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 OPINIONS 
 
 or 
 
 SENATOR MORGAN 
 
 AT VHV 
 
 CONFEBENCE IN iPARIS 
 
 OOr THB 
 " TEBATY.OF ^KB^S^S^^tS^BtS OF AMERICA. AND 
 
 BARON DE C04«£!I:..,^w,««|, 
 THER.GHTHONORABUl.0RDH.NHEN. 
 
 THE HONORABLE S.R^0HNjrH0MP80N. 
 
 MR. JUSTICE HARLAN. 
 
 SENATOR MORGAN. 
 
 MARQU.S EM.Ll^mCONTJI VEIJOSTA^ 
 
 And HIS EXCELLENCY GREQERS GRAM. 
 
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 18»8. 
 
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THE TBIBUNAL HAVINO TTITOER CONSIDERATION THE MOTION OF 
 ME. JU8TI0E HABLAN, SET FOBTH IN THIS PAPER, SENATOR 
 MORGAN SUBMITTED THE FOLLOWING STATEMENTS AND REMARKS. 
 
 ' From the time when the controversy, which is the subject of this arbi- 
 tration, assumed the form of treaty engagements between the United 
 States and Great Britain, it c^ame a matter that invoked the sovereign 
 powrers of both Governments, and the rights of tlie United States and 
 of the subjects of Great Britain were merged in those of each sovereign, 
 as they are fixed by that treaty. 
 
 Each Government, in its own way, and according to its own will, 
 without legal responsibility to its citizens or subjects, nndertook to 
 control the entire subject in its capacity as a sovereign. Tliese powers 
 were exerted in their broadest form in the modus vivendi of 1891, 
 which was fully executed, and in that of 1892, which is made a part of 
 the Treaty of February 29, 1892. In the creation of this Tribunal of 
 Arbitration, and in the definition and limitation of its powers, this 
 arrangement was continued in force. It results from this attitude of 
 the two Governments toward the fur-seals referred to in the treaty 
 that any dealing with them on the high seas by any person lawftilly 
 bearing the flag of either Government is an act for which that Govern- 
 ment must be responsible to the other Government if any question 
 of responsibility arises. 
 
 It was quite as competent for the two Governments to prohibit the 
 taking of fur-seals as far to the south as the equator as it was to pro- 
 hibit it in Bering Sea, so far as their citizens or subjects are concerned; 
 and it was as competent for them to make the prohibition perpetual 
 as it was to confine it to two or more fishing seasons. The two Gov- 
 ernments forebore to prohibit pelagic sealing in the North Pacific 
 Ocean pending this arbitration, in the evident hope and belief that the 
 award in this ease would be made in time to prevent any serionsly 
 mischievous efiiBcts of iiiat pursuit, by a decision that would settle the 
 
 8 
 
qaefltion whether the right and doty ot protecting seal life wonld rest 
 exclusively with the United States, or would require to ha accom- 
 plished tlirou^h the concurrent action of both Governments. 
 
 No power was conferred on this tribunal to protect tbc sea) herd, 
 the preservation of which is the great lea«ling purpose of the arbitra- 
 tion, while tlie proceedings are in progress. The result is that unre- 
 strained pelagic fur-scaling is now being carried on in the North 
 Pacific Ocean, and if the experiences of the yearH 1801 and 1802 are 
 repeated in 1803, the destruction of the siiecies is now progressing 
 with fatal rapidity. 
 
 In view of these facts, it is of vital importance thnt the humane and 
 wise pur[H)se of both Qovernmonts to preserve and prote<;t these fur- 
 seals siiould not be defeated by any objection to the jurisdiction of this 
 tribunal that is based on techni<;u] grounds, and is held back by the 
 objector to meet the views of counsel, or others, upon a question of the 
 order of our proceedings. Especially is this true when one of the 
 Governments is solemnly denying to this tribunal tiie right to consider 
 a vital feature of the subject submitted to the tribunal, which the 
 other government, with equal force and firmness, assert^s to be clearly 
 within their competency. Under such conditions no one can foretell 
 with certainty whether the award that this tribunal shall make will 
 result in protecting and preserving seal life, or will only invite, here- 
 after, a wider and more determined controversy between the two Gov- 
 ernments. 
 
 For my part I regard the present situation as being dangerous and 
 deplorable, and I most earnestly desire tl/at this tribunal shall, in the 
 outset, determine its responsibilities and meet them in whatever way 
 it may think its duties Require. 
 
 To relieve this embarrassing situation Mr. Justice Harlan has offered 
 the following motion : 
 
 Mr. Justice llarlan moved tliat the tribunal, before entering upon the 
 matters submitted by the treaty, determine its competency so far as it 
 may be involved in the following questions: 
 
 1. Is it competent, under •tlic treaty, for this tribunal to prescribe 
 regulations applicable to such parts of tlie Nortli Pacific Ocean, out- 
 side the jurisdictional limits of the two Governments, as are traversed 
 by the seals frequenting the Pribilof Islands, it', upon the facts, regu- 
 lations of tliat character ai-e necessary " for the proper protection and 
 preservation of the fur-seal in, or habitually resorting to, Behring 
 
 2. Is it competent, under the treaty, for the tribunal to prescribe 
 regulations for a '' closed season " covering such waters of both Behring 
 Sea aud the North Pacific Ocean, outside the 'jurisdietional limits of 
 
•» 
 
 tho two countricH, aa aro liabitiuilly travermxl by these ftir-Mal, and 
 ombrauMKg tlie inoiithH diiriiig which l'iir-8oal may be taken in the oi>eu 
 seftH, and during wliieli ''chmed Hoasou'' nil Itiinting of Heals in Huch 
 watera sliall bo forbidden, provided tlie factH Hhow that regulationt) of 
 that charact<ir are neooMHarv " for tliu pro|)or protection and preserva- 
 tion of tlie fnr-8eal in, or habitually rem>rting to, Uehring Hea." 
 
 The motion of Mr. Justice Harlan that I have hist read was sub- 
 mitted to the Tribunal of Arbitration on Saturday, July 16, at the first 
 meeting of the Arbitrators for consultation, after the close of the oral 
 arguments of counsel. 
 
 This motion relates to two disputed questions as to the powers of 
 the tribunal, which were raised and formally presented by the Uovern- 
 ment of (Ireat Britain, in its counter case, on February 3, 1803, as 
 follows (page 102) : 
 
 The i)osition here taken on the part of Oreat Britain is that already 
 taken in the original case. It is tiiere stated: 
 
 "Finally, that while Great liritiiin has from the tirst strenuously and 
 consisttmtly opiioscd all the foregoinu exceptional pretensions and 
 claims, she has throughout been favorably disposed to the adoption of 
 general measures of control of the fur-seal fishery should these be 
 found to be iiecesstiry or desirable with a view to the protection of the 
 fVir-seals, provided tliat such nicasures be equitable and framed on 
 just grounds of common interest, and that the adhesion of other poicern 
 be secured as a guaranty of their <continued and impartial execution." 
 
 For the correspondence on this iM)int the Arbitrators are respect- 
 fully referred to the appendix to the United States Oase. 
 
 A claim is made in the conchuling words of the United States Oase 
 that such regulations be ''prescribed by this high tribunal as will 
 effectually prohibit and prevent the capture anywhere upon the high 
 seas of any seals belonging to the said herd." 
 
 lier Majesty's Government respectfully protests that no power to 
 impose on the Rontra<;ting parties a total )>rohibition of pelagic sealing 
 is «!onferred on the tribunal by the arbitration treaty, whether the 
 assent of other mitions be or bo not nmde a condition of such prohi- 
 bition. 
 
 Article vii empowers the Arbitrators to <' determine what concur- 
 rent regulations outside the jurisdictional limits of the res|)ective gov- 
 ernments are necessary, and over what waters such regulations should 
 extend." 
 
 The iH)wer thus c^inferrcd relates to the only area in dispute, viz, 
 the waiters of Behring Sea esistward of the line of demarcation spec- 
 ified in the Treaty of Cession of 1807. and excludes the supitosition 
 that prohibition could have been intended. 
 
 I have copied the full statement of the British Government as to its 
 position on this subject, both in the Case and Oonuter Case, that we 
 may have the whole subject before us in the connected form in which 
 it is thus presented in the British Counter Case. 
 
 It will be seen that Great Britain in stating its objections and pro* 
 
fwmrm 
 
 6 
 
 test against the existence of these powers under tlie treaty of Febmary 
 20, 1892, and their exercise by the Tribunal of Arbitration, makes no 
 reference to anything except tlie text of tl:e treaty. No ambiguity in 
 any part of tlie treaty Is suggested and, consequently. Great Britain 
 had no occasion to go outside of the text of the treaty in order to pre- 
 sent distinctly the grounds of objection to the power of this tribunal 
 to make such regulations as are stated in the foregoing extracts from 
 the British counter case. This tribunal nuist for that reason, and for 
 every reason that could exist in resi»ect to Its warrant of authority to 
 take any valid action in this proceeding, kv)k to the text of the treaty 
 alone for its lowers. 
 
 There Is, then, no occasion for dehiy iu responding to the objection 
 and i)rotej4t of Great Britlan as above 8<,ated, for It is not iJOssiWc that 
 any further facts can be presented that would throw any light upon 
 the subject. 
 
 This challenge of the lowers and authority of the Tribunal of Arbi- 
 tration, and this protest against their action In determining any regu 
 lations to restrain, or prohibit, pelagic fur sealing outside the waters of 
 Bering Sea, was not presented as a diplomatic question to the Gov- 
 ernment of the United States, but is now for the first time presented 
 as a protest to the tribunal, to warn it against the usurpation of unwar- 
 ranted powers, and a statement that the powers montioned in the 
 protest are not conferred upon the tribunal. 
 
 Under no circumstances Is it to be assumed that these objections to 
 the lowers of the tribunal are lightly suggested to excite inquiry or to 
 awaken the attention of the tribunal, coming iis they do from u ??iost 
 enlightened and powerful Government, or that tueir eflre<^t will not be 
 felt in subsequent inquiries by Great iirltain into the question whether 
 the tribunal has acted ultra vires, if its award should injuriously affect 
 the interests of the subjects of Great Britain. Moreover, these objec- 
 tions and protests were repeated in the most earnest way by the 
 attorney -general of Great Britain, and by each of tlie able counsel who 
 assisted him, in the written and oral arguments ma Je before the tribunal. 
 It is not necessary to call attention. In detail, to these arguments, 
 for the record of them is preserved, and their ability and learning is so 
 conspicuous that their influence can not be ignored. 
 
 These objections to the powers of the Tribunal, as to the regulation of 
 pelagic sealing, were first taken in the British Counter Case. 
 
 In the original Case, on page 160, in paragraph 19 of the "Becapitu- 
 
lation of Argument," (he following is (he position (aken by (he Bri(ish 
 Goverument: 
 
 19. — No regulations aft'ectiD^ British subjects can be established foi- 
 the protection and preservation of ftir-seals in the nonterritorial watera 
 of Bering 8ea without the concurrence of Great Britain. 
 
 That statement is quite in line with the {tower of this T..i> ^al «o 
 declare either that it accorded with tlie legal rights of Britisli si.i jects, 
 or that it did not. That watt not an aHsault on the pnwei<» of the 
 Tribunal, but a strong appeal to its judgment on an u ' j;ed rigiit of 
 British sUbject«t. 
 
 The other statement on this subject, found in the Britif . <;a8e, \ 
 
 have aticady quoted, but will repeat. It is taken from <»n o -.tline of 
 
 argument on page 0, and is as follows: 
 
 Finally, that while Great Britain lias from the first strenuously and 
 consistently opposed ail the foregoing exceptional pretensions and 
 claims, she lias throughout been favorably disposed to the adoption of 
 general measures of control of the fur-sotil fishery, should these be 
 fbund to be necessary or denirable with a view to the protection of the 
 fur-seals, provided that such measures be equitable and framed on jut»t 
 grounds of common interest, and that the adhesion of other powers be 
 secured as a guarantee of their continued and impartial execution. 
 
 The objections raised in the British counter case (above cited) to the 
 jurisdiction of the Tribunal of Arbitration are far more urgent in their 
 demand for di])lomatic settlement than the question, that was settled 
 in that way, relating to the matter of the determination of Great 
 Britain to abide by and perform the award of the tribunal. 
 
 If, however, the Tribunal of Arbitration shall determine to proceed to 
 a final award without referring this vital question, as to their powers, 
 to the two Governments for their further consideration they must incur 
 the risk of having their award repudiated by the one Government or 
 the other. 
 
 The case of the United States is based in a large part, if not most 
 largely, uiwn the fact that the Tribunal of Arbitration b.a« the iwwers 
 that are indicated in the two propositions stated in the motion of Mr. 
 Justice Harlan. Much more than half of the testimony offered and 
 cited by the counsel for the respective Governments was adduced in 
 elucidation of the subject of the regulations that are proper for the 
 protection and preservation of ftir-seals in the North Pacific Ocean. 
 It is, taken together, an immense mass of facts and expert opinions. 
 
 The argument of counsels on the part of the United States were 
 addressed at great length and with untiring industry and the highest 
 
rmmmm. 
 
 ir5«£^ 
 
 8 
 
 ability to point ont the powers of this tribunal to regulate pelagic fhr- 
 sealing in the Korth I'aciflu Ocean and in Bering Sea. No motion 
 was made or intimated on the hearing that this tribunal should refuse to 
 admit such evidence on the ground that it had no jurisdiction to make 
 regulations to protect and preserve the fur-seals in the North Pacific 
 Ocean. 
 
 After all this, is it a reasonable expectation that the United States 
 will accept an award that ignores the greater part of its caset Can 
 we assume that the Uuited States has consented to a treaty, and made 
 this earnest effort to present its rights in accordance with it, and 
 will be content that this tribunal shall find that it has no power even 
 to consider those rights? 
 
 Moreover, we are called upon to decide that the powers of the tri- 
 bunal to regulate pelagic sealing are confined to the area of Bering 
 Sea; and to base that finding on the alleged fact that this is "the only 
 arcA in dispute." To und this alleged fact we are invited to quit the 
 text of the Treaty and to go into the diplomatic correspondence that 
 led to its adoption for our authority so to construe that instrument. 
 That process of construction might be ado'>te4] by this tribunal as a 
 means of clearing up an ambiguous expression in the Treaty, under 
 which a right is claimed in favor of either party, but no such proceed- 
 ing can be resorted to in order to limit or enlarge dtar powers as a 
 Tribunal of Arbitration. That would be to make a treaty by con- 
 struction, and then to proceed to'administer rights under it. 
 
 Much less can tliis tribunal create its powers by merely declaring 
 them. Our powers are to be found in the clear meaning of the text of 
 the treaty, or they do not exist. If we find them in the ireaty we can 
 not refuse to exercise them. 
 
 I will not now present an argument in sui)port of the e.\i8ten<'e of 
 the powers stated in tlie motion of Mr. Justice Harlan further than to 
 make some quotations from the text of the treaty, premising that I 
 understand it to be fully admitted on all hands that a great and lead- 
 ing purpose of both governments in making this treaty is to protect 
 and preserve the fur-seals in, or that habitually resort to, Bering Sea. 
 
 The fur-seals to which this treaty relates comprise a family or herd 
 ofani-^ials that are in Bering Sea, or habitually resort to those waters 
 and the islands in that sea. As tlie protection and preservation of 
 these animals is the real result sought to be accomplished by the 
 treaty, the only accurate method of defining the scope of the powers 
 
^''SKs^^ni'' 
 
 i 
 
 of this tribunal for their protection, as to its application, was to 
 describe tbe beru ; but the restrictionu upon the limits of the jurisdiction 
 are defined by the territorial boundaries of tlie tvto countries that own 
 all the shores and islands that are washed by the waters in which these 
 animals are found that resort to Bering Sea. 
 
 In the light of these facts, disclosed on the face of the treaty, the 
 followmg quotations from the treaty make it clear that tliis tribunal 
 possesses the powers stated in the motion of Mr. Justice Harlan : 
 
 AUTICLE I. 
 
 The questions which have arisen between the Goveniniciit of Her 
 Britannic Msyesty and the Government of the United States concern- 
 ing the jurisdictional rights of the Unite<l States in the waters of Ber- 
 ing Sea, and concerning also the preservation of the fvr-seal in or habit- 
 ually resorting to the said sea, and the rights of the citizens and stihjects of 
 either country as regards the taking of fur-seal in or habitually resorting 
 to the said waters, shall be submitted to a tribunal of arbitration, to 
 be composed of seven arbitrators. 
 
 Article III. 
 
 The printed case of ca^sh of tlie two parties, accompanied by the doc- 
 timents, the ofticiai correspondence, and the evidence on wliicii each 
 'relies, shall be delivered in duplicate to ea«h of the arbitrators and to 
 tlie agent of the other party as soon as may be after the appointment 
 of the members of the tribunal, but within a period not exceeding four 
 months from the date of the exchange of the ratifications of this treaty. 
 
 Aeticle IV. 
 
 Within three mouths after the delivery on both sides of the printed 
 case either party nuiy, in like manner, deliver- in duplicate to each of 
 the said arbitratorr^ and to the agent of the other party a counter cai4e 
 and additional d« <-nmeuts, correspondence, and evidence, in reply to 
 the case, documenti-i, correspondence, and evidence so presented by the 
 other party. 
 
 ariiole vr. 
 
 In deciding the matters submitted to the arbitrators it is agreed that 
 the following five points sliall bo submitted to them, in order that their 
 award shall embrace a distinct decision upon each of said five points, 
 to wit: 
 
 1. What exclusive jnrisdiction in the sea now known as the Behring 
 Sea, and what exclusive rights in the seal fisheries therein, did Bussia 
 assert and exercise prior and up to the time of the cession of Alaska 
 
 to the United States ? 
 
 • . * * « • • 
 
 5. Has the United States any right, and, if so, what right, of j>ro- 
 teetion or property in the fur-seals frequerfting the islands of the U:tited 
 
10 
 
 Statet in Bekring Sea when such teais are found ouUide the ordinary 
 3- mile limit f 
 
 Abtiole VII. 
 
 If the dotenniiiiitioii of the foregoing questions as to tbe oxcIuri.-i» 
 jurisdiction of the United States sliall leave the subject in such positii'>n 
 that the concurrence of Great Britain is necessary to tbe establishment 
 of liegulations for the ju-oper protection and preservation of the fur- 
 seal in, or habitually resorting U), the liehriug Sea, the Arbitrators 
 shall then determine what concurrent Kegulations outsMle the jurisdic- 
 tional limits of the respective Governments are necessary, and over 
 what waters such Kegulations should extend, and to aia them in that 
 determination, the reiiort of a Joint Commission, to be appointed by 
 the res|»ective Governments, shall be laid before them, witli such other 
 evidence as either Government may submit. 
 
 The High Contracting Parties furthermore agree to cooperate in 
 securing the adhesion of other Powers to such Regulations. 
 
 AVTIOLE IX. 
 
 • •••••• 
 
 Each Government shall appoint two Commissioners to investigate, 
 conjointly with the Commissioners of the otJ t Government, all the 
 facia having relation to seal life iu Behring 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 Governmenton any points on 
 which they may be unable to agree. 
 
 These reports shall not be made public until they shall be submitted* 
 to the Arbitrators, or it shall appear that the contingency of their being 
 used by the Arbitrators can not arise. 
 
 Article XIV. 
 
 The High Contracting Parties C!;;;age to consider the result of the 
 proceedings of the Tribunal of Arbitration as a full and final settle- 
 ment of all the questions referred to the Arbitrators. 
 
 MODUS VIVENDI OF 1893. 
 
 Artiolk I. 
 
 Her Majesty's (tovernment will prohibit, during the pendency of the 
 arbitration, seal killing in that part of Behring Sea lying eastward of 
 the line of demarcation described in Article 1, of the Treaty of 1867 
 between the United States and Kussia, and will promptly use its best 
 efforts to ensure the observance of this prohibition by British subjects 
 and vessels. 
 
 Article II. 
 
 The United States Government will prohibit seal killing for the sax a 
 period in the same part of Behriiig's Sea and on the shores and islands 
 thereof the property of the United States (in excess of seven thousand 
 five hundred to be taken on the islands for the subsistence of the 
 natives), and will promptly use its best eAbrts to ensure the observance 
 of this prohibition by United States citizens and vessels. 
 
 lik 
 
 »» « 
 
 ^ 
 
+ 
 
 tb^ 
 
 •» 41 
 
 W^ 
 
 <5P 
 
 ,-. i 
 
 11 
 
 Akxiole III. 
 
 Every vessel or person offending against this i>rohibition in the said 
 waters of Behring Sea outside of tbe ordinary territorial limits of the 
 United States may be So'ized and detained by the naval or other duly 
 commissioued officers of either of the High Contracting Parties, but 
 they shall be handed over, as soon as practicable, to the authorities of 
 the nat;lon to which they respectively belong, who alone shall have 
 jurisdiction to try the offence and impose the penalties for the same. 
 The witnesses and proof necessary to establish the offence shall al8t» 
 be sent with them. 
 
 Article V. 
 
 If the result of the arbitration be to affirm' the right of British seal- 
 ers to take seals in Behring Sea within the bounds claimed by the 
 United States under its purchase from Eussia, then compensation 
 shall be made by the United States to Great Britain (for the use of 
 her subjet'ts) for abstaining from the exercise of that right during pen- 
 dency of the arbitration, upon the basis of sucth a regulated and limited 
 catch or catches as in the opinion of the arbitration might have been 
 taken witliout an undue diminution of the seal herds; and, on the otlier 
 liaad, if the result of the arbitration shall be to deny the right of Brit- 
 ish senlers to take seals within the said watern, then compensaticm 
 shall be made by (h-eat Britain to the United States (for itself, its cit- 
 izens, and lessees) for this agreement to limit the island catch to seven 
 thousand five hundred a season, upon the basis of the difference 
 between this number and such larger catch as in the opinion of the 
 , Arbitrators might have been taken without an undue dimicution of the 
 seal herds. 
 
 There are no italics in the text I have just quoted. The regulations 
 proposed by the United States for adoption by the Tribunal of Arbi- 
 tration are in keeping .vith the suggestions contained in the motion 
 presented by Mr. Justice Harlan ; but, while the British Government 
 denies to (he tribunal t'..e powers therein stated, the regulations offered 
 by that Government for our adoption would necessarily depend on the 
 assertion of the same powers. 
 
 They are as follows, the regulation nuujbered 8 having been pro- 
 seitted to the tribunal and then withdrawn : 
 
 BKGULATIONS. 
 
 1. All vessels engaging in pelagi(! sealing shall be required to obtain 
 licenses at one or other of the following juirts: 
 
 Victoria, in the province of British Columbia. 
 
 Vancouver, in tlie jn-ovince of British Columbia. 
 
 Port Townsend, in Washington Territory, in the United States. 
 
 San Francisco, in the State of California, in the United States. 
 
 2. Such licenses shall only be granted to sailing vessels. 
 
 3. A zone of '" miles around the Pribilof Islands shall be estab- 
 lished, withiu wli.jh no seal hunting shall be permitted at any time. 
 
 4. A close season from the 15tli of September to the Ist of July shall 
 
 
 I 
 
12 
 
 be established, during which no pelagic sealing shall be permitted in 
 Behring 8ea. 
 6. No rifles or nets shall be used in pelagic scaling. 
 
 6. All sealing vessels shall be required to carry a distinguishing flag. 
 
 7. The masters in charge of sealing vessels shall keep accurate logs 
 as to the times and places of sealing, the number and sex of the seals 
 captured, and shall enter an abstrsict thereof in their oflicial logs. 
 
 8. Licenses shall be subject to forfeiture for breach of above regula- 
 tions. 
 
 Whence comes tiie power of this tribunal, asserted in this i>rogramnie, 
 to bind Great Britain and the United States to enact laws requiring 
 all vessels engaged in pelagic sealing to obtain licenses at one or the 
 other o( the following ports, viz: Victoria, Vancouver, Port Townsend, 
 and San Francisco! All of these are seaports on the Pacific Ocean, 
 and San Francisco is below the waters in which fur-seals lire found or 
 hunted. 
 
 To make this regulation the tribunal must gu 1J,000 miles south of 
 Behring Sea, with its authority, and enter the seajwrts of both Govern- 
 ments. 
 
 Our authority, thus conceded, to make regulations to protect and 
 preserve the fur-seals in or habitually resorting to Bering Sea, must 
 not only enter within the ordinary 3-mile limit of each of t dse 
 sovereign powers, under this programme, but, while there, it must 
 destroy the pelagic hunting rights of all owners of steam vessels and all 
 the persons who hnnt seals in canoes, by denying to them a license for 
 pelagic sealing. \Je must, while in these ports, disarm pelagic seal 
 hunters of rifles and nets while leaving to the licensees the use of the 
 deadly double-barreled shotguns, repeating pistols, and swivels. While 
 there we are expected to regulate navigation by creating a new inter- 
 national flag for the benefit of the fimr ports that are given the monop- 
 oly, by these proposed regulations, of outfitting all licensed scalers 
 and, (!on«equently, of handling tlie great spring catch. 
 
 Then when we are engaged in establishing a dose season during which 
 no pelagic sealing shall be permitted in Bering Sea, we must also fix 
 the boundaries of that sea, not yet fixed by any law or treaty. Other- 
 wise, we can not define the boundary that shall separate innocence 
 from guilt in pelagic sealing. 
 
 Inside Bering Sea, we must fix and demark a zone of 20 m'les around 
 the Pribilof Islands within which the seals shall live and pelagic 
 sealing shall perish. 
 
 None ofthese various regulations — which would destroy some private 
 
 V 
 
 a 
 
w 
 
 1 
 
 18 
 
 rights of the people and build up others; would create monopolies for 
 some towns, to the great disadvantage of others; would build up some 
 railroads and cripple others — ai o so clearly within the power of this 
 tribunal to protect and preserve the fur-seals as the determination of 
 a close season in the Pacific Ocean, or of the prohibition of all pelagic 
 sealing would bo. 
 
 The British Government, through its attorney- general, can give 
 authenticity to any plan we may adopt for carrying out the purposes 
 of the treaty, so as to bind thatOovernment at least, and although the 
 regulations thus presented to the tribunal may involve an award by 
 the tribunal that would be ultra viren, if they should be adopted, the 
 award would have the valid and binding consent of Great Britain. 
 The United States can not be thus pledged to any consent decree and 
 must accept what we award without question, except that the tribunal 
 must act within its just powers under the treaty. 
 
 The regulations thus authentically proposed by Great Britain, being 
 entirely inconsistent with its contention that the powers of this tribu- 
 nal are confined to the area of Bering Sea, it is justly to be considered 
 that the objection to the exercise of a more extended field of jurisdic- 
 tion is waived, or abandoned, by that Government. 
 
 The examination and decision of the questions of the right of property 
 in the fur-seals in, or habitually resorting to, Bering Sea, and the right 
 to protect them claimed by the United States necessarily extends the 
 jurisdiction of this tribunal on that question to the North Pacific 
 Ocean 
 
 In every important feature the case is an entirety, and all its parts 
 must be constraed in pari materia. It is beyond my comprehension 
 that the jurisdiction of the tribunal should require us to make an 
 investigation into a great variety of facts and the laws governing the 
 rights of the United States as to property and protection in the Pacific 
 Ocean, and that, when the protection of its rights is reached, the 
 jurisdiction of the tribunal should suddenly cease. 
 
 Yet, if the objection of Great Britain is still urged, it is apparently 
 the only method of avoiding a very embarrassing condition, that the 
 Tribunal of Arbitration should present to both Governments the pres- 
 ent attitude of the question and ask them, by a formal agreement, to 
 remove the difficulty. 
 
 Mr. Justice Harlan and myself have stated to the tribunal our con- 
 viction that the United States would regard the decision of the tri- 
 
14 
 
 banal as beiug in violation of the plain provisions of the treaty if they 
 shoald hold that they have no power under the treaty to extend what- 
 ever regulations they may find to be necessary for the proper protection 
 of the fur-seals into the Northern Pacific Ocean. 
 
 As we fully concur in that view of the treaty and believe that the 
 seal herd will be speedily destroyed If proper regulations for their pro- 
 tection in Behring Sea and in the North Pacific Ocean are refused, we 
 feel compelled to seek a full opportunity to present the subject to our 
 colleagues without the embarrassment that must attend its investigation 
 in the presence of a pending and undecided objection on the part of 
 Great Britain that we have no right to consider the subject of regula- 
 tions applicable to the North Pacific Ocean, because this tribunal has 
 no power to award any regulations to apply outside the area of Behring 
 Sea. 
 
 We believe that the proper way and, indeed, the only way to secure 
 an unembarrassed consideration of this subject on its merits is to 
 take ux) the objection of Great Britain to the jurisdiction of this tri- 
 bunal and dispose of it. I believe that every consideration of just and 
 proper procedure in this case requires that this vital question as to the 
 powers of this tribui>al slsould be disposed of before any other question 
 in the case is taken uj). The questions of extending regulations beyond 
 the area of Behring Sea into the North Pacific Ocean and of prohibit- 
 ing i)elagic sealing in Bering Sea can never be fairly considered upon 
 their merits under the pressure of a pending objection made by Great 
 Britain that, whatever convictions an Arbitrator may have as to the 
 necessity of such regulations, the treaty forbids such action by the 
 Tribunal of Arbitration. 
 
 The justice of the request that this question shall be disposed of in 
 limine, aside from its logical propriety, is manifest, when it is considered 
 that Great Britain has made this serious objection to the powers of 
 the tribunal and yet insists that its objection shall not be heard until 
 the case has been heard and decide< , in all other respects, upon the 
 merits. 
 
 Can it be jnstly claimed that, if the "ase should be decided in favor 
 of the contention of Great Britain on ev3ry other point, on the merits, 
 that Government could at its pleasure, permit or prevent regulations 
 from being adopted applicable to the North Pacific Ocean, however 
 necessary they may be, on the ground taken in its objection to the 
 jurisdiction of this tribunal that it has no power under the treaty to 
 make such regulations t 
 
 -: 
 
 .1 
 
15 
 
 It should be determined, now, whether, in the judgment of this 
 tribunal, a power of this dangerous magnitude can be wisely or Justly 
 left in the control of either party. 
 
 If this power to extend regulations to include an area in the North 
 Paciflo Ocean does not exist, as Great Britain asserts that it does not 
 exist, no concession on the part of that Government could create the 
 power, witL out the consent of the United States. It would require a 
 change in the treaty to create that power if it does not exist. 
 
 The only ground that cau be taken, in the situation presented by the 
 objection of Great Britain, is that the Tribunal of Arbitration will 
 decide the question and leave it to the respective Governments to deter- 
 mine what course they v ill pursue in view of the decision. It will result 
 in tliis, at last, for they arc sovereign Governments and there are none 
 who can compel either of them, by any peaceful ^neans, to accept and 
 perform an award which they may believe violates the treaty under 
 which this tribunal is acting. 
 
 I disclaim all authority to si/cak for the United States and I deny 
 the right of any other person to bind that Government by any declara- 
 tion or act that is not clearly authorized by the treaty. 
 
 I only speak for myself when I state my conviction, that the objec- 
 tion urged by Great Britain to the power of this tribnnal to make reg- 
 ulations to protect the fur-seals, which shall have full operation out- 
 side of Bering Sea, if it is sustained by this tribunal, will destroy a 
 leading and most important feature of the treaty. 
 
 From some observations of Lord Hannen, when Mr. Justice Harlan 
 presented the propositions I have been discussing, I find that his objec- 
 tion to the second proposition is to some extent based on the point 
 that there is in that proposition a delimitation of the area of waters 
 in the Pacific Ocean, over which the regulations, if adopted, will extend. 
 I understand Mr. Justice Harlan to say that such is not his intention| 
 or his construction of that resolution. 
 
 Now, in order that the question of the power of the tribunal to make 
 regulations that will extend to the Pacific Ocean, outside of Bering Sea, 
 and outride of territorial limits, may be presented in a more distinct 
 form, if possible, I will offer the foUoVing as a substitute for the two 
 propositions oflftred by Mr. Justice Harlan, which, I tliink, covers the 
 substance of both the propositions he has offered, and I hope it may 
 remove the objections that are made by Lord Hannen to the form of 
 those propositions: 
 
16 
 
 " This Tribunal of Arbitration is empowered by the treaty of Febru- 
 ary 29, 1892, between the Unit«d States and Great Britain, to determine 
 what concurrent regulations are proper to be adopted and enforced by 
 tlie action of the respective Oovernments, applicable to their respective 
 citizens or subjects, outside of their respective territorial limits and 
 outside of Bering Sea, for the protection and preservation of fur-seals 
 in, or habitually resorting to, Bering Sea." 
 
 At tlie conclusion of the foregoing remarks Mr. Justice Harlan 
 accepted tliis declaration, offered by Senator Morgan, as a substitute 
 for those proposed by him, and moved the adoption of the same. 
 
 !."^t! ii"" '' j ?'; ?yj".y " "^ ' .''BWWj if M Wi 
 
^. 
 
 A QUESTION BEING UNDEE DISCUSSION AS TO THE PEOI'EE OEUEE IN 
 WHICH THE MATTEES SUBMITTED TO THE TEIBUNAL FOB EXAMI- 
 NATION SHOULD BE TAKEN UP AND DISPOSED OF, AND AS TO THE 
 GENERAL POWEES AND DUTIES OF THE TBIUUNAL, SENATOR 
 MORGAN MADE THE FOLLOWING PEELIMINAKY BEMABKS TOUCH- 
 ING THE SAME : 
 
 The imbject with which tlie tribunal is to deal is a practical one 
 of the highest importance. Ou the psut of Great Britain a claim is 
 asserted, as a sovereign power, on behalf of her subjects, to the right 
 of pelagic hunting of fur-seals in, or habitually resorting to Bering 
 Sea, in all the waters of tho North Paciflc Ocean that are not included 
 within ordinary territorial limits, without any restriction, or quali- 
 fication, as to the time, place, or manner of their destruction. 
 
 In the Case of Great Britain, as it is stated to the Tribunal of 
 Arbitration in conformity with the requirements of the treaty, this 
 claim is presented in the broadest form and the present method of 
 pelagic hunting is Justified as being within that claim of right, under 
 international law- 
 Great Britain lias cited the principles of international law, and 
 certain analogies relied upon to support her case. The Government 
 of the United States, under the same requirement of the treaty, has 
 presented its case upon the law and evidence in like manner. 
 
 The claim of the United States is made in the name and on behalf of 
 that Government, whidi asserts that it is the sovereign owner of the 
 fur-seals that habitually resort to the waters of Bering Sea and to the 
 islands within that sea that are east of the water boundary between 
 liussia and the United states of America, and that it owns these lur- 
 seals as property, as a source of revenue, and as an instrumentality of 
 government. 
 
 In one aspect of thin claim, the ownership of the animals is alleged 
 to be completer In another aspect, the alleged ownership is stated as 
 a right to have and enjoy the usufruct of these seal herds, for the sup- 
 
 17 
 11495 M 2 
 
18 
 
 port of a IcgitimatA industry eHtablished by the United States on the 
 islandH of St. l*au] and St. Uuirge, in Boring Sea. 
 
 Two distinct " cases" are tlius presented to tlie Tribunal of Arbitra- 
 tion for consideration and decision,and,wbilc they are not consolidated, 
 as cross iu;tions are often set down by the courts as comprising one 
 cas(^, they are to I)e heard at tlie same time and the same evidence may 
 ' be used. 
 
 Kach "case" must stand upon its own merits, and it does not neces- 
 sarily result tliat a decision in favor of either Government uiK>n the 
 case presented by it is a denial of all tliat is claimed in the case of the 
 other (fovernnient. 
 
 While the award to be made by the Tribunal of Arbitration may 
 afllrm in whole or in part the claims so asserted by either Govern- 
 ment, it is not a iinding in the nature of a recovery of property or 
 judgment for money, as damages or otlierwise, in favor of eitner party 
 as against the otiier, but is an assent by both to a settlement of con- 
 troversies between them in accordance with the terms of the award 
 which the Tribunal of Arbitration sliall make. When the award is 
 so made, the result is the same as if loth (iovernmejits had stipulated 
 In the Treaty, in terms, that which sliall be expressed in the award. 
 In this sense, and to this effect, whatever shall be declared in the 
 award irill he a ^finding in favor of both (lovernmmiH. 
 
 No rule Is given or intimated in the treaty to indicate whether the 
 tribunal is to take the International law, or a just view of the comity 
 of nations, or the peculiar relations of the two Governments to this 
 subject, as a guide to their decisions, or whether the rigid rules of law, 
 or equitable considerations aie to govern, and whether the tribunal is 
 held to an vnbeiuling rule of law, or whether there are exceptions to 
 it growing out of long usage or governmental necessities which should 
 qualify the right <!laln>cd by either i>arty. 
 
 Another Impoitant consideration was in view when the treaty was 
 made, namely, the necessity for a declaration on their part, rea^ihing 
 beyond the mere question of the interests of the United States and the 
 subjects of Great Britain in the Alaskan herd of fur-seals, that the 
 ultimate assertion of governmental control over the subject by all the 
 countries to which fur-seals resort in their breeding season should be 
 established by the <!onsent of the United States and Great Britain. 
 
 It was a just expectation that all such countries would find, in the 
 results of this investigation, sufficient reasons for adopting the rules, 
 
^m^^w 
 
 Bff^SHI 
 
 19 
 
 or principles, that this tribunal would eBtablish for the protection of 
 fur-Heals. 
 
 The destruction of the fur-seal Hi)ccies in the sontheni hemisphere, 
 in ii commercial souhc, IdmI already resulted from indiscriminate 
 slaughter on land and sea. The slaughter had been conduct(>d as a 
 matter of right ujwn the idea that none of those countries had treated 
 the fur-seals as domestic animals, or animals that were attached to 
 the soil, or as domesticated animals entitled to |>r(ite«;tioii as property, 
 but had permitted them to be treated as wild animals, subject to cap- 
 ture by everyone at his pleasure. The people of the I'nited States 
 and of (Canada, and of many other countries, had exercised this 
 assumed right of capture of fur-seals in the Antarctic Seas until 
 within a recent period. 
 
 After the southern herds had been virtually destroyed, the ctdoniza- 
 tion of Europeans in extreme southern latitudes led to the investigation 
 of this subject and the enactment of laws for the prote(!tion of fur- 
 seals in the hope that their numbers cdTild be thus restored. These 
 efforts are most noteworthy in the British colonics of New Zealand and 
 the Cape of Gootl Hope. These iegislati>'e provisions were tentative 
 rather than conclusive in their operation u[>on the right of x)clagic 
 hunting, within the prescribed limitsof protection, by the people of for- 
 eign countries. While foreigners were included in the general terms 
 of the statutes einicted to protect fur-seals, room was Ml for the ques- 
 tion whether they could be rightfully included within the protection of 
 the international law if the pelagic hunters chose to make objection. 
 In the absence of such statutes, the right of pelagic sealing was not 
 questioned, except in seas and bays that were claimed as being closed 
 for such purposes, such as Behring Sea, the sea of Okhotsk, and the 
 waters in and around the Japanese archipelaigo. 
 
 By insisting upon ]tc('uliar rights and powers of protection over fur- 
 seals in such waters Russia and Japan had, in a large ir^easure, pre- 
 served their herds from destruction. But there was then, and until 
 recently, no one to assert, in the name of any Government, that pelagic 
 sealing was an invasion of national interests, or rights of property, in 
 fur-seals. The question was not raised by any serious dispute, by other 
 powers, of the right of protection of fur-seals as asserted by Kussia; 
 and her policy stood opposed to the alleged right, in a negative way 
 rather than by an active assertion attended with serious controversy 
 or force. Such respect was paid to her well-known attitude on the sub- 
 
■-IIH 
 
 20 
 
 ject that no occasion ottered to test the question whether » right of 
 pelagic hunting exiHte<l, under tlio hiwH of ntitiona, which was superior 
 to KuHsiii'H right to protect tUv fur-seals agaiuHt trespassers on the 
 high seas, »>r within IJcring Sea, when they were found more than 
 3 miles from her coasts and islantls. 
 
 This question was never, in fact, raised in any practical way as a 
 ■matter of internatioinil disimte, until tlie present controversy between 
 the United States and (ireat Britain. 
 
 The question is, therefore, entirely new, without any actual prece- 
 dent for its (rontrol, and also without analogy tor its illustration, because 
 no other onimtilN yieldiii;/ luthmhle proiluvtH to eommeree have the habits 
 of the fur seal, and none are eompvUed by t>'e neeessities of e-dstcnee to 
 pluee themnelreH ho entirely irithin the dominion of man. This award, 
 therefore, dealing with questions tiiat are entirely new, will complete 
 the tn^aty between these two great iiowers, ami establish between 
 them lixe.l rule« of conduct in respect to the protection and preserva- 
 tion of fur seals in waters ofttside the limit of the jurisdiction of the 
 respective (Jovernnjents. These rules will be a new compact ot inter- 
 national agreement, based on rights and duties that are, as yet, without 
 accurate deliniti<m and without regulation. 
 
 The interests of peace aiul good will being the great moving causes, 
 and the beiietlt of niiinkind and the requirements of humanity being 
 included in tln^ results of this arbitration, it is seen at once that it was 
 necessary and projjer to entrust these great powers to a Tribunal of 
 Arbitration having vei-y broad discretion and liberty of action. 
 
 The proper understanding of the scope and purjwse of this treaty is 
 to be gathered, also, from the diplomatic correspondence that attended 
 its negotiation, and from the various propositions and agreements that 
 took linal shape in the text of the treaty. 
 
 The agreement between the two Governments in the convention treats 
 the preservation and protection of the seal herds in a broad and rational 
 way, and assumes that both Governments will freely and cordially 
 exercise their powers for that i)urpo8e. 
 
 This is not a controversy in which the award will tix the title to spe- 
 cific chattels in either of two clainumts, or give compensation, in dam- 
 ages, as for the conversion of such chattels. It is not a lawsuit 
 between the Unitetl States and Great Britain. There ai-e no special 
 issues joined between them. All the tpiestions are put to the tribunal 
 interrogatively, and the award will settle principles and regulatioua 
 
tl 
 
 that will need to be enforced by the concurrent action of the two Oov- 
 ernmonts. There can not be any Kolf-executiiiK powers included in the 
 award. The riglits and duticH that arc ascertained by the award will 
 remain to bo eutbrcrd by the sovereign powers of the Uoverniuuuta 
 concerned. 
 
 The right of property in a herd of Heals within the meaning of this 
 treaty can not depend on the question whether every animal of the 
 herd was born on land belonging to the chiimaut. If this ({uestioi 
 could arise, in any ]>racti<'al s<>nsc, it could only arise between Kussin 
 or Japan and the United States, and not between (ircat Britain, 
 claiming no seal herds, and the United States, that claims a ' *r'.t Ihat 
 habitually resorts to the Pribilof Islands. The <iucstions submitted in 
 this treaty for . l»itnition do not hiiijje ujkmi the jtlace of nativity of 
 individual seals, (mt relate to those seals that resort habitually as herds 
 to the islands of the United States, and they turn upon that fiw^t as to 
 their identification. This question of the intermixing of the lienis 
 with those of Russia was not raised in tlte correspondence that led up 
 to this treaty, nor is it referred to in the ti-eaty, unless it is included in 
 the inquiry as to the right of property in the seals. That inipiiry relates 
 to the right of projjerty in t' e seals in, or resorting to, liering Sea, 
 without reference to the place of their nativity. If they have that 
 habit, Great Britain and the United Stalos have agreed in yiis treaty 
 that such a resorting to Bering Sea is the fiu;t that identities them as 
 the subject of the award to be rendered in this case. 
 
 If the award is that the United States have a property in the seals 
 so resorting to Bering Sea, or found in that .sea, it fully covers the 
 question that the Arbitrators are require*! to settle on the subject of 
 l)roperty in seals. If there are other questions beyond this as to 
 the title of the United States to individual seals, while living, the 
 decision of them does not fully dispose of any right claimed by Great 
 Britaui to kill them when found singlv or in small parties far out in the 
 deean; nor will it diminish any right aimed by the United States to 
 protect and preserve them if they car. be identified as behmging to the 
 Alaskan herd, though they nuiy have been born upon Itussian soil. 
 
 All the rights claimed by the United States in this treaty relate to 
 the protection and preservation of the lives of seal herds. All the rights 
 claimed by Great Britain and so s.-bmitted for .arbitration, relate solely 
 to the right of the destruction of individual seal life in order to secure 
 the pelts. There is no right of property in any single, living seal, 
 
imum 
 
 ms 
 
 
 3i- 
 
 It 
 
 
 22 
 
 whether it is found on shore or swimming in the sea, that is in contro- 
 versy between these Powers under tlie provisions ol' this treaty. 
 
 The controversy submitted to the Arbitrators is in fspect to the 
 preservation of an entire body of fur-seole. It is impossible that the 
 Arbitrators could dechire in favor of Great Britain, on the case here 
 presented and upon the questions submitted in the treaty, that livinff 
 seals found at sea arc the property of tliat Government or of its 
 subjects. 
 
 Tiie case submitted by Great Britain is a general and special denial 
 of all property in seah until they are killed. But the Arbitrators can 
 make an award of the " riglits of property" in a herd of living seals io 
 the United States, because such rights are included in the submission 
 and are claiuieil in the case of the United Slates. 
 
 The U'.'ited Htatos claim the property interest in the seals under 
 this arbitriition, not for their justifi'^ation in destroying them at sea or 
 on the land, but for the sole purpose of prottntting them against pelagic 
 hunting, while Great Britain denies all such property rights until the 
 seals are killed, and claims the right to kill them anywhere that a 
 British ship can liitvfuily go. And the treaty, being framed to settle 
 these claims, on its face admits that, if the seals resort to Bering Sea, 
 that fact presenttj fully and sufficiently the (luestion of the property 
 right on ^hich the claiim of the United States to protect ana preserve 
 the seals is to be founded, and leaves the question to be settled by the 
 Arbitrators whether there is vested in the United States, as between 
 these parties, a right of pro])erty in the seals that are in, or habitually* 
 resort to Bering Sea. 
 
 The distance of 150 miles from the eastern coasts of the North Pacific 
 Ocean is the extreme limit, to the westward, of pelagic hunting in that 
 part of the ocean that borders on the North American continent. 
 
 Between February and June, when the seals are approaching Bering 
 Sea, the Japanese and Russian herds are moving along the coasts of 
 Japan and Itassia, not less than G,000 miles away from the Alaskan 
 herds. If any stray Itussian or Japanese seals have found their way 
 across the Pacific Ocean to the American coast and into the Alaskan 
 herd, that fact could not affect any right of property that the United 
 States may have in the body of the herd. And when that right of 
 property is asserted for the protection and preservation of the estrays 
 it is sufHcient to justify all proper efforts and force that may be requisite 
 to that end. Even though Russia or Japan may have a higher property 
 
 1^1 
 
 m 
 
 mM 
 
23 
 
 right than that of the United States in individual seals, yet, if their seals 
 are gone estray and are found in the Alaskan herds, the United States, 
 if they own those herds, or have the power to protect thenj, may also 
 lawfully and justly protect the ostrays against everybody except the 
 owner. 
 
 Two questions of right are presented in point r» of Article V^l, viz: 
 The right of property in the fur- seals and the right to project them. 
 These lights are not identical under all circumstances. 
 
 The right to protect property nniy exist in one who neither has nor 
 claims to have any absolute ownership of the property, and this right 
 has a peculiar foice and value on the higli seas, where the exposure of 
 property to destruction is great and the persons are few who may be 
 able to protect and preserve it. The right to protect property is an 
 element of its ownership, but that right does not always dcp-iid on 
 ownership. In this treaty i vre is taken to submit to the Arbitrators 
 the separate rights of property and of protection as to the seals in or 
 resorting to Behring Sea. 
 
 It must be admitted that these questions in all their bearings are 
 entirely new. It is tlieir novelty Ihat has led to this Arbitration. If 
 they had been . apublo of solution under the rules and precedents of 
 international law it miiSt be assumed that t\vo great Governments, 
 e(iually desirous to protect and preserve the fur-seals, would have 
 readily agreed as to whicli of them was charged with or eutftled to per- 
 form that duty. In the absence of such rules and precedents of iuier- 
 national law it was wise und just to submit these (juescions, as now 
 ones, to arbitration. 
 
 The fact thaf both (rovcrnmcats are required by the treaty "to 
 cooperat3 in securing the adhesion of other Poweril't.o such Regulations" 
 as shall be established by th<( tribunal, is an indication that is really 
 conclusi ve of the fact that they both expected that the award might be 
 based on new principles or on newly stated exceptions to old rules. 
 • If the award could not properly be based on well-settled principles of 
 international law, the reason for securing the adhesion of other powers 
 would be obvious, whereas that would be an unnecessary act if the 
 award could be based only upon the concrete principles of international 
 law, for other nations juust be understood as knowing and abiding by 
 the international law. Why should they be asked to give theiradhesioa 
 to an award that \;'ould hold the United States and Great Britain only 
 to a (aithfal observance of international law t 
 
UUKHIW 
 
 Igi^BHBH^WWe 
 
 24 
 
 This is a controversy between two Governments that hold a pecul'ar 
 relation to the fur-seals in the eastern waters of the North Pacific 
 Ocean. The peculiarities of that situation must, largely, control or 
 modify the equitable rights of the parties in tlieir dealings with the 
 subject and in the establishment of regulations to secure their obedi- 
 ence to the rules of right and justice that pervade all laws. 
 
 The two Governments resorted to arbitration for the peaceful settle- 
 ment of their controversy, because the strict and unbending rrles of 
 international law, or their meager treatment of si\ch subjects, were not 
 equal to the emergency of the case, nor offered a precedent for the 
 satisfactory atljustment of the right claimed by the United States. The 
 settlement of this matter does not, necessarily, establish any rule 
 of international law, or declare any such rule. It will establish a 
 rule, inter partes, whicli they, by agreement, may rescind at pleasure. 
 It can only become a rule of international law by tlie general adhesion 
 of other powers. 
 
 So, I hold that the duty is included within the scope of the powers 
 of this tribunal to determine what are the just and equitable powers 
 and rights of the respective Goverliments that should be exercised 
 severally, or concurrently, in maintaining and executing the avowed 
 purpose of both, to protect and preserve the fur-seals. The question 
 of the right of property, or protection, lias this relation, and none 
 other, to the great and novel subject submitted to this tribunal. 
 
OPINION DELIVERED BEFORE THE TRIBUNAL OF ARBITRATION 
 BY SENATOR MORGAN, JULY *4, 1893, AS TO THE PROPER TIME 
 FOR THE CONSIDERATION OF THE HISTORICAL QUESTIONS 
 SUBMITTED TO THE TRIBUNAL. 
 
 July 20, 18l);{, Mr. Morgan s'.ib'iiitted the following answers to points 
 1, 2, 3, and 4, of Article VI of tlie treaty, for the consideration of tlie 
 tribunal : 
 
 1. From tlie time that Russia first discovered and occupied Bohriufr 
 Sea and thecoastsand islands thereof until she ceded a i)ortion thereof 
 to tiie United States she claimed the seal fisheries in IJehring Sea, 
 and exercised exclusively the right to the usufruct and to own the prod- 
 ue.t of siu;h seal fisheries, and to ])rotect the same against being inter- 
 fered with in those waters l)y the people of an> other country; and also 
 the exclusive jurisdiction that was found necessary for those pnrjioses; 
 and also the exclusive jurisdiction to regulate the hunting of fur- 
 seals in tiiose waters aiul to graut the right of hunting them to her 
 own subjects. 
 
 2. Tiie attitude of Itussia toward the fur-seal fisheries in Behring 
 Sea, as des(!ribed above, being known to Great Britain, she acquiesced 
 in the same without objection. 
 
 3. The rights of Russia, as above stated, reniaine«l unaffected by 
 the treaty of 182.') between linssia and Great Britain, and were held 
 ami exdnsively exercised by Russia alter the date of said treaty as 
 they were Ijefore said date. The jihrase "Pacific Ocean," as used in 
 said treaty, did include the boily of water now known as Behring Sea. 
 
 4. All tiie rights of Russia, as described in point 4 of Article VI of 
 the treaty of February 2!>, 1S!)2, passed unimpaired by the treaty of 
 March 30, 18(>7, between Russia and tlie United States. 
 
 The following statements .submitted to the trilmnal by Lord llannen 
 and by Baron Courcel, respectively, while coinciding in the same find- 
 ings as to the conclusions drawn from the facts of history, differ as to 
 the facts upon which their respective conclusions are rested. 
 
 11 
 
 STATEMENT BY LOUD HJNNEN, SVltMlTTKl) JULY 21, AS ANSWEliS TO 
 QUESTIONS CONTAINED IN AliTICLE VI OF THE THE ATT. 
 
 To question 1. — Russia never exercised exclusive jurisdiction in 
 Behring Sea, outside the ordinary 3-mile limit. In 1821 she asserted 
 exclusive jurisdiction over a part of Behring Sea, viz: For 100 miles 
 along its coasts, by imperial ukase. But siie withdrew the assertion 
 of jurisdiction expressed in the ukase, on the demand of Great 
 Britaiu and tlio United States, and never afterwards asserted or exer- 
 cised such juiisdiotion. 
 
'20 
 
 Kussiii never exercised exclusive rights in the seal fisheries in Behring 
 Hea outside the aforesaid litiiit. In I8lil she claimed, by the aforesaid 
 ukiise, exclusive rights of iill kinds (as included in her claim of Juris- 
 diction), extending for 100 mile."' along tlie coasts of liehring Bea; but 
 she withdrew the assertion on tiie demand of Great Britain and the 
 United Htatcs, and never afterwii'ds asserted or exercised such rights. 
 
 The oidy exclusive right which Russia subseciuently exercised as to 
 the sea was the ordinary right conceded by interiuitional law for 3 
 miles from land. 
 
 To qiu;ntion ;J. — Great Britain never recognized or conceded any claims 
 of Russia of jurisdiction as to the seal llslieries, except as to th( ordi- 
 nary 3 mile limit. 
 
 To qnextion 3. — The body of water known as Behring Sea was in- 
 cluded in the phrase " I'aciHc Ocean, "as used in the treaty of 1825 be- 
 tween (ireat Britain and Russia. 
 
 Russia neither held nor exercised any rights in Itehring Sea after 
 the treaty of l.S2."», save only such rights as were allowed to her by 
 international )uw witliin tiie ordinary 3-mile limit. 
 
 To question J. — Tlnit Russia having had no rights as to jurisdiction 
 or as to the seal fisheries in Behring Sea, except as to the lands ceded 
 and the ordiiuiry 3 mile limit boidering the same, it follows that 
 no other rights passed to the United States under the treaty between 
 the United States and Russia of JVlarch 30, 18(i7. 
 
 STATEMKST PliKSKSriiD liY ItAUOS DK VomVEI., JIJA'S?, IXAN^VJiR 
 
 /(> I'oiyrs 1, 2, 3, Ay I) t or the treaty. 
 
 I. The extent of authority asserted and exercised by Russia in 
 Behring S'"i, previously to the negf)tiations which led t*)the conclusion 
 of the treaty of Fcbruaiy 10-28, 182."), between Russia and Great 
 Britain, does not appear with historical certainty, but it results from 
 a dispatch of Count Nesselrode to Count Lieven, in date of St. I'etei's- 
 burg, the 2(itii of June, 1823, cominunieated to the London cabinet «)n 
 the tlth of August ensuing, that the surveillance of the commanders 
 of the Imperial Russian navy was to be exercised henceforth, under 
 their instructions, in tiie region of Behring Hea over an extent of water 
 that should be witliin cannon shot from shore; and although those 
 instructions were stated as being provisional in the dispatch of Count 
 Nesselrode, it does not appear tliat since tiiat time ni) to the tinui of 
 the cession of Alaska to the Unit<'d States the linjierial Gciyernment 
 of Russia exi'icised or asserted in Behring Sea, outside of the limit 
 aforesaid, any exclusive jurisdiction either of a general character or in 
 connection with the s(>al fisheries. 
 
 II. Great Britain has not recognized or conceded any jurisdiction of 
 Russia as to seal fishery beyond tlie limit of territoiial waters. 
 
 III. The body of water now known as the Behring Sea was included 
 in the phrase "Pacific Gcean," as used in the treaty of 1825 between 
 Great Britain and Russia, f^iid after said treaty Russia neither held 
 nor exercised in the Behring Sea, outside of territorial waters, any 
 exclusive rights. 
 
 IV. All the rights of Russia as to the Jurisdiction and as to the seal 
 fisheries in Behring Sea east of the water boundary in the treaty 
 between United States and Russia of the 30th of March, 1867, passed 
 unimpaired •' the United States under that treaty. 
 
 .1 
 
i 
 
 <l> 
 
 27 
 
 These variances, if not disagreements, as to tbe historical inquiries 
 submitted to the tribunal in the first four points of Article VI of the 
 treaty, in my judgment, furnish a conclusive reason in sujjport of a 
 motion 1 intend to submit for the postponement of a vote on points 1, 
 2, 3, and 4 in Article VI of the treaty, until the tribunal sliall have 
 reached a conclusion as to the ri{{;lits of the United States, as to prop- 
 erty and protection in the fur-seals. 
 
 On July 22, when the subject of the answers to be made to points Ij 
 2, .'J, 4, of Article V 1 of the treaty, was under consideration, I had the 
 honor of submitting the following motion and remarks: 
 
 " I move that no decision be made upon the first four points in Article 
 VI of tlie treaty, at this time, but that this historical matter be laid 
 aside until the tribunal has considered and decided the legal questions 
 submitted for award in tlie treaty, in whatever order may l)e adopted. 
 I will state the gi-ounds for this motion: 
 
 '* Prior to March .'10, 1807, Russia owned all the coasts and islands 
 washed by the waters of Bering Sea, and yet owns all west of the 
 water boundary fixed in her treaty of that date with the United 
 States. 
 
 "Kussia has the same rights of Jurisdiction in the western portion of 
 Bering Sea that the United States has in the eastern portion. If we 
 could reach an agreement as to what tliose rights are it would be far 
 better, if it was possible, that it sliould not be formulated intoan award 
 in the absentee of liussiii from tliiy hearing. 
 
 ''Kussia alone can state wha. exclusive jurisdiction she asserted and 
 exercised and what exclusive rights in the seal fisheries she asserted 
 and exercised in the sea now known as Bering Sea ])r'or to 1825, or 
 since tliat date and until 18(>7, so far as such statements can attetrt or 
 describe her attitude as a sovereign with reference to that sea and 
 the suiToimding coasts and the islands washed by its waters. Tlie^e 
 matters rest in intention and are established by assertion and are 
 proven, where i)roof is needed, by the exercise of nuthority over 
 Behring Sea and its islands and surronnding coasts, and, where the 
 sovereign rights of Russia are challenged and put upon trial, Russia 
 should be present if the decision is to have any bearing, immediate or 
 remote, upon her rights or any effect on her sensibilities, so important 
 to be regarded in the comity of nations. 
 
 "Russia has retained rights and interests in the fur-seals and fisheries 
 of every kind in the western part of Bering Sea t*;id on the coaste aad 
 
'" i 
 
 ^ . 28 
 
 islands thereof, which are the Siiine as to origin, assertion, and exer- 
 cise, and as to all sovereign powers, as tliose that are claimed and 
 exercised by the United States, llussia is still {guarding her rights 
 in the form and t4> the extent that she is making a claim or assertion 
 of tiiem with sedulous care, and Great Britain is actively engaged in 
 tresiting with her for the detinitioii and settlement of those rights. 
 VVliile treating with liussia she is arbitrating with the United States 
 about the identical questions that equally concern both countries." 
 
 A main feature that seems to control the opinions of the Arbitrators 
 in deternjining what are the rights of the United States is the action 
 of llussia, its conduct in fact, as it is alleged, ^ro aiid c'««, in first assert- 
 ing, and then abajuloning the assertion that Bering Sea is mare 
 eUtuHum; in issuing lier ukase in 1799 and abandoning some of its vital 
 features and adding others by a later ukase in 1821; in wiping out 
 all of the pretensions set up in both ukases by the treaty conchuled 
 with the United States in 1824 and with (Ireat Britain in 1825; in 
 instructing her minister at Washington to deliver to the United States 
 an explanatory protocol, defining more clearly her construction of the 
 treatyof 1824, which instructions were violated under imiwessions made 
 upon him by the Secretary of State, and, after this was done, proceeding 
 under the text of tlie treaty as if no qualifying statement would ever 
 be relied upon by Russia; and in renevving her charter to the Russian 
 American Company in 1831 witli the same exclusive privileges as were 
 granted to it in 1821. In the opinions of the arbitrators, now delivered, 
 these questions, so closely related to the conduct of Russia for a period 
 little short of a century, are dealt with and are to be decided by this 
 tribunal. 
 
 Whether Russia had any right under international law, or any other 
 la^\ assert and exercise exclusive rights or exclusive jurisdiction in 
 B ug Sea, can not alter the fa(!t that she did, o: did not, assert and 
 exi^i' e them. Neither can these facts be altered by Russia's con- 
 structive modification or abandonment of the attitude she had previ- 
 ously lield to these subjects. Tlie only «|uestion is, what did Russia 
 intend to assert iu respect to these matters, and whether she executed 
 that intention in dealing with these subjects, in the opinions deliv- 
 ered, strict history, as to facts, seems to have received a coloring of 
 legal and diplomatic opinion in the eft'ort to ascertain what Rtissia did 
 and intended to do, by first ascertaining what it was her duty to do 
 under the international law and the comity of nations. 
 
 * 
 
-T- 
 
 29 
 
 In tny judgment, if Russia chose to violate the internatioTial law and 
 to repudiate all comity, lier attitude was not altered becaust' it may 
 have exposi^d her to uiifrieudly criticism i)rovt>kcd by the pres8u^^ of 
 iwlverse interests on Ihe part of the Unite<l States or (Ireat Britain. 
 .Vt all events, any sucli departures of tlie tribunal from the strict duty 
 of stating this history, confined to the sulyect of fur-seal tisheries in 
 IJering Sea, witliout reference, deduction, <;onjecture, oi)inion, gloss, 
 or comment, will only provoke the prompt dissent of Russia, or will 
 cause Great Britain and the United States, whenever theii' policies so 
 re(piire, to declaie tliat our decision is not \\ .ranted by the strict 
 miture of tlie inquiry siiliniitted to »'s, and is obiter <Uc1um. 
 
 I consider it a happy circumstance that in the opinions delivered 
 on this subject there is sucli contrariety and conflict that, if tiiey are 
 adhered to, we are obliged to show that a majority of the tribunal 
 are unable to agree upon an identical answer as to the historical facts 
 submitted for incpiiry and decision in the first point and in the last 
 clause of the third point of Article VI. 
 
 And inasmuch as an agreement of a majority of tlie tribunal as to 
 the historical facts so recpiired to be stated is the essential basis of 
 the decision of the other matters i)resenti.d in points 2 and 3, I resi)ect- 
 fully insist that we have not been able to reach a decision upon them, 
 and for this reason a majority of the tribunal can not actually decide the 
 inquiry stated in points I, 2, and 3 of Article VI . 
 
 The imitters presented for historical incpiiry and decision in points 
 1, 2, 3, and 4, of Article VI, relate only to a derivative right of the 
 United States to the fur-seal fisheries, as they are ternu'd, in Bering 
 Sea, and the exclusive jurisdiction over that sea to control and protc<;t 
 such tisheries. These (juestions are pres(^nttMl and nniy be considered 
 and decided, \\\)0\\ the facts and law that must control our decision, 
 under the submission of questions of a judicial nature, in point 5, of 
 Article VI, and in Articles 1 and VII of the treaty. In so consider- 
 ing and deciding them we need find no occasion to express, in our 
 award, any conclusions that may impinge upon any right of liussia, 
 or call it in question, or that may unnecessarily wound her sensibilities. 
 It may also turn out that a final award will be reached as to the 
 rights of property and protection clainied by the United States, or the 
 rights of pelagic sealing claiujeu by Clreat Britain, based upon consid- 
 erations entirely apart from auy derivative rights of the United States 
 that may have come to that Government from Russia. 
 
1 
 
 30 
 
 At all events, the disagreements already developed among the mem- 
 bers of the tribunal, as to the matters with which the interests of Russia 
 iue so closcl^bound up, admonish us that we should lay this matter 
 aside until we have cousidorod the subject before us under Article I, 
 and point 3 in Article VI, Article VII, and any others that open up an 
 inquiry into the Juridical features of the questions that are submitted 
 to the tribunal. 
 
 The opinion and sunnriary of facts presented by Lord Ilanneu is con- 
 curred in by Sir John Tliompsoii. The opinion of Marquis Visconti 
 Venosta is concurred in by Mr. Gram, These opinions, whatever the 
 conclusions of fact to be drawn from them may be, are not identical 
 in statement or reasoning. In the absence of copies of these opin- 
 ions, I am not able now to compare and contrast them as I would feel 
 it my privilege to do. These opinions deal witli the rights and con- 
 <luct of Kussia in different lights. 1 do not say that they purposely 
 <lcal with the present rights of Eussia, but that effect is unavoidable 
 if any weight is to attach to our findings. 
 
 Four Arbitrators will agree upon these historical facts, if four 
 agree to Lord Ilannen's syllabus, while three uissent. This is not a 
 secure basis of historical decision of facts tluit concern a living and 
 great nation and her riglits, in nuittera that are now the subject of her 
 anxious care tliat are under diplomatic consi<leration in correspond- 
 ence with Great Britain. An opposing view of this history, presented 
 by me, has tlie con<;urrence of Baron de Courcel and Mr. Justice Har- 
 lan, to a considerable extent. Thee is a divided opinion in several 
 directions, and this chapter of history, if it is written, will go forth 
 encumbered with serious doubts and objections. 
 
 After further discussion, the answers to be made to the first four 
 points in Article VI of the treaty were informally laid aside to enable 
 Mr. Justice Harlan to formulate his answers. 
 
^^l 
 
 «» 
 
 THE TRIBUNAL. IIAVINCJ AGKEEl) TO CONSIDER THE EIRST EOUB 
 POINTS STATED IN ARTICLE VI OF THE TREATY, IN CONNECTION, 
 AS A GROUP OF QUESTIONS, SENATOR MOROAN SUBMITTED 1118 
 VIEWS OP THE CLAIMS OF RUSSIA, AND OF THE UNITED STATES 
 DERIVED FROM RUSSIA, UNDER THE TREATY OF l.S(}7, AS THE SAME 
 ABE PROPOUNDED IN THE TREATY OF 181»2 IN THE WORDS FOLLOW- 
 ING: 
 
 1. Whatexcliisive Jurindiction in the sea now known hh Bering Sea, 
 and what exclusive rights in the seal tisheries tlierein did Kussia as- 
 sert and exercise prior and up to tlie time of the cession of Ahiska to 
 the United States? 
 
 2. How far were those claims of jnrisdiclion as to the seal fislieries 
 recognized and conceded by (Jreat liiitain? 
 
 '.i. Was tlie body of water now known as the Behring Sea included in 
 the phrase "Pacific Ocean," as used in the treaty of 1H25 between 
 Great liritain and i{us8ia; and wliat rights, if any, in the Behring 
 Sea were held and exclusively exercised by Russia after said treaty? 
 
 4. Did not all tlie rights of Russia as to jurisdiction and as t<» the 
 seal fisheries in Behring Sea east of the water boundary in the treaty 
 between the United States and Russia of the .'Wth March, 18G7, iiass 
 unimpaired to the United States under tliat treaty? 
 
 As the tribunal seems to agree unanimously in giving an affirma- 
 tive answer to the fourth point I will not discuss it. 
 
 A like unanimity seems to exist as to the answer to the first inquiry 
 under question ii, which makes it unnecessary that I should comn ent 
 upon that question. 
 
 All the questions submitted under the four points x»f Article VI are 
 historical rather than .judicial in their character as to the facts to be 
 ascertained and as to the conclusions to be based upon them, excejit 
 the question presented in the second point, which I consider a mixed 
 (luestion of law and fact. It is upon this view of the duty of the 
 tribunal in tiie consideration of these questions that my oiiinions are 
 rested. 
 
 The situation of the western and northwestern coast of North Amei*- 
 ica in 1824 was practically that of an unoccupied and uninhabited 
 country to the north of Puget Sound. A few scattered tribes of 
 Indians inhabited the vast reach of coast, from Sau Francisco to the 
 
 81 
 
82 
 
 
 frozeu ocean, not less than 4,000 miles in length. The claims of 
 Great Britain, Russia, Spain, and the United States to certain 
 boiuularies alon<^ this (jreat reach were based on alleged discoveries 
 and o(;(uipation, all of the most indetlnitc character, and all disputed, 
 except that liussia held and occupied the islands and coasts on all 
 sides of "Bering Hea and this claim was not disputed by any country. 
 This claim was thus hchl and recognized for many years before 1824, 
 remihing back to the discovery and exploration of Bering Sea. 
 
 The interest of Itussia in these wild and inhos])itable regions was 
 not agricultural, for they are unfit for such pursuits. It was not an 
 ambitious desire for territorial aggrandizement on the American con- 
 tinent, for liussia took no steps to increase her population there 
 beyond the numbers necessary to secure and handle the fur trade; and 
 when she found it inconvenient to incur the expense of governing a 
 colony so far away from her capital, that yielded so small a revenue, 
 she sold all her possessions and dominion in that region east of 170° 
 of west longitude to a powc'r tlmt had always been friendly and was 
 not in any sense lier rival. 
 
 Fiohing was not so profitable in liering Sea as to induce Ushermento 
 encounter the unpleasant and short summer season when it was prac- 
 ticable to fish there and establish any regular business in taking fish. 
 The markets were too distant to justify them to transport their catch 
 fresh on ice, and there was not sufficient sunshine to enable them to 
 properly cure the fisli. In consequence the business of finhing was 
 never permanently established in Bering Sea, and is not until this time. 
 
 14ussia directed the energy and capital of her people to the collection 
 of furs as the only really valuable industry in that region, and created 
 monopolies in their favor and gave them large i)owers of legislation, 
 all directed to the same end, and all protected by lier naval power in a 
 thoroughly systematic and eU'ectual way. 
 
 These privileges were retained and exercised exclusively by llus- 
 sian subjects under her laws until the Alaskan region was sold to the 
 United States in 1807, with all the rights and dominion that Russia 
 had therein. In order to extinguish in that region all claim of rights 
 existing under Russian authority it was stipulated in the treaty of 
 cession that all foinier grants of exclusive privileges to any of the 
 Russian subjects should be abrogated. 
 
 It was in pursuance of the same authority and manifestly for these 
 reasons that the right of trading with the natives and of taking and 
 
 
 d 
 
 i 
 
33 
 
 )f 
 n 
 
 8 
 
 J0^ 
 
 collecting furs was withheld from tlie couceHsions made by HuHHia to 
 Great Britain and tlie I'niti'd Htates in is^t and l«2r». 
 
 In arcurdancc with wliat was tlien tin", prafticc of thf K^'at powers us 
 U\ the ri^ht of di'claiinjjftlio closure of extonsivc areas (»f sea as territo- 
 rial appurtenances, Kussiachiinied tliat Melirin^rBea was marc liatoiinn, 
 and in practice this claim was carried into ettcct as io the control of 
 the fur trade. 
 
 Her people did not hunt whales at that period to any great exteut, 
 nor did they condiu't tislieries /«»• comiiicrcial purpoHcu. It was the 
 (huible purpose of protecting her fnr trade and yet permitting whaling 
 and other tisiiing witiiiii safe limits that caused tlie Kmperor, Alexan- 
 der I, to issue tlio ukase of 1821. The whalers and fishermen had 
 begun to deal with the; niitives for furs and to cat<'h seals in Behring 
 Sea. Knssia resented this as a wrong and an invasion of her territorial 
 rights, ami the ukase wasJssued to prevent its in«'rease or continuance. 
 
 The ordinary Ihree mile limit was iis fully lecognized then as it has 
 been since that time, generally, as to coasts boi'dering the open ocean, 
 or even more fully recognized. But Russia ]»aid no attention to it in 
 Bering Sea, and for her own security in respe«!t (»f her only industry 
 in those waters — the fni' trade — and to keep down insurrection, she 
 fixed ii line of pndiibition to navigators at UM Italian miles from her 
 coasts. In doing this, and in opening liering 8ea to whalers and 
 fishermen ami other navigat(U-s in the parts not included in the 100- 
 mile limit, she asserted*and exercised an ex(!epti<mal .jurisdiction over 
 that sea and ('laimed thif^- her power extended over the entire sea, 
 but waiv<Ml her rights at the distiince of over 100 miles from the coasts. 
 
 lu 17!)!> the intonist of Uussia and her subjects in the fur trade had 
 become so important that on July S, 1700, nearly twenty-iive years 
 before the date of the treaty with the ITnited States of Ai)ril, 5-17, 
 1824, the Kmperor Paul issued his ukase, in which he declared 
 that— 
 
 The benefits and advantages resulting to our Empire from hunting 
 and trading carried on by our loyal subjects in the northeastern seas 
 and along tlie coasts of Ameritia have attracted our Imperial attention 
 and consideration; therefore, having taken under our iinmediate pro- 
 tection a comitany organized for the above-named purpose of carrying 
 (Ml hunting and trading, we allow it to assume the a])pellation of 
 "Uussian American Company, operating under our highest protection;" 
 and for the purpose of aiding tiic company in its enterprises, -we allow 
 the commanders of our land and sea forces to employ said forces in the 
 company's aid if occasion requires it, while for further relief and assist- 
 ance of said ctuupany, and having examined their rules and regulations, 
 11495 M 3 
 
84 
 
 wo herfiby decliiro it to be our lii^licHt Iiiiperinl will to fn'a»t to this 
 coMipiitiy tor u iM'iiod of t\v«'iity years tlio following riglitH and privi- 
 lepeH : 
 
 I. By the riglit of diHj'ovcry in past times by ItnsHian navigators of 
 tlie northwestern part of Anieriea, beginning from the tifty llfth degree 
 of north latitndt^ and of the chain of islands extending from Kam- 
 txrhatka to the north to Anieriea, and sonthward to Japan, and by right 
 of possession of the same by Knssia we most graeionsly luMniit the 
 eompany to have the list; of all hunting grounds and establishmonts 
 now existing <mi the northeastern eoast of Anieriea, from the above- 
 mentioued fifty lifth degree to Bering Strait, and also on the Aleutian, 
 Kurile, and other islands sifiiated in the Northeastern Oeeaii. 
 
 There c<mld not have been a imne distinet assertion of rights of sbv- 
 ereignty and dominion, in virtue of discovery and possession, than is 
 made in this State paper. Neither could it have been nau'e formally, 
 or conijiletely stated that the sovereign will and power of Russia was 
 exerted by this lin]>erial ukase to secure to the " Kiissiaii- American t'oni- 
 pany under (Russia's) higliest protect ion" "th»i benelits and advan- 
 tages resulting * # » (it,!,, ti,,, hunting and trading eairi«'d 
 on * • * tH //»; n«)7/»'rt«/e/"» wrt« and along th(! coasts of Anier- 
 iea." There can be no reasonable doubt that this ukase covered Bering 
 Sea and all hunting and trading in those waters. The rights conferred 
 by this ukase were supixuted by the power of the army and navy of 
 Uussia, pledged for that purpose. 
 
 The exclusive character of thest; rights, as to all tiie woi l-i, is stated 
 in Article X of the regulations (unbodied in tliis iikaso. m, kAU vs: 
 
 • X. The exclusive right is most graciously 'granted t<» l^i- company 
 for a period of twenty y<iiis, U) use and enj^»y, in the islxiv j-described 
 extent of country and islands, all profits and advantages derived from 
 hunting, trade, industries, and discovery of new lands, prohibiting the 
 enjoyment of these profits and a<lvaiitag»'s not only to those who 
 would wish to sail to those (lountries on their own account, but to all 
 former hunters and trapjjers who have been* engaged in this trade and 
 have their vessels and furs at those jilaces; and otiier companies whicu 
 may have been formed will not be allowed to continue their business 
 unless they unite with the iiresent eomiiany with their free consent, 
 but such private companies or traders as liave their vessels in those 
 regions can eitl<«»r sell their, property or, with the company's consent, 
 remain until they liave obtained a (Mirgo, but no longer tlian is retjuired 
 for the loading and return of their vessel; and after that nobody will 
 have any ])rivileges but this one company, which will be protected in 
 the enjoyment of all the rights mentioned. 
 
 The rights thus exclusively granted relate to hunting and tradinp. 
 The rights of free navigation and of fishing are not granted exclusively 
 to this company, but " all profits and advantages derived from hunting, 
 trade, industries, and discoyeries of new lands" are so granted. 
 
 M-^ ! f:..«e-!!t»^;y.at'A i j^iiMJi.AJKij i a ' M i ;. i . i ti 'i '! 
 
85 
 
 l^liat Mi« privilefi:*^ of huiitiiig riir-boariiif? aiiiinulM in Wut northoHMt^ni 
 Hca, uihI on l:in(l, was "tlu;t^\«;luHivc right'' of tlio gioatuHt ini]>oi-tiMicu 
 tinit waH giauteil in tliiH ukase is inadu t'ntin^ly clear in tliu prohibi- 
 tion stated in Article X in these words, ''prohil)iting the enJoynuMit of 
 these profits and advantages not (Hily t(» those who would wish to sail 
 to tlnise eonntries on their own aeuonnt, but to all t'ornier /iiiiih'tii ami 
 tfitftjtvin who have Iwen engaged in this trade «)(</ hare thtir r<HHeh and 
 turs at those places." 
 
 This eoiupany conducted its o|»erations in reference to the fur trade 
 at great cost and with much pi.,iit during the twenty years of its char- 
 tered existence, and then aitplied to Itussia for a renewal of its charter 
 for an additional term of twenty years. 
 
 The ukase of I7'.K) irax J'oiinil ^• hi- iiixiilficlint for lite proteetion of 
 the pririleffeH (jrunled hi/ it, and an additional ukase was jiecessary 
 f(U' that iHirpose, which was issued Heptember 4, 1.S21. There could 
 be no need to atjaiii UHsert the riyht of litim'm to fp-arit the ereluKive 
 prii'ih'i/eto ilHHiihjeels of'-hiiutiniiamt trddiiKj.^^ "which had been carried 
 on by (her) loyal subjects in the northeastern seas and along the coasts 
 of Anieric-a" for nniuy years anterior to I79!>, and for a (juarter of 
 a century since that date; but Kussia, ihrough its Kmperor and 
 directing senate, in the most solemn manner, declared that the free 
 right of noriffatiim, whieli was not rentr ivied hy the vkane of 17!>!>, had 
 been abused, to the detriim'ut of *' the trade of our snbje(!ts on the 
 Aleutian Islands and on the northwest <'oast of Americra, appertaining 
 unto llussia." 
 
 This necessity for an additional ukase couul not be expressed more 
 distinctly, or more tersely, than it is in the terms of that ukase, wiuch 
 are as follows : 
 
 The directing senate maketli known unto all men : Whereas in an 
 edict of His Imperial Majesty, issued to the direc^ting senate on the 
 4th day of September, and signed by His Imperial Majesty's own hand, 
 it is thus expressed: 
 
 Observing from reports submitted to us that the trade of our sub- 
 jects on the Aleutian Islands and ou tlui northwest coast «>f Ainerica 
 appertaining unto Russia, is 8ubje«;ted, because of secret and illicit 
 iratlic, to oppression and impediments, and Hnding that the ))rincipal 
 cause of these difficulties is the want of rules establishing the bounda- 
 ries for navigation along these coasts, and the order of naval commu- 
 nication as well in these places as on the whole of the eastern coast of 
 Siberia and the Kurile Islands, we have deemed it necesary to deter- 
 mine these (tomnumications by specific regulations, which are hereto 
 attached. 
 
 In forwarding these regulations to th^directing senate we command 
 that the same be published for universal information, and that the 
 proper measures be takeu to t;arry them into execution. 
 
 .iT.uii". ;*^^ 
 
mmmm 
 
 mm 
 
 «8 
 
 That ukase is directed to the suppression of a " secret and illicit 
 traffic" and "oppression and iinpedii<»'*nts" to which the trade of Rus- 
 sian subjects on the A'l'utiaii Islands on tiie northwest coast of 
 Aiueric* was subiected. "The i)rin('ii»al cause of these difticnlties" is 
 stated in the ukase. It " is the want of rules establishing boundaries 
 for navigation along these coasts," not through Bering Sea, " and the 
 order of naval coninmnication as well in these places as on the whole 
 of the eastern coasts (»f Siberia and the KurUe Islands." 
 
 In renewing the (charter of the liussian-Anierican Company in 1821, 
 all these abuses were de.ilt with in rhe ukase, published on September 
 7, 1821. That was a coniidete code of la»v8 consisting of G3 sections, 
 regulating and setting apart, as an exclusive and additional right 
 "granted to Russian subjects" of "the pursuit of commerce, whaling, 
 end Jishery, and all other itidustries on all island'^, ports, and gulfs, 
 including the whole of the northwest coast of ''.iPdrica," from Bering 
 Straits to the 51° »if north latitude, and 4r)0 50' .ni the Siberian side of 
 Bering Sea. 
 
 In this ukase, following this exclusive grant of rights and privileges 
 to Russian 8ubje<!ts, section 2 ordains that: 
 
 It is therefore prohibited to all foreign vessels not only to land on 
 the coasts and islands belonging t<) Russia ai? stated above, but also 
 to approach them within less than a liundred Itiilian miles. The trans- 
 gressor's vessel is subject to (rontiscation, along with the whole cargo. 
 
 Tlie second charter of the l{ussian-Ameri(!an Company was based 
 upon the ukase of 1821, which was based upon and amended the ukase 
 of 1799. The first and second articles of that charter are as follows: 
 
 1. 
 
 The company established for carrying on industriea^flud tr.ade on the 
 mainland of Northwest Anx'iica, on tlie Aleutian and on the Kurile 
 Islands remains, as heretofore, under the higiiest protection of His 
 Imperial Msyesty. 
 
 n. 
 
 It enjoys the privilege m .,nnting and (ishing, to the exclusion of all 
 other Russian or foreign Kubjects throughdut tll<^ territories long sin<!e 
 in the possession of Knssia on the coasts .»f Northwest America, begin- 
 ning at the uoithern point of the Island of Vancouver, in laiitiule 51"^ 
 north, i^iid extending to Beiing Strait and beyond, as well as on all 
 islands adjoininj: tlu^ <'oast and all tiioSe situated between this coast 
 and theeastern s'loreof Siberia, as well as on the Kurile Islands, where 
 the company has engaged in hunting, down to the south cape of the 
 Island Urapa, in latitude 45° 50'. 
 
37 
 
 The term "Imuting:" in Article II necessarily includes the same 
 "hunting * • • carried on by our iuytil subjects /» Mt- nortAf^s^frn 
 seas and along the coasts of America" that is reserved, exclusively, to 
 Russian subjects by the ukase of 179i>. 
 
 The right of tisliing is not mentioned specitically in the ukase of 
 1799, for the leason, doubtless, that it then had no importance. Jt is 
 specifically mentioned in the ukase of 18U1, and is therein classed as 
 follows, viz, " the pursuits of commerce, whaling, and fishery, and of 
 all other industry on all islands, i>orts, and gulfs." 
 
 In the ukase of 1821 all these pursuits, including hunting in the 
 northeastern seas, are embraced ir "t'le trade of <mr subjects hvho are) 
 on the Aleutian Islands and on the Northwest coast of America apper- 
 tainicg to Russia," are covered by the protecting power of the Russian 
 Empire. Ami in order to make t'le ])rotection effectual the right of 
 navigation was in that ukase restricted to 100 miles from the coasts, etc. 
 
 In 1824 the United States held the S;;ani8li title to its possessions 
 on the racitic coast north of latitude 42°. and had no other substan- 
 tial claim to that coast. In the treaty of 1824 between the United 
 States and Russia nothing was settled that had not been claimed by 
 Russia in these two ukases of 1799 and 1821, and in Article I of the 
 treaty (the rights of) " the respecti"e citizens and subjet^ts of the High 
 Contracting Towers" are "neither disturbed iu)r restrained either in 
 navigation or in fishing, or in the j.Dwer of resorting to the coasts, upon 
 points that may not have been already occupied, /or the purpose of trad- 
 iiijf witli the natives, saving always the restrictions and conditions de- 
 termined by the following articles." 
 
 Articles 2, 3, and 4 are as follf, s : 
 
 Articlk II. 
 
 With a view of preventing the rights ot navigation and of fishing 
 exercised U;"'>n the Great Ocean by tln^ (fitizens and subjects of the 
 high contracting powers from becoming the pretext for an illicit trade, 
 it is agreed that the citizens of the I'nited Htates sliall not n^sort to 
 any point where there is a Ru;-;oi;'ii establishment with.mt the permis- 
 sion of the governor or commander; and that, rycipnu-ally, tiie sub- 
 "ects of Russia shall not resort without permission to any establishment 
 of the United States upon the Northwest coast. 
 
 Article III. 
 
 It is moreover agreed that hereafter there shall not be formed by 
 the citizens of the Unif.*' 1 States, or under the authority of the said 
 States, any establishment upon the Northwest coast of America, nor in 
 
 i 
 
 m 
 

 
 38 
 
 auy of tbo islands iKljaceiit, Ut tlie iiortli of fifty-four degrees and forty 
 minutes of nortli latitude; and tliat, in tlie same manner, tliere sliall 
 be none formed by llussiaii subjects, or under tlie autliority of Uussia, 
 south of the same parallel. ^ 
 
 Article IV. 
 
 It is, nevertlielessj understood that during a term of ten years, 
 counting from the signature of tlie preaent convention, the ships of 
 both powers, or wliich belong to their citizeiis(»r subjects, respectively, 
 may reciprocally frequent, without any hindrance whatever, the inte- 
 rior seas, gulfs, harbors, and creeks ui)on the coast mentioned in the 
 preceding articde for the purpose of fisliing and trading with the 
 natives of the country. 
 
 This treaty was designed to settle all thd' questions involved in the 
 ukases of 1799 and 1821, in which the lln:ted States claimed any 
 interest, under international law, and ti>eTe is no mention made of any 
 change or modification of the exclusive right of the Knssians (made so 
 lirominent iu the'ukase of 1799) of "hunting a.nd trading carried on 
 by oar loyal subjects in the northeastern seas ana along the coasts of 
 America," except that the right of "trading with the natives of the 
 country" is granted to Americans for ten years, and after tlnit time 
 they "shall not resort to any point where there is a Russian establish- 
 ment without t?ie permission of the governor or commander J^ 
 
 Aside from the question whether " the (Jreat Ocean " included lie- 
 ring Sea, or is distinguished from it in the treaty of 1824, the right 
 of" hu!<tiiig in the northeastern seas and along the coasts of America," 
 which, with the riglit of trading, was considered so replete with "ben- 
 efits and advantages resulting to <uir enipiie," as to be made the sole 
 grounds of the ukase of 1799, icas not touched by the treaty of Ls^4 
 with the United States, or the treaty of 1825 with Great Jiritain, 
 
 That right stands to day as a right asserted by Hiissia and reserved 
 out of all treaties with the United States and (Jreat Hritain. 
 
 That is quite a sufficient assertion of the riyht, to support a 2»'csoriptive 
 title to the/ur-hearinfi animals in liehriuq Sea. 
 
 The right of "resorting to the coasts, upon points which may not 
 already have been occupied tor the purpose ol" trading" whi<'h is agreed 
 upon in Article I of the treaty of 182<1 is altogether distinct from the 
 right of hunting "in the northeastern seas" or along the coast. 
 
 The rights of "fishing" and "hunting" are not anywhere alluded to 
 iu these ukases or treaties as being the same; on the contrary, tiio, right 
 of hunting is reserved to liussian subje«:ts "in the northeastern seas 
 and along the coasts of Amprjca," while the treaty of 1824 forbids citi- 
 
^B—^ff^^ 
 
 39 
 
 .. 
 
 '^,. 
 
 zeiis of the United States from resnitins to tlie coast of Bussia at any 
 lM)int where tlierc is a linssiiiii estiihlisliiiieiit witliout the permiHsion 
 from the yovornor or cominaiidor. Those were tlie points along the 
 coasts where hunting was most profitable, where the fur-seals were 
 mostly hunted, and where, for that purpose, Kussian establishments 
 were located. 
 
 If the "lishing" mentioned in the treaty of 1S2* uav<.iit seal "hunt- 
 ing," why was this "hunting" or "fishing" forbidden to the people of 
 United States at the places where tlie Russians found it most 
 profitable ? The Indians at tiiat time hunted seals in Bering Sea out- 
 side the limit of ii miles from the coast, and the llussians hunted them 
 on the Pribilof Islands. VVliy should American citizens be excluded 
 from "hunting" seals on shore where the Russians had establishments 
 and yet be adnntted to the right of "fishing" for seals in the sea, 
 "along the coasts" where the Indians "hunted" them? These words, 
 "hunting" and "fishing," have each a natural and clear eignificatior , 
 which is most strongly emphasized in these ukases and in the treaty 
 of 1824 as being entirely distinct, and there is no warrant in the con- 
 text of either of these ukases, or treaties, or in the circumstances that 
 led to t]>f lU, for construing "hunting" and "fishing" as identical or 
 synony ;i:i'..-s terras. 
 
 T! ■• h'*' rion of the treaty of April 5-17, 1824, with Russia was 
 prnc dii ■ I >■ ihe 12th day of .Tanuaiy, 1825. Until then it was not 
 in force. f Oiuiy as .Tu'ie 12, 1824, Baron Tuyll, Russian minister at 
 AVashingtoh, v as instructed by his Government "to the effect that tbc 
 Northwestern Coast of America, along tht -xtaiit of which, by the provi- 
 sions of the conventioji, free trading and hisiiir-fc' are permit ,ed subjects 
 of the Nortli American States, extends from 5-1° 40' northward to 
 Yakutat (Hehring) I5ay." 
 
 The underslanding of the treaty l>y Russia is in accord with the 
 Vv ,('. y rftatod in the note of the nunister of finance to Director Uva- 
 ror .;i A,>ri' t?, 1824, in which it is ordered that "the carrying on of 
 triulv ith foreign vessels arriving there (liarbor of New Archangel, 
 now Htka) establislied legulations <ft one ilvminnicd port^ 
 
 / conference of Russian notables was held in St. Petersburg on July 
 21, 1824, by order of the Enjperor, to" again examine" the effect of th'' 
 treaty of April 5, 1824, ui)on Russian rights and interests, "and also 
 the means whicii the Imperial ministry thinks best calculated to pre- 
 vent all injurious aiul unjust interpretations." • 
 
40 
 
 In the fifth rosohition of this (conference it iscUiimed tliat the treaty 
 secures to Eussiii this advantage, viz, " that after the expiration of 
 ten years the subjects of the United States of America will abstain 
 entirely from visiiiitff the icaters of the North Ainerican counts beyond 
 54° 10' and from fishing and from tradinti there with the native inhabi- 
 tants.^'' 
 
 .The usajority of tlie members of that 'ttee stated as their 
 
 opinion — 
 
 That the treaty of April 5-17 must be ratified, and that for the 
 prevention of any incorrect interpretation of tiiat act den. Baron 
 Tuyll may be instructed at the proper time to make the dechiration 
 mentioned in the draft of the comniunieation read by C«mnt Nessel- 
 rode. 
 
 The minister of iinanco and Acrting State Councillor Drushinin, 
 M'hile admitting the necessity of ratifying the treaty of April H-IT, 
 express and place on record the special opinion hereto annexed in the 
 protocol, tf> the effect that Uaron Tuyll should be instructed at the 
 exchangeof the ratifications of that treaty to stipulate that the right 
 of free hunting and fishing granted by the second article of the said 
 treaty shall extend only from r)4'' 40' to the latitude of (3ross 8(mnd. 
 
 The majority of the members ( f the conunittee could not but observe, 
 on the one hand, that as the Uus.siaii-American (Jomi)aiiv has founded 
 nmny settlements in the said latitude, article 2 of tlie ■ .'aty of Ajnil 
 r>-17, gives it the desired security on this subject; that even if it 
 had simply organized bunting and fishing in those regions it is 
 extremely dcmbtful Avhether' American subjects would undertake the 
 expense necessary for voyages to those Northern latitudes in which 
 they can enjoy their i)rivileg«'.s for only ten years, and whether in tliat 
 case they would expose themselves to daiigi-rous (competition and would 
 visit those waters for liunting and fishing where they had long been 
 anticipated by tiie couipany, as tluue would be little hope for ^hem of 
 indenuiifying thcuiselves for their expenses and losses. 
 
 These proceedings show that the Itussian claim at that time and 
 luuku' their construction of the treaty of April 5-17, 1824, was that the 
 assertion of the exclusive right of fishing and hunting north of 59° 30' 
 was reserved to Russian subject: even during the ]>eriod of the privi- 
 leges that were granted to United Stales citizens under article 4 of tlie 
 treaty, for ten years. 
 
 This attitude of Uussia towards the exclusive right to the fur trade 
 in Bering Sea was maintained in practi e down to 18(57, no one object, 
 ing. The cl(tse care of the fur seal industry on the islands, the poli(;eing 
 of the seas for the protection of fur-bearing animals, the arrest of sus- 
 pected or offending ships, and the basing of civilization and govern- 
 ment on that traffic upon all her coasts and islands in Bering Sea by 
 .ireful legislation, all j)rove that Russia a(lmitt(Hl nocouinuni, or part- 
 nership rights of any people or government in any of those privileges 
 
41 
 
 i 
 ( 
 
 or industries. There is no evidence but the silence of other g-^v- 
 ernments, if any objection to these claims of lUissia existed. 
 
 In every stage of the negotiations l)etween the llnit^id States and Great 
 Britain and in every declaration of right by liussia, up to the exchange 
 of ratificat'iO'is of the treaties of 1824: and 1825, and in every declaration 
 of liussia since that time, the protection and security of her fur tnwle 
 in Bering Sea has been an object of her solicitude. Kvery govern- 
 mental act instituted and performed by Kussia in that connection has 
 been exactly in correspondence with her assertion of doniinion over 
 Bering Sea as a preserve for taking furs through hunting " in the 
 northeastern seas" and "in the gulfs" thereof, and of the Sout!' Sea, 
 or Pacitic Ocean, and along her coast lino, south as well as north of 
 the Aleutian Islands and peninsula. 
 
 It was this assertion of donuniou that the United States and Great 
 Britain yielded to when they, r?i^"ctively, accepted the restrictions 
 upon the rights of " fisl'ing and tradij;g with the natives," which are 
 limited to the period of ten years, in Articles III and IV of the treaty 
 with the United States, and Articles III and VII of the treaty with 
 Great Britain. 
 . In the treaty of 1824 with the United States, Articles III and J.V 
 
 are as follows : 
 
 III. 
 
 It is moreover agreed that, hereafter, there' shall not be formed by 
 the citizens of the United States or under the authority of the said 
 States, any establishment upon the northwest coast of America, nor 
 in any of the islands adjacent to the north of tifty-fonr degrees and 
 forty minutes of north latitude; and that, in jlie same maimer, there 
 shall be none formed by Kusslau subjects or under the authority of 
 Russia, louth of tue same parallel. 
 
 IV. 
 
 It is, nevertheless, understood that during a tern> of ten years, couut- 
 i:>g fioin the signature of the present convention, the ships of both 
 powers, or which belong to their citizens or subjects respectively, may 
 reciprocally frecpiciit, without any hindrance whatever, the interior 
 seas, gulfs, harbors, and creeks, upon the coast nn'iitioned in the pre- 
 ceding articii), iiu the purpose of fishing and trading with the natives 
 of the country. 
 
 In the treaty with Great Britain, Articles III and Vll are as follows: 
 
 III. 
 
 The line of demarkation between the possessions of the High Con- 
 tracting Parties, upon the coast of the continent, and the islands of 
 America to the northwest shall be drawn in the mafiner following: 
 
 Oonuneuciug from the southernmost point of the island called Prince 
 
42 
 
 of Wales Island, whicli point lies in the parallel of flfty-four degrees 
 and forty miautcH north latitude, and between the one hundred and 
 thirty-Hrsf and the one hundred and thirty-tliird degree of west longi- 
 tude (ineridiuii of Greeiiwich), the said line shall aseend to the nortii 
 ah)ng the ehannel called Portland Oliannel, as far as the point of the 
 contiueut whore it striivos the fifty sixth degree of north latitude; from 
 the Inst-inentioiied point tlie line of deinarkation shall follow the sum- 
 mit of the mountains situated parallel to the coast, as far as the point 
 of intersection of tlie one liiindred and forty first degree of west longi- 
 tude (of tlie same meridian); and finally from t!ie said point of inter- 
 section, tlie said meridian line of the one hundred and forty-first degree 
 in its prolongation as far as the fiozen ocean, shall form the limit 
 between the Itussian and JJritish possessions on the continent of Amer- 
 ica to the northwest. 
 
 VII. 
 
 It is also understood that for the space of ten years from the signa- 
 ture of the i>re8eut convention the vessels of the two i)owers, or those 
 belonging to their respective subjects, shall mutimlly be at liberty to 
 frequent, witl.out any hindrance whatever, all the inland seas, gulfs, 
 havens, and creeks on the coast mentioned in Article III. for the pur- 
 pose t>f fishing and of trading with the natives. 
 
 If Great Britain had understood that the reaty of 1824 with the 
 United States gave to tlieir citizens the perpetual right of fishing and 
 V 4» 'iig with the natives in '• interior seas, gulfs, harbors, and creeks, 
 upon the coast" — "the northwest coast of America'* — and "in the 
 islands adjaeent " thereto, " to the north of 54° 40' north latitude," that 
 Government would not have accepted a limitation of this right td a 
 period of ten years. Under such a construction of the treaty of 1824 
 with the United States it would have been sheer folly for Great Britain to 
 have given Eussia the same privilege for ten years from Prince of Wales 
 Island, along Portland Channel up to 5G° of north latitude, for Great 
 Britain asserted, with absolute confidence, that Kussia would not unvke 
 terms with her that were less liberal than she had made with the United 
 States. 
 
 If Russia yielded her dominion over her preserve of fur-seal hunting 
 in periietuity to the United Stiites, and then to Great Britain, what 
 «-ould have been the necessity that prompted them to insert these by- 
 provisions for the same rights for a period of ten years in their 
 treaties? It is too clear f4)r disputation that Russia intended to 
 yield these rights, reciprocally, for ten years, because she was iiot will- 
 ing that they should extend beyond that j)eriod, except at her option. 
 A more forcible statement of the claim of Russia to the exclusive right 
 of fishing and trading with the natives in those waters could not well 
 have been made, 
 
 X 
 
 \l 
 
48 
 
 ./fc- 
 
 1 
 
 Yet even these concessions did not include the right of " huntintf " fur- 
 bearing animals, tchirh liuMHimras never mh-cd to yield. For these pur- 
 poses her (loniiuion over Bering Sea and all the gulfs, bays, inland 
 seas, and creeks on all her coasts was reserved. 
 
 The 'rights of whaling, fishing, hunting, and trading, conducting 
 commerce and navigation, are all referred to in these ukases and 
 tr.'iities as separate and distinct rights. In their nature they ai-e 
 <listinct, and none of thcni includes the others, though they are closely 
 relateil. When e:'.;;Ii of these rights is expressly and distinctively 
 mentioned in one i)art of these treaties and ukases, as a substantive 
 right or pursuit, it is not a proper construction of these solemn instru 
 ments to say that those rights are intended to be included in those parts 
 where they are not mentioned, or that "hunting" is telescoped into 
 "fishing" and " ftsliing" into " wluiling" and all of them into "navi- 
 ation,^ or that the use of that word or the assertion of that right 
 includes all these other rights. 
 
 Dominion of HeringSea could have been exercised for the exclusive 
 enjoyment and prote<!tion of either of those rights, without including 
 any other, though, as in the case of tlie 100 miles limit, which was a 
 modification of t" claim of the exclusive right of navigation, the full 
 exertion of th.iL power would have dosed that sea to all navigators 
 whether they were whalers, fishermen, or hunters. The ukaee of 1701) 
 asserted this dominion, so as to protect the right of "hunting in the 
 northeastern seas" and of tniding with the natives, and no other ukase 
 or treaty ever yielded the exi-lusive right of hunting, under any con- 
 dition, or the right of fishing to any other extent, than under the ten 
 years limit provided in the above-quoted articles of those treaties of 
 1824 and ISlio. 
 
 Dominion in one country over land or sea, is entirely consistent 
 with easement or privilege in another. 
 
 Navigation is a universal easement to be enjoyed by all vessels sail- 
 ing on lawful voyages upon the high seas, but it has no element of 
 dominion to support it, except within territorial waters. Fishing, law- 
 fully coriducted, is also an easement equally universal, and the right 
 is also ex(fl;U8ive in territorial waters. 
 
 The dominion that i)rotect8 fisheries is more exclusive than that 
 which limits the free right of navigation. Within territorial limits, 
 Ashmg in a pnyperty right, while navigation Avithin those limits is, for 
 innocent purposes, an easement that no nation denies to another. 
 
 i V , 
 HI' 1 
 
 i 
 
 : II 
 
44 
 
 Hunting in an easement that is still more under tlio control of national 
 dbuiinioii, becauHO it is fonducted with lirearins and is, therefore, a 
 more dangeious practice wliere the people are savages or are rebel- 
 lious, because it furiiislies a pretext for introducing among them arms 
 and ammunition. And luinting and trapping are ditt'erent ]mr8uits. 
 Russia had powerful inducements for keeping hunting on land or sea 
 and trading witli the natives under her exclusive dominion. 
 
 What is dominion! Sir Robert Phillimore, in liis "Commentaries 
 on International Law, Vol.1, p. tHHi, Ed. 1871, says : "Dtmiinionis the 
 lUllest riglit wliich ciin be exercised over a thing : the riyht of property, 
 HO ctiUedi" On page 'J07 he says : "As dominion is acquired by the com- 
 binatiou of the two elements oifaet and intention, so, by the dissolution 
 of these elements, or by the contrary fact and intention, it may be lost 
 or extinguished." 
 
 On page 274 he says : 
 
 But when occupation by use and settlement ha« followed upon dis- 
 covery, it is a clear juoposition of law that there exists tliat corporal 
 jKissession {rorporaliH quaedam posHensio (a) «lctentioeorporiiHn (b) ) which 
 confers-an exchisive title upon the occapant, and the dominium emi- 
 nenH, as Jurists speak, upon the country whose agent lie is. 
 
 On page 285 lie further says : 
 
 CCX Lll. Tlie nature of occupation is not confined to any one class or 
 description ; it must be a beneficial use and occupation (le travail d' ap- 
 propriation); but it nuiy be by a settlement for the purpose of prose- 
 cuting a particular trade, sucli as a fishery, or tVu- working mines, or 
 pastoral occupations, as well as agriculture, though Bynkershoek is cor- 
 rect in saying, t'H/<«»« utique et cura agri possessionem quam maxime 
 indicat. 
 
 Vattel justly niaintains that the pastoral occupation of the Arabs 
 entitled, them to the exclusive possession of the regions which they 
 inhabit. 
 
 It has been truly observed that, agreeably to this rule the North 
 Ameri<;an Indiiins would have been entitled to have excluded the British 
 fur-traders from their hunting grounds; and not having done so, the 
 latter must be considered as having been admitted to a joint occujta- 
 ticm of the territory, and thus to have become invested with a similar 
 right of excluding strangers from such portions of the country as their 
 own ii Idstrial ojterations pervade. 
 
 CC VjIII. A similar settlement was founded by the British and 
 Rassia.'i fur com])anies in North America. 
 
 The chief portion ot the Oregon Territory is valuable sc^ly for the 
 fur-bearing animals which it produces. Various establishments in dif- 
 ferent parts of this Territory organized a system for securing the preser- 
 vation of these animals, and exercised for these purposes a control over 
 the native population. This was rightly contended *o be tlie only exer- 
 cise of proprietary right of which these particular regions at that time 
 
 % 
 
 V-' 
 
■ipi 
 
 •t. 
 
 45 
 
 were susceptible, and to work tluit a henejicial use was made of tlie 
 wliole Territory by tbe occupants. 
 
 CCXLIV". It should be mentioiiod tliat the practice of nations in 
 both hemispheres is to acknowledge in titvor of any civilized nation 
 making a settlement in an uncivilized country a right of inei'nqttion 
 of the contifiKoiis territory from the native inliabitants as against any 
 other civilized nations. It is a right claimed by (ireat Hritain with 
 respect to her Australian settlements, especially New Zealand; and by 
 the United States of America with resjiect to the Indians in their back 
 States. 
 
 In the claim of Russia to the exclusive "hunting in the Northeastern 
 seas," to say nothing of the rights of fishery and navigation, as such 
 rights are deflnidinthe international law, there is enough in the highest 
 legal authority to sui)port thefimndation of the right, which is the hand- 
 maiden of peace, naniely, the right which is "a nu)de ofoiiginal acqui- 
 sition which is effected by the operation of time," and is "what the 
 English and French Jurists term j)rescription." 
 
 On page 2J»8,Vol. 1, Sir liobert rhillimore saya: 
 
 The doctrine of immemorial prescription is, from the very necessity 
 of the case, indisp«nsable in the system of public; law. A(;cordingly 
 we find it mentioned more than on*-" in the constitutions of the ancient 
 German Empire and as a mode of acquiring ]mblic rights. 
 
 On pages 21»i> and 300 the same author says: 
 
 Having discussed the position of prescrii)tion in the systems of ])ri 
 vate and i)ubli(! law we now api>roa(!h the consideration of a matter, 
 holden by the master mind of (irotins to be one of no nu'an difficulty, 
 namely, international prescription. Does there arise between nations, 
 as b('twe(!n individimls, a presumption from long possession of a terri- 
 tory or of a right which must be consideied as a h'gitimate source of 
 international acquisition ? 
 
 In seeking an answer to this important question it is necessary to 
 keep clear of all subtle discjuisitions with which this subject has been 
 perplexed; whether, for instance, itbe the creatureof natural or civil law, 
 or whether it mu,st be always founded ui)on a presumption of voluntary 
 abandonment or dc eliction by the foi mer owner. Thiough these meta- 
 physical labyrinths we cannot find a clue for questions of international 
 jurisi»riKlence. The effect of the Inpne of lime upon the property and 
 right of one nation relatively to another is the real subject for our <M>n- 
 sideration. And if this be borne steadily in mind it will be found, on 
 the one hand, in the Idghest degree irrational to deny that prescripticm 
 is a legitimate meai^ of international acquisition ; and it will, on the 
 other hand, be foufid both inexpedient and impracticable to attemi»t to 
 define the exact period within wlii<!h it can be said to have become 
 establislu^— or, in other words, to settle the pn'cise limitation of time 
 whi<'h gi^i validity to the title of naticmal i)ossession8. 
 
 Again, on pages .'iOl, 302, and 303, he says: 
 
 CCLVIII. Itistrue that some later writers on the law of nations have 
 denied that the doctrine of prescription has any place in the system of 
 international law. But their opinion is overwhelmed by authority, at 
 variance with practice and usage, and inconsistent with the reason of 
 the thing. Grotius, Heiueccius, Wolff, Mably, Vattel, liuthertbrth, 
 
 
4» 
 
 Wheaton, and Burke constitute a greatly prejwuderatiiig array of 
 authorities, both as to uuniber iind weight, ui>oii tlie opposite side. 
 
 The practiee of nations, it is not denied, proeeeds upon the presump- 
 tion of lu-escripticni, wlienevertliere is scope for the nduiission of tliatdoc- 
 triiie. Tlie same reason of the tiling which intioduced this priuciide 
 into tlie civil. jurisprudence of every country, in order to quiet ])osseB- 
 sion, give security to property, stop litigation, and prevent a state of 
 continued bad teeliug and hostdity between individuals, is etjually 
 |>owerfuI to introduce it, for tiie same purpose, into the juri8i)rudence 
 which regulat«'8 the intercourse of one society with another, miire 
 e8i)ecially when it is reniendiered that war represents between States 
 litigation between individuals. It is very strange that the fact that 
 most nations p<»s8e8s in their own municipal codes a positive rule of 
 law upon the subject; has been used as an argument that the general 
 doctrine has no foundation in international law. 
 
 It is adnutted, in<l(^ed, that immemorial prescription constitutes a 
 good title to national possession; but this is a perfectly nugatory 
 admission, il', as it is sometimes explained, it means only that a State 
 which has accpiired originally by a bad title, may keep possession of 
 its acquisition as against a State which has no better title. If it had 
 been merely alleged that the exact number of years prtscribed by the 
 Roman law, or by the municipal institute of any particuiar-uation, as 
 necessary to constitute ordinary ])rescri])tions, is not binding in the 
 affairs of nations, the ])Osition would bo true. It is, perhaps, the 
 difliculty attending the application to nations of this technical pait of 
 the doctrine which has induced certain writer's to deny it altogether; 
 but incorrectly, for, whatever the necessary lapse of time may be, there 
 unquestionably is a lapse of time after which one State is (entitled to 
 exclude every other from the property of which it is in actual jjosses- 
 sion. In other'words, there is an international i)re8cription, whether 
 it be caded immemorial possession or by any other name. The peace 
 of the world, the highest and best interests of humanity, the fulfillment 
 of the ends for which States exist, require that this doctrine be firmly 
 incorporated in the code of international law. 
 
 Will this tribvnal nhrinkfrom the recognition of thix doctrine^ note that 
 an opportvitity, ilistinctly (fiven, vails for a firm declaration f 
 
 The importance of prescription as a basis of title, or right, to any 
 
 property, or exc^lusive privilege, is thus stated by Sir Robert Philli- 
 
 more (p. 305) : 
 
 But tlsat prescription is the main pillar upon which the security of 
 national property and peace depends, is as incontrovertable a proposi- 
 tion as that the property and pesice of individuals rest upon the same 
 doctri'.ie. 
 
 To these remarks should be added the observafion of another great 
 modern jurist: 
 
 The general consent of mankind has established the priSciplc that 
 long and uninterrupted possession by one nation excludes the claim of 
 every other. Whether this general <'onsent be considered as an implied 
 contract or as positive law, all nations are equally bound by it, since 
 all are parties to it, since none can safely disregard it without impugn- 
 ing its own title to its possessions, and since it is founded upon mutual 
 utility, and tends to promote the general welfare of mankind. (Wheaton . ) 
 
 f^. 
 
 ^ 
 
 masm 
 
T 
 
 ^r'^ 
 
 il 
 
 47 
 
 In onci of those trwatisca wlildi show Iiow deeply the mind of the 
 writer was iiiibuud with tlie priiiciplus of }i;eneral Jiirisprudeiute, Mr. 
 liurke UHcs tiie tolh)wiiij; adiiiirabli' expressions: 
 
 If it were permitted to ar^ue with power, might one not asl; one 
 of thes(^ (rentlenien wlietlier it wiuihl not be more natnnil instead of 
 wantonly mooting; these (piestions eonceniin^ tlieir property, as if it 
 were an e.veieisr in taw, to found it on tin* solid rock of prest-iiption f 
 Tlie soundest, the most {general, tlie most reeofjnizcd title Itetwe^'U man 
 and man that is known in municipal or puhlie.jurisiaudenee; a title in 
 which not arbitrary histitutions. but tiie eternal order of things tfives 
 jnd<j;ment; a title whieh is not the cieature, Imt the master of positive 
 law; n (Hie irhich thoHffh not fixed in its ttrm, is rooted in its itrinripleH 
 in the law of nnture itself, and is indeed the original ^rouml of all 
 known property; for all property in soil will always i)e traced back to 
 that source, and will rest there. • • • These {gentlemen, for they 
 have lawyers amongst them, know as well as I that in Kn^iland we 
 have always a preseiiption or limitation, us nil uations have af/ttinut 
 each other. * * * All titles terminate in pres<;ription; in whieh 
 (differently from time in the fabulous instances) the son devours the 
 father, and the last prescription eats np all the former. 
 
 These citations from very eminent British authority establish the 
 rifjht of a {fov«'rnment i»y i>res«'ription, based on oceupan<!y and claim 
 of title, to any (lomiuitnK on land or sea, of anythiiif^ in the nature of 
 property, whether corporeal, or incorporeal, as llrndy as if the rijjht 
 were established by j^rant or as the result of coinpiest or cession. 
 
 The true doctrine of the international law is stated in the extract 
 above <iuoted from VVheat<tn (Vol. 1 p. li()7) that "The general con- 
 sent of mankind has established the ]>rinciple that iong and uninter- 
 rupted possession by one nation excludes the claim of every other." 
 
 This rule is fully applicable to the dominion of Russia over the fur 
 industry and trade in Bering Sea, which was never yielded or trans- 
 ferred to any government until it was sold to the United States. 
 
 Dominion also includes the right of a government to tlie soil beneath 
 the territorial and ail.jaeent waters. The claim of territorial waters 
 over an area of the sea that is clearly demarked by land boundaries, 
 though not entirely inclosed by the land is, a valid exercise of power 
 by the government that owns the land which forms the coasts and 
 islands that define the boundary. It nniy not be suftieient to destroy 
 the easements that other nations may have in those waters, yet, it ia 
 dominion or*ownership of the Uind beneath those waters, and it is clearly 
 sufficient to support the municipal jtirisdirtii>ii of the government over 
 its own citizens, and, also, to support a claim to any pearl or oyster beds 
 beneath such an area of waters, or any mines that may be fiMind there. 
 
 Such a claim and assertion of ownership may not be suflBcient reason 
 
ISSSi 
 
 48 
 
 for (lenyiug to otlier nationo in thut urea the privilege of nuvigatiou 
 or tlsliery, but that fact does not negative the (lomiiiioii tliat may be 
 tliU8 lawfully exerciHed. To illiiHtnite: If an island slionld be throwi. 
 up by volcjinie action or the action of the water within tlie limits of 
 Bering Sea it would belong to tlie United States, without first discovery 
 or (M'cupatiim, in virtue <>f its (huninion already exercised over that sea. 
 And, so, if it became necessary that the United States should i-.lose 
 Uuimak Tass with obstruction, for any purpose, even to the great 
 inconvenience of navigators or fishermen, the question of the right to 
 do this would be resolved, under the interiiationiil law, by the other 
 (|uestioii whether the easement of navigation through that pass was of 
 such imjtortiince to the world that the Owner of the soil beneath the 
 water would, in justice, be compelled to yield its rights. 
 
 In all such (uises, where the exercise of the privilege of navigation, 
 fishery, or other easement is injuiions to the owner of the soil above 
 which it is exercised, the privilege must yield to tln! higher right of the 
 dominion of the owner of the soil. 
 
 The right of dominion in a sea like Bering Sea or the sea of Okhotsk 
 does not depend on its being separated from water communication with 
 the ocean. If the configuratiou of the land surrounding it is such as 
 to make it necessary to the i)eculiar commerce of the country within 
 which it is embayed, or to the defense of such country, or to the proper 
 administration of its powers of government over its own people, it is a 
 right ex debito justitia; that there should be dominitm over such sea. 
 
 This is the right that is now the foundation of the exclusive right of 
 
 several nations to dominion over seas that are not inclosed by the land 
 
 on their shores, as stated by Sir Uobert Phillimore, page 225, as follows: 
 
 Tlie exclusive right of the Britisli Crown vo the Bristol Channel, to 
 the channel between Ireland and Great Britain (Mare Hibernicnm, 
 Canal de St. George), and to the'<!hannel between Scotland and Ire- 
 land is uncontested. I'retty much (^»n the same category are the three 
 straits forming the entrance to the Baltic, the (ireat and the Little 
 Belt, and the Soinwi, which belong to the Crown of Denmark; the 
 Straits of Messina [il faro M Mexsina, f return Sicvhim), once belonging 
 to the kingdom ot the Two Sicilies; the straits leading to the Black 
 Sea, the Dardanelles and Hellespont; theThracian Bospliorus, belong- 
 ing to the Turkish Empire.. To narrow seas which flow between 
 separate portions of the same kingdom, like the Danish and Turkish 
 Straits, as to other seas conunou to all nations, like the Straits of 
 Messitiaand, perhaps the 9t. (leorge's Channel, the <locti'ine o( innocent 
 line is, according to Vattel^ strictly applicable. 
 
 In the case of the seas here mentioned other iiations have the I'ight 
 
 to the innocent use of them, but it must rest with the nation claiming 
 
 Ww^^^^t^^l^ 
 
mmimamfme^'m 
 
 49 
 
 them to iJctermlne ichether tln' umv that In maile of them by another nntion is 
 ititMenit. Tliis is all tliat tlic United States <-laiin of "(loiniiiiou'' 
 over Heriiifj; Sea in respect to llie [troteetion and preservation of the 
 fur-seals resorting- to tliose waters and tlie industry in tlie ju'lts and 
 oil so lon}j established on their islands, whieli have n«> value for any 
 other industrial purpose. 
 
 Tliia claim, when these waters arc invaded l»,v a destructive inetluMl 
 of hunting the seals, is a rijflit of self preservaticui. Tiuit right is thus 
 stated by Sir Robert Philliinore: 
 
 CCX. The right of self ])reservation, by that defense which |»revents, 
 as well as that which re|«'ls, attack, is the next internatioind right 
 which presents itself for discussion, and which, it wil' iic seen, may 
 under certain circumstances and to a certain extent n tljjy the right 
 of territorial inviidabdity. 
 
 (JCXI. The right of self-prescrvatiiui is the lirst law of nations as it 
 is of individuals. A society which is not in a condition to repel aggres- 
 sion from witlumt is wanting in its print-ipal duty to the niendiers of 
 which it is composed and to tlu^ chief end of its institution. 
 
 All means wiiich do not att'ect tlu^ independence of other nations 
 are lawful for this end. No nation has a right to prescribe to anoiher 
 what these means shall be, or to reipiire any a»M'ount of her conduct in 
 .this respect. 
 
 CCX 1 1. The means by which a nation usually provides for her safety 
 are: (I) I$y alliances with other States; (2) i>y luaiiitainiug a military 
 and naval force; and (.?) by erecting fortifications and taking measures 
 of the like kind within her own dominions. Her full lilierty in this 
 respect can not as a general ])rinciple of international law be tio boldly 
 announced or too tirudy nuiintain(>d, tliough some modilication of it 
 appears to flow from the e(pnil and corres]»onding rights of other 
 nations, or at least to be re(pnred for the sake of the general welfare and 
 peace of the world. 
 
 The United States have the right to treat the sudden and dangerous 
 increase of the number of vessels engaged and the nund)er of seals 
 taken in pelagic hunting as an impending threat of the destruction of 
 the seal herd that habitually resorts tt) their islands. These appre- 
 hensions are more directly excited, because they are actually Justified 
 by the attack made on the seal herd, than those which are regarded 
 as a just cause of war in relation to armaments by neighboring imtionii. 
 Of these Sir Robert Phillimore says, on page 2;"»3: 
 
 CCXIII. Armaments suddenly increased to an extraordinary amount 
 are calculated to alarm other nations whose liberty they api)ear, more 
 or le^s acctH^ding to the circumstances of the^case, to menace. 
 
 In the seizure of ships within the eastevn waters of Bering Sea the 
 
 United States resisted, in the beginning, a raid upon her industry which 
 
 suddenly threatened its destruction, and this resistance, which was 
 
 timely and necessary, was made withiu her own dominion — a domin- 
 
 11495 M 4 
 
 I 
 
V'&fSf'''. 
 
 smsftj 
 
 50 
 
 ion established by prpscription as to the fpr-soal indnstry, and which 
 also has l''»i' it8 support tlic princiiyk's of the international law which 
 apply to the IJritish waters, above <iuoted, and to other seas that are 
 not entirely inclosed by the land mentioned in the following ({uotations 
 from Phillimore, vol. 1 p. 24.'5: 
 
 CCV. With respect to seas entirely inclosed by the land, so as to 
 constitute a salt-water lake (niaria claiisanuers feunees, encloses: IMn- 
 neumeer, {jeschlossene innere Meere), tlic j,ener. i presumption of lav/ is 
 that they belonj!; to the surrounding ten itory or territories in as full 
 and complete manner as a fresli water laivc. The Caspian and Black 
 seas naturally belouft^ to this class. Upon tlie former sea liussia had 
 by treaty with Persia, the exclusive right of navigation with ships of 
 war, an<i by the < -'atyof the Dardaiu'lies the 1 Mack Sea was practically 
 <viii,'ined to liussian and Turkisli ships t)f war. lUit by the treaty of 
 Paris of lS."i(} this sea is neutralized and open to the merchant ships of 
 ail nations and closed to snips of war of any State. 
 
 (HJVI. There is another clas^5 of inclosed seas to which the same 
 rules of law are applicable — seas wliicii are land-locked, t'rmgh not 
 entirely surrounded by land. (H" these, that great inlet Avhich wishes 
 the coast of Denmark, Sweden, l{ussia, and I'russia, tiie Ostsee i.s the 
 (lermans call it, the I>altic Sea acctuding to its usual apx)ellation, is 
 the }»rincipal. 
 
 J3ut th«'. right of self-preservation of the United i-States, in r(>spect to 
 the fur seal industry, naturally and without reference to the actual 
 property in the animals, extends beyond her donjiuion. As to sixeh 
 rights Phillimore says: 
 
 OCX IV. We have hitherto considered what measures a nation is 
 entitled to take for the preservation of her safety withi'i her own 
 dominions. It mav hap!)eM that tlie same riglit may warrant her in 
 extending precaiitioiuuy measures n-ithoui these limits and even in 
 transgressing the borders of her iieiglihor's territory. For irifcernational 
 law considers the riglit of se]f-preKe:•^■ation as prior and j)aramouut 
 to that of territorial inviolability, and, where they cimtiict, justifies 
 the maintenance <tf the former at the expense of the latter right. 
 
 If thi.s rigiit of self-preservation is prior and paramount to territo- 
 rial inviolability, it must be superior to any right or easement of fishing 
 and hunting, and better entitled to the protection of international law. 
 The necessity for protecting this right is now as manifest and indis- 
 putable beyond Bering h'ea as within its limits. When a source of 
 revenue or a necessary instrumentality of government is attacked, or 
 seriously threatened, the oiicasitui arises for the interposition of the 
 right of self-defense. 
 
 The configuration of Bering Sea, its coasts and islands, is sn<!h as to 
 give it an excei»ti<inal relation to the outside world. It is inclosed on 
 all sides by land and frozen waters, except through the passes of (;ho 
 
 k 
 
 m 
 
V 
 
 mmm 
 
 I- 
 
 61 
 
 Alcitian and Kamtschatkan islands. A blocLiue of the Aloutiau 
 passes would dose every i)ort in Bering- Sea and, wlieio a viatioii may 
 be thus locked in, it is not too much to claim that it has the right of 
 dominion over such interior waters r.nd, for purposes of self-preserva- 
 tion, to lock other nations out. 
 
 It is a. just riyhttliat is thus ciainied by the United States, and when 
 it is used for purposes of self-preservatio;» it is sustained by inter- 
 national law. 
 
 1 it» 
 
 i 
 
J I W i ll!MJ%-L ' L.!.. ' l.J. i f | WL.I| i l i JJ i .l".tU^ ii ...JBAa BBI 
 
 t 
 
 I ! 
 
 WHEN POINT FIVE OF ARTICLE VI OF THE TKEATY WAS UNDER CON- 
 SIDERATION SENATOR MORGAN DELIVERED THE FOLLOWING 
 OPINION: 
 
 T beg leave to submit the followiiij;' additional statements and argu- 
 ments which I think are siifHcient t«» establisli that the i)rescriptive 
 rights of Russia and the United States, in respect of the fur-seals that 
 habitually resort to Bering Sea, are to be safely based ii])on the continued 
 and un(iuestioned usage of both c(Uintries, as well as upon the peculiar 
 characteristics of these animals. 
 
 And I will endeavor to state the reasons that compel me fb hold, on 
 these and some other grounds, that the United States have a right 
 of property and protection in these aitimals. 
 
 I have already presented to flie tribunal, on a previous day, the views 
 I entertain as to the true histoiy of the claims set up by Russia relat- 
 ing to the exclusive right to control and protect the fur industry in 
 Bering Sea, and have endeavored to state generally the foundations in 
 law and fact upon which Uussia rested her claims. I will now again 
 briefly review some of those facts as I believe they exist, and will refer 
 lo others, and endeavor to connect them with the doctrines of the laAV 
 which t thiidi are clearly applicable to establish a right of property in 
 the fur-seals that is well founded, both as a riglit by prescription and 
 a rigiit growijig out of the usefnl and donuwtic nature of these animals. 
 
 The Hussian (lovernment exercised tiic riglii, to own and control tlio 
 seals that resorted to Bering Sea, and made temporary grants to its 
 subjects of the right to take them in those waters. 
 
 It may be said that tliis was an assumption of riglit on the part of 
 
 Russia not supported by any rule of international law. It was not 
 
 more distinctly an assumption of right than was tlie title to the islands, 
 
 based on the discovery of tliem by a IJussian subjett. In b(»th eases 
 
 a initive sovereignty was displaced to make room for tlie claims of 
 
 Rp.ssia, bocked by sujterior force. The i)rocos8esofai)[»ropriation were 
 
 the same in reference to the seals and seal llsheries as they were in 
 52 
 
 ii 
 
t 
 
 u 
 
 53 
 
 refertMice to the islaiuls, viz, discovery, claim, occupatiOii, and devp^op- 
 iiient. Exclusive use and the acquiescence of other civilized i)o\vers 
 were the attendant facts tliat established the right of property in both 
 cases. 
 
 As all international law grows out of custom and has no other root, 
 it can not be denied that the right of Kussia to appropriate and protect 
 this herd of fur-seals has been established by custom and iaaintai;ied 
 by constant and exclusive use. Certainly no other ^lation in its sov- 
 ereign character has clainieu these seals or denied tlie riglit of liussia 
 to their exclusive ownership. W'iien (Jreat Britain, in 181i5, was treat- 
 ing with Russia for an open sea, free navigation, and the rights of fish- 
 ing iu those waters, she set up no claim to a common riglit (»f hunting 
 seals or fur-bearing animals in those regions. Russia went on renevving 
 her charters for these purposes to her subjects, and (neat Britain stood 
 by and made no asNCitioii o( sncii riglit for iicrsclt or her tubjccts for 
 about a half century. Nearly a century elapsed after the colonization 
 of the islands by Russia before any British subject opposed the claim 
 of Russia and the United States, her vendee, to a i)r(»|)ert,v i iglitiu the 
 seals that habitually resorted to Bering Sea. Tli are few custom- 
 ary riglits that have a surer foundation in usage or up 'U tlic doctrine 
 of accpiiescence tliau the world has accorded to Russia in rest ■t of 
 the riglit to the fur-seals resorting to Uering Sea. 
 
 The long acquiescence of Great Britain in this claim of ownershii) in 
 seals by Russia was not only without objection, j)rotest, en- diplomatic 
 suggestion to the contrary, but that (iovernment has encouraged her 
 own people to base an extensive and valuable industry upon the 
 niaterial provided by Russia and regularly su])plied to them from her 
 fur-soal husbandry. 
 
 It is now too late lor (heat Britain to say that Russiaand the United 
 States mistook the law of nations \vi;cn tliey set up rights of property, 
 in fur-seals. Ninety years of acquietccnce attended with no harm to 
 British people or interests, but with great benefits to both, is time 
 enough in which to establish the consent ofClreat Jhitain that live 
 seals resorting to Bering Sea aie jiroiieity, as much so as dead ones are 
 that are slain by British subjects. 15ut the accpiiescence of Great 
 Britain is not needed to establish i he proposition that there is property 
 in live seals and that it exists nttioiie noli. 
 
 I 
 
B^T^iWi i wi Um 
 
 mtmmma 
 
 54 
 
 * ;. 
 
 THE THIUD <iUE.«TiO]V IN ARTICLE I OF THE TUEATY SEEMS TO HAVE 
 
 HEEN AVOIDED, 
 
 Ouo ol'the tlirofc questions subiiiitted to iubitratioii in Article I is so 
 (lepeiideut for its decisiou upon the question of proijerty in fur-seals 
 that it sliould be considered in connection with it. It is concerning 
 '»tlie rights of th<-' citizens and subjects of either country as regards 
 the taking of fur-seal in or resorting to said waters." The founda- 
 tion of such a right could be none other than a right of property in 
 the seals when captured or killed in uonterritorial waters — a right 
 acquired by the capture of the seal, dead or alive. The flnal analysis 
 of this (juestion is whether a right of property can attach to a living 
 seal that is found swimming in the ocean. This question is noA.iierc 
 presented in the treaty or alluded to as a question to be submitted to 
 the Arbitrators, except in the tirst article. It is the postulate stated 
 by Great Britain in these contentions, around which every fact and 
 every principle of law asserted by Great JJritain is grouped. 
 
 If Jiritish subjects have the right of taking fur-seals in, or habitiuiUy 
 resorting to, Bering Sea, it makes little ditterence what the rights of 
 the United States may be, for they would amount to nothing prac- 
 tically, and, in theory, such a right would destroy all the grounds 
 on which the United States could rest a claim to the right of protect- 
 ing the seals outside the ordinary 3-mile limit. 
 
 This question is submitted for decision in such broad form as to 
 include "the rights of the citizens or subjects of rjther country, as 
 regards the taking of fur-seals in, or habitually i (-sorting to said 
 waters." 
 
 The statutes of the United States, following the unqualified asser- 
 tions of Russia while she was owner of these islands, assert the owner- 
 ship of the United States in the fur-seals found in the Bering Sea, and 
 base upon that ownership a governmental industry of great value to 
 the revenues. They punisli with sev«'rity any person who destroys 
 this property or ijiterferes with tiie agents or lessees of the I ,ited 
 States in its numagement, and they provide for the lease, to theii own 
 citizens under careful regulations, of the privilege of taking seals. 
 
 Great Britain has not assumed and could not assume such u relation 
 as that to the fur-seals in, or resorting to, Bering Sea, because it (!an 
 not claim them rafiouc soli. It sets up no claim of ownership in the 
 fur-seals, but denies that ownership in them is jiossible until the ani- 
 mals have been captured or killed. 
 
 U 
 
 I 
 
55 
 
 u 
 
 The respective '^nntries occupy, therefore, very dittoreiitrehitions to 
 this subject. A (le«;Iariition of the right in favor of tlie citizens of the 
 United States to take fur-seals in Bering Sea, if made by thii, tribunal, 
 is a dechiration tliat the statutes of the Tnited States that tbibid 8u«;li 
 talking are of no validity and shonhl be repeah'd, while the muna 
 declaration when made in favor of IJritisli subjects is in perfect accord 
 ,. ith the laws, policy, and contentions of that country. 
 
 This obvious impediment to a decision as to the right of pelagic seal- 
 ing in Bering Sea, under which the i»ower of the ITnited States over her 
 own citizens would be called in <iuestion, contiiies tlie inciuiry to the 
 simple proposition whether tli-j- I'nited States have a property in the 
 seals in, or habitually resorting to lieriug Sea, and the nature of that 
 property. 
 
 The crucial test of the right of tlu? United Statesto property in fur- 
 seals that resort to Jeering Sea, whetlier that right imi)lies a pnlect 
 ownership of the seals or an interest in the usufruct of the herd fi>. the 
 sui)port of a legitinnite and useful industry, is nuule by the treat',' to 
 turn upon the question whetlier IJritish subje(!ts have the u.irestvicted 
 right to take seals on the high seas as free-swimming animals that are 
 ferw naturiv. This, therefore, is the main question in the case, and 
 draws within its influence every other question presented to I he Tribu- 
 nal of Arbitration, except those questions that ralate peculiarly to 
 Bering Sea, I have already dis«-usse(l. 
 
 This claim cf right (o take fur seals on tlie hii'.li seas is asserted as a 
 private and personal right of every person who ^oc upon the high seas 
 uniibi ?. recognized natioinil tiag; and tlie employniv-nt of the flag for 
 that purpose is not recpiired to belegitiiinited by a license to lish. 
 
 No government has asserted, m ever will assert, the riglit, as a gov- 
 ernment, to employ its sovereign powers, or its war fleets, in this busi- 
 ness, for the pnrpose of increasing its revenues. Siuih conduct by a 
 government would be regarded as a 'lisrepiitable invasion of the high 
 seas for its own aggrandizement and, wlieii it should come in conflict 
 with the interests of tlie people ot other countries, the invasion would 
 be regarded as a national olt'eiise. 
 
 The case would be quite di Here it il the purpose of the government 
 was to protect a. bona tide claim oi ;ti(iperty in seals, against destruc- 
 tion. If in ([uest of seals to wliicli no claim of proix'rty was asserted by 
 a government it should send out its fleets to gather revenue, or to 
 destroy such property, claimed by another government, tlie necessary 
 
 #.i 
 
O^K 
 
 66 
 
 HI 
 
 result would be a disturbance of the peace and probably a hostile col- 
 lision. The case is altered in degree, but not in its nature, when a 
 government sustains and adopts the rights of its peojile to destroy a 
 property or industry claimed by another nation. If such government 
 could not, under the usage of nations or Just principles of interna- 
 tional law, thus enrich its treasury, it is difhcult to see on what prin- 
 ciple it could suppo^'t its ])eople in such conduct for their private gain. 
 In either case the sentiment of justice entertained by the civilized 
 nations would sustain the power that, in good faith, claimed the right 
 to own and protect the fur seals for the benelit of the commerce of the 
 world, rather than the nation tliat denied the right of property in 
 seals, until they are captured and killed, and claimed the right to make 
 property of them only by indiscriminate and destructive slaughter. 
 
 In this treaty, and in all the diplomatic contentions that have led to 
 its conclusion, both Governments have admitted that property in seals 
 may be acquired, protected, and preserved, at least to the extent of 
 protecting and preserving them by their concurrent regulations, and 
 they have agreed to apply the> e conceded facts to certain seals that 
 habitually resort to the waters of Bering Sea. Tliese questions are vir- 
 tually removed from the field of doubt or disputation by the terms 
 of the treaty under which the Tribunal of Arbiti-ation is acting. 
 
 Great Britain now asserts that the property iu seals ca'\ be acquired 
 only by capture, which, under the practice of pelagic hunting, as con- 
 ducted by its subjects, means that such property can be acquired oidy 
 by killing the animals. 
 
 The United States asserts that property in seals may bt acijuired 
 while they live, and without actual capture. As to the right of prop- 
 erty in the individual animals, this is the only form of issue that is 
 joined between the parties to this treaty. 
 
 As to the proper protection and preservation of seal life to which 
 the Governments are both solemnly pledged in this treaty Great 
 Britain contends that taking them at sea is a better method than 
 taking them on laud, and is, therefore, the proper method; while the 
 United States claim that the only method of taking seals that can 
 properly protect them is by selecting the animals for slaughter, and 
 that this can be done on the land and can uc»t be done in the water. 
 The killing of the animals is included in each of these contentions as 
 the only way in which they can be made useful to mankind; and the 
 time, place, and method of killing them that is best adapted to the protec- 
 
57 
 
 lion and prenerration of saih in ihe class or herd tliiit luibitiinlly rosort 
 to the wnteis of lU'iiiiff Seii is tlic loal iiuiuiiy "•I'oiK'iiruiiijr tlie pres- 
 ervation of the fur seal in, or liabitually resortiiij; to," Beriiij>' Sea (lat 
 is subiiiitti'.l to the Arbitrators. All the other <iinstioiis presented tor 
 consideration or decision by the Arbitr tors lehite alone to the i)o\vers 
 that either (ioveriinient may einidoy and their jurisdictional rij^hts to 
 enforce their respective contentions, or that both shonhl employ con- 
 currently, to protect and preserve seal life, outside of their territorial 
 limits. 
 
 Is it true, as it is asserted by the United States, that property iii 
 fur seals may be acquired while they are alive and without actual 
 capture? That depends to a j>reat dejjree upon the value of the uses 
 to which they are put and the certainty and refiuhuity with which 
 they may be subjected to those uses, and these considerat'O.is relate 
 to animals as classes, and to tiieir habits as a class, and not to the 
 peculiarities of the individuals. Some individuals are frecpiently found 
 among aninmls that are everywhere classed as domestic which are aa 
 wild and tierce (or timid as the wise may be) as the wildest of animals, 
 such as Iwjrses, cattle, sheep, swine, poubiy, and dogs. And some of 
 the wildest and most ferocicnis aninmis have been s(t domesticated by 
 training as to become harndess, and even serviceable, or prolitable in 
 a high degree, such as hunting leopards, hawks, carr- Mants, elephants, 
 and even bears, lions, and tigers. But these exceptional instances of 
 domestication by training prove notliiug as to the general nature or 
 habits of the classes of anima's •!> v/liich they are found. 
 
 If a class of animals is valuable fcv the uses of mankind and is, by 
 habit, drawn within reach of man i)eri()dically, with reguhn-ity and 
 certainly, the nation that thus acquires a settled and peculiar power 
 of control over it on land may base a legitimate industry upon the unite- 
 rial it aHbrds, and may declare the animals to be its property. A 
 nation so situated may certainly nuike sucli an assertion and declara- 
 tion of ownership in the entire class of such auinnils as against the 
 right of its own people to treat them as l)eing wild animals and re« 
 hkIUiis, and in that sense and to that extent at least it may exercise 
 ownership over them without cJipturing them. Aninmls that are classed 
 as being domestic, are i)rotected by a legal iM'esunv()tiou o^' ownership, 
 however wild they, in fact, may be. Auinnils domesticates by train- 
 ing are sheltered l)y the same jjiesumption of law, until t'ley have 
 resumed their wild condition. 
 
 Wild animals, called game, are not protected by legal flctions but 
 
58 
 
 by legislative enactments. Their protection, when it is accorded, 
 nmst be by law, because it trenches upon the natural rijfhts of the 
 peoi»lc to capture and appropriate them. TIjc State assumes a right 
 of public appropriation, and deprives its subjects of tin; right to 
 appropriate such animals and regulates or prohibits its exercise. If 
 the State takes the furtiier step of declaring by law that it has 
 appropriated these wild animals to the uses of (Joveniment and that 
 its [)ossession and ownership are complete by legal construction and 
 witiiout taking actual possession of th«!m, they become the prop- 
 erty ol" the State Wherever those laws are in force. Thus all 
 ganu'. laws are based on the sovereign right to api)i"oi)riate wild 
 animals by the state. This right of government, for it is such a 
 right, is illustrated in a forcible way by laws giving bounties for the 
 destnu-tion of wolves and other predatory animals. If a man, for 
 reasons of his own, should (tlaim that he was, ratione .so/i, the owner of 
 a cave that sheltere<l wolves and therefore of the wolves, he could not 
 resist the right of the state to cause their destruction in accordance 
 with law, even in the cave where thpy were bred but h'ft uncon- 
 flned to go forth at will and maraud upon the pro]>erty of others. 
 
 The power of the state in such case is not based on its judicial 
 function of s\ippressing nuisance, but on its ownership, when it chooses 
 to assert it, over wildjininials. 
 
 It may be and, in a general sense, it is true that the private owner 
 of the soil on which a wild animal is bred can only acquii-e actual 
 projjcrty in such animal by its capture, but that is far from being true 
 as to the sovereign power in a state. A state that can not dispose of 
 what is rcH ntiUiuH, within its own jurisdiction, is wanting in an essen- 
 tial power of sovereignty. It could not otherwise dispose of escheats, 
 waifs, derelicts, or forfeitures that occur without judi<'ial procedure, as 
 numydo occur. If these propositions are true it is unciue^tionable 
 that a state may acquire property in anything suscei)tible of ownership 
 that is res niiUius, found within its jurisdiction, by a simple declaration 
 of law and without taking it into actual possession. The property so 
 acquired is the; creature of municipal law. 
 
 The United States has done all that -is necessary to establish its 
 ownership of fur-seals by municipal laws that are operative against 
 everybody within the limits of their jurisdiction, whether those limits 
 include all the waters of Bering Sea or only the land and waters with- 
 in the ordinary 3-mile limit. Within those limits this declaration of 
 
59 
 
 the supreme lejujiHlatuie establishes pioperfy in fur-seals and appropri- 
 ates it to the IJiiitcd States while tiie seals are liviii^i' and without the 
 necessity of eapturiii}; tlieiii. When tliis ]>ropeily is loiiiid outside tlie 
 limits of th<! jiiris<lietioii of tiie I'liited States the question arises for 
 the tirst time us to iiow fartlie ]ieo])le of otlier eouutries are bound to 
 respect the title asserti'd by tiie United Slates. As t«) the people (»f the 
 United States, they are bound to respect this title of their (Jovernment, 
 if 80 required by law, wherever the[r allegiance binds tliem, and tlie 
 law <b)e.s bind them to respect the pniperty of tiie Iniited States wher- 
 ever it may be found. 
 
 No rule, code, or system of law, municipal or international, is lue- 
 seribed or alluded to in tlie treaty as tlic guide of the tribunal in 
 determining any question subnutted to tiiem. 
 
 The oidy allusion that is made in the treaty to laws or jurisprudence 
 is that the Arbitrators "should be jurists of distinguished reputation 
 in their respective countries." This requirement, as well as the nature 
 of the subject, (piestions, and jioints submitted to the tribunal tor exam- 
 ination, is a suHieient indication that where the recognized principles of 
 international law or the municipal laws of the respective countries 
 furnish a basis and guide to ascertain and admeasure the rights of the 
 respective treaty powers, they shall be followed. 15ut if there are 
 not such precedents and enactments the declaration of their respective 
 rights, outside the limits of their exclusive jurisdiction, is within the 
 competence of the tribunal, and also the declaration of their duty 
 concerning the protection and preservation of the fur-seals in question. 
 
 The United States assert their right of ]»ropeity in the fur-seal in 
 question while they are alive and without the in(;ident of actual cap- 
 ture : 
 
 Firfit, as a right by prescription derived from Russia, and acqt ie:5ced 
 in by Great Britain; and their usefulness to the (Jovenunent a. id the 
 peojile. 
 
 /Second, as a right established by law within its domain, that is not 
 imi>aired by the necessary and te)iiporary absence of the seals in search 
 of food, titlier while they aie inhabiting the seal islands, or when they 
 retreat from them on their winter excursions into the Pacific Ocean; 
 
 Third, as a right of property that is tlie necessary result of the 
 habits of the animals, and their natural and eoiiii)iiIsory relation to the 
 Pribiloflf Islands; 
 
 Fourth, as a right of property growing out of the necessity of gov- 
 
 •ffj 
 
60 
 
 «>riiiii(;iital control <»t' tlic fur-Hwils, to prevent tlieirdostiuction, and tlic 
 alU'Kt'd 'iH't tliat sucli (.'ontrol can be cflicicntly exercise*! (»nly by tlie 
 (loveiinnent wliose tenitory is occupied by tlieni at tlieir biitli, and 
 wliilc tin-y are tlieir property, rntionc impotniiia; 
 
 Fifth, UH a right of property based on tlie fact tliat, witli the aecpiics- 
 conce of ail nations, established by the fact that no objection or pr«»test 
 was nnide or adverse acti(»n was taken by any nation for a period of 
 ninety years, an industry was established, dependinf-- for its snpi)ort 
 upon the preservation of the stock of fur seals, wliicli will be destroyed 
 If indiscriminate pelafjfic hunting is furthei' permitted. 
 
 This is the Hrst international C(uitroversy that has arisen as t(» the 
 right of projjerty in or protection of fur s<>als, and tiiere is no case, in 
 point, to which reference can be made as settling the law of nations on 
 the subject. Hut there la no right, recognized by international law, 
 that is opposed by the case of Great Britain to either of these claims of 
 the Tnited States to the ownersiiij) of the Inr seals in (|U('stu)n, excejit 
 the right of free lishing in the open sea. This rigid is claimed for its 
 subjects by the Government of Great Britain, and is made to include 
 fur-seals, as free swimming animals, /er«' vattirfc. 
 
 The universal right of free fishing in the oi)en sea is established in 
 the custom of nations, which is the law of niitions, aiul is not disputed 
 by the I'nited States when it is conducted in a just and reasonable 
 manner and against fishes or animals tiiat are res nidliiai. 
 
 The free right of lishing can not be exercised to make a lawful cap- 
 ture of fur-seals if they are not wild animals, or if they are aninnds 
 wild in their nature, but have been lawfully approi»riatcd by a govern- 
 ment and are at large in the ocean with the purpose of returning to 
 the dominion of the owner, ov under the conii)ulsion of an instinctive 
 necessity for returning to the domiiuon of the owner, which the ani- 
 mals habitually and periodically obey. 
 
 The right claimed by Great Britain is in every sense a right to hunt 
 and to kill game. The seals are never taken, as sometimes fishes are, 
 for i)urposes of pro])agation, but v'dy for their value when they are 
 killed. The arts of fishing with hook and line and bait are never iua<',- 
 ticed as to fur-seals and would be utterly without success. Catching 
 them with seines or nets is impracticable as an industry and, when prac- 
 ticed, only small ainnuds are captured and none are taken alive. That 
 is only a method of capturing them by drowning. The death of the game 
 is the only means of capture at sea, and that is conducted with the har- 
 
 4 
 
no 
 
 '■ 
 
 .. 
 
 61 
 
 poon and the gun— deadly weapons. T\\v linnter attacks every seal 
 within nuigcofliis weapons without diacrimination or forbearanee. His 
 success depends entirely upon indiseriniiiiitte attac^k and shmnlitvi', I'oi- 
 lie can do no loss than tlnit if he hunts with any siicc^vss. His torhear- 
 unee, after he has captured his game witli seine or hook, uiiiv releiise it 
 alive if it is found to he under ag<^ or size and it will grow to its full 
 size; but capture of the fur seal in the oi)en sea is sure and instant 
 death, and, as to the herd or species, it is swift and inevitable destrue 
 tion. 
 
 ff this is "free fishing" it is sudi fishing as no civilized nntion would 
 tolerate within its own territory in respect to any fish or wild aniiiiiil 
 as useful and ns helpless as fur seals. No civilized nation that has 
 seal rookeries witlii:; its territory has o! ittcd to ])rovide laws for their 
 protection against : uch liunting to the lull extent of its powers. Tlir 
 indincriiiiinate liliimf of fur-seah in not, and nvrcr trill he, mnciioncd by 
 the Hlatiitr lau-x of ttnif civilized eountrff. 
 
 This right of indiscriminat*' slaughter of fur-wals on land and sea 
 can otdy bo traced, and, in this case, has only been traced, as to its 
 origin, to a custom of the savage Indians, who were forced to adopt it 
 as a means of living. It is said to have thus gained its root in the law 
 of nations. Civilized nations that have gained dominion over these 
 savage tribes have taken control of the subject and have reversed these 
 laws of the savages in their application to their civilized subjects, and 
 have forbidden them to enjoy tliis unrestrained privilege. But, in scune 
 instances, they have permitted the savages to continue the practice, 
 because it is confined to short distances from the shores, and is con- 
 ducted with such weapons and in sucli manner as is not seriously det- 
 rimentiil to the fur seal species. Moreover, the fur-seals ai » a source 
 of food supply aud of raiuicnt, to deinive them of which would imperil 
 their exist(!nce. It is also cheaper to peruiit their slight rjiids on tlie 
 fur-seals than it would be to feed and clothe them. 
 
 Finding this right, of savage origin, tiins forbidden or restrained by 
 the munici]»al laws of all nations interested in the subject, and that the 
 uniform course and current of jmblic opinion of the nations is.direeted 
 to.thiseud for tlie purpose of preserving the fur seal species, are we to 
 conclude, in the absence of any direct or conclusive rule of interna- 
 tional law, that there is a ininciple or rule to be found in the laws of 
 nations that sustains and ui)holds tlie nni-estraiued right as it existed 
 among the savages to hunt or fish for fur-seals in the oi)en sea in a 
 
I 
 
 63 
 
 way and at timos niid places wlioic (In- priK'tic*' iiisuros the Kpoedy 
 tioHtriit'tion of tilt' spccii'sf 
 
 Tlio iiittTiiatidiial law is a fjrowtli, iiiul it is (lin'cted and Hliajiod by 
 tlio t^xp««ric'iH«' and lln^ snlatc jnd},'nH'iit otniiinkind. In its jjiowtli it 
 liaHdis])lii*-cd many rules and dttj^nias that lniv<' ])i()Von to bo ini])edi- 
 nu'iitsto tlio nnii'cli or<Mvili/ation. Anion;; the most inipottant ottlu'se 
 concrete r>d('sthat Inive tluis been dotlironcd is that law of nations whicli 
 pivc to Russia the right to (b'clarc the Sea of Okhotsk and IJcring 
 Sea to be dosed seas. That was the internaticuial law when they were 
 discovered and occupied by that jHtwer. It lias since been changed. 
 
 IJussia, in 1Hi*4, yielded that <'laim to the advancing growth of inter- 
 national law, but did not yield to jielagic hunters the riglit, in those 
 waters, to destroy fur seals indiscriminately. Russia saw that the 
 sentiment of th<^ world, to which she snrrendered tlie right of free 
 fishing and free navigati(Mi in Bering Sea, wonld protect ■Jier against 
 the then niimentioncd and unclaimed right of visiting destruction upon 
 lier seal herds and the industry they supiuirted, upon the pretense of 
 t»ie right of free lisliiiig accorded to the United Statesand (Jreat Britain. 
 
 Jn this formative and progressive growth of international (»pinion it 
 may well be asserted that tlie light of pelagic hunting, with its attend- 
 ant right of indiscriminate slaughter of fur-seals, has lost the authority 
 of its ancient origin among savages and is no hmger a concrete rule 
 or principle or even a reputable dogma of iiiternatioiial law, in the 
 application that Great Ibitaiii makes of it. International law is based 
 on the same recognized elements of right government that are lit the 
 foundation of nearly all the municipal laws of the great civilized 
 powers. This concordance in the elements and structure of the two sys- 
 tciKS of law is established by many rules that are common to the munic- 
 ipal laws >)f such nations. In none of them is there a clearer or more 
 distinctly recognized doctrine than that of rights acquired by prescrip- 
 tion. 
 
 In the Ijnglish common law an abscdute title is acquired to any prop- 
 erty after it has been in the open possession of the occupant and those 
 Indding under him foi' the p«riod of twenty years. This is a rule of re- 
 I)ose adopted for the peace of society. In those features it is even more 
 useful bctw eeu nations than it is between individuals. So potent is this 
 rule that tli<5 courts of both countries have uniformly declared that any 
 grant, will, dted, or statute, will be conclusively presumed to exist, that 
 is ne(!es8ary to support the title of the party who has held uninterrupted 
 possession for twenty years. 
 
 " 
 
 •' 
 
 t 
 
 iismji 
 
68 
 
 *• 
 
 No just reason (^nii bo stated why this wlin'i omo rnle, fouiuled in 
 the pnhlif policy of l)oth conntiics, slionid not apply to tliciiitoiiiatioiial 
 ri};hts in eontrovcisy between them, and shmdd not include every 
 inter»'Ht in any property, indnstry, or privilege that has been, for the' 
 period of prescription, in the exclnsive control and enjoynient of the 
 claimant. The opposing? rijfhts, whatever they may be, are lost niuler a 
 unclnsive presnmption of a superior title in the actual oiM-upant. 
 
 For more than seven tyyearsC I reat Britain stood by andfidly understood 
 that ilussia had the exclusive usufruct of the Alaskan seal herd and 
 the exclusive control over them without makin;; any (luestiou of that 
 rij^ht. If the projierty had been an island in the sea, to which (Ireat 
 Mri*^ain hud the lu-tual ju-io;- rijjht by discovery and occupation, her 
 title wouhi have been lost if she had sulfeied Russia to occupy, claim, 
 ai'd hold the islan<l for twenty year* under an open and uninter- 
 rup^^ed possession. 
 
 The theater on which these contlictin/j: rijjhts are enforced has much 
 U} do with the limitations and restrictions under which they are to be 
 exercised, if the aninmls are fcrw natune and are so classed by this 
 tribunal. If such aninuils leave the land on which they were raised, 
 and are found and killed on the land of another, they belong to him on 
 whose land they are killed, because they are presumed to have escaped 
 to a new place of habitation, and the owner of that phnte takes them 
 ratione noli, as if they had been born and raised on his land. Jbit if 
 they are killed on the highway they are the property of him on whose 
 land they were born and raised, uidess they are shown to have escaped 
 from his laud in quest of their former freedom or under the wild 
 instinct of going at large, free from nnin's control. 
 
 If seals are made property by the laws of the United States, and are 
 found on the ocean traveling in search of food, the owner has the 
 right to be there and to take (!are of them. If his presence is not nec- 
 essary, because it is useless for the purpose of protecting them, and if 
 they are identified as the seals that habitually resort to the Pribilof 
 Islands by their being found in the eastern part of the ocean, tiie 
 law regards the animals as being in the constructive possession of 
 the owner. Upon this rule of constructive possession the security of 
 all (!ommerce and all personal chattels most largely depends. It is an 
 all-pervading element of property. Possession of a bill of lading, or 
 .even an oral contract for freighting carries with it the possession of a 
 ship's cargo of fur-seal skins that the owner has never seen, and attends 
 
mmmmm 
 
 mmm 
 
 "' 
 
 [ ■' 
 
 I 
 
 ' i\ 
 
 
 64 
 
 them aronrid tlie eart'i, on land and sea. All he is required to do to make 
 his poHsesHioii coiiii>U?tc is to identity liiH property in any way he eaii. 
 Aiid,so,if tlie I'nited States own tiiefiir-scjils before tlit'ycros.sthe.5 mile 
 limit, 8.»d have a eonstriietive legal possession of tliem uj) to tiiat line, 
 and if the seals are, fi»r instanec, nursing mothers ;j;oinj,' after tiood to 
 nurture their pups on shoie, with a li.vod p»u-[)ose of i-eturning to it, 
 the eolistruetivi'. possession of the animals is set'ured to the United 
 States after tiiey cross t\n-. .{mile limit, Without tliis there could 
 be no security for property in iiuimais ^hen they are not on the own- 
 er''s land, e^eu when they are within his view and he is i^uardinfj; them 
 in tlie best way he ean. 
 
 If the seals are wihl animals belonging to till' United Htat^s by the 
 deelaration of positive law, or raiiont' >ioll, or fotiotie hiijioteiitia, or by 
 actnal eaptiire, and if this proiierty is not lost witen the animal goes 
 into the orean for food or pU'asnre, witli the intent to return, or undvr 
 an instinct that <hnninate>> its moviMni'iits and ItMvi's it without an 
 option as to returning, one wlioeaptnresiit when thusatlarge deprives 
 the United States of their pinpcity. If the eaiitor is u citizen of the 
 United States he is guilty of the double wrong of breaking the pre- 
 serve of the United States, which is closed as to hijiii, and of taking its 
 property. That is poaching, if the eii|,>tor is a British sub.hHjt he 
 comuuts a tiespuss on tliii property of the United States, because he 
 found it at a jilaee in the open sea to which it went lawfully and 
 where it v.as constructively in tlic lawful jiossession of the I'nited 
 State.^, 
 
 The ease might be difVercnt. would 1)e dilfcrcut undei' t;he English 
 common law, if the soal, being ;i. will aniiH!\K shouid enter within 
 Britisli territorial liiviits and there be sJiiin or captured, lit that ease 
 the possession would, change so as to give the right of property, ratioiie 
 noli to tlijit (jovernment, and thai right, (»r that lawful power ovei' the 
 animal w<mld continue while it remained on Lbitish territ(»ry. Btit this 
 is the only instance in whicli llie I'nited States would lose its right of 
 pro|)erty in the Alaskan fur-seal, born on its siil, while tlie aiiiinm 
 refeftcndi ciintiiMied t;> control its inovements in its visits to the ocean. 
 
 The indt^linite right of private fisliiiig in the open sea, in favor nf an 
 imlividiial, is loo slight and ill fonnded to overeoaie the right of prop- 
 erty in a nation that is trying to prevent the pehigi<; hunter from 
 destroying a great production of eommereisil value, a source of revenue, 
 aujd m\ instfuiiuaifcality of government. Not that the property rights 
 
 I 
 
 '« ^- 
 
 }iiii|ii|istraiiiiiiii 
 
I 
 
 06 
 
 or lawful privileges of any man are lea.s sacred than those of a State, 
 but govoviuneut implies the subonlination of private righl , in a neces- 
 sary degree, to t!io general wclfaie, and this is the first vievr of all 
 rigiits tak(Mi by iiiteriiatioiial law. It is on tiiis principle that those 
 two (.Toverninents have, in this treaty, substituted their international 
 rights and powers as sovereigns over their people, and all their rights 
 respe-iting fur seals, and over the seals and the rookeries, islainls, 
 waters, and their lessees, and compel them all to yield to a rule of inter- 
 national law, titat the sovereign nations alone can deal with the inter- 
 national rights of their people. If they should extend thecxisting modus 
 piri'iiiU perpetually, no citizen of eitlnir country could be heard to make 
 complaint that his private rights had been thusdestroyed, or that they 
 were i)rotected by any law that could save them from the i)owor of their 
 own government. 
 
 If all the facts presented in this case establish that seals are property 
 to be classed as domestic or domesticated animals, the <'.laim of the 
 right to hunt and destroy tliem anywhere against the consent of the 
 owner is without foundation. If cattle on the boundary line of 
 Oanfida, where they are grazed in vast herds, and are almost as wild 
 as buffalo, should wtinder across the border of the United States, that 
 Government could not seize them witliout a violation of international 
 law. The case would be stronger under that law if the (iattle were 
 owned by the Government of Canada, or Great IJritain. The right of 
 property, nitionr soli, would not a«'crue to tlie United States, for the 
 rea.son tliat tJiey are domestic animals in their universal classification, 
 and that fiict is notice to the world that they ai'e the property of some- 
 body, and are luit res nullim. 
 
 Whether fur-seals are fishes, or domestic animals, or wild animals, is 
 to be determined, first, by the <)ue8tioi) wiiether the most essential facts 
 of their existence occur during (ho-i>eriod oftlicir lives, on the land. It 
 is i»ossible to nurture them on Iniid, by using proper appliances and 
 food, and they can thus be nmde to increase in numbers, but that pos- 
 sibility only i)roves that they are not fishes. This is demonstrated in 
 Paris and London, and elsewhere, by daily experience. It is not pos- 
 sible that a seal can be born and reared in the sea. It is, therefore, lo 
 be classed as :i land animal, iis its creation and birth can only occur 
 on laud, and these facts are essential to the existence of thisaninml. 
 
 A singulfir faculty of the male seals, at least, of living for months 
 on land without taking food, allows that they may be kept out of the sea 
 11495 M 5 
 
h 
 
 
 66 
 
 for one-tliird, at; least, of their lives, witiiout iujury to tiiem. If dur- 
 ing that period they were suiticii'iitly fed. there seems to be no reason 
 to suppose that a visit to the sea could not be entirely dispensed with. 
 Indeed, thiw is done in menagericH that travel inland, wliere lurseals are 
 kept for years in good condition without once entering the sea. While 
 the sea is the place where their food is sought and found, it is no more 
 the exclusive haunt for sncli jmrposes tlian <lie wild mountains and 
 plains in America are for the nurture of cattle, iind sheep, oi' swine, 
 or turkeys, or tbaii the open waters of the sea arc for the nurture of 
 ducks and geese that are classed as domestic aniumls. It can not 
 be the food or feeding grounds that distinguish between animals as 
 land or sea animals, or as being wild or tame. 
 
 In the case of all these animals the essential and controlling iact as 
 to their classification as land unin)als or as fishes is that they can only 
 have birth on the laiul, and are not fishes either in form, structure, 
 instincts, habits, or the necessities of existence. They can not breathe 
 beneath the water. 
 
 If they are essentially land animals the question of their dttnicsticity 
 is a very simple one. That fact depends upon their usefulness to man, 
 their inability to escape from liis contrcd. and the" certainty and regu- 
 larity of the forces that oi)erato to subject them to his absolute dis- 
 I)osal. In these respticts the seal has an adaptation and fitness for 
 domestic use that is not so obvious and so certain and easy of control 
 in any other animals. Doniestication of other animals that are allowed 
 freedom to come or go at i)leiisui'e depends, in a large measure, on their 
 cons<'nt. In the case of the fur-seal, the nature of the iinimsil and th<5 
 conditions of its existence through a series of years, and also of its 
 increase, compel it periodically and with certainly to submit itself to 
 the jjower of those who own and occupy two small islands in Bering tSca. 
 A similar climate, similar shores and coasts, and the same food have 
 for many ages invited them to select other homes on the islands and 
 shores of the same sea. They have never done so, and there is no 
 grouiul for the conjecture that they ovn- will. The Pribilof Islands bear 
 the marks of a ]oug-«'ontiuued residence of the seals in vast numbers 
 upon their .shores. The rough rocks are worn smooth from their haul- 
 ing over them. What are called the parade grounds of the hollus- 
 ehi(!kie are described as being large areas of sandy soil worn and eonj- 
 pacted to the sraoothiu^ss of a floor. The carpet of fur and hair felted 
 together in the interstices of the rocks and in the sand could only have 
 
 I 
 
 I 
 
wmmammmm 
 
 mm 
 
 67 
 
 been protliuicd by many years of slHMbliiig seasoius in whicli it was 
 dejmKited. In all tlie close examinations that have been made by 
 nijiuy observers and experts sent to the coasts and islands ot Bering 
 Sea and to the sonth and east ot it, along the shores and islands of 
 the Aleutian chain and Ihe coast of the North American continent, 
 not a sign or trace of any rookeiy or hauling gi-(innd has been found 
 except upon the two islands of St. (Jeorge and St. I'aul. Neither the 
 evidence nor any rational deduction from it conveys the least conjee- 
 tnre that they ever Inid any other home. 
 
 No two distiuct classes of animals have been or can be dontestieated 
 by the same means. Some have the social ijistinet strongly develoiM-d, 
 as dogs, horses, cattle, and shec-p. Others are simply obedient to 
 superior jtower and skill, as the eiephant, ass, bnti'alo, llama, and 
 reindeei'. Others are domesticated through their greed for food and 
 jieed of protection, as swine ar.d poultry. ^ Others do not look to man 
 for any of these means ot control or for food, as the fur-seals. Yet, in 
 this lowest condition o! the power of enforcing or inducing domestica- 
 tion by the ait of man, the result of domestication — the dominion of 
 man over them — is the most certain and the eafeiest of enforcement. 
 Filling tiie most estact requirements of domestication, as to their sub- 
 jection to the will of nnin, no reason exists why they should not be 
 classed as domestic aninuils. In the legishition of the United States, 
 Russia, Japan, Chile, and the liritish coioniew, vvhere fur-seals go 
 ashore to breeil and to shed their coats of hair and fur, the utmost pos- 
 sible protection is given them that can be effected by nmnicipal law. 
 
 These acts of protection assume the rightful and full control of the 
 animals, witiiin these respective jurisdictions, disregarding all claims 
 of citizens or subjects to rights of property in the animals, or rights 
 of chase for the purpose of converting them into ])roperty. Tliese 
 acts go further and forl)id hunting on land and sea during certain 
 seasons, and in certain areas of the ocean, and the seals are a])pro- 
 priated by these Governments for revenue purposes through leases 
 and licenses, for which a tax is i>aid. And even these privileges are 
 contiiu'd only to the citizens of the respective countries and colonies. 
 
 Jn the British, system of fur-seal i)rotection, the only country 
 omitted from the list of colonics where seals are found is Canada. 
 It has no coasts or islands on which fnr-seals habitually land, and 
 bas, therefore, no interest in any rookery that reciuires protection. 
 Canada lays broadside on the I'acific Ocean, near to the highway of 
 
68 
 
 i 
 
 the fur-seals in their anuual migrations in search of food, and causes 
 thein to be waylaid when they are bearing the future product, on which 
 the preservation of the species depends, to that place where, for all 
 time, so far as we know, they have gone to beget, deliver, and nurture 
 their oftspring. It has also a location near to the narrow passes 
 through which these seals must pass on their. jonrney to and from the 
 i'ribilof Islands. There they are waylaid and captured without dis- 
 ciJKunation as to age or sex and while they are at the absolute men^y 
 of the hungers. They can easily concentrate there, in the open ocean, 
 with vesPbIs enough to exterminate the species by an ambuscade that 
 the serj,ls can not possibly avoid. 
 
 If Canada shares the zeal for the preservation of the fur seal species 
 professed by Great Britain in her correspondence with liussia and the 
 United States, and should exhibit practically her concurrence in the 
 legislation of all the other British colonies that are directly interested 
 in fur-seals, she would find ample opportunity to legislate for their protec- 
 tion. The earliest practice of pelagic sealing in the waters of the North 
 Paciflc of which anything is definitely known, was conducted by Indians 
 in the Straits of San Juau de Fuca, one-half of which ocean highway 
 belongs to Canada under a treaty with the TJnitM States. Teliigic 
 hunting is still coiulucted in these straits; and it is from those waters 
 that nefirly every sealing vessel is fitted out. It is there that the prot<'c- 
 tion of the British Hag is afforded to citizens of the Unitwl Slates to 
 shelter them in violating tlie laws and jmblic policy of their own coun- 
 try. It iK in those wiitcrs that the pelagic c:itch of seal skins nrc assem- 
 bled and sent to market. Tlie hunting of fur-seals on theocc^an at the 
 passes into Boring Sea, and in that sea and in Russian and .Japanese 
 waters, is a great leading industry of the inhabitants of Vancouver 
 Island. If the I'acittc ports of the Hiitish jiossessions in America were 
 closed to such traffic the seal lierds would scarcely need other protection. 
 
 With all these oppcu'tunities, Canada takes no part in any legisliitit)n 
 for protecting fur seals in the Pacific Ocean and is wholly out of sym- 
 pathy with the professions of Great Britain of favor for these Just iind 
 high purposes. Canada seems to have lU) respect (ov the oi)inion 
 expressed in the legislation of other (iountries, and especially by all 
 British provinces interested in the preservation of fur-seals; but, to 
 maintain its hold on the seal herds, it urges (treat Hritain to insist that 
 her people have the right, under the pretext of fishing, to appropriate 
 to themselves any fur-seals found in the sea. 
 
69 
 
 Great Britain, for political reasous, applies the doctrines of protec- 
 tion of fur-seals to all Uor otlier colonies, and (piotes from the interna- 
 tional law tiie establislied riglit of "free fishing" in justiticatiou of 
 ('anada for a i^ractice tiiat will result in tlie wholesale destruction of 
 tiie siiecies. Wliile sneli (•oiit.entions are insisted upon by tins great 
 l)(>wer, it would be only injurious to the iionest portion of tiie people of 
 the United States for ( Congress to enact laws to punisli pelagic iiunting 
 on tlie l'a(!ilic Ocean. Sucli laws would only cause a n^petitiou of tlie 
 pra(!ticc on tiie ocean that was rife in Bering 8ea before the modus 
 vivenill of 1891 was established — that is to say, it would invit;e dishonest 
 and unpatriotic citizens of the United States to seek the shelter of the 
 British Hag, wliile in its name and uiuler its power tliey would defraud 
 and disitonor tlieir own country. It was not until Bering Hea was 
 closed, partially, to.pelagichuntingof fur-seals in 1891 and 18'.)li that this 
 new source of danger to the seal herd was understood or appreciated. 
 The results of closing Beiing Sea to peliigi<! sealing caused scutlers 
 from (!anada ami the l/nitt^d States to concentrate their greatly 
 increased forces in hunting the herd on the Pacilic and in intercepting 
 them in the Aleutian pusses. This was not known until after the 
 treaty of February 20, 18!>U. This is a new'and danger<»us condition 
 which the ti-eaty expressly included in the i)urview of the powers of the 
 Tribunal of Arbitration. It was in the last days of the negotiation that 
 this im|)ortant phase of the case was brought to noti(;e and provided 
 for. 
 
 The (juestion as to the justification of this pjan of "tisidng," if it is 
 fishing, is as new in international law as the occasion that gave rise to 
 it. If it )3 "fishing," the method of it is new, and was wholly unknown 
 when the right of fishing anywhere in the open sea was recognized in 
 the law of nations. If the right now claimed to be hnyful under this 
 new UKith'xl is a total departure from fishing, as it was jnacticed when 
 the right to fish was established, and is fatally destnu'tive of the spe- 
 cies of "fish" against which it is employed, there is no warrant tor 
 saying that it is sanctioned by intern jitioual law. 
 
 The abuses to which this prac^tice must lead, as already developed in 
 two years of experience, show that the claim set up by Canada of a 
 right to "fish" for fur-seal with fleets of vessels and boats, armed with 
 shotguns an<l prepared cartridges, and to kill them imliscriminately. 
 has but one element of the established right of free fishing, namely, 
 that it is conducted on the high seas. Fishing with shotguns, u the 
 
M * 
 
 mmmmm 
 
 70 
 
 { 
 
 o(«aii is now. It is an iuuovatiou tliat destroys the subject to which 
 it applic'v It' this is a right wliich the international !» kr must recog- 
 nize, although it is almost universally denounced by municipal law, it 
 must be limited to a reasonable use. as all privileges are limited. As 
 it is practiced by i)elagic sealers at this day it receives the condemna- 
 tion of internatio lal law, because it sk. ilices and destroys the benefits 
 of the seal iierds to the commerce of the world and imposes t)n the 
 United States very serious burdens in i)reserving the seals for the 
 private advantage of persons engaged in an organized hunt, while 
 denying tiie right of her own citizens to take them. 
 
 The United States must protect tiie seals agiiinst her own people or 
 else they will be speedily destroyed. If in (h»ing this nil iier care and 
 expense are turned to nnnght by a rule of interiiiitional hiw, she «!an 
 only abandon the seals to their fate, let the islands become barren 
 of all value, and console herself with the reflection thiit her sacrilicc 
 adds a iwwer to the' international law that is more authoritative than 
 the judgment (»f all the nations of the earth, cx(!ept Canada. 
 
 It is a new and very dangerous phase of the rights of lishermen that 
 they can lawfully combine to destroy lisli and use the agencies that 
 are necessarily destructive of a given species of lish under the pro- 
 tection of international hiAv. It is still more dangerous if they can 
 lawfully waylay the fifb at narrow i)assages between islands and 
 destroy them as they approa(;h the shores and bays of a neighboring 
 nation, and yet more dangerous if they can lawfully form a cordon of 
 vessels, with great luunbcrs of men aimed with shotguns, just outside 
 the 3-mile limit, and can kill seals that are frce-breathiiiig as well as 
 •free-swimming aninutls, whenever they rise to the surfaeefor air and come 
 in range of their guns, while they are passing to and fro in search of sus- 
 tenance for themselves and their ofllspriiig. Yet all these combinations 
 and practices are lawful, if the right of i)elagic hunting of fur-seals is 
 the same — no more and no less — with the right of iishiug in the high 
 seas. 
 
 It is not surprising, in view of such serious results as would follow 
 the practice of pelagic scaling, and have already lesulted from it, 
 where it is placed (m the same tooting with the right of Ashing in the 
 open sea, that the power to ordain concurrent regulations for its con- 
 trol, or proliibiti(m, was given to a Tribunal of Arbitration. 
 
 It is only by regulations, and not by advice, or by tlie statement of 
 the principles of law that govern the case, that these matters can be 
 settled. 
 
71 
 
 WB 
 
 Tlie coiu'lusioiis I liave reached are : 
 
 1. That the United States have a property in the seals in and habit- 
 ually resorting to their islands in Bering Sea. 
 
 2. Tiiat this property is in the lawful possession a-ul control of the 
 United States when it is found on their islands, or within the limits of 
 their territ^.ruil .jurisdiction, and they have the exclusive jurisdiction 
 to pr<^M',t aiul preserve them within those limits. 
 
 3. That this property is also in the lawful possession of the United 
 States when the seals are found in the open ocean and, in such waters, 
 they have such riglits of jurisdiction over these fur-seals as any owner 
 of land animals would have over domestic or domesticated animals, 
 when found on the public highways. 
 
 4. That, as a sovereign power, the United States may punish its 
 citizens for appropriating or destroying its property on the high seas; 
 but they can exercise no higher powers over property so situated, when 
 it is being appropriated or destroyed by the citizens of other countries, 
 than a private owner could exert under like circumstances. 
 
mmes^ 
 
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 . :i r 
 
 t 
 
 1^ 
 
 I 
 
 » 
 
 « 
 
 J 
 
 IN THE DISCUSSION OF THK OENEEAT. SlTn.TEOT OF THE AWARD TO BE 
 RENDERED BY THE TRIHUNAL, AS TO WHICH LORD HANNEN SUB 
 MITTED A FORM OF AWARD, SENATOR MORGAN SUBMITTED THE 
 FOLLOWING REMARKS : 
 
 1 supposed that the debate on tlie questions arising under the 
 treaty hiwl been closed, and tliat the members of the tribunal would 
 now deliver their opinions, Meruitim, in the order agreed ujm)!!. But Lord 
 Haunen has made some criticisms on the attitude of the United States 
 and the arguments of its counsel, that seem to oi)en up the discussion 
 of the whole subject, and I must not allow them to pass without notice. 
 
 As I have liad occasion several times to remark, during the progress 
 of the discussion before the tribunal, this i>s not a litig.ation between 
 flie United States and (Ireat Britain in which a judgment can b(^ ren- 
 dered by this tribunal in favor of one party and against the other for 
 a right asserted, or for property or damages which one party must 
 gain and the other must lose. , : : ; i. . 
 
 The treaty, which is a law to the tribunal, provides that each party, 
 at a certain time, shall deliver its juinted case to the arbitrators, and 
 to the agent of the other party, in which itsiilaims shall be fully stated. 
 Thus two independent cases are required to be stated and submitted 
 for decision. This M'as done, and when it was done, the attitude of the 
 two Governments, as to the claims they respectively submitted, was 
 fixed and determined. This requirement was not observed by Great 
 Britain, but other evidence not presented and submitted either in its 
 case or counter case, was offered during the ])rogress of the oral argu- 
 ment and wj»s received and considered by the tribunal. 
 
 I insist thjit these proceedings do not comprise one case, but sepa- 
 rate cases. They are to be heard together, bi.t they are not croJis 
 actions, neither are they consolidated actions, as is sometimes the 
 7a 
 
78 
 
 T 
 
 case, under the orders of a court having plenary powers. Tliis tribu- 
 nal has no such powers, but must decide each case, as it is stated 
 and submitted, upon its merits. 
 
 The simplest analysis of the <!ases, to which all other questions are 
 merely incidental, is this: tiiat Great Britain claims for its subjects the 
 unlimited, unrestricted, and nn*iualified right of hunting and killing 
 fur swds of all ages, sexes, and conilitioiis-at any place in Hering Hea 
 and in the North Pacific Ocean, that is untside the ordinary territorial 
 limit of 3 miles from the islands and coasts of tlie United Stales. That 
 is the entire claim of Great liritain, as it is submitte«l to this tribunal 
 in the British case. 
 
 The United States claim the ownership of the fur-seals that are in, 
 or that habitually resort to Bering Sea, and the right to ]>roteet 
 them wherever they are found, outside the territorial limits of Great 
 Britain. The tribunal slumld, in my ojiinion, have taken u]> these cases 
 separately and have decided them, giving <lue consideration to tiic ob- 
 jections I'aised in the (;ounter case of either party to the case of the other 
 party. The decision of the rights claimed in either case, does not, nec- 
 essarily, <lispose of the rights that are claimed in the case of the other 
 party. A decision ihat the United States has the ownership of the seals 
 or the herd of seals d<»es not atlirm its i>ower to extend its statutes into 
 the Pacific Ocean and enforce them there against tiie subjects of Great 
 Britain iu any and every ciise of trespass ui)on that pr'oi)erty that may 
 occur, or n»ay have occurred, even recently and upon hot pursuit of the 
 offender. 
 
 Neither would a decision to the contrary entitle the subjects of Great 
 Britain, or of the United States, to hunt fur seals, up to the borders of the 
 Pribil(>f Islands, in such force, and by such methods as would seri- 
 ously en<langer, disturb, or threaten the industry and the revenue 
 system that the United States has established there for the purpose 
 of nniintaining government on the islands and of encouraging the 
 Ufitives there in earning a support and in raising themselves to better 
 conditions. 
 
 It is claimed here, as it was claimed in the arguments of counsel for 
 Great Britain, that the right of pelagic sealing exists, as to fur seals, 
 under the international law, in favor of the 8nl)jects of Great liritain, 
 and also in favorof the citizens of the United States, without any restric- 
 tions whatever. That no conditions of time, or nninner of hunting the 
 seals, or as to the age, sex, or other condition of the animals, or as to the ' 
 
 1 i| 
 
 "3».-a!6,iSxj 
 
 iJSSSSsaSS'^MlXiffiSSir^aili! J^M jWaWJ^j'fe g''^ 
 
74 
 
 I 
 
 it 
 
 i: 
 
 numbers engajjed in hunting them, or that their purpose in to destroy 
 them, or that their implements of warfare are most deadly, can operate 
 to eontrol tlie pehigic sealer outside tlie limits of territorial waters. 
 
 Tliis view of thcMr rights is not disposed of Ity deciding that the United 
 States either has or has not the right to protect the fur seals, but that 
 <luestion is pertinent in considering whetiier, under tliis treaty or in 
 the international law, the light of pelagic hunting of fur seals exists 
 and whether it is an unlimited and unrestricted right. 
 
 Jjord llanuen lias expressed the opinion that all animals found swim- 
 ming in the sea, whether tliey are birds, fishes, or beasts, if they are not 
 within territorial waters, are the subjeets of rightful pelagic hunting. 
 Under such a law an animal that is domestic, such as a hunting or 
 ducking dog, or a Hock of tame geese, or ducks, or swans, would forfeit 
 tlie i»rote<!tion of the law, and their owner would lose his property in 
 them in favor of the better right (»f the first taker, if they, in search of 
 food or prey, sh<mld swim out on the water, as they often do, beyond 
 the ordinary .'3-mile limit, or that such fowls would be liable to the 
 free nport of the hunter if they should Hy through the air in their 
 excursions beyond that limit. 
 
 In the efi'ort of Lord Hannen to apply to the fur seals a rule of prop- 
 erty and the right of protection that would apply to wild ducks and 
 geese, and to swallows whose nests are taken and used for food in 
 China, he neglects to give due weight to the cardinal fact on which, in 
 one aspect, the case of the United States is based. It is the fact that 
 the fur seals that are in, or that habitually resort to Bering Sea, are 
 SMI generis, and that no 'ther fishes, birds, or animals that visit the 
 ocean for food or pleasure have a certain fixed abode or home on 
 land. 
 
 His lordship omits to give due weight to the fact that no other animal 
 visits its place of abode with such unvarying certainty, and that, when 
 they are assembled tliey live upon very limited areas of land, and in 
 compact masses, o\\\y separated from each other by the distance of a 
 few feet and arranged upon adjacent grounds in classes entirely dis- 
 tinct from each other, whereby the animals that are fit for slaughter 
 for their pelts are kept entirely separate from those engaged in the 
 duties of procreation and the nurture of the young. So peculiar is this 
 trait that the young i)ups collect in groups, called pods, and separate 
 themselves from all other classes of seals, and keep up the separation 
 until they return to the islands the next summer after they are born. 
 
 X 
 
1 
 
 4* 
 
 75 
 
 Nature has not fj;iven to any otlior class of animals, wild or (lotuoHtic, 
 tliis (;lear indication of their SiM'viccablc (piality for tlio nsi^ of man and 
 tlioir iMiiivoidablc destiny to hccoint^ siilijcct to liis complete donuni<m. 
 
 Tln^ wild }j(eose and docks and tlie swallows m«'ntioned li\ Lord 
 ilanncn never lose the instinct of escape from man, which the seals 
 have not except when they are in the water, and even there it can 
 H('arcely be called an instinct or hnbit, until it has been created in them 
 by the ill usaye of pela{;fi«' hunters. 
 
 When swallows, <,'eese, and dncks wish to escape from the presence of 
 man they have, at .,11 times, the means of esciipe on tlie win}-' which is 
 their eHectnal method t)f avoi<linj;' capture. 
 
 The seal on land are almosi entirely in»!apable of eseapinff death at 
 the hands of man. The breeding places of the wild ducks and jjecse 
 are scattered around the whole earth, above certain latitudes, aiul many 
 species breed in all latitudes. They are ren nullius because ma can 
 not lay either his destructive or preserving hand on them at jdeasure. 
 W(mld it be so as to their nests or eggs, wiiich nniy be taken at pleas- 
 ure, or their young that can not escape, and are, ratione noli, the property 
 of the owner of the soil ? 
 
 There is nothing in the evidence relating to Chinese swallows or 
 their uests, but if they build their nests on the rocks along the sea- 
 coast, as 1 am informed they do, the nests belong to the owner of the 
 soil as much as the honey collected by bees and stored in a tree that 
 stands upon his land. But it is needless to seek for rules that will 
 govern the rights of the LIuited States in respect to fur seals by citing 
 those that may militate against those rights when applied to fishes, 
 birds, or beasts, that ditfer from them in their essential and elementary 
 instincts and do not invoke the duty of preserving them by laws, be- 
 cause they (tan not escape fro;n man or protect themselves. 
 
 I do not intend to examine tlie question of property, or the right of 
 protecting it, with reference to the bearing and authority of cases de- 
 cided in England or the United States. As far as analogies may be 
 useful in reaching just conclusions, they are found to support the con- 
 tention of tiie United States upon the authorities that have been so 
 ably discussed. 
 
 Mr. Justice Harlan's very clear and cogent opinions on this view of 
 the case, in which he quotes with approval from the text-books upon 
 municipal and inti^rnational law, really leave nothing for me to say. 
 I fully concur in what he has said on these topics. But I feel war- 
 
 m 
 
 '■■\ ii 
 
 (vl r' 
 
76 
 
 ranted and reqiiinjd to add at)ino other views, arisiiif; upon the whole 
 treaty, an Ut the iiiattcrH now under Hpec-ial examination. 
 
 ThJH beiny now a controversy itctweeii (JovcrnmentH, the ques- 
 tionH submitted are to be (U'ri(h'd acc'irdin},^ to the duty of the high 
 contracting parties towiird cacli other, i»ofh having tlic purjxme of 
 protecting and preserving the liir seals. Tliis duty arises out ol" the 
 treaty and a iMtmnuinity ol' purpose, as it is solemnly avowed; and 
 it is not admeasured by the international law, as wcmid be the 
 ca^e where a contr()versy existed that involved tlie ownership of tlie 
 seals, for instance, if they were claimed Uy belong toeach(iovernment, 
 and the tribunal was recpiired to decide as to wliicii of tliem has the 
 bett«!r title. 
 
 Tlie tribunal is intrusted with the power aud has accepted the duty 
 of providing for such con(!urrent action of the two (lovernments as 
 will prote»;t and preserve the fur seals, when it shall det<u'miue that 
 the United States, in virtue of its (»wn sovereign (towers, ami iieting 
 alone, can not preserve thera. 
 
 If the decision of any (»f the questions in this case is made to depend 
 solely upon what is the declared international law, there could be n«» 
 need tor asking other nations ta accept aud ratify the award. Their 
 ae(!eptance of the award, as the correct ruling upon (piestioiis of inter- 
 national law, would simply amount to an atlirmance of the legal propo- 
 sitions involve«l in it. All nations are bound by the international law, 
 and, to accept a decision of this tribunal, by convention, that is merely 
 in accordance with thsit law, would only be to agree to do that, by 
 treaty, which they are already bound to do under the international law. 
 
 It is because no one can say that the international law deterniines 
 these questions, that it is proposed hereafter to est.iidish by treaty, 
 in which all the States are requested to, concur, what is their duty in 
 giving protection to the fur seals. 
 
 All pr(q>erty originates in municipallaw or recognition, and no prop- 
 erty is created, or defined, by international law. I admit the influence 
 propeily to be exerted by the judicial d(^cisions on analogous questions 
 by the courts of England and the United States, not as authority, but 
 as argument, or jtrecedent. 
 
 I understand that the right aud duty of protecting fur seals against 
 indiscrindnate slaughter is much mcu'C distinct and obligatory, than is 
 the right and duty of protecting animals that are less valuable and 
 are not placed so entirely within the dominion of man. 
 
 
77 
 
 I iiiKlorHtiind the treaty to iiiiiko it the duty of the triliunul to con- 
 sider tiio entire Hubjort, in tlie li^ht of the deHJre of the two natiouH to 
 protect and preserve the fur seals, and to have it detennincd whether 
 the United States has the ri;;ht and power to deal,sin;;h'handcd, with 
 the subject of proper ref^uhitions to jtrotcct and jtrcservc tlic seal lierd. 
 
 In tills view, the attitude «»f the two {iovcrnnients towards the in<|ui 
 ricsHubniitted to tiie tribunal is special and exceptional, and this is 
 eviilently a cantinal feature in the cases submitted to the tribunal. 
 No other such situation ever existc«l, or e\ cr can exist, between two 
 nations and it must be provided for, it at all, by a special award, upon 
 special facts, and not merely by seeking analo^^ies in thedccision of qucs 
 tions, in municipal courts and between private litigants, about wild 
 animals as to which a private right of property is in question. In cither 
 view of the subject, the right of property in fur seals is well founded. 
 The rule of the common law, and the Roman law, as to the accpiiHition 
 of property in animals that are _/<;»•«■ natiinr, when a]»plicd t^) fur seals, 
 show conclusively that these animals are cai)able of specitic ownership 
 while living. 
 
 This is a great public nuitter that has engaged the attt^ition of two 
 (iovcrnments, and all their gcographi(;al, industrial, maritime, and gov- 
 ernmental relati(»ns enter into the proper consideration of thei|uesti«(ns 
 subnutted to the tribunal. The peace itetwccn the tuitions is also a 
 grave considi'ration for the tribunal, as well as the eHectof the award 
 upon the interests of itussia and .Japan. The power to ordain regula- 
 tions and to make them an essential part of the treaty is so interlaced 
 with (luestions that are judicial, as to give to the powers of the tribunal 
 and the award that it shall make, only such etfect as the treaty pro- 
 vides — an etfect peculiar to this case and not su<;h as follows the judg- 
 ment of a court. 
 
 When the fur seals are properly protected and preserved by the award 
 of this tribunal, the purposes of its creation will have been accom- 
 plished and the full limit of its duties will have been reached. Then the 
 appeal of these two great i)owers to other nations, to acce]»t the award, 
 will contain no assertion that the award is a correct tinding upon the 
 international law, to which all nations are bound, without convention, 
 but an afflrmatioii tluit it is a just and salutary arrangement, reacthed 
 by treaty, and suited to the purpose, in the Tacilic Ocean ; <] in all 
 other seas, of preserving seal life and of restoring it to its condition 
 before it was so nearly destroyed in the Antarctic Ocean, and so 
 seriously threatened with extermination in the North Pacific Ocean. 
 
 m 
 
 I I 1. 
 
I< 
 
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 78 
 
 1 lM'li«'W Miat in ♦^vtMv kN-j) we t-ik«, rHui in «'V»'n, (Je<-i.si«»ri w« nuike 
 ill tlli^* niHtt**)", w<* hImkiIiI !i\<i(<J a!»stnu;f. <jiuv'tit»i>f< ainl iii<(uirit>s tlial 
 c»n liHV«> no }»r!i«*ti«'aJ «'rt>.M't HjM)n tint inowwl porpoK*^ of the j»»rti«T< (i> 
 prod't't aitd pri'^crv*' tli<- tiu sruls. TIh* itttitii(i<! i»t tin- («<• <l<<v«iii- 
 iMOiitN towards tli<- :ifliiiirt>'(i duty of prcst'rvjiiu tli«' fur m'«1h in iln- 
 future; Mi»' j|M»\v«M'f. they have t'xrrt'iHwil jointly iiin! severally, ov<m' th»' 
 !>(!l»!f'i"i in (liC [laKt iunl in titis trraty ; tiitMonfijiUiation of fh(! Ali'Ufian 
 |H'ni«sul;s and lin- islandvof tliat an-.hijM'Ia^o; ilw )u'«-nliaiili«'M of «tuil 
 lif<', »nd tlio d«'Htrnftiv»' niHhofinof noal iiuntin); in the open Htm; the 
 proper rentrirtion, or ncttcssary proiiilntion to he iin}»os(Ml upon pi'lajiic 
 sealinj{: the ri^'iit of tlic riiitcd StateH to defend and proteet it^. jioworH 
 of ;;ov('!nnn'nt, itn revenues, and to)>re.serve its industry on U\c islandK; 
 are iillhioniiiit wiM'iin the seope of this inojiiry, by tlu* provisions of 
 tliis treaty, and are all to he eoM.sidered in deterniininji' what are the 
 .just and eipNtaide rights and t!ie duties of the hifjh eontructiiig powers. 
 
 Not merely tiie riglitw that would result in a Jinlj^ujent for one party 
 or iiu' oMnr in a suit hy the I'nited Stfftes in a nmnicipal eonrt for the 
 rfieovery of the valiu- of a seal killed, by a jielajiie hunter on the high 
 seas, hut that tliejust an«i lionorahle international oblifjation vesting by 
 agrei'Mu nt iiposi both (ioveiiinieats. will liiid aiitin-ntii- an<i final exi)res- 
 ;sion in the award (d' this tribunal. 
 
 On ill! luunls it is admitted tlnit tlie award, when rendered, will 
 eouHtitute a stipnlatir»a of the treaty in the si;:.ie, sense as if it had 
 been written in the text of the agiocnient by the high contraeting powers. 
 This being ho, and the power of this tribunal to detern)ine and estab- 
 lish eon<'Uvnnt regulations heiiifi a poinr In ordidii. dini nut a juridical 
 poirif to (h'chli'^ and boUi being united in the tribunal and Mibjet't 
 hugely to its diseretion, the facts that bear u[>on thejndieial in(iuiries 
 and upon the powers of ordination an- the same, are inade identieal by 
 the treaty, and are to be eonsidered as one entire? body of evidein'o, in 
 respect of botlt elasses of powers. 
 
 No abstract (luestirai (d" law is submitted to this tribunal. The 
 law thai is inteiidt-d to govtsns this (-use in all its parts and phases 
 is the law of Jusliei , comity, trade, conuneree, humanity, good will, and 
 peace, in carrying out a (!onuii(»n purpose of protecting and i)re8erving 
 the fur seal species in the interests of eonimeree upon the facts pre- 
 sented to the tiibuual and su<!h as are within tlie reaeli of its judi<ial 
 knowledge. It is upon this view of Hie duties of the triljunal ind of its 
 ])owei'8 and of the rights of the parties aiul the coniplexio!i they have 
 
 4 
 
 r 
 
 m 
 

 i 
 
 •>'■;■ 
 
 m: 
 
 ^ 
 
 TO 
 
 jrivcn totlM*8eiii»|uiri«>HrtiHl que»«tioiiH by the treatj that I will exuinih<> 
 the subjwt, • 
 
 The very j,'t»iit'ral iiianiier in wliich (he qiicstiuns siihiiiithMJ li> ui'l»i- 
 tratioit ;irt> Rtatcd in tlu* ti<-al,v. and the iiuii'Diiitt^ statniieiit of the 
 (■iaims ui' the respective j^jdverniiients, tlie iihsenee oC direot issues of 
 ta<rt or law in the siilnnission. aitd th<' iinhi' i cd laiifie of iii(|iiirv as 
 U) all faets, whether hislorjeal or judieial ih ehaiaeter, the j-enenil 
 form in whieh all qitestioiiH are 8tateil in the treaty, seem to ileinand 
 a broad and Just mvard by the tribunal thiit will cover a threat eon 
 troversy tliut is entirely new. In the treaty of IHiCJ, ditVerin^^ tVoni ail 
 former treaties on like nuitters, the facts which constitute the foundation 
 of the claims (tf the res)>eetive ])arties are not statetl hypothetieally, or 
 in any foiin, nor are the questions that arise on those facts staled in 
 any issnable form, nor an^ the rules of law or justice stated under 
 which the tribunal shall ascertain ainl :vhni»aH".rc the rijjhts of the 
 parties. 
 
 fu this treaty everything is \(!ft to the as«rertainnienl anil the deter 
 mination of the tribunal within very broad limits of in(|niry u|»on cer- 
 tain topics. The only separate and specilic duty imposed on the tri 
 bunal is that they will ascertain and declare the facts, and ajiply tiie 
 hiw that, in their opiintm, gives a true answer to certain sweeping 
 inquiries stated in Article VI of the treaty. This is an exeeedingly 
 broad and comprehensive grant of |)ower and dis<'retion to this tribunal 
 «>f arbitration, in reference to a subject in which all civilized eouiitries 
 are intercsfeil, and is. to numy uncivilized i)eoj)le, a source of supply 
 of food and laiment. 
 
 'i'liese great nations fotind occasion to project, if not to fornuilate and 
 to estal)lish by .mpartial arbitration, new rules of right and convenience, 
 and also of jurisdiction, that are not distinetly stated in the international 
 law, for the pnttection and pjcservation of the fur seal, to be enforced 
 outside the jurisdictional liiiutsid'thetwogovernnu'nts and of all othei' 
 governments. In «h»ing this they agreed to bind themselves to accept 
 and abide t)y the rules that this tril)unal shall adopt, and to cooperate 
 in securing the adhesion of other powers to them. A <'ourse somewhat 
 similar was followed by them in the Treaty of Washington, of 1.S7I. 
 
 Yv^heii the nature of this splen<lid fur is ccmsich-red, and the ta(;t that 
 it is the only source of supply of large pelts that is available tor the 
 uscH of mankind; and that the fur seal is the only fur bearing aninnil 
 that can be preserved by law, on the priucijtle of domestication ; and that 
 
 *;, ! / '■ 
 
80 
 
 i5» 
 
 itM value, and the enny prey it offers to a cuiiibinatidn of vesseiN and 
 w«>a|>oiiH for its <'a|itiir<- iiave destroyed the Rpeeies, in a eoinmercial 
 Hciise, ill the southern heiiiis|ihere, aiul iir<- i':i|ii<lly destroying; it in the 
 waters oC the north I'aeiti<t, it would only lie surprising if tireat Jtritaiii 
 iiiiti the I'nited (States, whosv |M'ople are alone enjjajfed in this work 
 of (h'stnietion, shonid not have a;rreeil to provider some etVectual inean.s 
 for tilt; pt'oteetion and ])res('rvatioii ol this vahial)le aniiiKil. 
 
 In the rontident expectation that all the countries where fur seals are 
 liied will adopt the methods of i)roteetion and preservation that this 
 trii>iiiial shall provide, t«» operate outside the acknowledged limits of 
 exclusive, sov«-rei};n, national jurisdiction, if tliey are found to be wise, 
 Just, and practical; and that I'e Cioveriinients concerned will take 
 )»roper eaic of these valuable animals, on their islands and coasts; 
 these two Governments have instituted a jdaii for securinj4 these ends, 
 which is well ada]ited to that purposf?. Thai result will be secured if 
 the tribunal will exert, firmly and wisely, the hifjli i»owers eontided to 
 them. ^ 
 
 The confidence felt by these Governments in the henelieial results of 
 arbitration, is fnlly jnstilied liy their past experience, and has led, doubt- 
 less, to the increasti of powers and discretion given, in the treaty of 185):i, 
 to this tribunal of arbitration. 
 
 The whole civilized world is interested in the result, and many Justly 
 expect that the award, when made, will (!over the great question of the 
 proper jHoteetion and i)reservation of the fur seal specie's in such 
 manner that the rejiulations may win the api)roval and seeiiro the 
 adlu'si(m of all the maritime jiowers. 
 
 It would be a serious dereliction of duty on the part of the tribunal 
 if they should fail to <bMil with this great (piestion in the broadest way, 
 included in the purview of their powers, and should confine their decla- 
 rations and award to narrow or technical grounds, or to a simple decla- 
 ration of rights of piopcrly in fur seals, or to the jxiwers, or Jurisdiction 
 to i)ieserve oi protect tliem in Ueiing iSca, and should provide no reg- 
 idations under which these rights, powers, and Jurisdiction should be 
 enlbrced, or exerted, wherever the seals are found. 
 
 The necessity for protecting this pro[)erty, Lis 2)cihIciih, was not fully 
 understood, and could not be, until tin; close of the sealing period for 
 18!tL», after the treaty had been (!onc1uded. In 181)1 the destructiim of 
 seal lil\', resulting fnuii the catch of .'Mt.tKK) seals in Bering Sea, by 
 pelagic hunting, was estimated as being at least eipial to the number 
 
killed on the seal islands. And tliis was the result despite the fuct 
 tlmt Uie tiiOfliiH rireiuli fof that year wjis si};ued on Juno 15. 
 
 The nuxhiK iinu<U for tSOU was Mi^^iied on the IHth of April, before 
 the pelagic hnntinjjf had oeeurred for that year. In Itoth tlu'se agree- 
 ments of ISiU. and of liSi>2, which were intended, in the first one, to 
 earry (uit the proposed treaty, and the treaty as a^^reed upon ami 
 siglied, in the .seeond one. a prohilntion of pelaj^ic sealing was agreed 
 upon and enforeed against the peoph' of eaeh (iovernnient. These 
 were "concurri'ut regulations," ai\d the neeessit.N for them was thus 
 admitted by hoth (lovernments. They wore not extended to the North 
 racifle, because the destructive etVeets of pelagic hunting there were 
 not then known to the United States. 
 
 Now, it is ascertained that the seal hunting in the open ocean and 
 at the entrances to Bering Sea is even n\t>re destructive beyond tlie 
 jurisdictional limits of both countries than it ever was in Hering Sea. 
 These facts have been developed since the cases of the parties were 
 delivered to the arbitrators. 
 
 I am led to restate these facts in i)art and to repeat arguments I have 
 had the honor to submit ui)on previous phases of this discussion, because 
 of uiy earnest desire that the award of the tribunal should measure 
 up to the opportunities and demands of a great occasion and should 
 recommend itself to general acceptance by the civilized nations. 
 
 The (piestion stated in ''point" live, of Article VI, of the treaty, re- 
 lates to the ligin of property and the right of piotciitioii of that prop 
 ertj', which tlii^ tribunal may fully decide without touching the ipies- 
 tion of the exclusive jurisdiction of Russia and the United States to 
 provide for the protection of that proj)erty, if the right to it is found to 
 exist. Those questions — "points" — as to the exclusive jurisdiction of 
 the United States arose out of claims that Russia is alleged to have 
 asserted and exercised "]»rior and up to the cession of Ahiska to the 
 United States," without reference to the question whether those claims 
 were well-found«'d in custom, in natural or nnnal law, or in the law of 
 nations. 
 
 The claim, or iiuestion, stated in point 5 of Article VI has a wholly 
 different foundation. It is a claim of "projterty in the fur seals fre- 
 quenting the islands of the United States in liering Sea," and the cor. 
 rehitive right of protecting them when such seals are found "outside 
 of the ordinary three-mile limit," to the same extent that such right 
 11405 M 6 
 
82 
 
 tiXiHts iiiiil may hv proterted wlicii tin- seals ar«^ (uuikI iii«itl« the 
 iw;kiio\vle(lp'«l ti'iritoriul limits of the islaii(I». 
 
 Tliis claim of property in the United States, if it exists and so far 
 as it is not affected l»y pres«'riptioii, is based upon the habits of the 
 animals wiiicli make them domesticated property and subjects them 
 al»s<)lntely to the possession, dominion, iintl use of the United States 
 by an irrevocable law of nature, whicli supjdies a Just foundation for 
 its jiiotective ley;islation. 
 
 Tlni ritjht of "exclusive jurisdiction of the Tnited States" to protect 
 the seals "found outside the onlinary three-mile limit" is a ri^ht that 
 is based on moral, or municipal, or internati(Mial law, or upon all those 
 laws combined in sup)»ort of justice, the protection of commerce, an<l 
 in aid of liumaMity and tlie peace and ;;(iod will of nations. 
 
 The right of the I'nited States to this property is neither greater nor 
 less, when'- it is based on the nature and Inibits of the seals, beeause 
 Russia may have asserted or exercised " exclusive rights »m the seal 
 fisheries'''' in IJering Sea; nor is the right to i>rotect the property 
 necessarily dependent upon the answer to the question, " What erclit- 
 sire jurisdiction in I'.eiingSea did Hussia assert anil exercise?" While 
 this right and this juiisdiction are correlated, they arc not identical, 
 nor do they depend necessaiily upon ea«*h other in the form in which 
 they are stated in the five points of Article VI. 
 
 If the arbitrators find that the United States have no"e\ehisive 
 jurisdM'tion'' to protect " the fur seals in, or habitually res »rting to the 
 Hering Sea," such a decision must mean that. a» between the United 
 States and (Ireul Ibitain. wliose subjects cl.iim the right to take the 
 seals wherever tbuud "outside the jurisdictional limit^ of the res|H«etive 
 troveruments," the consent of (ireat Britain is nej-essary in that ar«H 
 of the sea, to su])i>1y such lavk of jurisdictH)n by -eoneurreHt reguitk. 
 tions" to suppress, or- control, pelagic hunting. And, if the Arbitra- 
 tors hold that they have no power, in that event, to protect the seals 
 by ordaining concurrent regulations for rhat purpose, and if the Uiot»Hi 
 States havi> no lawiul power to protect fliem.aud, it (Ireal Mritaiw will 
 not consent to a joint protection of them, they will perish utterN- 
 
 If the arbitrators hold that the United State's have tlic ••« ijnsive 
 jurisdiction" to protect and preserve tli.- fur s<'als "outside their juris- 
 divtioiiul limits,'^ (\\\\'u-h is a solecism), becatise they are the • \clusive 
 owners of the seals; or, if they hold that (udagic hunting outside the 
 ordinary territcu'ial liuuts of three miles around the seal islands does 
 
mmm 
 
 83 
 
 not so afl'tM't seal life as to make it neoossary to ustabliHh n-jjnliitions tor 
 the supinH'ssion or ntiitrol (»f ihat pnictico, they will have in> iwi'd in 
 make any award rurthortlian totli.smiss all that part of theNll^)nli^«.sion 
 and leave tiie <in_./Jons sulHiiittt'd to them undecided. 
 
 Tiiis \v(iu!<l not be a •Mi'siilt of their pitueedinjis" that \M>nld l»e llnal, 
 "as a lull and perft'ct .si'tllciuoiit of .ill tlit' i|iie.stii)n.s refcncil to tlu' 
 arbitrators,'* but would leave tht^ (loveruments contVoutt'd to eaeh 
 other, with no barrier between tlitiii to i»r<'vt iit hostilities in future. 
 
 If the arbitrators should hold tliat the Initcd States "has exelusive 
 jurisdiction" to pioteet the fni- seals c»ii the open oeeaii, beeause th«' 
 seals are their e\<»lusive proi»erty. and if they should stoj) at tiiat ileela- 
 ration, many (luesiions as in tlie manner of exerting that riyhl or 
 power, whiefi lie beyond thai d«'terniinatioii, would arise; such as the 
 right of visitation, search, and seizure; and also (juestions as to the 
 etteet of statutes of the Tnited States beyond liie limits of flieir tei 
 ritorial Jurisdiction, and also the ipiestion of the condemnation of ships 
 belong infn' to Great Britain, in the c<mrts ol the I iiited Htatcs 
 
 Proper concurrent rejiulations, establislied hy this tiibunal, would 
 result in establisliiiif;' the peace ot nations, and th< prote«-tion and jnes 
 ei'vation of a valuable s]»ecies of aiiiinals, the destruction of which 
 would seriously injure commerce, would dejuive iiianv tltousaixls of 
 people of remunerative employment, and would lca\<- a bh»t on the 
 civilization of the aye. 
 
 To hold that there is no necessity for the re^ulilti(»n of |>elaieiiti«ealiBg 
 by s(mie power or sttme autluuity is to ij^nore the evidt'iir* in rhe case 
 and the .joint rejiort of the con\niissioners ai)point«>d iui»iA[»r this tn-atv. 
 and the statement and opinions of the dipUunatic nefiri'seiitativet* of 
 both countries and of llussia and Japan. 
 
 Canada alone has formerly contended tiiat no lUHieasity e.KistB tor 
 reiyulatuty pelagit- ^caliiiji;, b\it that the (ioveii:nieiit has so far modiiiml 
 its views as to aj^ree to the draft convention submilled to Mr. IJUu.'weWy 
 Lord Salisbury, which proposed a ch>sc time (or pc'hijuic sealinj; m tshe 
 North I'jK-i lie Ocean and in Jieriu}!: Sea. 1 f 1 Xanadu has not giMM- far 
 enough in tlie right dire«'tion she has, at least, admitted the nee«SHity 
 of ^>iue iMHgress, and has shown her williitsness to contiirm her a<;tion 
 t\» ihe vi^ws uniformly exp; esswl bytlM^dov' " 'of Her Majesty, 
 ^at th*" seals in ISeruig S«'a an<l the North I'.i- ■<<■ --Kould be jucserved. 
 ttfi 'hat unrevtriered ami indi;* rilHil»»t■I"*ealing^llou!d not l>» allowed. 
 There is iu> Uit^iHtte tltat thi.s ha.s b««ii the a\ owed (j4U'p«Me of bcit^ 
 
84 
 
 Oovornnu'nts in their long mid «'xlianstive (li|)lomatic corrospoiidonce 
 iMul iicpttiaf ions, and in agnMiiij,' to aihitiation niton tiif whole " sub- 
 j<M't"of' |»rot»'»tiii^ and preserving the fn r seal in l»ering Sea, and re- 
 Kortingtoorfrefineiitingiliat s«'a. Hn*. 1 think tliis matter isol'snHicient 
 importance in its hearing upon the dnties <)f this tribunal to Justify me 
 in a coneise statement of my views as t<» how the (luestions of difterenee 
 •trose between the United States aild (Jreat Britain, and how their 
 treaL.:ient gave rise tu tln^ (piesticns rormnlate<l in tlu! treaty. 
 
 The Inited States sei/ed some of tin- s(!aling vessels cn'jtloyed in 
 Bering Sea and they were eondenuuMl in their eourts in Alaska, and 
 ther^Mipon the Government of (Jreat Britain assumwl the protection of 
 vessels so employed nnder her flag, and made protest to the (tovern- 
 n>ent of the (Inited States against their seizure and contiscatiou and 
 against the arrest and i>unislinient of her snbjeets sailing under the 
 IJritish Hag, and made a elaim for <lamages in their behalf. 
 
 The lirst seiznn; was an American vessel, August 1, 1880. Thus it 
 was this di|)lomatie controversy had its origin in the insistence of 
 Canada upon tlie claim <>{' an unrestricted right of pelagic' sealing 
 without regard to the preservation of seal life, or the rights of the 
 United States, or their interests; and it was, at first, confined to 
 pelagic linnting of fur seal in Bering Sea. U was the abuse that grew 
 up nnder the asserted riglit of jtelagic sealing, as it was practiced by 
 the CaiuidiaiiM, and n(»f the arrest of the vessels that gave origin to 
 this controversy. The initial point of the lU'gotiations that resulted in 
 the treaty of I-'ebruary 29, 1A\)2, was establislied in ISS7. It was ex- 
 panded into this treaty and has drawn after it, as an incident, the 
 contention relating to jurisdiction over Bering Sea. 
 
 The contentions of the two (lo\ernments were conlined to (piestions 
 that artected their respective claims of rights, within Beiing Sea, when 
 Mr. rheli»s, minister to (Ireat Britain, on November 11, 1887, brought 
 the subject to the attention of Lord Salisbury, and then i)iopt)sed, on 
 the part of the (ioveinment of the United States, "that by mutual 
 agreement of th«^ two Governments, a code of regulations should be 
 adopted," etc., for the preservation of the seals in Bering Sea, " entirely 
 irrespective of any (juestion of conHicting jurisdiction in these \vat< -s." 
 
 Mr. Phelps wrote to Mr. Bayard, as follows : 
 
 His Lordshii» promptly ac<|uiesced in this proposal, on the part of 
 Great Britain, an<l suggested that 1 shouhl obtain from my Govern 
 ment and submit to him a sketch of a system of rcjjulations which 
 would be adequate for the puri)ose. 
 
 .. 
 
n 
 
 4» ^ 
 
 + 
 
 85 
 
 On April 10, ISHS, Lord Siilisbiiry, with a view to ineotiiip tluMvislieg 
 of the Kiissian (ioveniini-nt ivs|K'ftint,' tln^ waters HiiinniiuliiiK Hobben 
 Ishiiid, yugj^ested t*i Mr. Wliiti' '"that besides the wlude of Bering 
 Sea thOHO portions of the Sea of Okhotsk and of the I'aeitie Deean 
 north of latitude 47 degrct^s sliotihl beineluded in the proposed a rraiige- 
 merit." (See Ap|)endi\, V(»l. I. to Case of tiu' United States, p. 179.) 
 This fixed the area of tlie "l•lt^s^ time" -(M) nules sontli of the northern 
 border of Washinjiton State, lie also suggested that the close tiuio 
 extend from April !."• to October I. 
 
 Mr. Hayard, tlintngli the plenipotentiaries of the LFnited States, i)re- 
 aonted the proposal made to (Iri^at Hritaiu and the assent of Lord 
 Salisbury to the same, to the(Jovernments of Japan, linssia, (ierinany, 
 and Sweden Xorway, and asked their concunence in an international 
 eonvention to settle the (|iiestioM of pelagie fur seal inuiting. on the 
 general basis of the informal agreement reached l»y the two (Joverii- 
 ments. Hoth Japan and Russia cordially assented to such a negotia- 
 tion, and Sweden and Norway said: 
 
 The Royal (iovenimcnt having no interest in the seal f\sheries. His 
 Majesty thinks there is no need to take part in any treisty in reference 
 thereto on the jtart of the United Kingdoms. Me, however, exprt-sses 
 the desire that a mutually beiielicial accord may be arrived at betw«»en 
 the interested jiowcrs, and that tiie same nuiy be maintained, wirh a 
 reservation tliat tlui powers not at present int^nested may Join in naeii 
 an arrangement in future, if th«'-y desire. 
 
 Japan replied to the note of the United States October 8, 1887, and 
 
 said: • 
 
 The unregulated and indiscriminate s'augliter of the sea otter as 
 well as the fur seal on the coasts of .lapan and in their coterminous 
 watei's is a subject which has for many years engaged the attention of 
 th(^ Imi)erial (lovernment. Tiie experience of Mis Majesty's Govern 
 ment justities the belief tliat the end sought to be obtained can be 
 best secuiod by means of a coiipcrutirc intcniutioiuU action, anil they 
 therefore cordially approve of the suggestions of the honorable the 
 Secretary of State. 
 
 The Russian Goveriiment on November 25, 1887, said: 
 
 Mr. Wurts, under date of August 22 (September 2), was good 
 enough to communicate to me the views of the Government of the 
 United States of America upon the sul)j«!ct of the desirableness of an 
 understanding, among the (iovernnients concerned, for the reguhitiou 
 of the taking (la chasse) of the fur seal (loutres) in the Bering Sea, in 
 order that an end might be i)ut to those inconsiderate practices of 
 extermination which tlireaten to dry u]), at tiieir stmrcc, an importsmt 
 branch of internati(»nal commerce. 
 
 We concur entirely in tiio views of the Government of the United 
 States. Like it, we also have been for a long time considering what 
 means could 'be taken to remedy a state of things which is prejudicial 
 
m 
 
 1/ 
 
 x/ 
 
 not only to coiniiicro^ mid to rovcnno, but which will soon work disas- 
 trolls it'.Hults, «(>N**i/i/ fo tliv irell Ixiiiif hut <rni to the cxixtinrf of our 
 lHO])h' in till- rrtrtiue \ortfuvfxt. Tlui i'staliiislnnciit of a loasouable 
 rule, and of a lawtnl systctn in tin? use (r»'xi»loitati(ni) of the n'sourccH 
 which funiixli tliiir ttiih/ imlKstri/, is for lliosc jicoplt! of vital iiiipor- 
 taiMi'. 
 
 'I'lic prcssiiiji int<'n'st wiiicii tlic Inipcriai (iovcMiinicni has l»c«'n thns 
 cjillcd to conHidcf lia<l already sn^fj^csted to it tin*- idea of an interna- 
 tioiinl atiri'onriit, l»y wlijcii tiiis intcicstjiiifriit find its most cMident pro- 
 tection. It is by this way that tlic dillcrciit ipicstions involved can be 
 l)est resolved, and aninii;^ wliich there exists, in our opinion, a clo8« 
 coiun-etioM. 
 
 The proposition of an accord eiiianatinji troin the (ioveriinient of the 
 I'nited States, and wliich we take pleasure in considering; as a step 
 toward that jjeiieial solution, ninst. of coiir.se. hut meet the sincere 
 syin|ialliies ot the Imperial (ioveriinient and its active sni>port; and 
 tins 1 pray yon to make known to the cabinet at \Va,sliington. JMease 
 receive, etc. ■ 
 
 Thus the four powers that include between tlieiv res])eetive territorial 
 ]»ossessions all the waters of the North I'acilic Ocean and of the seas 
 in which the Alaskan fur seal is found, were in complete accord and 
 afireement that }uia<iiv xcaliuji should be riiiulatcd by their mutual covaent. 
 And L<»r<l Salisbury, as late as February, ISSS, informed Mr. Phelps 
 that he assented to Mr. Bayard's ])roposition for a close time for fur 
 seals between April 15 and November 1 in the lieriiifj Sea, and stated 
 that he would "join the Tnited States in any preventive nieasnr<' it may 
 be thoiijiht iiest to adojit, by orders issued to the naval vessels in that 
 ref;ion (»f the respective (Jovernments," (See Appendix to American 
 Case, vol. 1, p. 17r».) 
 
 The negotiations progressed thus fav«»rably until (Janada interposed 
 to prevent the settlement of the cpiestion as to which four great powers 
 had practically agreed,iand asserted that no dose time was necessary. 
 
 Canada, without diplonnilic power or responsibility, still had power, 
 through her political relations with (ireat Britain, to contr<d and em- 
 bairass thediplomacy of the Imperial (lovernment, even in antagonism 
 with the interests of the British people, as stated by Lord Salisbury. 
 
 Without (piestioning the rightor duty of Great Britain to consult the 
 interests or wishes of her colony in the matter, it is a serious and dan- 
 gerous embarrassment to the Cin'ted States that they must deal only 
 I with (heat Britain in settling ditliculties that relate to the coiuluct of 
 the Coveinmentof ('anada. She issues tishery clearaiujes to vessels 
 belonging to her people, and under them the citizens of the United States 
 are sheltered in their violations of United States statutes; and, when 
 
 ir 
 
87 
 
 they arc arrt'stort for tlie nronjr. Great Britain is called npon to inter- 
 pose, at tlic nioniriit wlicn she is n»';;<ttiatinj; with tlie I uitetl States for 
 its HU|>|M(>Hsion. Tiiis is a very einbarrassiuf,' Hituatioii. 
 
 On the I3th <<f AanUHt, 1. HSS, Mr. IMielps tield a eonversation with 
 Loril Salisl)Ui'v, and ur^^ed tiie enin|>letion of a eonventiun between the 
 Tnited States. (Ireat Britain, and Itiissia, wliieli lia<I previously been 
 the subject of disci ssi.in Ix'tween these (ioveriinic(»ts. (See App«>ndi\, 
 vol. 1, t«» Case (tf (lie Initcd Mtiitcs, p. isii.) Mr. I'iielps says: 
 
 Tiiis convention iiad been viilniiliy afi:rec<l on, e\ce]>t in its detailH; 
 and tiie Ifussiiin as well ;is the Inited States (iovernnieni were desir- 
 ous to have it ••cniphMcd. 'I he considcriiti<tn ol' it ha<l been suspended 
 for coniniunicafion \\y tlie Britisli (iovcrniiient witli tlie Canadian (iov- 
 ernnient, for wliicli piiiposr an intcr\al ol' several months liad been 
 allowed to ela|)se. Lord Salisbury's atleiition was icjH'atedly recalled 
 to tiie sid)ject by (lie I nited States, and, on tiiose occasions, the answer 
 was that no rcjtly from the Canadian authorities had arrived. I>nring 
 this interval, Canada was aidin;; with all its powers, as adovernment, 
 n supporting: and ayjiraxatiiiR the practices wliich (ireat Britain de- 
 sired to repress, and tiius left lier in a most (loul)tful and disajfreeablo 
 attitude in her relations with the United States. 
 
 Mr. Phelps states further tiiat— 
 
 In the conversation on the b'Jtli August, above mentioned, 1 ajjaiu 
 l)ressed for the completion of the convention, as tlie extermination of 
 the seals by Canadian vessels was understood to [»e rapidly proceediufj. 
 His lordship in rejily did not (|Ucstion tiie i)ropriety or importance of 
 taking measures to prevent tiie wanton destructtion of so valuable an 
 industry, in which, he remarked, l']ntjland liad a large interest of its 
 own, but said that the Canadian (l('Verninent objected to any such 
 restrictions, and that until its consent (umld be obtained. Her Majes- 
 ty's Government was not \villinj4 to enter into the convention, that 
 time would be reipiisite to bring tiiis ab(uit, and tiiat meanwhile the 
 convention must wait. 
 
 It is very ajiparer.t to me [says Mr. IMielps] that the lUitish Govern- 
 ment will not execute the desired convention without the concurrence 
 of Canada. And it is equally ai)parent that the c(Uicurrence of Canada 
 in any such arrangement is not to be reasonably exi)ecte<l. Certainly 
 Canadian vessels are making profit out of tlie destruction of the seal 
 in the breeding season in the waters in ((uestion, inhuman and waste- 
 ful as it is. That it leads to the speedy extermination of the animal is 
 no loss to Canada, because no part of tli(!se, seal (isheries belong to that 
 country, and the only prolit open to it, iji connection with them, is by 
 destroying the seal in the ojien sea during tlu^ breeiliiig time, although 
 many of the animals killed in that way are lost, and those saved are 
 worth much less than when killed at the projier time. 
 
 Under these circumstances the Government of the Uuitttd States 
 must, in my opinion, either submit to liave these valuable (isheries 
 destroyed or must take measures to prevent their dcstru<;tion by 
 capturing the vessels employed in it. Between these alternatives it 
 does not appear to me there should be the slightest hesitation. 
 
 It was thus that Canada was permitted to intervene, as a Govern- 
 
 ment, to prosecute the right of Canadians who were British subjects, 
 
 i' 
 
 ii.1 
 
 Is 
 
h 
 
 arul not Oaiuwlian subjoctn in ttic inti^rnationiil Honsp, and in a matter 
 as t<) wliicrli Uiii InrdHhip rcinaikcul that ''England liad a lartje 
 interest of its own," aiul tliat "until its (Canada's) conHvnt cindd be 
 <d>taiiied ITcr Majesty's (lovcimnent was not willing to enter into tlie 
 «!onvention." 
 
 The propriety of that intervention by (vanada was a matter between 
 those (Jovernments, but the embarrassment and damage to the United 
 States was increased by the fact that (heat Britain thus chaufjed her 
 attitude on these ipiestions without <;hanj;in;j her vieirno/ichat iran riyfit 
 in the matter, as to the preserviition of the fur seals. The I 'nited States 
 were tluis forced to abauflo'i furtlier efll'orts at cooperation with (Jreat 
 Hritiiin and to vindicate their separate rights, and the diplomatic dis- 
 cussion was then dire(!te(l to the property rights of the United States 
 in the fur seals and the "llsheries,"and to their rights of Jurisdiction to 
 protect and preserve them. 
 
 It WHS in the manner I have Just stated and under these circumstances, 
 that the 1 'nited States was forced to yield her efforts for a joint arrange- 
 ment with (heat Britain for the i)roteetion of the fur seals in Bering 
 Sea, and to fall back upon her rights as owner of the seals, and of the 
 industry based ui»on the security of these animals against indiscrimi- 
 nate slaughter. 
 
 The situation was emergent, and the United States acted upon it to 
 save the seal herd and to protect her rights and powers of government, 
 wliich were indispensable to that high duty, in that remote and pecul- 
 iar region. The separate and independent rights which the United 
 States was thus driven to assert, were : 
 
 First. That she had derived from Kussia, with the acquiescence of 
 Great Britain, the exclusive Jurisdiction to control and protect the fur 
 seals in Bering Sea. 
 
 This claim has been virtually decided by the tribunal, adversely to 
 the United States, and I will not now discuss it further. 
 
 Second. It was claimed by the United States Government that it is 
 the owner of the fur seals that are in Bering Sea or that habitually 
 resort to its waters and islands. 
 
 Third. Thatifits claim of ownershipoftliesealscannot be maintained 
 it has a right of protection of seal life, to be exerted, as far as may be, 
 under its separate j towers of sovereignty, and if these are inadequate 
 for their protection then it has a Just claim that Great Britain will 
 restrain her subjects, in conformity with concurrent regulations which 
 
 \ 
 
 W 
 
 V 
 
89 
 
 this txibmial hIiiiII «1(>t<>!fni!no in itH uwnnl, fi-oni iirtH tlint aro in lioHtil- 
 ify to seal lito ami (Icstnictivo to it, taken as n wlii»l«>. 
 
 <Mi tlu's(> (|ii<>sti<)ns, 1 now propose to state my opinion as an urliitni- 
 tor. I will (lisenss tliis matter tnrtlier in eonneetion witli tlie ri^lit of 
 pola;;:ie hnntin;; ol't'nr h(^»1.s, wliieli is tlieoiily hnnian agency that wiirs 
 npon Heal lite in tlie waters of the oeetin, and is thu ri);ht claimed by 
 the IJritisli (lovernmcnt as beinjif free and nnr«'«trieted. in favor of h«r 
 snbjeets. 
 
 Tiie elaiin (»f protection of and for seal lift^ set np by tiie I'nited 
 States is, in its most enlarjjjcd sense, simply a tpiestion of.jurisdiction as 
 to which (lovernmcnt shall exer«;iso the iMtwer to prot«'ct the seal Inrds 
 outside the territorial limits of both countries. Thcrifjlitof the United 
 States to have snch protection is not more real or necessary if it is 
 held to be the owner of the |tro]terty, than it is, as the owner of an 
 industry which can not exist if the seals are destroyed. 
 
 The industry on the islands, as it is <'onductcd by the United States, 
 is, in every sense, lefritimate ; it is useful to commerce and to other y:reat 
 industries in other countries; it is hnnniiie in its nu-thods, and is the 
 oidy means by which seal propai^atiou can be practiced 8U(!cessfully. 
 
 It is the only method that is in accordance With the avowed purpose 
 of both Governments, expressed in this treaty, and in various other 
 solemn utterances, of luotecting and ])rcscrving seal life in the North 
 Pacific Ocean. But above all this the industry based on seal life is the 
 only valuable resource of living for the jjcople on the islands and coasts 
 of Bering Sea, and if this is lost they must perish, if they remain in 
 theii' native country, or else they must bo fed and clothed from the 
 Treasury of the United States, The preservation of the seals is, there- 
 fore, a riglit and duty of government on the part of the United States, 
 which it owes to .md must exercise in behalf of those citi/ens and 
 can not abandon. Tiie ' aal industry also yields a revenue to the U'nited 
 States that is vabiuble ,ind necessary for the support of government 
 in that iidiospitable .'cgion. 
 
 If that country can enjoy the advantage of its only valuable re 
 source — its only i)roduction of commercial value — without material in- 
 terference with the i)ositive rights of the British or any other i)eople, 
 it is the duty of tlie United States to protect such means (»f existence 
 and civilization for the benefit of the people there. In the efforts to 
 do this, which have been crowned with the most honorable 8U(^cess, the 
 United States have found it necessary as a measure of government, 
 
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 to protect the seal herd aart to iiulenitiify its Treasury by levying a tax 
 
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 upon the pelts of the Heals taiten under their laws alid regulations. 
 
 This public and governmental necessity an<l riglit is not denied, but 
 if it was, the [Jnited States would still be the sole and sovereign judge 
 of that duty. In fiwtt, the revenues so derive«l iive not sutticient to pay 
 all the exi)euses of administration in the perilous and costly police of the 
 islands and the seas around them for the pr<»tection of seal life and the 
 conduct of this iiulustry. 
 
 If we turn to the photoj^raphic platits produced in evidence, those 
 historians that can not use words to abuse the truth, we see at a glance 
 what it nnist have <"ost the I'nited States already to have converted 
 these desolate islands int<» phu^es of <lecent abode, and those wretched 
 savages into s(!H'-rei(C(;tiug iwople worthy of a place and a name among 
 civilized and Christian peoples. The Unittd States can not afford 
 to allow the.se people to relapse into savage barbarity. It can not 
 abandon them to a <-ruel and destructive fate, and this tribunal 
 can not afford to stiarch for .some reason foi* assisting such a relapse, 
 ahnie in legal decisions made under muniei])ai laws in England or 
 elsewhere in private lawsuits between private litigants about pheas- 
 ants and rooks and rabbits. These two (.iovernments have found it 
 necessary, in »>rder to sectue just i«'e and pi-ace between their people and 
 to repress a slaughter of useful animals, which is wasteful, destruc- 
 tive, unnecessary, and inhuman, to remove the controvev.sy beyo^id the 
 reach of the intlucnce of the mere cupidity of men eager for private 
 gain, into the higher plane of a contest between nations. It is no longer 
 a case in which men wlu) are citizens of the llniti'd" States can accuse 
 theirCiovernmentof a mean purpose (tf making illicit gains foritsrevenm^ 
 by a tax on far seal pelts, or of aiding a in(>!i*»|»oly granted to favorites; 
 or in which renegade citizens can be allowed t<» abuse the laws ot the 
 United States by the surreittitions ust of the Hag of Great Britain. 
 
 These (loverumeuts are plc'gcd to find a way, by means of the award 
 the tribunal shall make, to protect and j)reserve these seals, and they 
 can not and will not permit them igain to beconu^ the prey of private 
 cupidity. It is only the private greed for gain at any sacrifice of great 
 public interest and duties that calls in (|uestion the public right and 
 duty of protecting the seals by international action. To dignify this 
 opposition of the seekers for private gain into a business that rises above 
 the duty of natuins towards the peace and prosperity of the world, the 
 reckless and destructive methods of the pelagic hunter are raised to 
 
 w 
 
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 R^ 
 
 
 m^vvwmm^BmK 
 
 91 
 
 the plane of the honorable and useful indnstries of mankind. This ia 
 called in tiie British rase and in tho argmnontsof HritiHh counsol "th« 
 indnstry" of pelagic hunti up: or flsliin^; and it is clainuHl that it is 
 legitimati> trade, in coioix'tition \ritli tli» trade and iiidustvy conducted 
 on the I'rihilof Ishinds by tlic I'nit^d States. An industry that 
 destroys and externiinat^is tlu* subject to which it is applied is not 
 deserving of this lionorable dc^tinition. 
 
 But, treating; it as a just and Imnorable industry, will (treat liritain, 
 now that it has ralvcu up the duty of preserving and protecting this 
 fur-seal indnstry on public aecouiit, pul>licly license and conduct fur- 
 seal hunting, in the way and with the destructive effect that it is being 
 prosecuted l)y its own subjects, and by citi/.ens of the United States 
 who abuse its tlag l>y nuiking it a shelter to ])rotect them against 
 crinnna' responsibility to their own (tovernnient ? 
 
 Is it true tliat un<ler this treaty, which leaves this tribunal to deal 
 with these qnestions as matters that concern justi<'e, peacre, an«l <"oniity 
 between nations, and not as mere private rights, the Government »)f 
 Great Britain (ilaiiiis for itself, iis a governnient, <«• for its people, the 
 right to pursue this industry in the present destructive and cruel way 
 in which it has been ;jndis being conducted! 
 
 If the strict legal right of pelagic sealing attends and legitimates this 
 industry in all waters outside actual territorial limits, and makes it law- 
 ful to surround the seal islands with shii>s an<I to kill the animals as 
 they come and go from the isl.inds to the open sea, does (ircat Britain, 
 under thin treaty, claim that the right now exists in this unqualified 
 extent, in favor of its subjects, or that it comports with the pledges of 
 •this treaty that tli;> seals are to be preserved ami protected? 
 
 Great Britain has taken the riglit to pursue this industry from the 
 hands of its subjects, on the grounds of public poli(\v and of duty to 
 the United States, and has submitted them to this trilninal for decision. 
 
 If the "industry," as it is pursued, is legitimate tishing, and if it 
 could have received the san(;tion of the Briti^'ll Government, this seri- 
 ous wrong to her subjects in depriving them of it could not have been 
 done. 
 
 It is said by counsel of Great Britain that, in the case sup))osed, of a 
 cordon of ships drawn up around tlie seal islands, waylaying the seals 
 in the breeding season as they come from and go to the sea for food 
 and killing them iiuliscriminnt«-Iy, that such an act would be malicious 
 and the United States would treat it as a casus belli, witiiin the right 
 of nations under the international law. 
 
 
if 
 
 M 
 
 98 
 
 Tlie right to give such an iiitci'))retation to snch conduct means thai 
 the industry of pelagic hniitiiig, lilvc all other pursuits, however legiti- 
 mate, is (inali(ie<l by the deiaaiids of justice tliat arc due to all other 
 nations. The international law neither requires nor sanctions a re««)rt 
 to war for the protection of the plainest rights, if they can lie pea<!0- 
 fiilly nuiintained without detriment or dishonor. 
 
 This tribunal can not, in justice to itself, adopt the suggestion that it 
 must leave the industry of pelagic sealing, in view of this treaty and 
 its great pur[M)se8, so loosely defined and so free hi its ])rivileges and 
 so licensed to maraud upon the rights of the I'nited States, that an 
 assemblage of sealing vessels in Bering Sea, siitticient to destroy the seal 
 herd in one or more seasons, is lawful. If it is malicious it is admitted 
 to be unlawful and that in such case the only remedy is war. In such 
 case the United States, being forced to judge of the evil and to provii'.e 
 the remedy, would, as any court of justice must do, impute the malice 
 to the nature and consequences of the act. This tribunal is authorized 
 to act upon the same presumption in prohibiting this evil. 
 
 Following u|> this right in all parts of the Bering Sea and in the 
 Pacific Ocean, the ITnited States would justly impv.tt! malice — a pur- 
 pose of wrong-doing — to all sicts that warred upon its revenues, in 
 respect t^) fur-seals, during the i)eriod of resoit to the islands. This 
 action of the United States would find its full justification in the doc- 
 trines stated by counsel, which should be a<loptcd in the award in this 
 case. If it would be right to resort to war to prevent or redress such 
 wrongs, the more peaceful remedy can not be contrary to the law of 
 nations. 
 
 If we follow the British contention as to the rights of pelagic sealers," 
 and refuse to put any restraints upon pelagic^ sealing, insteiid of mak- 
 ing an aniitnible settlement of the coiitroversies tliat i^alled us together 
 we would leave new and burning (pit-'Stions ojien between these Gov- 
 ernmer ts to be settled by war. It is M<»t to be expected that the United 
 States, if left by thi;', tribunal to the duty of defending itself against 
 the abuse of rights accorded to pelagic hunters, without any restric- 
 tions being imposed upon them, will fail to avail itself of the necessary 
 means of doing that duty. 
 
 I now turn to other views of this subject which I think are made nec- 
 essary by what has occurred in tliis case. 
 
 The unrestricted right of pelagic sealing has been supported by the 
 assertion that it is the only way in which a monopoly in the ftir-seal 
 
 ■i 
 
^Mlpi 
 
 1 
 
 T 
 
 93 
 
 trade, growing out of the ownership of tlie seal isltmds by the ITnif ed 
 States, can be counteracted. 
 
 The conunoi-irial attitude of the ITiiitud Htates towards the supply of 
 the markets of the world with the pelts of the fur-seal, is the same 
 that all countries lutld in respt^ct of any -vaiuahle connnodity that is a 
 peculiar pro<luct of the 8«iil or climate. The incentive of commercial 
 interchange, the necessities of the consumers, and the laws of supply 
 and demand are simply left to regulate the outflow of such productions 
 into the oi)en channels of commerce. 
 
 If the United States, alone, produced fur seals, the Constitution of 
 that Government, which prohibits all duties (m export.s, attbrds a 
 guaranty that no other nation has given iigainst the possibility of a 
 
 • * 
 
 monopoly in the jielts of that animal. 
 
 But Russia and Japan yet remain as active competitors in this and 
 other branches of the fur tnule, and their care of this industry and the 
 distance of their sealing islands from the coasts of ('anada and of the 
 United States and theditliunlties of navigation in their seas are likely 
 to preserve a ^*^ge proportion of their seal herds from destruction for 
 many years to come. Miiny peltries will be thus supplied to commerce, 
 in competition with those that are taken by the United States. 
 
 If the regulations of seal hunting, that are found necessary by this 
 tribunal to preserve the spc<'ics, are adopted by those Powers along 
 whose coasts and islands the fur-seal formerly abounded, the number 
 of these aninnils will again increase in the southern hemisphere until 
 the world will have, again, an abundant supply. 
 
 The course of the United States in reference to the care and nurture 
 of seal life is directly opposed f** tin* engrossment of this product in 
 the way of monopoly. On the contrary, that (iovcrnment has shitwn 
 its anxiety to preserve and increase the stock by its "egulation of kill- 
 ing on land, by forbearing, during three seasons, from taking seals in 
 excess of 7,5(HI which were reserved for the support of the natives, and 
 by reducing the number of seals that tlie lessees were entitled to kill 
 from 100,000 to 00,000 per annum, at the i)ossible risk of pecuniary lia- 
 bility to the lessees. 
 
 Besides this, the exi>ense of agents and superintendents ot the islands 
 and of guarding them from the raids of poachers, is very considerable. 
 
 It is dilHiMilt to conceive that a government could have done more, or 
 could have acted in better faith towards other powers, in a matter where 
 there is an acknowledged public ti'ust arising from its possession of the 
 seal islands. 
 
94 
 
 Tariff duties that prohibit or strongly tend lo the uxulusioD of iin- 
 portM, 8o an to benefit the special iudusti eH ur proiluctiontt of a country, 
 are in the nature of monoptdies of the home markets and are generally 
 enforced by enlightened governments. And they do not stop to inquire 
 aH to the injuries that such laws may entail upon other countries. 
 
 TobAcco is not exttuisively produced in Euro[>e, and several of the 
 European governments purchase the stock, chiefly from xVmerica, and 
 manufacture and tsell it on government account, and fix the prices that 
 consumers, in those countries, must iiay for the manufiictured article. 
 This monopoly works an injury to manufacturers in America, but no 
 one has thought to unike complaint against the governments that create 
 it, in respect to an American production. Jn this important matter 
 the Congress of the United States has no power to }»rotect the pro 
 ducers of tobacco or the manufacturers by an export duty on tobacco. 
 
 Many otiier instances of monopoly of trade could be cited to show 
 that it is essentially a power of government which any nation may 
 rightfully emidoy to provide for its revenues and the welfare of its 
 people. 
 
 There is, really, no conceivable case or condition connected with the 
 industry of the fur-seal fisheries in which the United States could 
 monopolize this trade, except by destroying, as rapidly as possi- 
 ble, the seals on the islands. When a government finds it necessary 
 to protect these animals against its own people, as well as against 
 those of other countries, by assuming to itself their exclusive owner- 
 ship, a monopoly is the invitable resale and it is indispensable to the 
 safety of the property. This sort of mono))()Iy is a iMut of the duty of 
 government and of its legitimate powers. 
 
 It is both the right and the duty of the ITnited States to assume and 
 to exert ownership over these animals, in (n-der to extend to them 
 the protection that is due to useful domesticated animals. The legis- 
 lation of nearly eveiy government upon whose s^vores or islands fur 
 seals resort habitually for breeding pur])oses assumes over them a gov- 
 ernment control for their protection and the right to raise revenue out 
 of them, which is based on the right of a]>propriating them to govern- 
 mental uses and purposes, so that all those governments are in that 
 sense, monopolists. Such control can not be less than an assertion 
 of a right of ))roperty, for it prohibits all persons fron> asserting a 
 claim to them on private -ccouut, and it makes them a source of revenue. 
 These may be justly called laws for the domestication of the fur seals^ 
 
96 
 
 • . 
 
 laws for iM)iivertitig tliem into proi)erty an (fomcHtit; animal.^. Tluiy differ 
 firom gainelawH, which protuct, wih? aiiinialM in onler t<) secure agr(>uUM' 
 supply for the common use. 
 All this leginlative cendcncy indicates, in tlio plainest nianno.r, acon- 
 ' census of opinion and a comnion movement in tlie direction of clansify- 
 iug fur Heals as domestic animals in respect to their protection by posi- 
 tive laws; Why this universal sentiment should only be resisted hy 
 Cauada for puri>ose of assisting her peojile in making selfish gain, is 
 an inquiry that oidy gives jMiint to the suggestion that the interna- 
 tional law should conform t<j the general municipal law on this subject. 
 The careful examinations and reports of many eminent naturalists, 
 supiwrted by a general and distressing exp<'rii'nce as to the extinction 
 of the fur seals, first in the southern hemisphere and now in the northern, 
 has set the lociU lawmakers to work in contriving statutes to stop these 
 destructive practices and to restore the herds to their former status. 
 All these laws are based on th-J'act that f/orernment control of the Hmlx 
 in neceHHiiry for their preticrvation, and that the seals are entitled (o the 
 same protection of the /« w, united to their nature, as other domestic animals. 
 As this subject is now presented for the first tinu*. toan internatitnuvl 
 tribuiuil, aud in a controversy between two great powers, and as the 
 origin of the (juestions so presented is of a very recent dat«?, and as no 
 direct precedent or discussion exists to guide or control the judgment 
 of this tribunal, a proper occasion is presented for declaring that these 
 aninuils should have the :.ame classification under the iiiternatioiuil 
 law that they have under the municijtal laws of all (•(Hintries that fur- 
 nish a resort for the fur seals during tlieir period of compulsory living 
 on land. Such a declaration would not create a new rule of inter- 
 national law; it would only apply the rules that may now be termed 
 universal law, in municipal legislation, to that area of the earth's sur- 
 face in whic'h there is no supreme law, because theie is equal sov- 
 ereignty in all nations, and would include in those rules tlie preserva- 
 tion on the high seas of aninnils that are so serviceable to man as to 
 <leservc ^> be classed as domestic aninnvls. All useful animals are sub- 
 jected to domestication by the divine d<^cree that gave to man the 
 dominion over the beasts of the field and the birds of tlie air. 
 
 Laws for the protection of aninnils are elaborately provide<l and are 
 nnule cardinal features of all civil cod<!S ami of the moral code of the 
 Pentateuch. This benign system has expanded from age to age so as 
 to admit within the circle of domesticated animals, that are prot4.>cted 
 
t 
 
 j- 
 
 96 
 
 by Iaw.4, all that have been fouisd of common use for food or raiment, 
 and art', by their habits, capable of identification with reference to sep- 
 arate ownership, such as slielJ-fish yielding pearls, oysters, c^anis, 
 corals, tiponges, et<!., and a large nnniber of animals that were not so 
 classed until within a recent period. 
 
 The tendency has been nuiform to enlarge the scope of the laws so 
 as to include all animals within the classitlcation of domestic animals, as 
 occasion has presented, au<l no aninnils have been permitted to be rele- 
 gated to a classihcation as wild animals, that have been once included 
 in the protection extended by the laws to domestic animals. Any 
 other rule of iiction would deny to all new conditions that are valu- 
 able, the protection of the principles of international law. 
 
 The domestication of animals by general usage, or by law, attaches 
 to them the presumption that they arc exempt from slaughter at the 
 will of anyone who may choose to kill them. Within the field of oper- 
 ation of such laws, sui;h animals are protected as all domestic animals 
 are protected. Outsidv! that jaris<liction, they are protected by comity, 
 or by the application of principles of inte^ii Monal law, deiived from 
 municipal laws, or else fiom the sentiment or the necessity that lies 
 at the foundation of municipal laws. 
 
 Those principles are justly founded on the general usefulness of the 
 animals to mankind, and the consequent necessity for giving them pro- 
 tection. The international law should attach to them the same pre- 
 sumption of domesticity that is attached to them in such cases by the 
 municipal law. 
 
 In matters like those submitted t<> us the opportunity occurs for a 
 formal declaration, which, by treaty agreement, is made obligatory upon 
 two great powers, of the relation that these animals should bear to the 
 question of their preservation, in the international law. That relation 
 is uniform and unbroken, except in the laws and Uisage.. of Canada, in 
 all the legislation of all the municipalities tliat have any interest in the 
 subject. It is nothing less, in etlect, than a declaration of those legis- 
 latures that fur seals, by reason of their value, their helplessne^ to resist 
 or escape from the power of man during a large part of every spring, 
 summer and autumn, their docility and the absolute necessity of giving 
 them that protection by positive law that nature has denied to them, 
 should be classed and are entitled to be classed in favorem viUe, as 
 domesticated animals. 
 
 I can not understand how it can be possible, in view of the facts, that 
 
 .. 
 
 1 
 
 ri^iEj^'^ 
 
 • 'VX t K '- 
 
97 
 
 this Tribunal slinald tlecliire that thoy are wiUt aiiiinals in contempla- 
 tion of law, and shall hav« no more Hhelter afjainst the greed of man, 
 assisted by his genius in the invention of instniments of destrnetion, 
 than they have against tln^ kilhu whale. That their only i>rot«etion 
 shall be their cajHieity, in the water, Ut es('ai>e pursuit, out «»f which 
 clement they must 8i)ond nearly half the i)erio<l of their lives, is too 
 imperfe<!t a shelter for sueh a valuable contribution to tommeree as 
 these animals yield, to receive the sanction of the great commercial 
 nations. 
 
 11495 M 7 
 
REOULATIONS. 
 
 TUB TBinUNAL, HAVINlJ DKCIDEU THE OTIIBtt QUESTIONS SUBMITTED 
 TO THEM I'NDEB THK TREATY, PBOCEEDEU TO THE CON8IDKKATION 
 OF THE SUn.IEOT OF PIIOPEB RE(JlLATIONS FOR THE PROTECTION 
 AND PRESERVATION OF FIR SEALS IN THE NORTH PACIFIC OCEAN, 
 INCLUDING RERINO SEA. 
 
 On thiH to\nv. Mr. 8«iiat<>r Morgan delivered ttie following opinion: 
 
 I have heretofore inHisted that when eoniMirront regulations are 
 atlupted they will be the result of the power of tlie Tribunal to agree 
 upon and stip'jlate a fcaMireof <lie treaty, in respect of pelagic bunt- 
 ing of fur'-sealH, as betw^fcn the two Governments; as much so, as if 
 the regulations luid been formally agreed upon and written iDt«) tliu 
 boily of the convention under which we are acting. I understand that 
 this point is agreed to on the part of all the Arbitrators, and I so 
 state it. 
 
 (2) The Arbitrators, in the exercise of these powers, must act as 
 impartial negotiators, as they hold their authority from both the High 
 Contracting Parties, under the treaty; and, their award being final, it 
 is sanctioned and sustained, if it is within the purview of their author- 
 ity, by the sovereign powers of both Governments, pledged in the 
 treaty in advance of the de<-ision of the Arbitrators. 1 also under- 
 stand that this [loint is not disputed. 
 
 (.3) The regulations we shall a(V>pt are in no sense judicial decisions^ 
 though they are based upon principles of law declared by the Tribunal, 
 nor is the power, or duty, of making them, so as to i)rotectand preserve 
 the fur-seals, restriiined or controlled so as to conform to the personal 
 interests of pelagic hunters or the national interests of the United 
 States. The two Governments have removed such considerations from 
 the scope of our duties by assuming absolute control of the entire 
 svibject, which was found necessary to be done in order to properly 
 protect and preserve the fur-seals in the interests of commerce and 
 humanity. In like manner they have excluded from our consideration, 
 98 
 
"*4 urinipij.. 
 
 99 
 
 according to the decision of the Tribunal, the qiicHtion of gain or 
 advantage to the United States, a» a (Government, rcHulting from the 
 preservation of seal life. 
 
 The modm eircudi, established for three consecutive sealing scasonH 
 took the highest possible governmental authority over the fur-seals iu 
 Bering S'^a, and during those seasons prohibited all iiclagic sealing in 
 those waters. This is a virtual declaration that fur-seals, while swim- 
 ming freely in the ocean, are cai)abh' of being treated as property and 
 are subject to the care of the two ( Govern raents. 
 
 The last of these agreements is incorporated with and made a part 
 of the treaty of February li», I8»2. 
 
 ■ (4) The true attitmle of the rjuestion wo are now to consider is 
 simply this, to use the language of the treaty : " The arbitrators shall 
 then determine what concurrent regulations outside the Jurisdictional 
 limits of the respective governments are necessary, and over what 
 waters such regulations should extend,'' "for the proper protection and 
 preservation of the fur-seals in or habitually resorting to the Bering 
 Sea." 
 
 It is not possible that the power tt) determine regulations to operate 
 outside the jurisdiction of the two tJovernments, which can oidy include 
 pelagic sealing in the waters of the Tacific Oceaii and Bering Sea 
 outside the territt)rial limits, can be so stretched, without a bohl usurpa- 
 tion, as to include the killing of seals on the land. 
 
 It is quite as impossible to suppose that either government intended 
 that by concurrent regulations this Tribunal could provide laws for 
 either Government that should o|)enite as laws within the actual bound- 
 aries of tJie other. 
 
 When the power is given only to determine "over what waters such 
 regulations should extend," it is not possible to conceive that the Tri- 
 bunal has the power to determine over what lands or islands they 
 shall extend. Tliis power is so clearly withheld from this Tribunal by 
 the treaty that its exercise would be ultra vires, in any form or for any 
 conceivable purp«)8e. 
 
 So that we have in the body of this treaty the statement and actual 
 enforcement of the power of the British (Jovernment to dismiss from 
 consideration the personal rights of its subjects, under international 
 law, in respect to pelagic hunting, and the assumption by that Govern- 
 ment of supreme and absolute control over them and their rights. All 
 this was done for the purpose of making the matter of concurrent reg- 
 
4MI 
 
 i'i 
 
 100 
 
 iilatioiiH a question between tlie two (iov(<riiiiieiitH, /<« be controlled by 
 the mutual intv.rnnthnal policy of inotntiiuj tinil preHirehiti thr Ahmkan 
 Heals, on to irhirh /mrpouc both (htrei'mtivntH ore in uvvoiul. Tlioy ngreo 
 HM U> tlie iiintioiiiil duty of botli (ioverniiientH to protect and preHerve 
 tliese fiir-HotilM, and liavn only dl^4agl'ee(l aH to tlio riglitfid aijd boHt 
 method ot'exoenting tiiJH duty. 
 
 (a) There Im no mJHtakiii;; th«i uxa<!t nature and extent of tlic {Hiwur 
 e<Hiferred on this Trihuinil. It in «in)ply tlie pciwer to deterniinu eon- 
 current reguhitions fo»' the i)roper prot<H-tion and ineMervation of the 
 fur-H'.'alH in or inil)itindly resorting to Herin;; Sea, and to designate 
 the Witters that sliouhl be incbnled in sueli regulations. 
 
 If this Tribunal bases its award upon the etVect that sueli regulatiouH 
 are t^ihave on Mie rights or jirolits of i»ehigi(t seahM-s, they rebuke both 
 (iovernnientsfur iiavingassunied tiie wlade responsibility of that subject,, 
 and for having retired fioni view this private rights of their citiKenu 
 under tln^ international law, and for having subjeeted them to such 
 municipal laws of the lespeetivi; (Jovernments, to be enacted in con- 
 formity with the award, as shall accord with the avowed public policy 
 of those (lovernments to preserve and protect the fur-seals. 
 
 These Governments have not invited us to decide how far this 
 policy, mutually agreed to and declared in the most une(|uivocal terms, 
 shall be obstructed by our ettbrts to take <!are of the interests of their 
 citizens engaged in pelagic sealing. They have assumed that duty 
 and will doubtless respond to it. 
 
 Both (rovernnients would r<*joice if the preservation and proteetiitn 
 of the seals in question would admit of the greatest extent of pelagic 
 hunting by their citizens consistent witii the prudent and humane 
 treatuMMit of these usetul animals. Btit they carefully «*(insidered that 
 question and appointed a joint Commissirtu to make exannnation into 
 all its bearings. That CommissioM made a Joint report before the 
 treaty, signed Febriuiry 21), 181H>, had been ratitied by either Govern- 
 ment, in .vhich they say: "5. We are in thoiough agreement that, for 
 industrial as well as for other obvious n^asons, it is incund)ent u|H)n all 
 nationH, and parti(!ularly upon those having direct conmiercial interests 
 in fur-seals, to provide for their protection and preservation;" and 
 further, they declare that^ — "7. We find that, since the Alaskan i)ur- 
 chase, a marked diminution in the number of seals on, and habitually 
 resorting to, tlu^ Pribilof Islands has taken place; that it has been 
 cumulative in ett'ect, and that it is the result of excessive killing by man." 
 
■■■ 
 
 101 
 
 Tlu'HO two NiitloiiH, nrtiiiK on tills n<|M»ii ami ii|m)ii oIIkt iiMoeitiiiiitMl 
 flM-tH of tim pravost cliaraclcr, took Hir sulijcvt iiiln thiir oirii IkiiuIm and 
 proviiUMl lor tlif dt'tcrniinntii-u nrcominrnit n'^nlnlions by tliis Tribn- 
 nal, to operate ontsith^ tln'.inrisdictional liinitsot' tlic IvvtiiJovi'mnicnts, 
 on the wutiT and n«)t on tlie land, for tlie proteition and piwHcrvatioii 
 of those fur seals. 
 
 The Hnhject <»f repnl-iiin); the s«'al herds on land was not mentioned 
 between the Go' "innieiils in their iie(,'otiations. nor in llie treaty; 
 <lonl»tIess for t. .eason tinit <'.reat liritaiii saw tiial it was tlie interest 
 of the United States to proteet and preserve the seals anil to promote 
 their inerease, and luwl no eiiuse then or siiue to doubt the j,'<»<»d faith 
 of the United Shites .n (he use of every means that would contribute to 
 that end. 
 
 "The excessive killing by man" thn* tlie CommisHioner-t africfd to 
 report eoiihl n<»t have lieeii tlie Uilliiiv: by tlu' I'liiti'd States on the 
 islands of St. I'aul aiid St. George: otherwise, that fact wouhl have been 
 mentioned and made the subjeet of negotiation. 
 
 The protection and preservation of the seals ajiainst excessive kill- 
 ing, is the killing upon the waters (uitside the jurisdictional limits of 
 both c<tuntries. It is beyond a reasonable doubt that it was pelagic 
 killing that was considered by the I'nited States and (ireat Britain 
 as being so destructive to seal lite as to make it incumbent upon all 
 natiom to provide for their jirotectiim and preservation, and was especi- 
 ally the duty of these two i»owcrs. To do this, these (ioveriiments 
 agreed with each other to place this question ui»oii the high and just 
 ground of international duty, disrcgaidiiig the profit that might accrue 
 to the subjects and citizens of both countries froni thi« indiscriminate 
 slaughter of the t'lir-seals, or to the United States from preserving and 
 increasing the number of fiu-sealsi 
 
 (6) This Tribunal is to maKe regulations that apply to this herd tw 
 itn preHenteon'1'.lhm,iUH\ not v.ith referen(!e to some former condition. 
 
 The most «'ons|iicuous fact .11 the'presLMit situation, and the danger- 
 ous fact of the inevitabh' future, is this, that (he fur-seals will disap- 
 pear rapidly if thejielagic liiiiit«'r is iible to make that business profitable 
 oil the sea and to make it uiiprolitabli' on the Pribilof Tslands. I'Jither 
 of these reaultn will (h-xtroji tlif/iirscalx rapidly, ami both 0/ Hum would 
 make the f^fHtruction mtddi'ii. <iiid that witlioiif rimed ji. And if on,' rcHult 
 enntieH, the other must follow ttpcedihi. 
 This treaty also requires this Tribunal toconsider and decide concern- 
 
\i 
 
 102 
 
 ing the rigUtsof thesubjcctK and citi/oiiHof either c(>imtry as regards the 
 taking of fiir-Kcals in or habitually resorting to Bering Sea. Whether 
 tlii8 question lias been decided or remains to be decided the Tribunal 
 has not yet come to any resolution. That subject, though I have 
 demanded its separate examination and decision, has been ]>assedover 
 by the Tribunal, but in either case I will assume that their rights 
 must be e<iual and that there will be no discrimination between the 
 people oi the two countries as to such rights. 
 
 If the right is given them by tiiis award to siicmr the North Pacific 
 Ocean and Bering Sea at all sciisonsof theyear, with all descriptions of 
 Hrearms except rides, and with such number of vessels as may be 
 tempted into the business by its profits, assisted by steamers to carry off 
 the catch so as to keep the hunters steadily employed in killing seals, it 
 will not be possible for the Congress to prevent, the citizens of the 
 United States from sharing in the raids upon the seals equally with 
 British subjects. I mean that the people of the Onited States would 
 withdraw their support, as they should do, from any body of representa- 
 tives that would tolerate such an injustice, and nil seal hunters and 
 many thousands who are not, would rush in to destroy them as they 
 did in 18G8. 
 
 We can not expect to impose upon the United States the duty of 
 keeping up this expensive and harassing plan that it now maintains in 
 good faith and perfect honor for the presei'vation of the fur-seals when 
 ■we condemn the seals to certain destruction in the fiice of the avowed 
 policy of both countries that they should be protected and preserved. 
 
 We can not expect the United States to maintain its i)rohibition of 
 pelagic sealing in Bering Sea as to its own citizens when we enjoin 
 it upon that Government, as a moral duty and a treaty obligation, to 
 repeal her laws as to restrictions upon British subjects in that sea. 
 
 This is what the United Statep nuist do, under (ioncurrent regula- 
 tions framed upon the plan of Sir John Thompson, or else it must vio- 
 late the spirit of the treaty, if not its letter, as it is to be declared in 
 such an award, because of the disadvantage to its own people. We 
 can not thus condemn the policy of the United States in its faithful 
 ettbrts to preserve seal life, and expect that (iovernment to maintain 
 its rigorous laws against its own citizens. 
 
 If we extend an invitation to other nations to enjoy equally with" 
 Great Britain and the United States the looting of the seal herd in 
 the North Pacific and in Bering Sea, we pledge the honor of these 
 
 t 
 
 
 4i 
 
mmmmm 
 
 103 
 
 GovbriiiiientH that tlioy will sustain the rights of all nations, both in a 
 moral and national seiisu, in like invasions of the herds of Kussia and 
 Japan. 
 
 The flag of the most insignificant power in the world will have the 
 pledge, through such an award, of perfect iinniunity and protection 
 while raiding the North Pacific Ocean and Bering Sea with all imple- 
 ments of destruction, not excepting any, and in such number of ves- 
 sels and of such tonnage and description as they choose, not excluding 
 steamers, and without having a license or a distinctive flag. 
 
 A recent event has demonstrated the fact, if it needed any demon- 
 stration (as it does not), that the little kingdom of Hawaii will, through 
 the help of renegades of the United States and Canada, grow rich in 
 renting her flag to them in order to take advantage of the scheme 
 presented here by Great Britain as her project of regulations. Why 
 these two Governments should thus create such a destructive fatality 
 to seal life through the award of this Tribunal while professing the wish 
 and purpose of protecting it is quite beyond my ability to comprehend. 
 
 The regulations submitted by the respective Governments for the 
 consideration of this Tribunal must be regarded as their oflicial state- 
 ments of the basis and plan of settlement proposed by each, and not as 
 the ultimatum of each Government, between which we are to choose by 
 accepting the one and rejeating the other. And, as no plan or formula- 
 tion of regulations is stated in the treaty or alluded to, this subject is left 
 to the judgment of this Tribunal, which is at liberty to discard both 
 schemes or to a<lopt regulations that neither (Jovernment has sug- 
 gested. The only limitations on tiie jiower of the Tribunal in this 
 regard is, that the regulations shall be concurrent and, therefore, 
 uniform as to both Governments, that they shall relate t<» waters 
 that are outside the jurisdictional limits of either Government, and 
 that they shall be "necessary • • • for the proper protection and 
 preservation of the fur-seal in or habitually resorting to liehring Sea." 
 
 The treaty also furnishes a guide as to the general nature of the reg- 
 ulations, that they should be such as to claim, for their international 
 8upport,the adhesion of other p:)wers to such regulations. 
 
 It will be observed that the invitation of the two Governments to 
 other powers, that they wilt give their adhesion to this treaty, relates 
 only to the regulations we fire to provide. Ithas no relation to any other 
 part of the treaty. The object of this invitation was not so much to 
 prevent other i)ower8 f'om encouraging pelagic sealing in Bering Sea, 
 
I IHMJ f ■ 
 
 104 
 
 m 
 
 or tlio Ncirtli Pjurific Ocean, as it was to obtain tlieir consent to regu- 
 lations that would preserve! and protect fur-seals in the waters in which 
 they are found anywhere in -.Ne wiu-Ul, if tliey are generally u^lherred to. 
 
 No nation except (Ireat i^ritain lias found itself interested in the 
 hunting of the seal herd that reseirts to Uering Sea. The people of 
 other nations have not carried on pelagic sealing in that herd, or in 
 the waters of ^he North Pacific or Bernig Sea. If the regulations 
 that we adopt aie founded upon or uioditied by the peculiar interests 
 of Canada, or the United States (as is proposed in the British case), 
 the other powers will find that they are in no sense iuternatiuiiai, but 
 are entirely local; that they adopt no general i)rinciple of action for 
 the protection and preservation of fur-seals, but are only an expedient 
 devised to get rid of a particular controversy between the United 
 States and one of the provinces of Great ]iritain. We could not ask 
 other -^iwers to adhere to reguhitions based (.n grounds so nam w and 
 selfish. It would be in ett'ect only a request that they would agree 
 not to interfere with this herd of seals while they are being divided, 
 according to an award of this Tribunal which appoitions them between 
 the United States and Canadian sealers. 
 
 The regulations presented by Sir John Tlunnpson appear to be based 
 upon the recent moduK vircwH agreed upon between Russia and Great 
 Britain, to which the attention of the Trib lual has been called. Hussia 
 appears to have accei)ted that arrangement a.-< a mere temporary check 
 upon the aggressions of the pelagic sealer, and \\wi accompanied it 
 with reservationa and prote' utions that show her .extreme unwilling- 
 ness to adopt it as the fi'.a) J • mitiovs of 'uti rights. 
 
 If the award of this Tribu.^nl sJi* ild thus conform to the plan 
 adopted in the Anglo-ilussiau mo:'uK VfVfndi, it wil' either force Kussia 
 into terms of final agreement w-; Great Britain that she would not 
 otherwise ado)>t, or it will show a wide distinction between Kussia and 
 the United States in treating vrith Great Britain about a subject of 
 the same character, ai»d in reference to the same body of waters, 
 litissia could not rinally adhere to the regulations proposed in the pro- 
 gramme presented l)y Sir John Thompson, without agreeing to all that 
 Great Britain is demanding of her, against much of which she is 
 firmly p^ot^sting. 
 
 Before stating the form Of regulations to which I would prefer 
 to give the support of my voice in this Tribunal, I will state some 
 concluoious of fact that I have drawn from the evidence as to the 
 
 (. 
 
 i! 
 
105 
 
 uliiirsu;tor of tlio rejjiilations whirh iiic iiecesHiiry to cxerutii tli« piir- 
 jKwe (if botli tiovtM'iiiiients to pit'servo uimI |)rot<'ct the fiu-sciiKs of tlui 
 Alaskiiii herd, and that wouhl also answer a boiietii-ciit purpose in 
 acconiplishiii^ tliu niiiversally (Icchnctl wish of all iiatioiis inteiestcd 
 in the. subject of prot.ectinjr and pir,servi:i{;f seal life, and in repaii-in^i; 
 tlie daniat^e tliat has been intlicted upon it by raiders iw tiie absence 
 of governmental |)rotection. This, 1 take it, is the real ground uiMin 
 which other powers are to be invited to give their adhesion to the reg- 
 ulations that this Tribunal may determine ami award as between 
 Great Britain and the United States. 
 
 The regulations, like all enactments of laws that are remedial in 
 their character, are to b(v framed with a vii'w to giving relief against 
 an existing evil, and this can oidy be wisely and Justly accomplished 
 when the nature and extent of the evil is first ascertained. When that 
 is done, the nature of the evil suggests the character of the remedy, 
 and we can not frame the remedy that we are to provide; so as to merely 
 check the evil for a time, leaving it to burrow and work its havoc at a 
 date that is more accei»tuble only because it is moi-e distant from us. 
 The occasion requires a just, serious, and liini attitude as to a ques- 
 tion of great importance to the whole world. 
 
 I will now state, as I gather from all the evidence before us, what is 
 the evil that these fSovernments have tbund to be so threatening to 
 .seal life in the Alaskan herd as to draw tliem into an agreement that 
 it should be repressed by their concurrent action. 
 
 1 will not attempt to examine again the details of the evidence, so 
 thoroughly presented and with sucli judicial impartiality, by Mr. 
 Justice Harlan, I (lan lind no flaw or omission in his careful state- 
 ment of the evidence, or in the conclusions that he drew from it as to 
 matters of fact. I believe that Im' .stated the exact truth of the situa- 
 tion, and I fully concur in his treatment of the subject and in the 
 conclusions that he has reacrhed. 
 
 The present situation, as I understand it, is as follows, as shown by 
 a comparison of the I'libilof and pelagic cat(;hes: 
 
 Year. 
 
 18(10 
 
 IHBl 
 
 1882 
 
 I88a 
 
 TotaJ 
 
 • Gstlniatod, 
 
 I'libilof 
 IhIhikIh. 
 
 Totiil 
 pi'lHKii' 
 
 Cfttlll. 
 
 2l,2:i4 .'il.ftW 
 
 12,071 «8.0O,( 
 
 7,5011 7.1, S04 
 
 7. .500 '80,000 I 
 
 48,3l'S 273, 04g 
 
106 
 
 III 1889 the Piibilof catch was 102,01 7, which fell off to 21,234 in 
 18!H>, and this was all that the islaiidM would yield of killable seals, 
 leaviiij^ a dcHi-it, as compared with the previous year, of 81,379 seals 
 (iimii the islands. If this contrast in tlie number of seals that could 
 be taken on the islands in 1889 and 1890 was due to the overkilling 
 of nuiles on the islands, and not to pelagic hunting, the falling off of 
 numbers would have been indicated in each of the six years prior to 
 1889. No one has asserted such a fa(;t,and we know that a male seal must 
 be G years old before he is able to take up and maintain a harem on 
 the niokeries. So that this sudden falling off betwet^i 1889 and 1890, 
 if it Avas due to an excessive killing of males, must have occurred at 
 least as early as 1882. This is n(»t true, and no one pretends that it is. 
 The kilting of 51,05") seals that the pelagic hunters got, and at least 
 threefold that number, including those that were lost, must have 
 resvched 300,000 seals that were destroyed. Of this nund)er, three- 
 fourths were females, that are not killable seals on the islands, and are 
 not counted in the I'ribilof catch. 
 
 The verification of this calculation is almost perfec t in 1892, when 
 the pelagic sealers tool 73,000 seals, and in 1891 when they t«ok 
 08,000. The close apiu'oximation of these figures shows that the loss 
 of the seals <ni tlu^ islands was due to ])elagic sealing, and noi to 
 the want of virility in the bulls on the breeding grounds, or to any other 
 cause. 
 
 That the process which has acttndly depleted the seal herd in four 
 years to the extent of 5(»9,0(55 (273,(MIO of which were fennales), in an 
 that rctiuireit to he rcmcdkd, for the sake of the protection and preH';rva- 
 tion of Heal life, no one can doubt, as it seems to me. This jirogressive 
 depletion of this herd of seals can not fail to destroy them very soon, 
 and, in the meantime, to <lei)rive the United States of all possible 
 mlviintage and compensation (lerive<l from its efforts to save the species. 
 What the United States has <lone, or omitted to «lo, to deserve treat- 
 ment at the hands of this Tribunal that will expose its lawful indus- 
 tries to ruin, its revenues to d('i<letion, and i*'S wards on the Pribilof 
 Islands to the loss of their only valuable industry will be an inquiry 
 that will seriously challenge the justice of such an award, in the esti- 
 mate of the civilizi'd wiu-ld. 
 
 The evil to be provided against by this Tribunal is, clearly, pelajfic 
 Healing irith iirearmH. 
 
 If there is, or has been, any detriment to the seal herd from the 
 
 
 V 
 
 ii 
 
Jt. 
 
 107 
 
 treatment of tlie Uiiittnl States, ou tlie islands, tlm facitHon thi8Hnltj<><-t 
 wore not nn known to Gn^at Uritian wlien thu treaty was nnuh; and 
 l)Cloi'e ratifications were exeliaii},'<'d. Tills sulijeet was not referred to 
 in any-of tlie correspontlenec between tlie (iovernnients, and tlie treaty 
 is silent as to tliis snpposed niisinana<>enient. 
 
 Will the Tribunal, in such a case, niaku an objection to protectiii}; 
 and preserving the fur-seals on the water because^ Great llritaiii inis 
 not thought it proper or necessary to call tlic methods into question, 
 or the United States into account, for its manner of <lealing with that 
 subject on land' True, if it can be shown tiiat the depletion of the 
 herd is due to tiiat cause, and not to])eiiigic hunting, tlui^t is a Just and 
 proper incjuiry. If it is due to both causes, tiiis Tribunal will deal with 
 the pvlai/ic evil, that is mtbmitted to its comvlerution, and leave it to the 
 nations concca-ned in the i)rotection of seal life to ,ieal tcith the eril on 
 land. 
 
 If the United States are not so wise in caring for the seals on land 
 as the pelagic hunters are in caring for them at sea, as seems to b«! 
 asserted, they are quite as earnest in the wisli to d*) so. They destroy 
 no female seals; while the pelagic luinter never spai'es one. They do 
 not lire upon the breeding rookeries when ^iie seals are massed, many 
 of them asleep, witli double-barrelled shotguns and buck-shot car- 
 tridges. They do not kill indiscriminately all seals that come in sight. 
 
 The United States permit no female seals to be killed; while 75 per 
 centum of those killed by the pelagic hunter are fenmles heavy with 
 young and almost helpless. 
 
 In that condition, as well as in accordance with a law of their nature, 
 which isan ini))()rtantfactin connection with theirdomesticity, tlicfemale 
 fur-seal require a great deal of sleep. When asleep, they turn upon 
 their backs, fold their riii»persovcr tlieix breasts, and curving their hind 
 flippers upwards, they form of their bodies a sort of boat, the spinal 
 column representing the keel. They can only breathe the upi)er air; 
 they can not, like a fish, extract air from the water. While sleeping 
 their noses are ab(»ve the water. After inhaling the iiir the nostrils 
 close firmly together, and the air, heated by their bodies, expslnds and 
 buoys them up. They .«el(h»m breathe oftener than once iii fifteen min- 
 utes, and, wIh^u diving, they need not return to the surfa<'e for air 
 oftener than every thirty minutes. We know nothing of their habits 
 at night while in the ocean. On lainl they are so boisterous at night 
 with their bowlings that sleep would seem to be impossible, except 
 
 
108 
 
 II 
 
 from hIk^ui- 4>,xliimstioii. They Iiavo not a keen vision, and t'le Hunli^^ht 
 i^4 painful to them, so tliat they leave the land and go U* sea on days that 
 are bright. This causes them to seek a summer home in a place where 
 fogs and rains ])revaii. Yet they nnist have warmth. X<iturejiiis amply 
 provided for this necessity by givinjjj them a doultle coating of thick, 
 strong hair, ai; 1 of the thickest and Hnest fur that was ever bestowed 
 upon any species of aninuils. It is as impervious to water :is the down 
 of an eider duck. The pups are born without this fur, and hence their 
 aversion to t<wimmitig until it has grown out; and this detains them on 
 land for four months, at leirst, during which period they can subsist 
 only on the ndlk of the cow seals. While their vision is not keen, their 
 auditory organs ami sense of smell are exceedingly acute. They are 
 attra<'ted by sounds as few other animals are. In this faculty they 
 make a close approach to the endowments of mankind. Sir John 
 Thompson is anmsed at an account, read by Mr. .lustice ilarlan, of tho 
 seals being attracted in great iiund)ers near t«) the shore at Hoy by tho 
 ringing of a church bell. In his iiicreduhms sport over this incident 
 Sir John forgot that it is the personal observation of Mr. Low one ot 
 the greatest luituralists who ever lived, the friend and com]>anion of 
 Cuvier, ami is moie than confirmed by M. I'eron, whom France has 
 honored in the m<(st conspicuous way. His abilities as a naturalist, 
 acfpuiinted intimately with seal life, are as far in advance of those of 
 Prof. Elliott, from whom Lord ILinnen iiuotes with much 8atisfa(;tion, 
 as Napoleon was in advance of the Sioux chieftain. Sitting Hull, as a 
 military genius. 
 
 1 will presently (juote something further about fur-seuls from Mr. 
 Peron. 
 
 I know Mr. Elliott, whom the British (rovernment has dubbed "pro- 
 fessor." I have respect for his diaracter and spriglitliness. lie is a 
 painter in water colors of no mean pretensions, but his use of color 
 does not stoj) with his canvas. It enters into all he says, and makes 
 him too vivid an enthusiast for a safe reliance on questions of measure- 
 ments, statistics, and cold facts, I\'ir. Elliott was (uit on the l^ribilof 
 Islands on the 10th of July, 18!M», taking Held notes, which, to be of any 
 value, should be free from all romantic conjecture. The following is 
 one of his highly colored extracts taken from his report of that day: 
 
 In company with Mr. (Jotf and Dr. Lntz, I made my ])lotting of the 
 breeding seals as they lay ou the Reef and Garbotch to-day. 
 
 Here at the very heiglit of tho breeding season, when the masses 
 
 :?! 
 
 v 
 
7i 
 
 109 
 
 Tvero most ("ompact nnd unifortn in tUcir distribution in 18C2-'74, 1 find 
 the iininuils an tlicy lay to-day, scattered over twice and tlirire as nnieli 
 groun<l as a rule, as the same number would occupy in 1><7L' — scattered 
 because tlie virile bulls are so tew in number and the service winch 
 they rtinder so delayed or impotent. In other words the cows are rest- 
 less; not ieinj; served when in heat, they seek other bulls by haidiu}; 
 out in ^reeu Ja^^rcd points of massing (us is shown by the chart), up 
 t'nmi their landing belts. 
 
 This unnatural action of the cows, or rather unw(Mited movement, 
 has caused the pups a!rea<ly to form small pods everywhere, even where 
 the cows are most abundant, which shadows to me the truth of the 
 fact that in live days or a week from date, the scattering com]iletely of 
 the rookerv organization will be thoroughly dtine; it did not take place 
 until the 20tli-2r»th July, 1.S72. 
 
 In 1S72, these cows were )»r(tm|)tly n>et with the service which they 
 craved on the rookery ground. The scattering of these old bulls to day 
 over so large an area, is due to extreme f(M'bleness and combined in 
 many cases to a recollection of no distai.t day when they had previ- 
 ously hauled thus far out o» this very ground surrounded by bareness, 
 though ail is vacant and semi grass grown under and around them now. 
 
 The fur-seals, so well proviiled against cold, are yet so se.isitive to 
 its effects that they go south at the approach of winter and !<eek their 
 food in the great river of warm waters tliat comes from the tropical 
 coast of Asia and pours its Hood across the Pacific Ocean. It bears 
 enormous treasures of fish food, and swarms with schools of herring, 
 salmon, and scpiid. The migratory fishes, that naturally feed against 
 the current, pursue the track of this warm river in the ocean and 
 ascend it. This leads them to the northern const of the United States, 
 and thence around the great curve which this river has formed on the 
 coast, past British ('ohunbia, to the south of the Alaskan peninsula. 
 The fur-seals, finding warmth and food in this ocean curreTit, enter it 
 when they quit the breeding islands and Bering Sea, in Novend)er, and 
 must stay in the broad expanse of warm waters, where it ceases to 
 flow, during a considerable part of the winter. Then^ they reuniin in 
 search of the herring and other vast schools of migratory fishes that 
 are surface swimmers and feeders, and they follow them on their way 
 to the spawning grounds, as the seals return to their summer abode on 
 the islands to the north of the Aleutian peninsula, where the Arctic 
 current and the Asiatic river meet. 
 
 Around the great curve I have mentioned, this ocean current sets in 
 close to the shore, flowing southward, and its warm wat<'rs make the 
 winter climate in those high latitudes and altitudes nearly as soft and 
 genial as that of Ireland, and for tire same reason. The seals are thus 
 drawn into numerous large assemblages or schools near to the western 
 
 ^^^^ 
 
no 
 
 coa«t of North America, anil are in eaHy reach of the "iiidastry" of 
 pclagu; aealerH. 
 
 Tliey muHt travel a great deal in the niglit time. In this they are 
 guided and i)rotO(;ted by their sense of liearing and smell, and, like 
 tlie cat, tliey are |>r()vided with several rows of whiskers that are very 
 sensitive and that ailnionish them of danger in places where they can 
 not see their way. 
 
 The gravid femides must necessarily spend a large part of each <lay 
 in seeking food, and' do not travel so fast as the male seals. Tlieir exer- 
 tiojis are necessarily very taxing to their strength and recjuire them 
 to sleep fre(inently during the day. 
 
 I have made this statement of facts and conclusions, as I draw tlieni 
 from the evidence, to support the further conclusion of fact, which, I 
 think, is unavoidable, that the war upon the gi; vid female seals is 
 like a war upon the women and children of a nation., which all, excejit 
 the most depraved of savage nations, abhor. True, these are beasts; 
 but they are harndess, docile, useful beasts, and very helpless, and 
 when t'ley are denied any more protection by the supposed law of 
 nations against the mercenary fero(;ity of the pelagic sealer than is 
 given to tigers or serpents^ while I" am empowered to vote in this Tri- 
 bunal, which is now their only protector, I- must vote at least to 
 disarm the pelagic sealer of his double-barreled sliotgun, or else to 
 conttne his warfare to an area of waters and to a close season where 
 his powers of destruction will not exterminate the race. 
 
 If I could iind no better reason for restraining the pelagic hunters 
 from the use of double-barreled shotgnns in their "sportsmanlike" 
 business of killing gravid females and nursing mother seals in order to 
 earn $!(» a piece from each pelt, I would Join my voice with that of every 
 respectable legislature in the world in their careful and highly i)enal 
 enactments for the prevention of cruelty to animals, and would at least 
 l)ut the female seals under the protection of proper regulations to be 
 awarded by tliis Tribunal. 
 
 On this point I will quote from The Naturalist's Library (]>. 81), which 
 thus describes the cruelties inflicted upon these valuable, docile, and 
 harmless animals: 
 
 Before proceeding to make the few remarks which our limits allow 
 on the valuable products derived from these aniinals, we would say a 
 word or two upon their capture. They are exceedingly tenacious of life, 
 and many cruelties have been perpetrated upon them, which most who 
 have witnessed de<Oare to be too horrible for description, and over 
 which we willingly <lraw a veil. If life is to be sacrificed, there is a 
 
 ^ 
 
 .. 
 
4 
 
 111 
 
 riglio way of takiii); it an well as awronKi antl ^ve insiHt tliat tlie former 
 Khonld be followed and tlie latter avoided. Itcfore, however, enteriii); 
 upon thiH topic, we talce leave to remark that it is impossible to inves- 
 tigate, as we have done, the natural history of these animals without 
 diseovcring how much their capture has been made a nuitter of mere 
 arauaemenUaud, as it is fandliarly but emphatically called, of Mport. 
 We venture to denounee all such sjtorts as both indefensible an<l wr<ni(j^. 
 Animals have been given to provide for the necessities and comforts of 
 man, but not that he may gratify himself with their dying agonies; and 
 he is wholly inexcusable if even here he breaks the goir n rule of doing 
 as he would be done by. Sporting with the feelings, and pains and lives 
 of thes«i creatiu-es has a strong tendency to lead to «'ruelty and wicked- 
 ness; and, theretbre,.this inherent tendency should be checked In the 
 bud and invariably opposed. When we witness, says I'eron, a tluuight- 
 less saih)r hastening for his anuisement, club in hand, into the midst 
 of a great herd and surnmiuling himself with their dead Ixtdies, we 
 cannot but sigh over this improviilence and cruelty which lays low so 
 nuuiy peaceful, gentle, and unhap])y beings. 
 
 While 1 have the b(M)kiu liMud, I will read other extracts in relation 
 to the docility of the seals, on pages 7.'l to 77 : 
 
 At a particular season of the year, every nmle, intlamed with lust, 
 and jealous almost at its shadow, lords it over his numerous harem 
 with even more than eastern despotism, and thereby throws the whole 
 ctunmunity into a state of the highest excitement and agitation. Dur- 
 ing this period, whi(;h continues for months, many a jealous Hashaw, 
 as these animals have not inaptly lieen designaU'd, engages in fearful 
 strife with a rival; the contest is often long and obstinate, as well as most 
 sanguinary and fatal. Nor does it end with these doughty chami)ions. 
 Other male^; soon imagine that their interests are involved, or their 
 rights invaded, and the strife spreads from family to family, till at 
 length the whole community is involved in one general melee of i)as- 
 sion and rage, of tierce cries and groans, of blood and death; and, 
 after all, short is the triumph of the conqueror, and deep and poignant 
 the chagrin and malice of the vanquished. 
 
 Originally, and therefore we are disposed to hold that naturally, 
 these amphibia, far from having a dread, have rather a reposing con- 
 fidence in man. When a young one by an accident is separated from 
 its parents and comes in contact with man, instead of shunning it 
 courts its company. It will follow him, and if the tinger be held out 
 will suck it like many domestic animals. Thnuigh the kindness of 
 Prof. Trail we can illustrate this trait in their mental constitution by 
 an interesting i'.u'ident of which he was a witness, and which, with 
 several other anecdotes, we can, through his polite attention, re'- id in 
 his own words: "A little islet in Orkney, called the Holm of Papa 
 Westray, had long been a favorite haunt of numerons seals, Miiich had 
 become more than usually tame from the care of the proprietor of the 
 adjoining island to i)revent their being molested. On visiting that 
 gentleman in 1833 I found the seals exhibited their wonted contidence 
 in those who approached their ])rotected haunt. Several of them swam 
 along the shoi'e as a party of six or eight persons walked along the 
 beach, and did not in general keep farther from us than 3(N)r 40 yards. 
 When we turned so did they, and when we rei^ntered our boat they 
 followed it in the narrow channel that divides Holm from the island of 
 Papa. Seals are said to relish music, and a seal hunter once informed 
 
112 
 
 inc that tlie s«>iiii<1 of a lliito will alliiro them Ut a boat; but in tlie 
 above iiistaiif«! it was iiieruly tll^ coiiseqiu'iue of no f>:un bein}{ ever 
 lifted a.,'iiinst tliein in that inlet whieh has won their eontldent'e in 
 man." Nor is this niaiaeteristii- less strikin^fly exeniplitled by an 
 observiition made by Mi'. Dnnbar, tlie |ireseiit iiu-ninbent of the parish 
 of Applej^arth, diiiiiiff his resideiK^e at a former period in one (»f the 
 Hebrides. In a letter to iMr. Li/ars, wliieh appeared in thi^ last volume 
 of the Natiiralisis' Library, we liiid the Ibllowin^ statement: ''While 
 my pu|iils and I wei'(> bathing;, which we often did, in the bo8om of a 
 beautiful bay in the island named, from the eirciimstaiiec of its being 
 n favorite, haunt of the animal, S«'al Hay, numbers of these ereatureH 
 invariably made their ai»pearaiice. espeeially if the weather was calm 
 and sunny and the sea smooth, (u-owdin;; aroiini^us at the distiin('<> of 
 a few yards, and looking;; as if they had some kind of notion that we 
 were of the same ;feims with themselves.. The {gambols in the water 
 of my ]dayful eumpaiiioiis and their noise and merriment seemed, to our 
 imajifiiiation, to «>xcite them and to make them eoiirse round uh with 
 greater rajiidity and animation. At the same time the slightest attempt 
 on our part to act on the ollensive, by throwing at them a ston«i or 
 shell, was the signal for their instantaneous disappearance, each as it 
 vanished leaving *'■<) surface of the water beautifully figured with n 
 wavy succession of concentric circles." 
 
 • ' • • • • « • 
 
 In the previous paragraph allusion is casually niat^Ie to the notion 
 that these aninuils are not indilferent to the charms of music, whilst 
 we believe it may be safely atlirmed that this assertion is more frecpieutly 
 made than credited. The stateuK^iif, however, appears to be perfectly 
 correct; and the following quotations, the former from the celebrated 
 Orkney naturlist, Law, and the latter from Mr. Dunbar Just quoted, 
 are sullieieiit to banish all skei)ticism on the point. "If people are 
 l)assiiig in boats the seals often come close up to them and stare at 
 them, following for a hnig time together; if people are speaking loud 
 they seem to wonder what may be the matter. The church of Hoy is 
 situated near a small sandy bay much frequented by these creatures, 
 and I observed when the bell rang tor divine service all the seals 
 within hearing swam directly for shore, and kept looking about them, 
 as if surprised rather than frightened, and in tliis manner continued 
 to wonder as long as the bell rang." 
 
 And again Mr. Lizars's conesjiondeiit: "The fondness of these ani- 
 mals for mut^ical sounds is a ciirioiis ^)ecnliarity in their nature, and 
 has been to me often a subje(!t of interest and amusement. During a 
 residence of some years in one of the Hebrides 1 had many opportu- 
 nitic^s of witnessing this peculiarity, and in fact could call forth its 
 manifestation at ideasure. In walking along the shove in the calm of 
 a summer afternoon a few notes of my tlute would bring half a score 
 of them within 30 or 40 yards of me; and there they would swim about, 
 with their heads above water, like so many black dogs, evidently de- 
 lighted with the sounds. For half an hour, or, indeed, for any length 
 of time I chose, 1 could tix them on the spot; and when I moved along 
 the water edge they would follow me with eagerness, like the dol- 
 phins who, it is said, attended Arion, as if anxious to piolong the 
 enjoyment. 1 have frequently witnessed the same effect when out on 
 a iioat excuirsion. The sound of a tlute or of a common tife blown by 
 one of the boatmen was no sooner heard than half a dozen would start 
 up within a few yards, wheeling round us as long as the music played, 
 and disappearing one after another when it ceased." 
 
 1' 
 
 . 
 
". 
 
 118 
 
 Again I rend (torn the same volume to prove wliat \ have said about 
 the geiiHe ut hearing, toucli, and Hiiiell tliat seals pohhchh (pages (>r> and 
 m) : 
 
 The truth is, the eye of the Amphibia is a perfect study and would 
 well repay a length"iied (l('s<-ription. It is very largt! and <|uite spher- 
 ical; sclcrotie w outer membrane is very )ieculiar, inasmuch as it has a 
 soft and tliin /one around its middle, thickly (>overed with muscbs, 
 whilst both before and behind it is thick and almost cartiltiginous. 
 The precise use of this structure lias not yet been discovered, though 
 Rlumenbach has thrown out the idea that it may enable the seal to see 
 both in air and water. Rosenthal so far ttontirnis this opinion by hav- 
 ing observed that tiffc mechanism is peculiar to those animals whi<'h 
 live in a dense medium, such as water; that the remarkable thickness 
 of the coat is found in thos(; animiil."' in which the orbit is not wholly 
 osseous, and that some tishes have the sclerotic^ nearly cartilaginous. 
 With regard to the ear, it ought not lo be forgotten that tlslics, with 
 no external ear or aperture, have in their native element an acuteness 
 of hearing which, according to some respectable authorities, far exceeds 
 our own, and Kosenthal states that the audit(M\v nerve of the seal is 
 very large. Kespecting the sense of touch, wo shall here (piote M. F. 
 Cuvier, who well remarks : "The whiskers are very sensible portions 
 of the sense of toiudi. Those hairs placed on each side of the month 
 and at the corner ()f olie eye communicate with nerves which are 
 remarkable for their si/e, and to which, as I liave often cfmvinced myself, 
 the slightest impression communicates an immediate sensation." 80 
 it is, we believe, with the other senses, which we consider wonderfully 
 adapted to both elements. Thus liutfon remarks of the monk seal On 
 land: "It has a very acute he ' ig, since even at a distance it never 
 tailed to obey or respond toits master's voice;" and tlinsCapt. Scoresby: 
 "Seals appear to hear well under the water. Music or particularly a 
 person whistling draws them to the surface and induces them to 
 stretch out their necks to the xitmost extent, so as to prove a snare by 
 bringing them within the reach of tlie shooter;" and Weddell: "Their 
 sense of hearing is acute, and also their sense of smell." It is on 
 account of this last sense that the Grecnlanders always endeavor to 
 approach them against the wind. And were we to judge of their taste 
 by the keenness with which they relish their food — few animals possess 
 it in eijual perfection. The greatest gourmand's teeth do not water at 
 the anticipation of the ri<'lie8t feast as do theirs in expectanc-y of their 
 eomuKm food. "A copious saliva," says M. F. Cuvier, "tills and flows 
 from their mouth during deglutition, and not less so the moment the 
 seal perceives its prey." 
 
 As to their breathing, I will read from pages 56, 57, and 58, where 
 the following is stated: 
 
 Having thus noticed that the external structure of these Amphibia is 
 admirably adapted for their watery element, and yet made wonderfully 
 conformable to tluMr re<piirements on land, we i)roceed to remark that 
 their vital functions also are strikingly titted for their peculiar exigen- 
 cies. Their respiration, as might readily be inferred, differs consider- 
 ably from Avhat is observed in most other animals. Even the air pas- 
 sages undergo a change which ought not to be overlooked. Wo refer 
 particularly to the nostrils, whose state, unlike that of other qnad- 
 11495 M 8 
 
 'Vl-^I»WWtrW«(MWl****'W(»W."- 
 
114 
 
 riipcdH, IK tliiit of luMiif; liiihitually closed, instead of \w'\\\n iiiiit'oriiily 
 oputi. TtiiH was tii'Ht iiotitHMl, w<> i)oli«n'e, in a walriiH doinoHticatud in 
 Kn(;land, of which, as will appear in oni- account of that animal, it was 
 Haid: '^It can open and Hhut its nostrils at plcasiirc." The Count 
 BnH'on again pointed out the peculiarity in a tame seal which ho 
 examined : " In the intervals of hreathin;;, the nostrils were accurately 
 closed, and, on the act of inspiration beiuff completed, they were shut 
 as before." M. F. Cuvier, at a later period, made a similar observation, 
 so that we a])prehi-iid wo may safely allirm that this peculiarity exists 
 in the air passajfes as their (U'dinary c(uulition. This state of parts of 
 course sup])1ies ready nu>ans of Judging of the frequency of resi)irati(Ui, 
 and here, too, there appears to be a marked diflerence, even on land, 
 from what obtains amoiiju' other animals. Thus Jluf^bn, in the instance 
 already alluded to, remarks: "The |)eri(Ml between its several inspira- 
 tions was very lonj;; the creature opem'd its nostrils to nuike a stroufj 
 expiration, wlii(!h wat; immediately followed by an insiiiration, after 
 Avhich it closed them, often allowiii<; them n)innte.» to intervene without 
 takiufr another breath." Tn connection with this iteculiarity, M. F. 
 ( 'uvier makes an additional and im])ortant rem;>rk : " Notwithstandin;; 
 tiie slow and irrejjular breathiuff of these animals, the reffular supply 
 of air to the lun{;s is in uo de<;ree diminished, if we nuiy judt^e from 
 the very free m<»tion of the ribs, and the great <|iuinl:ty of air expelled 
 at each expiration. In truth, the quantity of air taken in makes up 
 for the small number of the respiratioiiH; for few of the Mammalia 
 have appeared to me to have so high a natural temi)erature as the seals. 
 But, however great the i)eculiarity as exhibited on land may be, it is 
 tritling when compared tq its singularity in water, where it is not 
 unciunmon Ibr these animals to renuiin for a (piarter of an hour at a 
 tinui under the surfac-e (the usual i)eriod even for whales); and we are 
 not i)repared to state what the extreme limit may be. Thus, Crantz 
 states that when harpooned they must come upin aboutaqinirterof an 
 hour to take breath; and Mr. Fdmonst<Mi informs us that he once saw 
 one of the bearded seals entangled in a. net, which struggled with 
 ama/.iiig force for nuu-e than twenty-live minutes without once inspiring, 
 and yet was brought to the surfac^e alive. An observation of M. F. 
 Cuvier is still more renutrkable. lie states, concerning those which 
 were preserved in tlie menagerie at Paris, that he has seen them while 
 asleep keep the:; heads under water consecutively and consequently 
 without breathing for an hour at a time. This is an extraordinary 
 phenon.v-uon, even allowing that the animal was in that somewhat 
 lethargic condition to which we sha ere long allude. 
 
 As to their destruction, by unrestricted hunting, the following pages 
 may be referred to: pp. 93, 95, 90, and 97, where it is said: 
 
 The time was when cargoes of those skins yielded $5 or $0 apiece in 
 China, '<nd the present price in the Fnglish market averages from 30 
 to 50 sliillings per skin. The number of skins brought off from (Jeorgia 
 can not be estimated at fewer than l,'JOO,OflO; the Island of Desolation 
 has been e(iually productive, and in addition to the vast sums of money 
 whi<;h these creatures have yielded it is calculated that several thousand 
 tons of sliipping have annually been employed in the traffic. 
 
 * * * These valuable creatures liave often been found frequent- 
 ing some sterile islands in innumerable multitudes. By way of illus- 
 tration, we shall refer only to the fur-seal, as occurring in South Shet- 
 land. On this barren sjwt their numbers were such that it has been 
 
115 
 
 i 
 
 OHtimaforl Mint it could littvo vniitiiiiH>(l penntiiiuntly to rnriiiHli n rutiini 
 of UN),(KM) tnrs n year; wliicli, to Hiiy notliin^ of tlii> itiihlic lionotlt, would 
 have yielded Hiiiiuidly from tliJH H|M»t hIoiio a very li..iidHomeHiiin to tlie 
 adveiitiirertT. lint what do tiiesu men doT In two short vearH, IHiil- 
 "22, HO jjreat \h the ruHli that they destroy .TJO.tMMI. They killed all and 
 spared none. The moment an animal landed, thonj^h hi;; with yoiin^, 
 it was destroy«Ml. Those on shore were likewise immediately d«^s|»at(!lnHl, 
 though .the cubs were but a day old. These of ecmrse all died, their 
 number, at the lowest calculation, exceedinfj 1(K),«VM>. No wonder, then, 
 that at the end of the second year, the animals in this locality were 
 nearly extinct. Ho it is, we add, in other localiticB, and so with other 
 seals; so with the oil seals, :ind ho witii the whale itself, every addition 
 only making' bad worse. ^Vnd all this might easily be ]>revented by a 
 little less barbarous and revolting cruelty, and a little more enlightened 
 selllHlinesH. FishermiMi arc by law restrained as to the size of the 
 meshes of their ne^ ir> talking many of our more valuable (Ish; and in 
 the Island of Lobos, lU the Uiver Plata, where, as wo have seen, there 
 are <|uantiti<>s of seals, their externunation is ju'cvented by the yi»vernor 
 of M(»ntevide«>, who farms out the trade under the restri<-ti(m thai the 
 hunters shall not take them but at stated periods, ages, etc. • • • 
 With regard to the seal tisliery of the south the English ami Ameri- 
 cans have exclusively divided it between them, and with very great 
 prodts. It has lately been stated that they together employ uot fewer 
 than sixty vessels in the trade of from '2'tO to MH) Ions burden. These 
 vessels are strongly built and have each six boats, like those of the 
 whalers, together with a snndl vessel of 40 tons which is i)ut in requi- 
 sition \v\um they reach the scene of their operations. The crew con- 
 sists of about twenty-four hands ; their object freijuently being to select 
 a certain fixed locality from whiiOi they make their varicms ImftneH. 
 Tims it is very (common for the ship to be moored in some setnire bay 
 and to be partially unrigged, whilst, at tht^ same time, the furnaces, 
 etc., required for making the oil are placed on shore. The little <'ut- 
 ter is then rigged and maniu'd with about half the crew, who sail 
 about the neighboring ishmds, and send a few hands on shore when 
 they see seals, or where they wish to watch for them. This vessel can 
 hold abimt two hundred seals rudely cut up, which will yield about 
 100 barrels of oil. This is transported to the headquarters and melted. 
 The campaign fretpiently lasts for three years, and in the midst of 
 unheard of privations and dangers. Some of the crew are sometimes 
 left on distant barren spots, and the others being driven off by storjiis, 
 they are left to perish or drag out for years a most i)r<'carious und 
 wretched existence. 
 
 This evidence, fiom the* highest English and French authorities, was 
 stated to the scientific world more than fifty years ago, as a plea for 
 " the preservation of these valuable and docile animals. If we cahailato 
 the values they would have added to comnjcrce, had Great Britain 
 and the United Stat«s then agreed, as they do now, to adopt regida- 
 tions for their protection, we must reproach ourselves if this Tribunal 
 is not now equal to this important duty and if the regulations we adopt 
 are not effectual to stop this great wrong. 
 
M 
 
 ( ' 
 
 116 
 
 The following pafijes, 275, 276, and 277, contain a description of fur- 
 seals in the Antarctic, taken from the writinjfs of Capt. Weddell : 
 
 Nothing rewarding the fur seal is more astonishing than the dispro- 
 portion in thii size of tlie unile and female. A large grown male, from 
 the tip of the nose to the extremity of the tail, is (> feet 9 inches, wliile 
 the female is not more than 3A feet. This class of the males, however, 
 is not the most numerous, but being physically the most powerful they 
 keep in their possession all the females to tlie exclusion of the younger 
 branches; hence, at the time of parturition, the males attending the 
 females may be computed as one to twenty, which shows this to be, 
 perhaps, the most poly^ramous of large animals. 
 
 They are in their nu^^re comi)lctely gregarious; but they flock 
 together and assemble on the coast at different periods and in dis- 
 tinct classes. The males of the largest size go on shore about the 
 middle of November to Avait the arrival of tiie females, who of necessity 
 must soon follow f(U" the purjjose of bringing forth their young. These 
 in the early part of December begin to land, and they are no sooner o'.'t 
 of the water than they are taken possession of by the males, who have 
 many serious battles with each other in procuring their respective 
 seraglios and by a peculiar instin<!t they carefully protect the females 
 under their charge during the whole period of gestation. By the end of 
 December all the tcmale seals have accouiplish the purpose of their land- 
 ing. The time of gestation n)ay be considered nearly twelve months, and 
 thi^y seldom have more than one at a time, which they suckle and rear 
 ap])arently with great afiection. By the middle of February the young- 
 are able to take to the water, and atter being taught to swim by 
 the mother they abandon them on the shore, where they remain till their 
 coats of fur and liair are completed. During tlie latter end of February 
 what are called the dog seals goon shore; these are the young seals of 
 the two preceding years, and such males as, from the want of age and 
 strength, are not allowed to attend the i)regnant Cemales; These young 
 seals come on shore for the i)urj)ose of renewing their annnal coats, 
 which being done by the end of Ajtril they take the water, and sc.ircely 
 any are seen on shore again till the end of June, when some koung 
 males come uj) and go off alternately. They continue to do this ^br six 
 or seven weeks, and the shores are then again abandoned till the 3nd of 
 August, when a herd of snuill young s'-'ls of both sexes come on shore 
 for about live or six weeks, and then retue to the water. The large 
 male seals take uj) their places on shore, as has been before described, 
 which completes the intercourse all classes have with the shore (luring 
 the whole year. The young are at first black ; in a few weekn tliey 
 become gray, and soon after obtain their coat of hair and fur. 
 
 When these South Shetland seals were first visited they had !io 
 apprehejision of danger from meeting men; in fact, they would lie still 
 while their neighbors were killed and skinned; but latterly they had 
 acquired habits for counteracting danger by placing themselves on 
 rocks, from which they could in a moment i)recipitate themselves into 
 the water. The agility of this creature is almost greater than, from its 
 appearance, an observer would anticipate. I have seen them, indeed, 
 often escape from men running fast in pursuit to kill them. 
 
 These statements, collated in volume 12 of the Naturalist's Library, 
 which Lord Hannen tells us is a standard work, were written al>out 
 1820 to 1830, and some of them earlier, by the most scientific natural- 
 
■^•^p 
 
 117 
 
 ists who gathered the facts from personal observations. They relate to 
 the same race of fur-seals at the antipodes that we are inquiring about 
 in this case. 
 
 These able scientists enter minutely into all the characteristics of the 
 fur-seals and other carnivorous amphibia and give exact descriptions 
 of their tactual and comparative anatomy. Their accounts furnish 
 aficiirate data, in strong contrast with the guessing and conjectures of 
 the tyros, many of them without previous experience, who were sent 
 out to mj»ke a brief and necessarily superiicial study of the Pribilof 
 herd, chiefly with a view to bolster up special theories that are made 
 the bases of the contentions that the Tribunal is now examining. 
 
 Although these books were written more than a half century ago, 
 they are as accurate as a photograph as to the physical characteristics 
 and the habits of the fi -seals of the North Pacific, and show that they 
 are exactly now what the same species was one hundred years ago in 
 the South Pacific Ocean. 
 
 I rely upon these exact and scientific statements of these learned and 
 trained naturalists to clear up the doubts and reconcile or remove the 
 conflicting conjectures of the numerous witnesses in this case who dis- 
 agree chiefly because they are not well informed as to the subject. In 
 the matter of the virility of the harem masters, the alleged barrenness 
 of cows killed in July, August, and September, and the possible dis- 
 eases that may have swept off large numbers of pups on the island, 
 opinions are ad^inced with bold freedom by men whose opinions are 
 not entitled to any weight whatever. I do not remember that any one 
 •of the many statements of the hundreds of witnesses who speak so 
 confidently on these subjects is based either upon actual skill or actual 
 examination, by dissection or in any practical way, of the characteristics 
 of fur-seals. All the evidence shows that the breeding cows are fer- 
 tilized within a few days — about ten days — after parturition, and that 
 until that is accomplished the harem nmsters control their movements 
 with the most jealous care, and none of them are permitted to go into 
 
 
 
 the sea until they are impregiiated. They then set out to get food to 
 nourish the pups they have borne, carrying in their bodies the living 
 germ of the next creation. In these early days the fact of fertilization 
 is not discernible even on close examination to the unskilled eye; yet 
 such examinations were not made, (Mid these seal-hunters and so called 
 professors unhesitatingly testify that a cow seal, having milk in her 
 brotists, is barren because there were no external signs that she was 
 gravid with young. 
 
118 
 
 i\ 
 
 And so it is in respect of the virility of tlie bulls, a fact that would 
 probably defy the most exact scientific examination to prove, is stated 
 with sublime confidence by Prof. Elliott and other like gnessers. lie 
 finds the bulls at peace on the rookeries, and though they are not 
 irritated by being crowded together as formerly, he concludes that 
 because they have their domestic enjoyments without the necessity of 
 jealous warfare that thoy have lost their virility. Amonfr all polyg- 
 amous animals endowed with fighting capacity nature proviiles for 
 destroying the excess of males by the wars they wage upon each other. 
 Breeders of animals reach this restilt without the necessity of permit 
 ting them to fight and kill each other. It requires very simple reason 
 ing to reach the conclusion that, if this waste of physical energy is 
 saved to breeding males by their separation from each other and the 
 suppression of their warfare, that it will supply the virility to meet a 
 greater demaiul upon their powers of procreation. 
 
 No dissections seem to .ave been made of dead ])ups found on the 
 islands on one occasion to ascertain whether they had died of starva- 
 tion or of disease, or were swept oft" by tempests and drowned and 
 were thrown upon the ('oasts in " winrows" by the waves of the sea. 
 Yet each witness gives his opinion as to what killed the jnips with as 
 nnich coufidence as if lie teally knew what he was talking about. 
 
 The ellort to accourit for the disj)arity of 81,000 killable seals on the 
 islands between 1H8U and 1800 by any of these mere conjectures is 
 founded upon this sort of testimony and can not break the force of the 
 fact that in 1800 the pelagic hunters got 51, 0*);") seals, while on the 
 islands, where 102,017 killable seals were taken in 1880, only 21,2;{8 
 could be found the next season "by scraping the rookeries," as Lord 
 Ilannen observed. ' 
 
 The crucial test of the necessity of forbidding ])elagic senling with 
 firearms in parts of the ocean where seals iibound is the fact that it 
 results, necessarily and witlioiit doubt in the killing of gieat numbers 
 of female seals, because of their disposition to sleep when gravid. 
 They are more easily approached than the males, and the result is the 
 deptrticilon of a nmch larger i»roportioii of females than of males. 
 The encouragement of this indiscriminate killing of fenmles, or its tol- 
 eration, will establish a practice that violates every idea of the protec- 
 tion and preservation of the species. It legitimates a war upon the 
 race that can not be restrained. 
 
 If we first deny to this raceof valuable and docile animals (that have 
 
 " 
 
 «w*«»'irw?i*v?(nffi»r'^T' • 
 
il9 
 
 less dread jjf the presence of man, whether on land or sea, than any 
 otlior animal that is classed as a wild animal) all the protection that 
 the law gives to animals that are domesticated, and for no other end 
 than to protect the merely tediiiical, cruel, and nnrelcnting claim of 
 rifjhts by its worst enemy, the pelagic sealer, we should neve take to 
 ourselves the credit of protecting and preserving them. When we arm 
 those enemies with double-barreled shotguns, with cj'lindcr cartridges 
 charged with buckshot, and turn tl.em in upon the herd to kill them 
 indiscriminately after they have congregated in great numbers and 
 are making their way to their only place of resort for the purposes 
 of procreation, we, theii' only protectors, become their destroyers. 
 This is not a liypothectical case or an exaggerated statement, but is 
 the simple and undeniable truth. 
 
 This Tribunal, by such a decree, will deny to the fur-seal species, all 
 ov^r the world, that protection which themunicipal law has always freely 
 and even eagerly extended to all harmless, docile, and useful aiiimalsthat 
 are valuable to man for foo«l and raiment. We will put upon theni the 
 ban of outlawry oidy because they must go into the sea for food, and 
 because they do not need to be converted from their natural conditicmor 
 disposition by the discipline or the temptations of the skill of man that 
 must be used in taming savage beasts. Nature having dispensed ith 
 all necessity for such inducements aiul maniimlations to ovcrconie any 
 aversion of the fur-seals to tlie dominion of man, and having delivered 
 them into his hands as a free gift, to be used at his pleasure and to 
 meet a want that no otiicr animal can supply, the law ste])S in and 
 declares that because nature has done this, and has so placed it out 
 of man's power to make the seals any more docile and tame by induce- 
 ments and manipulations than tliey are by nature, tlie fur-seals can 
 never, as a class, become domestic or domesticated animals, and can 
 receive no legal protection in the sea. Tlicj'^ are forever excluded on 
 such grounc^s from the legal possibility of domestication, and are handed 
 over to the most formidabhj enemy that ever hunted any animal, tamo 
 or wild, doomed to inevitable destruction. 
 
 I dissent from such opinion as being contrary to the laws of God and 
 the often-expressed legislative intentions of man; but I yield to it as 
 the sincere judgment of this Tribunal, and refer to it to show hoir vinch 
 greafc'r is the necemity noiv restintj upon this 7Vj7H/nrt/intheam])litude of 
 its powers supplied to them, for this occasion and for thatpurpose, to afford 
 substantial protectron for the preservation of the species, I will explain 
 
1/ 'l 
 
 y 
 
 120 
 
 my meaning wlien I say that the outhiwiy of tlie fur-seal species is con- 
 trary to the laws of God. Hundreds or thousands of years ago these 
 animals and the Aleuts were brought in contact by the directing hand 
 of Trovidenee along the shores and on the islands of Bering Sea. 
 No tree, no fruit, or grain, or grass, or cattle were there to sup- . 
 port human life; but men were there, who subsisted on these fur-seals 
 and were clothed iu their .skins. This was nearly the only food and 
 raiment they could obtain in a climate as inhospitable and in a country 
 as rugged and dreiiry as any on the habitable globe. 
 
 Only one hundred and fifty years ago, a powerful nation, Russia, 
 came with her great ships and armaments and took the country and 
 the people and the seal herds, by riglit of discovery, and supported its 
 right by the title known to the law of nations as title by discoverj' — a 
 most tyrannical and fraudulent maxim of international law which the 
 civilized woi'ld has now practicallj^ abandoned. If this had never been 
 done, the Aleuts would now be tlie owneis and rulers of that country; 
 and the question we are now discussing would be whether, under 
 international law as it is now, the food and raiment — the only valuable 
 resource of these poor and helpless people — could be taken by any great 
 power and the people left to perish. In that case the consensus of the 
 civilized powers would be that those animals should be considered the 
 property of the Aleuts, the owners of the breeding islands, and when 
 they left the coasts with the intention to return and visited the ocean 
 for food, that fhey sliould at least be attended with the protection that 
 is given by tlie law of all civilized nations to domesticated animals. 
 This is the law of (lod, who first gave these animals to those ntuthern 
 tribes and made them the staflof liie to them by reason of their docil- 
 ity, the regularity of their coming into the service of those people, and 
 their conii)lete submission to that service. 
 
 That law is not changed because the United States, a powerful and 
 wealthy nation, has assumed to make provision for these people while 
 lifting them into a higher civilization and iindsin the fur-seals the reve- 
 nue that is needed for these purposes. For more than one hundred 
 years CJreat Britain and her subjects have known the fact that Russia 
 and the United States have made these fur-seab.. the basis of a valuable 
 industry; a means of providing for the Aleuts; an instrumentality of 
 government; and almost the only source of revenue that country pos- 
 sessed. It was not until 1876 that any pelagic sealer entered Bering 
 Sea, and that was a United States vessel that was captured and con- 
 llscated by that Goverumeut. 
 
 '\ 
 
 I 
 
 j,g|^^lCTj ' WS'' "''' '' ' ' ' ^'^^W!WCT^P^m^g 
 
121 
 
 1 
 
 J 
 
 The seal liunters bad depopulated the Antarctic Ooeau . of fur-seals, 
 aud had made many successful raids on the islands and coasts of 
 Japan. Their poaching grounds had been exhausted and the hope of 
 great profits drew them to Bering Sea. They found governmental 
 resistance in Japan, liussia, and the United States, but they found in 
 Canada a Government that would give countenance to their raids, and 
 despite the best ettbrts of tlie United States and Great Britain, and of 
 their ordinances closing Bering Sea to them, they now swarm upon 
 the known route of the migration of the seals, which they follow with 
 immense fleets. It was this sudden aud dangerous movement that 
 caused these nations to agree that Ihis Tribunal should settle the ques- 
 tions that stood in the way of concurrent action between these Govern- 
 ments; and should then determine reguliitions for the proper protection 
 and preservation of tiie fur-seals in the water, and not regulations to be 
 provided for the protection of the pciagic hunters, who are the oidy 
 humau destroyers of the fur-seals that cannot be otherwise completely 
 restrained. 
 
 If we will take a correct view of tlie number and the power of these 
 destroyers we shall see in the dangerous aggregation of those enemies a 
 demand that we can not reasonably resist for preventing them from 
 destroying the fur-seals placed under our protection by this treaty. 
 In view of the very heavy forces that are and have been marshalled for 
 this ruinous purpose, and that are really invited to increase their nunj- 
 bers and strength by the regulations oftered for onv adoption on behalf 
 of Great Britain, we sliall And a just and suBicient reason for firm 
 action, without being left to conjecture upon a liieager statement of 
 facts, aud abundant statements of loose, ignorant, muddy, conflicting, 
 and partial opinions as to how much wanton and needless injury has 
 already been done to seal life, and in what months of the year it has 
 been done. 
 
 In 1892, the sealing fleet in tlie North Pacific Ocean numbered 122 
 vessels, 09 of wliidi were under the British flag, and 53 under the flag 
 of the United States. No other nations were participating in tlie hunt. 
 Allowing to each vessel 8 sealing boats, though none had less than r», 
 and many of them had 15, there were 970 boats. Tiiere could not have 
 been less than 1,000 boats. Giving to each boat a hunter and oarsman, 
 there were 2,000 men employed in hunting. They also had tlie ship 
 and its crew as a base for supply of ammunition and provisions, and to 
 give assistance in skinning the seals after hoisting them into the ship, 
 
mamm 
 
 \h ! 
 
 122 
 
 ajul in disposing of the (larcasses and salting and stowing tlie pelts. 
 Tiicsc (MOWS, allowing 10 men and otticers to each vessel, tliougli the 
 numbers weie much greater, numbered l,2liO; in all, .5,220 men. I 
 l>la('e this estimate below that of both Governments because 1 believe 
 Miat is a full nllowanee of the men needed, and this business requires 
 no groat investment of capital to make it profitable. 
 
 Kach hunter has a rifle, and a double-barreled shotgun, and takes 
 KM) rounds of amnuinitiou on each excursion from tiie ship, which he 
 usually expends in a day's work. The guns are breech-loading, rapid- 
 liring weapons, and have fixed ammunition, made watori)roof; and are 
 filed by the impact of the hanimer upon an explosive that is fixed in 
 the base of each cartridge. The powder and the explosive for igniting 
 it are charged int*) a copper cup or cylinder that forms the base of the 
 cartridge, and the lead is imbedded in the cylinder, in front of the 
 [towder. A sligiit flange around the exterior of this cylinder at its 
 base prevents its escape from the gun in firing, and when it is emptied 
 a very simple contrivance ronu)ves the shell from the breach of the gun. 
 Fifteen bm-kshot, each a deadly missile, is usually the charge of load 
 placed in each cylinder cartridge, and if a hunter fires JOO shots in a 
 day, he discharges 1,500 of these missi os at, or into, tlie seals. 
 
 In 10 days of good sealing in the North Pacific out of (iO, the single 
 hunter would fire lo,000 deadly shots at ch»so range; and in 1.") days 
 out of 00, in the Hering Sea, he would fire 22,500 deadly missiles at or 
 into the seals, even under the more apparently forbearing and humane 
 scheme of regulations ottered by Sir John Thompson. But under the 
 British scheme his opportunities would be miu-h greater. In a seal- 
 ing campaign of two months in the North Pacific and throe months in 
 IJoring Sea^ — continuous months — the single hunter, during twenty-five 
 days ')f good sealing out of one huiulred n\ui fifty-three days (Sundays 
 iiK^luded), would fire at and into the seals .17,500 deadly cfirtridgt. . 
 One hunter with that opportunity, if he was moderately skilled in 
 shooting seals, would destroy 2,000 or more seals in 153 days of hunt- 
 ing. 
 
 It is idle to suppose that out of l."».'i days of hunting he would not 
 find 25 days of good sealing, in which he would fire 100 shots each day. 
 The average for the entire period would bo 21 shots each day for each 
 hunter. Now multiply these figures by the number of hunters in the 
 entire fleet of 122 vessels — 9G7, and in the 25 days of good sealing 
 weather out of the 1.53 days spent iu the North Pacific and Bering 
 
 vL 
 
 »> 
 
 U' 
 
123 
 
 i 
 
 
 .. 
 
 Sea, they would (ire at and into tlie seals .'{,550,824 eartridgos, each 
 loaded with 15 buckshot, all deadly missiles, and nuinbeiinjr 53,L'(!li,3(;(). 
 Now, let us suppose that three fourths of these shots failed to hit the 
 seals and that only half of the number that hit them either killed the 
 seals or wounded them mortally, and we expose this herd of seals to 
 an annual loss of 443,853 seals at the very lowest possible estimate 
 and upon a basis of facts that no one can safely dispute. This shows 
 that not more than (me seal is taken out of every five seals shot. This 
 86' lerd in its present depleted condition can not contijine to exist if 
 half that number of seals is taken from it in each of the years from 
 1804 to the end of the century. And if the percentage of female 
 seals killed is ecjual to two-thirds or even half the whole number, the 
 speed and certainty that must attend the destruction of the herd will 
 be very greatly increased under the plan of .Sir John Thompson. 
 
 If we expect that a less number «»f vessels will hereafter assend)le for 
 seal hunting than came in 1802, on what ground can we safely base 
 such a conjecture? 
 
 The skins of seals are worth $10 apiece; they were worth that much 
 in 182 J, and if the average catch of each vessel is only 250 for live 
 months, or 50 seals a month, it is a very large earning, and it leaves 
 half the year for other voyages. If the attack on the seals is permitted 
 when they are herded together in Bering Sea in one vast body, or 
 when traveling in largo parties up the l^acilic coast, the limiting of 
 the hunting season to a brief period will only increase the activity of 
 the pelagic sealers, and as much killing will be done with 200 vessels 
 in one month as would be done with 100 in two months, if the open 
 season was two months instead of one. Wo could no more safely 
 assume that the sealing tleet in 1804 or 1805 will not exceed the number 
 assembled in 1892 than we could have assumed in 1870 that pelagic; 
 hunting would be limited to a single vessel and could not possibly 
 reach the number of 122 vessels by the year 1892. The experience of 
 the last seventeen years on this subject is not to be disreganled. 
 It is a living lesson of truth that the legerdenuiin of minor and astute 
 calculations can not conceal under a ch)ud of doubt. The fact remains 
 that in the year 1892, 122 vessels assembled in the North Facitic aud 
 took 73,394 skins of dead animals, killing or fatally wounding at least 
 twice that number— 140,788— in all, 220,182 seals, of which two thirds 
 were females, numbering 146,794. 
 There can be but little doubt, on all the evidence, that the number 
 
mmmm 
 
 124 
 
 of female seals killed and wounded was more than double tlie number 
 of skins that were taken. There is also as little doubt that two-thirds 
 of the females killed or fatally wounded were gravid, and on their way 
 to the islands to be delivered of th«ir young; and each seal in that 
 condition was then the repository of two lives that were thus destroyed; 
 the unborn pups being 99,802. 
 
 This uiimbur, adding the number taken 73, 394 
 
 And the number killed and wounded, but not taken 220, 182 
 
 And the unborn pups of the U(),7'J4 females killed or futally wounded 'JO, iHi'2 
 
 Givesa total of 393,438 
 
 How can it be said that, on the evidence in this case, this is not a 
 true and safe estimate of the result of the work of destruction wrought 
 by 122 sealing vessels in 1892, in the North Pacific while they were 
 limited to tliose waters by the modus vlvendi of 1891 IT 
 
 Reduce this estimate if you will by one-half and make it only 
 190,714 seals of all conditions and sexes that are killed, and the num- 
 ber destroyed is nearly twice as gi-eat as the number of seals that 
 were killed and recovered in 1892. Until these facts are changed or 
 expunged from the record, I can find no occasion for examining in this 
 opinion the minor details that rehilc to other seasons. These facts, 
 if they arc to be repeated indefinitely, destroy all hope of preserving 
 these seals. 
 
 The year 1892 with its actual experiences stands nearest to 1893, and 
 is the safest, as it is the most complete, guide to the truth of the situ- 
 ation. I therefore take that year, with its ascerfa'ned facts and 
 results, as the chief basis of my objections to the s Jiemes of regu- 
 lations proposed by Great Britain and departed from a.id modified, but 
 scarcely improved, by the plan of Sir John Thompson. 
 
 That Sir John has found it necessary to depart from the British 
 proposals is a grave concession, espeiaally in the point so earnestly 
 cont'^sted by Great Britain, that this Tribunal has no jurisdiction out- 
 side of Behring Sea. He proposes a zone of absolute prohibition of 
 pelagic sealing of 10 miles around the Aleutian Islands. 
 
 In considering regulations as they may be shaped and modified by 
 other considerations than the method that will best protect and pre- 
 serve the particular class of fur-seals placed under the protection of 
 this Tribunal by the treaty (if we are to tak3 siich liberties with our 
 powers), the Tribunal must, in justice, examine into the rights of the 
 pelagic sealers of the United States, in the Pacific Ocean and in Ber- 
 
 4 
 
126 
 
 . h 
 4 
 
 ing S(;a, ii8 they will bo when the stiitutots of the United St-iitos shall 
 permit them to eator with the Canadians and al.s() with the people of 
 otiior nations into that hai-vest Held, and to have etpial riglits in tlie 
 spoils that we are asked to pliwe within tlieir reach. 
 
 Altlioiigli we have not yd! considered the Hritisli ease on its 
 merits, which covers only the claim of right to unlimited and un- 
 controlled pelagic sealing, and have only considered the objections 
 to the case of the United States tliat are stated iu the British counter 
 case, 1 must assume that the citizens and subjecits of the rcsitective 
 Governments everywhere on the high seas are to have e([ual rights 
 and privileges. If it is the right and j)rivilege of the pelagic sealers of 
 Canada to waylay the seals in May and June at Unimak Pass or any 
 other pass, and in Jidy, August, and September to waylay them in 
 Bering Sea near the passes or near the breeding islands, the same 
 right must be accorded to the citizens of the United States who for 
 personal gain choose thus to violate the declared public policy of their 
 Government. 
 
 If it must be that this Tribunal will iuHict upon the United States 
 the double indignity of having her wise and honorable policy of 
 preserving the fur-seal 8i>e(!ies disregarded by her own peojde, under 
 the suggestions of the award, and of requiring the concurrent action 
 of Great Britain in tiie principles, if not iu all the details of laws and 
 of administration, in guarding the proposed 30-mile zone against intru- 
 sion by citizens of the IJ^nited States, we should at least be careful 
 to protect the United States against a d(^finition of the rights and 
 powers of pelagic sealers that is so radical as to break down the 
 admitted rights and principles of self-defense. 
 
 The same necessity does not exist for guarding Great Britain with 
 protective regulations, because no pelagic hunting is done within thou- 
 sands of miles of any i)lacc where she has any sealing industry, and 
 the interest of the pelagic hunters is in accordance with her ])re8ent 
 policy of giving them free rein in the destruction of fur-seals if they can 
 miike any money by the operation, as her policy is now disclosed iu the 
 regulations she has submitted. 
 
 As to <;itizen8 of the United States wlio would be thus encouraged 
 by such an award policy to raid upon the industries and revenues of 
 their Government during five months of the year and t/O defy its public 
 policy, it may turn out that the United States will abandon them to 
 their own devices for protection while they are engaged in this selfish, 
 cruel, and unpatriotic work. 
 
SI 
 
 h) 
 
 126 
 
 And hor« cornea to view tlio most daii},forous uihI dilVuMilt task iuid 
 tlu* most iiTitatini; tliat the two (JoverniiuMita will Iiavi; to juTform in ivg- 
 iilatiiig as between these i»ela{,'ie sealers tlieirriylits while they an; pur- 
 suing and eaptiiriiig fur seals with double-barreled shotyuiis. The 
 ]>elts are worth ^H) each, a nuicii laryui' sum than is the averajic yield 
 of the richest gold mine per diem to tiie gold hunters; aiul we know 
 how imp(»s8ible it is to restrain by law the »'i,)l(.|K!e that has attended 
 their struggles for "diggiii;,s," where none of them own the soil or 
 any privilege in it except to discover new leads and to dig for gold. 
 
 On the high seas .'50 miles or more from any land there are no courts 
 and call not be any elllcient police by (Mther or both nations. Conced- 
 ing to tiieni the best intentions and tlie most honorable zeal in protect- 
 ing the rights of all concerned, they will fail to prevent those personal 
 conllicts between the ravenous pelagic sealers around the .">U-niile zone, 
 esi>e(!ially, which in the end will embroil the two countries. 
 
 The United States, as I have observed, may not choose to take up, 
 as an international question, the (luarrels of lier <:itizens with Canadian 
 subje<!ts while they are both engaged in doing a great national wrong 
 to that (Government; but they will be, naturally, very chary of the 
 dealings of Great Uritain Avith such controversies. There will be no 
 internati(nial court for the hearing of such controversies between 
 private persons engaged in sealing in boats and canoes on the high 
 seas, and they will probably be settled by the vin major. The fact that 
 both i)arties will be heavily armed for assault upon the seals will nuvke 
 such collisions very dangerous, and their occurrence almost certain. 
 
 A United States sealer finds a school, or party of seals and goes to the 
 leeward to get in gunshot of Miem; andai)arty of Canadians desiring to 
 kill them, approaches the seals from the windward and shoots one with 
 a ritle before the other hunter can get in range with his shotgun. A 
 «iuarrel ensues and results in bloodshed. JJy a iiction of law, they are 
 each upon the teriitory of their resi)ective countries, and the settlement 
 of that case, without the interventicm of the Covernments, would tax 
 the wisdom equal to that of Solomon. If one sealer iu his boat 
 shoots at a seal that another is appvoaidiing from the other side, 
 and wounds or kills the hunter, what is to be done in that case? 
 That contliet will residt from such occasions is almost certain, and how 
 it can be settled is most uncertain. Illustrations are feeble to portray 
 the difficulties and conjectures are far short of the reality as to the 
 contlicts that must occur in the wild hunt for seals that the British 
 regulations invite. 
 
 i 
 
127 
 
 ± 
 
 Sir John Tliuiii])Hnn spoko of tlio generosity of the Hritisli Govorii- 
 iiKMit ill trciitiiig with (lie lliiit«'(l States for the i>r('sorviitioii of the 
 fur-seals. There was as iiiueli {{''"•'«'<»'^ity on one side as on tiie otiier, 
 and none on eith(!r. It was a business matter rehitiiij; to inuterial in- 
 terests and, I may well assert, «f e<iual importance t(» both liigh eon- 
 traeting powers, which took its origin in what Sir .lohn has aptly terni(>d 
 tiie "bursting in" of the (Canadians into Bering Sea in KSHti. It was 
 a sudden "bursting in,'' and had the appearance of a violent and de- 
 fiant experiment — a raid. Canada and the Tnitt'd States since IHIS 
 have had many severe con t<'ntions over the tisheri»'sof the northeastern 
 coast, in which arrests of ships and of persons hiive led to very earnest 
 discussion. The United States, claiming certain treaty rights tiiere, 
 have not burst into any of the waters that (Canada lias claimed as her 
 fishing preserve, altiioiigh her people have been treated there with 
 severe inhospitality. 
 
 Tiiat (lovernmeiit has [(referred to prevent collision and strife by 
 restraining her people from bursting into places where they believed 
 that tlieir rights entitled them to go. It was an easy matter for Canada 
 to have i)ropounded Its claim of rights to the United States, and to have 
 had them deeded upon without permitting Iku' citizens to go into 
 Hering Sea with their vessels and hunters armed with double barreled 
 shot guns and hunt seals up to the 3-mile limit, which she now admits 
 should bo 10 miles as to such hunting. It was (piitcs as easy for Can- 
 ada to restrain her citizens from bursting into I»ering Sea as it was to 
 enact her system of very stringent laws to pnttect her preserve of hair 
 seals 1,000 miles from Canada, in the open ocean off the coast of (Jreen- 
 land. If C^anada had passed any reasonable laws foi' protecting these 
 interests of the United States, even during negotiations, a serious dis- 
 turbance of neighborly feeling could have been avctided, and fearful 
 havoc in the seal herds passing her coasts would have been prevented. 
 The enactment of such a law would have enabled the United States 
 to have contrtdled her own people as to hunting seals in the North 
 Pacific without incurring the reproach from them of denying to them 
 the lu'ivileges that Canadian subjects enjoyed on the high seas, and of 
 aUowing them to reap all the profits of the massacre of the fur-seals. 
 The pcdicy of Canada has made it impossible for Congress to restrain 
 the people of the United States from particii)ating in this reckless 
 destruction, and from this defiance of \wr public polic^y and laws. Yet, 
 in the presence of this obvious legislative impossibility, it seems equally 
 
128 
 
 iinpoMsible to uiiHwur the thrimt th»t is »lwny8 inado at the Uiiitud 
 Htatt^s in ai');uinunt, in cenHuru of lier conduct, that CongicHB Iuvh not 
 enacted laws toi»revent citizens of tlie United States from ]icla);ic linnt- 
 inj; in the Noitli Pacific Ocean. Tlio fact wliicli no one seems to deny, 
 tiiat citizens of tiie United States tooli slielter under the niitisii Haj; 
 and Canadian legistry to evade tlie laws of the United States exclud- 
 ing them from sealing in Jioring Sea, seems to have been forgotten. 
 
 That fact ah)ne shows how impotent would have been the laws of the 
 United States to protect and preserv*^ the fur-seals against the depre- 
 dations of its own people while sealing under the shelter of the IJritish 
 Hag. Canada controls the registry, licensing, and clearance of sealing 
 vessels in her sea-ports, as is shown by her statutes relating to the 
 hair- seal fisheries. A simple regulation would have saved the fur-seals 
 from this exterminating raid that the evidence in this case has disclosed. 
 
 But Canadian subjects seem to have a double allegiance and a two- 
 fold protectiou under their colonial system. The Canadian government 
 can permit them, without control, to burst into Bering Sea and prevent 
 the seals from reaching the islands of the United Stat<'S, and when 
 such raids are followed by arrests they can claim the imperial power of 
 Great Britain to protect them. 
 
 Whatever censure, therefore, may be visited upon the United States 
 for her uca^'ngs with her own people, it must be admitted that the 
 dilliculties o« the situation have been caused by the policy that her 
 neighboi b.is seen proper to pursue. If such censures had been 
 just they would have been made by Great Britain when negotiations 
 in respect to this treaty were pending. That Government did not 
 venture to allude to the subject. It seems to have beeu held back as 
 a n^.ake weight for the argument and considerations of this case. 
 
 When the United States shall have an opportunity to consider that 
 (juestion in her future discussions of such uiatters, should tliat bo 
 unhappily necessary, her vindication will be found to be complete. Mr. 
 Bayard, who first pointed out the rights of the United States, which 
 included, in substance, the five points we have just been discussing, 
 and which wore advanced subsequently with great earnestness by Mr. 
 Blaine, proposed to leav^ those matters out of consideration, and to 
 proceed at once to establish the regulation of pelagic hunting by des- 
 ignating an area within which a close season should be enforced. And 
 afterwards, when arrests were made of the Canadian vessels tliat wore 
 killing seals in Bering Sea, Mr. Bayard ordered their release. This 
 
 ^ * wM ?r^ 
 
 MM 
 
129 
 
 wa8«loii(>, not bticrtUKo Mr. Hiiyiinl lnul roceiU'tl IVjhii tluj iitlitiido ii» 
 liuld,aH wiiH conteiKhMl by thi^ liritisii coiiiihi^I in oral iti';;iiiii(>iii, biiMor 
 tliu reuNon Miat a iioj^otiation wuh (tuntlin^ tor Miu HO.tlli>nM>nt of nil 1\h\ 
 cuntrovei'Hy, an«l lie (li<l not think that it wonid promote }{ood will Ik; 
 tween the natiouH to puHh the clainiM of tlu) (Jnitcd States by thu.exeririe<e 
 of force while it was neg»>tiatin}; with (treat IJritiiin abontfhe validity 
 of thost} claims. After nuch example of considerate action on the |>art 
 of the United States, it is not doinj^jnstice to either party to claim that 
 theotlier was treating with it in a spirit of generosity or of forb«Mirance. 
 
 Does anyone doubt that the Liriited States a<;ted, in all this con- 
 troversy, upon a flrm belief in the justice of its claims in every 
 particular? If thosodaims were just, or made in thi'tflrm belief, it was 
 a matter of as nnich concern to Great Britain as it was to the United 
 States, iMjth in the view of justice and as to the preservation of the 
 I)eace, that they should be fairly considered and settled. 
 
 Great Britain has never, until the scheme of her regulations were 
 presented to this Tribunal, assorted that the United States luui not a 
 special and peculiar interest in the fur-seals frequenting JJering Sea. 
 In the diplomatic correspondence that Government conceded smrh a 
 peculiar interest in the United States, but has at last got its <;onsent 
 to dwarf the concession to an area that would contorm only to the intei'- 
 eats of the Canadian sealers. 
 
 It was these men who compelled Great Britain to interpose fur their 
 protection, and when that Government found that their ])ractices were 
 destroying a great and valuable element of commerce, they denuindeil 
 an investigation of the necessity for restraining pelagic hunting by a 
 joint commission, ami this is the iiiiti!»l point of this Arbitration. 
 
 Having touched on the general (juestions or subjects now presented 
 for our consideration, and leaving to Mr. .histice Harlan the task he 
 has cLosen of making a closer examination of the evidence bearing on 
 these questions, I will take up the plans or schemes of regulations, so 
 far laid before the Tribunal, and endeavor to «t,ate my understanding 
 of what they are and what will be the results if any of them are 
 ado]>ted. 
 
 The further remarks of Senator Morgan on this topic related to the 
 comparative merits of the several schemes or i)rojects of regulations 
 presented to the Tribunal, and are not bere given. 
 
 O 
 11495 M 9