sources of subsistance upon which they had been accustomed to rely. They suppose it may be safely left to them to insure to these people such an enjoyment of the seal herds as they originally had, or the property interest which they justly claim may be recognized subject to a reasonable use by tlie Indians upon the coast, such as they have here- tofore enjoyed. But, surely, this claim of the Indians can not be made a cover for the prosecution of a destructive warfare upon a valuable race of animals. The civilized man can not assert for himself the license of the barbarian. If that can not be confined to the barbarian, it must y given up altogether. The exacting demands of civilization must be met by the methods of civilization. It may be asked whether the claim made by the United States goes to the extent of asserting a legal right of property in any individual seal which may at any time be found in the seas between the Pribilof Islands at the north and the coast of California at the south? And whether they would insist that in the case of any seal captured any- where within those limits by any person other than a native Indian, and for purposes of scientific curiosity, or to satisfy hunger, a trespass had been committed upon the property f the United States, and sin action might be maintainr . in tlieir name in a municipal tribunal to recover damages, or for the recovery of the skin of the animal, if it should any- where be found. Tiio United States do not insist upon this extreme point, because it is not necessary to insist upon it. All that is needed for their purposes is that their property interest in the herds should be so far recognized as to justify a prohibition by them of any destructive pur- suit of the animal calculated to ii\jure the industry prosecuted by them PROPERTY IN THE ALASKAN SEAL HERD. 106 ou tlio islands upon the basis of their property interest. Tlie concep- tion of Si property interest in the herd, as distinct from a particular title to every seal composing the herd, is clear and intelligible; and a rec- ognition of this would enable the United States to adoi)t any reasonable measures for the protection of such interest. It is, of course, necessary to an actual appropriation of property that the intent to appropriate should be evidenced by some act. This requirement has been fully satisfied by the United States. Every act by which that intent could be manifested has been performed. They have, in every practicable form, exercised art, industry, and self-denial in protecting the seals upon their soil and gathering the increase for the purposes of commerce with the world, and they have in all prac- ticable forms, by their laws, by executive proclamation, and the ex- ercise of force upon the high seas, endeavored to prohibit all invasions of their property interest. It is believed that of the three conditions hereinbefore mentioned as requisite to assert a right of property in the seal herd, a compliance with the only one wiiich can be t»ie subject of debate, namely, suscepti- bility of appropriation, has now been fully established ; and we need no longer delay the final conclusion that the United States, and they alone, having such a control over the Alaskan seal herd as enables them by the practice of art, industry, and self denial to make the entire product fully available for the wants of mankind without diminishing the stock, and having asserted this control and exercised the requisite art, industry, and self-denial in order to accomplish that great end, have, under principles everywhere recognized, both in the law of nature and in the concurring municipal jurisprudence of aU civilized States, a property interest in that herd. It is a satisfaction to the undersigned, and, as they conceive, no unimportant feature of their argument, that in the foregoing discus- sion no selfish pretension had been asserted by the United States, nor one in the least degree hostile to Great Britain. The Government of the United States neitfc r asserts any principle, nor asks for any ad- judication which is not for the common interest of the world as nuich as for itself. The fundamental truth that this useful race of animals is the property of mankind is not changed by the circumstance that the custody and defense of it have fallen to the lot of the United States. Their appearance as a litigant in this forum may be said, in a very just sense, to be fortuitous. The real controversy is between m iii 106 ARGUMENT OF THE UNITED STATES. ! those, wherever they may dwell, who tcant the seals, and the Canadian pelagic sealers, who are threatening the extermination of them. If that danger can be averted by the metliod which alone can be eflfective, the recognition of a property interest in the United States, the benefit will accrue equally to all. The sealskins will be furnished to the citizens of Great Britain and of all other nations upon the same terms upon which they are obtainable by citizens of the United States. The large interests of Great Britain in the manufacture of the skins will be re- lieved from the peril which threatens them. None will be losers, save those who are engaged in the cruel pursuit, forbidden by the law of natnre, and by every sentiment of humanity, of destroying this useftil race of animals. And the loss even to them would be comparatively small, for the pursuit under present conditions can not continue for more than a \ ery short period. The United States may, indeed, ..erive a profit peculiar to themselves as the cultivators of the herd; but this is the just reward of their in- dustry, abstinence, and care, and no more than every other nation in respect to products peculiar to itself. Without these voluntary efforts the herds would be speedily swept away. Their present existence and numbers are absolutely due to these eflForts. It is by such means alone that nature makes her gifts fully available to their desired extent to all nations. The advantages which, in the partition among nations, have fallen under the power of the United States, it is their duty, and their duty to mankind, to improve. The rights and interests of mankind are properly asserted in this international forum ; but they can be asserted only through the United States. If the world has the right, as it cer- tainly has, to call upon that nation to make the benefits which nature has assigned to its custody available, it must clothe it with the powers which are requisite to that end. If the United States have, as has now been shown, a property interest in the Alaskan herd, the undersigned conceives it to be a certain con- sequence that they have the right to protect it anywhere upon the high seas against injury or invasion, by sucb reasonable exercise of force as may be necessary. This proposition will be fully discussed in connec- tion with the subject next to be considered, of the rights acquired by the United States in the sealing industries carried on by them upon the Pribilof Islands. If the foregoing argument is successful in showing that the United States have a property in the Alaskan seal herd their right to protect PROPERTY TN THE ALASKAN SEAL HERD. 107 that property anywhere upon the seas where it and they have the right to go is a proposition scarcely open to question. The rights of a nation of all descriptions upon the high seas are uniformly protected by the direct exercise of the powers of the nation. There is no other way of pro- tecting them. Theve is no general sovereign or tribunal over nations before which an alleged trespassing nation can be summoned for judg- ment. But the nature and extent of this self-protection will be fully discussed under the next head of this argument, devoted to that aspect of the property question particularly presented by the sealing industry maintained by the United States upon the Pribilof Islands. If they have the right to protect that industry against invasion by acts com- mitted upon the high seas, they have, a fortiorij the same right- to protect t\i&i p'oj^erly ou that element. James 0. Oasteb. 108 ABQUMEMT OF THE UITITED STATES. APPENDIX TO PART THIRD, DIVISION I (MR. CARTER'S ARGUMENT). AUTHORITIES UPON THE SUBJECT OF PROPERTY IN ANIMALS FERJE NATURE. [From Stnclies in Romnn Law, by JjjtA Mackenzie (6th edition), Edinburgh and London, 1886, chapter iii, page 174.] Wild animals. — All wild animals, whether beasts, birds or fish, fall under this rule, so that even when they are caught by a trespasser on another man's land they belong to the taker, unless they are expressly declared to be forfeited by some penal law, (Inst., 2, 1, 12; Gaius, 2, 60-69; Dig., 41, 1, 3, pr. 65). Deer in a forest, rabbits in a warren, lisU in a pond, or other wild animals in the keeping or possession of the first holder can not be appropriated by another unless they regain their liberty, in which case they are free to be again acquired by occupancy. Tame or domesticated creatures, such as horses, sheep, potiltry, and the like, remain the property of their owners, though strayed or not confined. The same rule prevails in regard to such wild animals already .appropriated as are in the habit of returning to their owners, such as pigeons, hawks in pursuit of game, or bees swarming while pursued by their owners (Inst., 2, 1, 14, 15). [From Gains's Elements of Roman Law, trannlated by Edward Poste, (2d ed.), Oxford. 1875. ] Seo. 68. In those wild animals, however, which are habitusited to go away and return, as pigeons, and bees, and deer, which habitually visit the forests and return, the rule has been handed down that only the cessation of the instinct of returning is the terminsition of ownership, and then the property in them is acquired by the next occupant; the instinct of returning is held to be lost when the habit of returning is discontinued. [From Von Savigny on Possosaion in the Civil Law, compiled by Kellelier.] W "^h respect to the possession of animals these rules are to be ap- plied thus: First. Tame animals are possessed like all other movables, i. e., the possession of them ceases when they can not be found. Second. Wild animals are only possessed so long as some special disposition (custodia) exists which enables us actually tx) get tliem into our power. It is not every custodia, therefore, which is sufficient ; whoever, for instance, keeps wild animals in a park, or fish in a lake, has undoubtedly done some- thing to secure them, but it does not depend on his mere will, but on a variety of accidents whether he can actually catch them when he wishes, consequently, possession is not here retained; quite otherwise with fish kept in a stew, or animals in a yard, because then they may be caught at any moment (lib. 3, sees. 14, 15, de poss). Third. Wild beasts, APPENDIX TO PART THIRD DIVISION I. 109 tamed artiflcinlly, are likened to domesticated animals so lonfj as tliey retain the habit of returninfj to the spot whei-e their possessor keeps them {doneo animum, i. e., consuetudinem, revertendi habent). [From Puffeiulorf, Law of Nature nnd Nations, lib. in, cap. 1, sec. 3.] Although a loss sec'ms to refer properly to x»roperty, yet by ns it Mill be gener:illy accepted as embracing all injury that relates to th(^ body, fame and modesty of man. tSo it signifies every inj'iry, corruption, diminution or removal of that which is ours, or intertteption of tluit, which in perfect .justice we ought to have; whether giv«Mi by nature or conceded by an antecedent hunuui act or law; or, Anally, the omissiou or denial of a claim which another may have upon us by actual obliga- tion. To this tends the 13th Declaniatiou of Quintilian, where he plainly shows that one hsul inflicted a loss who poisoned the flowers of his own garden whereby his neighbor's bees perished. Yet the con- vincing reason consists in this: Since all agree that bees are a wander- ing kind of animate life, and because they can in no way be accus- tomed to take their food from a given place; therefore, whenever there is a right of taking tiiem, there also, it is understood, is laid a gen- eral injunction to be observed by all neighbors, to permit bees to wander everywhere without hindrance from anyone. [From Bracton, lib. ii, cap. 1,] The dominion over things by natural right or by the right of nations is acquired in various ways. In the flrst i)lace, through the first taking of those things which belong to no person, and which now belong to the King by civil right, and are not common as of olden time, such, for in- stance, as wild beasts, birds, and fish, and all animals which are born on the earth, or in the sea, or in the sky, or in the air; wherever they may be captured and wherever they shall have been captured, they begin to be mine because they are coerced under my keeping, and by the same reason, if they escape from my keeping, and recover their natural liberty they cease to be mine, and again belong to the first taker. But they recover their natural liberty, then, when they have either escaped from my sight in the free air, and are no longer in my keeping, or when tiiey are within my sight under such circumstances, that it is impossi- ble for me to overtake them. Occupation also comprises fishing, hunting, and capturing; pursuit alone does not make a thing mine, for although I have wounded a wild l)east so that it may be captured, nevertheless it is not mine unless I capture it. On the c(mtrary it will belong to him who flrst takes it, for many things usually happen to prevent the capturing it. Likewise, if a wild boar falls into a net which I have spread for hunting, and I have carried it off, having with nuich exertion extracted it from the net, it will be mine, if it shall have come into my powei, unless custom or privilege rules to the contrary. 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 I have shut them up in a hive, than birds which have made a nest in my tree, and therefore if another person shall shut them up, he will have the dominion over them. A swarm, also, which has flown away out of my hive, is so long understood to be mine as long as it is in my sight, and the overtaking of it is not impossible, otherwise they belong to the first taker; but if a person shall capture them, he does not niake thorn his own if he shall know that they are another's, but he commits a theft >F ... m Hi 110 ARGUMENT OF THE nMlT£D STATES. unless he has the intention to restore them. And these things ure true, unless sometimes from custom in some parts the practice is otherwise. What has been said above applies to animals which have remained at all times wild; and if wild animals have been tinned, and they by habit go out and return, fly away, and fly back, such as deer, swans, seafowls, and doves, and sucli like, anotlier rule has been approved, that they are so long considered as ours as l(»ng as they have tlie dis- ]K)sition to retiun; for if they have no disposition to return they cease to be ours. But they seem to cease to have the disposition to return when they have abandoned the habit of returning; and the same is said of fowls and geese which have become wild after being tamed. But a third rule has been a])proved in the case of domestic animals, that al- though tanui geese and fowls have escaped out of my sight, neverthe- less, in whatever place they may be, they are understood to be mine, and he commits a theft who retains them with the intention of making gain with them. This kind of occupation also takes place in tlio .se of those things which are captured from the enemy, as, for instai , if tree men have been reduced into slavery and shall e8cai)e frou, )ur power they recover their former state. Likewise the same species of occupation has a place in the case of those things which are common, as in the case of the sea and the seashore, in the case of stones and gems and other tilings tVmnd on the seashore. Tlic same rule applies to islands which spring up in the sea and to things left derelict, unless there is a custom to the contrary in favor of the public treasury. [From Bowyer, Modern Civil Law, page 72.] Wild animals, therefore, and birds, and fish, and all animals that are produced in the sea, the heavens, aiul the earth, become the property, by natural law, of whoever takes possession of them. The reason of this is, that wl»atever is the proi>erty of no man becomes, by natural reason, the property of whoever occupies it. It is the same whether the animals or birds be caught on the prem- ises of the catcher or on those of another. But if any one enters the land of another to sport or hunt, he may be warned oft' by the owner of the land. When you have caught any of these animals it remains yours so long as it is under the restraint of your custody. But as sooji as it has escaped from your keeping and has restored itself to natural liberty, it ceases to be yours, and again becomes the property of who- ever occupies it. The animal is understood to recover its natural lib- erty when it has vanished from your sight, or is before your eyes under such circumstances that pursuit would be difficult. Here we find the celebrated maxim of Gajus: Quod nullius est, id ra- tione naturali occupanti conceditur. It is founded on the following doctrine: Granting the institution of the riglits of property among mankind, those things are each man's property which no other man has a right to take from him. Now, no one has a right to that which is res nuUitiSf consequently, whoever possesses rem nullius jjossesses that which no one has a right to take from him. It is therefore his property. But this general right of acquiring things by occupancy is subject to an important qualification. Grotius justly argues that it is not an ab- solute right, for though it is indeed founded on natural law, it is mat- ter of permissive law, and not one which requires that full liberty should be left to men to avail themselves of it, since such liberty is un- necessary in many cases for the welfare of mankind, and may even, as Blackstoue observes, be prejudicial to the peace of society if it be not APPENDIX TO PAKT THIRD — DIVISION L 111 limited by poHitiv« law. l{ail)«yrac also arjfiu's that wliero a country is taken ])OHH«88ion of by a body of men, it bt'cnnics tlio property of that body oroftlio periwm who represents them, and that tiiereloro the riyht of the imlividual members t<> take possession of portions of it or any of tlio thinfjH therein contained, nuiy bo restricted or tak<'n away, accord- ing as the welfare of the community may demand. These i)rinciples are api)lieable to the wliole jurisprudence of a<(piisitu>n by occupancy. The ac«iuisition of things tauf^ible must be made corpore ct animo — that is to say, by an tmtward act signifying an intention to possess. Tlie necessity of an outward act to commence holding a thing in do- uwnion is founded on the principle that a will or intentitm can iu)t have legal efl'ect without an outward act declaring that intc'ution, and on the other hand no mau can be said to have the dominion over a vhing which he has uo intention of possessing as. his. Thus a nniu eau not deprive others of their right to take possession of vacant projier'y by merely considering it as his, without actually appropriating it to him- self; and if he possesses it without any will of apiaopriatiug it to him- self it can not be held to have ceased to be res nuUiuH. The intention to jjossess is to be pr«;sunied whenever the outward act shows such a iuleutiou, for that is to be presumed which is most probable. The outward act or possession need not, however, be manual, for any species of possession, or, as the ancients expressed it, custodia, ia a sut!! -^nt appropriation. The general i)rinciple respecting the acquisition of animals ferce naturw is, that it is absurd to hold anything to be a num's property which is entirely out of his power. But Grotius limits the application of that principle to the acquisition of things, and therefore justly dis- sents from the doctrine of Gajus given above, that the animal becomes again res nulUus immediately on recovering its liberty, if it be diflicult for the lirst occupant to retake it. He argues that wiien a thing has become the property of any one, whether it be afterwards taken from him by the act of man, or whether he lose it from a natural cause, he does not necessarily lose his right to it together with the possession ; but that it if reasonable to presume that the proprietor of a wild ani- mal must have venfiUJiced his right to it when the aniuuil is gone beyond the hope of recovei y and where it could not be identitied. lie, therefore, argues that the right of ownership to a wild animal may be rendered lasting, notwithstanding its flight, by a mark or other artifi- cial sign by which the creature may bo recognized. With regard to flsh, Voet argues that when they are included within artificial boundaries they are private property, but that when they are in a lake or other large piece of natural water, though the proprietor of the land may have a right of fishery there, yet the iish are in their natural state of liberty, and consequently they can not be his property until he has brought them within his power by catching them. It was disi)uted among the ancient Komau juriscousulti whether a, wild animal becomes immediately tlie property of whoever wounds it so that it can be secured, or whether it becomes the property of him only who actually secures it. And Justinian confirmed the latter opinion, because many circumstances might occur to prevent the woiinded animal being taken b^ him who wounded it. Bees, also, are of a wild nature, and, therefore, they no more become the property of the owner of the soil by swarming in his trees th;i n do the birds which build in them ; and they are not his unless he inclose them in a hive. Couseiiucntly, whoever hives them makes them his own. AmA .1 ,.. 112 ARGUMENT OF THE UNITED STATES. while tliey are wild any one may cut off the honeycombs, though the owner of the land may prevent this by warning off trespassers. And a swarm fiying from a hive belongs to the owner of the hive so long as it is within his sight, but otherwise it is the property of whoever takes possession of it. With regard to creatures which have the habit of going and return- ing, such as pigeons, they remain the property of those to whom they belong so long as they retain the anhmis revertendi or disposition to return. But when they lose that disposition they become the property of whomsoever secures them. And they nuist be held to have lost the animus revertendi as soon iis they have lost the habit of returning. 8uoh are the doctrines of the Eoman law, which are conformable to the English law, with the qualification of Grotius, which is applicable to the case of all animals ferw natur(v, that is to say, that a mark or collar prevents the rights of the proprietor of a wild animal being ex- tinguished by its escape from liis sight and pursuit. [From Cooper's Justiuian (lib. u, tit. 1, sees. 11 et seg).] Seo. 11. De Behus Singtilortim. — There are various means by which things become private jn-operty. Of some we obtain dominion by the law of nature, which (as we have already observed) is also called the law of nations; of others, by the civil law. But it will be most con- venient to begin from the more ancient law; that law, which nature established at the birth of mankind; for civil laws could then only begin to exist when cities began to be built, magistracies to be created, and laws to be written. Seo. 12. I)e Occupatione Ferarxim. — ^Wild beasts, birds, fish and all animals, bred either in the sea, the air, or upon the earth, so soon as they are taken, become by the law of nations, tl-.e i)roperty of the captor ; for natural reason gives to the first occupant, that which had no previous owner; and it is not material whether the man takes wild beasts or birds upon his own, or upon the ground of another} although whoever hath entered into the ground of another for the sake of hunting or fowling, might have been prohibited by the proprietor, if he had foreseen the intent. Whatever of this kind you take, is regarded as your property while it remains under your coercion; but when it hath escaped your custody, and recover 3d its natural liberty, it ceases to be yours and becomes the property of the first who soizes it. It is under- stood to have recovered its natural liberty, if it hath escaped your sight; or although not out of sight, yet if it can not be pursued and retaken without great difhculty. Seo. 13. De Ynlneratione. — It hath been questioned, whether a wild beast belongs to him, by whom it hath been so wounded, that it may be taken, -tind, in the opinion of some, it doth so, as long as he pursues it; but, if he quits the pursuit, it ceases to be lii;.'., and again be<'omes the right of the first occupant. Others have thought that property in a wild beast must attach to the actual taking it. We confirm this latter opinion; because many accidents happen, which prevent the ca])ture. Seo. 14. BeApibus. — Bees also arewild by nature; therefore, although they swarm upon your tree, they are not reputed, until they are hived by you, to be more your property than the birds which have nests there; so, if any other person inclose them in a hive, he becomes their proi)rietor. Their honeycombs also, if any, become the property of him who takes them; but clearly, if you observe any person entering into your ground, the object untouched, you may justly hinder him. A APPENDIX TO PART THIRD DIVISION I, 113 swarm which hath flown from your hive is still reputed to continue youra as long as it is in sight and may e?isily be pursued, but, in any other case it will become the property oi the occupant. Seo. 15. De Pavonihus, et Columbis, et Cecteris Animalibus Mansue- foctis. — Peacocks and pigeons are also naturally wild; nor is it any objection that after every flight, it is their custom to return; for bees that are naturally wild do so too. Some have had deer so tame that they would go to the woods and return at regular periods; yet no one denies but that deer are wild by nature. But, with respect to animals, Avhich go and return customarily, the rule is, that they are considered yours, as long as they retain an inclination to return; but, if tliis ceases, they cease to be yours; and will again become the property of those who take them. [The Case of Swans. (7 Coke, 15 1). )] It was decided that a pi'escription to have all wild swans which are feroi nattircc, and not marked, building their nests, breeding, frequent- ing within a particular creek, is not good. For " the prescri])tion was insufficient, for the effect of the prescription is to have all wild swans, which arefercv natunc, within the said creek. Aiul sucli prescription for a warren would be insufficient, as, for example, to have all part- ridges nidificantes gig)ientes, and frequenting Avithin his manor. But he ought to say to have free warren of them witlun his manor; he can not have them jure privileijii but so long as they are within the place. But it was resolved that if the defendants had alleged that within the said creek there had been time out of mind a game of wild swans not marked, building and bleeding; and then had ijrescribed, that such abbot and all his predecess(,is hiid used at all times to have and to take to their use some of the said game of wild swans and their cignets within the said creek, it had been good; for all those swais are royal fowls, yet in such manner a man may prescribe in them; for tliat may have a lawful begirning by the King's grant. For in the 3()th Edward III the King granted to 0. W. ali wild swans unmarked between Ox- ford and London for seven years. A like grant was made of wild swans unmarked in the County of Cambridge to Bereford, K. T. G., by which it appears that the King may grant wild swans unmarked; and by consequence a man may prescribe in them in a certain place because it may have a lawful beginning. And a man may prescribe to have a royal flsh within his manor as it is held in 39th Edward III, 35, for the reason aforersaid and yet without prescription they do belong to the King by his prerogative." In the same case it was said that there sire three manner of property lights; i)roperty absolute, i)roperty qualified, property possessory. I'loperty qusilifled and possessory a man may have in those animals which are fcrce naturce, and to such property a man may attain by two ways: by industry, or by ratione hnjyotentiw et loci. By industry as by taking thi'm or by making them mamueta or domentiea. But m those which nre fera; nattiro) and by industry are made tamo a man hath but a qualifled property in them, namely, so long as tiiey remain tame, for if they do att.ain to their natural liberty and Yinve not animus rcvertcmli, the property is lost. Ratione impotentice et loei as if a man has young goshawks or the like which are fercenaturw and they build in my land, Ihave possessory property in them, for if one takes them when they can notfly the owner of the soil shall have an aci-./U of trespass. But when a man hath savage beasts ratione ^yrivilegii, as by reasou of a park, warreu 14741) 8 :i >' 114 ARGUMENT OP THE UNITED STATES. ' &c., he hath not any property in the deor, or conies, or pheasants, there- lore in his action he shall not say suos, for he hath no property in them and they do belong to him for his game and pleasure so long as they remain in the privileged ijlace. It was resolved that all white swans not marked, which have gained their natural liberty, and are swimming in an open and common river, might be seized to the King's use by his prerogative, because VolatUia {quw sunt /erw naturw) alia sunt regalittj alia comviunia; * * • as a swan is a royal fowl; and all those, the property whereof is not known, do belong to the King by his prerogative; and so whales, and sturgeons, are royal fish, and belong to the King by his prerogative. • • • But it was resolved also that the subject might have prop- erty in white swans not marked, as some may have swans not marked in his private waters, the property of which belowgs to him and not to the King; and if they escape out of his private waters into an open and common river, he may bring them back and take them again. And therewith agreeth Bracton (lib. 2, c. 1, fol. 9): Si autem ani malia /era facta fuerint mansueta, et ex consuetudine eunt et redeunt, volant ct revolani, {ut sunt cervi, cigni, pavones, et coUtmbce, et hujus- modi) eousque nostra intelligantur quamdiu habuerint aniinum revertendi. But if they have gained their natural liberty, and are swimming in open and common rivers, the King's oflScer may seize them in the open and common river for the King; for one white swan without such pur- suit as aforesaid can not be known from another ; and when the prop- erty of a swan can not be known, the same being of its nature a fowl royal, doth belong to the King ; and in this case the book of 7 H, 6, 27, b, was vouched, where Sir John Tiptoft brought an action of trespass for wrongful taking of Ms swan s ; the defendant pleaded that he was seized of the lordship of S, within which lordship all those whose estate he hath in the said lordship had had time out of mind all estrays being within the same manor; and we say, that the said swans were estraying at the time in the place where, etc., and we as landlords did seize and make proclauiations in fairs and markets; and so soon as we had notice that they were your swans, we delivered them to you at such a place. The plaintiff replied that he was seized of the manor of B, joining to the lordshij) of S, and we say, that we and our ancestors, and all those, etc., have used time out of mind to have swans swimming tniough ail the lordship of S, and we jay, that long time before the taking we put them in there, and gave notice of them to the defendant that they were our swans, and prayed his damages. And the opinion of Strange there was well approved by the court, that the replication was good ; for when the i)laintiff may lawfully put his swans there, they cannot be estrays, no more than the cattle of any one can be estrays in such place where they ought to have common; because they are there where the owner hath an interest to put them, and in which place they m - be without negligence or laches of the owner. Out of which case t^ ^se points were observed concerning swans. 1. That every ouo who hath swans within his manor — that is to say, within his private waters — hath a property in them, for the writ of trespass was of wrongful taking his swans, scil. Quare cignos suos, et«. 2. That one may prescribe to have a game of swans within his manor, as well as a warren or park. 3. That he who hath such a game of swans may prescribe that his swans may swim within the manor of another. 4. That a swan may be on estray, and so can not any other fowl, as I have read in any book. APPENDIX TO PART THIRD — DIVISION I. [Child V. Greenliill (3 Croke, 553).] 115 Trespass for entering and breaking plain tilfs close and fishing and taking fish in bis seveial fishery. Contended for the defendant that he could not say "his" fishes, for he hath not any property in the fish until he takes them and has them in his possession. Attorneys for plaintiff maintained that they were in his several fishery, and that he might say "his" fishes, for there was not any other that might take them, and all the court '.^as of that opinion. [Keeble i'. Hickeriiigill, 11 East's, 574.] Action upon the case. Plaintift" declares that he was, Novemher 8, in the second year of the Queen, lawfully possessed of a close of land called Minott's Meadow, et de quodam vivario vocato, a decoy pond, to which divers wild fowl used to resort and come; and the plain- tiff' had, at his own costs and charges, prepared and i)rocured divers decoy ducks, nets, machines, and other engines for tlie decoying and taking of the Avild fowl, and enjoyed the benefit in taking them; the defendant, knowing which, and intending to damnify the plaintift" in liis vivary, and to fright and drive away tlie wild fowl used to resort thither, and deprive him of his profit, did on tlie 8th of November, re- sort to the head of the said i>ond and vivary, and did discharge six guns laden with gunpowder, and with the noise and sthik of the gun- powder did drive away the wild fowl then being in the pond ; and on the 11th and 12th days of November the defendant, with design to damnifv the plaintiff, andfriffht airay the icild fowl, did place himself with a gun near the vivary, and there did discharge tlie said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wild fowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and £20 damages. Holt, 0. J. : I am of opuiion that this action doth lie. It seems to bo new in its instance, but is not new in the reason or principle of it. For, first, this using or making a decoy i", lawful; secondly, this employ- ment of his ground to that use is profitable to tlie plaintiff", as is the skill and management of that employment. As to the first, every man tliat hath a property may emi)loy it for his pleasure and ])rofit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch tlieiii, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them to sell and dispose of lor his profit, this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. And when we do know that of long time in the kingdom these arti- ficial contrivances of decoy jwnds and decoy ducks have been used for «Miticing into tliese ponds wild fowl in order to be taken for the profit of the owner of tlie pond, who is at the expense of servants, engines, and other management, whereby the markets of the nation may be furnished, there is great reason to give encouragement thereunto; that the people who are so instrumental by their skill and industry so to furnish the markets should reap the benefits and have their action. But, in short, that which is the true reason is that this action is not I I 116 AEGUMENT OF THE UNITED STATES. brought to recover damage for the loss of the fowl, but for the dis- turbance. In the report of this same case in the 11th Modern, 75, Lord Chief Justice Holt says : '* Suppose the defendant had shot in his own ground ; if he had occasion to shoot it would be one thing, but to shoot on pur- pose to damage the plaiutift" is another thing and a wrong." It should seem to be as if he fired for the purpose of disturbing the wild fowl in his neighbor's decoy, that he might take the chance of benefiting- him- self by shooting them on the wing in consequence of such distuibauce. [Amory v. Flyn (10 John., 102).] In error, on certiorari, from a justice's court. Amory brought an action of trover against Flyu before the justice for two geese. There ■was a trial by jury. The plaintift' proved a demand of the geese and a refusal by the defendant unless the plaintiii" would first pay 25 cents for liquor furnished to two men, who had caught the geese and i)ledged them to the defendant for it. The geese were of the wild kind, but were so tame as to eat out of the hand. They had strayed away twice before, and did not return until brought back. The plaintiff proved property in them, and that after the geese had left his i)remises the son of the defendant was seen pursuing tliem with dogs, and was informed that they belonged to the plaintiff. The jury found a verdict for the defendant, on which the justice gave judgment. Per Curiam: The geese ought to have been considered as reclaimed so as to be the subject of property. Tlieir identity was ascertained ; they were tame and gentle, and had lost the power or disposition tx) fly away. They had been frightened and chased by the defendant's son, with the knowledge that they belonged to the plaintiff', and the case affords no color for the inference that the geese had regained their natural liberty as Avild fowl, and that the property in them had ceased. The defendant did not consider them in that light, for he held tliem in consequence of the lien which he supposed he had acquired by the pledge. This claim was not well founded, for he showed no right in the persons who pawned them for the liquor so to pawn them, and he took them at his peril. Here was clearly an invasion of private right. If the person who took the geese, or who had kept them, had been i)ut to necessary expense in securing them, such expense ouglit to have been refunded; but no such expense was shown or pretended, and to sanction such a pawn as this would lead to abuse and fraud. A person who takes up an estray can not levy a tax upon it but by way of amends of indemnity. This is the doctrine of the common law, (1 Eoll. Abi., 879, c. 5; Noy's Eep., 144; Balk., G8G), and the Roman lawyers equally denied to the finder of any lost property a reward for finding it nan prohe petat aliquid, says the Digest (Dig. 47, 2, 43, 9). And, indeed, the civil law {ibid. a. 4) considered it as a theft to convert to one's use, animo lucrandi, i)roperty found, without endeavocs to find the owners, or without intention to restore it. But theft was not always considered, in that law, in the very odious sense of our com- mon law; for as to the class of thefts denominated thefts not manifest, and of which this was one, that law provided only a civil remedy of double damages. A. Gellius (Noct. Alt. lib. 11, c. 18), who cites the very ]>as8age in the civil law which declares such conduct theft, gives that appellation to many acts which our law does, and ought to regaid as tresi)as8es merely; such, for instance, as ouster of possession of land, liut, taking the civil law in the milder sense, it sufficieuciy APPENDIX TO PART THIRD — DIVISION I. 117 shovrs what was considered, in the wisdom of the ancients, as right and dnty, in this case. The practice of mankind is .apt to be too lax on this subject; and, when occasion offers, courts ouglit to lay down and enforce the just and benevolent lesson of morality and law. The verdict, in this case, being against law and evidence, cau not be supported. Judgment reversed. [GoEf ««. Kilts (15 Wend., 550).] "The owner of hees which have been reclaimed, may bring an action of trespass against a person who cuts down a tree into wliich the bees have entered on the soil of another, destroys the bees and takes the honey. "Where bees takes up their abode in a tree, they belong to the owner of the soil, if they are unreclaimed, but if they have been reclaimed, and their owner is able to identify his property, they do not belong to the owner of the soil, but to him who had the former possession, although he can not enter upon the lands of the other to retake them without sub- jecting himself to an action of trespass." Error from the Madison common pleas. Kilts sued GoflF in a justice's court in trespass for taking and destroying a swarm of bees, and the honey made by them. The swarm left the hive of the plaintiff, flew off and went into a tree on the lands of the Lenox Iron Company. The plaintiff kept the bees in sight, followed them, and marked the tree into which they entered, jlwo months afterwards the tree was cut down, the bees killed, and the honey found in the tree taken by the defendant and others. The plaintiff recovered judgment, which was affirmed by the Madison common pleas. The defendant sued out a writ of error. By the court, Nelson, J.: Animals ferw nattirw, when reclaimed by the art and power of man, are the subject of a qualified property; if they return to their natural liberty and wildness, without the animus revertendi, it ceases. During the existence of the qualified property, it is under the protection of the law the same as any other iiroperty, and every invasion of it is redressed in the same manner. Bees are ferce naturas, but when hived and reclaimed, a i^erson may have a quali- fied property in them by the law of nature, as well as the civil law. Occupation, that is hiving or inclosing them, gives property in them. They are now a common species of property, and an article of trade, and the wildness of their nature, by experience and practice, has become essentially subjected 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 fly from the hive of another, his qualified property continues so long as he can keep them in sight, and possesses the power to pursue them. Un- der these circumstances, no one else is entitled to take them. (2 Black. Comm., 393; 2 Kent's Oomm., 394.) 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 iv ins follows, from this prediiiament, that the right to the enjoyment ot the property is lost; that the bees therefore become again /era? natura; and belong to the first occupant. If a domestic or tame animal of one per- son shfuild stray to the inclosure of another, the owner could not follow and retake it without being liable for a trespass. The absolute right ,!i1 .1 ,1 !«i ".I 118 ARGUMENT OF THE UNITED STATES, of property, notwitlistandlng, would still continue in him. Of this there can be no doubt. So in respect to the qualitied i)roperty in the bees. If it continued in the owner after they hived themselves and abode in the hollow tree, as this qualified interest is under the same protection of law as if absolute, the like remedy existed in caoe of an invasion of it. It can not, I think, be doubted that if the property in the swarm continues while within sight of the owner — in other words, while he can distinguish and identify it in the air — that it equally be- longs to him if it settles upon a branch or in the trunk of a tree, and remains there under his observation and charge. If a stranger has no right to take the swarm in the former case, and of which there seems no question, he ought not to be permitted to take it in the latter, when it is more confined and within the control of the occupant. It is said the owner of the soil is entitled to the tree and all within it. This may be true, so far as respects an unreclaimed swarm. While it remains Ihere in that condition, it may, like birds or other game, (game laws out of the question) belong to the owner or occu- ant of the forest, ratione soli. According to the law of nature, where prior occupancy alone gave right, the individual who first hived the swarm would be entitled to the property in it; but since the institution of civil society, and the regulation of the right of property by its positive laws, the forest as well as the cultivated field, belong exclusively to the owner, who has acquired a title to it under those laws. The natural right to the enjoyment of the sport of hunting and fowling, wherever animals fercB naturce could be found, has given way, in the progress of society, to the establishment of rights of property better defined and of a more durable character. Hence no one has a right to invade the enclosure of another for this purpose. He would be a trespasser, and as such liable for the game taken. An exception may exist in the case of nox- ious animals, destructive in their nature. Mr. J ustice Blackstone says : If a man starts game in another's private grounds, and kills it there, the property belongs to him in whose ground it is killed, because it was started there, the property arising ratione soli. (2 Black, Com., 419.) But if animals fercc naturce that have been reclaimed, and a qualified property obtained in them, escape into the private grounds of another in a way that does not restore them to their natural condition, a dif- ferent rule obviously applies. They are then not exposed to become the property of the first occupant. The right of the owner continues, and though he can not pursue and take them without being liable for a trespass, still this difidculty should not operate as an abandonment of the animals to their former liberty. The rights of both parties should be regarded and reconciled, as far as is consistent with a reasonable protection of each. The case of Heermance vs. Vernay (0 Johns. E., 5), arid Blake vs. Jerome (14 id., 4()6), are authorities for saying, if any were wanted, that the inability of the owner of a personal chattel to retake it while on the premises of another, without committing a trespass, docs not impair liis legal interest in the property. It only embarrasses the use or enjoyment of it. The owner of tiie soil, therefore, acquiring no right to the property in the bees, the defendant below can not protect himself by showing it out of the plaintiff in that way. It still continues in him, and draws after it the possession sufficient t.o maintain this action against a third person, who invades it by virtue of no other claim than that derived from the law of nature. This case is distinguishable from the cases of Gillett vs. Mason (7 Johns, R , 1(5), and Ferguson vs. Miller (1 Cov^en, 243). The first presented a question between the finder and a person IL^ APPENDIX TO PART THIRD — DIVISION I. 119 the Interested in the soil ; the other between two persons, each claiming as the first finder. The plaintiff in the last case, thongh the first finder, had not acquired a qualified property in the swarm, according to the law of prior occupancy. The defendant had. Besides, the swarm being unreclaimed from their natural liberty while in the tree, belonged to the owner of the soil ratione soli. For these reasons I am of opinion that the judgment of the court below should be affirmed. Judgment affirmed. r.Th« opinion of Baron Wilile In Bladen v. Higgs (12 0. B. N. S., 512).] T wish to add a few words, as I think the doctrine of animals ferfe ■na/urcE has in modern times been sometimes pushed too far. It has been urged in this case that an animal fero! naturw could not be the subject of individual property. But this is not 84i; for the common law affirmed a right of property in animals even though they vcereferw nahirw; if they were restrained eitlier by habit or iuon the subject. There can be no doubt that the learned counsel on the part of the defendant did not omit to impress uj>()n the jury his view of the importance of the fact of the deer being found in an ancient and legal park; and nothing is stated to have fallen from the judge calculated to withdraw the attention of the jury from the obser- vatious of the counsel made in that respect, or to diminish the force which justly attaches to any of them. It remains to be considered whether the auguments In support of the rule have shown that the verdict upon the issue, whether the deer were tame and reclaimed, was warranted by the evidence. In showing cause, on the part of the plaintiif, against the rule, it was contended that the conclusion of the jury, that Bridge Park continued t/> possess all the incidents of a legal park, was not warranted by the evidence; because it was ssiid that the franchise had been forfeited by the addi- tion of other lands to the ancient park, and the destruction of the means of acertaining the ancient boundaries; and numerous authori- ties were referred to, relating to the requisites for constituting an exist- ing legal park, and of the causes of the forfeiture of the franchise. But the opinion which the court has formed upon the other parts of the case, renders it unnecessary to enter into the consideration of that question, or into an examination of the authorities referred to. That it was proper to leave the question to the jury in the terms in which the issue is expressly joined can not be disputed, and the direc- tion that that question must be determined by referring to the i)lace in which the deer were kept, to the nature and habits of the animals, -vnd to the mode in which they were treated, appears t(» the court to be a correct direction ; and it seems difficult to ascertain by Avhat other means the question should.be determined, whether the evidence in tliis case was such as to warrant a conclusion that the deer were tamed and reclaimed. The court is, therefore, of opinion that the rule can not be supported on the ground of misdirection. It is not contended that there was no evidence fit to be submitted to the jury, and that, therefore, the plaintiff ought to have been non- suited} but it is said that the weight of evidence was against the ver- dict. In considering whether the evidence warranted the verdict upon the issue, whether the deer were tamed and reclaimed, the observations made by Lord Chief Justice Willes in the case of Davies v. Powell, are deserving of attention. The difference in regard to the mode and ob- ject of keeping deer in modern times from that which anciently ])re- vailed, as pointed out by Lord Chief Justice Willes, can not bo over- looked. It is truly stated that ornament and profit are the sole ob- mm m 1,. ■'I . i I .■) • : ni'.!! 1,:: r if. , .i i 126 ARGUMENT OF THE UNITED STATES. jecte for which deer are now ordinarily kept, whether in ancient legal parks or in modern inclosures so called; the instances being very rare in which deer in such places are kept and used for sport; indeed, their whole management dittering very little, if at all, from tha , of sheep, or of any other animals kept for profit. And, in this case, the evidence before adverted to was that the deer were regularly fed in the winter; .the does with young were watched ; the fawns taken as soon as dropped, and marked; selections from the herd made from time tt> time, fattened in places prepared for them, and afterwards sold or consumed, with no difference of circumstance than what attached, as before stated, to animals kept for profit and food. As to some being wild, and some tame, as it is said, individual ani- mals, no doubt, differed, as individuals in almost 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 others quite irreclaimable, in the sense of temper and quietness. Upon a question whether deer are tamed and reclaimed, each case must depend upon the particular facts of it; 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 ])erceive any sufficient grounds to warrant it in saying that the jury have come to a wrong conclusion upon the evidence, and do not feel authorized to disturb the verdict; and the rule for a new trial must, therefore, lie discharged. Rule discharged. [John Da vies v. Thomas Powell and six others. Willes's Reports, 1737-1758.] The following opinion of the court was thus given by Willes, Lord Chief Justice. Trespass for breaking and entering the close of the plaintiff called Cavershara Park, containing 000 acres of land, in the parish of Caver- sham iii the county of Oxford, for treading down the grass, and for chasing taking and carrying away diversas /eras, videlicet, 100 bucks 100 does and 00 fawns of the value of £000 of the said plaintiff inclu- %aa et eoarctatas in the said close of the said plaintiff". Damage £700. The defendants all join in the sar.ic plea; and as to the force and arms, etc. they plead not guilty, but as to the residue of the trespass theyjustify as servants of Charles Lord Cadogan, and set forth that the place where, etc., at the time when, etc., was, and is a park inclosed and fenced with pales and rails, called and known by the name of Caver- sham Park, etc. ; and that the said Lord Cadogan was seized tliereot and also of a messuage, etc., in his demesne as of fee, and being so seized on the 3d of August, 1730, by indenture demised the same to the plain- tiff by the name {inter alia) of all the said park called Cavershani Park from Lady -day th»^n last past for the term of 7 years, under the rent of £124 28. 'iiie deer are not particularly demised, but there is a covenant that the plai'ititt", his executors, and administrators should from time to time during the term keep the full number of 100 living deer in and upon the said demised premises, or in or upon some parts thereof. And Lord Cadogan covenants to allow the plaintiff in the winter yearly during the term twenty loads of boughs and lops of trees for browse for his deer to feed on, ci.lling them there, as hedoesinotherpartsof the lease, the deer of tlie said John Davies; and likewise covenants that if the j)laintiff shall <»i- tlie feast of St. Mi'duiel next before the expiration thereof pay Lord (Jadogan all the rent that APPENDIX TO PART THIRD — DIVISION I. 127 Avould be due at the expiration of the lease, then the jdaintiif, his ex- ecutors, etc., might sell or dispose of auy or all of the deer that he or they should have in the vsaid park at any time in the last year of the said term, anything in the said indenture to the contrary in anywise notwithstanding. And the defendants justify taking the said deer iis a distress for £186 rent due at St. Thomas-day, 1731, and say that they did seize, cliase, and drive away the said deer in the dexilara- tion mentioned then and there found, " being the property of and be- longing to the said John Davies,'' in the name of a distress for the said rent; and tlieu set forth that they complied with the several requisites directed by the act concerning distresses (and to which tliere is no objection taken) that the deer were appraised at £161 15s. 6d., and that they were afterwards sold for £86 19«., being the best price they could get for the same; and that the said sum was paid to Lord Cadogan toAvards 8atisIa(!tion of the rent in arrear; and that in tak ing such distress they did as little damage as they could. To this plea the plaintiff demurs generally, and the defendants join in demurrer. And the single question that was 8ub?nitted to the judgment of the court is whether these deer under tliese circumstances, as they are set forth in the ideadiugs, were distraiuable or not. It was insisted for the plaintiff that they were not; (1) Because they were /<;rfc«a dogs, yet it is clear now that a nnm may have a valuable i)roi)erty in a dog. Trover has been several times brought for a dog, and great ||! i I h' 128 ARGUMENT OF THE UNITED STATES. damages have been recovered. Besides the nature of thinj?s is now very much altered, and the reason which is given for the rule fails. Deer were formerly kept only in forests or chases, or such parks as were parks *»''ther by grant or prescription, and were considered rather as thinfTP of pleasure than of profit; but now they are frequently kept in inclosed grounds which are not properly parks, and are kept princi- pally for the sake of profit, and theref re must be considered as other cattle. And that this is the case of the deer which are distrained in the pres- ent case is admitted in the pleadings. The plaintiff by bringing an action of trespass for them in some measure admits himself to have a l)roperty in them; and they are laid to be inclusas et coarctatas in his close, which at least gave him a property ratione loci ; and they are laid to be taken and distrained there; but what follows makes it still stronger, for in the demise set forth in the plea, and on which the question de- l)ends, they are several times called the deer of John Davies, the plaintiff, and he is at liberty to dispose of them as his own before the expiration of tl\e term on the condition there mentioned. And it is expressly said that the defendants distrained the deer being the j)roperty of the said John Davies; it is also ])laiu that he had a valuable property in them, they having been sold for £8G 19s, both which facts are admitted by the demurrer. The plaintiff therefore in this case is estopped to say either that he had no property in them or that his property was of no value. Besides it is expressly said in Bro. Abr , tit. "Property," pi. 44, and agreed in all the books, that if deer or any other things ferce natures become tame a man may have a property in them. And if a man steal such deer it is certainly felony, as is admitted in 3 Inst., 110, and Hawk P. 0., in the place before cited. Upon a supposition, therefore, which I do not admit to be law now, *^hat a man can have no property in any but tame deer, these must be akeu to be tame deer, because it is adiuitted that the plaintiff' had a property in them. Second. As to their not being chattels but hereditaments and inci- dent to the park and so not distrainable, several cases were cited : Oo. Lit., 47 b. and 7 Co. 17 b, ; where it is said that if the owner of a park die the deer shall go to his heir and not to his executors; and the statute of Marlbridge (52 Hen. Ill, c. 22), where it is said that no one shall distrain his tenants de libero tenemento suo nee de aliquilms ad liherum tenementum spectantibns. I do admit the rule that heredita- anents or things annexed to the freehold are not d'strainable; and l)0S8ibly in the case of a parlc, properly so called, which must be either by grant or prescription, the deer may in some measure be said to bo incident to the park; but it does not appear that this is such a park, nay it must be taken not to be so. In the declaration it is stiled the close of the plaintiff, called Oaversham Park. In the plea indeed it is stiled a park, (tailed (3aversham Park ; but it is not said that it i« a park either by grant or prescription; and it can not b"> taken f/,. b-u io on these pleadings, but must be taken to be a close whcr J;'er hai'- been kept, and which therefore has obtained the name ofa^'urk, bccaiise the deer, as I mentioned before, are called the deer of John Davies, and because ho is at liberty to sell them, and so to sever them from the park before the expiration of the term. And in Hale's History of the Pleas of the Crown (1 vol. fol. 491), cited for the defendants, it is ex- l)resHly said thnt there maybe « park in reputation, "as if a man inclose a piece of ground and put deer iu it, but that makes it not ^ APPENDIX TO PART THIRD DIVISION I. 129 park, without a prescription time out of mind or the King'.s cluirter." (Vid. Stat., 21 Ed. I, de malefavtoribus in parcis there referred to). Third. As to the third objection that the deer are part of the thing den.lsed, and consequently not diatrainable, the only case which was cited to prove this was the case of tithes, which is nothing to the pur- pose; because where tithes only are let a man can not reserve a rent, it being only a personal contract. Without denying the rule, v hlch I believe is generally true, tlie fact here will not warrant it, for they are not part of the thing demised. They are not mentioned in the descrip- tion of the particulars, and can not be part of the thing demised for ?'ie: reason before given, becauge they may be sold and disposed of by plaintiff before the expiration of the demise. i^'oiu'th. The last argument, drawn ah inusitato, though generally a very good one, does nrt hold in the present case. When the nature of things changes, the rules of law :>mst change too. When it was holden that deer were not distrainable, it vvii" because they were kept princi- pally for pleasure and not ibr profit, and were not sold and turned into money as they are now. But now they are become as much a sort of husbandry as horses, cows, sheei), *>i' ^W •^ther cattle. Whenever they are so and it is universally known, it would be ridiculous to say that when they are kept merely for profit they are not distrainable as other cattle, though it has been holden that tliey were not so when they were kept only for pleasure, The rules concerning personal estates, which were laid down when jiersonal estates were but small in proportion to lands, are quite varied both in courts of law and equity, now that per- sonal estate;^ are so much increased and become so considerable a part of the pr'Mterty of this kingdom, Ther« ;'"; ,. without contradicting the reasons which are laid down concr-r .»g v. Is matter in the ancient books, and without determining any* ij.;: vt'h resi)ect to deer in forests and chases or parks properly so ca.'.eu. fx ! . erning which we do not think it necessary to determine anythino- ; • present, we are all of opinion that we are well warranted by the plea, i' ,,.s to determine that these deer, under the circumstances in which they appear to have been kent at the time when this distress was taken, were properly and legall; distru'ned for the rent thai was in arrear. There must therefore be judgment for the defendants. 14749 9 i ,' lb' I' I 11 130 AEGUMENT OF THE UNITED STATES. II.— The Right of the sd States to Peotect theik Seal- ing lNTiL..^sTS AND Industry. The principal question which the United States Government con- ceives to be presented for the decision of this High Tribunal, is thus stated in the Case of the United States (p. 299) : Whether individuals, not subjects of the United States, have a right as against that Government and to which it must submit^ to engage in the devastation complained of, which it forbids to its own citizens, and which must result in the speedy destruction of the entire property, in- dustry, and interests involved in the preservation of the seal herd. In reply on its part to this question, three propositions of law are set forth by the United States Government in its Case (p. 300) : First. That in view of the facts and circumstances established by the evidence, it has such a property in the Alaskan seal herd, as the natural product of its soil, made chiefly available by its protection and expenditure, highly valuable to its people, and a considerable source of public revenue, as entitles it to preserve the herd from destruction in the manner complained of, by an employment of such reasonable force as may be necessary. Second. That, irrespective of the distinct right of pro|)crty in the seal herd, the United States Government has for itself and for its people, an itterest, an industry, and a commerce derived from the legit- imate and propel use of the produce of the seal herd on its territory, which it is entitled, upon all principles api)licable to the case, to pro- tect against wanton destruction by individuals, for the sake of the small and casual profits in that way to be gained ; and that no part of the high sea is or ought to be open to individuals, for the purpose of accomplishing the destruction of national interests of such a character and importance. Third. That the United States, possessing as they alone possess, the power of i)reserving Jind cherishing this valuable interest, are in a most Just sense the trustee thereof for the benefit of mankind, and should be permitted to discharge their trust without hindrance. EIGHT TO PROTECT INTERESTS AND INDUSTRY. 131 In the division of the argument tLat Las been made between counsel for convenience' sake, the first and third of these propositions, which are naturally connected, have been exhaustively discussed by Mr. Carter. Before proceeding to that consideration of the second proposition which is the principal purpose of this arj^ument, the undersigned de- sires to add in respect to the first, some brief suggestions, which are perhaps only a restatement in a different form, of what has been already advanced. Whatever else is in dispute, certain facts in relation to the seal herd, its qualities, and its necessities, are not denied. The seal is an amphibious animal, polygamous, altogether sm» generiSy and very peculiar in its habits. A fixed home upon laud during several months ic the year is necessary to its reproduction, and to the perpet- uation of its species. It has established this home, from the earliest known period of its existence, on the Pribilof Ishinds, to which it returns annually with an unfailing animus revertendi and an irresistible in- stinct, and where it remains during several months, and until the young which are born there have acquired sufficient growth and strength to depart on their periodic and regular migration. While on land it submits readily to the control of man, and indeed commits itself to his protection. And it is testified by credible wit- nesses that every seal in the herd, were it desired, could be branded with the mark of the United States. The Government has fostered and protected the seals, as did the Russian Government, its predecessor in the ownership of tlv. 'i islands, by careful legislation and by constant and salutary executive control, and has established out of the seal products an important and valuable industry. Without this protection the animal would long since have been exterminated, as it has been almost everywhere else. When the female seals arrive on tie islands, they rre pregnant with the young which were begotten there during the previous season. After the young are born, the mothers, while suckling them, are accustomed almost daily, and from necessity, to run out to sea beyond the limits of the territorial waters in pursuit of food, leaving the young on the islands during their absence. Upon these facts alone, it is insisted by theUnited States Government, that it has such a property in the seal herd, the produce of its territory and appurtenant thereto, as entitles that Government to protect it fiomextermiuatioi. or other unauthorized and iiyurious interference. '"'I 132 ARGUMENT OF THE UNITED STATES. r ■ ^ Mil m The complete right of property in the Government while the animals are upon the shore or within the cannon-shot range which marks the limit of territorial waters can not be denied. The only question is whether it has such a right outside of that line, while the seals are on their way to the islands in the regular progress of their migration at the season of reproduction, or when, while remaining on the islands, the females are passing to and fro in the open sea in quest of the food necessary to sustain the young left there, and which would perish if their mothers were destroyed. The clear statement of this question and of the facts upon which it depends, would seem to render its answer obvious. (1) Even upon the ordinary principles of municipal law as adminis- tered in courts of justice, such a property would exist under the cir- cumstances stated. It is a general rule, long settled in the common law of England and America, thatwhere useful animals, naturally, wild have become by their own act, or by the act of those who have sub- jected them to control, established in a home upon the land of such per- sons, to which the animals have an animum revertendi or fixed habit of return, and do therefore regularly return, where they are nurtured, pro- tected, and made valuable by industry and expenditure, a title arises in the proprietors of the land, which enables them to prevent the de- struction of the animals while temporarily absent from the territory where they belong; a title, however, which would be lost should they abandon permanently their habit of return, and regain their former wild state It u under this rule, the justice of which is apparent, that property is admitted in bees, in swans and wild geese, in pigeons, in deer, and in many other animals originally /erce natiirce, hut yet capable of being partially subjected to the control of man, as is fully shown by the numerous authorities cited in and appended to Mr. Carter's argument; and that point need not be further elaborated.^ The case of the seals is much !i»tronger, in consequence of tlieir peculiar nature and habits of life. Tlieir home on American soil is not only of their own selection, but is a permanent home, necessary to their existence, and in respect to which they never lose the animum revertendi. Dpon the evidence i n ' See aleo the cixaea of Hanuam v. Mockett, 2 Barnowall v. Cresswell's, Rep., p. 943; Keeble v, Hicherinsill, Holt's Rep., p. 17, and Carrington r. Taylor, I East's Rop., p. 571, and Reporter's note, from wliich ostractd are givuu in appoadix to this portion of the arguiueut, p. 180. RIGHT TO PROTECT INTERESTS AND INDUSTRY. 133 this case it is gravely to be doubted, whether if the United States Gov- ernment should now repel tliem from the Pribylof Islands, and prevent henceforth thcii- landing there as they are accustomed to do, there is any other land in those seas, affording the requisite qualities of soil, climate, atmosphere, approach, propinquity to the water, food, and freedom from disturbance, on which they would be able to reestablish themselves, so as to continue their existence. Especially does the rule of law above stated apply to animals, which in their temporary departure from their accustomed home, enter upon no other jurisdiction, and derive neither sustenance nor protection from any other proprietor, but only pass through the waters of the common highway of nations, where all rights are relative. • (2) But upon the broader principles of international law apiilica- ble to the case, the right of property in these seals in the United States Government becomes still clearer. Where animals of any sort, wild in their original nature, are attached and become appur- tenant to a maritime territory, are not inexhaustible in their pro- duct, are made the basis of an iniportant industry on such territory, and would be exterminated if thrown open to the general and unre- stricted pursuit of mankind, they become the just property of the nation to which they are so attached, and from which they derive the protection without which they would cease to exist, even though in the habits or necessities of their life some of them pass from time to time into the adjacent sea, beyond those limits which by common con- sent and for the purposes of defense, are regarded as constituting a part of the national territory. In such a case as this, the herd and the industry arising out of it become indivisible, and constitute but one proprietorship. While the United States Government asserts and stands upon the full claim of property in the seals which we have attempted to establish, it is still to bo borne in mind that a more qualitied right would yet be sufllcient for the actual requirements of the present case. The ques- tion here is not what is the right of ownership in an individual seal, should it wander in some other period into some other and far distant sea; that is an inquiry not essential to be gone into; but what is the right of property in the herd as a whole, i i the seas, and under tlie circumstances, in which it is thus availed of by the United States Government as the foundation of an important national concern, and in ,f ^f r r 134 ARGUMENT OF THE UNITED STATES. wbicli it is assailed by the Canadians in the manner complained of! When this point is determined, all the dispute that has arisen in this case is disposed of. The principle of law last stated is not only asserted, without con- tradiction, by the autlioritative writers upon international jurispru- dence, but has been acted upon, with the assent of all nations, in every case that has arisen in civilized times, within the conditions above stated. And upon that tenure is held and controlled to-day, by nations whose borders are upon the sea, all similar property, of many descrip- tions, that under like circumstances is known to exist. 'Says Puffendorf (Law of Nature and Nations, book 4, chap. 6, sec. 7) : As for fishing, though it hath much more abundant subject in the sea than in lakes or rivers, yet 'tis manifest that it may in part be ex- hausted, and that if all nations should desire such right and liberty near the coast of any particular country, that country must be very much prejudiced in this respect; especially since 'tis very usual that some particular kind of fish, or perhaps some more i»reciou8 commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the borderers should not rather challenge to themselves this happiness of a wealthy shore or sea than those who are seated at a distance from it. Says Vattel (Book 1, chap. 23, sec. 287, p. 326): The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, etc. ; now in all these respects its use is not inexhaustible. Wherefore, the nation to whom the coasts belong may appropriate to tbemselvci., and couv'ert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possess themselves of the dominion of the land they inhabit. Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become property? And though, where the catch- ing of fish is the only object, the fishery appears less liable to be exhausted, yet if a nation have on their coasts a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive, in case there be a sufficient abundance of fish to furnish the neighboring nations! • * • {Sec, 288.) A nation may appropriate to herself those things of which the free and common use would be prej- udicial or dangerous to her. This is a second reason for which govern- ments extend their dominion over the sea along their coasts, as far as they are able to protect their right. Another suggestion is pertinent to the question. The whole herd owes its existence, not merely to the care and protec- tion, but to the forbearance of the United States Government within its RIGHT TO PROTECT INTERESTS AND INDUSTRY. 135 exclusive jurisdiction. While the seals are upon United States terri- tory during the season of reproduction and nurture, that Government might easily destroy the herd by killing them all, at a considerable immediate profit. From such a slaughter it is not bound to refrain, if the only object is to preserve the animals long enough to enable them to be exterminated by foreigners at sea. If that is to be the result, it would be for the interest of the Government and plainly within its right and powers, to avail itself at once of such present value as its property possesses, if the future product of it can not be preserved. Can there be more conclusive proof than this of such lawful posses- sion and control as constitutes property, and alone produces and con- tinues the existence of the subject of itt The justice and propriety of these propositions, their necessity to the general interests of mankind, and the foundation ui)on which they rest in the original p.inciples from which rights of ownership are derived, have been clearly and forcibly pointed out by Mr. Carter. In a later part of this argument (pp. 164-169) many instances, past and present, in respect to nmny descriptions of marine and submarine prop- erty, from many nations, and from Great Britain and its colonies espe- cially, are gathered together to show what the usage of mankind on this subject has been and is. It is that general usage which constitutes the law of this case. And on this point, if it can be shown that any different usage has ever prevailed in the case of any nation able to assert its inde- pendence, touching any similar property on which it set value, let such evidence be produced by those who are able to And it, and whose claims it will subserve. If in this instance the United States Govern- ment has no right of property which it is entitled to protect, the case would present the singular anomaly of being the only one in which that right has not been maintained, in respect to any valuable marine product similarly situated, or appurtenant in like manner to the terri- tory of a maritime country. It is against this view of the case, too obvious to escape the attention of the distinguished counsel for Her M.ajesty's Government, that they have chiefly sti'Uggled throughout the British Counter Case, for which they have thought it right to reserve their contentions, both in propo- sitions and evidence, in respect to the principal questicms involved. But they have struggled in vain. The broad facts upon which it rests are either admitted or are incontestable. No mere attempt to dispar- age or diminish them, no cavil over details, no conjectural suggestions ^: 5 ^' i\ 1'' >i r 136 a ARGUMENT OF THE UNITED STATES. nTiaustaincd by proof, can break their force or change their effect. And the legal (soncluaions to which they conduct, can not be regarded at this day as open to serious question. The case of the United States has thus far proceeded upon the ground of a national property in the seal herd itself. Let it now be assumed, for the purposes of the argument, that no such right of property is to be admitted, and that the seals are to be regarded, outside of ter- ritorial waters, asferce naturce in the full sense of that term. Let them be likened, if that be possible, to the fish whose birthplace and home are in the open sea, and which mly approach the shores for the purpose of food at certain ecasons, in such numbers as to render the fishing there productive. The question then remains, whether upon that hypothesis, the indus- try established and maintained by the United States Government on the Pribilof Islands, in the taking of the seals and the commerce that is based upon it, are open to be destroyed at the pleasure of citizens of Canada, by a method of pursuit outside the ordinary line of territorial jurisdiction, which must result in the extermination of the anjaals. Is there, even in that view of the case, any principle of international law which deprives the United States Government of the right to de- fend itself against this destruction of its unquestioned interests, planted and established on its own territory? In other words, is the fight of individual citizens of another country to the temporary profit to be derived out of such extermination, superior on the high sea to that of the United States Government to protect itself against the conse- quences. This, if the strict right of property can be successfully denied, is the precise question addressed to the consideration of the Tribunal. Ab- stract speculations can only be useful, so far as they tend to conduct to a just determination of it. Before proceeding to a discussion of this question, the material facts and conditions upon which it arises should be clearly perceived and understood. For it is upon these and not upon theoretical considera- tions that the argument reposes. (1) It is to be observed in the first place, that the interest in the business which it "s sought to protect, is an important interest and resource of the Government itself. The seal industry on these islands was one of the principal induce- ments to the purchase of Alaska by the United States from the lius- RIGHT TO PROTECT INTERESTS AND INDUSTRY. 137 siiiu Government, for a large sum of money. The care and pursnit of the seals were immediately made the subject of legislation by Congress, under which the whole business has been since regulated, protected, and carried on by the Government, as it had been before by Russia, in such manner as to preserve the existence and to increase the numbers of the seal herd, and to make its product valuable to those engaged in it, and a source of a considerable public, revenue to the Government. (See U. S. lie vised Statutes, sees. 195G-1975.) It pays to the Government, as the evidence shows, a direct revenue of about $10 per skin, and a considerable indirect revenue upon the im- ])ortation of the dressed furs; and to the company, which under lease from the Government and subject to its regulations carries on the business, it affords a large annual return, which enables them to make their payments to the Government. To the inhabitants of the islands and many others directly employed or indirectly concerned, it gives the means of subsistence. Nor are the United States alone the recipients of the profits, or in- terested to preserve this industry. The principal manufacture of mer- chantable furs from the raw skins is carried on in London, where large houses are engaged in it, employing as the proof shows, between 2,000 and 3,000 persons. London is also the headquarters of the trade in the product, and of the commerce through which it is distributed. It is probable that the interest of Great Britain in the preservation of the seal herd is almost as great as that of the United States. The civilized world outside of these two countries is likewise con- cerned in preserving from extinction the valuable product of these islands. It enters largely into human use; there is no substitute for it, especially in view of the great decrease of fur-bearing animals; and nowhere else on the globe is the seal fur produced in any considerable quantities. Almost everywhere this valuable animal has been exter- minated, by the same reckless and wasteful pursuit that is complained of here. ' It is pertinent to remember, in this connection, that if the nation that is contending for the preservation of this product of its territory was but small and poor, and this resource for revenue and subsistence, instead of being one out of many, were the only one it possessed, so that its very existence depended upon the maintenance of it, the principles of international law applicable to the subject would be precisely the same as they are now. The case would be relatively of greater im- ,'!i I '. V'-i V •■ 'I J I 4 '• .!, 1 " i{, I ! 138 ^ ARGUMENT OP THE UNITED STATES. portance to one of the parties; the law that would control it would be the law that coiitrols this case; for a nation has the same right to defend one niat<»-rial interest, or one class of citizens, tliat it has to de- fend all it possesses, and all the conditions of its existence. (2) The pursuit of the seals in the open sea, at the times and in the nninner complained of, leads to the early extermination of the whole herd. It is not necessary to the argument that this extreme result should be made out. It would be enough to show that the interest in question is seriously embarrassed and prejudiced, or its i)roduct materially re- duced, even though it were not altogether destroyed. But the evidence in the case, of which a large amount has been submitted, completely establishes the fact that the herd has by these means been already largely diminished, and that it must necessarily, if the same conduct is continued, be at no distant day entirely annihilated. (3) The method of pursuit employed by the Canadian vessels, and against which the United States Government protests, not only tends to the rapid extermination of the seal, but is in itself barbarous, inhuman, and wasteful. A very large proportion of the seals taken are females, either preg- nant and about to give birth to their young, or engaged in sue). ling their offspring, which, by the killing of the mothers, are left to perish in great numbers by starvation. Some are in both these conditions at the same time. And of those thus destroyed in the Avater, r considerable share certainly, and probably a very large share, are lost to the hi liter. The killing of female seals at any time is made criminal by the stat- utes of the United States. (U. S. Revised Statutes, sec. 19G1). The destruction during the breeding season of wild animals of any kind which are in any respect useful to man, is prohibited, not only by all the instincts of humanity, but by the lavfs of evei'y civilized coun- try, and especially by the laws cf the United States and of Great Brit- ain. That protection, as will be more fully pointed out hereafter, has long been and now is extended to the seals in every country in the world where they are to be found. In no part of the world that is within territorial jurisdiction could such conduct take j)lace, without exposing the perpetrator to criminal prosecution (see Case of the United States, pp. 220-229). So that in order to justify it in this case, the sea must be held to be free for acts which are not only destructive of the Valuable interests of an adjacent nation, but are forbidden everywhere else by universal law. BIGHT TO PROTECT INTERESTS AND INIU'STRY. 130 (4) The depredations in question, dignified in tlie Keport of tlio British Commissioners by the name of an "industry," are the work of individuals who fit out vessels for this purpose. Their number, though increasing, is not great. The business is speculative, and as a whole not remunerative, though it has instances of largo gains which stimu- late the enterprise of those concierned, and make the prospect attract- ive, like all occui)ation8 which have a touch of adventure, an ele- ment of gambling, and a taste of cruelty. It is this casual and uncertain proflt, of these comi.aratively few in- dividuals, which must of course terminate when the seal herd is de- stroyed or even much reduced, that is to be balanced a rains fc the loss that will be sustained by the United States, if that desLruction is com- pleted. (5) Against this injury, which the United States Government has made the subject of vain remonstrance, there are absolutely no means of defense that can be matle available within the limits of territorial jurisdiction. The destruction is wrought outside those limits, and must be repressed there or it can not be repressed at all. As it is impossible, when seals are hunted in the water, that the sex can ever be discriminated before the killing takes place, it follows that if what is called "pelagic sealing" is allowed to be carried on, the enormous proportion of pregnant and suckling females and of nursing young before referred to, must continue to be destroyed. That method of pursuit conduces also unavoidably to injurious raids by those concerned in it, upon the seals on the islanus. The extent of the shores and the peculiarity of the climate and atmosphere, as des- cribed in the evidence, make it extremely difficult and at times impos sible to maintain such vigilance as will prevent these incursions, if seal- hunting in the neighboring waters is permitted. The result of these raids is suggested in the British Counter Case as one of the means by which the gradual extermination of the seals, too obvious to be de- nied, is taking place. How much the suggestion is worth, will be seen when the whole evidence is reviewed. But the counsel seem to forget, in making it, that it is only the toleration of foreign sealing vessels in waters near the islands, that renders such raids possible. The inevitable conclusion from these facts is, that there is an absolute necessity for the repression of killing seals in the water in the seas near the Pribilof Islands, if the herd is to be preserved from extinction. No middle course is practicable consistently with its preservation. 140 ARGUMENT OP THE UNITED STATES. The evidence iulduced on the part of the United States in support of the foregoing pro])osition8 of fact, and that relied upon to the contrary, 80 far as we have had an opportunity to see it, is fully discussed in a later branch ot the argument (infra, pp. 228-313). The ground upon whicli the destruction of the seal is sought to be instilled, is that the open sea is free ; and that since this slaughter takes jdace there, it is done in the exercise of an indefeasible right in the individuals engaged in it; that the nation injured can not defend itself on the sea, and therefoT-'», upon the circumstances of this case can not defend itself at all, let the consequences be what they may. The United States Government denies this proposition. While con- ceding and interested to maintain the general rule of the freexlom of the sea, as established by modern usage and consensus of opinion, it asserts that the sea is free only for innocent and inoffensive use, not injurious to the just interests of any nation which borders upon it; that to the invasion of such interests, for the purposes of private gain, it is not free; that the right of self-defense on the part of a nation is a perfect and paramount right, to which all others are subordinate, and which upon no admitted theory of international law has ever been surrendered; that it extends to all the material interests of a nation important to be defended; that in the time, the place, the manner, anr. the extent of its execution, it is limited only by the actujil necessity of the particular case; that it may, therefore, be exercised upon the high sea, as well as upon the land, and even upon the territory of other and friendly nations, provided only that the necessity for it ])laiuly ap- pears; and that wherever an important and just jh^tional interest of any description is put in peril for the sake of individaal profit by an act upon the high sea, Q'^en though such act would b*: otherwise justi- fiable, the right of the individual must give Avay, and the nation will be entitled to protect itself against the injury, by whatever force may be reasonably necessary, according to the usages established in aual- agous cases. It is believed that these general principles will be found to underlie the whole theory and system of the law of the sea, so far as it has been formulated by the consent and usage of mankind; that they are the foundation of many maritime rights, long recognized and established; that they have received the sanction of courts of justice whenever they have been brought under judicial consideration, and of all writers upon the subject whoso views are entitled to weight; that they are 8ui)portecl EIGHT TO PROTECT I^JTERESTS AND INDUSTRY. 141 by many historic precedents, the rightfulness of which lias never been called in question; and that no precedent or authority can be pro- duced, judicial, juridical, or historical, for sucli a riglit iu the open sea as is claimed by the Canadians in the present case. That the sea was at an early day regarded as subject to no law is probably true. It was the theatre of lawless violence and the home of piracy. But this condition wiis soon found intolerable. The assump- tion of a dominion over it by adjacent maritime nations became a neces- sity to self-i)rotectioii, and was therefore generally assented to. Tlie mare liberum in all such waters gave way to mare dausnm^ not ujum principle, but for the sake of defense. Says Sir Ueury Maine (Lectures upon International Law, pp. 75-77): The first branch of our inquiry brings us to what, at the birth of in- ternational law, was one of the most bitterly dispute wliich it is surrounded. • * • Each state may on this head make what regulation it pleases so far as respects the trans- actions of the citizens with ea(rh other, or their concerns with the sov- ereign; but, between nation and nation, all that can reasonably be said is that in general the dominion of the state over the neighboring seas extends as far as her safety renders it necessary, and her power is able to assert it. Chancellor Kent observes (1 Com., p. 29): It is difficult to draw any precise or determinate conclusion amidst the variety of opinions as to the distance to which a state may law- fully extend its exclusive dominion over the sea adjoining its territories and beyond those portions of the sea which are embraced by harbors, gulfs, bays, and estuaries, and over which its jurisdiction unquestion- ably extends. All that can reasonably be asserted is, that the domin- ion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety and lor some lawful end. And states may exercise a more qualified jurisdiction over the seas near their coast for more than the three (or five) mile limit for fiscal and defensive purposes. Both Clreat Britain and the United States have prohibited the transshipment within four leagues of their coast of for- eign goods without payment of duties.^ (Kent Com. I, p. 31.) In the case of Church v. Hubbart (2 Cranch, Kep. 287), the Supreme Court of the United States unanimously held that "the right of a nation to seize vessels attempting an illicit ti'ade is notconfined to their harbors or to the range of their batteries." It appeared in that case that Portugal had prohibited trade with its colonies by foreigners. A ' Mr. Twiss says (vol. I, pp. 241, 242, Int. Law) : " Further, if the free and common use of a thing which is incapable of being appropriated were likely to be prejudicial or dangerous to a nation, the care of its own safety would authorize it to reduce that tLl.ig uuclcr its exclusive empire if possible, in order to restrict the use of it on thepart of others, by such precautions as prudence might dictate." Wildman, on the sauie point, says (Int. Law, vol. i, p. 70): "The sea within gun- shot of the shore is occupied by the occupation of the coast. Beyond this limit mar- itime states have claimed a right of visitation and inquiry within those parts of the ocean adjoining to their shores, which the common courtesy of nations had for their common convenience allowed to bo considered as parts of their dominions for vari- ous domestic purposes, arii particularly for fiscal and defensive regulations more im- mediately affecting thei ; safety and welfare." Creasy (Int. Law, sec. 245) remarks: "States may exercise a qualified jurisdic- tion over the seas near their coasts for more than the three (or five) miles limit, for fiscal and defensive purposes, that is, for the purpose of enforcement of their revenue laws, and in order to prevent foreign armed vessels from hovering on thiif coasts in a menacing and annoying manner." And Halleck says (Int. Law, chap. 6, sec. 13) the three-mile belt is the subject of territorial jurisdiction. "Even beyond this limit states may exercise a qualiiied Juiisdistion for fiscal and defensive purposes." foreigi the hi And it liver in the dif and its Lord Kehn, opinion HitlK in this 1 rights a lishery ] In the t mile dis right of its terril Jaws, 1 case of ( The o] Cockb'ir a umnici] tlie legis] tion in tion else^ iiecessarj wlierever way, thej defensive them, prt and thatl pp. 169-l| Such ward OasI referred 'For fun] • After q J proceeds td lor the violl to the oustJ poses penal wjiich are ;if to all the dJ RIGHT TO PROTECT INTERESTS AND INDUSTRY. 149 ncl its emay traus- e sov- e said g seas Ls able foreign vessel found to liave been intending sncli trade was seized on tlie bigh seas, carried into a Portuguese port, and there condemned. And it was beld tbat tbe seizure was legal, Chief Justice Marshall de- livering the opinion of the court. He points out with great clearness the did erence between the right of a nation to exercise jurisdiction, and its right of self defense.* Lord Chief Justice Cockburn, in his opinion in the case of Qneen v. Kehn, supra, cites this decision with approval, and quotes from the opinion. He says (2 Law Eep., 214): Hitlierto legislation, so far as relates to foreigners in foreign ships in this part of the sea, has been confined to the maintenance of neutral rights and obligations, the prevention of breaches of the revenue and lisliery laws, and, under particular circumstances, to cases of collision. In the two first, the legislation is altogether irrespective of the three- mile distance," being founded on a totally difl:erent principle, viz, the right of the state to take all necessary measures for the pi'otection of its territory and rights, and the prevention of any breach of its revenue laws. This principle was well explained by Marshall, C. J., in the case of Church v. Hubbart.'* The opinion of Chief Justice Marshall and the language of Lord Cockb'irn, above cited, very clearly illustrate the distinction between a nmnicipal statute and adefensiveregulation. The one emanates from the legislative power, and has effect only within the territorial jurisdic- tion in which it is enacted, and upon those subject to that jurisdic- tion elsewhere. The other is the exertion of executive authority when ne(!essary for the protection of the national interest, and may take place wherever that necessity exists. Statutes intended for such protection may, thereft)re, have eifect as statutes within the jurisdiction, and as defensive regulations without it, if the Government choose so to enforce tiiem, provided only that such enforcement is necessary for just defense, and that the regulations are reasonable for that purpose. {Supra.f pp. 169-171). Such was the view of the United States Supreioe Court in the Say- ward Case, in respect to the operation of the acts of Congress before referred to, for the protection of the seal in Bering Sea. In that case 'For full quotiitious from this opinion, see Appendix to this argument, infra, p. 181. - After qnotiug at large from Chief Justice Marshall's opinion, Lord Cockburn proceeds to say; "To this class of enactments belong the acts imposing penalties lor the A'iolation of neutrality and tlio so-called * hovering acts ' and acts relating to the customs. Thus, the foreign enlistniont act (33 aud 34 Vic. C. 90) which im- poses penalties for various acts done in violation of neutral obligations, some of viiich are applicable to foreigners as well as to British subjects, is extended in S. 2 to all the domiuioua of Her Majesty, 'including the a^jacoat territorial waters.'" 160 ARGUMENT OF THE UNITED STATES. i \ n a Canadian vessel liad been captnred on the high sea by a United States cruiser, and condemned by decree of the United States District court, for violation of the regulations prescribed in those acta; and it was claimed by the owners that the capture was unjustifiable, as being an attempt to give eftect to a municipal statute outside the municipal jurisdiction. The case was dismissed because it was not properly before the court. But in the opinion it if* intimated that it' it had been necessary to decide the question the capture would Iiave been regarded as an executive act in defense of national interests, and not as the enforcement of a statute beyond the limits of its effect. (Case of the Sayicard, U. S. Sup. Ct. Kep., Book 30, U. S. Led., p. 179. As such defensive regulations, if the United States Government thinks proper so to enforce them beyond the territorial line, the pro- visions of those acts of Congress fulfill the canditions of being both necessary and reasonable. They interfere in no respect with the free- dom of the sea, except for the protection of the seal. And for the^iur- poses of that protection they are not only such as the Government prescribes as against its own subjects, but are clearly shown by the evidence to be necessary to be so enforced, in order to prevent the ex- termination of the seals and its consequences to the United States. The decision in Church v. Hubbart is cited as stating the law, by Chancellor Kent (1 Com., 31) ; and also by Mr. Wharton (Dig. Int. Law, p. 113) and by Wlieaton (Int. Law, 6th ed., p. 235). It was followed in the same court by the case of Hudson v. Guestier (6 Cranch Kep., 281). in which it was held that the jurisdiction of the French court as to seizures is not confined to seizures made within two leagues of the coast. And that a seizure beyond the limits of the territorial juris- diction for breach of a municii)al regulation is warranted by the law of nations. This decision overruled a previous case (Eose v. Dimely, 4 Cranch Eep., 287) made, though upon very different facts, by a divided court. The dissenting opinion of Johnson, J., in that case, which by the sub sequent decision became the law, is worthy of perusal.* Mr. Dana, who published an edition of Wheaton, with notes which 80 far as they were his own did not add to its value, is of opinion that in the decision in Clmrch v. Hubbart, Chief Justice Marshall and his eminent associates were mistaken. And this remark of his is cited in the British Case. Mr. Dana has no such repute as makes him an ' For opinion see Appendix, infra p. 182. Judge rci'erret Mr. Dai there d( diction tier, in coiicun The Court), Story, 'In th( Court Re "Withoi Ovor thc! •it'jurisd tioHs exp "Such tlie rcgiil "Tlio^ RiaUT TO PROTECT INTKHESTS AND iNDUSTllY. 151 authority, especially when he undertakes to overrule the greatest of American judges, and the repeated decisions of the Supreme Court of the United States. No other writer or judge, so far as we are aware, has ever shared his opinion. And, as has been seen, the decision of Chief Juistice Marshall has received the approval of very great lawyers. In the comments in his note upon these cases, Mr. Dana docs not correctly state them. The decision in Church v. Iliibbart was upon tlie unanimous opinion of the court, and has never been questioned except by him. The subsequent case of Rose v. Himely decided that the seizure of a vessel without the territorial domain of the sovereign under cover of whose authority it is made will not give jurisdiction to condemn the vessel, if it is never brought within the dominions of that sovereign. It would seem from some of the language of Chief Justice Marshall, that he may have been of opinion that the seizure itself was unwarranted, irrespective of the fact that tlie vessel never was brought in, though this is by no means clear. Judges Livingston, Gushing, and Chase concurred in the decision, on the sole ground that tlie captured ship was not brought into a port of the country to which the capturing vessel belonged; and declined to express an opinion as to the validity of the seizure upon the high sea, for breach of a munici- pal regulation, provided the vessel had been so brought in. While Judge Johnson dissented altogether, holding in the opinion above referred to, that the seizure was valid, although never brought in. Mr. Dana mistakes the case of Rose v. E jly in saying that it was there decided that a seizure of a vessel ov . de of the territorial juris- diction is unwarranted. And he mistakes the case of Hudson v. Gues- tier, in which the contrary is distinctly held. Chief Justice Marshall concurring. The cases of the Marianna Flora (11 Wheaton Rep. U. S. Sup. Court), above cited, in which the opinion was delivered by Mr. Justice Story, and the case of the Schooner Betsey (Mason's Rep. 354), a de- cision of Judge Story, were to the same eftect.* 'In the recent case (1890) of Manchester v. Massachusetts (139 U. S. Supremo Court Rep., 240), the law on this subject was thus stated by Mr. Choatc, of counsel: "Without these limits were the 'high seas,' the common property of all nations. Over these England, as one of tlie common sovereigns of the ocean, had certain rights of jurisdiction and dominion derived from and sanctioned by the agreement of na- tions expressed or implied. "Such jurisdiction and dominion she had for all purposes of self-defense, and for the regulation of coast fisheries. " The exorcise of such rights over adjacent waters would not necessarily be limited ^■. !'» 152 ARGUMENT OF THE UNITED STATES. Tlie OontinentaJ publicists are in full coucurrouce on this point with English and American authorities.' In respect to the exercise of the right of self-defense, not merely upon the high seas but in the territory or territorial waters of a foreign and friendly state, authority is equally strong. Says Mr. Wharton (1 Dig. of Int. Law., p. 50) : Intrusion on the territory or territorial waters of a foreign state is excusable wht'-n necessary for self -protection in matters of vital impor- tance, and wlien no other mode of relief is attainable. And (pp. 221, 222): When there is no other way of warding olT a perilous attack u])on a country, the sovereign of such country can intervene by force in the territory from which the attack is threatened, in order to prevent such attack. A belligerent may, under extreme necessity, enter neutral territory and do what is actually necessary for protection. And he cites the case of Amelia Island, in respect to which he SP.ys: Amelia Islaiul, at the mouth of St. Mary's River, and at that time in Spanish territory, was seizetl in 1817 by a band of buccaneers, under the direction of an adventurer named McGregor, who, in the name of the insurgent colonies of Buenos-Ayres and Venezuela, preyed indis- criminately on the commerce of Spain and of the United Stf^tes. The Spanish Government not being able or willing to drive them olf, and the nuisance being one which required immediate action. President 1; I : , J, I ^l- ^ i '!, to a 3-mile belt, but wonld undoubtedly be sanotioued as far as reasonaltly nec- essary to secure tlie privotinal benolits of tlieir posseawion. If self-di^ieuse or regula- tion of fisheries should rtasouably require ivssumption of coutrol to a greater distance than 3 miles, it would undoubtedly be acquiesced in by other n.'itious. "The marine leayue distance has acquired prominence merely because of its adop- tion as a boundary in certain agreements and treaties, and from its frequent mention in text-books, but has never been established in law as a fixed boundary. "These rights belonged to England as a member of the family of nations, and did not constitute her the possessor of a proprietary title in any part of the high seas nor add any portion of these waters to her realm. In their nature they were rights of dominion and sovereignty rather than of property." Mr. Justice Blatchford, in delivering the opinion of the court, says: "We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast; that bays wholly within its territory not exceeding two marine leagues in width at the mouth, are within this limit; and that included in this territorial juris- diction is the right of control over fisheries, whether the fish be migratory, free- swimminf fish, or free-moving flsli, or fish attached to or embedded in the soil. The open sea \'ithin this limit is, of course, subject to the common ri^^iit of navigation, and all governments, ior the purpose of eelfprotection in time of war or for the pre- vention of Qrands on its revenue, exercise an authority beyond tliis I'mit." 'For citaiions from Azuni, Plocquo, La Tour, Calvo, Uefl'ter, Bluatschli, and Car- uazza-Amuri, see Appendix, infra pp. 183-186. RIGHT TO PROTECT INTERESTS AND INDUSTRY. 153 Monroe called his Cabinet to;?ether in O.'tobor, l.Si7, and directed that a veasel of war sliould proceed to the island and expel the maranders, destroying their works and vessels. In tlie case of the Caroline, in the year 1838, during the Canadian rebellion, a British armed force pursued that vessel into an American port on Lake Erie, ent her out and destroyed her by lire, killing one or mOiC of lier crew. This otherwise gross violation of the territory of a iriendly nation was justified by the British Government as a necessary measure of self defense, since the Caroline had been engaged in carry- ing supplies to the insurgents. In the correspondence that ensued between the two governments, the British right to intrude as they did upon American territory was conceded by Mr. Webster, the American (Secretary of State, provided the necessities of self-detV'iiso required it, and Ui", only question made was whether the necessity for its exercise actiii ly existed. In the end, that point seems to have been given up, and no reparation or apology was ever made. Though it is certainly dillicult to see how any greater necessity was to be found in that case than may always be said to exist for attacking an enemy's ship, the ease presents a very strong illustration of the application of an un- doubted principle. A very interesting discussion of the question wil be found in the correspondence.' Phillimore says of the Carcline case (vol. I, p. 255, sec. ooxvi) : The act was made the subject of complaint on the ground of viola- tion of territory by the American Government, and vindicated by Great Britain on the ground of self-preservation ; which, if her version of the facts were correct, was a sufficieut answer and a con\plete vindication. Hall (Int. Law, p. 267, par. 34) expresses similar views. In 1815, under orders of Mr. Monroe, measures were taken for the destruction of a fort held by outlaws of all kinds on the Appalachicola lliver, then within Spanish tc^'ritory, from which parties had gone forth to pillage within the United States. The governor of Pensacola had been called upon to repress the evil and punish tlie marauders, but lie refused ; and on his refusal the Spanish territory was entered, and the fort attacked and destroyed, on the ground of necessity. A similar case was that of Grey town. It was a port on the Mosquito coast, in which some United States citizens resided. These citizens, and others interested with them in business, were subjected to gross indignities and injuries by the local authorities, who were British, but ' For correspoiidoiice between Mr. Webster and Lord AsLburton, and remarks of Mr. Calhcun and Loid Campbell, see Appendix, infra, p. 186. ■'^'\' H <'1, \\}m ti ,!i 164 AUGUMBNT OP THE UNITED STATES. who professed to act from the iiuthority of the kin;j^ or chief of the Mosquito Islauds. The parties then appealed to the commander of the United States sloop of war Cyane, then lying near the port, for pro- tection. To i)unish the authorities for their action he bombarded the town. For this act he \vas denounced by the Britisli residents, who claimed that the British Government had a j^rotectorate over that region. His action was sustained by the Government of the United States, the ground being the necessity of punishing in this way the wrong to citizens of the United States, and preventing its continuance. (1 Wharton's Dig., p. 229.) When the sovereign of a territory permits it to be made the base of hostilities by outlaws and savages against a country Avith wliich such sovereign is at peace, the government of the latter country is entitled, as a matter of necessity, to pursue the assailants wherever they may be, and to take such measures as are necessary to put an euil to their aggressions. {lb., p. 220.) An incursion into the territory of Mexico for the purpose of dispers- ing a band of Indian marauders is, if ueceasarj. not a viulation of the law of nations. {lb., p. 233.) ' In all these cases the discussion proceeded uiwi the question of the existence of the particular necessity. The right to enter upon neutral territory, if necessity really required it, was not controverted by aaiy of the governments concerned. A still more striking illustration of the-exarcise of the national right of self-defense upon the higli seas, at the (^xpense of innoiteiit commerce, and to the entire subordination of i)rivar'i rights, which, except for the consequences to national iuterests, would have beeu unquestionable, is found in the British Orders in Council in tiie year 1809, prohibiting neutral commerce of every kind with ports wliich the Empertw of France had declared to be closed against British trade. The efl'ect of ' "Temporary inviision of tlio torrirnry of an JKljoinins country, whou necessary to prevent mid check crime, ' rests npon principit^s <>i t li ■ law of nations entirely dis- tinct from tliose on 'wliich war is juBtitied — npiiu tlif immutiiblc principles of solf- defense — up(m the priucii)lcs vrliicb .infltify decisive measures of priMtautions to pre- vent irreparable evil to our own or to a neighborinjj peoplo,'" (Sir. Forsyth, 8ec. of State, 1 Wharton, p. 230.) "The first duty of a govevnineut iK to protect life and proptTTy. This is a para- mount obligation. For this governments are instituted, and jr-n'crnmonts nosloet- ing or faiiiuj; to perform it become worse than I- ■ * * The United States Government can not allow niMraudiiiK bands to ' ■' '' thomselvHN upon its Itorders with liberty to invade and ])lundBr united States territory with impunity, ar-'thon, when pursued, to take refuse acrcM" the Kio riramle nnder the protection of the ])lea of the inte^rrity of the soil of the Aluiicuu Kepuhlic.'' (Mr. Evaris, Sec. of iJtaie, 1 Wharton, p. 232.) RrC^HT TO PROTECT INTEuiiSTS AND INDUSTRY. 155 theKe orderK wuh to jivrest upon the sea the liiwliit tirade of neutrals, not Avitli blockaded ports, nor even belligerent ports nut blockaded, but with neutral ports. Yet the validity of these orders upon the principles of international lavr. severe as tlieir consequences were, was affirmed by the great judicial authority of Lord Stowell, then Sir William Scott, in several cases of capture that, cjuec betbre him in admiralty, upon the ground that they were necessary measures of self-defense to which all ])rivate rights must give way. In the case of the /Success (1 Dodson Eep., j). 133), he said: The blockade thus imposed is certainly of a new and extended kind, but has arisen necessarily out of the extraordinary decree^ issued by the ruler of Trance against the commerce of this country, and subsists, therelore, in the apprehension of the coiut at least, in perfect justice. In the case of the Fox (1 Edwards Adm. llei)., 314), he remarked in reference to che same orders : When the state, in consequence of gross outrages upon the laws of nations committed by it*; ;'«i.v. .sary, Avas compelled by a nei^CNsity which it laments, to resort co measures which it otherwise condemns, it l)ledged itself to the revocation of those measures as soon as the necessity ceases. Again, speaking of those retaliatory measures as necessary for the defense of commerce, he says iu another case : In that character they have been justly, in my apprehension, deemed reconcilable with those rules of natural justice by which the inter- national communication of independent states is usually governed. (The l^nipe, Edw. Adm. liep., 382.) Lord Sto well's judgments in these cases have never been criticised or disapproved by any court of justice, nor by any writer of repute on international law. The necessity relied upon might perhaps be (jues- tioned, but when that is established, it is not to be doubted that it becomes the measure of the right. Another very forcible illustration of the principle contended for, is to be seen in the exclusive right asserted by Great Britain to the fisheries on the Newfoundland and Nova Scotia coasts, not only within what are Great Britain, and mo which the Americans could have no claim. e:v"ept so far as they were (iouferred by treaty. It was contented on the other side, that the Aimerieans, being British subjects up to th« time <»' ihe Eevolutionary W jie. entitled and accustomed as such to (dwre in tliese fisheries, the acqmisition of whi(;h from France had been largely due to their valour auxa exertions, their right to par- ticipate m tfteni was not lost by the Eevolution, nor by the change of goveiaHBHit which it brought about, when (sonsummated by the treaty of ITSuu And that the provisions of tiiat treaty on the subject were to be construed, not as n grant of a now right, but as a recognition of the American title still to participate in a property that before the war was common to both conntxues. Which side >f this contention M'as right, it is quite foreign to the present purpose ^> con.sider. It is enough to 'For full ([UotationH from Mr. Adtuna, sou ATipendix, infra, pp. 187-189. RIGHT TO PUOTECT INTERESTS AND INDUSTRY 157 :;il perceive that it never occurred to the United States Government or its eminent representatives to claim, far less to the British Government to concede, nor to any diplomatist or writer, either in 1783 or 1815, to con- ceive, that these fisheries, extending far beyond and outside of any limit ui territorial jurisdiction over the sea that ever was asserted there or elsewhere, were the getioral property of n\ankind, or that a partici- pation in them was a part of the liberty of the open sea. If that prop- osition could have been maintained, the right of the Americans wouhl have been plain and clear. No treaty stipulations would have been necessary at the end of either war. (See also Wharton's Dig. vol. iii, pp. 39-48.) It will be perceived, also, that in the caye of these fisheries there was no pretense that an exclusion of the world from partici[)ating in them outside the line of the littoral sea was necessary to their i) reservation, or that such participation would tend to their extinction ; though un- questionably it might lead to a diminution of the profits to be derived' from them by the inhabitants of the territory to which they appertained. If the countries now conteiuling were right then in the views enter- tained by both governments and by all wlio were concerned for them, in cabinets, diplomacy, Congress, and Parliament, and in the claims then made, conceded and acted upon ever since, the precedent thus established must be decisive between them in the present case. There can not be one international law for the Atlantic and another for the Pacific. If the seals may be treated, like the fish, as only fcrce naturw, and not property, if tlie mnintenaiico of tJio herd in the Pribilof Islands is only a fisliery, how then can the case be distin- guished from that of the fisheries of Nova Scotia ami Newfoundland? Why would it not be, until conceded away by treaty or tlirown open to the world by consent, a proprietary riglit belonging to the territory to which it appertains, and which the Government has a right to defend t But the case of the seal iiulustry is far stronger than that of the fisheries in favor of such a right. The great facts of the nature of tlie animals, their attachment to the laiul, without which they could not exist, their constant animus revcrtcndi, the protection there, in defanlt of which they wonld x)ei"ish, and the absolute necessity of excluding outside interference with them, in order to prevent their extiiustion, not only greatly strengthen the proprietary title, but annex to it the further and unquestionable riglit of self-defense, iu respect to those I •'r f \ ii mM: 158 ARGUMENT OF THE UKITED STATES. 1 , interests on shore in which the propovty is not denied nor open to ■ dispute. The jurisdiction accorded to nations over the littoral seas is by no means the' only instance in HYuicti rules of international law, now com- pletely established and universally recognized, and under which the freedom of the sea has been largely abri dged, have arisen out of the right and necessity of self-defense, and out of the general principle that to such necessity individual righ ts and the acquisition of private emoluments upon the ocean must give way. Some of these rules relate to the interests of nations when engaged in war, and others, like that which concedes the jurisdiction over terri- torial seas, chietly to the interests of peace. Tlie right of self-defense, as affecting nations, is no greater in war than in peace. Certain necessities are sometimes greater in one state than in the other. But in both the measure of the 7iecessity is the • measure of the right, and the justifiable means of self- protection are such as the case requires. It is the principle that controls the case, not the case that controls the principle. The state of war only exists between the belligerents, and is only material between them and neutrals, so far as it gives rise to a particular necessity on the part of a belligerent, that would not otherwise arise. The international law of piracy is an infringement of the right which even a criminal has, to be tri-^d in the jurisdiction where his crime was committed, aud if upon the high sea, in the jurisdiction to which his vessel behmgs. Such is the rule in respect to every otlier crime known to the law. But if an American in an American ship commits an act ot piracy on tlie high seas on a British vessel, he may, by the rules of international law, be ca))turcd by a French cruiser, taken into a French port, and there tried and executed, if France thinks proper to extend the jurisdiction of her courts to such a case. The reason of this well- settled rule is not found in the character of the crime, which is but rob- bery and murder at worst, but in the necessity of general defense, in which all sea-going nations have a like interest and therefore a like right to intervene, without waiting for the tardy or uncertain action of others. The slave trade is an oflfense for which the sea is not free, though not yet regarded in international law as i)iracy, because there are still countries where slavery is legalized. But there is no question that a nation whoso laws prohibit slavery may capture on the high sea any vessel laden with slaves intended to be landed on her coaat, or any ves- RIGHT TO PROTECT INTERESTS AND INDUSTRY. 159 sel sailing for the purpose of prosecuting the slave trade on her shores. N.jr is there any doubt that so soon as the abolition of slavery becomes universal, international law will sanction dealing with a slaver as with a i)irate, and for the same reason of general self-defense. ISov is the sea free to any vessel whatever, n:>t carrying the flag of some country, and shown by its papers to be entitled to carry that flag; and the armed vessel of any nation may capture a vessel not so pro- tected. Sailing independently of any i)articular nationality is harmless in itself, and may be consistent with entire innocence of conduct. But if allowed, it might offer a convenient shelter for muny wrongs, and it is therefore prohibited by the law of nations. Innocent trade may also be prohibited by any nation between other nations and its colonies, for reasons of policy. iSuch restrictions have been frequent, and their propriety has never been questioned. That a vessel engaged in such prohibited trade may be captured on the high seas and condemned, is shown by the case of Church, v. Hubbart, and other authorities above cited. These are instances of the exercise upon the sea of the general right of self- protection, for the common benefit of nations, irrespective of the particular necessity of any one country. In most cases, restrictions imposed upon the freedom of the sea arise out of some particular national necessity. Thus it is well settled, that any vessel guilty of an infraction of a revenue or other law within the territorial waters of a nation, may be pursued and captured on the high seas; because, otherwise, such laws, devised for the protection of the national interests, might fail of being adequately enforced. Upon this i)rinciple also, was based the British act putting restric- tions upon the passage of a vessel on the high sea, approaching Great Britain from a port where infectious disease was raging. Quarantine and health regulations are usually enforced within the jurisdictional limit, and so confined, are in ordinary cases suflQcient for their purpose. But when in a i^articular case they are iusuliicieut, and the necessity of protecting the country from incursion of dangerous disease requites it, n.) right of freedom of the sea stands in the way of putting proiier ro.-itrictions on the approach of vessels, at any distance from the shore taat may be found requisite. (6 Geo. IV, ch.ap. 78.) The very gcave, and often, to innocent individuals, ruinous restraints upon neutral trade for the interest of beUigerents, the validity of which bus long been established in intern atioual law, atFord a strong example of t!*i^ if 160 ARGUMENT OF THE UNITED STATES. : ; ir I: the application of the same principle. If a port is blockaded, no neutral ship can enter it for any purpose whatever, even for the continuance of a regular and legitimate commerce established before the war began. And such ship is not only prevented from entering the i)ort, on i)ain of capture and confiscation of vessel and cargo, but is liable to be cap- tured anywh-ire upon the high seas and condemned, if it can be shown either that the voyage is intended for a breach of the blockade, or that such breach has actually taken place. And, though such is not the general rule, it is shown by the decision of Lord Stowell, before cited, that if the necessities of a successful i)rosecution of the war require it^ a belligerent may even interdict neutral commerce with ports not block- aded. Admitted by that great jndge that such a measure is unusual, harsh, and distressing, and not to be resorted to without necessity, it is nevertheless held to be justifiable when the necessity does actually arise, though that necessity is only for the more effectual prosecution of a war. The same rule applies to the conveyance by a neutral to a belligerent port, of freight which is contraband of war, though such freight may not be designed to be in aid of the war, but may be only the continu- ance of a just and regular commerce, before established. And a vessel may be captured anywhere on the high seas if found to be engaged in that business. And 80 if a neutral vessel is engaged in the conveyance of belligerent dispatches or of passengers belonging to the military or naval service of a belligerent, though the vessel so employed may be a regular pas- senger ship on its accustomed route as a common carrier. Hostile freight on a neutral ship has long been held liable to capture. If the rule that the flag covers the cargo may now be said to be estab- lished, it is of comparatively recent origin. Upon the same principle has been maintained the right of visitation and search, as against every private vessel on the high seas, by the armed ships of any other nationality. Tliougli this vexatious and injuriotis (slaim has been mucli questioned, it is firmly established in time of war, at least, as against all neutrals. Says Sir William Scott, in the case of Le Louis (2 Dodson, 244) : This right (of search), incommodious as its exercise may occasionally be, * * * has been fully established in tlie legal practice of nations, havinc; for its foundation the necessities of selt-dcfcnsc. • ' Says Mr. Twiss (Rights and Duties of Natidiis iu Tiiuo of War, eil. 1863, p. 176) : "The right of visiting uud Boarohiiig merchant Bhips on tho high Beas, observes RIGHT TO PROTECT INTERESTS AND INDUSTRY. 161 It has been said that the right of search is couflned to a time of war. That assertion proceeds upon the ground that only in time of war can the necessity for it arise. No one has ever chiinied that the right shouUl be denied in time of peace, if an equal necessity for it exists. And when such necessity has been regarded as existing, the right has been asserted. Prior to tlie war of 1812, between the United States and Great Britain, the latter country claimed the right in time of peace to search American ships on the high seas for British subjects serving as seamen. Though the war grew out of this claim, it was not relin- quished by Great Britain when a treaty of peace was made. It has been disused, but never abandoned. The objection to it on the part of tiie United States was the obvious one that it was founded upon no just necessity or propriety. Had it been a measure in any reasonable sense necessary to self-defense on the part of Great Britain, its claim would have rested on a very different foundation, and would iiavebeen supported by the analogy of all similar cases. The right of search is exercised without question as against private vessels suspected of being engaged in the slave trade. And it is very apparent, that as the in- creasing exigencies of international intercourse of all kinds render it necessary, the principle that allows it in time of war will be found suf- ficient to allow it in time of peace. The rule, as has been seen, grows out of necessity alone, and must therefore extend with the necessity. Lord Aberdeen, in a letter of 20th of December, 1841, to Mr. Everett, American minister (British and Foreign State Papers, vol. 30, p. 1177), flaims the right of visitation of vessels on high seas in time of peace, far enough at least to ascertain their nationality. And in his dispatch to Mr. Fox, says : Lord Stowell in the well-known case of the Swedish convoy, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right cf the lawfully commissioned ship of a belligerent nation ; because, till they are visited and searched, it does not appear' what the ships, or the cargoes, or the destinations are; and it is for the purpose of ascertaining these points that the necessity of this light of visitation and search exists." I'ivery vessel is bound to submit to visitation and search, whether it be the vessel of a friend or of nn ally or even of a subject; and submission may be compelled, if lu'cessary, by force of arms, williout giving claim for any damage incurred thereby, if thf vessel upon visitation should be found not liable to be detained. • • • If the vessel be neutral, a belligerent is entitled to ascertain whether there is a con- traband of war or enemy's dispatches or military or naval officers of the enemy oa board. " If the master of a nentral vessel resists by force (the right of search) that is a ground of conttscation, and cousoiiueutly of capture," (Wildmau's Rights of Ves- eels, chap. 2, p. 6.) 14749 u «■! ' om.: ilfidavit of Capt. Buddingtoa; Case of the United Stai j; ., ^ 435.) - -il Fishery Act, 1892. passed in April of that of that country, proTides: be killed in the seal-tishing grounds lying off poiod of the year, exeew: l)etween March 14 and .tad that no seal so caught shall be brought within lAer a penalty of #4.0()(> in either instance. "haf leave any port oi the colony for th^ seal a. on March. 12, under a penalty ot "iii.lHiO. year try the lt»g (1) Thtf im the island April 2», n the limits (2) That ~" lat^^'m'^ fisheries bt (3) That 11(1 sttanur > lali i roceed to the seal fisheries a second zime in any one year, unless obliiBd to return to port by accident. This act extends and en-vges the scope of a previous act, (iated February 22, 1879, which contained similar provisions, but with smaller penalties, and also the provision which is still in fox'ce, that no seal shall be caught of less weight than 28 pounds. (55 Vict., Case of the United States, App., Yol. :.. p. 442.) The seal fisheries of Givenland were the subject of concuvr'^iit legis- lation in 1875, 187G, and 1^77 by England, Norway, Sweden, Denmark, and Netherlands, which prohibits all fishing for seals by the inhabi- tants of those countries before April 3 in any year, Avithin an area of the open sea bounded by the following parallels of latitude and longi- tude, viz, 67° 1^., 75° N., 5° E., 17° W. (British and Foreign State Papers, vol. Lxx, pp. 367, 3*8, 5.13; vol. LXXlii, pp. 282, .^i, 708. "The Seal Fishery Act, iSS," 3S Vict., cap. 18.) Under the law of Uwng say fclie killing of seals on the Lobos and hi U." % EIGHT TO PHOTECT INTERESTS Am) INDUSTRY. 169 other islands " in that part of the ocean adjnccnt to the depnrtmonta of Maldonado and Rocha " is secured to contractors, who pay to the (jhiveniment a license fee and duty. (Acts of July 23, 1857, and June 28, 1858, Caraira, vol. i, pp. 440 and 448, Di8•e^l; of Laws. Appendix to the Case of the United States, Vol. I, p. 448.) By the law of Russia, the whole business of the pursuit of seals in tikf White Sea and Caspian Sea, both as to time and manner, is regu- lated, and all killing of the seals except in pursuance of such regula- tions is prohibited. (Code of Russian Laws Coveiing Rural Industries, vol. XII, part II. Appendix to the Case of the United States, Vol. I, p. 445.) The hrm and resolute recent action of the Russian Government in prohibiting in the open sea, near the Commander Islands, the same depredations upon the seal herd that are complained of l)y the United States in the present case, and in capturing the Canadian vessels en- gaged in it, is well known and will be universally approved. That Grreat Britain, strong and fearless to defend her rights in every quarter of the globe, will send a fleet into those waters to mount guard over the extermination of the Russian seals by the slaughter of pregnant and nursing females, is not iv be reasonably expected. The world will see no war between Great Britain and Russia on that score. Tlie "hovering acis" of the British Parliament and of the American Congress have already been mentioned. These hovering acts were enacted in England in 1730 and in the United States in 17i)l), and pro- hibited the transhipment of goods at sea within 4 leagues or 12 miles of the coast. Fine and forfeiture were the pres(!ribed penalties. The English act prohibited any foreign vessel having on board tea or spirits from "hovering" within 2 leagues or 6 miles of the coast. The American act authorized the officers of revenue (Hitters to board, seai!!Ua< IBH'mm! lUJtiH UlinUIHW 170 ARGUMENT OP THE UNITED STATES. IH \m'' If: '..'i * Ktricken places to make signals on meeting other ships, 4 leagues from coast. (20 Geo. II, Oil. — .) Another act establishes 2 leagues from the coast as the distance within which sliips are amenable to the British quarantine regula- tions. (0 (leo. IV^, ch. 78.) Another act of the British Parliament affords a, conspiimous instance of ft control exercised over tlie high sea, lor a long distance outside the utmost boundary of a littoral sea, as a means of a defense against a special danger then thought to exist. It was passed and enforced for the purpose of preventing the escape of the Emperor Napoleon when confined on the island of St. Helena. This act authorized the seizure and condemnation of all vessels found hovering within 8 leagues or 24 miles of the coast of St. Helena during the captivity of Napoleon Bonaparte on the island, reserving to ships owned exclusively by foreigners the privilege of first being warned to depart before they could legally be seized and condemned, (D6 Geo. Ill, ch. 23; Case of the United States, App., vol. 1, i>. 495.) A sull more extensive and very recent assumption of dominion over tlie sea for defensive and fiscal purposes, is to be found in an act passed by the legislature of Queensland on June 24, 1879, which annexed to that country all tlie isdands lying off tlie northeastern coast of Austra- lia, within a defined limit, which, at its furthest point, extends 250 miles out to sea. The boundary thus adopted includes nearly the whole of Torres Strait, a body of water GO miles in width, separating Australia from New Guinea, and forming tlie connecting link between the Pacific and Indian oceans. Under the authority of this Annexation Act, the Government of Queensland has exercised complete police jurisdiction over the Strait, has suppriissed the traflic in liquor in the objectionable form in which it formerly prevailed, and has derived from the traffic as since restrict- ed, a large revenue througli the medium of customs duties. (43 Vict., oh. 1. Hep. U. S. Fish Com, See *' Gold-Gems and Pearls in Ceylon and Southern India," by A. M. & I., 1888, p. 290.) (Case of the United States, App, Vol, I, p. 467.") An effort is made in the British co jiter case to diminish the force of the various statutes, regulations and decrees above cited, by the sug- gestions that they only tako effect within the municipal jurisdiction of the couutried where they are promulgated, and upon the citizeus of RIGHT TO PROTECT INTEEEST8 AND INDUSTRY. 171 those pouiitries outside tlio territorial limits of such jurisdiction. In their strictly legal character as statutes, this is true, ifo authority need have been i)rodiiced on that point. But tlie distinction has already been pointed out, which attends the operation of such enactments for such purposes. AVitliin fclie territory where tliey prevail, and upon ita subjects, they ;ire binding as statutes, whether reasonable and neces- sary v»r not. Without, they become defensive regulations, which if they are reasonable and necessary for the defense of a national inter- est or right, will be submitted to by other nations, and if not, may be e'^forced by the government at its discretion. Otherwise their '^.fFect would be to exclude the citizens of the coun- try in wliich they are enacted from a uye of the marine products it is seeking to defend, which is left open to the inhabitants of all other countries, thus leaving those products to be destroyed, but excluding their own people from sharing in the profits to be made out of the destruction. Will it be contended that such is the result that is either contemplated or allowed to take place by the govern- ments which have found it necessary to adopt such restrictions? It would be much more to the purpose if it could be shown either that any nation had ever protested against or challenged th(^ validity of a^ny of these regulations outside the territorial line, or that any individual had ever been i)ermittcd to transgress there with impunity. In the case of any of the statutes of Great Britain and her colonies that have been referred to, if any enterprising poacher, armed with an attorney and a battery of authorities on the subject of the extent of statute jurisdiction, should attempt the extermination or even the injury of the protected products, in defiance of the regulations pre- scribed, he would speedily ascertain, without the assistance of an international arbitration, that he had made a mistake, and that to succeed in his undertaking he would need to be backed up by a fleet too strong for Great Britain to resist. In the light of this accumulation of authority and precedent, drawn from every source through which the sanction of international law can be derived or the general assent of mankind expressed, what more need be said in elucidation of the grounds upon which this brancli of the case of the United States reposes ? Have we not clearly established the proposition, tliat the dominion over the sea, once maintained by maritime uaticms, has been surrendered only so far as to permit such private use as is neither temporarily nor permanently injurious to the 1i w,> 'I J-: C. D I m ■ n: ARGUMENT OF THE UNITED STATES. imporrjnit and just interests oftlio.se nations, and that as against such injury, however occasioned, the right of defense lias always been pre- Berved, and has always l)eeu asserted on the high sea, and even ujion foreign territory. It will be seen, we respectfully submit, that this case presents nothing new, except the particular circumstances of the application of an universal and necessary principle to au exigency that lias not arisen in this precise form before. The steadfast advance which the law of nations has made, from the days of its rudiments to the present time, and which still must con- tinue to be made through all time, has been and must always be by the process of analogy, in the a-iiplication of fundamenlal principles, from which the rules of all new cases as they successively and con- stantly arise must be deduced. Neither this nor any other system of human law can stand still, for it must perish u^nless it keeps pace with the vicissitudes of society, and meets adequately all the new emer- gencies and requirements which they from time to time produi^e. Law has its roots in the past, but its efficacy must take place in the present. Says Mr. Phillimoro (Int. Law, vol. 1, sec. 39): , Analogy lias great influence in the decision of international as well as municipal tribunals; that is to say, the application of the principle of a rule wlii avoid', d, but it must be remem- bered tbat tbe case is one ot' pt imw impn-sfiitinis, ot t\w gitiiit.v»t hn- portauco botb to Enghuid and to otber states, and tlie cbar.icter of it in some decree necessitates a referen(;e to first principU's. In tlio memorable answer pronounced by JVlontesquieu to be rcpome sans repUque, and framed by Lord Mansfiekl and !Sir (ieori^e Leo, of tbo Britisb, to tlie Prussian Government: "Tlie biw of nations is said to be founded upon Justice, ecpiity, convenience, and tlio reason of tbo tiling, and coniirmed by long usage. Cbancellor Kent says (1 Commentaries, p. 32) «. As tbe end of tbe biw of nations is tbe baitpiness and perfection of tbe general society of mankind, it en.joins upon every nation tbe jiunc- tual observance of benevolence and gootl will ;!s \V(dl as of justu-e towards its neigbbors. Tbis is eiiually tbe policy and tiie duty of nations. * * * (p. 181). Tke law of nations is placed under tiu^ piotection of public opinion. * * * Its gieat fundamental priiu-iples are founded in tbe maxims of eternal trutb, in tke ininintabie law of moral obliga- tion, and in tbe suggestions of enligbteued public interest.' Many autkorities on tkis point kave been presented in a former branch of tbis argument. They migkfc be multiplied to an indefinite extent, as well from continental as from Englisk and American writers and judges. But ai)ology skould ratker be ottered for citing any autkority at all, upon a proposition so fundamental and so obvious. Itiswitk tke greates^t respect submitted, and in our judgment it ' Says Judge Stocy (Con. of Laws, nee. 3) : ~ In restinjj on tlio basis of general convenience and lih© enlarged seust? irf national duty, rules have tVotii liiue to tim« been pronuilgat.ei' by Jurists and supported by (Courts of Justice by a corirso of Judi- cial reasouiiiji wliieh hiiH eoniuiuiided almost universal confidence, res|)cct, and obcdi' ence, wil lionir, the aid eilhor oL municipal Ktiitutos or of royal ordinances, or of iuLcr- nationiil trtiuties." Mr. Twiss i Int. Law. part 1, s«c. 8()\ dividi.s the sources of law of nations as follows: "The natural or necesHai-y law of nations, in whicii tlie principles of natural Justico are applied to the intercourse between states; secondly, custouuiry law of nations which embodies those usages whicli the continued lial)it of nations baa sanctioned lor their mutual intcrcsi and C(»nvenieuce, and thirdly, the CDnvtiilioiiul or diplomalio law of nations. * * * Under this last head many regulations will now bo found which at iirst resulted from custom or a general sense of Justit;e.'' Mr. Aiuos, in his note to Manning (book 2, chap. 1, p. 85) remarks: "Though the customary usages of states in their luuiual inttsrcourse must always be held to aft'ord evith'nco of impliiMl jussent, and to continue to be a- me>ii basis of a structure of the luw of nations, yet there are several circumstances ia modern society which nocm to indicate that the re^fion of the inlluenco will become increasingly restricted as compared with that of tlio iulliuiuoo of wcU-ascortamod ethical pi'iuciplos and iormal couveiiliou." • h'' 174 ARGUMENT OF THE UNITED STATES. cau not be too clearly kept in view, that the duty requested of this High Tribunal is not the discussion of abstract theories, nor the establish- ment of propositions applicable to cases not before it, nor the determi- nation of diplomatic controversies that liave longceased to be material The question, and the only question to be decided, is whether tiie own- ers of the Canadian vessels engaged in the destruction of tlie seals in Bering Sea, have an indefeasible right as against the Government of the United States, upon the circumstances of this case, to continue such destruction, at the times, in the places, in the manner, and with the consequences shown by the evidence. That question is neither tech- nical nor scholastic, nor does it depend upon finespun reasoning or rec. ondite learning. It is to be regarded in the large and fair-minded view which accords with the dignity of the parties to this controversy, the character of the Tribunal to which they have submitted it, and a just deference to that opinion of civilized mankind which is the nlti- n?ate criterion of international law, and the final arbitrator in all inter- national disputes. Surveyed in this light, upon its just and actual facts, and looking at it as it stands apparent to the world, what are its proposals, when fairly and simply stated? Let the leading facts before stated, be recapitulated. Here is a lierd of amphibious animals, half human in their intelli- gence, valuable to mankind, almost the last of their species, whi<;h from time immemorial have established tlieir home with a constant animus revertendi »m islands once so remote from the footsteps of man. that these, their only denizens, might reasonably have been expected to be per- mitted to exist, and to continue the usefulness for which the benefi- cence of the Creator designed tliem. Upon these islands their young are begottvm the groundwork of internationol law, and of all usages under it that have become established, it can not be open to doubt what the answer t^j it mtist bo. There can be but one side to such an incpiiry, if ideas of right and wrong, or even of sound policy, are to prevail. To escape that result, some arbitrary and inllex- ible rule of controlling law must be dincovered, against which justice, morality, and fair dealing are powerless. We deny that any such rule forms a part, or can ever bo permitted to form a part, of any recognized system of international law. .i:' 176 ARGUMENT OF THE UNITED STATES. If 5 ' Many cases may bo supposed, each of which, sliould it arise, would be in its paiticuhir facts a new case, in ilhistration of the proposition for which we contend. Suppose that some method of explosive destruc- tion should be discovered by which vessels on the seas adjacent to tlie Newfoundland coast outside of tlie jurisdictional line could, with prottt to themselves, destroy all the fish that resort to those coasts, and so put an end to the whole tishing industry upon which their inhabitants so largely depend. Would this be a business that would be held justifi- able as a part of the freedom of the sea? although the lish are ad- mitted to be purely ferce naturcv, and the general right of Ashing in the open sea outside of certain limits is not denied. An Atlantic cable has been laid between America and Great Britain, the operation of which is important to those countries and to the world. Suppose some method of deep-sea fishing or marine exploration should be invented, profitable to those engaged in it, but which should inter- rupt the operation of th'^ cable and perhaps endanger its existence. Would those nations be ^ werless to defend themselves against such consequences, because the act is perpetrated upon the high sea? Suppose vessels belonging to citizens of one country to be engaged in transporting for hire across tlie sea to ports of another, emigrants from plague-stricken and infected places, thus carrying into those ports a destructive contagion. If it should be found that measures of de- fense inside of the three-mile or cannon-shot lines were totally inade- quate and ineffectual, would the nation thus assailed be deprived of the iK)wer of defending itself against the approach of such vessels, as far outside that line as the actual necessity of the case might require? This question is answered by the acts of the British Parliament before referred to, api)licable to just such a case. If a light-house were erected by a nation in waters outside of the 3- mile line, for the benefit of its own commerce and that of the world, if some pursuit for gain on the adjacent high sea should be discovered which would obscure the light or endanger the light-house or the lives of its inmates, would that government be defenseless? Lord Chief Jus- tice Oockburn answers this inquiry in the case of Queen v. Kohn above cited (p. 198) when he declares that such encroachments upon the high sea would form a part of the defense of a country, and " come Avithin the principle that a nation may do what is necessary for the protection of its own territory." lu any of these cases, would it be necessary for the nation assailed RIGHT TO PROTECT INTERESTS AND INDUSTRY. 177 to wsnpplicate the government to which its assailaiils belonged, to i^re- vent the mischief comphiined of, as a matter of vohintary comity, and if such application were disregarded, to submit? Tlio wliole history of the maritime world, and of Great Britain above all other countries is to the contrary. So fav from individual rights on the sea of such a mischievous and injurious character having become recognized and es- tablished by the assent of mankind, so as to be regarded as justilied by the intenuitional law that results from such an assent, the judgment and the conduct of nations have been altogether the other way, and necessarily must always be the other way if they are to protect them- selves, their interests, and their people from destruction. It will be seen from the correspondence between the governments of Great Britain and the United States, printed in the Appendix to the Case of the United States, that a convention between the two countries was virtually agreed upon as early as 1887, with the full c(mcurrenc& j( Russia, under which pelagic sealing in Behring Sea would have been prohibited between April 15 and October 1 or Noveu;ber 1 in each year, and that the consummation of this agreement was only prevented by the refusal of the Canadian Government to assent to it. The proi)riety and necessity of such a repression was not doubted, either by the United States, Great Britain, or liussia. This convention, if completed, would have fallen far short both of thejust right and the necessity of the United States in respect to the protection of the seals, as is now made apparent in the light of the much larger knowledge of the subject which has since been obtained. Still, it would have been a step toward the do- sired end. When it became apparent that Great Britain would be unable to consumTiuite the proposed agreement, and that no restraint would be put by nor Majesty's Government on the depredations of its colonists complained of, if the United States Government had then taken the course which has since been pursued by the Government of Eussia in respect to the seals on the Commander Islands, and refused to per- mit farther slaughter of the seals in Bering Sea during the breeding time, what is it reasonable to believe would have been the judgment of the civilized ivorld, as to the justice and propriety of the position thus assumed? Would not such action have been approved and acquiesced in by all nations, as it has been shown that similar action by many t'ountries in all similar cases that have arisen has been approved and uc(juiosced in? And if jt cau bg su^j)Oi>ed, as it certuiulj^ cau Jiot b© ;4749 la 1 ' ,,l!'l' r;:« ;•;«* ■'J Mil r:ii v'.iin 178 ARGUMENT OF THE UNITED STATES. . ?■ I I supposed without castinjj; an unwarrantable aspersion upon Her Maj- esty's Government, that Great Britain would have undertaken to main- tain by naval force the Canadian vessels in the conduct in question, how far is it to be believed that she would been sustained by the gen- eral opinion of the world? More especially in view of the claim she has always successfully and justly asserted, of the right to protect all interests of her own against injury by individuals on the high sea for the sake of gain. And iiiuilly, if by the concurrent action of the United States, Great Britain, and Eussia, a prohibition of pelagic sealing during the breeding time had been eflected, as proposed, would those three powers combined have had a better right to exclude any casual poacher under the flag of some other government from the depredations i)rohibited, than the Uni- ted States now has, standing alone? Or would they have been con- strained, by the requirements of what is called international law, to oc- cupy the humiliating position of standing idly by, while the interests they had found it necessary to unite in protecting, should be deliber- ately destroyed for the benefit of a few adventurers, whose methods defied law and disgraced humanity. What the United States Government would have been justified in doing in self-defense, by the exertion of such reasonable force as might be necessary, is precisely what she has aright to ask in the judgment of this Tribunal. There can not be one system of international law for the world and another for the closet, because the closet does not pre- scribe the law of nations; it derives it from those principles of right and justice which are adopted as a rule of action by the general assent and approval of mankind. Instead of taking its defence into its own hands, the Government of the United States has refrained from the exercise of that right, has submitted itself to the judgment of this Tribunal, and has agreed to abide the result. Its controversy is only nominally with Great Britain, whose sentiment and whose interest concur in this matter with those of the United States. It is really with a province of Great Britain, not amenable to her control, with which the United States Govern- ment has no diplomatic relations, and can not deal independently. Although the erroneous assumption that the United States claimed the right to make Bering Sea a 7nare dausuni, has undoubtedly drawn Her Majesty's Government into a position in this dispute that it might uot otherwise have taken. RIGHT TO PROTECT INTEREST AND INDUSTRY. 179 If by the judgment of this hijjh and distinguished Tribunal the Alaskan seal herd is sentenced to be exterminated, a result which the United States Government has been unable to anticipate, it must sub- mit, because it has so agreed. But it will not the less regret having thus bartered away that plain right of self-defense against unwarranted injury, which no nation strou^i" euou^jh to assort itself has ever surren- dered before. B. J. rHELl'S. \M 'II ••if' m mf'^ ,!ii': in-', IMAGE EVALUATION TEST TARGET (MT-3) I 4^. I 1.0 1.1 ii;|2B 150 ^^^ 12.5 I 11° 12.0 ■| » 1.25 iU /a w >F Photographic Sdences Corporation 23 WEST MAIN STRUT WEBSTSR.N.Y. MSSO (716) 873-4S03 i 180 ARGUMENT OF THE UNITED SiyiTES. APPENDIX TO PART THTRT), DIVISION II (MR. PHELPS'S ARGUMENT). ADDITIONAL AUTHORITIES ON THE QUESTION ON PROPERTY. [NOTB 1, FAGK 132. OPINION IN BANNAM VS. MOCKETT. WELL, 943.)] (2 BAltNWALL AND CKK8- Bagley, J. A man's rights are the rights of personal security, per- sona} liberty, and private property. Private property is either proi erty in possession, property in action, or property that an individual hi?s a special right to acquire. The injury in this case does not affect any right of personal security or person.al liberty, nor any property in pos- sessioi\ or in action, and the question then is whether there is any injury to any property the plaintiff* had a special right to aciiuire. A man in trade has a right in his fair chances of profit, and he gives up time and capital to ac(iuire it. It is for the good of the public that he should. But, has it ever been held that a man has a right in the chance of obtaining animals ferce nature, where lie is at no expense in enticing them to his premises, and where it may be at least question- able whether they will be of any service to him, and whether, indeed, they will not be a miisance to the neighborhood? This is not a claim propter impotentiam because they are young, proj)ter tiolum because they are on the plaintift"'8 land, or propter inditntriam beciiuse the plaintiff" has brought them to the place or re(;laimed them, but propter usum et consuetudinem of the birds. They, of their own choice, and without any expenditure or trouble on his part, have a predilection for his trees, and are disjjosod lo resort to them. But, has he a legal right to insist that they shall be i»ermitted to do so? Allow the right as to these birds, and how I'an it be denied as to all 6ther8! In considering a claim of this kind the nature and properties of the birds are not immaterial. Tlu^ law makes a distinc- tion between animsvls fitted for food and those which are not; between those which are destructive of private pr(>])erty and thost! which are not; between those which have receive'^ protection by common law or by statute and those which have not. Itis notallegedin this declaration that these rooks were lit for food ; and we know in fact that they are not generally so used. So fur froni being protected by law, they have been looked upon by tlie legislature as de- structive in their nature, and as nuisances to the neighborliood where they are established. Keeble vh. Hickeringili (11 East., 574) bears a stronger resemblance to the present than any other case, but it is dis- tinguishable. • • * But in the first place, it is observable that wild fowl are protected by the statute 25 II. 8, c. 11; that they constitute a known article of food ; and that a person keeping uj) a decoy expends money and emph>ys skill in taking that which is of use to the public. It is a profitable mode of employing his laud, and was considered by Lord Bolt oa a desoriptiou oi trade, TUat case, tUeiefore, staudfl ou » APPENDIX TO PART THIRD — DIVISION 11. 181 different foundation troin this. All the other instances which were referred to in the arfriiment on the part of the plaintiff are «'ast'S of ani- mals specially protected by a(rt^^ of I'arlianient, or which are clearly the subjects of pro[>erty. Thus hawks, falcons, swans, partridjres, i)iica8- ants, pijfeons, wild ducks, mallards, teals, widgeons, wild geese, black game, red game, bustards, and herons are all recogni/ed by different statutes as entitled to protection, and consequently iu the eye of the law are tit to be preserved. [KERni.R vs. IflCKRKINaiLL. IIILAIIY TKIIM 5 ANNK, HOLT'S nKPORTS, p. 17.] Action by owner of a decoy pond, frecpuMitod by wild fowl, against one who shot off a gun near his pond to th(5 ])laintilf's htss, etc. During the course of the discussion by the judges, Holt, 0. J., said: ♦ • • "And the decoys spoil gentlemen's game, yet they are not unlawful, for they bring money into the country. Dove cotes are law- ful to keep pigeons. Powell: The d(!claration is not good, but this being a special a(!tion on the case, it is helped by the verdict. If you frigliten pigeons from my dove cote, is not that actionable? Montague: Yes, for they have animum revertendi, and therefore you have property. In Vol. II, East's Reports, ]>. 571, is the case of Canington vs. Tay- lor, which is also a case upon the subject of injury to the owner of a decoy i)oud. The reporter, iu a note to this case, reports at length Keeble vs. llickeringill, which he stales "is taken from a copy of Lord C. J. Holt's own MSS. in my possession." In this report it is said : " Holt, C. J. I am of opinion that this action doth lie. It seems to be new in its instance, but it is not new in the leason or principle of it. • • * An«l we do know that of long time in the kingdom these artittcial c(mtrivances of decoy ponds and decoy ducks have been used for enticing into those ponds wild fowl, in order to be taken for the protit of the owner of the i)ond, who is at the ex- pense of servants, engines, and other management, whereby the mar- kets of the nation nniy be furnished; there is great reason to give encouragement thereunto; that the jjcople who are so instrumental by their skill and industry so to furnish the markets should reap the ben- efit and have their action. [NOTE 1, (PAGE 149). KXTKACT KUOM OPINION OF CHIEF JUSTICE MAKSIIALI. IN CliUUCH VB. IIUltliAKT, 2 CU., 187.] That the law of nations prohibits the exercise of any act of author- ity over a vessel in the situation of the Aurora, and tliat this seizure is, on that account, a mere maritime trespass not within the exception, cannot be adnntted. To reason from the extent of the protection a nation will afford to foreigners, to the extent of the means it may use tor its own security, does not seem to be perfectly correct. It is opposed by prin- ciples which are universally acknowledged. The authority of a nation within its own territory is abstdute 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 Its power to secure Itself fnun injury nuiy certainly be exercised beyond tl'c limits of its territory. Upon this principle, the right of a belligerent to search a neutral vessel ou the high seas fur cuutrabaud of war is universally admitted. w ■•'•i '. !•' 182 ARGUMENT OP THE UNITED STATES. because tlie belligerent has a right to prevent the injury done to him- self by the assiHtance intended for lis enemy. So, too, a nation has a right to prohibit any commerce with its colonies. 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 the means necessary for its prevention. These means do not appear to be limited within any cer- tain marked boundaries, which remain the same at all tiiiies and in all situations. If they are such as unnecessarily to vex and harass foreign lawiul commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to. In different seas and on different coasts a .t^ider or more contracted range in which to exercise the vigilance of the Government will be as- sented to. Thus in the Channel, where a very great part of the com- merce to and from all the north of Europe i)as8es through a very nar- row sea, the seizure of vessels on suspicion of attempting an illicit trade must necessarily be restricted to very narrow limits; but on the coast of South America, seldom frequented by vessels but for the pur- pose of illicit trade, the vigilance of the Government may be extended somewhat further, and foreign nations submit to such regulations as are rea lonable in themselves and are really necessary to secure that monopoly of coUmial commerce, Avhich is claimed by all nations holding distant possessions. If this right be extended too far, the exercise of it will be resisted. It has occasioned long and frequent contests which have sometimes ended in open war. The English, it will be well recollected, complained of the right claimed by Spain to search their vessels on the high seas, which was carried so far that the (iuarda Costas of that nation seized vessels not in the neighborhood of their coasts. This practice was the subject of long and fruitless negotiations, and at length of open war. The right of the Spaniard? was supposed to be exercised unreasonably and vexatiously, but it nevor was contended that it could only be ex- ercised within the range of the cannon from their batteries. Indeed, the right given to our own revenue cutters to visit vessels four leagues from our coasts is a declaration that in the ojunion of the American Government no such principle as that contended for has a real existence. Nothing, then, is to be drawn from the laws of the usages of nations, which gives to this part of the contract before the court the very limited construction which the plaintiff insists on, or which proves that the seizure of the Aurora by the Portuguese gov- ernor was an act of lawless violence. w ■i (mote 1, PACK 150. OPINION OK JUDGK JOHNSON IN ROSE VS. HIMELY, 4 CR. 241.] I am of opinion that the evidence before us plainly makes out a case of belligerent capture, and though not so, that the capture may be justified, although for the breach of a municipal law. In support of my latter position, both principle and the practice of Great Britain and our own Government may be appealed to. The ocean is the common jurisdiction of all sovereign powers; from which it does not result that their powers upon the ocean exist in a stale of suspension oi equipoise, but that every power is at liberty upon the ocean to exercise its sov- ereign right, provided it does not act inconsistent with that general equality of nations which exists upon the ocean. The seizure of a ship upon the high aeas, after she has committed an act of forfeiture within a territory, is not inconsistent with the sover- Pid after great poiutl APPENDIX TO PART THIRD — DIVISION 11. 183 eign rights of the nation to which she belongs, because it is the law of reason and the general understiinding of nations that the offending individual forfeits liis claim to i)rotection, and every nation is the legal avenger of its own wrongs. Within their juiisdictional limits the rights of sovereignty are exclusive ; upon the ocean they are concurrent. What- ever the great p) inciple of self defense in its reasonable and necessary exercise will sanction in an individual in a state of nature, nations may lawfully perfoi m upon the ocean. This principle, as well as most others, Uiay be cairied to an unreasonable extent; it may be made the pretence instead of the real ground of aggression, and then it will become a just cause of war. I contend only ibr its reasonable exercise. The act of Great Britain of 24 Geo., 3, Chap. 47, is predicated upon these principles. It subjects vessels to seizure which approach with certain cargoes on board within the distance of four leagues of her coast, because it would be difficult, if not impossible, to execute her trade laws if they were suffered to approach nearer in the prosecution of an illicit design ; but if they have been within that distance, they are afterwards subject to be seized on the high seas. They have then violated her laws, and hjive forfeited the protection of their sovereign. The laws of the United States upon the subject of trade appear to have been framed in some measure alter the model of the English statutes; and the twenty-ninth section of the act of 1799 expressly authorizes the seizure of a vessel that has within the jurisdiction of the United States committed an act of forfeiture, wherever she may be met with by a revenue cutter, without limiting tlie distance fi'om the coast. Se also the act of 1806, for prohibiting the importation of sljvves, authorizes a seizure beyond our jurisdictional limits, if the vessel be found with slaves on board, hovering on the coast; a latitude of expres- sion that can only be limited by circumstances, and the discretion of a court, and in case of fresh pursuit would be actually without limita- tion. Indeed, after passing the jurisdictional limits of a State, a ves- sel is as much on the high seas as if in the middle of the ocean, and if France could authorize a seizure at the distance of 2 leagues, she could at the distance of 20. • • * Seizure on the high seas for a breach of the right of blockade during the whole return voyage, is universally acquiesced in as reasonable exercise of sovereign i)ower. The princi- ple of blockade has, indeed, in modern times, been pushed to such an extravagant extent as to become a very justifiable cause of war, but still it is admitted to be consistent with the law of nations when con- fined within the limits of reason and necessity. [NOTR 1 (PAQB 152). CITATIONS FROM CONTINENTAL WU1TER8 ON TUK SUBJECT OF SKLP DBFKN8K.] Every nation may appropriate things, the use of which, if left free and common, would be greatly to its prejudice. This is another rea- son why maritime powers may extend their domain along the seacoast, as far as it is possible, to defend their rights. • • • It is essential to their security and the welfare of their dominions. (Azuui, Part I, Chap. II, Art. i. Sec. 4, page 185.) Plocque (De la Mer et de la Navigation Maritime, ch. i, pp. 6-8), after discmssing the limits of the territorial sea, and pointing out the great divergence of oj)inion that had existed on that point, remarks: " Moreover, in cuf tom-house matters, a nation can fix at will the point where its territorial sea ends; the neighboring nations are sup- r*' ^.&i f/ 8 ■ 1' ■!•!; . 184 ARGUMENT OP THE UNITED STATES. posed to be acquainted witli these regulations, and aro, consequently, obliged to conform therett). As an example, we will content ourselves with quoting the law of Germinal 4th, year II, Art. 7, Tit. 2: * Captains and officers and other functionaries directing the custom-house, or the commerciul or naval service, may search all vessels of less than 1(H) tons burden when lying at anchor or tacking within four leagues from the coast of France, cases of vis major excepted. If such vessels have on board any goods whose importation or exportation is prohibited in France, the vessels shall be confiscated as well as their cargoes, and the captains of the vessels shall be required to pay a fine of 500 livres.'" SayS Pradier-Fod6r6 (Trait6 de Droit Internationale, Vol. ii, sec. 633) : " Independently of treaties, the law of each state can determine of its own accord a certain distance on the sea, within whi<-.h the state can claim to exercise power and jurisdiction, and which constitutes the ter- ritorial sea, for it and for those who admit the limitation. This is espe- cially for the surveillance and control of revenues." And in a note to this passage he says: '< In efiect, in the matter of revenue, a nation can fix its own limits, notwithstanding the termination of the territorial sea. Neighboring nations are held to recognize these rules, and in conseifnence are con- sidered to conform to tliem. On this point the French law of the 4th Germinal, year II, can be cited." This law fixes two myriameters, or about twelve English miles as the limit within which vessels are subject to inspection to prevent fraud on the revenue. La Tour (De la mer territoriale, page 230), speaking of the exterri- torial etfect of the French revenue laws at four leagues from the coast, thus justifies them. " Is not this an excessive limit to which to extend the territorial sea? No, we assert. At the present day this question will hardly bear dis- cussion, on account of the long range of cannon ; and though we should return to the time when that range was less, we should still undertake to justify this extension of the custom-house radius; and for this it is sufficient to invoke the reasons given iu matters of sanitary police. It does not involve simply a reciprocal concession of states, or a tacit agreement between them, but it is the exercise of their respective rights. • • • "The American and English practice allows the seizure, even outside of the ordinary limit of the territorial waters, of vessels violating the custom laws." I Says M. Oalvo (Le droit international, sec. 244) : "In order to decide the question in a manner at once rational and practical, it should not be lost sight of at the outset thii die state has not over the territorial sea a right of property, but a rigliiof inspection and of jurisdiction in the interest of its own safety, or of the protection of its revenue interests. "The nature of things demonstrates, then, that the right extends up to that point where its existence justifies itself, and that it ceases when the apprehension of serious danger, practical utility, and the possi- bility of eflfectively carrying on definite action cease. " Maritime states have an incontestible right, however, for the de- fense of their respective territories against sudden attack, and for the protection of their interests of commerce and of revenues, to establish APPENDIX TO PART THIRD — DIVISION II. 185 an active inspection on their cotiRt and its vicinity, and to adopt all iiecessury measures for shutting off access to their territory to those wlioni they may refuse to receive, where tliey do not conform to estab- lislied re<;;uIations. It is a natural consequence of the i;eneral principle, that whatever anyone shall have done in behalf of his aelf-defeuse he will be taiten to have done rightly. " Every nation is tlius free to establish an inspe overleap, except in the exceptional case, a line which has not alone received the ap- proval of (jrotins, liynkershiik, Galiana, and Kluber, but has been confirmed likewise by tlie laws and treaties of many of the nations. "Nevertheless we can maintain further witli Vattol that the domin- ion of the state over the neighboring sea extends as far as it is neces- sary to insure its safety, and as far as it can make its power respected. And we can further regard with Kayneval the distance of the horizon which can be fixed upon the coast as the extreme limit of the measure of surveillance. The line of the cannon shot, which is generally regarded as of common right, presents no invariable base, and the line can be fixed by the laws of each state at least in a provisional way." (Heffter, Int. Law, Sees. 74-75.) liluntschli says: (Int. Law, Book iv, sec. 322). "The jurisdiction of the neighboring sea does not extend further than the limit judged necessary by ^he police and the military authorities." And section 342 : "Whenever the crew of a ship has committed a crime upon land, or within water included in the territory of another state and is pursued by judi(!ial authorities of such state, the pursuit of the vessel may be continued beyond the waters which are a part of the territory, and even into the open sea." And in a note he says: "This extension is necessary to insure the eflQciency of penal justice. It ends with the pursuit." Carnazza-Amari (Int. Law, sec. 2, chap. 7, page 60), after citing from M. Calvo the passage quoted above, says : " Nevertheless states have a right to exact that their security should not be jeopardized by an easy access of foreign vessels menacing their territory; they may see to the collection of duties indis])ensable to their existence, which are levied upon the national and foreign produce, and which nioritime contraband would doubtless lessen if it should not be suppressed. From all these points of view it is necessary to grant to each nation the right of inspection over the sea which washes its coasts, within the limits required for its security, its ' uiquillity, and the pro- tection of its wealth. • • • States are r iged, in the interest of their defense and their existence, to subject t ' their authority the sea bordering the coast as far as they are able, or as far an there is need, to maintain their dominion by force of arms. • • • if*, rf ' 'I ft f i ! f : I fp *f u|'. pf- ^1 ' '*■ i llli'i %im 186 ABGUMKHT OP THE UNITED STATES. " It 18 necessary to concede to every nation a right of surveillance over the bordering sea with/n the limits which its security, its tran- quillity, and its wenlth demand. • • • Baldo and other anthoiities place tlie line at 00 miles from the shore. Gryphiander and Paeuinez, at 100. Locennius, at » point from which a ship can sail in two days. Bynkershock maintains that the territorial sea extends as far as the power of artillery. This limit is regarded as the correct one, not because it is founded on force, but because it is the limit necessary for the safety of the state." [NOTE 1, PAGE 153. THE OAROLINK CASE.] Mr. Webster said, addressing the British Government; << Under those circumstances, and under those immediately connected with the transaction itself, it will be for Her Majesty's Government to show upon what state of facts and what rules of international law the destruction of the Caroline is to be defended. It will be for that Gov- ernment to show a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation. "It will be for it to show, also, that the local authorities of Canada, even 8U])po8ing the necessity of the moment authorized them to enter the territories of tlie United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was imjjracticable, or would have been unavailing." (Web- ster's Works, Vol. VI, page 201.) Lord Ashburton in his reply says: "Every consideration, therefore, leads us to set as highly as your Gov- ernment can possibly do this paramount obligation of reciprocal respect for the independent territory of each. But however strong this duty may be, it is admitted by all writers, by all jurists, by the occasional practice of all nations, not excepting your own, that a strong overpow- ering necessity may arise when this great principle may and must be suspended. It must be so, for the shortest possible period during the continuan(!e of an admitted overruling necessity, and strictly confined within the narrowest limits imposed by that necessity. Self-defense is the first law of our nature, and it must be recognized by every code which professes to regulate the condition and relations of man. Upon this modification, if I may so call it, of the grejit general principle, we seem also to be agreed ; and on this part of the subject I have done little more than repeat the sentiments, though in less forcible language, admitted and maintained by you in the letter lo which you refer me. " Agreeing, theieforo, on the general principle, and on the possible ex- ception to which it is liable, the only question between us is whether this occurrence came within the limits fairly to be assigned to such ex- ceptions; whether, to use your words, there was that necessity of self-defense, instant, overwhelming, leaving no choice of means, which preceded the destruction of the Caroline while moored to the shore of the United States. Give me leave, sir, to say, with all possible admi- ration of your very ingenious discussion of the general principles which are supposed to govern tbe right and practice of interference by the people of one country in the wars and quarrels of others, that this part of your argument is little applicable to our immediate case. If Great Britain, America, or any other country, suffer their people to fit out APPENDIX TO PART THIRD — DIVISION II. 187 expeditions to take part in distant quarrels, such conduct may, accord- ing to the circunistnnces of each case, be justly matter of complaint, and perhaps these transa^^tions have generally been in late times too Biuch overlooked or connivei 194 ARGUMENT OF THE UNITED STATES. Itt lit animal. And while the United States would be subjected to apjirticu- lar injury in being deprived of the profit coming from the sealing in- dustries on the Pribilof Islands, Canada, one of the dependencies of Great Britain, would lose the supposed benefit of pelagic sealing; and England would be subjected to the far greater loss which would come from the breaking up of her industry in the manufacture of tki seal- skins, in which some thousands of her people were engaged. These considerations naturally led to the suggestion that both nations possessed such a common interest in the preservation of the herd as to make it expedient for them to make an effort to reach some agreement designed to bring about that result, which, if successful, would not only terminate the existing dispute, but subserve the permanent interests of tbe parties. In the absence of full and correct information by the diplomatic rep- resentatives of the two governments of the nature and liabits of the animal and of the laws governing its reproduction and increase, the pe- culiar device for the preservation of wild animals by restricting their slaughter to a limited time was suggested, and apparently accepted on botli sides, almost immediately, as being likely to furnish a sufficient safeguard against the apprehended destruction. The time during which such a restriction should be enforced, the only point mpon which diflference of opinion might have been anticipated, was at once agreed upon, and there can be little doubt that a formal agreement would have been immediately framed and ratified, had not Canada, moved, presum- ably, by the remonstrances of her pelagic sealers, interposed and pressed an objection." It is fortunate, in the view of the United States, that such an agreement was not consummated. It would have proved wholly illusive. The fimndation of this concurrence in the device of a close season was the predominating necessity of preserving the auimals from extinction ; and there is no reason to suppose that, had it then appeared that ab- solute prohibition of pelagic sealing was requisite to that end, such pro- hibition would have been acceded to in the absence of remonstrance from Canada, originating in the present interest of persons engaged in pelagic sealing, an interest which regarded with comparative indiffer- ence the eventual fate of the animal. It is not to be supposed that the enlightened statesmanship of Lord Salisbury, unembarrassed by any 'Diplointtio Correapoudenco, Caae of the Uui ted States, Appendix, Vol. I, pp. 176 to 183, iiicluiiivo. ' Dipl ^sa to CONCURRENT REGULATIONS. 195 difficulty growing out of the opposition of a great dependency of the British Empire, would have insisted for a moment upon a continued in- dulgence of the pursuit of i>elagic sealing, had it appeared that such a a course would have involved, in the near future, the practical extermi- nation of the fur-seals. He surely would not have sacrificed the inter- ests of the world and the very large special manufacturing interest of Great Britain, in order to save for a few years a pursuit which was rap- idly working the destruction, not only of the great interests above re- ferred to, but also of itself. T?he failure of the negotiations referred to left the situation involved not only with the existing dispute, but aggravated by the certainty that fresh causes of irritation and contention would constantly aiise; and the proportions of the controversy continued to increase until the peaceful relations of the two governments became most seiiously threatened. A renewal of negotiations ensued, wliich led to the ratifi- cation of the Treaty under whith the present Tribunal has been consti- tuted. Whatever may have been the effect of the later negotiations in separating the parties more widely upon the main questions of right involved in the controversy, there is one point upon wliich, having been substantially agreed at first, they were brought more and more into unison, namely, the predominating necessity of preserving the seals. The Seventh Article of the Treaty calls upon the Tribunal to determine simply "what concurrent regulations outside the juris- dictional limits of the respective governments are necessary to the proper protection and preservation of the fur-seals." Fitness for the accomplishment of that end is the only description in the Treaty of the regulations which this Tribunal is to ascertain or devise. After the article had assumed its present form in the negotiations, some effort was made by Lord Salisbury to restrict its effect to confer upon the Tribunal the ful' discretitm which its terms import; but this was re- sisted on the part of the United States, and the attempt was abandoned. ^ The foregoing brief review of the negotiations Avill serve to show that the authority and discretion of the Arbitrators in respect of concurrent regulations is wholly unrestricted, except by the single condition tiiat they are to be operative only outside of the municipal jurisdictions. There is not only no language importing that some form or degree of that pursuit is to be retained, but there is no implication even to that I A I ' 11 '. 1 ' f I I Dlplnuintic Correspoudcuco, Caac oi' tlio United States, Aiipoudii, Vol. I, pp. StQ to 345, iucluaive. 196 AEGIIMENT OP THE UNITED STATES. ■ 31 effect. It is not said that they are to be regulations ofpelagie tealing. They are regulations " outside of the jurisdictional limits of the respect- ive governments," and " lor the proper protection and preservation of the fur-seal." We are thus brought to the main question : What regulations are ne- cessary? This depends upon a consideration of the nature and habits of the seals, the perils to which they are exi)«).sed, tiie causes which oper- ate to diminish their numbers and prevent their reproduction, and the contrivances calculated to be most effectual to prevent the operation of those causes. It will be at once perceived that such a discussion must be, in great part at least, a simple repetition of that already gone through with upon the question of the claim of a property interest. This coui ^s from the circumstance, which we trust has been made suf- ficiently u.anifest, that the institution of property is but the result of the solution by society of very much the same question which we are now proposing to enter upon. Human society has had be^^ore itself repeatedly or rather constantly, from its first beginnings his same question — what regulations are necessary to preserve the usej " races of animals — and the uniform solution has been to devise and adopt that particular class of regulations, which, taken together and enforced, con- stitute the institution of private property and it« attendant safeguards, so far. as that expedient is possible and effectual to the end; and it has been found thus possible and effectual in the case of all those animals whicli voluntarily so far subject themselves to human control as to enable their masters to appropriate the increase without destroying the bUm'Ic. In respect to those races which can not be subjected to hiunan control the solution has been to devise that class of regulations simply restrict- ive of slaughter, of which ordinary game law s are the types. Inasmuch as it is indisputable that the fur-seals of Alaska are ani- mals which submit themselves to human .' i m -f , ; V h '"5^ » SI ii' iii} 198 ARGUMENT OP THE UNITED STATES. sarily true. The animal being polygamous, and each male suflBcing for from thirty to fifty or more females, we have only to apply comrac i barnyard knowledge in. order to learn that under normal conditions there must always be produced a large number of superfluous males, which, if not taken away, would, of themselves, by their fierce and destructive contests for the possession of the females, not only destroy themselves in large numbers, but greatly interfere with and obstruct the work of reproduction. This superfluity of males, therefore, may be taken not only without injury, but with positive benefit to the herd. It is obvicms that it is only by diminishing the birthrate that the nor- mal numbers of the herd can be injuriously affected. If the seals were not interfered with by man the herd would increase in number, until by the operation of natural conditions tending to restrict increase, and which operate with accumtilating force as the numbers become large, such as deficiency of food, want of convenient room on the breeding places, the occupation of the males in destructive warfare among them- selves, which must greatly interfere with the work of reproduction, the deaths become equal to the births. The numbers of the herd will, other things being unchanged, then remain constant. This is so clearly explained in the Report of the Commissioners of the United States that it is unnecessary to further enlarge upon it here.* Disregarding the causes, othei than the interference of man, which may operate to reduce the numbers of the herd, such as killer- whales or other enemies, or insufficiency of food, or disease, matters concerning which we have little or no knowledge, it is manifest that the killing of a single breeding female must, pro tanto, operate to diminish the num- ber of births and thus tend tow,»rds the destruction of the animal. We need go no further. The conclusion from this single fact is certain and irresistible. Pelagic sealing means the kiUing, principally of females and breeding females; and if practiced to such an extent as to sacrifice such ilemales in considerable numbers, must, in proportion to the num- bers ScOrificed, work a destruction of the herd; and the question when the destruction will be so complete as to amount to a sweeping away of the seals as a subject of value in commerce is a question of time only. It is respectfully submitted to this Tribunal that right hero is an end of legitimate debate. Any further discussion must relate to a question how far man can tamper tcith the laws of nature without incurring an ii^jurious penalty. The answer of a tribunal bound to take notice of > Case of the United States, pp. 34G-350. th< CONCURRENT REGULATIONS. 199 3: . X and a Pago 207. *PBg»& ' ,t mi m I*. ': ^00 ARGUMENT OF TfiE UNITED STATED. 5 fair witliin the truth, may be taken aft one in every four. The number 68,000 represents, therefore, three-fourths only of tlie total killed, which would thus amount to 68,000 plus 22,666, or 90,666. Of this number, ob- serving the same cuntion in statement, at least three- fourths are females, which would thus number 68,000, or the number actually recovered. How many of these may be barren females, there is no means of as- certaining. We have no reas were taken at soa. The force had boeti steadily iaoreasiiig for years, and tliore is no reason for abelief that the progress would have ceased. Men will eagerly engage in such pursuits long after the certainty of a profit disappears. It still has great prizes, and it is these wliich tempt enterprise and risk. More than this, the scheme scarcely inttMposcs any additional difllcnltiea. It cuts ott" very little of tlie time during whicii pelagic sealing is now or can be prosecuted witli advantage. A very small additional force woula sulHce to raise the capture to the amount obtainable by the present force operating without restriction. But, Anally, and decisively, the scheme itself furnishes a cause cer- tain to bring to the work of destruction a force which would carry the slaughter far beyond the limit even of 08,000 females i)cr annum. It cuts oft" from the market the supply from the breeding islands of 50,OtK) skins, leaving that enormous deliciency to be supplied by the pelagic sealers! What greater boon could they ask? If these Commissioners had deliberately set about to contrive a project for the stimulation of pelagic sealing, and for the delight of those engaged in it, they could have devised nothing so well calculated for that end as to take out of the market .10,000 skins of the supply from the Pribilof Islands, when the price stands at 125 shillings per skiu,^ and give the ])elagic sealers a chance to make up the deflciency bet.veen the 1st of May and the 1st of September, with the privilege of entering Bering Sea on the 1st of July, and of approaching the Pribilof Islands to a distance of 20 miles therefrom. Indeed, with such temi)tations, they would greatly incrcise the catch over present limits, even if they were excluded froia Bering Sea altogether. Their catch in the North Pacilio during the present year has, it is believed, amounted to nearly that. But we must not do the Commissioners the injustice of confining criticism to a part of their scheme. It includes another feature of restriction, which is indicated as furnishing "a just scale of equiva- lency as between shore and sea sealing," and " a complete check against undue diminution of seals." This is that the United States may pro- cure an addition of ten nautical miles to the radius of the zone of protec- tion around the islands for each reduction of 10,000 below the maximum of 60,000 to be allowed to be killed upon the islands, so that a pro- tected zone of a radius of 60 miles might be obtained by a volun- 'S h 1 ^ r.. d^-\. ^>* ■Case of the United States, Appendix, Vol. II, p. 561. 204 ABOUMBNT OF THE UHITBD BTATEfl. ^ tary redaction of the number to be taken on the islands to 10,000. Of oottrse, with a farther withdrawal flrom the market of the supply furnished by the iskknds, to the amount of 40,000 skins annually, that is to say, by leaving practically the whole market to be supplied by the peliigic sealers, a force in the shape of vessels and men would speedily show itself sufficient to slaughter, not 60,000 females a season, bnt 100,000, and even more, between the first of May and the 15th of Sep- tember. But we fail to perceivetheu8e,ortheconBistenoy,of imposinga limit to which such voluntary reductions of slaughter on the breeding islands should be carried by making the minimum 10,000. Why should the United States not be permitted, i^ they desired, to purchase a pro- tected zone of 60 miles radius by g ig up the right to slaughter a single sealf The scheme had as its sole merit some poor pretension in the way of comicality. Why should this be thrown away t (2) We may be told that we are really. If not avowedly, imputing to these Commissioners an intention to protect and promote «ue interests of the Ganadiui sealers, and that this is nniair; that if they are labor- ing in behalf of pelagic* sealing, they are working as much for the inter- est of citizens of the United States as for Oauadians, inasmuch as pelagic sealing is as open to the former as it is to the latter. We do not forget the suggestion of the Gommissioners to this effect,' and we remember jit the same time, what was well known to them, that this occupation is not unreservedly open to citizens of the United States. That nation deems itselt'bound by the spirit and principlesof the law of nature, holds itself under an obligation to use the natural advantages which have fallen to its lot, by cultivating this useful race of animals to the end that it may furnish its entire increase to those for whom nature in- tended it, wherever they dwell, and without danger to the stock. It holds, as the law of nature holds, that the destruction of the species by barbarous and indiscriminate slaughter is a crime, and punishes it with severe penalties. Its enactments adopted when it was supposed that the only danger of illegitimate slaughter was confined to Bering Sea were supposed to be adequate to prevent all sucb slaughter. Are the United States to be deprived of the benefit of the seals unless they choose to abandon and repudiate the plain obligations of morality and natural lawf > Beport of Br. Com., p. 20. T OONCUBHENT REGULATIONS. 2()r) (3) Bnt what would be the ooit of this acheinet Some, not Imln-d very large, additional difficulties would be iiiterpiinod in obtaiiiiii<; t\w present pelaipc catoh of 68,000. It would require h sonirwhat l!ti-;;«>i in- vefltment of capital iu vessels and appliauces, and » sonunvhiit ^^ciitt^ expenditure iu wages. This, as has been shown, would ho tally rtoni bursed to the sealers, with a largo additional profit, by nutans nf tlio subtraction f^om the marlcet of 50,000 skins now fnniished ti-oiii the Pribilof Islands, and the consequent incrcnsv of j>m'e. This int^i ease of price must of course be paid by t lie connuniei; We can not well con- jecture the amount of it. It could liardly be h^ss, if we may roly niK>n tlie teachings of the table of prices,' than $10 per skin, and miglit amount to much more. This additional cost, increased at every stage in the process of manufacture and exchange, might easily add $130 to the price of the f>kin when it comes to the consumer, and tlins the world would be burdened by an additional la(!e, and thus discour- aged, it is on the other stimulated by the certainty of a better market and a richer reward. So persistently and exclusively have they kept this policy before them as their main object, that an ideal has been 14719 14 'Mi t Hi 'Iff 't. 210 ARGUMENT OF THE UNITED STATES. formed in their miuds wUicU they openly avow, and to attain which is tlieir constant effort. This Meal is that all taking of seals on land should be i>rohibited, and i)elaijic sealing be made the only lawful mode of capture. They thus express themselves: " It has been pointed out, and we be- lieve it to be probable, that if all killing of seals were prohibited on the breeding islands, and these were strictly protected and safe-guarded against encroachment of any kind, sealing at sea might be indejinitely continued icithout any notable diminution, in consequence of the self- regulative tendency of this industry."' And, suggesting, as the only objection to this policy which occurs to them, that it might be too much to expect of the T^'aited States to thus guard the islands and support a native population of 300 at its own expense, they continue: "It maybe noted, however, that some such arrangement would offer, perhaps, the best and simplest solution of ilie present conflict of interests, for the citizens of the United States would still possess equal rights with all others to take seals at sea, and in consequence of the proximity of their territory to the sealing grounds they would probably become the principal beneficiaries ! "^ And they finally come to the conclusion that any taking of seals at the breeding places is aii error for which there is no defense except long usage, and even that they regard as a doubtful apology. They say : While the circumstance that long usage may, in a measure, be con- sidered as justifying the custom of killing fur-seals on the breeding is- lands, many facts now known respecting the life history of the animal itself, with valid inferences drawn from the results of the disturbance of other animals upon their breeding places, as well as those made ob- vious by the new conditions which have .arisen in consequence of the development of^pelagic sealing, point to the conclusion that the breed- ing islands should, if possible, remain undisturbed and inviolate.^ These references to the opinions expressed in the reportof the Commis- sioners of Great Britain, when taken together with the scheme recom- mended by them, leave no room for doubt that the defense of the Cana- dian sealers was, from first to last, their predominating motive, and enable us to make for them the apology that they conceived that this was the duty with which they were especially charged. If this be the facti, it is easy to perceive how all their reasonings and recommenda- tions should receive a color and character. We feel obliged to say that »Koport of Br. Com., p IQ, see. 121. • Report of Br. Com., j, ^0, sec. 125. ■Report of Br. Com., p. 27, aeo. 16d. CONV.UKRENT REGULATIONS. 211 we can perceive no other ground uijou which theii- action may be made consistent with good faith. (9) But what are their avowed reasons, if any, for forming this ideal of an exclusive adoption of pelagic sealing as a proper sclicme of regula- tions for preserving the seals? We can gather from the pages of their report these three: (a) That pelagic sealing is a national or common right, which can not be taken away. (&) That pelagic sealing has a "self-regulating tendency.'" (c) That sealing on the breeding places is destructive, because of the excessive slaughter of young males, which, as they allege, is and will be indulged in, although it need not be. The first of these reasons is not relevant here, nor should it have had any place in the consideration of these Commissioners. It was a matter committed to the determination of other i)arties, and is else- where discussed by us. It may, however, be here observed that if it be a natural right of citizens of Great Britain, it must be held, as all other rights are, in subordination to the power of governments to enact legislation to preserve the useful races of animals, and Great Britain jnay certainly, if she pleases, proliibit lier citizens from exercising it, as the United States do. And if it be the subjecjt of governmental restriction, as the commissioners themselves propose to mal^e it, it may be also prohibited by governmental regulation. The third ground we have already considered. Unfounded in fact, repugnant to reason, absolutely contradicted by the experience of nearly a century on the Pribilof Islands, and, as the Commissioners themselves admit, by that on the Commander Islands for a similar period,'^ we dismiss it without further notice. The second ground, the alleged " self- regulative tendency," may be briefly noticed. What is this asserted " self-regulating tendencyV^ We must describe it in the language of the Commissioners themselves. They say: " In sealing at scathe conditions are categorically different, for it is evident that by reason of the ven method of hunting, the profits nuist decrease, other things being equal, in a ratio much greater than that -,t- ,':'l \'¥ I!'! i'l ' ' Report of Br. Com., p. 20, sec. 121. < Report of Br. Com., p. 15, seo. 92. 212 ARGUMENT OF THE UNITED STATES. r of any decrease in the numbers of seals, and that there is, therefore, inlierent an automatic principle of reffulation Kiiflieient to prevent the posnible destruction of the industry if practiced only at sea." * But what if other things should not be equal, as they certainly would not be? What if, as the supposed difficulties in capturing seals were increased, making it impossible for the same force to make tlie same catch in the same time, .and thus diminishing the supply offered in the market, the price of skins should rise, as it certainly would? Would the effect be anything except to stimulate the pursuit, bring into play a greater energy and skill, attract a larger force, and thus lead to an equal, and probably a much larger catch? In the whale fishery the price of the product continually rising so stimulated the pursuit as to attract a coutiuually augmc iting force, with the result of nearly exter- minating some of the species. The fate of the sea otter had been the same. But we need not go further than the statistical tables of pelagic Sdaling furnished by the Commissioners. Whatever may have been the increase of difficulty in obtaining seals consequent upon the increased pursuit, the price has afforded a stimulus sufficient to bring into the field a continually augmenting force, and has thus brought the aggre- gate of the pelagic catch from 12,000 in 1882 to 08,000 iu 1891. (10.) In conclusion it is submitted that the scheme proposed by the Commissioners of Great Britain is a contrivance, not for the preservation of the seals, which was by the Treaty made the sole object of their in- quiries and labors, but for the promotion of pelagic scaling, and, conse- quently, for the destruction of the seals. This is its character even upon their own views. They insist that the slaughter of 100,000 young males upon the Probilof Islands was, even before pelagic sealing was prosecu- ted, an excessive draft rapidly tending to a destruction of the herd; and yet their scheme directly and necessarily involves a slaughter of m.any more than 100,000 seals of which more than half will be females. It is believed that the Tribunal will not fail to perceive that a thor- ough consideration of the question of the feasibility of any system of regulating pelagic sealing which would permit that business to be prosecuted, and yet secure the herd from extermination, ending, as it must, in a conviction that such a system is not feasible, leads, by a somewhat different path, to the same conclusion which is reached by a > Bepoit of lir. Cora., p. 19, hoo. 118. CONCURKENT REGULATIONS. 213 direct iuquii-y into tlio question of property. It fully establishes the conclusion that the only ** concurrent regulation" which can preserve the seal hertls from practical exterininatiou is one simply and absolutely prohibitive of pelagic sealing, and that this therefore is necessary. And tliis is tantamount, in its effect, to the recognition of a i)roi)crty inter- est in the proprietors of the breeding islands. If a bona fide effort were made to allow pelagic sealing under condi- tions which would reduce its destructive effect to a point where it might be neglected as unsubstantial or insignificant, real, not pretended, restriction would be secured. Tlie effort would be to falce away, not to add, inducements to embark in it. The method would be to discour- age it, to throw difficiUties in the way of it, to so restrict it in place or time, or both, that little chance for profit would remain. To this end a prohibition during Marcli and April would be wholly useless. It could not be safely allowed even for a single month in the period from April to October. The privilege must be limited to stormy weather which repels enterprise. And this is to prohibit. If we mean to pre- serve the seals, we must submit to be governed by those natural laws upon an observance of which their preservation depends. These teach, with a directness and certainty which can not be misunderstood, two things. First. In the case of animals over whom man has no control, such as most wild animals are, if they are in danger of destruction from too eager pursuit, restrictious in tlie nature of game laws, which operate simply to diminish the destruction, without changing its character, are the only preventive measure which society can apply. And it can not ab- solutely prohibit destrucstion, for this would be to prohibit the use of nature's gift. This remedy is apt to be insufficient, from the difticulty of enforcement, but it tends to preserve, and sometimes succeeds in pro- serving, that which it is designed to save. Second. But where some men liave such a control over the animal that they can by abstinence, art, and industry reap its full natural in- crease and make it available for human wants, and at the same time preserve the stock, society can, as it does, preserve the animal, and at the same time secure the full benefit of its natural increase by permit- ting them to kill at discretion, and prohibiting killing by all others. The United States stand upon the assertion of their property inter- est, and if that is recognized, they conceive that they have the ability to protect it on every sea. It is not usual for one nation to voluntarily ')r ii! '! ! i '•"'■te 11 ■! , i^ ':■■! 214 ARGUMENT OF THE UNITED STATES. ask t1)c aid of another in the defense of its rights. Each is ordinarily left to enforce its own laws with its own power. The United States do not ask for the slightest measure of aid in tae performance of what is properly their own exclusive work. But it may happen, and does happen in the present case, that what from natural situation may be peculiarly the proper work of one nation, may yet be the work, in some degree, of others. The destruction of a useful race of animals is the destruction of property belonging to the whole world, and is a crime against the law of nations. To pre- vent and punish it is as distinctly the duty of all civilized nations as it is to prevent and punish the crime of piracy. The pelagic sealer is hostia humani generis, just as the pirate is, though witli a less measure of enormity and horror. It is, therefore, part of the duty of nations to forbid their citizens from engaging in the practice of pelagic sealing and, as the parties to this controversy have voluntarily submitted it to this Tribunal to declare what regulations outside of their respective jurisdictions it is their duty to concur in and enforce for the preserva- tion of the seals, it is entirely proper tbat the tribunal should frame, even while recognizing the property interest asserted by the United States, a simple regulation, to be concurrently adopted and enforced by each nation, prohibiting all sealing at sea, except by the native tribes of Indians on the northwest coast of America for the purposes of food and clothing in the manner iu which they were originally ac- cust/omed to prosecute it. Jajvies 0. Uabteb. 1 DAMAGES CLAIMED BY THE UNITED STATES. 215 FIFTH. CLAIMS FOR COMPENSATION. I. — Damages Claimed by the United States. It is provided in article viii of the Treaty that either party may submit to the Arbitrators any question of fact involved in any claim it may have against the other; and ask for a finding thereon, " tie question of the liability of either government upon the facts found to be the subject of further negotiation^" As the undersigned construes this paragraph, it limits the range of inquiry by the Tribunal to facts which bear only upon the amount of the claims submitted, as the question of liability is left open to be settled -by negotiation. And in the fifth article of the ModnsVivendi of May 9, 1892,' it is pro- vided that — If the result of the Arbitration be to affirm the right of British sealers to take seals in the Bering Sea, within the bounds claimed by the United States under its purchase from Russia, then compen sation shall be made by the United States to Great Britain (for the use of lier sub- jects) for abstaining from the exercise of that right during the pendency of tlie Arbitration, upon the basis of such a regulated and limited catch or catches as in the opinion of the Arbitrators might have been taken without an undue diininntion of the seal herds; and, on the other hand, if the result of the Arbitration shall be to deny the right of British sealers to tjike seals within said waters, then compensation shall be made by Great Britain to th.e United States (for its citizens and lessees) for this agreement to limit the island catch to 7,500 a season, upon the basis of the difference between this number and such larger catch as, in the opinion of the Arbitrators, may have been taken without an undue diminutiini of the seal herds. This leaves the number of seals which might have been taken in the Bering Sea by the British sealers, and upon the Pribilof Islands by the lessees of the United States, without danger of reducing the seal herd, wholly to the judgment of the Tribunal under the proofs sub- mitted. > Case of the United States, Appendix, Vol. I, p. 7. l'-i/4 " M i 216 ARGUMENT OF THE UNITED STATES. I u In tlio printed Case snbmitted on behalf of the United States, a claim is presented under the clause last quoted, for compensation to the Unit«Kl States for the increased amouut of rental which the United States would have received upon an additional number of skins taken, and for a bonus of S9.()2^ on each skin, to be paid by the lessees of the islands, over and above the bonus upon the 7,600 skins, which are per- mitted to be taken under the Modus VivendU And a claim is also sub- mitted b.v the United States in behalf of its lessees for the profit the lessees would have made upon an increased number of seals which might have been take above the 7,500 but for the Modus VivendiJ^ The Case also submits a claim in behalf of the United States and lessees for compensation for the limited number of seals taken under the Modus Vivendi of 1891. Frankness requires us, as we think, to say that the proofs, which ap- pear in the Counter Case of the United States as to the condition of the seal herd on the Pribilof Islands, show that the United States could not have allowed its lessees to have much, if any, exceeded the number of skins allowed by the Modus Vivendi of 1892 without an undue dimi.- nution of the seal herd, and upon this branch of the case we simply call the attention of the Tribunal to the proofs, and submit the ques- tions to its decision. As to the claims submitted in behalf of the United States and its lessees under the Modua Vivendi of 1891, the undersigned also feels con- strained to say that, as no provision for the payment of compensation to either party is provided for in that agreement, and as, under the laws of the United States and lease of the islands by the United States to the North American Commercial Company, the United States had the full power, through its Secretary of the Treasury, to limit the catch in any year to such number as in the discretion of the Secretary of the Treas- ury might seem proper, we must admit that no right of compensation accrued under that agreement to either the United States or its lessees, for the reason that the agreement was wholly voluntary, and such as the two governments were entirely competent to make, and no right to compensation would accrue to either government or its citizens unless specially provided for in the Modus Vivendi. »CuHO of the Uuiteil States, pp. 286-289. *Ihid., pp. 289-291. ! ^i DAMAGES CLAIMED BY GREAT lUlITAIN. II.— Damages Claimed by (Jueat Britain. 217 TIio claims submitted on tlin part of Groat Britain aro for damajyes sustained by certain of ita subjects by reason of the seizure by tbo United States of certain vessels allep:ed to belong to such subjects, and warning certain British vessels engaged in sealing not to enter Bering Sea, and notifying certain other British vessels engaged in the capture of seals in Bering Sea to leave said sea, whereby it is insisted that the owners of such vessels sustained losses and damages, as set forth in the respective claims, these claims being stated in detail in the ^^ Scheilule of particukirs^' o{ said claims appended to the British Case. The right and authority of the United States to protect the seal herd, wdiich has its home in the Pribilof Islands, and in the exercise of such right to make reprisal of seal-skins wrongfully taken, and to seize, and, if necessary, forfeit the vessels and other property employed in such unlawful and destructive pursuit, is a necessary incident to the right asserted by the United States to an exclusive property interest in said seals and the industry established at the sealeries. We, however, preface what we have to submit on this feature of the case by saying that, if it shall be held by this Tribunal that these seizures and interferencen with British vessels were wrong and un- justifiable under the laws and principles apj^licable thereto, then it would not be becoming in our nation to contest those claims, so far as they are just and within the fair amount of the damages actually sus- tained by British subjects. And, even if it shall be decided by this Tribunal that the United States were not justifiable, under the circumstances and the law, in making such seizures and interfering with British subjects in the pursuit and capture of fur-seals in the Bering Sea, still that deciision would furnish no ground for claims based on wholly illegal and unten- able grounds, nor for extortionate demands. The actual damages sustained by these British subjects, in behalf of whom these claims are presented by the British Government, must, un- doubtedly, be finally settled, according to the terms of the Treaty, by ne- gotiations hereafter to be had ; but, as findings of fact in regard to these claims are asked for, our purpose in this part of the argument is to call attention to some of the elements which go to make up these claims, and show, as we think, conclusively, that such elements can ^1 ••Ifi 1 1 1 1 I < 'u -M 218 ARGUMENT OF THE UNITED STATES. not ontor into daims for componsatiun against tlie United States under the Treaty. And wo contend- First. Tliat only claims properly duo to mihjcota of Oreat Britain should be submitted on tlio part of that nation and fludinfjs of facts fisked in relation thereto; and in the application of tiiis principle we insist that it is shown by the Counter Case of the United States and the Appendix thereto that the schooner W. P. Sayicard and the steam schooners Thornton, Anna Beck, Orace, and Dolphin, witli all their sup- plies and outfits, were in fact owned by one Joseph Boscowitz, a citizen of the United States at the time these vessels were respectively seized by the United States oflBcers;* that for sometime prior to the fall of 1885 said schooner and steam schooners had been engaged in the scal- ing business in the joint interest of said Boscowitz and one James Douglas Warren; that Warren had no capital, and although nominally interested in said vessels and their catch as half owner, yet in fact the money representing his share in the vessels was loaned to him by Boscowitz, and secured by mortgages to Boscowitz on the vessels; that in the fall of 1885 Warren became insolvent and made an assign- ment for the benefit of his creditors, and in order to transfer the title to these vessels a sale of them was made under the Boscowitz mort- gages, and one Thomas H. Cooper bid the vessels off at such sale for the sum oi* $1, Cooper being a bi"other-in-law of Warren and a British subject, res Counter Case of the United States, p. 30; App., pp. 255,351. * Counter Case of the United States, App., pp. 321-;i25. •Ibid., p. 351. *Ibid., p. 36B. owner of the Wiincn are pit'iidings ai cross ^'AiS(^ of The pniof with their ^J were seized deposition of States consu in the iuudch And tliat f in fact ownci Frank, a citix although reg It will be been seized, but that tw( Pathfinder, y, schedule con1 to which dai owned by cit It is-fissuni niitted show.' zens of the names of Bi justify a fine sustained da Grace, Dolph and TAly. We theref( of theTribuii ' Ibid., pp. 32 *Ibid., pp. .30 ' Counter Cas */6«rf., 261. 'Case of Her United States, "Counter Caa » Case of Her •iWd., p. 1. DAMAOER CLAIM I L) BY GUEAT IJRITAIN. 2i9 owner of the said voasols;' and tlie relations between Boscowit/, and Warren are shown in the testimony of Moseowifcz and Warren, and the plead injjs and decrees in the .lase of Warren vs. Boscowitz and the cross case of Boscowit/, vs. W^arren, in the conrts of British Columbia.* The i)roof also shows that tlic schooners CnroUna and Pnlhfmih'r^ with their sui)|)lies and oiiMits, were, in fact, owned at the time they were seized by one A. J. P>echt Ihid., pp. 320-325. «Z6W., pp. 301-320. 'Counter Case of United States, Appendix, p. 351. * I bid., 261. •Case of Her Majesty's Governmont, Schedule of Claims, pp. 1, 40 ; Counter Case of United States, Appendix, p. 25G. " Counter Case of United States, Appendix, p. 352, TCase of Her Mi^esty's Goveinmeut, Soliedole of Claims, pp. 32, 48, 60. •lUd., p. 1. ,\<\ I 220 ARGUMENT OF THE UNITED STATES. for that reason tlic Tribunal can not be called upon to find any facts respecting them. To justify a finding upon a claim, it must be made to appear iiflSrma- tivcly, by a clear preponderance of proof, that the claim is owned by one of the Governments, parties io this Arbitration, or to a citizen or subject of such Government.* We insist that we may, with propriety, go farther and say that, if there is even doubt that a claimant is a citizen of the nation tliat pre- sents a claim in his behalf, that doubt should of itself be enough to preclude any finding of facts involved in such claim. The powers and jurisdiction of this Tribunal are delegated to it by the Treaty wliich is in itself but a contract or agreement and its terms can not be enlarged or amijlifled by construction. In taking this ground we do not intend to cast any aspersion upon the good faith of the British Government, or its Agent, for having pre- sented these claims, as we admit that on the face of the claims as pre- sented they appear to be in favor of British subjects. But we do insist that it is right for this Tril)unal to go behind the face of the papers and ascertain, from proofs furnished, whcjther or not the persons to be benefited by the allowance or payment of these claims are in fact British subjects, and that no fticts should be found involved in any claim where there is even good ground for doubt that such claim be- longs to a British subject. Second. All these claims but two (the Triumph, No. 11,* and the Fathfindcr, No. 20,^ of schedule) contain an item for '■'■loss of probable catch,^^ " loss of estimated catch,''^ '' balance of probable catch," '■'■probable catch,^ etc.* All of which will more fully appear by the following t/abulated statement: No. 1. OaroNna, estimated catch ^^'GjGO? No. 2. Thornton, estiniat^d catcb 16, BG7 No. 3. Onward, estimated catch 16, t)G7 No. 4. Faforile, estiniu tod loss of en ( eh 7, 000 No. 5. Sa-jward, pr<)l)ul)le catch of 1SS7 19, 250 No. O. O'cflCf, prol)rtl)lo catch 23,100 No. 7. Anna Heck, iirobablo catch 17. 323 No. 8. 7)o?|)ft«n, iiroUable catch 24,750 'Article viii of Treaty of Arbitration. •Cnsenf ITcr M.ijcsty's Governmont, Sohednlo of Claims, p, SO. "•/ftid., p. 57. ♦/Mrf., pp. 1-fiB. DAMAGES CLAIMED BY GREAT BRITAIN. 221 S(> 9. -'1 r/r«l ^4rfom8, probable catnli $19,230 No. 10 Ada, probable catcli 15, 8m No. 12. Jii-.nala, estimated catch 9, 424 No. 13. Pathfinder, estimated catch l.'>, ;W No. 14. IHumph, estiiiiated catch 19, 4; No. 15. Black Diamond, cstiniatoil catch 16, 19 No. 16. Lili/, balance of catch 14, 13 if No. 17. Ariel, balance of estimfited catcli 9, 248 No. 18. Kate, balance of catch 10.1160 No. 19. Minnie, balance of catch 16, 112 357, 353 All these items are subject to the objection that they are iirospective profits, uncertain and contingent in their nature, and can not be made the basis of a claim for compensation to the owners of these vessels. In Sedgwick, on the " Measure of Damages," page 69, sixth American edition, it is .said : The early cases in both the English and American courts, generally concurred in denying profits as any part of the damage to be comi)eu- sated, whether in cases of contract or tort. In a case for illegal capture, Avhere one of the items of the claim for damages was the profits on the voyage broken up by the capture, the court said : Independent, however, of all authority, I am satisfied upon principle that an allowance of damages upon the basis of a calculation of profits IS inadmissible. Tiie rule would be in the liighest degree unfavorable to the interests of tiie connuunity. The subject would be involved in utter uncertainty. The calculation would proceed upon contingeuijies ond would reijuire a knowledge of foreign markets to an ex;u;tness in point of time and value, which would sometimes present embarrassing obstacles. Much would depend upon the length of the voyage and the season of the arrival; much upon the vigilance and activity of the mas- ter, and Jinich upon the momentary demand. After all, it \: tmld be a calculation upon conjecture and not upon facts.^ In the case of the Aminhh Waney^ Mr. Justice StA)ry, speaking for the United States Supreme Court, said : Another item ih $3,500, for the loss of the supposed pi'oflts of the voyage on which the Aniialde Nnncu »vis orisrinally boiiud. In the opinion of the court, this item also wa.s properly rejected. The prob- iible or j)()SHible benefits of -.i voyage, an yet in fieri, can never all'ord a safe rule by which t.o estimate damages iti cases of a marine trespass. Tlnere is so much uncertainty in the rule itself, «o nniiiy (iontingencies wliich may vary or extinguiah its ap}>]icatioM, and so many dillicul- ties in sustaining its legal correctnesH, that the court "o... not believe it proper to entertain it. In several cases in this court, the claim for I tt' ■:! %\ 1 Xho Hchooucr Lively, 1 Uallisuu, 314. I * ' ! ; - ii^i 222 ARGUMENT OP THE UNITED STATES. profits has been expressly overruled ; and in Del Col v. Arnold (3 Dall., 333) and The Anna Maria (2 Wheat., 327), it was, after strict con- sideration, held that the prime cost, or value of tlie property lost, at the time of the loss, and in case of injury, the diininutio'i in value by reason of the injury, \yi 111 interest upon such valuation, afforded the true measure lor assessing damages. This rule may not secure a com- plete indemnity for all possible injuries; but it has certainty and gen- eral {ii>plicability, to recommeud it, and, in almost all cases, will give a fair and just recompense.' And in Wood's Mayue on Damages,'^ the author, ?• 'teuking of damages in cases of tort, says : ' - In general, however, injuries to property, where u ;accompanied by malice, and especially where they take place under a fancied right, are only visited witli damages proportionate to the actual pecuniary loss sustained. While it is conceded that there has been some relaxation of the rigid rule of the early cases in England and the United States, in regard to the allowance of profits as an element for the award of damages or compensation, it is undoubtedly still the rule in both countries that profits can only be allowed as damages where they are in the contem- plation of parties, iu cases arising on contract, and where they are the necessary and proximate result of the injury in cases of tort, and in those latter cases only where they can be proven or establ" -..ci \7ith substantial certainty.^ These vessels were all engaged in a hazardous voyage upon th'» boist- erous waters of the North Pacific Ocean and Bering ^Ui, suujft t-^ 11 the perils of the sea, and the mind can hardly conceive any event more uncertain and contingent then the number of seals they would have captured if they pursued their voyages unmolested. Shipwreck and every other element of uncertainty, including the proverbial uncertainty which is always an elerne:.u In fishing and hunting expeditions, would seem to attend all such ventures, and the cogent reason / t of Mr. Jus- tice Story in the cases just cited seems unqualifiedly ii)\ - • •i*:le to the items of " probable catch," etc., presented in this scliedun , r clainjs. The Tribnnal will bear in mind that the United States do not ocxjupy the position of a tx)rt f'W.soi, subject to exemplary or vindic- tive damages. "The King ^Sjverei^ii) ci.t do no wrong." The acts, in respect to which compensation is asked in behalf of these British >3 Wheaton'8 U. 8. Ropt8.,54B; 8eealso8inith»». Courtry, I How. U. 8. Repts., 28-34. •First Aiuoricaii (Mlitioii, from third l';njj;lish tnlitioii, p. 5(3. *Hadley v». liuxuiidule, 9 Exch. 341; MuHtcrtou va. Miiyur of Brook]jrn 7 Hill, ti2. DAMAGES CLAIMED BY GREAT BRITAIN. 223 subjects, were performed by the United States iii the exercise of its sovereignty, and the execution of its statutory laws, and uo malice or other unjust motive can be imputed to those acts. Among the claims presented by the United States in behalf of its citizens to the Tribunal of Arbitration upon the Alabama claims, which met at Geneva in 1872, under the treaty between Great Britain and the United States, were a large number of claims like tliose now under consideration, for the prosi)ective earnings of ships destroyed by the rebel cruisers in the late civil war of the United States, and that tribunal, by the unanimous vote of its members, said in regard to such claims : And wLereas prospective earnings can not properly be made the 8ubje(jt of compensiou inasmuch as they depend in their nature upon future and uncertain contingencies, the tribunal is unanim(msly of opinion that there is no ground for awarding to the United States any sum by way of indemnity under this head,' It is therefore respectfully submitted that the rule of decision adopted in the case of the Alabama chiims is well established in the jurisprudence of the two nations now at the bar of this Hiffh Tribunal; and in the light of the authorities cited the undersigned respectfully insists that the items in these claims for "probable catch," "estimated catch," etc., which amount in the aggregate to over two-thirds of the grand total of the claims presented, must be considered as wholly speculative and ao uncertain that Great Britain is not entitled to any flndir.^; as to any fact involved therein, except the fact of their uncer- tain ;.y, wliioh appears on the face of the claims themselves. In the claims growing out of the seizures of the Carolina, Thornton, Onicard, Say ward, Grace, Anna Bcclc, DolpJiiii, and Ada there are also items for the future earnings of those vessels,'^ namely : No, 1, Carolina, seized 1886: Claims for earnings in 1887 ; .;. $5,000 Claims for eaniings in 1888 5, 000 No. 2, Thornton, seized in 1886 : Claims for estimated losa to owner by detention in 1887 5, 000 Claims for estimated loss to owner by detention in 1888 5, 000 No. 3, Onward, seized in 1886: Claims reasonable profit for season of 1887 5, 000 Claims reasonable profit for season of 1888 f>, 000 'Geneva Arbitration, Coni^rossional publication, vol. iv, p. 53; see also Wheatou's International Law (Boyd's 3d English edition), see, 539, t, p. 592. 'Case of Her Majesty's Govcmmcut, ScLi;dulo of Claims, pp. 5,9, 11, 19, 23, 27, 31,36. :m .if ■'-# !M •I-!- i ' Ui p 224 ARGUMENT OP THE UNITED STATES. No. 5. Saj/ward, seized in 1887: Claims for earnings in cbastiuf? ovade in fall of 1887 $t, 200 Earnings for season of 1888 6,000 No. 6. (irace, seized in 1887 : Claims for probable earnings in fall of 1887 2, Case of Her Majesty's Government, Schedule of Claims, pp. 18, 22, 25, 29. •Report of Br. Com., seo. 407, p. 74. 14749 15 !>>; i'l I ,[i Ii t Hi .'1 '4 1, rt ■ - -'ill it -mi 226 ARGUMENT OP THE UNITED STATES. ,'■ on the weather experienced, that the figures representing the catch compared to the boats or whole number of men employed constitute a more trustworthy criterion than any general statements. ^ We may, therefore, safely say that if conjecture, based upon any rule of averages, is to be resorted to for the purpose of attempting to ap- proximate the probable catches of these vessels, the British Commis- sioners have given far more reliable data than that furnished by these claimants. The fallacy of these "estimates" is also shown in another way. We open the schedule of the British claims at random and take the claim growing out of the seizure of the Minnie, No. 19.* It seems, from the declaration accomi)anying the claim, that she left Victoria the fore part of May on a scaling voyage in the Jforth Pacific Ocean and Bering Sea. She entered Bering Sea on the 27th of June, at which time she had caught 150 seals. She hunted seals in the Bering Sea until July 15, during which time she had taken 270 skins, which was at the rate of 15 skins per day. She was seized on the 15th of July; leaving her 16 days of July and 16 in August, making 32 days in all of her sealing season, during which time she would have caught, at the rate of 15 per day, 480 seals; to which adding the 420 she had taken previously, makes a total catch for the sealing season of 900; while her "estima- ted catch" is 2,500 seals for the season. Take also the claim of the Ada, No. 10.' She entered Bering Sea, as is shown by the declaration accompanying the claim, about the 16th day of July, 1887, and continued sealing in the said sea until the 25th day of August, which was beyond the time when skins taken are con- sidered merchantable,^ and within two weeks of the time when, as the British Commissioners admit,* the sealing season closes, and yet her entire catch up to that time was only 1876 skins, while the "estimated" or "probable catch" is put at 2876. The value and tonnage of these vessels is also largely overstated, as is shown by the tables submitted with the Counter Case of the United States,* and the value jof several of the vessels seized was ascertained by sworn appraisers of the District Court of Alaska and shown to be much lower than the value stated in this schedule of claims. '' That these I appr propi selsl cept to ha boDd W( succe deem Tribu again invari willp •Report of Br. Com., p. 73, sec. 407. "Case of Her Majesty's Government, Schodnle of Clauns, p.P«J. s Ibid, p. U. *Connter Case of the United States, Appendix, pp. 357, 376, 384. •Report of Br. Com., sec. 212. . " Counter On' <■ of the United States, Appendix, pp. 339, et ieq, » Ibid., pp. 32y- 38. DAMAGES CLAIMED BY GREAT BRITAIN. 227 appraisals were fair and showed the substantial and fair value of the property is evidenced by the fact that, althi>ugh the owners of the ves- sels had the privilege of releasing them upon bonds, none of them, ex- cept the Sayicard, were so released, although application was made to have their valuation reduced in order that the owners might give bonds.* We might follow the analysis of different items of these claiTus and successfully show that they are all very much exaggerated, but do not deem it necessary to do so, because we feel sure the members of this Tribunal will take notice of the fact that individuals in making claims against a government, whether it be their own or a foreign government, invariably expand these claims to the largest amount their consciences will possibly tolerate. H. W. Blodgett. lYs 1**1 1 H "k > Senate Doc. lOG, SOtli Cong., Second Scss., pp. 28, 74. i1. UK u:. >i*. h 't-i ■ii: in i;ri 228 ASQUMEKX OF THE UNITED STATEa SIXTH. SUMMARY OP THE BVIDENCB. To the end that the High Contracting Parties should become ftilly in- formed of all the facts bearing upon the differences between them, and as a right method of securing evidence as to those points touching which a dispute might exist, it was stipulated by Article IX of the Treaty that two Commissioners on the part of each Government should be appointed to make a joint investigation and to report, in order that such reports and recommendations might in due form be submitted to the Arbitrators, should the contingency therefor arise. The Commissioners were duly appointed in compliance with this pro- vision of the Treaty, and so far as they were able to agree, they made a joint report, which is to be found at page 307 of the Case of the United States. It will be seen from this joint rejiort that the Commis- sioners were in thorough agreement that, for industrial as well as for other obvious reasons, it was incumbent ujwn all nationSj and particu- larly upon those having direct commerdal inter enta in furseaU, to pro- vide/or their primer protection and preservation. They were also in accord as to the fact that since the Alaska purchase a marked diminu- tion of the number of seals on and habitxtaUy resorting to the Pribilof Islands had taken place; that this diminution was cumulative in effect and was the result of excessive killing by man. Beyond this the Com- missioners were unable, by reason of considerable difference of opinion on certain fundamontal propositions, to join in a report, and they there- fore agreed that their respective conclusions should be stated in sev- eral reports which, under the terms of the Treaty, might be submitted to their respective Governments. The United States have submitted, with the report of their Commis- sioners, a voluminous mass of testimony which appears to have been elicited from all classes of persr > who, by their education, residence, training, etc., might be enabled to give information of practical value and of a reliable character to the contracting governments. lit has SUMMARY OF THE EVIDENCE. 229 been the Intention, in procuring evidence, to follow, as closely as the circustances permitted, the principles and methods obtaining in both countries in litigation between private parties, and although it was not possible to produce each witness before a magistrate and tender him for cross-examination, in every instance the name, the residence, and the profession or business of the witness has been given, and in every instance the witness has sworn to the truth of his deposition. This method of performing their functions may be favorably contrasted with the course which the Commissioners of Great Britain thought it incum- bent upon or permissible for them to pursue. In very few instances have they seen fit to give the name of their informant or to place it in the power of the United States to test the reliability of the source Irom which they had derived their knowledge, real or supposed. But they have presented a great mass of statements of their own, evidently based in a great measure upon conjectui'e, much of it directly traceable to manifest partiality, and marked, to a singular degree, by the exhibition of prejudice against the one party anil bias in favor of the other. The extent to which this has been carried Kiust, in the eyes of all impartial persons, deprive it of all value as evidence. How far counsel for the United States are justified in making thia sweeping criticism upon the work of the British Commissioners will appear hereafter, when detailed attention is given to the result of their labors. The adoption of such a course is the more to be regretted as it was evidently the purpose and object of the British Government that an entirely dififerent investigation should be carried out by its agents; nor had that Government hesitated to express its earnest desire that the actual facts should be given and that the investigation should be carried on with a strict impartiality. It is certain that the Commissioners were warned in clear language that "great care should be taken to sift the evidence that was brought before them." (See instructions to the British Commissioners, page 1 of their Eeport). In attempting to lay before this distinguished Tribunal the facts that may enlighten its judgment, the counsel for the United States propose to show what facts are established, substantially without controversy, and wherein their contention in case of difference is sustained by un- mistakable preponderance of proof. For the purpose of facilitating the labors of this body, they propose to treat every topic of special im- portance separately and to produce the evidence which has a bearing upon the discussion of its merits. m " ^ r ' i I f 11 t ' i 230 ARGUMENT OF THE UNITED STATES. I I.— The General "N'ature and Ohaeaoteeistios of the Fub-Seal. It is unfortunate that even upon so familiar a subject and one so often treated as the seal, its nature, and habits, there should be a wide di- vergence between the Araericau and British Commissioners. In fact, it would seem that the animal observed by the Commissioners from Great Britain was an entirely different animal from that considered and studied by the Commissioners appointed by the United States. This is the more remarkable because for more than a century a multi- tide of observers, scientists, government agents, and overseers have been giving their attention to the nature, habits, and life of the fur bearing seal, the best method of protecting the animal from destruction, and the wisest course to secure an annual increase for the purposes of commerce; the reason for which the supply of these valuable creatures has diminished; the number of animals yearly killed, etc. They cer tainly by this time ought to have become fairly ascertained and known and to be placed beyond the reach of discussion or dispute, and so, in fact, they seem to be. There has been a general concurrence among the observers referred to, as complete as may be found among the same class of persons in relation to the nature and habits of ordinary domestic animals. But it has become apparent that the British Commissioners have in their separate report thought fit to make an elaborate defense of the practice of pelagic sealing and to have imparted to their investigations and the formulation of their conclusions so strong a desire to protect the supposed interests of their people as to lead them to most extraor- dinary conclusions; indeed, this unfortunate result seemed almost inevitable, the premises upon which they started being conceded. To defend pelagic sealing, the main feature of which consists of slaughter ing gravid females or nursing mothers, it was almost inevitable that some fundamental mistakes should be made as to the nature and hab- its of the animals and that statements should be adopted and theories advanced which, upon their face, are utterly unworthy of countenance or respect. The animal discovered by the British Commissioners might be defined to be a mammal essentially pelagic in its natural condition and which might be entirely so if it chose to be; an animal, too, which is gradually assuming that exclusive character. Coition takes place very frequa itly and more naturally in the water. It is a polygamous animal and when on laud exhibits extreme jealousy to guard its harem. SUMMARY OF THE EVIDENCE. 231 but wlietlier tliix disposition is preserved and exhibited in the water, and how or whether this is a disappearing trait, does not appear. Two pups are not infrequently dropped at a birth, and the mothers, with a generous disregard for the ordinary rules of maternity in nature, suckle their own when it is convenient, but take up other pups indifterently, pro- vided the strange offspring does not betray the odor of fresh milk. By this indiscriminate display of maternal instinct the generality of pups are supjmrted until they are able to procure their own food. The loss of an individual mother becomes in consequence of this a matter of small moment, and, to make the peculiarity of the animal especially renuirkable, it is said to abstain, during several weeks of the nursing period, from seeking food for itself and for the young offspring that would generally be supposed to drain its vitality. Such is the seal and such are the habits, especijilly of the females, as seen and described by the British Commissioners. The expression of an opinion so directly in conflict vith those gen- erally received would seem to require the most cogent proofs. Reliable authorities should be cited and their name.; given. Hazardous conjec- tures shoiUd be wisely laid aside; ignorant, hasty, and prejudiced gos- sip should be treated as it deserves, and some etiort made to reconcile individual observation with generally accepted and accredited facts. The counsel for the United States have no hesitation in saying that if the question to be decided were one in which the common-law rules of evidence prevalent in both i)arties to the Treaty were applied, they would respectfully insist, with mucl' • 'i.'ldence, that there is no d/spM^e really as to the main facts in this case. A controversy as to facts in the juridical sense implies an assertion on the one side and a contra- diction on the other; but contradictions (jan not be predicated on state- ments unauthenticated by proof and unsupported by general experience. It would suffice to show that the Report of the Commissioners from Great Britain simply presents the assertions and conjectures of gentle- men who, however respectable their character may be, were not called upon to express, and are not justified in laying down conclusions, except in so far as they have reached them by an examination into actual fat'ts, the sources of which both Governments would be entitled to consider. Justice to the disputants, as well as a proper respect for the Tribunal, would seem to dictate this necessity of avoiding the rash expression of coi^jectares generally unsupported, but occasionally founded on other to persons familiar with the two herds and their characteristic ais once established would naturally prove that there is no commingling of the respective herds. But we are not left to inference upon this point, and may con- fidently claim that the proposition is affirmatively established by testi- mony respectable and creditable in itself, while it is wholly uncontra- dicted by proof. This is the statement in the Case of the United States: The two great herds of fur-seals wliich frequent the Bering Sea and North Pacific Ocean and make their jomes on the Pribilof Islands and Commander (Kouiandorski) Islands, respectively, are entirely distinct from each other. The difference betxreen the two herds is so marked that an expert in handling and sort! ig seal skins can invariably dis- tinguish an Alaskan skin ftv m a Con mander skin. In support of this we have abundant and most respectable testimony. oVlr. Walter E. Martin, head of the London firm of C. W. Martin & Co., which has been for many years engaged in dressing and dyeing seal skins, de- scribes the difference as follows: "Thi Copper Island (one of the Com- mander Islands) skins show that tho animal is narrower in the neck and at the tail than the Alaska seal 'i,nd the fur is shorter, particularly under the flippers, and the hair has a yellower tinge than the hairs of the Alaska seals." In this statement he is borne out by Snigeroft", a native chief on the Commander Islands and once resident on the Pribilof Islands. O. W. Price, for twenty years a dresser and examiner of raw seal- skins, describes the difftjrence in the fur as being a little darker in the Commander skin. The latter skin is not so porous as the Alaskan skin, and is more dillicult to unhair. The difference between the two classes of skins has been further recognized by those engaged in the seal-skin industry in their different market value, the Alaska skins always being held from 20 to 30 per cent more than the "Coppers" or Commander skins. This difference in value has ahso been recognized by the Russian Goveinmeut. BUMMABY OF THE EVIDENCE. 233 (A) THE HERDS ABE DIFFERENT, Mr. Ooorge Bantle (p. 508, Appendix to Case of the United States, Vol. II), one of the witnesses upon this jKiint, is a packer and sorter of raw fur-kins. He had been in that business, at the time of testifying, twenty years, and had handled many thousands of skins. Ue says: lean tell by examining a skin ichether it was caught in season or out of season, and whether it was caught on the Russian side or on the Ameri- can side. A Kussian skin is generally coarser, and the under wool is generally darker and coarser, than tlie skins of seals caught on the American side. A Kussian skin does not make as tine a skin as the skins of the seals caught on the American side, and are not worth as much in the market. ! can easily distinguish one from the other. Mr. H. 8. Bevington, M. A. {ibid., p. 551), a subject of Her Britannic Majesty, forty years of age, the head of the firm of Bevington & Mor- ris, 28 Common street, in the city of London, was sworn and testified upon the subject. His testimony is interesting, and may be found at page 550, Volume ii, of the Appendix to United States Case. Upon the subject of the variations observable, he says : That the differences between the three several sorts of skins last mentioned are so marked as to enable any person skilled in the busi- ness or accustomed to handle the same to readily distinguish theskiiis of one catch from those of another, especially in bulk, and it is the ftict that when they reach the market the skins of each class come sei)ar- ately and are not found mingled with those belonging to the other classes. The skins of the Copper Island catch are distinguished from the skins of the Alaska and Northwest catch, which two last-mentioned classes of skins appear to be nearly allied to each other and are of the same general character, by reason of the fact that in their raw state the Copper skins are lighter in color tluin either of the other two, and in the dyed state there is a marked difference in the appearan(;e of the fur of the Copper and the other two classes of skins. This difference is difficult to describe to a person unaccustomed to handle skins, but it is nevertheless clear and distinct to an expert, and may be generally de- scribed by saying that the Copper skins are of a close, short and shiny fur, particularly down by the flank, to a greater extent that the Alaska and Northwest skins. Joseph Stanley-Brown {ibid., p. 12) a geologist of distinction, resid- ing at Mentor, Ohio, was commissioned by the Secretary of the Treas- ury to visit the Pribilof Islands for the purpose of studying the seal life found thereon ; he spent one hundred and thirty days in actual inves- tigation and study of the subject. While he does not claim to have becoiue an expert in that time as to the various and distinguishing ili: !*' 234 AEQTJMENT OP THE UNITED S'f ATEa characteristics of the animals, he stated the result of his efforts to ascertain the truth in this respect: I learned that fur-seals of the species Callorhinvs ursinns do breed and haul (uit .it the Couiinander Islands and " ilobben lieef," but the stiitementN made to me were unanimous that they are a separate herd, the pelt of whicli is readily distinguished from that of the Pribilof herd, and that the two herds do not intermingle. Isaac Liebes, a fur merchant of twenty-three years standing, residing at San Francisco, claims to have handled more raw fur-aeal skins than any other individual in the United States or Canada and more than any iirm or corporation except thelesseesof the sealeries of the Pribilof and Commander Islands. His whole deposition, based as it is upon long practice and experience, may be read with profit. On the subject of the (Tiflerences between tlie skins of animals belonging to the re- spective herds, he says : {ibid.^ p, 445.) The seals to which I have reference are known to myself and to the trade as the Northwest Coast seals, sometimes called "Victorias." Tins herd belongs solely to the Pribilof Islands, and is easily distinguish- able by the fur from the fur-seals of the other nortl.ern rookeries, and still easier fit-om those of the soutii. All expert seahcin assorters are able to tell one from the other of either of these different herds. Each has its own characteristics and values. To the same effect is the deporltion of Sidney Liebes, a far d'-aler of Sau Francisco. He had been engaged in the fur business for the laist six years, at the time of testifying. He testified in substance, as did the other witnesses, as follows {ibid., p. 516): My age is 22 1 reside in Smi Francisco, and am by occupation a furrier, having been engaged in that business lor the last six years. I Lave made it my business to cxiiiiiiiie raw sea! skins brought tf> this city for sale, and am familiar witli the ditleient kinds of seal-skins in tlie market, 1 can tell from an examination of a skin whether it has been caught on the liussian or American side. 1 have found that the liussiaii skins were fiat and smaller, and someAvhat different in color in the under wool, than those caught on the American side. In my ojiinion they are of an inferior quality. The Alaska skins are larger and the hair is nmch finer. The color of the under wool is also differ- ent. I have no dilficulty in distinguishing one skin from the other. 1 am of o]»inion that th«\v belong to an entirely separate and distinct herd. In my examination of skins offered for sale by sealing schooners 1 found that over (to jtcr cent were skins taken from females. The sides of tiie fenuile skins are swollen, and are wider on the belly than those of males. Tiie teats arc very discernible on the females, and it can be plainly seen where the young have been suckling. The head of the female is also mack narrower. SUMMARY OF THE EVIDENCE. 235 Mr. Tl)omas F. Morgiiu was the agent, in 1891, (»i the Enssian Sealskin Company of Petersburg. Prior to that time lie had been engaged in seal fishing; he resided several years, as agent of the Alaska Commer- cial Company, on the Pribilof Islands. His long and varied experience fitted liira in an especial mauuer to testify intelligently on the subject. He says {ibid., p. 61) : The Alaska fur-seal breeds, I am thoroughly convinced, only upon the Pribilof Inlands; that I hav*» been on the Alaska coast and also along the Aleutian Islands; that at no ])oints have I ever observed seals haul out on hunt except at the Pribilof Islands, nor have I been able to obtain aiiy authentic information which causes me to believe such is the case. The Alaska fur-seal is migratory, leaving the Pribilof Islands in the early winter, going southward into the Pacific and returning again in May, June, and July to said islands. I have observed certain bull seals return year after year to the same place on the roolierics, aiul I have been informed by natives that have lived on tlje islands that this is a well-known fact and has been observed by them so often that they stated it as an absolute fact. It :.8 also interesting to note, from his supplemental sworn statei lent, that the British Commissioners hjid some testimony to show that there was no identity between the herds (ibid., p. 201) : I was on the Bering Island at the same time that Sir George Baden- Powell and Dr. George M. Dawson, the British representative's of the Bering Sea Joint Commission, were upon said island investigating the Ilussian sealeries upon the Komandorski Islands; that I was present at an examinatica, which said (Commissioners beld, of tSniogeroff, the chief of thf* natives oi the Bering Island, who, prior to the cession of the Pribilof Islp.nds y Russia to the United States, had resided on St. Paul, one of the si d Pribilof Islands, and that since that time had been a resident on said Bering Islant for the government and manage- ment of the same. He remained on St. Paul Island from March, 1869, to September of that year. He returned July, 1870, and remained until the fall of 1871. Then in April, in 1872, he again arrived on St. Paul Island as Special Agent of the Treasury Department in charge of the seal islands, and he spent there the sealing seasons from 1872 to 1877, inclusive, and three winters, namely, 1872, 1874, and 1876, since which time he has lived in retirement at Mattapoisett, Plymouth county, Massachusetts. His testimony upon this point is as follows: The AlasM fur-seal breeds nowhere except on the islands. I took par- ticular care in investigating the question of what became of the seal herd while absent from the islands. My inquiries were made among the Alaskan Indi.aus, half breeds, Aleuts, and fur-traders along the Northwest Coast and Aleutian Islands. One man, who had been a trapper for many years along the coast, stated to me thac in all his experience he never knew of but one case where seals had hauled out on the Pacific coast, and that was when tour or five landed on Queen Charlotte Island. This is the only case I ever heard of seals coming ashore at any other place on the American side of the Pacific, except the Pribiiof Islands. These seals are migratory, leaving the islands in the early winter and returning again in the spring. The Pribiiof herd does not mingle with the herd located on the Commander Island. This I know from the fact that the herd goes eastward after entering the Pacific Ocean, and from questioning natives and half-breeds, who have resided in Kamschatka as employes of the Russian F'ur Company, 1 learned that the Commander herd on leaving their islanil go south- westward into the Okhotsk Sea and the waters to the simthward of it and winter there. This fact was further verified by whalers who find tliera there in the early spring. The Alasiian seals make their home on the Pribiiof Islands because they need for the period they spend on land a peculiarly cool, moist, and cloudy climate, with very little sunshine or heavy lains. This pe- culiarity of climate is only to be found on the Pribiiof and Commander ,(>00 Alaska skins, or that any other person with equal or let-s experience in the handling of skins would be equally able to distinguish them. And in the same way deponent thinks, from his own personal experience in handling skins, that he would have no di Siculty whatever in separating the skins 81JMMAUY OF THE EVIDENCE. 245 of the Northwest catch from the skins of the Alaska catch by reason of the faing in the water and playing. There are no fur-seal rookeries in the Aleu- tian Islands that I know of; in fact, I have never heard of any in the region besides those on the several well-known Seal Islands of Bering Sea. H. Harmsen (iftid., p. 442): Capt. Harmsen had been the master of a ship since 1880 and engaged in the business of hunting seals in the Pacific and Bering Sea since 1877. The following is an abstract from his testimony: Q. In your opinion, do the seals on the Russian side intermingle with those on the Pacific side or are they a separate herd? — A. No, sir; they do not come over this way. They are not a dilfereiit breed, but they keep over by themselves; at least I don't tliink so. They follow their own stream along there. There is so much water there where there are seals, and so much where there are not. They are by them- selves. Samuel Kahoorof (ifeid., p. 214) : Kahoorof is a native of Attn i' island, 62 years of age, and a. hunter of the sea otter and blue fox. He I ad lived ifi'!'; ii; ■ (!■ .1 ! !:'r! h !!• h 'I h\\ m 246 ARGUMENT OF THE UNITED STATES. 1 1 ■ i ! t 1 mU i in the same place all his life. We extract thjit part of his testimony Which bears upon the question now under immediate i-onsideration: Have seen only tliree fur-seals in this region in tweniy years. Saw them in May, 181>0, traveling along the nort.li side of Attn iHland, about 5,miles offshore, and making a northwesterly rourse. Tiiey \ver«* young males, I think. Fur-seals do not regularly visit these ishiiids now, but about twenty- tive or thirty years ago I used to see small .•• v'sids of large seals during the month of June feeding and sleei)ing about tlie kelp patches off the eastern shores of Attu and Agattu Islands. They eame from the stmthward and traveled in a northwesterly direction. Never saw any fur-siuils east of the Bemichi Islands and do not think that those of the Commander Islands herd go farther to the eastward than that. They decreased in numbers gradually, and during the last twenty years I have oidy seen the three above mentioned. Have never seen a nursing or mother cow or black or gray pup in this region, and do not think they ever visit it. John Malowansky {ibid., p. 198) : Mr.Malowansky is ii resident of San Francisco, an American (titizen, but a Russian by birth. le was, at the time of testifyiu'^, a merchant by profession and an agent for the llus- sian Sealskin Coi ipany. He resided oq the Commander Islands in 18C9, 1870, and 1871, and was then engaged in the sealing business. He was there again in 1887, as agent of the company. He formerly lived in KaTiitchatka and frequently visited the Commander Islands between 1871 and 1887. He was an expert in all matters relating to the fur-seal trade, especially on the Russian side of the Bering Sea. The follow- ing is an extract from his testimony: The seals of the Commander Islands are of a different variety from those of the rribilofs. The fur is not so thick and bright and is of a somewhat inferior quality. They form a distinct herd from that of St. Paul and St. George, and in my opinion the two do not intermingle. 1 was present as interpreter when the Knglish Conunissioners were taking testimony on Beiing Island. They examined among others, when 1 was ])resent, .Fefim Snigeroft", Chief of Bering Island, he being the person selected by them there from which to procure the testimony relating to the habits and killing of seals. This Snigeroff testified that he had lived on the Pribilof Islands for many years and knew the distinctive characteristics of both herds (Commander and Pribilof) and their habits and that he removed from thence to Bering island. He pointed out that the two herds have several different characteristics and stated that in his belief they do not intermingle. Filaret Prokopief (ifttd., p. 21G) : Prokopief is a native of Attn Island, 23 yejirs of age, and the agent and storekeeper at that place of the Alaska Commercial Company. His occui)ation was that of hunter for sea-otter and fox, but never for fur-seal. This occupation he pursued until the time when he was made agent. His hunting ground was Attu, Agattu, and the Semichi Islands. This is his testimony: SUMMARY OP THE RVIDENCE. 247 1 never saw but one furaeal in the water. It was a young male which was kiUed in this bay in September, 1884. I do not know of any fur-seal rot»k©ry or other phices where fur-seals liaul out on the land to breed or rest in the Aleutian Islands, nor wluue the old bull for-neals spend the winter. I do not know at wliat time or by what routes the seal herds move to and from the Bering Sea; have heard old hunters say the Commander Islands herd used to pass tilosu to the western shores of these islands on their way north. Eliah Prokopief {ibid., p. 215) is a native of Amehitka Island of the Aleutian chain; 52 years of age; had been a hunter all Ills life, but had never hunted or killed a fur-seal. His hunting ground was about Attn, Agattu, and the Semichi Islands. His testimony is as follows: Fur-seals do not regularly frequent these regions, and T 't"^ e seen none but a few seattenng ones in twenty years. Thirty years ago, when the Russians controlled these islands, I used to see a few medium- sized fur-seals, one or two at a time,- in the summer, generally in June, traveling to the northwest, and bound, I think, for the Commander Islands. The farthest east I have ever seen them was about .'U) miles east of the Semichi Islands; do notthink those going to the Commander Islands ever go farther east than that. Those most seen in former times were generally feeding and sleeping about the kelj) jtatches be- tween Attn and Agattu, and the Semichi Islands, where the mackerel abounds. They decreased in numbers constantly, and now are only seen on very rare occasions. Have seen but half a dozen in the last twenty years; they were large seals — bulls, I judged from their size — traveling to the northwest, about 30 miles east of the Semichi Islands. This was in May, 1888. Have never seen any pups, black or gray, or nursing female seals in this region, and do not think they ever visit it. Do not know of any rookeries in the Aleutian Islands, nor any places where fur seals haul out l-egularly on the land or kelp to breed or rest except the Russian and American seal islands of Bering Sea. Do not know where the old bull fur-seals spend the winter, nor what route the fur-seal herds take to and from the Commander and Pribilof islands, nor at what times the herds pass to and from. Am quite sure the herds do not come near enough together to mingle in these regions. Have never known of fur-seals being seen between Amehitka and a i)oint 30 miles east of the Semichi Islands. Do not think there are now as many fur-seals as there were thirty years ago, but do not know the cause of the decrease. Sealing schooners do not regularly visit these islands. Last August (1891) three of them eanie in here to get water, but only stayed a few hours each ; they had been to the Commander Islands and were going south. Gustave Kiebaum {ihid., p. 202) : The testimony of Mr. Niebaum has been cited above and his qualifications given. Upon the subject of the alleged or possible commingling of the different herds, he says (ibid., p. 204): T am satisfied that the seal herds respectively np.ortli Pacidc are essentially distiaut." (tSee also i^eos. 170, 198, 210, liilO.) Without any evidence, then, on the side of the United States, it might be asserted, on the Beport of the British Commissioners alone, tiiat any interraiiigliug' of the two herds is abnormal and exceptional, alT.uougii these gentlemen are inclined to think that in the remote future this separation may disappear. (C) THE ALASKAN FUR-SEALS HAVE BUT ONE HOME, NAMELY, THE PBIBILOF ISLANDS. THEY NEVER LEAVE THIS HOME WITHOUT THE ANIMUM REVERTLNDI, AND ABB NEVER SEEN ASHORE EXCEPT ON THOSE ISLANDS. The testimony aa to this fact is uncontradicted except by the curious and utterly unsupported statement of the British Commissioners that the animals actually enjoy and occupy two homes; that is, they have a winter domicile, which is not given, except by a vague and general designation (British Commissioners' Eeport, Sec. 27), and a summer place of resort, which is the Pribilof Islands. There is no pretense that they ever land elsewhere. The force of this original suggestion of a double residence would be much increased if the slightest indication were given to enable us to test the accuracy and to aid the Commis- sioners in satisfying the world of scientists that a grave error has heretofore been committed and continuously accepted. But as we are endeavoring to treat the assertion as seriously and respectfully as possible, we submit that in the face of absolute and uncontradicted proof, corroborated by general scientific experience, we are not bound to devote any considerable space to the demonstration that the fact must be taken to be as we have stated it. In fairness to the Commissioners for Great Britain, it may be proper to call attention to their own language, noting, however, the singular process by which they make the migration of the seals commence at an uncertain point in the Padjio to reach their well-established home and place of nativity in the north. The absurdity chargeable upon the British Commissioners of thus ber"".ning at an uncertain point to reach a certain one is shewn by Capt. Scammon, who has been an officer in the United States Keve- nue-Marine Service since 1863. Mr. Scannnon is also the antlior of the work entitled "The Maiine Mammals of the Northwestern Coast ' ■ ii. 'u ' V 1>, !;.;' m f}^- 250 ■11 1 III I III OF THE UNITED STATES. of North America." published by J. H. Oarmany & Co., San Francisco, 1874. He says: The certainty tnart-the seals canjjht in the North Pacific are in fact a portion of the IMMlof herd, and that all are born, and reared for the first i'ew aiontbH. ii-p»)n the islands of that group, naturally leads the observer to refjaarn riieni as quite domesticated and belonginjj upon their island honi»-. The more orderly tcaif to dencribe them, there/ore, would be to ciinii'-- f ;• with their birth upon the island and tiie beginning of their migratiour^. i.ither than at the end ot some one of their annual rounds away froiu moine. We now quote the language of the Report of the British Commis- sioners : Tbe fur-seal of tl>e North Pacific Ocean is an animal in its nature esHentinlh/ peUnfic. which, during the greater part of each year, has no occasion to seek tlie land and very rarely does so. For some portion of the year, hmcener, it H«iMra/Z>/ resorts to certain littoral breeding places, where theyoumj are Irrought forth and sueldcd on land. It is gregarious in habit, and, thongh seldom found in defined schools or compact bodies at sea, congregates in large numbers at the breeding places. (Sec. 26.) Then they describe the migrations and continue: The fnr-seal of the North Pa^'ific may thus be said, in each case, to havetvvo habitats or homes between which it migrates, both equally necesaar- to its existence, under preseiit circumstances, the one fre- quented ja summer, the other during the winter. TJnleftH rne vast expanse of sea between the Aleutian Islands and Cali- f )mia bhiukt be considered a winter habitat, it is difiicult to see upon what fouiKtanwon tnese gentlemen have felt justified in making the statement of a (louiblp home. The object of such an argumentative assertion is too piain (»>» require consideration, at least in connection with this point. The -mith upon t)iis question of habitat or home is as stated by the American ( lommieiiiiouera in their report. They use the following languaiiitr. TTie TH-ibilof Islands are the home of the Alaskan fur-seal fCallorhi- nus nrwinns). They are peculiarly adapted, by reason ot their isolation and ciiniiitc. for seal life, and bcciuiseot this ])ecnliar adiijtrability w«'re umiountefdly chosen by the seals for their habitation. The climatic condiTio! - iue especially favorable. The s<>al, while on land, needs a cool, moisi,. and chmdy climate, sunshine and warmth i)roducing a very injuriouK efiect upod, or herd together, away from their mothers, towards the middle or end of August, and after that frequent the beaches in great numbers and bathe and swim in the surf. They remain on the islands until October, and even November, being among the last to leave (Report of the British Commissiorers, Sec. 30). TheUnited States Oommissionors make the following statement, which is corroborated by aburidant evidence. The bulls are the male seals from five or six to twenty years of age, and weigh from /our hundred to seven hundred pounds. Ihey arrive on the breeding ground in the lat- tt3i part of April or the first few days of May, but the time is, *o a cer- tain extent, dependent upon the going out of the ice about the island. (Case of the United States, p. 108.) Toward the latter part of May or first of June, the cows begin to appear in the waters adjacent to the island and immediately land upon the breeding ground. The great majority, however, do not haul up until the latter part of June, and the arrivals continue until the middle of July. Some of the bulls at this time (about the first of August) begin to leave the islands, and continue going until the early part of October. [Case of United States, p. 112, citing witnesses as to this point,] The bachelor seals, or nonbreeding males, ranging in age from 1 to 5 or 6 years, begin to arrive in the vicinity of the islands soon after the bulls have taken up their positions upon the rookeries, but the greater number appear toward the latter part of May. They en- deavor to land upon the breeding grounds, but are driven off by the bulls and compelled to seek the hauling grounds. As to the departure of the seals from their home on the Pribllof Islands, there does not seem to be any question that the statement in the United States Commissioners' Eeport is correct. The length of time that a pup is dependent upon its mother, as here- tofore stated, compels h.er to remain upon the island until the middle of November, when the cold and stormy weather induces her to start, her pup being the a able to support itself (pp. 119, 120). The bachelor seals generally leave at the same time as the cows and pups leave the island, though a few bachelors alwayfi are found after that period (p. 122 of the case of United States). The Alaskan herd has had but one breeding place, which is the Pribllof Islands. While there is no express contradiction us to this SUMMARY OF THE EVIDENCE. 253 In the Report of the British Commissioners, it may be interesting to cite some of the proof in support of this assertion. (a) The islands are in every particular adapted by climate and con- ditions to the purpose. While it is suggested, as we have seen above, by the British Commissioners, that the seals would find no difficulty in procuring another suitable place for breeding and for passing the sum- mer montiis, this is manifestly a conjecture and need not be dwelt upon. (&) There is no evidence that the animal has ever resorted to other places, but all the evidence before this High Tribunal of Arbitration leads to the inference above stated. The language of the Case on the part of the United States is as fol- lows (p. 89) : The climatic conditions are especially favorable. The seal, while on land, needs a cool, moist, and cloudy climate, sunshine and warmth producing a very injurious effect ujion the animals. These requisite phenomena are found at the Pribilof Islands and nowhere else in Ber- ing Sea or the North Pacific, save at the Commander ^Komandorski) Islands. This is abundantly sustained by the proof. See upon this point the testimony of Charles Bryant (Ajjpendix to Case of the United States, ^'ol. II, p. 4), Capt. Bryant having been long engaged in whaling and having acted as Special Treasury Agent at the Pribilof Islands. Also Samuel Falconer {ibid., p. 1C4). Mr. Falconer had had long experience as Treasury Agent on the islands, and otherwise, and is a fully competent witness upon this point. He assigns the reason for the selection of this breeding locality by the seals in the following lan- guage: The reason the seals have chosen these islands for their home is be- cause the Pribih)f group lies in a belt of fog, occasioned by the waters ot the Arctic Ocean coming down from the north and the warmer waters of the Pacific flowing north and meeting at about this point in Bering Sea. It is necessary that tlie seals should have a misty or foggy atmospheie of this kind while on land, as sunshine has a very injurious effect upon them. Then, too, the islands are so isobited that the seal, which is a very timid animal, remains here undisturbed, as every pre- caution is taken not to disturb the animals while they ai-e on the rook- eries. The mean temperature of the ishuids is during the winter abimt 26° P., and in summer about 43°. I know of no otiier locality wliich possesses these peculiarities of moisture and temperature. Tlie grounds occupied by tlie seals for breeding purposes are along the coast, ex- tending from high-water mark hack to the chfis, whicli abound on Saint George Island, Tlie young malos or bachelors, not t)eing allowed to land on tliese breeding places, lie back of and around these breeding grounds on areas designated hauling grounds. I: !^''l- ,1. 254 AHGUMENT OF THE UNITED STATES. Captain Morgau says {ibid., p. 61) : I believe that the cause the seals choose these islands for their home is because of the isolation of these Pribilof Islands and because the climatic cond tion of these Pribilof Islands is peculiarly favorably to seal life. During the time the seals are upon land the weather is damp and cool, the islands being almost i til I, 'II Hi.! ' Hi 256 ARGUMENT OF THE UNITED STATES. t I i with these and other animals and they heed her teachings. Nothing is left to chance in the all-important matter of perpetuating the species. Coition and impregnation at sea and at irregular times would 8im[)ly mean irregularity of birth and consequent destruction. If the females were impregnated at any other season their young would be bom at sea, and, notwithstanding their "essentially pelagic nature," would inevitably perish. This is further demonstrated by inexorable figures. The breeding females, say the British Commissioners, arrive at the islands nearly a month later than the males — that is to say, in June — and "inmiediately" drop their young. Given the date of birth (some time in June or July) and the period of gestation (about fifty weeks) (Case of the United States, p. 113), it is not difiicult to fix the season of fertilization, hut it is impossi. ble to fix it at any other time than theperiod of the breeding mothers' stay at the islands. Such evidence as this outweighs the most ingenious and finely drawn conjecture. Even were it possible to show occasional acts of coition in the water after the females have been " released by their jealous male companions" on land, the fact would only be inter- esting from a scientific standpoint. It would not practically affect the question nor alter the fact that the coition which results in fertilizing the female is performed on land, as a result of natural laws, the viola- tion of which to any considerable extent must eventually endanger the existence of, if not promptly and absolutely destroy, the race. The British Commissioners, undeterred by these very obvious objec- tions and misled, no doubt, by inaccurate and undisclosed information, assert that there is a certain class of "immature males," known as "half bulls" or "reserves," that poach upon the preserves of the seniors and cover many of the females which escape the attention of the older males upon the rookery grounds and in stieh cases the act of coition is usually accomplished at seal (Sec. 287.) It is unfortunate that an assertion inconsistent with scientific in- vestigation and comiiletely refuted by abundant proof should have been thus lightly made and suffered to rest upon mere affirmation. The statement is certainly not correct; but, even if it were, it merely states, and this most vaguely, that an irregular practice is sometimes followed in exceptional cases. But the important point that the " breeding females" are only served by the " breeding males " on land is shown by the report of the British Commissioners themselves: SUMMARY OP THE EVIDENCE 257 The remaining — and, at the time in question, most important — class is that of the breeding females. These, sometime after the birth of the young and the subsequent copulation with the male, begin to leave the rookery ground and seek the water. This they are able to do because of the lessened interest of the beach masters in them, and more partic- ularly after many of the beach-masters themselves begin to leave thc?r stands. (Sec. 300.) In tiection 309 Bryant is quoted thus: Bryant, after describing the relaxation in watchfulness of the male after impregnation has been accomplished, says of the female: " From that time she lies either sleeping near her young or spends her time either floating or playing in the water near the shore, returning occa- sionally to suckle her i)up." This opinion is especially important, as the same person is relied upon in another place as authority to show that the habit of coition on land has been somewhat modified since 1874. It certainly seems strange that if coition on land was the rule and the exceptions rare prior to 1874 "coition on land seems not to be the natural method^ (Sec. 296.) There is evidently an error, either in the transcription or in the original statement. Mr. Bryant adds that "only rarely — perhaps in three cases out of ten — is the attempt to copulate under such circum- stances effectual." This is in direct contradiction to the conceded and established fact that the breeding females are fertilized on land. It is difficult to suppose that Nature did not teach these animals from the earliest date the most "natural" way of satisfying their instinct and perpetuating their species. Perhaps the British Commissioners would not have been driven to the extremity of quoting such statements were it not for the necessity of supporting their theory, viz, the mischievous diminution of tlie males by slaughter on the islands. Taking these statements altogether, they clearly prove the habits of the breeding animal to be as we have contended, subject possibly to alleged exceptions which, even if firmly established, would not im- pair the substance of the contention. It might, perhaps, be safe to rest this branch of the case at this point and to submit to this learned Tribunal that the inconsistencies and self-repugnances of the Report are such as to deprive it of all value as a guide upon this branch, at least, of the discussion. We shall, however, even at the risk of importunity, pursue the subject still farther. The statement in the Case of the United States as to the habits of the seals in the act of reproduction is as follows (p. 110): 14749 17 I'.' 4 ■jit 1 h . 'II 258 ARGUMENT OF THE UNITED STATES. The act of coition takes place upon land, which by reason of the for mation of the genital organs is similar to that of other mammals. It is violent in character and consumes from Ave to eight minutes. This statement is not-a mere affirmation unsupported by authority It is based in part upon the evidence of which we here give abstracts: _,Mr. Joseph Stanley-Brown (Appendix to Case of the United States, Vol. II, p. 14), a geologist by profession, and as such employed in the United States (ieological Survey, says: Pelagic coition I believe to be impossible. The process upon land by reason of the formation of the genital organs is that of a mammal, is violent in character, and consumes from Ave to eight minutes. The relative sizes of the male and female are so disproportionate that coition in water would inevitably submerge the female and require that she remain under water longer than would be possible to such an am- l)hibian. I have sat upon the cliffs for hours and watched seals beneath me at play in the clear water. It is true that many of their antics might be mistaken for copulation by a careless observer, and this may have given rise to the theory of pelagic coition. I have never seen a case of the many observed which upon the facts could properly be so con- strued. Mr. John M. Morton, United States shipping commissioner at San Francisco, went to Alaska in 1870, arriving at St. Paul Island in Octo- ber. He remained until the close of the season in the following year. In 1872 he visited all the trading posts of the Alaska Commercial Com- pany. The summer of 1873 he spent on the Island of St. George. In 1875 and 1876 he again visited and spent both summers on St. Paul Island. He was at all times greatly interested in observing the move- ments and habits of these animals, and scarcely a day passed that he did not visit one or more of the rookeries. During the seasons of 1877 and 1878, while serving in the capacityof special Treasury Agent, he devoted his best attention and study to this subject. This is his language in his sworn deposition which appears at page 67, Volume II, of the Appendix to the Case of the United states: I desire also to express my belief concerning the seal life that the act of copulation can not be successfully performed in the water. Those who have witnessed its accomplishment on the rookeries must coincide with such opinion. A firm foundation for the support of the animals, which the ground supplies and the water does not, is indispensable to oppose the pushing motion and forceful actio.- of the posterior parts of the male which he exerts during the coition. The closest observation which I have been able to give to the movements and habits of the seals in the water has furnished no evidence to controvert the aboye opinion. Ith fwceii with niing which tlie, tn «0('.S (lispor The ni lu'side iiiiinol Mr. twent' SUMMARY OF TlIK EVIDENCE. 269 S. R. Nettleton, a resident of Seattle, Wa.^li., was appointed Special Agent of tbe Treasury Department in the autumn of 1881), at wliioh time he wont to the island of St. I'aul in the performance of his duties, lie returned to the States in T^'JO, and in 1891 returned to St. Paul Island, and remained there tlirough June and July, and was then transferred to the island of St. George, where he remained until June, 181)2. In the discharge of his duties as Treasury agent, ho made such observations as could be taken fr 'i/i: It l\'.> 260 ARGUMENT OF THE UNITED STATES. agent for the Alaska Commercial Conipauy, at Obernofsky, and for ten years he had actetl in the same capacity at Umnak, He had every opportunity, as will appear from his deposition on page 210, Vol. II, of the Appendix to the Case of the United States, to observe the habits of the seals. This is his language: I have seeu seals sleeping on kelp and feeding about it, bnt have never seen them copulate anywhere except on a rookery. I do not be- lieve that pups born on kelp could be properly nursed and broujjht up. 1 do believe that it is necessary to their suecessful existence that they be born on land, since they can not swim at birth, Norman Hodgson {ibid., p. 367), a resident of Port Townsend, in the State of Washington, and a fur-seal hunter by occupation, gives many interesting details as to the habits of the seal. On the point now under consideration, he says: I do not believe it possible for fur-seals to breed or copulate in the water at sea, and never saw or heard Oi the action taking place on a patch of floating kelp. I have never seen a young fur-seal pup of the same season's birth in the water at sea on a patch of floating kelp, and, in fact, never knew of their being born anywhere save on a rookery. I have, however, cut open a gravid cow and taken the young one from its mother's womb alive and crying. I do not believe it possible for a young fur-seal pup to be successfully raised unless born and nursed on a rookery. I have seen fur-seals resting on patches of floating kelp at sea, but do not believe they ever haul up for breeding purposes any- where except on the rookeries. Charles Bryant, v.l.o bad spent considerable time on the Islands and had acted during a period of nine years as special a^rent of the Treas- ury Department, says {ibid., p. Q] : In watching the seals while swimming about the islands, I have seen cases wheie they appear&ii to be coi)ulating in the water, but I am cer- tain, even if this were (-he case, that the propagation of the species is not as a rule efl'ected in this way, the natural and usual manner of coition being upon land. Gapt. James W. Budington, who testified to his experience, which was considerable, in seal hunting at Cape Horn and in the Southern Atlantic Ocean, say {ibid., p. 595) : I am also convinced that copulation takes place on land before they migrate, the period of gestation being about eleven months. Samuel Falconer, a witness whose experience and qualiflt£i,tions have been mentioned heretofore, says {ibid., p. 165) : SUMMARY OF THE EVIDENCE. 261 Ah a jfoneral rule, the iiupregnation is by the bull to wlioae liarom slie belongs, and not by the young inah^s, as has Honiothnes been atateU. Tliese young males also jjursue a female when slie is allowed to leave the harem and go in tlie water, but slu> refuses them. I am positive from my observations that copulation in tlie water could not be cfi'cc- tual, and would be a most unnatural occurrence. John Armstrong, for a long time an employe in the Alaskan service in connection with the sealeries testified with nuujh caution, and is the only one of the witnesses who does not speak with absolute confidence. His testimony is as follows {ibid., p. 2): I am asked whether the seals copulate in the water. Itisaquestion that is often discusaeil at the islands, and neither the scientific observers nor the unscientific are able to agree about it. I have seen seals in position when it seemed to be attempted, but doubt whether it is effec- tually accomplished. If it were, I think we should see pups sometimes born late and out of season, but such is not the case. v.— The Pup is Entirely Dependent upon its Mother for Nourishment fob Several Months after its Birth. The Cows will suckle their own Pups only and the Suck- ling is done only on Land. As in the case of all mammalia, the young must be dependent for nourishment durin, : a certain period upon the milk furnished by the mother. The proof, moreover, is uncontradicted, and the British Com- missioners admit that the suckling is done only on land. There is a (luestion raised, however, which it may be useful to discuss, namely: Are the pups suckled only by their mothers or do these act indiscrim- inately and give nourishment to such young as they may happen to find conveniently at hand? It is asserted in the Case of the United titates that these animals constitute no exception to the general rule by which the mother recognizes her own offspring and nourishes it alone. This is the language of the Case (page 114) : A cow, as soon as a pup is brought forth, begins to give it nourish- ment, the act of nursing taking place on land and never in water, and she will only suckle her own offspring. This fact is verified by all those who have ever studied seal life or had experience upon the islands. William Brennan (Appendix to Case of the United States, Vol. II, p. '159). The testimony of Mr. Brennan, a native of Great Britian and a resident, at the time of making his deposition in 1892, of Seattle, in the State of Washington, is interesting and enters into minute details, Ml'^ ■■■■y- F 2G2 ARfcr. MENT OF THE UNITED STATES. I whicii i-ould only be famished by a i)ersou who hail practically studied the !!iai)iect. He says ; In May the bulla cows fome thre«- or i\ they mean to hold strongest wins. Eadi api)rouch, there is war. sealH. apart from eaci and lihe younj; in an remain with their il i until they can f^o iiit< ri ing on the beach for tl. from the rof>kerie8 out t< thev can not swim, aad 'nre to haul up on tlic rookeries, and th«^ ks later. The nulls rlioose such fi'roundas through the summer, (iglit savagely, and the uas his own family, and should a stranger On the rookeries one mnv see ail classes of . the bulls and breeding cows in one plaiM- The i)ups are born on tlie rookeries, and living wholly upon tlieir mother's milk -ea and v^'are for themHelves. There is noth- old ones to eat, and they go several miles sea to obtain food. Wlien the pups are born jhe mothers take them to the water's edge, whwe one <-an see th(»UHaijds paddling and struggling in tlie surf. The noise made by the m< the pups in answer, m betbr<* irs •nnj;. they call -u lUto ue wate; stay on the islanu. ■i-ying for their pu})8, and the bleating of constant roar. The cow is three years old "he pups are about forty-tive days old before but they nurse the mother as long as they This testimony, if reliablfe. and there is no reason to dispute its ac curacy, establishes the depemdence of the pup upon its mother uot only for food, but for care and instruction in swimming. Joseph Stanley-Brown, whose contributions to the subject of far- seal life and their habits are exti?emelyvaluai le and are trequently referred to in the Oa»e of the Unite*! States, is very emphatic and satisfaetory xEpan this subject. His qualilications have already been stated in con- neetaon with other propositions. He says (ibid., pp. 15-10) : For the first few days, and possibly for a week, or even ten days, the female is able to nourish her young or offspiing, but she is soon com pelled to seek the sea for food, that her voracious young feeder may be properly nourished, and this seems to be perniitied on the part of the male, even though tmder protestation. The whole lihysical economy of the seal seems to be arranged for alternate feasting and fasting, and it is probable that in the early days of its life, the yonng seal might be amply nourished * * * vithout herself resorting h> the sea for food. Th<' female gives l)irth to but a single pup. The labor is of short duration, and seems not to produce great pa'ii. In the tirst weeks ot its life, the pup does not seem to re(;ogniz'. its mother, but the latter will recognize and select her offspring amon t hundreds. The young, upon being born, have all the ap])earam;e of pups of a Newfoundland dog with flippers. On emerging from their warm rest- ing ]>lace into the chill air, they utter a plaintive l)leat not unlike that of a young lamb. The I'lother fondles them with many demonstra- tions of aftection, and *-'<•: y i egin nursing soon after theii' birth. ♦ * ♦ The ycmng seals reqiiM- the nourishing care of their mother for at least four months, and pups have beeT> killed on the island late in November the stomaivhs of which were filled with milk. • * * The ]uips are afraid of the water; they have to learn to swim by re peateu|»s would suck aay eow if the (!ow would let them. After the ;, in is a few days old the cow goes into the sea to feed, and at first she will only stay away for a few hours, bu*^ as the i)up grows stronger she will stay away more and more until she will uometimes be away fur a week. * ■, ■ >! Pfw^ssa* wm ^ i 264 ARGUMENT OF THE UNITED STATER. I- I Numerous other witnesses were called who agreed that, the only means of sustenance for the pup while it reniaiued on the island, that is, tor three or four i onths after its birth, is its mother's milk, and that it would perish if deprived of the same. Upon this point the follow- ing testimony msiy bo read: William Healey Ball [ibid., p. 23); Samuel Falcoi\er {ibid., p. 165); William S. Hereford (i/7itd., pp. 148, 149): No cow will nurse any pup but her own, and I have often watched the pups attempt to suck cows, but they were always driven off; and this fact convinces me that the cow recognizes her own pup and that the pup does not know its dam. At birth and for several weeks after, the pup is utterly helpless and entirely dependent upon its dam for sus- tenance; and should anything prevent her return during this period it dies on the rookery. This has been demonstrated beyond a doubt since the sealing vessels have operated largely in the Behring Sea dur- ii'g the months of July, August, and September, and which, killing the cows at the feeding grounds, left the pups to die on the islands. At about 5 weeks old the pups begin to run about and congregate in bunches or "pods," and at to S weeks old they go into the shallow SUMMARY OV THE EVIDENCE. 265 water and {^rsulually learn to swim. They are not amphibious when born nor can they swim for several weeks thereafter, and were they put into the water would perish beyond a doubt, af3 has been well estab- lished by the drowning of pups caught by the .surf in stormy weather. After learning to swim, the pups still draw sustenance from the cow.s, and I have noticed at the annual killing of pups for food, in Novem- ber, that their stomachs were always full of milk and nothing else, al- though the cows bad leit the islands some days before. 1 have no knowledge of the pups obtaining sustenance of any kind except that furnished by the cows; nor have I ever seen anything but milk in a dead pup's stomach. Daniel Webster asserts positively that the death of every mother causes the death of her pup, ivhich is cntirelu dependent upon her for Us sustenance. Mr. Webster's testimony is valuable not only for its in- trinsic value, but because its reliability is vouched for by the British Commissioners themselves (Sec. 677). It will be observed that all the witnesses cited above are men spe- cially capable, of long experience and a knowledge of the :*ubject sufii- cient to enlighten any court whose function it may be to ascertain the facts connected with seal life. Such testimony can not iail to be con- clusive in the judgment of this Court, unless it should be rejected as willfully and inientionally false. No ground for such a wholesale imj)u- tation upon th«i charact(;r of apparently intelligent and reputable men can be suggested. The functions of every court of justice become im- possible, and decisions on questions of fact must be left to the caprice of judges,if such testimony may be arbitrarily disregarded. Surely the conjectures and conclusions of an adversary unsupported by the slightest pretense of proof, in a legal souse, can not be deemed a sufficient ground for such a charge. However high may be the character of the British Commissioners for intelligence and integrity, their bald assertions can not take the place of those aids to judicial investigation which the ex- perience of allcivilized nation.shas shown to be indispensable. It would, indeed, be a difficult task for the Arbitrators to reach any conclusion as to the material questions of fact in tliis case if the example of the British Commissioners had been followed by the Commissioners of the United States and both sides had coulined themselves to conjectural assertions and partial and unsatisfactory deductions from uncertain premises. A manifest disposition to perform the pari; of an advo(!iite riitlicr than the duty of an aid to the court in the asceiLaiiiment of the truth, must de- tract largely from the value of the work performed by Che Commissioners for Great Britain. ■ I'-., I :■ i, \ \ f I 266 ARGUMENT OF THE UNITED STATES. V J.— The Cows, while Suckling, go to the Sea for Food and Sometimes to Distances as (Ireat as One Hundred and Two Hundred Miles, and are during such Excursions Exposed to Captuke by Pelagic Sealers. Tlie statemeBt iu the Case of the Uiiited States is as follows (p. 115) : Necessarily, after a few days of nursing her pup, the cow is compelled to seek food in order to provide sufficient nourishment for her offspring. Soon after coition she leaves the pup on the rookery and goes into the sea, and as the pup gets older and stronger, these excursions lengthen accordingly until she is sometimes absent from the rookeries for a week at a time. The absolute correctness of this statement is demonstrated in the evi- dence. A cow nurses only her own pup. The importance of deciding tliis question correctly makes it necessary that we should give special at- tention to the evidence upon the subject. The British Commissioners have taken a different view and are without support in the general un- derstanding of men as to the practice and probabilities in such cases. It is easy to demonstrate that the ass(^rtion on page ll.') of the Case of the United States, to theeffect above stated is borne out by overwhelm- ing i)roof. Kerrick Art^manoff (AppcLdix to Case of the United States, Vol. II, p. 100) says: The mother seals know their own pups by smelling tliem and no seal will allow any but her own pup to suck her. Thomas F. Morgan iihid., p. 02) says: After birth a pup at once begins to suckle its mother, Avho leaves its offspring only to go into the water for food, which 1 believe from my observation consists mainly of tisli, Sfjiiids and crustaceans. In her seareli for food the female, in my opinion goes 40 miles or even furtlier from the islands. The pup does not appear to re(x»^uize its mothei', attem]»(iiig to draw milk from any cow it comes in contact with; but a mother will at once recognize her own pup and will allu)w no other to r.nr^se her. This I know from often observing a cow tight off other pups who approached her, and search out her own pup from among them, which 1 think she recognizes by its smell and cry. Mr. Morgan's testimony is very explicit and is based upon long ex- perience and continued observation. ^ Sanjuel Falconer, at one time deputy collector of customs, and whose testimonj has been quoted on other points, ^ives the results of his actual observations. He says {ibvL, p. 104): The place of birtl; is on the breeding grounds, wliich takes place after the female lauds, generally witbiu two days. When first born \v SUMMARY OP THE EVIDENCE. 267 ' =T the pup can not swim, and docs not IciUii so to do until it is six or cij^lit weeks of age. It is theiet'ore utterly impossible for a pui) to be born iu tlie water and live. I have noticed that when a jnip of this ajje is put in the Witter it seemed to have no idea of the use of its fli|>pers, and was very much terrified. A ])up is certainly for the Avat six or eijyht week , of its life a land .animal, and is iu no sense amphilnoiis. During this i)eriod also a pup moves very much like a young kitten, using its hind flippers as feet. A mother seal will at once re(!oguize her pup by its cry, hobbling over a thousand bleating i)ups to reach lier own, and every other approaching her, save tliis one little animal, she will drive away. * * * A i)U]>, however, seems not to distinguish its mother from the other females about it. William Healey Dall,a scientist whose studies w^ere completed under Prof. Louis Agassiz, at Cambridge, iu the year 18G3, and avIio has been since that time engaged in scientific work, gave the result of his per- sonal examination made during the several years that ho visited St. George Island and the Aleutian Islands. His oi)portuiiities ro famil- iarize himself with aquatic seal life were excellent and are fully detailed in his deposition on pages 23 ,iiid 24 of the Api)endix to the Case of the United St^-tes. He says: From my knowledge of Tiatural history and from my observations ot seal life, I am of the opinion that it would be imi)ossible for the young seals to be brought forth and kei)t alive in the water. When it is the habit of an animal to give birth to its young upon the land, it is con- trary to biologic teaching and common sense to suppose they could successfully briiig them forth in the water. It does not seem to me at all likely that a mother would suckle any pup other than her own, for I have repeatedly seen a female select one pup from a large group and pay no Attention to the solicitations of others. Pups require the nour- ishment from their mothers for at least three or four months after their birth, and would perish if deprived of the same. I have had ample opportunity to form an of inioa in regard to the efli'ec-t upon the herd of killing female seals. Th' fcnuile brings forth a single offspring animally. aiul hence the repair ul' the loss l»y death is not ra]>id. It is evident that the injury to the herd from the killing ot a single female, that is, tin; producer, is far greatei- than from the death of the male, as the seal is iMdygamous in habit. The danger of the herd, therefore, is just in proj)ortion to the destruction of female life. Killing in the open waters is peculiarly destructive to this animal, l^o discrimination of sex iu the water is possibl(\ the securing of the prey v/hen killed is under the best of circumstances uncertain, and as the period of gestation is at least eleven mouMis and of nursing three or four months, the death of the female at any time means the destruction of two, herself and the fuetus; or when nursing, three — herself, the nursing pup, and the fcetus. All killing of females is a nu;nace to the herd, and as soon as such killing reaches the point — as it inevitablir' must if permitted to continue — where the annual increase will uot make good the yearly loss, then the destruction of the herd will be equally rapid and certain, regarded from a commercial standpoint, though a few individuals might survive. Karp Ruterin, a native of St. Paul Island, on Avhicli island ho had lived up to the time of making his deposition, when he was 39 years of m 268 ARGUMENT OV THE UNITED STATES. age, had been engaged in driving seals, clubbing and skinning them ever since he was able to work; he says (Appendix to Case of the United States, Vol. II, p. 103): Schooners kill cows, pups die, and seals are gone. Some men tell me last year, "Karp, seals are sick." I know seals are not sick; I never seen a sick seal, and I eat seal meat every day of my life. * * • No big seals die unless we club them; only pups die when starved, after the cows are shot at sea. When we used to kill pups for food in November they were always full of milk; the pups that die on the rookeries have no milk. The cows go into the sea to feed after the I>ups are born, and the schooner men shoot them aU the time. The same rule as to exclusive nursing of her own pups by the cow is proven to exist in the Antarctic regions by Mr. Comer. George Comer {ibid., p. 598) says: I have never seen a "clap-match" suckling more than one pup, and it is my impression that a "clap-match" would not nurse any pup except her own, for I have seen her throw other pups aside and pick out one particular one from the whole number on the rookery. Anton MelovedofF, a native of Alaska, testifies as follows {ibid., p. 144): When the pup is born it is uti^rly helpless and would drown if put into water. Those born nearest the water are often drowned in the surf when the sea is rough in stormy weather. When the pup is a few days old the cow goes into the sea to feed and fjs the pup grows older the cow will stay longer and longer until sometimes she will be away for a week. When the cows return they go to their own pups, nor will a cow suckle any pup but her own. The pups would suck any cow that would let them, for they do not seem to know one cow from another. H. H. Mclntyre, to whose valuable deposition attention has bnen heretoforp called, uses this language {ibid., p. 41): At this time they are simply land animals, with less aquatic instinct arid loss ability to siistain themselves in water than newly hatched ducklings. When the i)ups are a few days old the mothers leave them (generally soon after coition upon the rookeries with the old male) to go to the feeding gnMiuds, returning at intervals of one to three or four days to suckle th<»\r young. The pups do not appear to recognize their own dams, but the mother distinguishes her own oft'spring with un- erring accuracy and allows no other to draw her milk. Louis Kjmmel, at one time assistant Treasury agent on St. George Island and a resident of that place for over one year, testifies as fol- lows {ibid., p. 174) : A c(rw never suckles any but her own pup. When a strange pup approaches a cow she w ill drive it uway from her, and out of thousands of pups huddled topviier slie will single her own. It is my opinion that if a mother is killed otit her offspring dies of starvation. its the proi sub SUMMARY OF THE EVIDENCE. 269 To the same effect is the testimony of Dr. Ilenifonl. Williaiu S. Hereford, a physician of character and experience, a graduate of Santa Clara College, S. J., and of the University of Pennsylvania {ibid., p. 33): It is a well-known fact that the female seals leave the islands and go great distances for food, and it is clearly proven that many of them do not return, as the number of pups starved to death on the rookeries demonstrates. The old mother seal will not nurse any but its own offspring and can single it out of a band of thousand, even after an absence of days from the islands. The difference between a well-nourished pup and one starving to death is also easily recognized, one being plump and lively, growing extremely rapidly, the other slowly dwindling away, its body becoming lean, long, and lanky, the head being the largest a'^d aost conspicuous part. The poor little thing Hnally drops from sheer ex- haustion in its tracks, it being only a matter of time before it succumbs to starvation. Dr. Hereford narrates in a highly interesting manner the efforts made to raise '^ Little Jiramie," a child of adverse circumstances, whose mother had been accidcTitally killed. This narrative may be found on pages 33 and 34 of the Appendix to the Case of the United States. Several other witnesses concur in testifying that the mother will readily distinguish her own offspring from that of others and will not permit the young of any other seal to suckle her. If there is anything in the Report of the Commissioners of Great Britain which rises to the dignity of eviden'^.e and which may be weighed against this overwhelm- ing mass of testimony, we have failed to discover it. The plausible suggestion that they make in explanation of the apparent effort of the mother to distinguish her offspring by smelling the various pups, is nhat she thus goes about until she finds one that does not smell of fresh milk (Sec. 323). VII. — ^I)EATH OF THE CoW CAUSES THE BlEATH OF THE PuP. Tlie materiality of the question last discussed, and of the fact asserted and demonstratt'd that the mother nurses only her own pup, lies chiefly in the correlative assertion that the death of the cow causes the death of the pup. Assuming the premises to be established that the pup depends upon its mother for food and can be fed in no other way than by that mother, the con<;lusion establishes itself without the necessity of extrinsic proof. The testimony directly upon this point is voluminous, and, it is submitted, entirely satisfactory. It goes very far to explain one of the general causes for the di.ainution of the si)ecie8. ■;:■! ■ I ■;;:i; ' 18 !' 270 ARGUMENT OF THE UNITED STATES. So many witnesses have testified upon this point, and it is so doubt- ful whether any testimony at all is needed if it be established that the pup depends wholly upon its mother, that we shall confine ourselves to brief abstracts. George Ball (Appendix to Case of the United States, Vol.11, p. 481)? a shipmaster and a sealer, does not hesitate to say that the pups per- ish with the cows that he and his companions kill. William Brennan sums up the situation with the conclusive argu- ment that ''it stands to reason that if the mothers are killed while away from the island and the jiups are left there alone they will surely die, and it is a fact that many mothers are killed in Bering Sea" {ibid., p. 363). Henry Brown, seaman, engaged in pelagic sealing and residing at Victoria, British Columbia, gives his experience in the slaughter of gravid females as well as the females taken in the Bering Sea which are not gravid, he says : These were cows in milk. Every seal cap- tured causes the death of either an unborn pup or the death of a young pup by starvation on the islands. He says {ibid., p. 318) : If pelagic sealing is continued, espec^ially with guns, in a few years the seal herd will become commercially destroyed. Luther T. Franklin, a seal-catcher, being asked, " Do the pups perish with the cows that you kill? " answered, " naturally they umst." (Ap- pendix to Case of the United States, Vol. II, p. 426.) Charles Lutjens testifies, with probably unconscious force, as to the brutality of the occupation in which he is engaged {ibid., p. 459) : Q. Do the pups perish with the cows that you kill? — A. Certainly. Not alone that, but they generally leave, while they go into the Ber- ing Sea, a pup on shore, which also dies from not being able to get any sustenance. The seal wliich is killed in the Bering Sea may be with pup and also has a pup on shore, which made the killing three seals to one. Alexander McLean says that if you kill a female seal you kill the pup with her {ibid., p. 437). For other testimony upon this point, see Daniel Clausson {ibid., p. 412), Luther T. Franklin {ibid., i^. 425), Louis Kimel {ibid., p. 174), and many others tostifyijig to the same fact. Multiplication of extracts could not add to the force of testimony so reasonable and conclusive upon its lace. Indeed, the evidence is so complete that the victims of pelagic SUMMAUY OF THE EVIDENCE. 271 slaughter are mainly, if not wholly, females, us to forbid contradiction. We accordingly And that the British Commissioners make this admis- sion: " It is xmdoubtedly true that a comiderable proitoriion of the seals taken at sea are females, as all sc<(ln of killable nise are Idlled without (Userimination of sex " (Sec. 78). It is true that they hasten to add that this disproportion is due in part to the persistent killing of young males on land. Possibly this may be true. Undoubtedly if the poachers found killable males as well as gravid females, they would slaughter both and the disproportion would be less marked. But the Commissioners do not pretend that the absolute number of femak's killed would be any smaller. The pelagic hunter would kill them all with indiscriminate impartiality. How the situation would be helped by this is not stated, although it may show how the scope of the busi- ness might be enlarged. This curiosity is stimulated, but not satisfied, by the admission that theii' disproportion is in part explained as stated ; it might have been just to the Tribunal to state what else might be said to throw light upon the subject. The cows, while suckling, go to sea for food and sometimes to dis- tances as great as 100 to 200 miles, and are during such excursions exposed to capture by pelagic sealers (see Case of the United States, ]). 115). The statement in the Case to this effect is borne out by the testimony and by fully substantiated facts. The vagueness of the statement made by the British Commissioners fails to conceal the evident intent to create the impression that the females, like the males, may live and nurse their young for a long time without food. In section 307 of their Eeport this language is used: It is very generally assumed that the female, on thus beginning to leave the rookery ground, at once resumes her habit of engaging in the active quest for food, and though this would appear to be only natural, particularly in view of the extra drain jnoduced by the de- mands of the young, it must be remembered that, with fjcarcely any exception, the stomachs of even the bachelor seals kilhid upun the islands are found void of food, and that all seals resorting to the islands seem, in a great degree, to share in a common abstinence. The concession of an extra drain upon a nursing female is generously followed up by the statement " that it may be considered certain that after a certain period the females begin to seek such food as can be obtained." It is then stated that "there is a very general belief among the natives, both of the Pribilof and Commander islands, to the effect that the females do oot leave the land to fee(i while engaged in suckling i ' • • i ■•• * ■' , 1 j '■1 ■ li; M M 272 ARGUMENT OP THE UNITED STATES. A\'n \ ii: their young." That there is any such general belief is most strennonaly denied on the part of tlie United States, is disproven by the few wit- nesses cited by the British Commissioners themselves, and is negatived overwhelmingly by the testimony on the part of the United States. The painful attempt to justify pelagic sealing by distortion of com- monly accepted facts is nowhere more apparent than in section 308 : It appears to us to be quite prohahle, however, that toward the close of the season of suckling, the female seals may actually begin to sp(Mi(l a considerable portion of their time at sea in search of food. It is un- likely that this occurs to any notable extent until after the middle of September, before which the aeoHon of pelagic sealing in Bering ISca prac- tically closes. Comment would be absurd on this. "Bryant", say the British Commissioners, "after describing the re- laxation in watchfulness of the male after impregnation has been accomplished, says of the female: 'From that time she lies either sleep- ing near her young or spends her time floating or playing in the water near the shore, returning occasionally to suckle her pup.' " That she should go to the water to plfky and float and neglect the opportunities of replenishing her energies, wasted as they are by nurs- ing, seems utterly incredible. It is well to note the admission, how- ever, that during this period the suckling is on laud whither she returns to accomplish it. Elliott is quoted in the same section as stating that " the mother nurses her i)up every two or three days," but adds, " in this I am very likely mistaken." Again, Elliott says of the mother, coming up from the sea, that " she has been there to wash and perhaps to feed for the last day or two." In another reference given by the British Commis- siouers from the same authority, he is made to say : Soon after the birth of their young, they leave it on the ground and go to the sea for food, returning perhaps to-morrow, perhaps later, even not for several days, in fact, to again suckle and nourish it, having in the meav.Hme sped far off to distant feeding hanlcs. (Sec. 309.) It will be observed that this agrees entirely with the testimony pro- duced by the United States. The report then goes on to cite authorities showing how far the cows go out tor food. Taylor is quoted as saying tliat they go out every day a distance of 10 or 15 miles, or even farther. T. P. Ryan says that the main feeding grounds of the seal during the summer stay upon the islands, and to which the cows are continu- ally going and coming, are to be found 40 to 70 miles south of St. George Island. SUMMARY OF TIIK EVIDKNCE. 273 G. R. TInglo, in the saiiio reitoit cited, says the seals probably go 20 miles out, in some eases, in search of tbod. The British Commissioners, in this exceptional instance, are to be cred- ited not only with having been diligent, but with dischtsing tin; names of the persons from whom information was obtained. It might have been desirable that these statements should be made in the language of the fitosons themselves. However, we quote it as it is given us. Tingle, in section 312, extends the feeding area from 20 miles, which he has named above, to 30 or even 40 miks from the land. Kedpath did not know of the feeding grounds, but believed that the females go from 10 to 15 miles from the islands for the puri)oseof feeding. I)ani(>l Webster (whom they graciously indorse as a truthful witness) concurred with Ryan, and expressed the opinion that when feeding in the autumn the seals went 00 miles to the southtcard of ISt. Oeorye Islaml. He be- lieved that there was a fitcorite feeding ground in thai vicinity, imd stated the reasons of this belief. Mr. Webster is a reliable and intel- ligent witness, who has frequently been quoted by the American Com- missioners. While he does not state the distance as being more than (iO miles, he certainly places it, with other reliable witnesses, sufliciently far out to sea to enable the poachers to destroy this (ilass of seals. It may not be material whether the distance be GO or 100 miles; when the men bent upon slaughtering seals, irrespective of condition and s^ex, have discovered the feeding grounds of the mothers, all that they will ask is that the distance be sufficiently great to secure to them immu- nity in their destructive work. Mr. Fowler stated to the Commissioners (Sec. 312) that ho be- lieved that there was a favorite feeding ground of the seal about 30 miles off the northeast point of St. F'auls Island. Tliis was not from personal knowledge, but dependent upon statements that seals had been seen in abundance there. That the seals caught on the feed- ing grounds must be females is the conclusive inference from the state- ments and argument of the British Commissioners themselves. They .state that all seals resorting to the islands seem in a great degree to share iu a common abstinence, and assert that the stomachs of even the bachelor seals killed upon the islands are found void of food. As all the authorities cited by them confine themselves to the females, it is worse than idle to argue tliat those which resort to the feeding grounds are either old males or young ones. 147i9 18 IMAGE EVALUATION TEST TARGET (MT-3) /s % I 1.0 1.1 •ii U2 12.2 li 1.8 «» no L25 iU 11.6 n ^Vjf'^ v: w^'w '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716)872-4503 I o^ : i 274 Ai^O JMENT OF TUE UNITED STATES. The statement is attributed to natives of St. Paul that the females from the rookeries went only 3 or 4 miles to sea and always returned to their young on shore the same day (Sec. 312). A statement so vague as to names and qualifications hardly deserves notice. It may be important, however, as showing that the natives have observed that females do return to their young for the purpose of nursing them. Mr. Grebuitsky did not agree with most of the natives, who thought " that the females did not feed during this period," but stated as the result of his own personal observation and long experience that they went out to sea while suckling the young, but not further than half a mile or a mile from the shore. If food is to be procured so near the laud by the mother, it may be that when she was seen floating or playing in the water near the shore by Mr. Bryant, and then return- ing occasionally to suckle her pup, she had also been employed upon the more profitable nn'ssiou of securing milk-producing material. Snegilott" thought that the females leave their young for several days to go as far as 10 miles from land to feed, while Kluge, the agent of the Eussiau Government in chsirge of the Copper Islands, thought that the females went as far as 2, 3, or 4 miles, but returned to the rookery every night. To this undigested mass of information, thus unsatisfactorily reported, the magnanimous admission is added that "it is certain from statements obtained that females with milk are occasionally killed at sea by the pelagic sealers " (Sec. 314). We may conclude from all this testimony on the part of the British Commissioners that the seals which leave the rookeries are almost ex- clusively, if not wholly, female seals, nursing their young and seeking food, and that they proceed to great distances in some cases, and are found in feeding grounds which may be liom 40 to CO miles distant from the land. It now remains to be seen Avhat testimony is oflTered on the part of the United States to satisfy the judgment and conscience of the court which is to determine this, one of the most important ele- ments in the conti'oversy. Assuming all the parties, who have given the information to the Commissioners of Great Britain and to the United States, for the re- spective countries to testify fairly and honestly, it is elementary that, where positive evidence of a fact is presented and negative evidence on the other side, the positive evidence shall be credited; otherwise the effect would bo to stann) ouc party with perjury because what he is SUMMARY OF THE EVIDENCE. 275 stated to bave seen or said or Iieaid or done was unnoticed or unobserved by the witness testifying in tlie negative. If, therefore, the sworn tes- timony of reputable persons is produced extending the area in which the female seals have been observed in quest of food, preference must be given to them rather than to those witnesses whose opportunities may not have been the same or whose powers of observation may not have been equal. Where witnesses testify 2)ositivel!/ that they have neen and killed seals over 100 miles from land, can they be truly said to be contradicted as to the fact by men who say that they have never seen them more than 60 miles from the shore? Peter Anderson (Appendix to Case of the United States, Vol. II, p 312), a seal-hunter, agrees with Mr. Webster, who is quoted by the Lritish Commissioners. He says: A large majority of the seal taken on the coast and in Bering Sea are cows with pup in the Pacific Ocean and with milk in Bering Sea. A few young male seal are taken in the Xorth Pjvcific Ocean, from two to three years old. Have never taken an old bull in the North Pacitic Ocean in ray life. A few yearlings have been taken by me, but not many. Used no discrimination, but killed all seals that come near the boats. The best way to shoot seal to secure them is to shoot them in the back of the head when they are asleep with their noses under water. Have never known any seal pups to be born in the water nor any where else in Alaska outside of the Pribilof Islands, nor have I ever known fur-seal to haul up anywhere on the land excei)t on the Pribilof Islands. Have taken females that were full of milk 00 miles from the Pribilof Islands. John Armstrong (Appendix to Case of the United States, Vol. II, p. 1), who had been during many years agent of the Alaska Commercial Com- pany and lived for the whole of ten years upon St. Paul Island, observed that very few seals go out to sea to feed during June, July, and August, except females and some of the younger seals. He adds: I am asked whether the seals copulate in the water. It is a question that is often discussed at the island, and neither the scientific observ- (M's nor the unscientific are able to agree about it. I have seen seals ill position when it seemed to be attempted, but doubt whether it is effectually accomplished. If it were, I tliiiik we should see pups some- times born late and out of season, but such is not the case. Kerrick Artomanoff {ibid., p. 99) worked on the sealing grounds tor the last fifty years. His deposition is well worth reading. It may be found «t page 99. He accounts for the decrease in the number of seals since 1874 by the destruction of the females. He states that in 1887 ^nd 1891 the rookeries werecoveretl with dead pups. Ill his sixty- seven years' residence on the island he never saw anything like it before. No sickness was ever known among the pups or seals, mm ' Ii ; : i^.''f"i;i; .■('■^'''' i'i ' ■:|'i:?1l \ m iv rv m> lilt •■■v; "111!' i''i ;!h h' V.' r fM, W I- f' I t. If i III 276 ARGUMENT OP THE UNITED STATES. and he had never seen any dead pups on the rookeries, except the few killed by the old bulls when fighting or by drowning when the snrf washed them off {ibid., p. 100). He states that four or live days after the birth of the pup the mother seal leaves her offspring and goes away in the sea to feed, and when the pup is two or three weeks old the mother often stays away flva or six days at a time. William G. Bennett {ibid., p. 356) had been a seal-hunter all his life; he was 32 years old at the time of deposing. He had hurled the seal with spear and sometimes with a shotg^in. Most of the seals taken by him were cows. He thought that the cows slept more and are more easily approached. The sex of the seal not being ascertainable in the water, ho shot everything that came near his boat, and when the seal is shot dead it sinks very quick and is hard to secure under those condi- tions. He also agreed with the other witnesses that seals were decreas- ing in number very fast., and he attributed this to the indiscriminate killing in the water. Joseph Stanley-Brown, a geologist, whose testimony on other points has heretofore been given attention, says : For the first few days, and possibly for a week or even ten days, the female is able to nourish her young or offspring, but she is soon com polled to seek the sea for food, that her voracious young feeder may be properly nourished, and this seems to be permitted on the part of the male though under protestation. The wholo physical economy of the seal seems to be arranged for alternate feastii:g and fasting, and it is probable that in tlie early days of its life the young seal might be amply nourished by such milk as the motlier might herself afford without resorting herself to the sea for food. John G.Cantwell {ibid., p. 408), second lieutenant in the United States Revenue Marine, had been on duty in Behring Sea during the years 1884, 1885, 1880, and 1891. He had paid particular attention to the seals and wlienever opportunity offered had visited the rookeries for the purpose of photographing and sketching the animal, etc. He had boarded a large number of vessels fitted out as sealers and engaged in sealing, and had conversed with the masters and crews on the subject of pelagic sealing. This is his testimony: From information gathered from these and other sonroes, and by com parison of testimony given by the seal hunters, would say that at least 60 per cent of seals killed or wounded escape and are n&ver recovered, and that 75 per cent of seals shot in the North Pacific Ocean are fe- males heavy with young, and that 80 per cent, of seals shot in Behring Sea from July 1 to Sei)tember 15 are females, most of which have given birth to their young, and are mostly caught while feeding at vari' ous distances from laud. SUMMARY OP THE EVIDENCE. 277 Oapt. Oarthcut (ibid., p. 404), a master niariaer, engaged in hunting the fur-seals for 10 years, extending from 1877 to 1887, during the latter part of the time in Bering Sea, spealcs on his personal knowledge, and makes a valuable contribution to the knowledge which we have upon the subject. One of the resisons r-hich he assigns for the great shiughter of female seals is that maturity makes them tame and easily approach- able. He says: About 80 per cent of the seals I caught in the Behring Sea were mothers in milk, and were feeding around the tishiiig banks just north of the Aleutian Islands, and 1 got most of my seals from 50 to 250 miles from the seal islands. I don't think I ever sealed within 25 miles of the Pribilof Islands. They are very tame after giving birth to their young, and are easily approached by the hunters. When the females leave the islands to feed, they go very fast to the fishing banks, and after they get their food they will go asleep on the waters. That is the hunter's great chance. 1 think we secured more in propor- tion to the number killed than we did in the Jforth Pacific. I hunted with shotgun and rifle, but mostly with shotgun. Seals were not nearly as numerous in 1887 as they were in 1877, and it is my belief that the decrease in numbers is due to the hunting and killing of female seals in the water. I do not tliink it possible for seals to exist for any length of time if the present slaughter continues. The killing of the female means death to her born or unborn pup, and it is not reasonable to expect that this immense drain on the herds can be con- tinued without a very rapid decrease in their numbers, and which practically means extermination within a very few years. Christ Clausen {ibid., p. 319), a master mariner, was engaged in seal hunting as mate of the British schooner C. H. Tupper, in 1889. He resides at Victoria, British Columbia, and also was navigator in the British schooner Minnie. His testimony is worth reproducing somewhat extensively. Unless willful perjury be attributed to him, his testimony, based on actual observation and experience in the busi- ness of slaughtering seals, should be accepted as conclusive on several of the points under consideration: The Indian hunters, when they use spears, saved nearly every one they struck. It is my observation and experience tliat an Indian, or a white hunter, unless very expert, will kill and destroy many times more than he will save if he uses firearms. It is our object to take them when asleep on the water, and any at tempt to capture a breach- ing seal generally ends in tkilure. The seals we cat<;h along the coast are nearly all pregnant females. It is seldom we capture an old bull, and what males we get are usually young ones. I have frequently seen cow seals cut open and the unborn pups cut out of them and they would live for several days. This is a frequent occurrence. It is my experience that fully 85 per cent of the seals I took in Behring Sea were females and bad given birth to their pups and their teats would 278 AROITMENT OF THE UXITED STATES. in I'- ll t 1)0 full of milk. 1 li ivd tini^lit saiU of this kind 100 to 150 in ilea from I'ribilof IsliuulH. It is my opinion that spuars should be used in hunt- ing seals, and if they are to be kept from extermination the shotgun should be discarded. Fetor Collins, also engaged in sealing a« a sailor, testified as to the manner of shooting the seals {ibid., p. 413. Fully three-fourths of the seals shot in the North Pacific, he says, were females with young. He swears that he has seen mothers with their breasts full of milk killed 100 miles or more from, the seal islands. He knows that they go great dis- tances for food. His testimony is that of a practical man who evidently entertained no prejudice on the subject of killing the mothers with breasts full of milk. He was apprehensive, however, that his business would be destroyed. He says: There were not nearly as many seals to be found in 1889 as there were in 1888. I think the sition. His experience was practical and extensive. He says: In company with Special Agent Mnrray, Capt. Hooper, and Slngineer Brerton, of tlie Corwin, I visited the reef and Gobatch rookeries, St. Paul Island, in August, 1891, and saw one of the most i)itiable sights that I have ever witnessed. Thousands of dead and dying pups were scattered over the rookeries, while the shores were lined vvith emivciated, hungry little fellows, with their eyes turned toward the sea, uttering plaintive cries for their mothers, which were destined never to return. Numbero of them were opened, their stomachs examined, and the fact revealed that starvation was the cause of death, no organic disease being apparent. The great number of seals taken by hunters in 1891 was to the west- ward and northwestward of St. Paul Island, and the largest number of dead found that year in rot>keries situated on the west side of the island. This fact alone goes a great way, in my opinion, to confirm the theory that the loss of the mothers was the cause of mortality among the young. After the mother seals have given birth to their young on the islands, they go to the water to feed and bathe, and / have observed them, not only around the island but from SO to 100 miles out at sea. In different years the feeding grounds or the location where the greater number of seals are taken by poachers seem to differ: in other words, the seals fretpiently change feeding grounds. For instance, in 1L87, the greatest number of seals were taken by poachers between Unamak, Akatan Passes and the seal islands, and to the southwest ward of St. George Island. In 1889, the catching was largely done to the southward and eastward, in many cases from SO to 150 miles dis- tant from the seal islands. In the season of 1890, to the southward on tL. swim, water their p distant distant 1st of which and ev homes, in the p. 23). Jam -and pi SUMMARY OP THE EVIDENCE 279 and westward, also to northwest and northeast of tlie islands, show- ing that the seals have been scattered. The setison of 1801, the great- est nuJiber were taken to northward and westward of St. Paul, and at eariouo distances from 25 to 150 miles away. The testimony of such a witness, speaking of his knowledge, declar- ing upon his oath that he had seen females feeding 8() to 100 miles from the Pribilof Islands, ought to outweigh the negative and loose state- ments of any conceivable number of natives or other informants upon whom the British Commissioners have relied. Charles Challall {ibid., p. 410), a sealer who had been sealing up the coavSt and in Bering Sea three seasons, testified as follows: Most of the seals we killed up the coast were females heavy with pup. I think nine out of every ten were females. At least seven out of every eight seals caught in the Bering Sea were mothers in milk. The vessels I went out in had from four to six boats each. Each boat liad three men, a hunter and two pullers. The average hunter would get one out of ev:ny three that he shot; a poor hunter not nearly so many. There are twenty-one buckshots to a shell. I think a great many seals are wounded by hunters that are not taken. The gunshot wounds more seals than the rifle. I think the aim of the hunter is to kill the seal rather than to wound it. Wiien they are in schools sleep- ' ing we get a good many. We did not get as many we shot at in the Bering Sea as we did on the coast. If we got one out of every thrpe that we wounded in the Bering Sea we were doing pretty well. I do not know of any place where the seals haul up on this coast except on tL^ :eal islands. Mr. W. H. Dall (upon whose manuscript note, said to have been sup- plied to Prof. Allen, the British Commissioners rely to show coition in the water). He testifies to having seen seals in the water of Bering Sea 100 miles or more from the Islands. His testimony, too, seems con- clusive, if he is a reliable witness. This is his language: The Pribilof Islands are the chosen home of the fur-seal {Callorhinus ursimis). Upon these islands they are born; there they first learn to swim, and more than half their life is spent upon them and in the water adjacent thereto. Here they give birth to their young, breed, nurse their pups, and go to and from their feeding grounds, ichich may be miles distant from the islands. I hare seen seals in the waters oj Bering Sea distant 100 miles or more from the islands at various times between the 1st of July and October. These seals tcere doubtless in search of food, which consists, according to my observation, of fish, squid, crustaceans, and even mollusks. Upon the approjich of winter the seals leave their homes, influenced doubtless by the severity of tlie climate and decrease in the food supply (Appendix to Case of the United States, ol. II, p. 23). •Tames Henry Douglas {ibid., p 419), was by occupation a master and pilot of vessels, and had had long experience sailing iu the North m 'Ht • ■':')}■' "I' till 280 ARGUMENT OF THE UMTED STATES. Pacific and Bering Sea; liad gone to tlic seal islands in the latter sea over twenty years ago, and been there many times subsequently while in the employ of the Government. He testifies that his observation and information agreed with that of many other witnesses. He says: My information and observation is that a very large proportion of those killed along the coast and at sea firom Oregon to the Aleutian Islands are female seals with pups; I think not less than 95 ])er cent. The proportion of female seals killed in the ISering Sea is equally large, but the destruction to seal life is much greater owing to the fact that when a mother seal is killed her suckling pup left at the rookery also perishes. Impregnation having also tiiken place before she left the rookery in search of food, tlie ftetus of the next year's birth is likewise destroyed. I also found tlmt/emales after giving birth to their young at the rookeries seek tlie codfish banks at various points at a distance of from 40 to 125 miles from the islands for food, and are frequently absent one or more days at a time, when they return to find their young. I have noticed that the females when at sea are less wild and dis- trustful than the bachelor seals, and dive less quickly in the presence of the hunter. After feeding plentifully or when resting after heavy weather they appear to fall asleep upon the surface of the water. It is theti they become an easy target for the hunters. George Dishow, of Victoria, British Columbia, was by occupation a seal hunter and pursued that business six years {ibid., p. 323. I use a shotgun exclusively for taking seal. Old hunters lose but very few seals, but beginners lose a great many. 1 use the Parker shotgun. A large proportion of all seals taken are females with pup. A very few yearlings are taken. 1 never examined them as to sex. But very few old bulls are taken, but five being taken out of a total of 900 seals taken by my schooner. Use no discrimination in killing seal, but shoot everything that comes near the boat in the shape of a seal. Hunters shoot seal in the most exposed part of the body. Have never known any pups to be born in the water, nor on the land on the coast ot Alaska anywhere outside of the Pribilof Islands. Have never known fur-seal to haul up on the land anywhere on the coast except on the Pribilof Islands. Most of the seals taken in Bering Sea are females. Have taken them 70 miles from the islands that tcerefull of milk. I think a slosed season should be established for breeding seal from January lut to August 15th in the North Pacific Ocean and Bering Sea. George Fairchild {ibid., p. 423), made a sealing voyage to the North Pacific Sea as sailor on the Sadie Clyde, sailing from Victoria on the 10th of April, 1888. They went north to the Bering Sea, sealing all the way up, and got 110 seals before entering the sea: " Most of them, " he says, " were cows, nearly all of which had pups in them. We took some of the pups alive out of the bodies of the females. We entered the Bering Sea May 25, and we got 704 seals in there, the greater quantity of which were females with their breasts full of milk, a fact which I know by reason of having seen the milk flow on tite deck when SUMMARY OP THK KVIDENCE. ^81 fhcif trerc being sl-iniicd. We bail 5 boats on board, eaob l)oat bavit)<;a liuiiter, boat puller, and steerer. We used Hbotguns and rifles. We {jot one out of every 5 or 6 tbat wo killed or Avounded. We wounded a arosit many tbat we did not ffet. We caught them from 10 to 50 miles oft' the seal islands. " This 18 the sportsmanlike method of hunting seals of which tlic British Commissioners speak in terms of undisguised admiration! Samuel Falconer (ibid., p. 105), deputy collector of (ajstoms iu 1868 and 1880, the.i purser ou board the steamer CouHtantine, was also in charge of St. Paul Island several years. It was a part of his duty to make a very careful and full study of seal life. It was his opinion thut i( a pup lost its mother by any accident it would certainly die by starvution. When the young seal are 6 or 8 weeks of age their mothers force them into the water and teach them to swim. After repeated trials the pup learns to swim, and from that time on spends a great deal of time in the water, but still the greater portion of these first months of its life are spent on land sleeping and nursing. The cow, after bringing forth her young, remains on the rookery until again fertilized by the bull, which is, I l)elieve, within two weeks. Atter the fertilization she is allowed to go to and from the water at will in search of food, which she must obtain so she can nurse her pup. She goes on these feeding excursions sometimes, I believe, 40 or more miles from the islands, and as she swims with great rapidity, covers the distance in a short time. She may go much farther, for I have known a cow to be absent from her pup for two days, leaving it without nourishment for this period. This shows how tenacious of life a young seal is, and how long it can live without sustenance of any sort. The 3-year-old male has meanwhile landed on the hauling ground and is now of the most available age to kill for his pelt. John Fratis {ibid., p. 108) was of opinion that the cows were killed by the hunters when they go out in the sea to feed, and the pups are left to die and do die on the islands. He says: The pups are born soon after the arrival of the cows, and they are lielpless and can not swim, and they would drown if put into the water. The pups have no sustenance except what the cows furnish, and no cow suckles any pup but her own. The pups would suck any cow if the cow would let them. After tlie pup is a few days old the cow goes into the sea to feed, and at first she will only stay away for a few hours, but as the pup grows stronger she will stay away more and more until she will sometimes be away for a tceek. William Frazer gives his experience as a sealer. The hunters use shotguns, he says {ibid., p. 427), and got about one out of every six they shot at or killed, aud soinotimes they got none. The great majority of rn & I hii »v I 282 ARGUMENT OP THE UNITED STATES. tliein were femnles. Most of the females killed have unborn pups or werecows in the milk. They dirt not kill any on the Island because they never went in close enough. He testifles positively that " we," meau- iu}? his companions and himself on the Charles Wilson, '' killed females giving milk more than 100 miles from the seal islands. Most of the seals sunk or dove out of sight when killed or wounded, and a great many of them we could not got." On one occasion he got 600 seals. He does not know whether it was on the American side or not. They were almost all females. He noticed when he skinned them that they were females in milk, as the milk would run from their breasts on to the decks. He concurs with the other witnesses as to the diminution in the number of seals. Norman Hodgson {ibid., p. 366) observed nursing cotes from 60 to 80 miles front the Pribilof Islands, where they were ranging to feed. I do not think it possible for fur-seals to breed or copulate in water at sea and never saw nor heard of the action taking place on a patch of floating kelp. I have never seen a young fur-seal pup of the same season's birth in the water at sea nor on a patch of floating kelp and in fact never knew of their being born anywhere save on a rookery. I have, hotcever, cut open a gravid cow and taken the young one from its mother's womb, alive and crying. I do not believe it possible for a fur- seal to be successfully raised unless born and nursed on a rookery. I have seen fur-seals resting on patches of floating kelp at sea, but do not believe they ever haul up for breeding purposes anywhere except on rookeries. « Chad George (tfttrf., p. 365) 27 year sold and a seal hunter since he was a mere boy, has been engaged in the killing of seals and speared every- thing that came near his boat, regardless of sex. He had hilled seals 200 miles from the Pribilof Islands that were full of milk. H. A. Gliddon {ibid., p. 210), stated that the females during the entire sealing season are going and coming to and from the water for the pur- pose of feeding, and in his opinion while the females are thus going to and from the feeding ground and through the Aleutian passes they are intercepted and shot by open- sea sealers. Gapt. E. M. Greenleaf, a resident of Victoria, British Columbia, a sea faring man, holding a commission as master mariner, captured at one time sixty-three seals, all of whichwere females and all were pregnant {ibid., p. 324). He was informed by conversation with Bering Sea seal hunters tuat they killed seal cows 20 to 200 miles from the breeding grou nds, and that these cows had evidently given birth at a recent time to young. As to the proportions of seals fired at and killed or wounded, it is his SUMMARY OF THE EVIDENCE. 283 jinlginent tliat, taking the inn of hunters, good and bad, the best get about 50 per cent of tho8e Hhot at, and the poorest not more than one oat of fifteen. Cumulative testimony to this effect mifrht be cited to the extent of wearisome repetition, but if the learned Arbitrators shouM desire to pursue the subject as far as the evidence will permit, we give below references to the testimony to be found in the Appendix and not sj)e- cially quoted. We submit that it is absolutely conclusive unless, as we have sug- gested before, for some unknown reason it should be rejected us inten- tiona/y and criminally false. Arthur Griffin {ibid,, p. 325) captured females from 20 to 200 miles from the rookeries. James Griffin {ibid., p. 433) killed female seals full of milk 90 miles from the inlands. Martin Hannon {ibid., p. 445) killed them full of milk 100 miles from the seal islands. James Harrison {ibid., p. 326) caught 200 seals in the Behring Sea about the 1st of June, mostly mothers. James Hayward {ibid., p. 327) caught them IfiO miles from the shore and skinned them when their breasts were full of milk. He says that they travel very fast and go a long way to feed. J. Johnson {ibid., p. 331) killed female seals full of milk 75 miles from the island; used a shotgun and killed everything. Louis Kimmel {ibid., p. 173) had observed them at least 20 miles from the islands. Andrew Laing {ibid., p. 334) had caught them 75 to 100 miles from the island and in skinning them the milk would run out of the teats of the females, they having given birth recently to young on the islands. William H. Long {ibid., p. 457) killed mothers in milk all the way from 10 to 200 miles offshore. Thomas Lowe {ibid., p. 371) in 1889 hunted in the Bering Sea from 80 to 100 miles off the Pribilof Islands. Two-thirds of his catch were cows in milk. Thomas Lyons {ibid., p. 460) about the 26th or 28th of June went into the Bering Sea and caught 389 seals, nearly all of which were mothers in milk. He knows it as he saw the milk flow on the deck while skinning them. William M. McLaughlin {ibid., p. 461) killed them 50 to 60 miles off shore, most of them with milk. <ut her own. I saw sad evidences ot this '.vast on St. Paul last >CuV.n, where large numbers of pups were lying nbout the rookeries, where they had died of starvation. Adolph W. Thompson (ibid., p. 486) killed lemalcs in milk, although ho never went nearer to the island than 35 or 30 miles. Michael White {ibid., p. 480) killed seals in milk not lesn than 100 to 300 miles from the islaud. William H. Williams {ibid., p. 93), United States Treasury agent in charge of the seal islands in Bering Sea, states that it is a well-known fact substantiated by the statements of reputable persons who have been on sealing vessels and seen them killed 300 miles or more from the islands, and who say that they have seen the decks of the vessels slippery of milk flowing from the carcasses of the dead females. Ee alludes to the thousands of dead pups left on the rookeries starved to death by the destruction of their mothers as conclusive evidence of the destruc- tion and havoc wrought by the pelagic seal hunters. If this cumulative and unimpeachable evidence does not establish the fact which ^z have undertaken to prove, we must despair of satisfying this High Tribunal or any other tribunal of the correctness of our statements. Wo submit, howevc^- that it is more than made out — that it must be taken as a fact in the discussion of this case — that the cows, while suckling, go to sea for food ; that they t. 'ivel long distances, some- times as great as 200 miles; and that during such excursions they are ruthlessly slaughtered by pelagic sealers, in many cases without profit, as they sink and are irretrievably lost. The sickening details, abund- antly liirnished by the witnesses, sufficiently characterize the business, and justify the harshest expressions of condemnation. The slaughter thus described constitutes a crime, for it violates the most common in- stincts of our nature and woul" be punished by the laws of every civi- lized nation, if jurisdiction could only be acquired over the wrongdoers. And yet the Commissioners for Great Britain undertake to justify this 'ft' Cjjil ■ lift I i.'n i' I,* ■ I; ,,.;' 28G ARGUMENT OP THE UNITED STATES. pi'at'tice for its sportsmau-like qualities, aud to eulogize it because it gives the seals a fair sporting chance fur their life (Sec. 625). It is really, they say, hunting as distinguished from slaughter {ibid). It is not easy to discuss these propositions with that patient and respectful consideration which is due to the importance of the questions involved. ;.R U ij il litfi' VIII.— The Fue-Sbal is a Polygamous Animal, and the Male IS AT LEAST FOUE TlMES AS LAEGE AS THE FEMALE. AS A liuLE, EACH Male seeves about Fifteen oe Twenty Fe- males, BUT IN Some Oases as Many as Fifty oe Moee (Case OF the United States, p. 327). A great diminution in the number of females making up a harem has been noticeable in late years. Formerly there would be on an average 30 cows to a bull ; now they will not average 15 (Case of the United States, p. 344). The British Commissioners are in substantial accord with the statements above quoted as to the service of the ♦emale by the male. They cite from Bryant to show that the proportion is 1 male to 9 to 12 females; from Elliott, that the mean number is 5 to 20, and from Mr. Grebnitzky, that the ratio should not exceed 1 to 20 (Sec. 64). This is suflftcient for our present purposes, especially as they add that it is no tincommon event, during the last few years, to find a single male seal ■with a harem numbering from 40 to 50, and even as many as 60 to 80, fe- males (Sec. 55). With their deductions from these facts we are not at this moment concerned. It is apparent, on the face of the report, that the Commissioners had a theory to support and that the facts were read by them in the light of that theory. An amusing illustration, among many, is found in the statements on this very point. Bearing in mind the severe criticism of earlier sections (54, 55, and 56) upon the system of sacrificing males so that the bulls are forced to supply the necessities of 40 to 60 and even 60 to 80 females, read section 483, describ- ing the condition of seal life as far back as 1842: In the well-known Penny Cyclopedia, published so latMyas 1842 [half a century ago], the seal is described as follows: • * • "When these migratory seals appear off Kamtchatka and Kuriles early in the spring, they are in high condition and the females are pregnant. They remain on and about the shore for two months, during whicli the females bring forth. They are polygamous and live in families, every male being surrounded by a crowd of females {from 50 to 80)^ whom he guards with the greatest jealousy P (Sec. 483.) It would seem from this eiitract that the polygamous practices and habits of the seal liave not changed since 1842 and that the service by SUMMAllY OF THE EVIDENCE. 287 one male of a large number of females is not new and is not the result of excessive slaugliter on the land. We are not left, however, to the statements, inconsistencies, and cita- tions of the British Commissioners' report. The testimony of nniny witnesses bears out the propositions stated in the Case of the United States and disposes at the same time of the pretense that the bulls are now compelled to perfoim increased and exhaustive duty by reason of a reduction in the number of young bulls. The fact seems to be well established that the bull is possesspd oi extraordinary powers. He is able to subsist several months witliout tasting food and to fertilize at the same time an almost indefinite num- ber of cows. The limitation in the number of his harem depends gen- erally ui)on his ability to secure alarger or smaller i)roportion of females. He gathers about him as many cows as he can. Joseph Stanley-Brown speaks on this subject from actual observation. He describes the breeding bull as possessing " a vitality unsurpassed by any other mem- ber of the animal kingdom." He testifies that the very large harems were unfi-equent and that the average number in the season immedi- ately preceding wi ; about 20 to 25. (Appendix to Case of the United States, Vol. II, p. 13). Charles Bryant places the average at 15 to 20 cows for each bull. {Ibid., p. 6.) Samuel Falconer testifies to having seen 20 cows or more to a bull, but of course, he added, the exact num- ber in a harem is a matter of conjecture, as many cows are absent in the water alter the season has fairly commenced. {Ibid., p. 1G6.) T. F. Morgan testifies that the bull returns to the island about the 1st of May and hauls u;) to the breeding rookeries, provided he is able to maintain himself thtre, which takes many bloody conflicts. There he fjathera about him as many females as he is abU. {Ibid., p. 3.) Capt. Olsen is quoted by Theodore T. Williams as placing the number of females served by one bull at 20 or 25 {ibid., p. 505.) The respective weights of the animals is placed in the Case of the United States at 400 to 700 pounds: that of the cows at 100 (pp. 107, V3). This great disparity in bulk should be borne in mind when we con- sider the probability of pelagic copulation. The Encyclopedia Britannica states the weight of the animals sub- stantially as it is stated in the tescimony and case. The male seal is said to weigh 500 to 700 pounds, the females 80 tQ IQO, There seems to be .'I ' 't 'I, ! '■* ■I i'ii 288 ARGUMENT OF THE UNITED STATES. I H ■' ■ i' no dispute as to these estimates (The Cyclopedia also states that soon after the landing the female gives birth to one pup, weighing about pounds). The real conflict between the report of the British Commissioners and the Case of the United States seems to be as to the number of cows in a harem. The British Commissioners assert that the number is unduly large of cows served by one bull ; the United States produce credible and experienced witnessess to show that, on the contrary, the number of females is decreasing. A comparison is invited between the two state- ments and the quality of proof adduced in favor of each. It is plain that the British Commissioners could not admit the diminution in number of female seals without admitting that decrease to be wholly due to pe- lagic slaughter. They are therefore reduced to the necessity of insist- ing that there is a redundancy of females and a deficit of males on the Islands. They are kind enough to admit, however, that " the sparing of females, in a degree, prevented, for the time being, the actual depletion of seals on the islands " (Sec. 58). It is not probable that any reasonable person will take issue with them on that point. The intelligence and legislation of the civilized world, not to speak of humanity in its broad sense, have concurred that to spare the female was, not the best, but the only effective method of preventing depletion and eventual exter- mination. Even if we should concede, for the sake of the argument and in direct disregard of the fact, that the diminution is due to the smaller number of males, we would venture to remind this High Tribunal, if such a reminder were needed, that the pirat-es or poachers who pursue and slaughter the pregnant and nursing females are killing, by starvation in the one case, by the mother's death in the other, a lauje number of males. Even, according to their own showing, the British Commission- ers must realize that pelagic sealing is responsible, to some extent at least, for the decrease in the number of males, as well as of females. They may speak of this "industry," as they term it, and glorify it as requiring all the courage and skill which can be brought to bear on it (whatever that may mean). (Sec. 609.) They may contrast its "sportsmanlike" char acter with the " butchery" committed on the islands (Sec. 610) ; but they can not fail to perceive that the mode of destruction which principally deals with gravid females, necessarily strikes at the very foundation ofliffe and must eventually extinguish the race, because, as they mildly state it, it is unduly destructive (Sec. 033). SUMMARY OP THE EVIDENCE. 289 The pelagic sealer not only kills or attempts to kill the males that he happens to meet, but prevents the birth of males to take their place. He often kills three with one discharge of his rifle, viz. : the mother, the unborn young, and the pup at home; but he does it in a " si^ortsman- like" manner, and he gives the sleeping animal a "fair sporting chance for its life." (Sec. 610.) In many cases he either misses his object or wounds it and loses it. So that there is by this manly process an utterly useless waste of life, in many cases a waste more or less appalling as the "sportsman" is more or less skillful. How destructive in reality this process is proven to be may be seen fi-om the British Commissioners' report under the head of "Proportion of Seals Lost," (p. 104, Sec. 003) It must be a consolation to those disposed to extol this kind of sport that while nearly "all the pelagic sealers concur in the opinion that the fur-seal is annually becoming more shy and wary at sea," it is cer- tain that " the dexterity of the hunters has increased pari passu with the wariness of the seals.''^ (British Commissioners' Ileport, Sec. 401.) That the number of the seals has been diminished in recent years and at a cumulative rate, and that such diminution is the consequence of destruction by man, is certified by the Joint Report of all the Com- missioners. That tins human agency is pelagic sealing exclusively, and not the mode, manner, or extent of capture upon the breeding islands, is abundantly clear. This follows necessarily from admitted facts. The fur seals being polygamous, and each male sufficient for from 30 to 50 females, and being able to secure to himself that number, it follows that there must be at all times a larger nunaber of superfluous males, and the killing of these produces no permanent diminution of the number of the herd. On the other hand, the killing of a single breeding female necessarily reduces pro tanto the normal numbers. An excessive killing of males* mi^'ht indeed tend toward a decrease if carried to such an extent as not to leave enough for the purpose of effectual impregnation of a'l the breeding females. The taking from these herds of 100,000 males would not, if that were the only draft allowed, be excessive. This is evident from many considerations. (o) Those who, like the British Commissioners, propose to allow pelagic sp''Mngto such an extent as would involve the annual slaughterof at least 5t ,000 females in addition to a slaughter of 50,000 young males on the breeding islands, can not certainly with the least consistency assert that the capture limited to 100,000 males would be excessive. Nor 14749 19 'M I IK .;:(lj i; ,.;H 290 ARGUMENT OF THE UNITED STATES. li; could they consistently assert this even though the pelagic slaughter p.hould be restricted (by some means which no one has yet suggested) to 10,000 females. It requires no argument to show that the destruc- tion of even that number would be rapidly disastrous to the herds. (6) And when we turn to the proofs, they are conclusive that prior to the practice upon any considerable scale of pelagic sealing, the annual draft of 100,000 young males did not tend to a diminution of numbers. (c) Of course it is easily possible that the indiscriminate slaughter effected by pelagic sealing may soon so far reduce the birth rate as to make it difficult to obtain the annual draft of 100,000 young males. This draft, under such circumstances, would not necessarily at once di- minish the birth rate, f< r, the number of females being less, a less num- ber of males would be required. The number of the whole herd might be rapidly diminished by the slaughter of females and the consequent diminution of the birth rate, and still 100,000 males continue to be ta- ken for a time without damage. How soon a point would be reached at which so largo a draft of males from a constantly diminishing number of births would operate to produce an insuflftciency of males, is a prob- lem which from want of precise knowledge of the relative numbers of the sexes, it would be difiBcnlt to solve. The British Commissioners' Export upon this subject is as follows: The systematic and persistent hunting and slaughter of the fur-seal of the North Pacific, both on shore and at sea, has naturally and inevitably given rise to certain changes in the habits and mode of life of that animal, which .are of importance not only in themselves, but as indicating the ellects of such pursuit, and in showing in what particular this is injurious to seal life as a whole. Such changes doubtless began more than a century ago, and some of them may be traced in the his- torical precis, elsewhere given (Sec. 782 et seq.). It is unfortunately true, however, that the disturbance to tlie normal course of seal life has become even more serious in recent yt'ars, and that there is therefore, no lack of material from which to study its character and effect even at the present time. In the zeal of their advocacy on behalf of pelagic sealing and their denunciation of the methods in use on the Islands, the Commissioners have experienced much and evident difficulty in framing their theory. If they admitted. In unqualified terms, a decrease in number, the ob- vious deduction from the concession would be that the unlimited slaugh- ter of females must bear the blame and burden of such a result. To that extent pelagic sealing must be condemned. If, on the other hand, they should assert that the number actually increased, this SUMMARY OF THE EVIDENCE. 291 \roxilelagic," /orccMh\ (c) It is claimed, however, that pelagic seal-flshing is not the only cause for the decrease of the seals on the Pribilof Islands, and this is supported by a quotation to be found at page 187 of their Report, as to the probable fate of the fur-seal in America. The paragraphs relating to the objectionable features of pelagic seal-flshing seem to be omitted and indicated by asterisks, but the paper is quoted to show tliut driv- ing of the seals on the island is one of the evils which maybe remedied. The conclusion of Mr. Palmer, the authority thus cited, is (1) that no teals should be killed b>; any one ai any time in the waters of Bering Sea; (2) that all seals driven ou the islands should be killed; none, he says, should be driven and again allowed to enter the sea (p. 189). Cer- tainly Mr. Palmer's paper is very interesting and if his facts and con- clusions are adopted pelagic " seal-fishing " must be prohibited. ''The killing of seals as conducted on the islands," he says, "is as near theo- tetical perfection as it is possible to get it. They are quickly dis- patched and without pain. One soon recognizes^ as in the killing of sheep, that in the quickness and neatness of the method lies its success, all things considered" (p. 187). This certainly does not agree with the "sportsmanlike" view of the British Commissioners, but embodies Ifrhat we might call the humane and common-sense aspect of the sub- ject by showing that, so far from the desirability of giving the seal " a chance for its life," there should be a selection made in each case and the animal should be painlessly and immediately slaughtered. The object should be, not to provide sport to adventurous men and keen hunters, but to secure as many animals as possible with humanity and a due regard to the preservation of the race. {d) It is respectfully submitted that as between the two systems, one of which is "theoretically perfect" and in the course of which the animals are selected and "promptly and neatly killed," on the one hand, and indiscriminate sealing at sea on the other, there can be no room for hesitation. But the evident and unquestionable supe- riority of the methods adopted on the islands consists, also, in the fact that it is by its nature susceptible of indefinite improvement. No argument is needed to show that the "theoretical" perfection may with care become "practical" perfection, and that if driving be really open to the objections made by Mr. Palmer it is not impos- sible — indeed, it must be coniparatively easy — to remedy them in the manner suggested by himself or otherwise. In the preserva- tion of pelagic sealing all conle article of their " industry." In their search for food and in the int>i liictive confi- dence which the mothers of dependent offspring almost universally exhibit the seals would be less "wary" than at other seasons, and good shots might still carry on their mission of destruction with the superadded comfort that their business was made reputable by law. As if to make even this small restriction upon the liberty of the iielagiu sealer less objectionable, he is reminded that "after about the 20th of May or at the latest the 1st of June,very few females with young are taken." (Sec. 648.) His loss would thus be trifling so far as Bering Sea as a field of profitable operation is concerned. It seems that in fine sealing weather the schooners can not keep up with the females. Hence they are not all slaughtered. At this time, after May 20, or June 1, the pregnant females begin to "bunch up" and the catch consists chiefly of young males and barren females (Sec. 648). Why, then, even this restriction? "When are the breeding females captured! Is it really intended to assert that the only injury done is that "at a later date in the summer a few females in milk, and therefore presumably from the breeding places on the islands, are occasionally killed, but no large numbers f" So extraordinary a statement made in the face of overwhelming proofs requires no discussion. The British Commis- sioners should Lave vouchsafed information as to the thousands of nursing mothers killed during the season from July to September and should have told us whence they came and where was their " summer habitat." It is very likely, as they assert, that very few females with young are taken after June 1. The obvious reason is that they have become nursing mothers by the 1st of July, those that escaped the shot-gun, the rifle, the spear, and the gaff having found temporary shelter and protection on the islands. (/) Although we have laid much stress upon this in other parts ot SUMMARY OF THE EVIDENCE. 299 this argument, the subject is ro important that we again recur to it and call attention once more to the adniisHiouHand inconniHtencieH in the Brit- ish Commissioners' Report. The Commissioners in section B12 exhibit much indignation at the free use that has been made of the api)cllatiop ''poachers" as applied to the pelagic sealers in general and to Cana diau sealers in particular. This, they say, has been done with the obvi ous purpose of prejudicing public opinion. They theu proceed to claim that "adventurers" from the United States are mainly responsible foi the reduction of seals bnmght about in the southern seas. The killing of seals, they say, has always and everywhere been ci.rried out in the indiscriminate, ruthless, and wasteiul manner described in detail iu several of the works cited in their Report, and in most cases a greater part of the catch has consisted of females. (Sec. 612.) It is cer- tainly no part of the purpose of counsel for the United States to defend " adventurers " guilty of these barbarous practices, whatever the nation to which they belong. It is rather a question of humanity than of nationality, and the United States would not hesitate to undertake and to assure the repression of practices which can not be described in over- harsh terms if their own citizens alone were engaged in the business. It is only to prevent *Hhe indiscriminate, ruthless, and wasteful slaughter " by persons who claim the protection of a foreign flag that these methods of arbitration are resorted to. But the waste of the seals lost, in addition to the destruction of the fetus or of the pup, as the case may be, is shown to some extent by the Report of the Commissioners for Great Britain. We refer esx^ecially to sections 613, 614, 615, 617, 618, 619, 620, 621. The discrepancy between the two classes of statements given by themselves is very marked. The agents of the United States, captains in the United States Navy, the superintendents, and others testify that 40 to 60 per cent of the seals are lost. It would seem, however, from the testimony in defense of pelagic slaughter that old hunters are much more successful than the young ones. Green hands, says the captain of the Eliza Edicards, might lose as much as 25 per cent of the seals shot, but experienced hunters would bag their game to the extent of 95 per cent; that is to say, they would lose but 5 per cent of the females shot, (cection 625.) The number of green hands on board the schooner Otto, on which Robert H. McManus, a journalist, was a passenger, sailing for his health, must have been very griiit in pro- portion to the whole crew. It seemed to him that the\ did not get f \'\ •Ill Zt SCO ABGtMKN* OP THE tJNITED STATES. ,1. o^er one seal to every hundred shot at. (Vol. II, p. 335, of the Appen dix to the Oase of the United States.) Wfc shall now lay before this High Tribunal additional testimony as to the nature and extent and effect of pelagic sealing. The extracts and refei'ences about to be given may seem monotonously cumulative, but it is important to show, otherwise than by mere aflBrmatiou, how far the existence of the herd is menaced and how soon extermination may be expected unless prompt and efficient measures of redress be adopted. The evidenoe of credible witnesses, dealing neither in generalities nor in speculation, leaves no doubt as to the appaUing extent of the massa- cW. It is impossible to assume that the witnesses produced for the United States deliberately perjured themselves as to numbers, dates, and distances. Even if any reason were given for throwing a suspi- cion upon their character, the reticence of many of the witnesses exam- ined by the British Commissioners as to the sex of the animals killed is significant. It is to the credit of these persons that while they did not hesitate to state that they had slain large numbers of seals in Ber- ing Sea without discrimination, they refrained from giving any precise data as to the sex of the animals that they captured. If, however, it is desired to know how far this ruthless and exter- minating process is carried, the desire for information may readily be gratified. The sealing schooner Favorite, McLean, master, according to Osly, a native sealer who went to the Bering Sea on her as a hunter, captured 4,700 seals, most all of which were cow seals giving milk. They were captured at a distance of about 100 miles from the Pribilof Islands. In 1888 the same hunter was on board the Challenger, Captain Wil- liams, master. They were less successflii and caught only about 2,000 seals, most of which were cows in milk. In 1889, he again went to sea on the schooner James O. Swan, but the seals were not so abundant; they were rapidly decreasing. (Ap- pendix to the Case of the United States, Vol II, pp. 390, 301.) Niels Bonde {ibid., p, 315), of Victoria, British Columbia, was a sea- nlan on board the schooner Kate. He went to the Bering Sea, arriving there in July, and left in the latter part of August. They had caught about 1,700 seals in that time between the Pribilof Islands and Un- alaska. These were caught from 10 to 100 or more miles off St George Island. The seals caught in Bering Sea were females that had given SUMMARY OF THE EVIDENCE. 301 birth tx) tbetr yonng. He often noticed milk flowing ont of their breasts. He had seen live pups cut out of their mothers and live around on the decks for a \yeek. Peter Brown {ibid., p. 377), a native, part owner of a schooner for about seven years and owner of the James G. Swan for about three years; hunted in Bering Sea in 1888; the catch was nearly all cows that bad given birth to their young and had milk in their teats. His people hunted with the spear and therefore did not lose many that they hit. Thomas Brown, No. 2 {ibid ., p. 40G), made a sesiling voyage to the North Pacific and Bering sea on the A! xander. They caught 250 seals before entering the sea, the h':rgest percentage of which were females, most of them having young pups in them. He saw some of the young pups taken out of them. They entered tlie sea about the 1st of May and caught between 600 and 700 seals, from 30 to 150 miles off the seal islands. Four out of five were females in milk. He saw the milk running on the deck when he skinned them. They used mostly shotguns, and got on the average 3 or 5 out of every 12 killed and wounded. Evidently these were what has been termed " green hands." Oha' les Challall, who has been lieretofore quoted, a sailor in 188S on the Vanderbilt, iu 1889 on the White, and in 1890 on the Hamilton, gives his experience, which may be found at pages 410 and 411. Tbey cap- tured a great many seals on the fishing banks just north of and close by the Aleutian Archipelago. Most of the seals they killed going up the coast were females heavy with pup. He thinks nine out of every ten were females. At least 7 out of 8 seals caught in the Bering Sea were m others with milk. Circus Jim {ibid., p. 380), a native Makah Indian, captured a great many cow seals that were giving milk. Most of the seals he caught in the sea were giving milk. His theory as to the decrease of the animal, which he states as an undoubted fiict, is tliat the white hunters had been hunt- ing them 80 much with guns. '' If so much shooting at seals is not stopped they will aoon be all gone." James Claplanhoo {ibid., p. 381), a native Makah Indian, evidently found the business profitable, for he vas the ownorof the schooner Lottie, of 28 tons burden. Formerly he U8<^d nothing but spears in hunting seals, but he had since that resorted occasionally to the use of a gun. He says that about one-half of all the seals that he had captured in the Sea or on the coast were full grown cows with pups in them. In 1887, about the first of June, ue went into Bering Sea in his own ■;■ 1 \L vm' 302 ARGUMENT OP THE UNITED STATES. !l I schooner, the Lottie, and hunted about sixty miles off the Islands, and secured about 700 seals himself, all of which were cows in milk. These cows had milk in their breasts but had no pups in them. He returned to Bering Sea in his own boat, the Lottie, in 1889, and also in 1891, pnd sealed all the way from 100 to 180 miles from the St. George and St. Paul Islands. The catch of those two years was about the same as those caught in 1887, that is, mostly females that had given birth to their young and were in milk. Louis Culler (i6id,,p.321). According to him the white hunters in 1888 must have been nearly all "green hands," for they did not secure more than two or three out of every 100 shot. He was aboard the Otto in 1891, on board of which were two newspaper correspondents, King- Hall, representing the New York Herald, and Mr. McManus, of Victoria. They entered the sea through the Uuamak Pass and captured therein about 40 seals, most all of which had milk in their breasts. After taking these seals they returned to Victoria, British Columbia, about the 25th of September. John Dalton was a sailor and made a sailing voyage to the North Pacific and Bering Sea in 1885 on the schooner Alexander, of which Captain McLean was master. They left Victoria in January and went south to Cape Flattery and Cape Blanco, sealing around there about two mo'.iths, when they went north, sealing all the way up to the Bering Sea. They had between 100 and 300 seals before entering the sea. Most all of them were females with pups in them. They entered the sea about June and caught about 900 seals in there, two-thirds of which were mother seals, with their breasts full of milk. He saw the milk flowing on the decks when they skinned them. Alfred Dardean {ibid., p. 322), a resident of Victoria, British Columbia, and during the two years preceding the making of his deposition, which was in April, 1892, he had been a seaman on the schooner Mollie Adams. They left Victoria, British Columbia, on the 27th of May, 1890, ar ' "ommenced sealing up the coast, toward Bering Sea. They entered Beiing Sea through the TJnamak Pass about July 7, and sealed around the eastern part of Bering Sea until late in the fall. They caught over 900 seals before entering the sea, and the whole catch dur- ing that year was 2,159 skins. Of the seals that were caught off the coast fully ninety out of every one hundred had young pups in them. The boats would bring the seals killed on board the vessel, and they would take the young pups out and skin thom. If the pup was a good Ci SUMMARY OF THE EVIDENCE. 303 one they would skin and keep it for tLemselves. He had eight such skins himself. Four out of five, if caught in May or June, would be alive when they cut them out of the mothers. They kept one of tliem nearly three weeks alive on deck by feeding it on condensed milk. One of the men finally killed it because it cried so pitifully. They got only three seals with pups in them in the Bering Sea. Most all of them were females that had given birth to their young on the island, and the milk would run out of the teats on the deck when they were skinned. They caught female seals in milk more than 100 miles off the Pribilof Islands. The same witness states that they lost a good many seals, but he does not know the proportion that was lost to the number killed. Some of the hunters woidd lose four out of every six killed. They tried to shoot them while asleep, but shot all that came in their way. If they killed them too dead a great many would sink before they could get them, and these were lost. Sometimes they could get some of them that had sunk by the gaff hook, but they could not get many that wuy. A good many were wounded and escaped only to die afterward. Frank Davis {ibid., p. 383), a native Indifin of the Makah tribe, was sealing in the Bering Sea in 1889. He says, agreeing in this with all the other witnesses, that nearly all of the full-grown cows along the coast have pups in them, but the seals that he caught in Bering Sea were most all cows in milk. Jeff Davis {ibid., p. 384), and also a native Makah Indian, says that most of the seals that were captiu^ed there that season — that is, in 1889 — were cows giving milk. Capt. Douglass {ibid., p. 420): His testimony is that a very large pro- portion of the seals killed along the coast and at sea, from Oregon to the Aleutian Islands, are female seals with pups; in his judgment not less than 95 per cent, as has been quoted heretofore. He also says that the proportion of female seals killed in Bering Sea is equally large. Peter Duffy {ibid., p. 41). By occupation a seaman on board the Sea Otter, Captain Williams, master. They left San Francisco and fished up the coast until they entered Bering Sea in July, and sealed about the sea until they were driven oft by the revenue cutter Gorwin. From there they went to the Copper Islands. The whole catch amounted to nine hundred skins, and most of them were killed with rifles. They only got one out of about eight that they shot at, and they were most all females giving milk or in pup. When they cut the ':.:i • !i Ml], ■m IS '\iii 304 iROUMENT OP THE UNITED STATES. hide off jon could see the milk running from the breasts of the seals. The second year they were more fortunate and got over 1,300 skins; some of them were cows with pups in them, and almost all of the rest were cows giving milk, and some of the latter were killed as far from the rookeries as Unimak Pass. William Fra8er(page 426), of San Francisco, had made three trips to the North Pacific and Bering Sea within the last six years. His busi- ness was that of a laborer; he acted as a boat-puller. They used shot- guns and killed about 300 seals in the North Pacific. Most of the females killed had unborn pups or were cows giving milk. The next trip that he made was on the Vanderbilt. They did not enter the Bering Sea on that trip either. They got about 350 seals, almost a" females. Finally he made a trip on the G. O. White, but does not know if he was on the American side or not. They killed about 600 seals on that trip, nearly all females. He noticed when tbey skinned them that they were females in milk, as the milk would run from their breasts on to the deck. John Fyfe {ibid., p. 429), of San Francisco, a sealer and boat-puller on the schooner Alexander, McLean, master. They entered Bering Sea about April and got 795 in there, the largest part of which were mother seals in milk. When tbey were skinning thorn the milk would run on the deck. Some were killed 50 to 100 miles off the seal Islands. When they shot the seals dead they would sink and they could not get them. Thomas Gibson {ibid., p. 431) had been engaged in sealing for ten years. He gives his experience in detail and thenumber of seals that he killed in each season. He says : I did not pay miich attention to the sex of seals we killed in the North Pacific, but know that a great many of them were cows that had pups in them, and we killed most of them while they were asleep on the water. I know that Cully 75 per cent of those we canght in the Bering Sea were cows in milk. We used rifles and shot guns and shot them when feeding or asleep on the water. An experienced hunter, like myself, will get two out of three tliat he kills, but an ordinary hunter would not get niore than one out of every three or four that he kills. Arthur Griffin {ibid., p. 325), a seafaring man who resides at Victoria, British Columbia, sailed from that place on February 11, 1889, as a boat-puTler on the sealing schooner Ariel, Bucknian, master. She carried six hunting boats and one stern boat and had a white crew who used shotguns or rifles in hunting seals. They began sealing off the northern coast of California and tbjlowed the sealing "^erd north- ward, capturing about 700 seals in the North Pacific Ocean, two-thirds SUMMARY OF THE EVIDENCE 305 of which were females with pup; the balance were young seals, both male and female. They entered Bering Sea on the 13th of July, through the Uniniak Pass and captured between 900 and 1,000 seals therein, most of which were females in milk. They returned to Victoria on the 31st of August, 1889. It will be observed here that Arthur GriflBn's experience and success would not lead him probably to object to the modus operandi suggested by the British Commissioners. His operatiims by which 900 or a 1,000 seals, mostly females in milk, were secured in the brief space of six weeks, could be carried on not only with equal propriety, but with the additional advantage of being lawful. His experience in 1889 was not exceptional. He went out again in 1890 in the E. B. Marvin^ McKiel, master. They again captured be- tween 900 and 1,000 seals on the coast, most of which were females with pups. They eutered the sea on July 12 through Unimak Pass and captured about 800 seals in those waters, about 90 per cent of which were females in milk. His experience was that a good hunter will often lose one-third of the seals he kills. A poor hunter will lose two-thirds of those he shoots. On an average hunters will lose two seals out of three of those they shoot. M. A. Healey {ibid., p. 27). Capt. Healey, an officer in the United States Revenue Marine service, on duty for nearly the whole of twenty- five years in the waters of the North Pacific, Bering, and Arctic seas. He speaks from experience and says: My own observation and the information obtained from seal-hunters convince nic that fully 90 jier cent of the seals found swimming in tne Bering Sea daring the breeding seas(m are females in search of food, and the slaughter results in the destruction of her young by starva- tion. I firmly believe tliat the fur-seal industry at the Pribilof Islands (!an be saved from destruction oidy by a total prohibition aguinst kill- ing seals, not only in the waters of Bering Sea, but also during their annual immigration northward in the Pacific Ocean. This coiu'lnsion is based upon the well-known fact that the mother seals are slaughtered by the thousanMh m M 'if m yl '1 m m . :.: : I i:-| :'.!' i 308 ARGUMENT OF THE UNITED STATES. i ! 1 i I the latter end of May. Up to that time they had caught 250 or 800 seals of which 80 per cent were females. After they entered the Ber- ing Sea they caught about 700 seals, most all of them being females in milk. He also shows that there is a very considerable waste of life from killing or wounding and losing animals. JohnOlsen, {ibid., p. 471) of Seattle, Wash., a ship-carpenter, entered the Bering Sea about the bth of June, 1891, ou board the Labrador, Capt. Whiteleigh, commander. They were ordered out of the sea on the 9th of June. In going up the coast to Unimak Pass they caught about 400 seals, mostly females with young, and put their skins on board the Danube, an English steamboat at Allatack Bay, and after they got into the Bering Sea caught about 220. After entering the sea they got one female with a very large pup, which he took out alive and which he kept for three or four days when it died as it would not eat anything. All the others had given birth to their young and their breasts were full of milk. He also states how large a loss is made by failure to recover the animals that are killed. Osly {ibid., p. 391), a native Makah Indian, went to the Bering Sea in 1886 on board the Favorite, McLean, master. They captured about 4,700 seals, almost all of which were cows giving milk. Four years before that he had gone to Bering Sea as a hunter in the sealing schooner Challenger, Williams, master. There were 3 white men in each boat and 2 Indians in a canoe. We caught about 3,000 seals, most of which were cows in milk. William Short {ibid., p. 348), of Victoria, British Columbia, is by oc- cupation a painter. On January 14, 1890, he sailed as a boat-puller from Victoria on the British sealing schooner Maggie Mac, Dodd, mas- ter. She carried six sealing boats that were manned by three white men each, who used breech-loading shotguns and rifles. On the 12th of July they entered the sea through the Unimak Pass. Before this they had captured 1,120 seals on the coast. They lowered their boats on the 13th and captured about 2,093 seals in those waters and then returned to Victoria on the 19th of September. In July, 1891, he sailed out of the port of Victoria as a hunter on the British sealing schooner Otto, O'Reily, master. Failing to procure the Indian crew of sealers that they had expected, they returned to Victoria, after proceeding up the coast, on the 1st of August. While cruising along the coast their principal catch was females M'ith i)ups. Fully 90 per cent of all seals secured by them while in the Bering Sea were cows with milk; that is to say, out of 2,093 all but about 300 were nursing mothers. SUMMARY OF THE EVIDENCE. 309 Profitable as the business appears to Lave beeu to Mr. Short, he is caudid enough to say that in his opinioii — It is a shame to kill the female seal before she has p^iven birth to her younfj. Pelagic sealing in the North Pacific Ocean before the middle of June is very destructive and wasteful and should be stop])ed. • • • Sealing in th*^ sea should be prohibited until such a time as the pup may have grown to the age at which it may be able to live without nurse from its mother. James Sloan {ibid., p. 477), of San Francisco, by occupation a sea- man, made three voyages to Bering Sea, in 1871, in 1884, and in 1889. A great many of the females that they killed had their breasts full of milk, which would run out on the deck when they skinned them. In 1889 they went to the Okhotsk Sea and sealed there about two months. They got about 500 seals, of which more than one-half wece females, and the most of them had pups in them. They entered Bering Sea about the 17th of May and caught about 900 seals. Most of them were mother seals. Mr. Sloan predicts an early extermination of the seals unless the destructive processes are stopped. As he says, the hunters kill them indiscriminately and all the hunters care about is to get a skin. See, also, the testimony of Fred Smith {ibid., p. 349), of Victoria, a seal hunter. Of Joshua Stickland {ibid., p. 349), also of Victoria, a seal hunter who declares that out of 111 seals killed by him in the last year he killed but three bulls. John A. Swain {ihid., p. 350), of Victoria, a seaman, gives his experi- ence in 1891. He was on board the steamer Thistle, Nicherson master. They caught about 100 seals. They were all females that had given birth to their young. In 1892 they caught 270, most of them pregnant females which were caught along the coast. Theodore T. Williams {ibid., p. 491), an intelligent gentleman, by pro- fession a journalist, employed as city editor on the San Francisco liX- aminer, makes a very interesting deposition. In pursuit of his pro- fession he had not only had occasion to make extended inquiries into the fur-sealing industry of the Aleutian Islands and the North Pacific, but had gone to the North and had made a complete and exhaustive examination of the open-sea sealing, its extent, probable injury, etc. The perusal of the whole of this very interesting document is recom- mended. As the result of his investigation in the Bering Sea and North Pacific he asserts the following facts: bill, 310 ARGUMENT OP THE UNITED STATES. First. That 95 per cent of all the seals killed in the Bering Sea are females. Second. That for every three sleeping seal3 killed or wounded in the water only one is recovered. Third. For every six traveling seals killed or wounded in the water only one is recovered. Fourth. That 95 per cent at least of all the fiemale seals killed are either in pup or have left their newly-born pup on the islands, while they have gone out into the sea in search of food. The result is the same in either case. If the mother is killed the pup on shore will linger for a few days, some say as long as two or three weeks, but will inevitably die before winter. All of the schooners prefer to hunt around the banks where the female seals are feeding, to attempt to intercept the male seal on their way to and from the hauling grounds. This overwhelming and practically uncontradicted evidence certainly justifies the statement of the British Commissioners as to the "remark- able agreement" u[K)n the subject. How the facts could be disputed without impeaching witnesses taken from every class of society where knowledge could be found, it is impossible for us to coi\jecture. OfQ- cers from the Navy of the TTnited States; British sea captains as well as American seamen, journalists, natives, all concur as to the fearful destruction which is going on. It is notpossible to read the testimony, even making far more allowance for exaggeration than the nature of the case will justify, without reaching the conclusion that pelagic sealing must be stopped or all hope of preserving the herd abandoned. Pallia- tion, compromise, and mitigating processes are out of the question. The outrage must be cut at the root and its continuance made impos- sible. Females that are pregnant eleven months of the year, and nurs- ing mothers three or four months, must be left undisturbed, and if, as all agree, it is impossible to discriminate in pelagic sealing between the mothers and the males, then the other alternative is inexorably before us, and that is absolute interdiction. (g) The principal fact that a decrease, alarming and continuous, has been noted, is by the proofs and admissions made evident. It required no proofs, as it is conceded by the Commissioners on both sides to exist, and it is for the purpose of remedying the evil that this Arbitration has been entered into. It is claimed on the part of the United States that the diminution which threatens extermination is wholly due to pelagic sealing, a practice which does not permit the hunter to spare the gravid or nursing females; while at the same time, and cooperating with this principal source of undue destruction, the methods used by the hunters frequently result in the death and simultaneous loss of the animal. It need hardly be said, that prima Jaciej to sucli a system SUMMARY OF TUE EVIDENCE. 311 must be attributable tbe undue destruction which it is desired to prevent. Those who undertake the defeuse of such methods aud of such a system can not complain if the burden of proof is phiced upon them of justifying a course which has received the condemnation of mankind. It is difficult to percjeive any good reason why the ordinary and usual rules that have always been followed as essen- tial to the preservation ofa species should be dispensed with in the case of the fur-seals. It matters little whether it is an absurdity or scien- tifically correct to designate them as essentially or naturally or wholly pelagic. Important controversies between enlightened nations will not turn upon nice questions of scientific nomenclature. The animal whoso existence is at stake is useful to man, and it is therefore the interest and policy, as it will be to the honor of both nations, to preserve it. The time has long since gone by when the selfishness of nations may have been the controlling factor in such debates. But were it otherwise, Great Britain will suffer as seriously as the United States from the ex- termination of a herd of seals which the United States alone can pre- serve, which the United States alone can foster, guard, and protect, be- cause it happens that the vital functions of procreation aud delivery are performed on its soil. The United States may and will discharge this duty, to its own people and to the world, provided its efforts are not baffled and its beneficent action neutralized by the Indiscriminate slaughter of which it complains. That the Government of the United States has power, both in law and in fact, within the limits of its own jurisdiction no one disputes, but the suggestion is made that the methods adopted on the islands which constitute the only land resort of the seals are imperfect in practice while i)erfect in theory. Certain objections are made to show that while care is taken to preserve the female from destruction, so many young males have been slaughtered that the necessary vitality is lacking in the service of the females. Thus it is claimed that the two sources combine to endanger the permanency of the seal family, admitted and undue destruction at sea and unwise or excessive killing on the islands. Conceding for the sake of argument, and only for the argument, that this is true, it must be apparent that the necessity of preventing pelagic sealing is only the more pressing, in the interest of the industry which it is desired to conserve. The methods of the United States may be faulty, but it should not be forgotten that the Government is especially interested in maintaining an industry !»:i-i i" .H-41 312 ARGUMENT OF THE UNITED STATES. which belongs to itself. The faults impntcd are, after all is Bald, faults of detail and execution, which do not in any manner affect the principle adopted. They are susceptible of remedy, and it is idle and absurd to suppose that a valuable commente, susceptible of expansion by Judicious methods, will bo wantonly suffered to go to ruin. Self- interest, if no higher motive, may bo trusted to improve the means now in use, in so far as they may require improvement; experience will constantly throw its light upon the best means of performing the duty, while the apprehension of loss will stimulate the efforts of those most nearly concerned iu the financial success of the business now carried on at the Islands. But it is not, in fact, admitted that any such objections exist. The number of males killed did turn out to be excessive and was therefore reduced. This, however, only became manifest after the ruthless de- struction at sea had begun to be felt on the liflands. That destruction is only limited by the capacity of the destroyers. They profess no scruples and they show no mercy. Their "legitimate business" requires courage and skill, it is said, but it is incompatible with the ordinary feelings of humanity. Present gain is the only object in view. The poachers' horizon is limited bj the season's catch. Is it not an insult to common sense to deny that He >>ursuit of pregnant females and the slaughter of nursing mothers o^i their feeding grounds are wholly, abso- lutely, brutally inconsistent v*xth any system that requires moderation, self-denial and humanity? Leaving out all other questions as irrelevant, is it not enough for the United States to say, "We can preserve for the benefit of the world the animal which your poachers are destroy- ing; you can only doit by a prohibition of methods which you would not for an instant tolerate in analogous cases within your jurisdiction. Of what avail are small criticisms upon our system of protection when we are so largely concerned in carrying them to the point of the high- est perfection?" When suggestions are asked as to any other way of repressing or circumscribing this destructive slaughter, the British Commissioners propose as a remedy that Bering Sea be closed when sealing is un- profitable, and opened during the season when the horrors and the profits of the business both reach their climax. The language of the Counter Case of the United States, commenting upon this extraordi- nary suggestion, is couched in singularly moderate terms; SUMMARY OF TIIK EVIDKNCE. 813 Tlio rocommojidafioti by tlioCoinmissimicrs of a sorios of rppnlntions sucli as those aliove <'onsi(k're(l, is clciiily indicative of the l)ias and l)aitisiiii .spirit wliich appear iu uearly every suctiou of their Keport (p. 128). This subject is treated at length in the Counter Case (p. 125) and also in another part of this argument {ante. pp. 190-214); it need not be dwelt upon here. Iu conclusion it is submitted, as the facts show that pelagic sealing by its very nature leads to and necessarily depends for success upon indiscriminate slaughter, that the females killed are, with rare ex- ceptions, either gravid or nursing mothers and form a large propor- tion of the pelagic catch; that the slaughter of a breeding female of necessity involves the destruction of the nursing pup at home as well as of the unborn fetus, thus destroying three animals at one blow; that the only practical and intelligent method of preserving the race is to stop pelagic sealing, leaving the United States to continue and to improve, if possible, those measures best cahsulated to secure an end which it is to the interest of both parties to reach. In other words, the experience of men has taught that the preservation of the breeding female was and is the only means of preserving and per- petuating the race. Until it has been shown that the animal does not share the conditions of other animals born and suckled on land, the usual means of preserving them must be adopted. Unless these propositions are conceded, the liope of preserving the fur seals of the Pribilof Islands must be abandoned. Present greed is not controlled by possibilities of remote loss. The South Sea seals and their fate have taught the world a lesson which the United States are seeking to improve in the common interest of mankind. They will succeed if this High Tribunal by its decision shall prevent practices repugnant to the growing humanity of the age. The foregoing statement of facts has been prepared in part with the aid of a collated edition of the testimony presented with the Case of the United States, and which is herewith submitted to the Tribunal of Arbitration as an Appendix to the printed argument of counsel. F. K. COUDEET. um ■'i,t ! '' W:^ '\r if;.' I, 'it .:..| ■ ■iiii ■M HI, :,ip s lii 1 n 3U ASGUMESiX OF TU£ UNITED STATES. SEVENTH. POINTS IN REPLY TO THE BRITISH COUNTER CASB. Since the preparation of the Argument on the part of the United States, on the facts as so far appearing, the British Counter Case has been delivered. It contains a large quantity oi" matter concerning the nature and habits of the fur-seals, the metliods and characteristics of pelagic sealing, and the methods of dealing with the seals at the breed- ing places, which matter, so far as it is relevant at all, is relevant to the question of the alleged property interest and rights of defense of the United States, and to the regulations which may be necessary in order to prevent the extermination of the animal. This matter is accompanied with a protest (page 3), that, so far as matter relevant only to the question of regulations is concerned, its introduction before the Arbitrators is at present improper, and that it has been incorporated into the Counter-Case without prejuaice to the contention on the part of Great Britain ; that the Arbitrators can not consider the question of regulations until they have adjudicated upon the five questions enumerated in Article vi of the treaty. The counsel for the United States conceive that there is no ground upon which such an interpretation of the treaty can be sunportcd. That interpretation assumes that there are to be two separate and distinct hearings and two separate and distinct submissions of proofs. There is absolutely nothing in the treaty to warrant such a view, and the distinct iH'ovision respecting the Cases and Counter Cases, their contents, the tinieswhen they are to be submitted, the preparation of the arguments, the times wlien tliey are to be submitted, when the hearing is to begin, and when the matter is finally to be decided, all point to the conclusion that there is to be but one hearing, one submission of evidence, one argument, and one dotermination. It is indeed contemplated by the treaty that in a certain contingency it may not be necessary for the Tribunal to consider the question of concurrent regulations. This, however, simply involves a condition exceedingly common in judicial controversies, that several questions POINTS IN REPLY TO THE BRITISH COUNTER CASE. 315 may be made the subject of trial at the same time, and yet tlie nature of the decision be such as to dispense with the necessity of determine ing all of them. Assuming that the interpretation of the treaty insisted tlpon by the counsel of the United States is the correct one, the procedure adopted o.. the part of the British Government is wholly irregular and unau- thorized, and the matter thus irregularly sought to be introduced before the Tribunal should be excluded from its view. Otherwise the Gov- ernment of the United States would be placed under a disadvantage to which it should certainly not be subjected. In the first pla 3e, all the testimony and proofs, which bear alone upon the question of regulations, would come before the Tribunal without any opportunity on ihe part of the United States for making an answer to it. No such possibility is contemplated by the treaty, nor should it be allowed. No proceeding is entitled to the name of a judicial one which allows one party to introduce proofs without giving to the other an op- portunity to meet and contradict them. There is another disadvantage scarcely less onerous: The govern- ment of Great Britain in thus waiting until the proofs of the United States had been offered secured to itself the very great and unjust ad- vantage of obtaining a knowledge of its adversary's Case before com- mitting itself to its o^.'n view. It was thus enabled co witliliold evi- dence which it would otherwise have introduced, and to give evidence which it would otherwise have withheld . Such advantages at once de. stroy that equality between contesting i)arties which is a prime requi- site of every judicial proceeding. But matter bearing upon the question of i)roperty was, even in the view of the Government of Great Britain, relevant in the original Case, and any evidence or proofs wliich the Government of Great Britain de- sii'^d to submit upon that point ought to Jiave been embraced in their original Case. Manifestly, everythin/r relating to the nature and habits of the seals is of this character. It is upon these that tbe question of property depends. All matter of this description, except, such as plainly tends to impeach and was designed to impeach tlie evidence offered by the United States, should have been exhibited in the original Case, and should not be allowed to be introduced under cover of the Counter Case. Surely it can not be the privilige of Her Majesty's Government to so introduce its proofs as to deprive the United States of all opportunity either to answer or impeach them. li' ft Iff { 'Ml ^ r ! 1 'i. 'fi 316 ARGUMENT OF THE imiTED STATES. r^- >>! 'i:\i *»■ And the same circnmstance which deprives the United States of its jnst right of answering by counteracting proofs the new matter con- tained in this 'Counter Case also dei)rives them of the ability to fnlly treat of suQh matter in argument. Entirely occupied as they are, and must necessarily be, in the final work of translating and carrying through the press the argument already prepaied by them upon the original Cases, they have no time at their disposal in the short period between the delivery of the Counter Case and the time appoint- d f t- the submission of the arguments within which to carefully revlev \ud comment upon this new matter. Even the evidence in respect of the claim for damages made by Great Britain is chiefly comprehended in the Counter Case, so that the United States Government has no opportunity to introduce counter proof, nor even to analyze in written argument the evidence so submitted. The United States Government therefore protests against the con- sideration by the Arbitrators of any evidence or proofs which in their judgment should, under the true interpretation of the treaty, have been embraced in the original Case of Her Majesty's Government. The only qualification of the unusual advantage which Her Majesty's Government would gain from the permission to lay before the Arbitra- tors allegations and proofs which the United States have had no op- portunity to an.w^er, comes from the circumstance that most of the new matter referred to is of so little materiality or of such small pro- bative force, that the privilege of answering is of less importance than it would otherwise be. There is a failure everywhere in this last doc- ument, as there was in the principal Case of Great Britain (including as part of it the separate report of the British Commissioners), either squarely to assert any proposition vital t-" the merits of the contro- versy, or to attempt directly to maintain it by evidence or argument. There are, aside from the matters relating to sovereignty and juris- diction, several material questions in this controversy, substancially stated in the Case of the United States. First. Do the Alaskan fur-seals, under ^he recessavy physicjil con- ditions of their life, habitually so return to the Pribiloj' ' ■'■ uds and so submit themselves there to the control of the proprietors of those places as to enable the latter to make them the subjects of an impor- tant economical husbandry in substantially the same way and with the same benefits as in the case of domestic animalsT Second. Has the Government of the United States, the occupant i iM POINTS IN REPLY TO THE BRITISH COUNTER CASE. 317 and proprietor of those islands, availed itself of this opportunity, and by wit, industry and self denial made these animals the subjects of such husbandry, and thereby furnished to commerce and the world the benefits of the product, at the same time preserving the stock? Third. Do not these facts, under the circumstances proved, give to the United States Government, upon the just, principles applicable to the case, and in accordance with the general usage of nations in simi- lar instances, such a right of property in the seal herd and the hus- bandry thus based upon it as entitles that Government to protect it from destruction, at the times and in the manner complained oft Fourth. , Even if it were possible to conceive that this right of prop- erty, unquestioned so long as the seal herd remains within the terri- torial waters of the United States, is suspended as to each and any individual seal as soon and so long as it can be found outside the terri- torial line, however temporarily, and with whatever intention of re- turning, are individuals of another nation then entitled to destroy such animals for the sake of private gain, if it is made clearly to appear that such destruction is fatal or even largely injurious to the important ttiaterial interest of the United States Government so established and " ..iMtained upon its territory, for the benefit of itself, its people, and 1 ' t'^.indt More especially if the manner of such destruction is in it- - % ■ s(f barbarous and inhuman that it is prohibited in all places where vili/ed municipal law prevails 1 Is such conduct a part of the just freedom of the sea? Fifth. Is any practicabl'- husbandry possible in pelagic sealing, or is not that pursuit essentially and necessarily destructive to that interest, and certain, if engaged in to any considerable extent, to result in the loss, commercially speaking, of the .animal to the world? Who will say that Her Majesty's Government, in its principal Oase, or in its Counter Case, takes a square attitude upon either of these ques- tionf?? Who wiM «ay that it squarely negatives either of the two first or affirms the last of these questions, as matters of fact, or meets with any satisfactory answer, either upon principle or authority, the prop- ositions of the other two? What, then, is the character of this Counter Case, so far as respects the natter referred to? It seems to consist in great part of desultory observations, suggestions, and conjectures, probable or improbable, upon immaterial points; or, where the points are material, the matter is vague and indefinite, and the proofs slight, often inconsistent^ and iM ■ ,': ■ < -;i !H;;ii M TF, 1 318 ABGUMENT OF THE UNITED STATES. everywhere nt satisfactory. Observations made in one place are qual- ified in another, contradicted in another, and perhaps reasserted in another. To follow such a line of discussion with minute criticism would be an endless task, and when it was concluded it would be found to be nearly useless. The best method of dealing with such a sort of contention w; '"* ^o briefly state thu points to which it seems to be directed, and t^ r such observations upon these and the matters relating to them a^ .^eem most pertinent. First. Considerable importance seems to be assigned to the point whether seals are more aquatic than terrestrial in their nature, and surprise is expressed that tliey should be viewed, in the case of the United States, as being very largely land animals. But whether they are principally aquatic ov terrestrial is of little im- portance. It is certain that they are amphibious, and that they live sometimes upon the land and sometimes in the sea. The only im- portant question is whether they have those qualities, which, under the principles upon which the law of property rests, make them prop- erty, or render it expedient that an industry established by the United States in respect to them should be protected by a prohibition of slaughter upon the high seas. Second. Much stress is also laid upon the question whether coition may be had in the water. Of what consequence is thist We know it is a fact that it is had principally, if not exclusively, on the land, to an extent which in its circumstances forms the most prominent distinctive and controlling feature in the habits and movements of the fur-seal. The births certainly take place upon the land, and it is there that the young are nourished and brought up. Third. A good deal in the way of conjecture is stated and sought to bfc supported, to the eflcct that the seals may have had, in times of which we know nothing, other breeding places, of which we know nothing; and may again bedriven to other haunts. It is notperceived that these conjectures are in any manner relevant. They are purely conjectures, and were they deteiniined one way or another, it would not matter. What we are dealing with is an animal which has had uni- form habits ever since anything has been known about it; and the only reasonable conjecture which we can make is, if it were of importance to make any, that it will continue to have, in the future, the same habits, as under the same circumstances it has had in the past. Fourth. In the report of the British Commissioners, submitted with POINTS IN REPLY TO THE BRITISH COUNTER CASE. 319 the original Case, it was in substance admitted that the Alaskan herd was entirely separate and distinct from the herd on the opposite side of the Pacific Ocean. A good deal of matter is set forth in the Counter Case tending to support the opposite notion, that the members of these different herds commingle. It is enough to say in answer to all this, that the utmost which is asserted is were conjecture, and. as such should be dismissed as wholly unworthy of consideration. Surely this Tribunal will find other grounds than conjecture upon which to base its decision. And besides, the ab- sence of any commingling between the herds worthy of consideration is fully proved by the evidence. It is suggested in the Counter Case that the distinctive features which the Alaskan herd exhibits are probably those only which are due to a long residence under peculiar geographical conditions. Let this be conceded. How otherwise could they be denied? Upon the speculative question whether these different herds of seal are of dif- ferent species or not, or whether they were once derived from a com- mon stock, we are at liberty to amuse ourselves with such conjectures as may please us. It is of no importance how the Alaskan Lerd ac- quires its distinctive physical peculiarities, if they have actually been acquired so that they can be distinguished from others, and of this the testimony of the furri.ers, to go no further, is conclusive. But what if it were proved even that the herds did commingle! It is not perceived that this would be of any material consequence. Would it be for this reason any the less a crime against the law of nature to destroy them? Would it be any the less important that the seals should be regarded generally as property or any the less important that such regulations should be adopted as would prevent their exter- mination? Fifth. It is again insisted, as it was in the report of the British Ct x- missioners, that it is not proved that the females go long distances from the breeding places into the sea to seek for food while they are nourishing their young. But in the face of the evidence that the females actually do go into the water universally, that they are destroyed there in large numbers, and that they have in numerous instances been found and killed by pelagic sealers at long distances from the shore with their breasts filled with milk, how can it be sug- gested, with any expectation of belief, that the fact is not proved? For what purpose do the females resort to the water? What is the W' m ,. ivM' 320 AROUMENT OF THE UNITED STATES. object of tlieir distant excursions into Bering sea, where they have been Lnowu to bef Is it not reasonable to suppose that nursing mothers require nourishment? And how else are the young sup- ported! But here, again, suppose it were true that these excursions were not made for the purpose of food. They are yet made, and the danger of their being slaughtered by pelagic sealers is as great as if the object of their excursions were food. Sixth. Much space is devoted in this Counter Case to the subject of the frequent finding of numerous dead pups; and here also conjecture is abundantly resorted to. It is suggested that they may have been killed by disease, or by the rush of other seals over them, or by the waves of the sea, or by their mothers having been killed by being driven to the hauling grounds and thus injured and prevented from finding their way back to their young. But to what purpose is it to suggest that a g^^eat variety of things may have happened, of no one of which any proof is given? Doubtless it is true that some of the young die from a variety of causes of which we know nothing, as is the case with all animals. The question is, whether the slaughter of their mothers by pelagic sealing is not a cause, and the principsil cause of this mortality. When we know that the mothers do habitually resort to the sea, where they are killed in great numbers, when we know that they have often been killed at long distances from the shore with their breasts distended with milk, when we know that suckling is the natu- ral and only mode of nourishment to the young, and when we know that a number of the pups dead uiion the islands are extremely emaci- ated, and exhibit all tho appearances of having died in consequence of the loss of nourishment, the conclusion seems plain enough that their mothers have been killed at sea and they starved in consequence and no amount of conjecture can displace it. Seventh. It is said by way of argument against the allegation of a property interest that the seals, although they return to the same gen- eral breeding place, do not always return to the same island or to the same place upon the same island. This may or may not be true; but of what importance is it, when it appears that all the islands ever have been, now are, and are likely to continue to be the propert;y of one pro- prietor, the United States Government! And if it were otherwise, if there were many diftereut proprietors of the diflfcrent islands and of dif- ferent places on the same islands, of what consequence would it bo POINTS IN REPLY TO THE BRITISH COUNTER CASE. 321 [en- tile tof ave pro- le, if dif- t bo upon the general questions of property interest or what regulations irere necessary in order to preserve the herdf All the points above enumerated, made by the British Counter Case, are, it is conceived, essentially immaterial. They might be decided the one way or the other without touching the merits of the real question of the controversy. In saying this, however, we by no means intend to intimate that anything is contained in this Counter Case, by way of evidence, which in any way modifies or weakens the proofs which the United States have in their principal Case adduced to support the posi- tions taken by them. There are, however, some points which the Counter Case deals with which are of greater importance; but in respect to these, although the points themselves are material, the new evidence which is brought for- ward or the new views which are suggested are not perceived to be material. Some brief observations should be bestowed upon them. First. Pelagic sealing is again defended, but how is it defended t Is it denied that it is in its nature destructive as involving the killing of females to a much greater extent than males f Is it denied that the the greater part of these females are either pregnant or nursing, and sometimes both T Is it denied that a great many victims are killed and wounded which are never recovered! Is it denied that many young perish on account of the death of the mothers f There is no denial upon either of these points. What then is asserted or suggested in the Counter- Case f Simply that the statements upon this subject are exag- gerated. It would enable counsel for the United States to better answer any position taken on the part of the Government of Great Britain upon these points if the counsel for the latter would commit themselves to some definite proposition or assertion, but this is carefully avoided by them. They say, indeed, that the statements upon this head are ex- aggerated ; but whose statements are exaggerated? And how much are they exaggerated! The evidence given in the Case of the United States in great abundance shows that from 76 to 90 per cent of the entire pelagic catch is composed of females. If it be this which it is insisted on the part of Great Britain is an exaggerated statement, then how much is it exaggerated? Is it exaggerated 5, or 10, or 20, or 40, or 50 per cent? What, according to tlie best information obtainable by the counsel for Great Britain, is the .^nost reasonable statement of the proportion of females in the pelagic cavch ? They give us no infor- 14749 21 \h\ t^^X- 322 ARGUMENT OF THE UNITED STATES. ill,- I'' 1 ! it il ination upon these points. They ofier no estimate; and if '.vo recur to the proofs contained in the deiwsitious which are given, \re are still worse oflF. These vary from 5 to 80 per cent. Most of them, those that place the amount at less than half, every one can see must be false. For what purposes are such proofs presented? Is it exiiected that they will be believed to be true? It will perhaps be suggested that the truth may be found by taking an average of these inconsistent statements. Such a course has been pursued on the part of the Gov- ernment of Great Britain upon the point of how many seals are killed or wounded that are never recovered; but the method of endeavoring to obtain the truth by taking an average of lies seems to be open to question. Upon this whole matter the counsel for the United States will content themselves by offering the following summary of considerations : I. The assertion in the Case of the United States fs, that the propor- tion of females in the pelagic catch is at least 75 per cent. The rea- sonableness of this is supported in multiform ways. (1) It is nowhere denied in the report of the Commissioners on the part of Great Britain, nor even in the British Counter Case. (2) Upon any fair construction of the answer of one party to the allegation of another, it must be taken as admitted. The admis- sion is reluctantly made in the British Commissioners' Eeport and in the British Counter Case also that a "considerable proportion" of the pelagic catch consists of females. What does a " considera- ble proportion " meant Five per cent., or 10 per cent., or 20, or 50, or 75, or 80? The language is sufficiently broad and indefinite to cover either of the proportions named, and, as the assertion made on the part of the United States is not denied, the admission in question must be taken to be an admission of the fact substantially as asserted on the i)art of the United States. (3) The proofs adduced by the United States from persons en- gaged in pelagic sealing or with definite knowledge of it, over- whelmingly su]>port the assertion. (4) The proofs contained in the British Counter Case also support it. They are the statements of the pelagic sealers themselves, a class of witnesses in the highest degree intf- ^ted and not very much to be depended upon. They must be taken most strongly against the parties making them. And excluding those that are manifestly false, we find enough remaining to fully support the con- POINTS IN REPLY TO THE BRITISH COUNTER CASE. 323 tention of the United States. Among these witnesses there are a large number who place the proportion of females in the catches made by them, respectively, higher than 60 per cent. (5) But the proof furnished by tlie furriers is absolutely decisive, and this makes the proportion fully equal to the assertion by the United States. (G) If we look at the probabilities of the case, no assertion in opposition to the contention of the United States could be enter- tained for a moment. When we consider that the female at sea is, as a general rule, more easily approached, and therefore more easily secured, than the male, and that the number of breeding females is, as compared with the breeding males probably twenty to one, how is it possible that the slaughter of the females should not embrace anywhere from three-fourths to four-fifths of the entire catch f If indeed, we could credit the assertion continually put forward in the report of the British Commissioners and in the Brit- ish Counter Case, that there has been for years on the Pribilof Islands an excessive slaughter of young males, and that thus the number of breeding males has been very much reduced, so as to make the harems three and four times as large as they formerly were, the excess of females over males would be vastly multiplied, and the wonder would almost be how any breeding male should ever be killed. II. Considerable attention is given to an attempt to controvert the position of the United States, that a large number of seals struck by pelagic sealers are lost without being recovered. Of course the United States have had no opportunity to controvert the proofs presented upon this point in the British Counter Case. They contain no evidence except that of pelagic sealers^ and this must be taken most strongly against them. Upon this point the reasonable and probable inferences from incontestible facts are of greater weight than the loose and suspicious statements of the witnesses referred to. We know that when a seal is killed he sinks at once, because his specific gravity is greater than that of the water, although he may sink more quickly in some in- stances than others. We also know that when a seal is wounded, but not killed, he has great capacity to escape the pursuer. We know that skill in shooting and skill in recovery must vary very much among dif- ferent men. Under these circumstances, it is not reasonable to believe that half the seals fatally wounded are secured. TM 'mm ^' m ''^mi mt 4.-.^.. J. r;-. 324 ABQUMENT OF THE UIOTED STATES. III. Farther attention is given to ^eged mismanagement of the seal herd npon the Pribilof Islands. Little or nothing new in the way of evidence is offered upon the subject, but the assertions contained in the British Commissioners' report are repeated and enlarged. The points on which particulars of this alleged mismanagement are stated are: (1) the excessive killing of young males; (2) injuries committed by what is called "overdriving"; (3) raids upon the islands. (1) Concerning the excessive slaughter of the young males, there is no trustworthy evidence than an annual draft of 100,000 was, before any injury effected by pelagic sealing, excessive. It is undoubtedly true that such a draft upon the islands, coupled with any considerable amount of cai)ture8 at sea, would be excessive, and consequently we find that after i)elagic sealing had reached considerable proportions it became increasingly difScult to make the annual draft of the 100,000 upon the islands, which difficulty increased to such an extent that in 1890 it was arrested by the action of the agent of the United States Government. If at that time, or prior to that time, the extent of pelagic seoillng had been known and its effects upon the herd ascertainable, action would have sooner taken place to restrict the killing upon the islands. In this suggestion the damages occasioned by pelagic sealing are insisted on as its defense. (2) In respect to over-driving, no proofs are submitted which furnishes any considerable support to the assertion. It is un- doubtedly true that from the very nature of the case there may be more or less seals included in the drives unfit, by reason of being females or otherwise, for slaughter. These are allowed to drop out to regain the herd. The business of driving may be, if negli- gently conducted, trying and injurous to the subjects of it, but it is not necessarily so in any considerable degree. There is no proof worthy of attention that it is so negligent. The interest of those engr^ed in it is largely the other way. And the evidence that it is well conducted is ample. (3) Upon the Islands it is to be said that undoubtedly there have been in the past, and may be in the future, attempts, some timeo successftil on the part of marauders, to take seals by night. But of what consequence is this to the argument f Does it show anything more than that there ought to be kept an adequate guardt And certainly we know that it is in the interest of the proprietors ( POINTS IN REPLY TO THE BRITISH COUNTER CAftE. 325 to keep one. What self-interest will not move men to do, they will not do from any other motive! But whence do these raids comet From the very sealing vessels engaged in pelagic sealing. That is one of the mischiefs of that pursuit. (4) Touching the allegations of mismanagement upon the islands, embracing the three forms of possible injury to the seals which have been mentioned, there is this to be said: they may possibly occur in consequence of carelessness or neglect; but every motive and every Interest stimulates the United States as well as their lessees, to make the evils as small as possible. And concerning the extent to which these evils exist, the con- clusion must be formed upon the statements of actual witnesses, and not upon lectures or articles in newspapers based by the writers we do not know upon what evidence or whether upon any evidence at all. (5) But what is the point supposed to be established or sup- ported by this matter concerning mismanagement upon the islands? What is the object for which it was introduced! What conclusion would it justify if the assertions were proved to their fullest extent! Do they show that pelagic sealing is any less mischievous! Do they show that in that form of sealing males are taken and not females! Do they show that in that form of sealing a great many are not wounded and crippled that are never recovered! Do they show that in administering a herd of such animals on the land females should be slaughtered and not males! Dr 'i < / show, or are they intended to show, that the United States has not adojtted methods grounded upon the right principles! Do they show or are they intended to show, that a different set of proprietors than the United States would attend to the business in a better and more economical manner and with better methods! If so, what sort of proprietors should they be! What scheme of administra- tion should be followed! How should the selections for slaughter be made! Answers to these questions would* be extremely perti- nent, but none seem to have been suggested. (6) The report of the British Commissioners more than Intimated, although quite inconsistently with admissions made by them, that the capture of seals upon the land was an error, and that the ideal mode of dealing with this animal was to confine the pursuit to the sea. The Oounter Oase on the part of Great Britain does not avow '< ! m tL lU m ■,ii I ii: '^1 ill' ' 'Vi ' t, I 1 -I! W 326 ▲BOUMENT OP THE UNITED STATES. m ?5i Ik this proposition. Is it the intention on the part of the Oovem- ment of Great Britain to support that view? If so, some intima- tion to that effect would have been extremely pertinent in this Counter Case. And when that view comes to be supported, if at all, it is to be hoped that those who advocate it will take into consideration and give satisfactory explanations upon the following points: (a) What nuin of science, familiar with the races of animals and the causes which tend to their destruction or their preservation, entertains a like view? What man acquainted with the business of practical husbandry and dealing for profit with a race of ani- mals polygamous in its nature, thinks it wise to slaughter es and females indiscriminately for the market, or rather, tc e their selections for slaughter consist in the proportion of 75 por cent of females. (6) Is it likely that any better provision for the preservation of the race of fur-seals can be suggested than that which assigns the rewards of preservation to those who alone have the ability and the disposition to exercise the best methods of preservation? Is the method which has preserved in undiminished numbers for one hundred years and upwards the herd of seals ri'esorting to the Gommander Islands, a mistake, and is the same method which has been pursued for nearly the same period on the P dbilof Islands, and with the same effect until the ravage made by pelagic sealing were committed, also a mistake? And whereii\ is there any essential difference between the methods pursued on ^he two groups of islands f And, finally, were it even admitted that the United States Gov- ernment mismanages its own business to the detrimv,iii; of its own interests, would that destroy its right of property in the business? Or deprive it of the right of self-defense? Or justify a slaughter by the poachers which would otherwise be unjustifiable? Or even render it probable that such mismanagement would not be corrected by experience? It is worthy of remark, in conclusion, upon the subject of regulations, so largely dealt with in the British Counter Case — 1. That while it is now professed on the part of Great Britain that Her Majesty's Government is willing that just regulations for the preserva- tion of the fur-seal should be adopted, it is solely owing to the refusal oftha theob bitrati Bubjec tions a equate to pel a thinks out of i comi>le 2. In brough; insisted regulati Those 1 pelagic destrud to take 1 that pelj has prod United while mj by the ish that! which isl which is I United those wl with sue POINTS IN REPLY TO TUE BUITISH COUNTER CASE. 327 of tliat governiueut to consent to any such regulations, on account of the objections of Canada, that this controversy lias arisen and tbis ar- bitration lias been rendered necessary. The attitude of Canada on this subject plainly shows that it quite well understands that any regula- tions adopted for the preservation of the seal which would be at all ad- equate for that purpose must substantially, if not entirely, put an end to pelagic sealing. The object of the adventurers, which that Province thinks it right to protect, is simply to maivc what profit is to be derived out of the destruction of the fur-seals in the few years required for its completion. 2. In the British Counter Case, every objection possible to be brought forward to the making or enforcing of any regulations, is insisted on. The real position assumed is that of opposition to any regulations that would be of sufficient value to be worth adopting. Those proposed by the British Commissioners are for the benefit of pelagic sealing and an enhancement of its profits, and its consequent destruction by restricting the unquestioned right of the United States to take the seals on its own territory. In answer to the proved cliarge that pelagic sealing conduces to the inevitable extermination which it has produced everywhere else, and that the methods employed by the United States Government tend to the preservation of the animal while making its product available to the world, it is gravely proi)osed by the British Commissioners to adopt regulations which would dimin- ish that use which is consistent with th3 protection of the seal, and which is not called in question by the treaty, so as to increase the use which is destructive; and to add to the losses already suffered by the United States in its territorial interest, by increasing the profits of those who are engaged in destroying it. It is difficult to deal seriously with such proposals. e. j. puelvs. James C. Carter. H. W. Blodgett. F. U. COUDERT. if: i'/m^} > n^i"' 1 ^ i :tt /■^S I' m ■li* hi;. Hi:'