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KING, PRINTER 87 & 89 William Street New York 3x?.^^ A--^^^ 12139 THE BEHEING SEA DISPUTE. CHAPTER I. Not infrequently does a fever of popular excitement lend to national weakness an apparent, yet unreal strength. The Behring Sea dispute is an illustration. Like all dis- putes about the national domain, it has called out an abun- dance of bluster. So that a claim asserted by our govern- ment uncertainly and perhaps unwittingly, has been borne aloft on the shoulders of the people into a position of dangerous prominence. It therefore becomes important to examine this controversy in the cold, clear light which international law and history shed upon it. Accordingly what follows is less an argument than an exposition. The necessity of knowing precisely what we are to dis- cuss, leads me to present, first, a Statement of Facts. U. S. Revised Statutes.— "Section 1954. The laws of the United States relating to customs, commerce and navigation, are extended to and over all the main-land, islands, and waters of the Territory ceded to the United States by the ^mperor of Russia by treaty concluded at Washington on the thirtieth day of March, a. d. one thou- sand eight hundred and sixty-seven, so far as the same may be applicable thereto. _2_ "Sec ;J6. No person shall kill any otter, mink, mar- ten, sable, or fur-seal, or other fiir-bearing animal witliin the limits of Alaska Territory, or in the waters thereof. * * * "Sec. ion?. * ^ * The collector and deputy col- lectors appointed for Alaska Territory, and any person authorized in writing by either of them, or by the Secre- tary of the Treasury, shall have power to arrest persons and seize vessels and merchandise liable to tines, penalties or forfeitures under this and the other laws extended over the Territory * * ." Such were the laws which first apprised the woi'ld that the United States had stretched over the Behring Sea its iron hand of domiUiOn. They were enacted July 1st, 1870, immediately after the cession of Alaska. The vague term in these laws, "Avaters thereof," re- mained for a time unfocused. It did not at first give rise to a claim of more than ordinary maritime jurisdiction. This is evident from the following incident : In 1872 Mr. Phelps, ^ collector of the Port of San Fran- Cisco, reported to the Secretary of the Treasury that ex- peditions were being organized in Australia and the Ha- waiian Islands to capture seals on their annual migration to the Seal Islands of St. Paul and St. George. He recom- mended that a revenue-cutter be sent to prevent this. But Sec. Boutwell's reply was : "I do not see that the United States would have the jurisdiction or i30wer to drive off parties going up there for that purpose, unless they made such attempt within a marine league of the shore." ^ 1881, however, seems to mark the change of opinion on this point. The occurrence in that year of similar expe- 1 Enclosure No. 156. Let. to Mr. Boutwell, Sec. of Treas., March 25, 1873. This and the succeeding references given by number refer to 60 Cong., 2dScss. Sen. Ex. Doc. No. 106. 8 No. 56, Letter to Mr. Phelps, April 19, 1873. — 3- ditions prompted Collector D. A. D'Ancona to request from the Treasury Department more accurate information as to the meaning of the above laws. The interpretation now put upon them was as follows : "You inquire in regard to the interpretation of the terms 'waters thereof and 'waters adjacent thereto' as used in the law, and how far the jurisdiction of the United States is to be understood as extending. " Presuming your inquiry to relate more especially to the waters of Western Alaslia, you are informed that the treaty with Russia of March 30, 1870, by which the Terri- tory of Alaska was ceded to the United States, defines the boundary of the Territory so ceded. * * * * * * "All the waters within that boundary, to the western end of the Aleutian Archipelago and chain of islands, are considered as comprised within the waters of Alaska Territory. All the penalties prescribed by law against the killing of fur-bearing animals would therefore attach against any violation of law within the limits before described." ^ In 1886 this ruling was affirmed by Secretary Manning in a letter » to Collector Hagan : " Treasury Department, " March 6, 1886. <« Sir.—l transmit herewith for your information a copy of a letter addressed by the Department on the 12th March, 1881, to D. A. D'Ancona, concerning the Jurisdiction of the United States in the waters of the Territory of Alaska and the prevention of the killing of fur seals and other fur-bearing animals within such areas as prescribed by chapter 3, title 23, of the Revised Statutes. The attention of your predecessor in office was called to the subject on 1 No. 212. Treaa. Regs. Let. of Acting-Sec. French to Mr. D'Ancona, March 12. 1881. 2 No. 156. _4— the 4th April, 1881. This comTniinication is addressed to you inasmuch as it is understood tlint certain parties at your port contemplate the iitting out of exjieditions to kill fur seals in tliesH waters. You are requested to give duo publicity to such letters, in order that sncli parties may be informed of the construction placed by this Department upon the provision of law referred to. "Respectfully, yours, " B. Manning, *' Secrerary.'' But as yet no raptures were made. i British Colum- bian sealers, in Alaskan waters, remained unmolested so late as 188.1» ; and this, although spoken by American rev- enue-cutters. In the spring of 1886 a large iieet prepared for the coming seal fishing season in Behring Sea.^ In August, however, of that year, the United States crui- ser Corwi?i, acting under instructions from the Treasury Department, seized at a distance of 11.'), 45 and 70 miles from the island of St. George, respectively, the British Columbian seal-schooners Omoard^ Carolena and Tliorn- ton. They were taken into Sitka, confiscated and con- demned to be sold. The libel of information of the United States Dis- trict Attorney for Alaska against these vessels declared them "forfeit to the use of the United States" on the ground of being " found engaged in killing fur seals within the limits of Alaska Territory and in the waters thereof in violation of section 1956 of the Revised Statutes of the United States." » The brief for the defendants, on the other hand, con- tained the following argument : " The first question then to be decided is what is meant 1 No. 12. Let. Mr. Bayard to Sir L. S. S. West, April 12, 1887; No. 117. Let. Lord Lansdowne to Mr. Stanhope, Nov. 39, 1886. 8 No. 156. Let. Mr. Lubbe to Mr. Baker, March 30, 1886. 8 No. 14. U. S. m. The Carolena. &c. _ri- by the waters thereof. If the defondniifs are bound by the treaty between tlie United States and Russia ceding Alaska to the United States, tlien it ai)pears that Russia in 1852 claimed absolute territorial sovereignty over the Ik'hring Sea, and puri)orted to convey practicnlly one-half of that sea to the United States. But are tlie defendants, as men belonging to a county on friendly terms with the United States, bound by this assertion of Russia ? And ran the United States claim that the treaty conveys to them any gr<^ater right than Russia herself possessed in these wateis? In other woids, the mere assertion of a riglit contrary to the comity of nations can confer on the gran- tees no rights in excess of those recognized by the laws of nations. " It also appears that the United States in claiming sovereignty over the Behring Sea is claiming something be- yond the well-recognized law of nations, and bases her claim upon the pretensions of Russia, which were success- fnlly repudiated by both Great Britain and the United States. A tieaty is valid and binding between the parties to it, but it cannot affect others who are not parties to it. It is an agreement between nations, and would be con- strued in law like an agreement between individuals. Great Britain was no party to it and therefore is not bound by its terms." ^ Judge Dawson, after quoting the first article of the Alaska cession treaty, charged the jury : "All the waters within the boundary set forth in this treaty to the western end of the Aleutian archipelago and chain of islands are to be considered as comprised within the waters of Alaska, and all the penalties prescribed by law against the killing of fur-bearing animals must, there- fore, attach against any violation of law within the limits heretofore described. "If, therefore, the jury believe from the evidence that the defendants by themselves or in conjunction with others 1 No. 158. — 0— did, on or about tlio time cliarged in the inl'oimation, kill any otter, mink, marten, sable, or fur-seal, or other fur bearing animal or animals, on the shores of Alaska or in the ]3ehrings Sea, east of the 193d degree of west longi- tude, the jury should find the defendants guilty." * Sir L. S. Sackville West, British Minister in Washing- ton, made a formal protest in the name of Her Majesty's Government against these seizures. ^ Thereupon Attorney- General Garland issued the follow- ing order : "Judge Lafayette Dawson and "M. B. Ball, " United States District Attorney, Sitka, Alaska: " I am directed by the President to instruct you to dis- continue any further proceedings in the matter of the seizure uf the British vessels Carolina, Onward and Thornton, and discharge all vessels now held under such seizure and release all persons that may be under arrest in connection therewith." But its authenticity was suspected by those to whom it was directed, ^ and consequently its execution was delayed until its repetition in the following fall. * Secretary Bayard, in communicating to Sir L. S. S. West the above order, hastened to assure him that this action was taken "without conclusion at this time of any questions which may be found to be involved in these cases of seizure," ^ He steadily refused to give any assur- ance of the discontinuance of such seizures. In answer to an inquiry of Sir L. S. S. West as to whether vessels fitting out for the approaching fishing season in Behring Sea 1 No. 14. 2 No. 2. Let. to Mr. Bayard, Oct. 21, 1886. 3 No. 24. Let. Mr. Garland to Mr. Bayard, Oct. 13, 1887. 4 Telegram of Oct. 12, 1887 ; id. 5 No. 9. Let. Mr. Bayard to Sir L. S. S. West, Feb. 3, 1887. Q iiiiglit roly on being unmolested by tlie cruisers of the United States when not near hind, ' lie wrote : "The question of instractions to Government vessels in regard to preventing the indiscriminate killing (»f fur- seals is now being considered, and I will . iforni you at the earliest day possible what has been decided, so that Brit- ish and other vessels visiting the waters in question, can govern themselves accordingly." * And when later informed that " Her Majesty's Govern- ment had assumed that pending the conclusion of discus- sions between the two governments on general questions involved, no further seizures would be made by order of the United States Government," » he pronqitly denied ever saying anything to justify such an assumption, but dechitid that "having no rersoTi to anticipate any other seizures, nothing was said in relation to the possibility of such an occurrence." * Here the matter might have ended, but fresh seizures now reopened the healing trouble. All through July and August of 1887 the events of the preceding year were re- peated. During those two months the U. S. revenue-cutter lilchard Rush captured the British Columbian fishing- schooners W. P. Sayioard, 59 miles ; Dolphin, 40 miles ; (h-ace, 96 miles, and Anna Beck, 66 miles, from Oonalaska Island ; and the Alfred Adams, 60 miles from the nearest land. Formal protest was again entered by the British Minister at Washington. « An opportunity was given the owners of these vessels to release them on appeal bonds. « But owing to a failure of the proctors to take an appeal within the 1 No. 11. April 4., 1887. 2 No. 12, April 12, 1887. 3 No. 15. Sir L. S. S. "West to Mr. Bayard, Aug. 11, 1887. 4 Let. to Sir L. 8. S. West, Aug. 13, 1887. 6 No. 23, Lets. Sir L. S. S. West to Mr. Bayard, Ocs. 12 and 19, 1887. 6 Let. Mr. Garland to Mr. Bayard, March 9, 1888, .. — 8— pivsoribecl time tliis privilege was lost to four of the ves- selsi and the decrees of condemnation became final. ^ These four vessels were the Anna BecJc, Dolphin, Grace and Ada. At the request of the Brit ish Government, ^ their sale was postponed and bonds in lieu of the vessels ordered to be received, until the legality of their seizure could be investigated."* No advantage, however, was taken of this offer to bond, and their value, while lying at Port Town- send in the custody of the marshal, depreciated so rapidly that a total loss was feared. ^ Accordingly, and, in the case of the Grace and Dolphin, at the express wish of the owner, « these schooners were, on the 14th of November, 1888, ordered to be sold.' Tile Act of Congress, approved March 2, 1889, cannot be regarded as adding anything to the history of these events. It simply declared * that Sect. 1956 of the Re- vised Statutes already given, includes and applies to "all the dominions of the United States in the waters of the Behring Sea." But as it does not further define what "these dominions'" are, it begs the question. It also lays upon the President the duty of making an annual proclamation accordingly ; and on March 22d of last year President Harrison did warn "all persons against entering the waters of the Behring Sea within the domin- ion of the United States," &c. But this expression is equally unenlightening. Aire ady, pending these difficulties, negotiations for their international settlement had been begun. On August 19, 1887, Secretary Bayard sent .circular letters to the U. S. » No. 46. Let. of Sir L. S, S. West to Mr. Bayard, Aug. 6, 1888. »No. 45. Let. Mr. Garlund to Mr. Bayanl, May 31, 1888; No. 42. Let. Sir L. S. S. West to Mr. Bayard, May 28, fsSS. » No. 46. Let. Sir L. 8. S. West to Mr. Bayard, Aug. 6, 1888. * No. 49. Let. Mr. Jeiilis to Mr. Bayard, Aug. 10, 1888. " No. 5U. Let. Mr. Garland to Mr Bayard, Oct. 20, 1888. «No. 52. Let. Mr. Atlilnsto Mr. Garland, Aug. 25, 1888. ' No. 61. Let. Mr. Garland to Mr. Bayard, Nov, 14, 1888. * 3d section. — 9— legations in England, Germany, Fi ance, Japan, Russia and Norway and Sweden. The situation was thus described : "Recent occurrences have drawn the attention of this Department to the necessity of taking steps for the better protection of the fur-seal fisheries in Behring Sea. " Without raising any question as to the exceptional measures which the peculiar character of the property in (juestion might justify this Government in taking, and with- out reference to any exceptional marine jurisdiction that might i)roperly be claimed for that end, it is deemed advis- able—and I am instructed by the President so to inform you— to attain the desired ends by international co-opera- tion." Thereupon the respective ministers to those countries were "instructed to draw the attention of the Government to which " they were " accredited to the subject, and to in- vite it to enter into such an arrangement with the Govern- of the United States as will prevent the citizens of either couiitry from killing seal in Behring Sea at such times and places, and by such methods as at present are pursued, and which threaten the speedy extermination of those ani- mals and consequent serious loss to mankind." ^ It will be noticed that the submission of this matter to the international tribunal is so worded as to preclude any idea of retraction or confession of wrong on the part of the United States. This step must, therefore, be regarded as taken solely from motives of comity. Favorable replies to these invitations were received from Great Britain, » Russia, ^ France"* and Japan. « Nor- way and Sweden approved the plan ; l)ut, while desiring the future privilege of joining in such an arrangement, they thought that their lack of interest in the seal fisheries 1 No. 69. Let. Mr. Bayard to Mr. Vignaud. 8 No. 74. Let. Mr. Phelps to M'-. Bayard, Nov. 12, 1887, • No. 103. Let. M. de Oiers to Mr. Lolhrop, Nov. 25, 1887. * No 70 Let. Mr. McLane to Mr. Bayard, Oct. 22, 1887. » No. 93. Let. Mr. Hubbard to Mr. Bayard, Sept. 29, 1887. —10— made their present participation unnecessary. ^ Nothing had been heard from Germany up to February 12, 188'.), when the papers on this subject were published. To Mr. Bayard's proposal that a close time for fur seals be established between April 15 and November 1, and be- tween 100° of longitude west, and 170° of longitude east in the Behring Sea,' Lord Salisbury assented.' Russia eagerly favored the international conference, and through her minister in London, Mr. de Staal, proposed to include in the treaty both her portion of the Behring Sea around the Commander Islands and the sgu of Okhotsk. * The American Department, ^ readily agreed to this proposi- tion and Lord Salisbury suggested the extension of the regulated area to those parts of the Sea of Okhotsk and the Pacilic Ocean north of north latitude 47°^ Just at this juncture, however, these negotiations so amicably pending at London were stopped. In June, 1888, the Canadian Government informed Lord Salisbury that a memorandum on this matter was being prepared for for- warding to London, and begged that Her Majesty's Gov- ernment would delay all further action until its arrival.' In consequence, all proceedings toward a solution through the channel of diplomacy came to a temporary standstill. Although they have since been resumed, ^ and are now pending in Washington ; yet their subsequent course is hidden beneath the sands of official secrecy. 1 No. 106. Let. Mr. Magee to Mr. Bayard, March 20, 1888. 2 No. 76. Let to Mr. Pbelps, Feb. 7, 1888. 3 No. 78. Let Mr. Phelps to Mr. Bayard, Feb. 25, 1888. •» No. 81. Let. Mr. White to Mr. Bayard, April 7, 1888. » No. 83. Let. Mr. Bayard to Mr. White, April 18, 1888. • No. 84. Let. Mr. White to Mr. Bayard, April 20, 1808. 7 No. 87. Let. Mr White to Mr. Bayard, June 20, 1888. 8 Report of Secretary Bayard to President Cleveland, Feb. 13, 1889. Pre- face to Sen. Ex. Doc, No. 106, 50 Cong., 2d Sess. -11— CHAPTER II. " You will observe, from the facts given above, that the authorities of the United States appear to lay claim to the sole sovereignty of that part of Bering Sea lying east of the westerly boundary of Alaska, as defined in the first article of the treaty concluded between the United States and Russia in 1867, by which Alaska was ceded to the United States, and which includes a stretch of sea extending in its widest i)art some 600 or 700 miles easterly [westerly ?] from the mainland of Alaska."* Such was the moderate language used by the Earl of Iddesleigh, British Secretary of State for Foreign Affairs, in instructing the British Minister at Washington. Such, at the outbreak of these troubles, was the view taken by the British Government. How shall we shield ourselves from this apparently just criticism ; or how shall we answer the riddle which a Victoria, B. C, paper presents to us? "A nation disregarding on one coast the belt of the sea literal which constitutes the range belonging to coast defenses, is actually assuming on another coast supreme maritime jurisdiction over a waste of waters comprising half of the northern portion of a vast ocean." Before we speak of the position of the State Depart- ment itself, let us consider one or two arguments unoffi- cially advanced in support of our Behring Sea, policy. First, it has been said that we have derived our right of exclusive jurisdiction over those waters from Russia.' This rests upon the two suppositions: first, that Russia herself ever possessed such rights, and secondly, that she was able to, and actually did, transfer them by treaty to the United States. To answer the questions thus raised we shall have to turn to diplomatic history. 1 No. 3. Oct. 30, 1886. » No. 17. Let. Marquis of Salisbury to Sir L. S, S. West, Sept. 10, 1887. -12- RussTAN EroiiTs IX TiiK Beiiuino Sea. In 1821 Russia first in'oclaimed to the world her sovereignty over the nortli Piicilic Sea. The extent of the dominion chiimed is shown by tlie regulations published in pursuance to the ukase of September 4 of that year : "Sec. 1. The pursuits of commerce, whaling and fish- ing, and of all other industry, on all islands, x^orts and gulfs, including the whole of the northwest coast of America, beginning from Behring Strait to the fifty-first degree of northern latitude ; also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring Strait to the south cape of the island of Urup, viz, to 45° 50' norlhern latitude, are exclusively granted to Russian subjects. " Sec. 2. It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia as stated above, but also to approach them within less than a nundred Italian niile:^ The transgressor's ves- sel is subject to confiscation, along with the whole cargo." It will be noticed that Behring Sea is not alleged to be a closed sea ; exclusive jurisdiction to only a marginal belt of one hundred miles is insisted upon. To be sure, Mr. Poletica, Russian envoy at Washington, declared Russia's right to regard Behring Sea as a closed sea, and rested it on reasons of bi-lateral possessions. But that Russia did not stand upon that right, is evident from his words : "I ought, in the last place, to request you to consider, sir, that the Russian possessions in the Pacific Ocean ex- tend, on the northwest coast of America, from Behring's Strait to the fifty -first degree of north latitude, and on the opposite side of Asia and the islands adjacent, from the same strait to the forty-fifth degree. The extent J sea of which these possessions form the limits comjirehends all the conditions which are ordinarily attached to shut seas (mers fermees), and the Russian Government might conse- — i; qnently judge itself authorized to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners. But it preferred only asserting its essential rights, without taking any ad- vantage of localities." 1 Nevt^rtheless, Mr. Adams, Secretary of State, instantly took up cudgels in defense of our privilege of entering (!?rr;i within the limit of one hundred miles. After oppos ing the coast claim set up in the preceding assertions, he proceeds thus : " This pretension is to be considered not only with refer- ence to the question of territorial right, but also to thiit prohibition to the vessels of other nations, including tiiose of the United States, to approach within 100 Italian miles of the coasts. From the period of the existence of the United States as an independent nation, their vessels have freely navigated those seas, and the right to navi^jate them is a part of that independence. * * the vessels of our citizens from the shore, ordinary distance to which the territorial extends, has excited still greater surprise." « Against the mare clausuin doctrine of the Russian diplomat he urged an argument, of which a well-known writer at that time says, "A volume on the subject could not have placed the absurdity of the pretensions more glaringly before us :" ^ "With regard to the suggestion that the Russian Govern- ment might have justified the exercise of sovereignty over the Pacific Ocean as a close sea, becar e it claims territory both on its Ai . lean and Asiatic shores, it may suffice to say that the distance from shore to shore on this sea, in latitude 51° north, is iiot less than 90° of longitude, or 4,000 miles. "^ To exclude beyond the jurisdiction 1 No. 166. Let. Mr. Poletica to Mr. Adams, Feb. 28, 1882. 8 No. 167. Let. Mr. Adams to Mr. Poletica. March 30, 1822. 8 North American Review, Vol. 15, p. 8SJ. 4 Same letter. —14- What woiilil Mr. Adam's language have been, had Rus- sia possessed but one shore of this tract of sea ? Diplomatic agencies were hereupon set in motion to har- monize these antagonistic views. The Secretary of State instructed our Minister to Russia, Mr. Middleton, regard- the pending negotiations that ' ' the United States can ad- mit no part of these claims. Their right of navigation and of fishing is perfect, and has been in constant exercise from the earliest times, after the peace of 178:^, throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial juris- dictions. ' " 1 The outcome was the treaty of the 17th of April, 1824. Its first and fourth article regulate tliis matter : "AiiT. 1. It is agreed that in any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of the high contracting powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts upon points which may not already have been occu- pied for the purpose of trading with the natives, saving al- ways the restri(;tions and conditions determined by the following articles." " Akt. IV. It is, nevertheless, understood that during a term of ten years, counting from the signature of the pres- ent convention, the ships of both powers, or which belong to their citizens or subjects, respectively, may reciprocally frequent, without any hindrance wliatever, the interior seas, gulfs, harbors, and creeks, upon the const mentioned in the preceding article, for the purpose of fishing and trading with the natives of the country." (State papers, Vol. 12, p. 595.) The right confirmed by Article I, was secured also to England by the treaty of February 28, 1825. It has been urged that the American contentions at this time were confined to the interdiction not of fishing but of free commerce, and that they had no reference to the » No. 171, July 22, 1823. -15- Belning Sea. ^ But tliern is nothing in Mr. Adams wonts above i eferved to which limit their application to commerce. And in hiS instructions to Mr. Middleton we have seen that he distinctly mentions "the right of lishing." Again, there is nothing in the language either of the Russian ukase or of Mr. Adams, or of the resulting treaty, which would show that the Rehring Sea was not intended. In fact the ukase expressly says, " beginning from Behring Strait."' So that we must conclude with Lord Landsdowne that " It is impossible to believe that when,by the convention of 1825, it was agreed that the subjects of Great Britain, as one of the contracting parties, should not be " troubled or molested in any part of the ocean, commonly called the Pacific Ocean, either in navigating the same or in fishing therein," any reservation was intended with regard to that part of the Pacific Ocean known as Behring Sea. The whole course of the negotiations by which this convention and that^between Russia and the United States, of the same year, were preceded — negotiations which, as pointed out in the report, arose out of conflicting claims to these very waters— laoints to the contrary conclusion."' At the expiration of the term of continuance of Article IV., a question arose as to what rights remained under Article I. of the same treaty. Mr. Forsyth, Secretary of State, declared the meaning of the fourth article to be the extension of Article I, so as to include within its provisions interior bays, &c.,occupiedorabout the occupation of which there might be doubt. Accordingly, the expiration of that article did not affect the right granted by Article I to fre- quent the unoccupied coasts. ' Russia on the contrary declared the American right to frequent the interior bays, &c. of Alaska, occupied or un- 1 " American Rights in Behring Sea," Pres. J. B. Angell, Nov., 1889 ; N. Y. Tribune, March 19, 1890. 2 No. 117, Let. to Mr. Stanhope Nov. 29,1888. 3 No. 187, Let Mr. Forsyth to Mr. Dallas, Nov. 8, 1837. •Forum" for —16— occupied, to rest solely on Article lY, and hence to be of only eqniil duration J A settlement of this difference was never reached. And so rested the lights in these waters down to the cession of Alaska in 18G7. In that treaty ratified by tlie United States on May 28, 1867, Itussia ceded to the United States a tract of which : "The western limit within which the territories and do- minion conveyed, are contained, passes through a point in Belli ing's Straits on the parallel of sixty-five degrees thirty minutes north latitude, at its intersection by the meridian which passes midway between the islands of Krusenstern, or Ignalook, and the island of Katmanoff, or Noonarbo(»k, and proceeds due north, without limitation, into the same Frozen Ocean, The same western limit, be- ginning at the same initial point, proceeds thence in course nearly southwest, through Beliring's Straits and Behring's Sea, so ap to pass midway between the northwest point of the Island of St. Lawrence and the southeast point of Cape Choukotski, to the meridian of one hundred and seventy-two west longitude ; thence, from the intersection of that meridian, in a southwesterly direction, so as to pass midway between the island of Attou and the Copper Island of the Kormandor^ki couplet or group in the North Pacific Ocean, to the meridian of one hundred and ninety-three de- grees west longitude, so as to include in the territory con- veyed the whole of the Aleutian Islands east of that mer- idian." " In a sea so full of islands as the Behring, a line similar to the one drawn above, is necessary to a clear division of the sovereignty of those islands. It avoids the tedium of an enumeration. Therefore the apparent grant of sea which the drawing of such a line effected ought not to de- ceive. On the other hand if the apparent grant was intentional, 1 No 190. Count Ncsselrode to Mr. Dallas, April 27, '88. 2 No. 191. —17- yet the elements of law teach that no nation can transfer larger rights than it possesses. And from the foregoing bit of Russian- American dii)lomatic history, it is clear that Russia succeeded in gaining for herself in Alaskan waters no more than the jurisdictional three-mile belt allowed by international law. Still further, even if the United States should be willing to stultif J' itself so far as to concede that Russia had prior to the cession acquired a valid supremacy in the Behring Sea over against the United States, yet the rights of other nations would remain unaffected. —18— CHAPTER III. It is also contended, possibly in ignorance of the inter- national liiw on the subject, that the Behiing Sea is a closed sea ; and tliat over such a sea the exclusive sovereignty of the United States must be tolerated. Properly to decide this point, we shall need nn answer to the general question, What seas are cai)able to-day of inclusion within national jurisdiction ? What seas are free, what seas are closed ? International laAv alone can give us this answer. Mare Liheuum vs. MAUii Clausum. "Theie is no writer, there is no government which would dream at this day of renewing these pretentions of another epoch." ^ With this language. Ortolan, the great writer on mari- time diplomacy, disposes of the pretense of sovereignty over the high seas. I shall therefore not feel bound by patriotic motives to incur with my country the stigma of that remark. But, in my inquiry into the status of the seas, I shall begin, at that time when "Le principe de la liberte des mers, tant combattu par I'Angleterre, est sorti du champ des discus- sions theoriques pour entrer triomphalement dans le do- maine pratique de toutes les nations. "2 We may fix this time roughly at the appearance of Grotius "Mare Liberum," in 1609. Venice had for cen- turies maintained her supremacy over the Adriatic. Spain and Portugal had, on the foundation of naval prowess and Papal grant, set up an extensive claim in the Pacific and Indian oceans. England ruled mistress of her surrounding seas. And Holland stretched her rod of dominion over the ' Ortolan, Ragles I., p. 137. • Calvo Le Droit International, I., § 311. —19—, North Sea. These pretensions had tlieir juristic champions in Father Paul Sarpi, who, in 1G70, wrote a vindication of the rule of Venice over the Adriatic ; and Selden (Mare Clausum, 1035), and Albericus Gentilis (Advocatio His- panica, 1613) who succeeded in strenf^theniiig for a few years the crumbling claims of England. * But this mist of selHsh national pretensions hanging over the high seas soon dispersed before the x^iercing light of international princi- ple. Grotius, Vattel,' Puffendorf,' and Bynkershoek,* have established so firmly the law of the freedom of the ocean, that it can be said with strict truth : " Aujourdhui les discussions sur le domaine et sur I'em- pire des mers, dont nous venons de tracer le tableau, sont reloguees dans le pur domaine de rhistoire.""* But the grasp by single nations of certain portions of the sea was so firm that "only by removing one finger at a time has the union of nations finally forced it to relax. ] . England particularly thought that her sway over the four surrounding seas furnished an instance of might mak- ing right. This claim, backed by the authority of Albericus Gentilis, * she asserted over the British Channel, from the island of Quessant, even after she had given up the Duchy of Normandy and Calais, " a circumstance," says Philli- more, " of considerable weight with respect to her claim.'"' Elizabeth seized some Hanseatic vessels even off Lisbon, for passing without permission through the sea north of Scotland. * This i)retension on the part of England consisted chiefly of the right of exclusive fishing and of exacting from com- 1 Wheatoa Elements, pp. 267 and 268. « Droit des Gens, 1758. • De Jure Naturae et Gentium, 1672. ♦ De Dominio Maris, 1702. 6 Ortolan, I., p. 187. & Advocatio Hispanica, Lib. I., Cap. viii 1 Phillimore's Commentaries I., § 181. 8 Id. —20— mon vessels the lioninfre of salute.' But it has never been sanctioned by general acquiescence. ' Holland held out stienuously a<;ainst it, ;ind Crom\v»'ll was forced to make war upon her to C(nni)el its acknowl edgnient.3 Yet it is true that by ])ayments and by taking out licenses to Jish, the Dutdi occasionally admitted these claims, and by the Treaty of Westminster, 1074, they con- ceded in the ami)lest manner to the English flag, the hom- age sought. Sir \V. Tem])le, who negotiated this treaty, sjieaks, however, of the right hereby conceded to Great Britain as one "which had never yet been yielded toby the weakest of them that I remember in the whole course of our pretence ; and had served hitherto but for an occa- sion of quarrel, whenever we or they had a mind to it, upon either reasons or conjectures."'' Franc!e never formerly acknowledged the British claims. Tn 1689, Louis XV. i)ublished an ordinance forbiding his naval officers to give the demanded salute. This insult to the British fliig was alle|rged by William III., in his mani- festo of 27th May, 1089, as one of the causes of war with France. ^ Yet since that i)roclamalion. Great Britain has never again insisted upon any such pretension. And even in the days of Charles II. and James II., Sir Leoline Jenkins, expounder of all international law to those monarchs, had refused to assert Great Britain's dominion into the sea be- yond a line drawn from headland to headland, comprising what are called the Kings Chambers. 2. Denmark has from the earliest days jealously guarded the three entrances to the Baltic, the Greater and Lesser Belt and the Sound ; and exacted toll from passing com- merce,* The Danish jurists rested this right upon imme- 1 Phil. I., §183. 2 Whcaton, p. 263. 3 Id., § 182 ; Comte Gardens, Traile de Diplom., t. i., p. 402. 4 Phil. I., 1 184. s Id., § 186. 6 Wheaton, p. 264. —21— morial prescription ami trotities. The earliest of theye treaties is that with tlie Ilaiiseatic K»'i)ul)]ics in inr»8 ; and tiie right was subsecpiently confiriiicd bj' trt'alie.s, with all the maritime i)owers. Altlumgh by the treaty of Roes- kild, 1058, the Province of Scania was ceded to Sweden, yet Denmai'k preserved her dominion over these straits in- tiwt by tlie payment to Sweden of a compensation. * Underlying- Denmark's jnrisdiction over the passages which form the key to Mie Balti(!, was her just right to re- niunerati(m for tnaintaining along these coasts lighthouses and buoys.* To this element of the claim is undoubtedly due the f;ict that not until 18.")7 were these Danish straits recognized as free. The great European powers then jiaid to Denmai'k a gross sum for the pei'[)etual nuiintainance of proper coast and channel demarcation. ^ And on Ai)ril 11, 1857, the same i)rivilege was secured to the United States by the i)ayment of $;iU!J,011.* }3ut at the beginning of the Seventeenth Century, Den- mark had put forward much broader claims thnn those just mentioned. In 1002, Queen Elizabeth sent to Copenhagen an embassy to adjust generally the relations between the two countries. The instructions given it were these : " And you shall further declare that the Lawe of Nations allovveth of fishing in the sea everywhere, * * * so if our men be barred thereof, it should be by scmie contract." "Sometime, in speech, Denmark claymeth propertie in +hat sea, as lying between Norway an^ Island,— both sides m the dominion of oure loving brother the King ; supposing thereby that for the propertie of a whole sea, it is sufficient to have the banks on both sides, as in rivers. Whereunto you may answere, that though property of sea, in some small distance from the coast, maie yeild some oversight and jurisdiction, yet use not princes to forbid passage or 1 Wheaton, p. 265 ; Phil. I., ^5 179. 3 Twlss' Rights and Duties of Nations in Time of Peace, g 179. 8 Phil. I., § 179. 4 Wheaton, p. 266, note. —22- fisliing, as is well seen in our sens of England, and Ireland, and in the Adriaticke Sea of the Ve)iecially wlien it triumphantly adds that Philli- more quotes this passage with the remark : "The reasoning of Vattel does not seem to be un- sound. "^ Lord Stowell also lent .->ome aid to this position in the case of the Ihcee-dfebrocders v>'\nin he said: "Portions of the sea are prescribed for."^ The fact is that these words of Vattel do not support the doctrine of prescription at all, but refer to another mat- ter. Wheaton commenting upon them in connection with the doctrine of common use in the seas, says ; " The authority of Vattel would be full and explicit to the same purposes, were it no^" weakened by the concet.sions that though the exclusive right of navigation or fishery in the sea cannot be claimed by one nation on the ground of immemorial use, now lost to others by non-user on the principle of prescription, yet it may be thus established where the nou-user assumes the nature of a consent or tacit agreement, and thus becomes a title in favor of one nation against another." * From this criticism it becomes clear that uot the long continued user or non-user affects the right, but the obedi- 1 Vattel. Le Droit df ^ dtcn-i, T. 1; 1. i., cxxiil, S 28o. « Phil. I.. S 176. 8 3 Rob., p. 329 ; Twiss, g 175, cites this opinion without comment ; his reference here to Story in "The Schooner Fame," 3 Mason, p. 150 is an error ; it is intended for the preceding sentence. 4 Wheaton p. 3«8. -25- ence of other nations to the prohibition of one, accompa- nied by what Vatrel calls "snfRcient marks of acquies- cence." But there is no reason why nations should not waive their privileges in this manner. ^ To deny it would be to assert that international rights can be varied only in writing, whereas to such an open and unequivocal acknowl- edgment might well be given the binding effect of a treaty. And history contains many illustrations of such treaty concessions. A prominent one to-day is the agreenvsnt with China by which Great Britain has jurisdiction over British subjects " being within the dominions of the Em- peror of China, or being within any ship or vessel at a dis- tance of not more than one hundied miles from the coast of China." ^ But such a concession must not be thought so much to make property in the ocean possible, as to the rest for its validity upon the bona lides of the nation making it and the consequent estoppel which it works. ^ The authority on this point, however, even of these writers is weak. Phillimore confesses of this i)rinciple that "the case for its application is not often likely to occur." * And Lord Stowell adds that " the general presumption cer- tainly bears strongly against such exclusive rights, and the title is a matter to be established on the part of those claiming under it * * * by clear and competent proof."* But on the contrary when he speaks against prescrip- tion i)roper in the sea, there is no uncertainty in Philli- more' s language: " The right of navigation, fishing and the like, upon the open sea, being jura 'inerce facultatls, rights which do not require a continuous exercise to maintain their val- 1 Phil. I., § 173, 5 Papers presented to Parliament 1853. • Ulpian Dig., L. viii., t. iv., leg. 13. 4 Phil. I., §176. 6 The Twee Gebroedcrs, 8 Rob. p. 889. -26— idity, but which maj or may not be exercised according to the free will and pleasure of those entitled to them, can neither be lost by non-nser or prescribed against, nor ac- quired to the exclusion of otliers by having been immemo- rially exercised by one nation only. No presumption can arise that those wlio have not hitherto exercised such rights, have abandoned the intention of ever doing so." ^ Calvo 3 recognizes the temptation which the proximity to the coast of " fish, oysters and other shell-fish " affords to nations, to extend their sovereignty beyond the three- mile limit. Yet, instead of permitting such an extension, especially when supported by long use, he distinctly says : " De pareilles derogations aux principes universellement reconnus * ont besoin, * pour devenir obligatoires, d'etre sanctionnees par des conventions expresses et ecrites." The reason which fiows from the nature of prescription, however, is sufficient to establish the point in question, with- out the aid of authority. Unlike adverse possession or lim- itation, prescrijition rests for its validity on a presumed prior grant. Now in International Law there is no room for such a presumption. National archives are not so sus- ceptible of oblivion and destruction as to call it into exist- ence. On the other hand, such exact and artificial ideas as adverse possession and limitation not only as a fact have no place in International Law, but are utterly inconsistent with such undeveloped legislative and administrative organs as are the International. m t( w a t] e S' b a r I c t 1 ( 1 Phil. I, § 174, *§301. —27- CHAPTER IV. Exceptions to the Rule ob' Mare Libeuum. Yet the welfare and safety of nations has always de- manded that certain portions of the sea slioiild be subject to their dominion. This principle has existed side by side with that of the feodom of the seas. By the interaction and attrition of these two forces in the chaotic rights of the sea, there has been evolved the law on maritime sover- eignty of to-day. In general, whenever the reasons for the freedom of the sea cease, the law ceases. These reasons are given by the best writers as two, * and are tersely expressed by Ortolan, as follows : " II n'yaqne deuxraisons decisives sans replique, I'une physique, materielle, 1' autre morale, purement rationelle. L'impossibilite de lapropriete desmers resultedela nature de cet element, qui ne pent etre possede et qui sert eb^en- tiellement aux communications des hommes * * L'im- possibilite de r empire des mers resulte de I'egalite des droits et de I'independance reciproque des nations."' The portions of the sea which are thus regarded as falling outside the pale of these objections are : A. Gulfs and bays. B. Enclosed seas {inar'ia clausa). C. Straits, D. Marginal belt. These divisions include, of course, all similar forma- tions of the coast line, although called by other names. Within certain limits, which we shall now study, such bodies of water are subject to national jurisdiction. 1 Wheaton, p. 269. 2 Ortolan I, p. 113. Sommaire, de ch. 7. —28— A. — Gulfs and Bays. Measuring these against the two objections to sover- eignty over the liigh sea, Wheaton concluclGs that the lat- ter have no application. For, says he, " the State possess- ing the adjacent territory by which these waters are partially surrounded and inclosed, has that i)hysical power of con- stantly acting upon them, and, at the same time, of ex- cluding at its pleasure, the action of any other State or person which * * constitutes possession. These waters cannot be considered as having been intended by the Creator for the common use of all mankind, any more than the adjacent land * *' " ^ There is no doubt then that a gulf does not fall under this head, irrespective of the breadth of its communica- tion with the sea, although Poraeroy asserts this to be the pretension of Great Britain to her own coasts. " (I do not, however, think this to be a correct statement of England's attitude, as will later appear.) On the other hand, there is no warrant for such a nar- row limit as set by Martens :* " Surtout en tant que ceux- ci ne passent pas la largeur ordinaire des rivieres, ou la double portee du'^cannon." Nor for the vague definition of Grotius :^ " Mare occui)are potuisse ab eo qui terras ad latus utrumque possideat, etiamsi aut supra patet nt sinus, aut sux^ra et infra ut f return, dummodo non ita magna sit i)ars maris ut non cum terris comparata portio earum videri possit.""* " The real question * * is, whether it be within the physical competence of the nation, possessing the circum- 1 Wheaton, p. 270. 2 Lectures on International Law. Pomeroy, § 147. 3 Droit, Lib. ii, c. i, 8 40. 4 Lib. ii, c. iii, S 8. Phil. I, § 200. —29— j:icent lands, to exclude other nations from th^ whole por- tion of 'the sea so surrounded." ^ The principle here then may be stated in VatteVs terse expression : " Une bale dont on pent defendre T entree, l>eut 6tre occupoe et soumise anx lois du souverain." ^ On authority it is immaterial whether this defense be natural or artificial'— whether the mouth be blocked by "islands, banks of sand or rocks"* or swept "by the cross-fire of cannons."'. So that now it is "re* adjmUcata that the only ques- tion is whether a given sea or sound is, in fact, as a matter of politico-physical geography, within the exclusive juris- diction of one nation." « But this limit of the mouth of an inner gulf or bay, i.bove set fortli, is in the case of a particular country liable to be extended or contracted, according as that country holds or rejects the doctrine of "headlands." This doc- trine will be discussed under "The Marginal Belt." B. — Endorsed Seas. These are the seas which the territory of one or more nations eMtirely surrounds. Ortolan is very particular about the absolutely close character of this territorial cir- cumvention. " Un droit exclusif de domaine et de souve- rainete de la part d'une nation sur une telle mer n' est incon- testable qu'autant que cette mer est totalement enclavee dans le territoire de telle sorte qu'elle en fait partie inte- i?rante, et qu'elle ne pent absolument servir deliende com- munication et de commerce qu'entre les seuls citoyens de 1 Phil. I, § 200. 8 Vattel Le Droit, &c., t. i, 1. i. xxiii. 8 291. See also Phil. I, § 200 ; Klilber, Droit des Geus, § 130 ; Twiss, § 174. » Ortolan, § 145. Martens, Primae Lineae Juns Gentium. L. IV. c. IV. b. 110. * Calvo I, § 190. • Id. « Dana's Wheaton, 270. Note. -80- cette nation." 1 Thougli perhaps Twiss is more exact in his definition of a closed interior sea, when he says that it " is entirely enclosed by the territory of a nation, and has no other communication with the ocean than by a channel, of which that nation may take possession. "^ The Black and Caspian Seas are the usual illustrations of this kind of sea. » The former, however, by the treaty of Paris, in ISoO, contirming x>i"evious treaties, has been made free. ^ Seas land-locked, though not entirely surrounded by land, like the Baltic Sea, fall under the same rule. 8 But the dominion in this case may be called qualified rather than absolute, for of course the doctrine of innocent use by other nations ai)plies to these waters. « C. — Straits. The only question which can arise here, is in the case of straits which connect two free seas. Straits leading into an inner bay, or enclosed sea, are subject to the same rules discussed in connection with those bodies of water. "> There are two extreme theories about straits where both banks belong to one and the same nation, and when they join two open seas. One is that be they never so narrow and capable of possession, yet they are not subject to national domination. The other, that without regard to their width, or defensibility, they fall under the jurisdiction of the bordering country. The first view is held by Calvo, « ^ Ortolan, I, § 147. » Twiss, § 174, 8 Phil., I, g 205. * Pomeroy, § 143. " Tomeroy § 143, Phil. I § 206. « Ortolan, I, p. 147 ; Pomeroy, § 143. » Calvo. I, § 191. 8 I. § 191. —31— Orrolan,! Rayneval, Pomeroy,^ and Wheaton^ ; the sec- ond by Pliillimore* and Pult'endorf . " There is also a third view, represented by J. L. Kliibero Pinheiro-FeiTeira Twiss' and Martens/ which makes even here eapabiity of defense tl.e test of sovereignty. Accordingly those straits would be free in which a ship passing along the centre is beyond the range. of cannon.' The reason for the iirst rule is best expressed by Kay- neval : "Si 1' usage de ces mers et libre, la communication doit I'etre egalement ; car autremHut la liberte de ces memes mers ne serait qu' une chimere.'' ^ ^ " It is not sufficient, therefore," says Ortolan, " In or- der that property in a strait may be attributed to a nation, mistress of its shores, to say that in fact the strait is m t he power of this nation ; that it has the means to control the passage by its artillery, or by every other mode of action or defense. * * The material obstacle to proprietor- ship being removed, there always remains the moral obsta- cle, the essential and inviolable power of peoples to com- municate with each other." ^^ But this view concedes to the bordering State the right to charge such tolls as shall compensate it _ for light- houses, buovs and pilots. i» And subjects ships passing under the cannon of that country to such reasonable regu- lations of navigation as it may make. ^ » 1 I, p. 146. a § 139. 3 P. 273. § 190., . 4 I, § 189. 6 Dc Jure, L. IV, C, V, S 8. 6 Droit des gens raodcrne. Ed. 1861, ^8 130 and 131. 7 § 174. ONoIJs'of'pLlo'Ferreiraand Ch. Verge on De Martens. Droit. &c. . Vol. I, p. 147. . „ - 10 Inst, du droit de la nature et des gens. Liv 2 Chap^ », 5? '■ 11 Ortolan, I. p. 146. See also Wheaton, p. 272. § 190. 12 Grotius. L. II, Ch. Ill, § 4. 18 Ortolan, I, p. 146 ; Bluntschli. Vol. IV, t) tost of Valin that tlie dominion of a country in tlic sea ceases only when one can no longer sound bottom,'' maybe dismissed as being without foundation — either in fact or reason. The bulk of authority, however linnly establishes the rule that jurisdic^tiou extends as far as guns will carry. ^ As already mentioned, the distance has been and always may be vjuied by specilic law or agreement. An illustration of a precise limit in excess of three miles thus lixed is the "Guadalupe-IIiilalgo" treaty with Mex- ico of Feb. 2d, 1848. The boundaries of the United States and Mexico were thereby placed at a distance of three leagues from the coast."* But wuch an arrangement can alfect no other but the contracting parties." On the other hand, the English act of 1838, and the Act of Congress in 1794 " have fixed the jurisdictional limit for Great Britain and the United States at one sea-league or thiee marine miles. Yet even in these cases where the sea-league is taken as the limit, there are some puri)oses for which the distance of defense must still be taken as the limit of jurisdiction. "The ground of the rule" (as to maritime jurisdiction of this character), says Field shortly, " istJie margin of sea within reach of the land forces or from lohicli the land can he assailedy^ No nation can aiford to deprive itself of the 1 Inst. Liv. II, ch. 9, § 10. 8 Coram. 8ur I'Ordonanco de 1681, llv. V. Tit., I, 8 Wlieaton, p. 255 ; Kent I, p. 158 : Ortolan I, p. 152-158 ; Phil. I, § 198; Grotius L. 11, cup 3, ^J^ 13 and 14 ; Ileffter, Europ. VOlker., § 75 ; Bynker- shoek, De doni. maris cap. 2 ; Vattel 1 I., ch. 33, § 289 ; Azuni, t.I, cap. 2, § 14 ; KUlber, § 130 ; De Martens, Droit des Gens, § 40 ; Pomeroy, § 150 ; Bluntscbli, Volkerrccht, vol. IV., § 303. 4 Wharton Int. Law Dig. Vol. I, S 38, p. 105. 6 Let. Mr. Buchanan, Sec. of St., to Mr. Bankhcad, Aug. 19, 1848. « Act of June 5, 1791, C. 50. 7 Field Int. Code, 2 Ed., t^ 23. -no- ]K)\vor io protect its shore iin^^ai^^^ of the drift of -^o^l^l^Vin^ou^J^jZ^^^ fisheries tn^aty"* with France, by the terms oi 1 Whcaton. p. 260 note^ Mav 28 ; MSS. Dom. Let. 3 Marbr^' Precis, Vol. i. P- 14,1 . »o "" .,«utr.. I ' '\ '?G. 4 Poiiio'Af ^ i- 1?1. 6 Wiiealiu, i-' -00. 10- " equally agreed that the distance of three miles fixed as the general limit for the exclusive right of fishing upon the coasts of the two countries shall, with resi)ecc to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to head- land. "^ The treaty of 1818, between Great Britain and the United States, after enumerating certain limits of free fishing, pro- vided that ■ 't he United States * renounce forever any liberty heretofore enjoyed oi' claimed by the inhabitants thereof, to take, dry, or cure 1 i "^ or within three marine leagues of the coasts, bays, cree.- , harbors of his Britan- nic Ma iestv's dominions in Ame)"i(ii not included Avithin the above-mentioned limits." ^ In 1849, difficulties arising as to the construction of this article, owing to its alleged non-observance by United States citizens, the British Law Officers were consulted. ^ They gave as the true construction that " llie prescribed distance of three miles is to be measured from the headlands or extreme points of land, next the sea or coast, or of the entrance of bays or indents of the coast, and that conse- quently i\o right exists on the part of American citizens to enter the bays of Nova Scotia, there to take fish, although the fishing, being within the bay, may be at a greater distance than three miles from the shore ol' the bay, as we are of opinion that the term ' head- land ' is used in the treaty to express the part of the land we have before mentioned, including the interior of the bays and the indents of the coasts." * Nevertheless the jurisdictional line thus drawn must be regarded as resting more on the precise words of the treaty, " within three marine leagues of any of the coasts, bays," &G.. than on any doctrine of headlands. Besides 1 Treaty of 2d of Aug. ; Martens' U. It., xvl, p. 954. a Annual Reg.. Vol. xciv (1852), pp. 295 6. 3 Pliil. I, g 196. 4 Ann. Ueg., Vol. xciv (1852), pp. 290-7. —41- I the I the be this decision was given on the s apposition that the word "headland" occurred in the treaty. Whereas, as Sir Robert Phillimore has pointed out, it does not. He accounts for this curious error by saying that "the Law Officers probably gave their opinion on a statement of the colonists in which the word did occur. "i While the es- sence of the headland doctrine is that it applies exactly there where no mention is made of headlands, and no pre- cise method of drawing the line of marginal jurisdiction is provided. For these reasons, this inter[)retation put upon the fisheries treaty of 1818 cannot be cited as an in- stance of England's grasping claim in regard to headlands. The rights under this treaty were extended in 1854 ; but, in 1865, they were abrogated by the United States in the exercise of a power reserved to it in the treaty. ' On May 14, 1870, the Provincial Minister of Marine and Fisheries, Mr. Peter Mitchell, re-asserted, now without treaty sanction, this doctrine of headlands. Lord Gran- ville, British F( »reign Secretary, instantly telegraphed : "Her Majesty's Government hopes that the United States fishermen will not be, for the present, prevented from fish- ing, except within three miles of land, or in bays which are less than six miles broad at the mouth." ^ The tendency of England may, therefore, be said to be away from the doctrine of headlands. In striking contrast to this attitude on tlie part of a country which in the case of the Kings Chambers on her own coasts has always been most tenacious of this doctrine, is the language of our own Chancellor Kent : " Considering the great extent of the line of the Ameri- can coasts, we have a right to claim, for fiscal and defen- sive regulations, a liberal extension of maritime jurisdic- tioi? ; and it would not be unreasonal>ie, as I apprehend, to assume for domestic purposes connected with our safety 1 I, § 196. ote. 8 Phil. I., § 196. 8 Wharton, § 29, p. 76. 113 —42— and welfare the control of waters on our coasts, though included within lines stretching from quite distant head- hinds — as, for instance, from Cape Ann to Cape Cod, sind from Nantucket to ]V[ontauk Point, and from tliat ])oint to the capes of Delaware, and irom the ISouth cape of Florida to the Mississippi. * * * " There can be but little doubt that as the United States advance in commerce and naval strength, our Government will be disj)osed more and more to feel and acknowledge the justice and i)(>licy of the British claim to supremacy over the narrow seas adjacent to the British Tsles, because we shall stand in need of similar accommodation and means of security." 1 To be sure, the context makes it clear that the learned Chancellor had particidiirly in mind the right to investigate tlie nationality of an armed vessel hovering *' on our coasts," rather thiin a proprietary right such as tha': of exclusive lishing. Yet it is strange that Dr. Philli- more should have quoted this passage as indicative of American opinion on this point. ^ For it has been repeat- edly disclaimed by the highest American authorities. President Woolsey declares " that such broad claims have not, it is believed, been much urged, and they are out of character for a nation that has ever asserted the freedom of doubtful waters as well as contrary to the spirit of more recent times." » While Poraeroy as unhesitatingly as- serts : "From the main propositions and doctrines in this extract of Chancellor Kent, I, as an iVmerican lawyer and citizen, must emphatically dissent. * * I should add that these pretensions on the part of our government seem to have been abandoned."* 1 Commentaries, Vol. I, p. 30. 3 I, § 201. 3 Int. Law. § 56. 4 Pomeroy, § 157. -4:J— |iiftli ^'1(1- hmd It to li'idii ites ieiit the ■cner we IS of The history of theheadlnnd dootrino, tlierefore, warrants tlie conclusion of Dr. Wliarton : *' It cannot he asserted as ii general rule that nations have an exclusive right of fishery over all adjar-ent waters to a distance of 3 nuirine miles beyond an iniaginary line diawn from headland to headland. This (h)ctrine of head- lands is new, and has received a pi-ojit-r limit in the conven- tion between France and Great Britain on the 2d of Aug., 18;]9."i With the preceding principles fresh in mind T shall not fear the charge of partiality if I ado])t the official language of the Canadian Privy Council and say : " It does not appear necessary to insist at any great length that the conditions attaching to Maria daitsa, can not by any possibility be predicated of ]5ehring Sea, and tliat the seizure of Canadian vessels at a distance of over 100 miles from the mainland, and TO nnles from the nearest island, constitutes a high-handed extension of maritime jurisdiction unprecedented in the law of nations."^ The Behring Sea can l)e brought under the head of neitlier strait nor marginal belt. In that it is not entirely surrounded by land, it falls short of the requisites of an enclosed sea. For not only is the Behring Strait 36 miles wide, and the distance between many of the islands forming the southern boundary of this sea far in excess of that, but the distance between the last island of the Aleu- tian chain, and the nearest Russian island of the Com- mander group is 183 miles. Again, regarded as a bay or gulf, the Behring Sea fails to enter the category of closed seas. For waiving all physi- co-geograpliical objections to such a classification, there still 1 Dig , § 29, p. 76. 3 No. 117, Report approved by Gov. Gen., 29 Nov. 1886. -44— remains to its character of closed sea the insuperable objec- tion of impossibility of possession. The name bay or gulf does not necessarily carry with it the idea of possessibility, and international law, when importuned to accord such a character to the Behring Sea, cries out with Vattel : "Mais je parle des bales et detroits de peu d' ctendue, et non de ces grand espaces de nier, auxquels on donne quelquefois ces noms, tela que la bale de Hudson, le detroit de Magellan, sur lesquels 1' empire ne saurait s'etendre, et moins encore la propriete."^ We have learned that defensibility of its entrance from the sea is a prerequisite to the possession of a gulf. This requisite, the Behring Sea, for the obvious reasons just mentioned, does not fulfill. 1 Droit, &c., T. I, L. I, C. XXIII, s 391 .4.1— lec- ith lien rom rhis iU3t CHAPTER V. MaUK LlBEIlUM IN AmEUICAN IIlSToIlY. But there are those in whose hands the scales of justice do not dip with the weight of international pre- cedent. A precedent is never a parallel ; at best it argues by analogy. The precedent most directly in point is but an approximate parallel. There being, therefore, neither in law nor history a precise instance of all the conditions involved in the Behring Sea dispute, these exacting, rather tlian exact, reasoners, u>ing this as a pf)int of departuie, practically create in the interest of the United States a margin for despotism. Our progressive country, say they, ought not to be (ihained to old world ideas, but, as often before, should set tlie fashion for the world. To rouse the diplomatic conscience of such as these I shall conjure up before their gaze the ghost of our national past. When, in 1855, the United States was invited to par- ticipate in the European Conference to adjust the gross sums which should be paid to Denmark for the right of pjussage through the Sound and the two Belts, President Pierce declined to have anything to do with such payment "be- cause," said he, "it is in effect the recognition of the right of Denmark to treat one of the great maritime high- ways of nations as a close sea, and prevent the navigation of it as a jjrivilege, for which tribute may be imposed upon those who have occasion to use it." * In 1862, when Spain insolently pushed her claim to an extended jurisdiction around the Island of Cuba, Secretary Seward's forcible response was : " It cannot be admitted, nor, indeed, is Mr. Tessara un- derstood to claim, that the mere assertion of a sovereign, by an act of legislation, however solemn, can have the effect to establish and fix its external maritime jurisdic- t Pierce's 8d Annual Message, 1855. 40- tion. * * * IIo cannot, by a mere decree, extend the limit and fix it at six miles, because, if lie could, he couhl in the same manner, and ui>on motives of interest, ambi- tion and even upon caprice, llx it at ten, or twenty, or iifty miles, without the consent or acquiescence of othei' powers which have a common ri^ht with himself in the freedom of all the oceans. Such a pretension could never could be successfullv or ri!j;htfully maintained." ' This lani^iiage is peculiarly applicable to our Behrin^' Sea claims, b.'cause, unless we concede that they were deriveil from Russia, they rest solely on an Act of Municipal Law. In 1871, the Secretary of State, ^^r. Fish, wrote to our Minister at Constantinople : "This Government is not disposed to prematurely raise any question to disturb the existing control whicdi Turkey claims over the straits leading into the Euxine. * * But while tills Government does not deny the existence of the usftge * * the President deems it important to avoid recognizing it as a right under the laws of nations." ^ This same view with regard to sovereignty over a strait fitids more determined ex[)ression in a letter from Mr. Evarts, Secretary of State in 1879 : "The Government ot the United States will not tolerate exclusive claims by any nation whatsoever to the Straits of Magellan, and will hold responsible any Government that undertakes, no matter on what pretext, to lay any impost or check on the United States commerce through those Straits." 3 In 1875, a question arising as to Russia's authority to grant licenses for the use of her contiguous seas, Mr. Fish yet more pointedly said : 1 Let. to Mr. Te8.sara, Aug. 10, 1863. MSS. notes, Spain. 2 Let. Maj' 5. MSS. Inst. Turkey; For. Rel., 1871. 3 Let. Mr. Evarts to Mr. Osborn. Jan. 18, 1879. Wharton's, Dig, § 80, p. 80. —47— the [iild |, ur Ithcj- rile jver (( 'V our rii(-i'o was ivason to liopn that tlie practic*^ wliicli foi'incrly prevailed with powerful nations, of renarding .s'cds and hi\y:i, uf{f/(/N// (>/'/(//•//(' r.vfr?i/, wt'iw llieir eoast, (/s closed to any forcuju comunrce or Jhliery not specially licensed by tliein, was, without exception, a priloisloii, of Z*//^ 7;«.s7, and that no nation would claim exenipiiou from the general rule of public law which limits its maritime jurisdiction to a marine league from its coast. We shoidd particularly regret if Russia should insist on any such [iretension "' And finally, our latest oirici.il word on this matb'r. In ISSO warning was given by the Canadian aathoi'ities to American lishernien not to ctiriy on their occupation within th^ waters of the Bay of C'haleurs, a bay which measures about eighteen miles at its mouth. In a dispatch of June 14th, Secretary Bayard stigmatized such action as a. "wliolly unwarianted i)i-etension of extra-ten itorial authority'' and an " interference with tlie unquestionable rights of the American fishermen to pursue their business without molestation ut any point not within H marine miles of the shore." » We may well give heed to Lord Lansdowne's comment : "It is, I think, worth while to contrast the claims now urged by the Government of the United States to exclusive control over a part of tlie Pacific Ocean, the distance between the shores of which is, as was pointed ont by Mr. Adams, in 1822, not less than 4,(){)<) miles,"* with these indignant remonstrances of Secretary Bayard : and echo the question of a newspaper of that time : " Wiiat would be said if the British undertook to prevent an American whaler from entering Hudson Bay, or traversing the western half of that arm of the Atlantic Ocean which leads to it ? Maritime law and international are the same whether on the Atlantic or the Pacific, and there is cer- 1 Mr. Fish, Sec. of St. to Mr. Bokcr. Dec. 1, 1875. MSS. lust., Russia. 2 No. 117. Let. of Lord Lansdowne to Mr. Stanliopc, Nov. 29, 1886. 3 Jd. -48- tainly something grotesque in the sight of hundreds of American tislierinen liovering on tlie Canadian Atlantic «!oast ju8t beyond the :}-inile limit, and ohiiming to enter all bays more than 3 miles wide at the mouth and fish, whilt on tlie Pacitio Canadian vessels are captured 300 miles from the main-land, and the claim is made that a bay more than l,Oi;0 miles wide at the mouth shall be a closed sea to them."* The above expressions of our policy, together with our attitude toward Russia, before the Alaskan cession, force me to admit the justice of Canada's criticism : The United States "appear to have done this in spite of the admitted principles of international h. w, and in direct opposition to their own contention of what constitutes common waters upon the Atlantic coast." " 1 Brooklyn Eagle. 2 No. 109. Report of the Minister of Marine and Fisheries to Privy Council, approved by Administrator, Sept. 84, 1888. OFF pla ha« sei ha Jul foi re de fo re 1 P e: S c V I t —49- of itic itnr [sli, poo fsed CHAPTER VI. OFFICIAL EXPLANATION OF TIIK HKIIUINO SEA POLICY OF TIIK UNITED STATES. The United Stcates lias not, thus far, ofFu-ially ex- plained its acts of snpieiTiacy in the liehiin;,' Sea. It has ex^rcisBtl in th')se waters th'^ sovereif^n povvrT of seizure, yet it has not expressly asserted sovereignty. It has by an act of Municipal L;nv extended over that sea its jurisdiction ; yet it h:is not actively and regardless of foreign protest, but only perniissively and until specific remonstrance, insisted upon the execution of that act. In- deed, the only offKrial basis for these actions which can be found must be gathered from two conversations with Sec- re ^y Bayard, which the British Minister at Washington ] ted to the Earl of Iddesleigh : • in fact, he [Mr. B;iyard] said the territory was not properly organized. He had not, moreover, reached the exact nature of the rights ceded by Russia to the United States, but it seemed clear that Russia, previous to the cession, contended that Beliring Sea was a mer ferniee; whereupon I remarked, ' and against which contention the United States protested.' 'Yes,' he replied, 'at that time."'» Continuing later, Mr. Bayard said that the "nature of the jurisdiction over the Behring Sea ceded by Russia * * was a complicated question, but one which would be met in all fairness by the United States Government. He con- tinued to explain to me that the value of Alaska consisted in the seal fisheries ; that the seals frequented chiefly the islands of St. Paul and St. George, where the great catch was made, and that these islands, although situated (as he stated) more than 200 miles from the main-land, were, he conceived, comprised in the jurisdiction ceded by Russia ; 1 No. 124, Nov. 12, 1S86. —50— but lie (lid not wish lo pronounce upon this point at pres- ent. He would observe, however, that the value of the seal "rookeries" on these islands would be destroyed if it was opened to all vessels to kill seals outside the 3-mile limir, for no seals would ever reach them."^ Protection of the seal fisheries from destruction is here the prevailing thought. Whether or not a justifying excuse, the extreme stress which in his instructions to our foreign envoys Secretary Bayard puts upon it, shows that thought to have been supreme in his mind. He evidently relied more on the reasonableness of such protection than the legality of the claim of sovereignty ; and the sincerity of this purpose is attested by the fact that during 1887 ten American vessels were seized and United Stales citizens arrested for killing fur seals in the Behring Sea. ^ Certainly if anything will justify our seizures in the Behring Sea, the peculiar facts of the seal life in those waters will. They present a strong case for single nation interference. Connecting Behring Sea with the Pacific Ocean are the passes which separate the islands of the Aleutian chain. Through these, in the late spring, draw the returiJng hordes of the fur seal after their wintering in the warmer waters of the Pacific. *' The convergence and divergence of these watery paths of the fur seal to and from the Sea Islands resembles the spread of the spokes of a half wheel — the Aleutian chain forms the felloe, while the hub into which thbie spokes enter is the small Pribyloff group/' ^ So .that upon the Seal Islands of tud Pribyloff group, 1 No. 124. Let. Dec. 10, 1886. 3 No. 76. Let. Mr. Bayard to J' r. Phelps, Feb. 7, 1888. 8 No. 76. Report of Hon. Henry Vr. Elliotiof the Smithsonian Institute to Mr. Bayard, Dec. 8, 1887. } —51— [s- lie it le Ire le, tn Iht ed [he of [en St. George and St. Paul, is cast rearlv the whole mass of these returning fur seal millions. Px./e then are their nat- ural rookeries. In these islands the fur seal is obliged annually to haul out for the purpose of breeding and shedding its pelage. The male seals or bulls require little food during the five or six summer months, sustaining existence on the blubber secreted beneath their skin. They, therefore, remain ashore watching the rookeries. So that the greater part of the seals found during the summer at any distance from the islands are females in search of food for themselves and their young. Grieat discrimination is exerc'sed and enfoiced by the Alaska Company in the killing of these seals ; only the young bulls are permitted to be slain ; they are driven inland from the sandy parts of the islands whither the old bulls have driven tiiem, and clubbed in order that their skins may not be perforated. On the contrary, if these seals are hunted in the sea, not only is discrimination impossible but nearly one out of every three so slaughtered sinks and is lost. Besides as I have said only females frequent these seas at this season. ^ I need not point out the utter ruin which thus threatens this valuable industry. Anywhere from 3 to 100 miles south of the Seal Islands, the pelagic sealer "has a safe and fine loc; Hon from which to shoot, to sj)ear, and to net these f ur-bearmg amphibians, and where he can work the most comjilete ruin in {,. very short time." Continues Mr. Elliott, "with gill nets, under ^an by a fleet of sealers in J3ehring Sea, acsross these converging paths of the fur seal, anywhere from 3 to 100 miles southerly from the Seal Islands I am extremely moderate in saying thatsuchah'et could and would utterly ruin the fur seal rookeries of the Pribyloff Islands in less time than three or four short seasons. * * * Open these waters of Behring Sea to 1 Mr. Elliott's Report. -52— nncliecked pelngic sealing, then a fleet of liiintlreds of ves- sels—steamers, ships, schooners and whatnot — wonld im- mediately venture into them bent upon the most vigorous and indiscriminate slaughter of these animals. A lew seasons then of the greediest rai)ine, then nothing left of those wonderful and valuable interests of the public which are now so handsomely embodied on the Seal Islands." The great nocd of immediate regulation is apparent. The history of seal fisheries in other parts of the world ought to serve as a warning. Whereas, formerly hundreds of thousands of seals were annually taken off the coasts of Chili, the South Pacific Islands, Southern Africa and the Falkland Islands, through indiscriminate slaughter the whole annual catch in those localities has now been reduced to a few thousand. In sf)me places it has led to the entire destruction ()f the rookeries. So that out of 102,000, which is the aveiage yield of the fur seal fisheries of the world since 1880, 136,000 or nearly three-quarters are captured on the islands of the Pribyloff and Commander groups ; and 25,000 more are taken out of the adjacent waters by the British and Ameri- can sealing fleets. Mr. A. Howard Clark, who furnished the statistics for the article on Seal Fisheries in the Ency- clopedia Britannica, says : "There can be no question concerning the advisability of regulating the number of animals to be killed and the selection of such animals as will not interfere with the breeding of the .species." ^ While such a partisan authority as the Inspector of Fisheries for British Columbia, reports that a repetition of the enormous catch in I'-iSG -7 of 40,000 to 50,000 fur seals by schooners from San Francisco and Victoria, " with the increase which will take jilace when the vessels fitting up every year are ready, will soon deplete our fur seal fishery, 1 No. 70 Review of the fur seal fisheries of the world in 1887. -53- Is- h- 11 s fvv >f 3ll [ind it is a great pity that such a valuable industi-j' could not in some way be protected." ^ Seal fishing, and by reason of its almost sole survivor- ship, particularly the Behring 8ea s'ial tisliery, is a world interest ; not only are all nations indirectly profited by its preservation, but England directly. Nearly all undressed fur seal skins are shipped to London ; and it is estimated that their dressing and dying gives employment in that city to 10,0(10 peoi)le. Are we then not acting in the in- terest of these other nations '( But regulation by I he United States means also monopoly by the United Srates, and the dii'tate o:' International Law is plain : " The rich treasures of the sea are open to all hu- manity." ^ Now regarded merely as ;in international interlocutory injunction, our action seems reasonable and just. To allow the indiscriminate slaughter of seals pending international negotiations for their protection would lead to the destruc- tion of the subject matter of the disi)ute, and would be folly. Either the seal fishery must <:o unregulated or be tempo- rarily regulated by a power ready to iindertalce the duty. On this theory then the United States might properly ph^' the role of international agent. But not in the capacity of agent have we offered oui services. We have assumed the policing of these waters, and the regulation of these fisheries in our own right. For y ^ars past, the matter might have been settled by In- ternational action ; yet nothing was done. Suddenly vessels are seized and confiscated in the face of solemn protests by the offending nation. Can we be called the agent of that nation ? Can we be said to be exer- cising this power on sudden emergency, and only pending- some concerted action by nations, when for our authoriza- 1 Report of Thomas Mowat ; Sessional papers, Vol. 15, No. 16, p. 268, Ottawa, 1887. 8Bluntschll, Vol. IV., fc^ 807. -^^i— tion we look to a municipal act of twenty years standing ? Evidently our lav»s and our attitiide are based not on an in- ternational power of attorney, but on national title-deeds. Secretary Bayard's plea that the exigencies of seal fish- ing demand from ns the course we have pursued irust, therefore, stand on other ground than that of international authority. There are two arguments wrapped up in it : either he must prove that the exercise of police power is not an act of sovereignty ; or else he must hold that the sea, so far as its use is not inexhaustible, as in the case of a fisher j% is capable of dominion. First then, as to the nature of the police power. The argument here is that, although we may have no property in the broad Kehring sea itself, no ownership in the seals when swimming through those waters, yet we have the right to police those seas, to regulate fishing. We need not here discuss the distinction made by writers between property on the one hand and ' ' empire ' ' or sovereignty on the other. ^ There exists no shadow of doubt that the powers <»xercised by \\h ^A\ clearly under the head of empire, A sin,^le quotation will suffice. Ortolan defines empire as "Un sorte de droit de sou verainete, de tribut, de police ou de jurisdiction." 3 How then if a na- tion has no property in a sea, can it exercise sovereignty over it ? As Ortolan says, '' II faudrait done que ce peux)le se pretendit personellement le superieur, le souverain des autres * * L' empire des mers ne pent done exister au profit de qui que ce soit, pas plus que le droit de pro- priete."3 The second argument, drawn from the exhaustible nature of seal fishing, is like one given by Mr. Lothrop, when United States Minister to Russia. He had heard it applied in Eussia to the fisheries off the coasts of north- eastern Asia. Its substance as given by him is as follows : ^Martens, IV c. IV § 1, p. 157; Ortolan I, p. 119. « Ortolan, I, p. 119. 8 Ortolan, I, pp. 119 and 180. -65- bg? |i in- fed s. Ifish- ""ist, lonal it: nor, sea, of a The )erty I seals the "The seal fishery on our Beliring coasts is the only re- source our people there have ; it furnishes them all the necessaries of life ; without it thny perish. Now interna- tional law concedes to every people exclusive jurisdiction over a zone along its coast sufficient for its protection ; and the doctrine of the equal rights of all nations, on the high seas, rests on the idea that it is consistent with the com- mon welfare, and not destructive of any essential rights of the inhabitants of the neighboring coasts. Such common riglits, under public law, rest on general consent, and it would be absurd to affirm that such consent had been given, where its necessary result would be the absolute de- struction of one or more of the parties. Hence, the rule cannot be applied blindly to an unforeseen case, and these alleged common rights must rightfully be limited to cases where they may be exercised consistently with the welfare of all. Behring Sea partakes largely of the charjcter of an inclosed sea ; two great nations own and control all its inclosing shores. It possesses a peculiar fishery, which, with reference to its preservation, can only be legitimately pursued on land, and even there only under strict regula- tions. To allow its unrestrained pursuit in the open waters of the sc:i is not only to doom it to annihilation, but, by necessary consequence, to destroy all its coast inhabitants. If this result is conceded, it follows that the 'doctrine of common rights can have no applicat^'on to such a case."^ But as President Angell^ says of this reasoning : " We can hardly assert with much plausibility that the members of the Alaska Commercial Company, which has'the mono- poly of seal-catching on and near the Pribyloff Islands, can plead, in. forma pauperis^ for protection on grounds of charity." The extinction which indiscriminate capture of the fur seal threatens " deplorable as it may be, would fur- nish a most flimsy excuse to a Government whose regulations 1 No. 10*i. Let. to Mr. Bayard, Dec. 8, 1887. 2 Forum, Nov., 1889. " American Rights in Behring Sea." --56— of the industry in Alaskan waters is prompted not by phi- lanthropy, but by strictly mercenary considerations."^ Unfortunately, this line of argument seems to receive weight from Vattel: "The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, &c. Now, in all respects its use is not in- exhaustible ; wherefore, the nation to which the coasts belong, may approppriate to itself an advantage which nature has so placed within its reach, as to enable it con- veniently to make itself master of it and to turn it to profit, in the same manner as it has been able to occupy the dominion of the land which it inhabits. Who can doubt that the pearl fisheries of Bahreui and Ceylon may law- fully become property ? And though where the catching of Cswimming) fish is the object, the fishery appears less liable to be exhausted, yet, if a nation has on its coast a particular fishery of a prolitable nature, and of which it may render itself master, shall it not be permitted to ap- propriate to itself that natural benefit, as an appendage to the country which it possesses * * V'^ And Dr. Twiss not only quotes the above with approval but declares that the right of fishery "comes under differ- ent considerations of law from the right of navigation." For, says he: " The usus of all parts of the open sea in respect of navigation U common to all nations, but the fructus is distinguishable in law from the usus^ and in respect of fish, or zoophites, or fossil substances, may be- long in certain parts exclusively to an individual nation." ^ What he means, however, by " certain parts " of the sea, turns out to be something very conventional. " The prac- tice of nations," adds he, "has sanctioned the exclusive right of every nation to the fisheries." — Where? "In the 1 Victoria, B. C, paper. 2 Droit des Gens, L. I, § 287. 8 Twiss, § 182. -57— ^hi- pive watei-s adjacent to its coasts within the limits of its maritime jurisdiction." 1 So that Twiss' remarks have no application to an ex- chisive claim to fisheries beyond the ordinary jurisdictional limit ; and will not support the argument in question. If, on the other hand, Vattel in spite of his limiting words "on its coast" intended such extra marginal fisheries, his reasoning had weight only so long as the in- exhaustible nature of the sea was urged as an argument for its freedoni. This, as we have already shown, is no longer done by the best jurists, ^ and I will add one more illustration in the words of Calvo : * " Au point de vue pratique, celui de la peche, i>a.v ex- emple, 1' argument tire de la pretendue immensite des mers n'i*, qu'une valeur relative, et conduirait, contrairement a la pensee de ceux qui le mettent en avant, a soutenir que r ocean est susceptible d'api)ropriation dans certains cas et qu'il ne Test pas dans d'autres, qu'ilpeut a la fois, consti- tuer un domaine coUectif ou national et une propriete in- dividuelle."^ But the law failing, the fact of exclusive possession by England of the Ceylon pearl fisheries has been offered in evidence.^ The British Government does regulate and control these fisheries to a distance in the open sea of twenty miles from the northern end of Ceylon. But it has never excluded other nations ; nor have these ever acknowl- edged any monopoly to England.'' If they have never exercised their right of fishing, it is to be presumed that they could not at a distance compete with native diver We are here, therefore, in the face not of a right but of a bare fact. 1 Id. and Wheaton, El., Part II, C. 4, § 5; Azunl, T. I, C. II, Art. 8. 2 Wheaton, p. 269. 8 I, § 205. 4 N. r. Tribune, March 19, 1890. 6 Forum, Nov. 1889. Pres. J. B. Angell. —58-- The regulation of the Behring Sea fisheries is now awaiting settlement before the International Tribunal The seals will become wards of the Supreme Court of nations. The Behring Sea controversy will be buried and a question of the day turned into a question of a day But as this disposal of the dispute is to be made without deter- mination of any issue of marine ownership, the questions here discussed will become dormant rather than dead. The annoyance caused by their ephemeral life, however, leads to the hope that from this sleep there will be no awakening. ow lal. of ind But ter- ons lad. ver, I no