0^.\^^ IMAGE EVALUATION TEST TARGET (MT-S) /. I.U |M ■ I.I 2.8 1^ 112 US 2.5 12 il 12.0 18 1.25 Iju lU ^ 6" — ► Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 m \ V (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Un dee symboles suivants apparaTtra sur ia derniAre image de cheque microfiche, selon ie cas: le symbols — »> signifie "A SUiVRE", ie symbols ▼ signifie "FIN". Maps, plates, cherts, etc., m-^v be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmte A des taux d»^ r6du.:tion diff6rents. Lorsque le document est trop grand pour Atre reproduit en un seul cliche, il est film* A partir de Tangle supAiieur gauche, de gauche A droite, et de haut en bes, en prenant le nombre d'imeges nAcessaire. Les diagrammes suivants iilustrent ia mAthode. rata eiure, 3 32X 1 2 3 1 2 3 4 5 6 AN ANSWER t.t TO THE I t I . ! HON. E. J. PHELPS PAPER ON THK BERING Sm CONTROVERSY IN HARPERS' MAGAZINE Price as Gents. 1 CO/ YRIGHT SECURED SALEM, MASS. JOHN H. CHOATE & CO., PRINTERS l?3fa#s^;s#»saB*SSJ 1 1 An Answf.r to thk Honor ablk E. J. Phklps's I'aj'kr on tiir Bering Sea Controvkrsy, in Harpers' Magazine for April, 181U. All opinion on this question, by u gentleman of the landing and the an- tecedents of Professor Piielps, is one whicii, as a matter of course, will secure the respectful attention of every one wishing to inform himself on the real merits of the case. His ripe scholarship in the science of law, and the ex- ceptional opportunities for acquiring special and exact information, which his position as one of the participators in the official discussions gave him, in- vest his utterances on the subject, in the eyes of the great mass of his coun- trymen, almost with the authority of a decision by a judge, after a fair trit.1. Moreover, the Professor is a Democrat, and the mere fact of the endorsement by this Democrat, of the position assumed in the matter by our present Re- publican administration, will be taken by a great many of both political par- ties as the strongest prima facie evidence of the impregnability of that position. The Professor's paper is, therefore, one which the opponents of Mr. Blaine's policy in the matter cannot afford to pass over in silence; because, such si- lence would be construed, by the public, as a confession of the impossibility to give any valid and conclusive answer. Discussions of this kind in the'press are, in some respects, not unlike trials in court before a jury, but with this great difference that, in press discussions, there is no presiding judge to enforce upon the respective pleaders that inva- riable rule of the courts which insists upon the presentation of the truth, the whole truth, and nothing but the truth. In the absence of such a superior power, a writer who addresses a jury composed of readers, is at liberty to de- cide for himself whether he will act as an ex-parte advocate, who not only re- peats unhesitatingly his client's misstatements, but superadds misstatements of his own, and then wrenches the law to fit his case, or, whether he will act as an impartial judge, who. after having himself scrutinized the evidence, sums it up truthfully, and states the law justly. A comparison of the evidence as presented by Mr. Phelps with that presen- ted by the ofiicial documents, and an analysis of his argument will show which of these two roles he has chosen to take in his article. The objection to his argument is twofold. In part, it is perfectly logical and consistent, but based upon premises wrong in fact and in law; in part it is made up of illogical and inconsistent deductions from correct premises, and, con- sequently no part of his argument will hold water, any more than that charm- ing boat of the French poet : "le plus beau des canots, il n'avait qu'un d^faut, c'^tait d'aller au fond de I'eau." To begin with, there is a grave difference between our author's narrative, and the official documents, as to tie sequence of events.* *Reference to authorities will be by pa^e, i. e. : p. 767, II. M.— Harpers' Magazine, April, 91. p. '20, S. E. 1). 100. .=500.28.— Senate Executive Document No. IOC. 50th Congress, 2(1 Session p. .W II. E. D. l.')0. .'Jl C. IS.— IIou.se " " " 450. ."JOth " Ist Session and the mention of the luunber of a page alone, will always refer to the document last cited. All itali<'.s are mine, unless specialized as "O. I"— original italics. (l) u "Diirinn; the administration of President Cleveland, and as soon as these drf- retentions uerc mtidr ,\iiov,'n. our yovcrnnuiil api>lic(i to tliatofGrf.il Ilrilaiii" with a proposal for a convention to rcgiilato sealinfj in neriiij; Sea. (p. 7 " 2(;. 8(11^47 " " condemnations of them " " 4 Oct. " " 84. footnote " " overtures (or a convention " " 1 ' Aug. 1887. Consequently, our forcible measures preceded our diplomatic measures by more than a whole year. If any diplomatic steps were taken before 1!) Aug. '87, by our government for a friendly and peaceable arrangement, it has not seen fit to publish anything about them, and as Mr. Phelps declares that he is writing, without attempting to state anything not already laid before the pub- lic, (p 7(i7 II. M.), I shall likewise confine myself to the documents ofilcially published. The importance of this order of sequence becomes evident from some later remarks of Mr. Phelps. "The applicntion made by the American government to Great Britain when the depredations complained of bkgan, for a conven- tion, by agreement ot the countries interested, under which the capture of the seals should be regulated, -was the proper course to he taken. Interna- tional courtesy required it before proceeding to any abrupt measures.'" (p. 77;}. II. M.) If our official publications can be relied on, "international courtesy," as defined by Mr. Phelps himself, so far from haying been observed by us, as he implies, has. therefore, been grossly violated by us. It was "a word and a blow, and the blow first." We began to seize in August '8(i, to condemn in the October following, but we did not begin to move for a convention until fully twelve months after our seizures. No complaint was made and no warning was given by us. Indeed, there could not have been, for the whole tenor of Mr. Bayard's despatches shows, that the news of the seizures of '8(i came upon him with all the unexpectedness of an "untoward event." And it was the same with the seizures of '87; for he writes, 18 Aug. '87(p 4!) S. E. D. lOd.oO C 2 S.), that he knew nothing of them, until he received the informa- tion on 11 Aug. '87 from the British Minister, and also that, "having no rea- son to anticipate any other seizures " Perhaps, Mr. Phelps thinks that a mere seizingof a few small vessels, their confiscation, and the condemnation of their captains and mates to heavy fines and imprisonment, are not "abrupt measures," and that "abruptness" would be fairly chargeable only if we had incontinently hanged, drawn and quartered every one of the piratical crews ! A brief recapitulation of events will show that our failure to comply with the requirements of "international courtesy," which at the beginning of the embroglio was evidently accidental, so far as Secretary Bayard was concerned, had apparently, bei nie intentional under the present administration. 2() Jan'y. '87. The Attorney General gives telegraphic orders to release the seized British sealers (p. 56). 3 Feb'y. '87. Official advice of this to the British Minister (p. 12). 19 Aug. '87. Overtures for a convention (p. 84.) ! soon (If these def- t of Great Britain" iijf Sea. (,p. "''•' H- uiu; 18110, tiiat the I). 4.50.51 C. I S.) le, 1 & 2 Aug. 188''' 4 Oct. " 1 "Aug. 1887. matic measures by ken before 11) Aug. gement, it has not , declares that he is laid bL-fore the pub- locunients orticially :nt from some later lerican government EGAN, for a conven- nch the capture of he taken. Interna- 'ipt measures.''' (p. tional courtesy," as Dserved by us, as he t was "a word and a '8(), to condemn in r a convention until t was made and no been, for the whole )f the seizures of 'St» vard event." And it ug. '87(p41»S. E.D. eceived the informa- hat, "having no rea- V small vessels, their mates to heavy fines '•abruptness" would drawn and quartered lilure to comply with ;he beginning of the lyard was concerned, dministration. orders to release the ster (p. 12). 8 \s CesKfttion of all interference during 'H8, but "very clear" if unoHlcial, asKurance from Mr. Ilayard, that "pending negotiations" there would be no interference with British sealej-s (p. 2 iSi . j; ibi- a ' clo^^; time" on tlie pari of the iiadiaiiK to dehtroy )n of the projiriety 1 aKM-rtcd and vin- •Sd and '.I Jan'v 'H7 iist seen, in our in- (|uestions of ri^lit, )!■ 12 Nov. 'S7 " . . iiuestions of con- 1 H. M ) " in this nrrespondeiue that hut they have been It is ivhether the ihat they have done t follow." ^ controversy could forth these allejja- ;spatches, in which le negative form of g, coupled with de- and broadly atflnn- I above, the sealing nvful occufution of t the pursuit of fur- k-en the slightest in- uld be proved, they taken, for the ri'ni- )UND /o depart from ,ids." (p. 02 n. E. •nment do not deny 1 the islands in pos- icrease and multiply ie seal fishery on the t they cannot admit s in forcibly depriv- ivhich, by the recog- . ()4.) 'are unable to admit affords any sufficient m against peaceable the high seas." (p. demanded have been revious to their own free and open to all Mr. PhelpH stateK (p. 771 H. M.) tliat "Mr. Blaine inquires in his recent comnumitation," — then it must be in his depatch of 17 Drc. •'.»(» — "whetiier the United States government is to understand that her Majesty's govern- ment maintains thtof>ostil," aiul a>//, to dcNcrihe some of tlie ((inihtions of seal lil'o ; . . . . " and for tiiiH purpose lie encloses letters lioin two experts. MetiKrM. Clarke and Klliott. neither of which suhtnit "reyulationn," (pp. 8i-!»il.) The only defi- nite thinj; which Mr. Hayard states is. that extermination can only he ohv iated by the prevention of the killinj,' north of .V) ° N. between lfl'i° \V. and 170° E. from April 15 to Nov. 1, and that such prevention "within a marine belt of 40 or W miles from the islands durint,' that |)criod would be inetVect- ual . . . . " (p. H'.».) Feb'y 2."), 'MM, Mr. IMielps reports, "Lord .Salisbury assents to your proposition to r. and Nov. I, and 1(10° Wand 170 K in the Berinj^ Sea. 'lie will also join" the U. S. Government "in any preventive measures it iiuiy bv thought best to adopt . . . . " (p. '.17.) March 2, 'MH, Mr, Hayard writes, "In revjard to the trial of otVenders for viola- tion of the /r^/o.itf/ ;'<'.!,''//A///o«.v. provision miirht be made for such trial by handing over the alleged ollender to the courts of his own country." (p. \>x.) Early in April, '88 the Russians take part in the conferences wisbing, "to in- clude in the proposed arrangement that part of Hering Sea in which the Commander Islands are situated, and also the sea of Okhotsk." (p. 118) April 20, '88, our chargd d'affaires, Mr. White, reports a conference on ,\pril 1(), "for the purpose of discussing" "the details of the proposed tonvenlional arrangement ..." Russia wanted her rookeries inchuled, and also the imfortation of firearms^ munitions and liquors prevented. "Lord Salisbury expressed no opinion with regard to the latter proposition, but suggested : "that besides the whole of Bering Sea, those portions of the Sea of Okhotsk and of the Pacific Ocean north of "4 7' N. ""should be included in the/n'/fl.viv/ arrangement.'" He also intimated that a close season up to Oct. 1 might be long enough. Mr. White, himself said ... I should be obliged to refer to you the proposals ivhieh had Just been made " "Meanwhile, the Marquis of Salisbury promised t) have prepared a draught convention for submission to the Russian ambassador and to myself." (p. 100) May 1, '88, Mr. Bayard writes, that he does not object to the inclusion of the Sea of Okhotsk. "Nor is it thought absolutely necessary to insist on the ex- tension of the close season till" Nov. 1, but " . . . it seems advisable to take Oct. 15 instead of Oct. 1 as the end of the close season, though Nov. 1 would be safer. Thinks it advisable to regulate the subject of firearms and liquors separately, (p. 101.) 20 June '8i, Mr. While reports, that he called May lb at the Foreign Office for more "discussing." •'Unfortunately, Lord Salisbury had just received a communication from the Canadian government stating that a memorandum on the subject would shortly be forwarded to London, and expressing a hope that, pending the arrival of that document, no further steps would be taken in the matter by her Majesty's Government. Under these circumstances, Lord Salisbury felt bound to await the Canadian !• «/«•«/" "a coilf oi (.aU in llciin;; Sou H a^ks Mr.lMiclpH to 111- latliTi'oininiini- IviiiK '" tliis, iliii's II' Hill A' i Hi,'' It (fe/i- life; . . . . " Mchsi-N. Clarke ami . ) The on In clefi- in oiilv be obviateil ifiM^ W. ami 1711° itiiin a inariiu' lielt woulii l)e inefVect- s, "Lonl Salisbui7 ifruimi/" .... I, ami Kin^W and overnment "in any ..." (p. !I7.) f olVemieis for viola- /(■ for siuii ti iai by n country." (p. !>><.) ces wi^iiini^, "to in- ; Sea in which the Okhotsk." (p. !•«) conference on April )p()seci conventional cliuleil, ami a/so the (I. "Lord Salihbury ition, but su^'u^CNted : the Sea of Okhotsk lucied in ihcjiro/osfil ip to Oct. 1 might be ;houId be obliged to ; prepared a draught \ to myself." (p. 100) ) the inclusion of the y to insist on the ex- it seems advisable to ;ason, though Nov. 1 bject of firearms and •ep<)rts,that he called Unfortunately, Lord !;;anadian government )rtly be forwarded to al of that document, ajesty's Government, o await the Canadian mpmf)rait(lunt l)efore prr)ctn'ding to draft the conventinti." (10,* > Thin in the last lU'sitatcli ret'crring to the negi-liatioiiK, through Mr. I'lu ... which we hnve published in extiuso. Mr. Hlaine, in his despatch of Mny L')>, '!I0, referit to an unpublished letter of Mr. Plulps, of I'-' Sept. 'HH, ns Htafing that the tonvention had been "vir- tually agrceil upon, except in its detail-.; but, that Canada objected to any Huch rcNtrictions, niul that until itn couMent could be obtained, iler Majenty's (loverinent was not willing to enter into the convention." (p. /^>,wv/ to give etVect to a seal conven- tion by order in council, not by act of Parliament" (p. tl7). Nothing piiblislu'd I»y our Ciovernnient gives such a tiespatch, «.» far as t am (iivarr. anil Lord Salislnirv ilcnies. L'u June 'IM), the proposal, but points out how already, April '-'7. 'H'^, Mr. White was informed by note that . . . "he" — Lord Salisbury — "had to refer to the Canailian CJovernment . . ." and April \iK. 'sh, concerning the necessity of an act of Parliament (p. IM) and !>l). lie further cites tVom his note, p; April, "H.s, to the Hritish Minister at Washington: "At this preliminary discussion it was decided provisionally, in order to furnish a hasis for negotiation, and without definitively pledging our (iovernnients " {O. I. ) p. Uli. F'rom all this, it is clear that the negotiations of 'HH never passed beyond the most initial steps; a basis for something beyond and still to be done. If a draft of regulations was submitted by us. as Mr. Phelps says it was (p. 7l>7 II. M.) it has not been published, ami the correspondence published does not show its submittance, nor does it, after H Feb'y 'M^, refer to such a draft as even existing. Mr. Phelps si\\s: "But after a eoiisiderahle delay it trans- pired that an «//e.v/rr/(7/ obstacle had arisen. It came to he nnderstood thixt Canada .... declined to assent to ... . the proposed restric- tions . . . ." (p. 7117). Mr. Hlaine, in his letter of 2'.> May. 'HO, makes a somewhat similar assertion, as we have just seen, and then. 4 June, ''.•0, charges that England '•oUruptly closed the negotiations" (p. 72 II. E. D. 4.')0 ol C. I S.). In reply to the Mritish quotation of Mr. Phelps's own re- mark on April II, 'HH, that: "... with a general election impending, it would be of little use and imieed hardly practicable to conduct any negotia- tio- 'i to its issue befoie the general election has taken place." . Mr. Hlaine swallows his own words with the greatest alacrity by saying: "I am quite ready to admit that such a statement made by Mr. Phelps might now be adduced as one of the reasons for breakirig oil" the negotiation, // iu fact the negotiation had been broken off, but Lord Salisbury immediately proceeded tvith the negotiation."' (July !!•, ".M) p. Ha.) The British despatch of 20, June 'ilO, asserts that Mr. White's version of what Mr. Blaine calls the pointed assurance of 2;! April, '88, was a mistake, and shows how it was cleared up by two English notes of 27 and 28, April, '88, explaining the legislative measures necessary to be taken by the Hritish administration, and stating clearly. "But neither convention nor bill is drafted yet, because we have not got the ! M I II S^iUUiMuu/' , opinions from Canada wiiicb arc ncci-ssMv to enable us to proceed." (p. !)1.) Already, on May Kl, '.ss, our cluuj^i' had Icarneil that Canada wanted to be heard iVoni before anvthin^j was concluded, so tiicre was nn "consiilerable delay," nor did this "transpire" or, "become understood," but was all oflioially communicated, plainly and straightforwardly. Nej^otiators in international affairs must be supposed to possess, and to be i,niided in all their doinj^s by, the necessary elementary knowledge of such aiVairs ; to be conversant with the constitutional powers of their respective governments, their methods of legislation, and their relations with subordinate branches (States or Colonies). Neither British consultation of Canada, nor the hitter's opposition ought to have been an "«w<'.v/rr//'(/ obstacle" for our diplomatists. The former was in strict conformance to British practice, demonstrated to us ad nriiscum dur- ing the 'Many previous negotiations on Canadian questions, and the latter was the inevitable result of our high-handed ;ind illegal interference with a profit- able and lawful business. An American statesman of any experience could no: have expected anything else, and would have been astonished if he had found a British minister so negligent of his duty as not lo consult the colony primarily alrectcd, aiui a colony t-o blind to its rights and interests as not to object. But Mr. Phelps misses another and still more essential point. Such assent, to enter into some sort of agreement for protection of the seals, as may have been given by Great Britain, was given in reliance upon the truth of our representation that under continuance of pelagic sealing, speedy extermina- tion of the seals was inevitable. The published correspondence does not show -when Canada first denied this theory . She may, or she may not, have used due diligence to collect data and to present counter-evidence; at all events, a Canadian memorandum was officially communicated, i) March, '90, to Secretary Blaine (p. 2()-51) in rebuttal of the extermination theory. This memorandum demonstrates the absiu'dity of one of our arguments; the one that, as unrestricted sealing had exterminated the seal in the Southern Oceans, it could only have the same result in Bering Sea, by showing that the methods of sealing in these respective seas were entirely different, namely : In the south, no sealing at sea, no protection of rookeries, out persistent pursuit on the rookeries and the slaughter of every seal found on them; in the north, unrestricted sealing only at sea, with protection for the rookeries, as inadequte or as perfect as our Government chooses to make it. The testimony appears to be vpry strong, and consists, in part, of the statements of our own officials. AH this, Mr. Phelps does not even allude to. As far as his article is concerned, one wouK fancy that our extermination theory was an established fact, which nobody had ventured to question. In support of the theory, he quotes Mr. Blaine's statement that our rookeries, "carefully guarded and pre- served, "yielded from '70 to'ilO, 100,000 skins per year ; that "Canadian intrusion began in '8f!, and so great has been the damage resulting from their destruction of seal life in the open sea surrounding the Pribyloff Islands, that in 18!)0 the Government of the United States limited the Alaska Company" — in reality the j new or North Americair Company — "to sixty thousand seals. But the com- pany was ABLE TO SECURE Only twenty-one thotisafid seals." Even if true, this argumentation would have no other foundation than that old fallacy in logic, ^ost hoc, ergo propter hoc, according to which, a certain state of things is us to proceed." (p. !)1.) lat Canada wanted to be re was no "considerable od," but was all ofiicially )tiators in international ;d in all their doinj^s by, i ; to be conversant with iments, their methods of lies (States or Colonies), ter's opposition ought to ists. The former was in ! to us ad nrttsetim dur- istions, and the latter was nterference with a profit- of any experience could leen astonished if he had not to consult the colony ts and interests as not to tial point. Such assent, )f the seals, as may have e upon the truth of our aling, speedy extermina- orrcspondence does not ay, or she may not, have counter-evidence ; at all municated, 1) March, '00, rmination theory. This our arguments ; the one in the Southern Oceans, howing that the methods tferent, namely : In the out persistent pursuit on on them; in the north, rookeries, as inadequte The testimony appears nts of our own officials. As far as his article is eory was an established pport of the theory, he fully guarded and pre- at ''Canadian intrusion g from their destruction slands, that in 1890 the ompany" — in reality the d seals. But the com- als." Even if true, this hat old fallacy in logic, rtain state of things is \\ U ascribed solely to some one circumstance or condition ; as if none of the other circumstances oi conditio, is, however inevitably connected with said state of things, had or could have !iad any inthieiue wiiatover. Assuming that the number of seals resorting to uur islands has decreased, this does not prove that the number of seals resorting to Bering Sea, in general, has decreased. Such decrease, even if general throughout that sea, may be due to other cai'ses besides excessive marine sealing. And, least of all, is the number of seals actually killed on ti.e islands by the lessees, any criterion of the number of seals resorting to the islands, and that consequently miglit be killed during any given season. On all these points, our official publications furnish very interesting testimony. In his evidence before the House Committee investi- gating, during the summer of '88, the fur seal fisheries, Mr. C. A.Williams, one of the founders of the old Alaska Commercial Co., speaking of the Russian management of the islands, remarked, "It was supposed at that time that the commencement of seal life on the islands of Bering and Copper" — the rook- eries in the western part of Bering Sea which still belong to Russia — "prob- ably took place by reason of the indiscriminate kiIlin'j;on those" — the Priby- loff — "islands, diverting tlie seals from their usual huants and inaking them seek some other localities. J^. Was there a large number of seals which left the Pribylov group and went over to the Russian islands.!" A. You could hardly expect them to go in a body. There had hardly been any csealing or seal life to any extent on the Commander Islands or Copper and Bering. It had not attracted the attention of the Russians, but after the indiscriminace killing on the islands of St. Paul and St. George, it was noticed that seal life increased rapidly on the other islands, and the supposition is a natural one that they were diverted from the islands on which they had before been un- disturbed and nought other places." (p. 77, 78 H. R. 3883 50 C. 2 S.) "In- deed, it wns predicted by Russian authorities, conversant with seal life, at the time o.'th^ cession of the Territoiy that the reckless and indiscriminate killing of seal by the Americans would soon drive the Pribylov herd to the Russian islands, and thus they (the Russians") would regain and '.etain all that was most valuable in the ceded territory." (p. 112) Professor Elliott in his monograph on the seal islands in Vol. 8 of the Census of 1880, expresses the same idea, "If the Russian islands are suitable for rookeries what guaran- ties have we that the seal life on Copper and Bering islands, at some future time may not be greatly augmented, by a corresponding diminution of our own, with no other than natural causes operating. "(p. (!!).) He also says that the seals "are not particularly attached to the respective places of their birth" that they require for their food very large quantities of fish, and that tiie wan- derings of theue latter determine the wanderings of the former. It is not impossible, nor improbable, that the fishes of the Pacific arc given to migra- tions similar to those of the fishes of the Atlantic, where we know that dif- ferent kinds have deserted old haunts en masse and for years, perhaps to re- appear by and by, for some equally inscrutable reason. Or, the killing on the islands, considered proper and legitimate by the government and lessees may strike the seals as "indiscriminate slaughter," to be escaped from at any sacrifice, even that of their homes. Then, again, seals are subject to "immense mortalitj'" in consequence of unfavorable weather, or, of epidemics even. Professor Elliott, in his said :i??> 10 I 1 '^ monoijraph, (p. ;!S;5) speaks of tJie excessively coUi winter of 18;5o-;i(!, and the continuant;e of the cold far into tlie smnmcr of '.'ill, whicli caused such an "immense moitality" of scale in Bering Sea, and Mr. A. Howard Clark, in his article on "The Antarctic Vu\ Seal," etc., mentions Captain Morrell's re- port of the evidence of the dcatii by disease of half a million on Possession Island (Lat. 2(>° nV S., l."i 12' E.) and of '■immense niimhers" on two small islands near by. (The Fisheries and Fish Industries of the United States by the United States Commissionei of Fish and Fisheries, puhlished 1SS7, Sec. V, Vol. 2, pp. i\i\'d and IK!) see also Elliott's Monograph, Vol. M, U. S. Cen- sus, 1880, p. G2.) Just so little as a decrease in the number of seals resortinjj to our islands — if such decrease be a fact — proves that it is caused by sealing beyond the three-mile belt, just as little is the action of r.ur government in reducing the number to be lawfully killed on these islands by the le-^sees, an\- such proof! True, this reduction amounts to 40 per cent., but the indications are that it is nothing more than a political move, the throwing of a sprat to catch a whale. If the British Government coidd be induced by any such move to withdraw from its position, and thus to give us the practical monopoly of the seal industry, the sacrifice of the entire island catch for several years would be only a tritle ! The lessees, on the other hand, know that if all other con- ditions remain as before, a reduced supply of seal skins in the selling market would cause a corresponding rise in price. The old Alaska Company's wit- nesses testified how that con'pany used to "nin\se" the market. One of their employees, Dr. Mclntire, stilted: "...., and we took the full quota, except during two _)e»rs. During these years we failed, not because we could not g^t enough seals, but because the market did not demand them. There were plenty of seals." (II. R. ;5883. 50 C. 2 S. p. 121 ; see also p. 101.) "... but the Company was able to secure only 21,000 seals" says Mr. Phelps (H. M. 7()7.^ Certainly, but the Company's agent on the Islands says, only because die Treasury Agent there prevented them. The latter forbade killing after the 20lii, July 'i)0, eleven days earlier than usual, giving as his reason, an alri'-niing falling oft" in numbers, and suggesting a stoppage of killing for an 'indefinite number of years." Per contra, the Company's agent protested, stating '"VVe have every reason to believe from the marked increase of net" arrivals oi fine seals, that, if we were allowed by 3'ou to con- tinue our kil'.i Tg und«r the law. we could fill our quota of 00,000 seals." (O.I. S. E. D. 4!), 5". C. 2 8. pp. 4, (I and 27.) The Treasury Agent refers to the presence of Professor H. W. Elliott on the Islands in July '00. as "Treasury Agent" and to a "forthcoming report" of Prof. Elliott's. (pp. il and 152.) ■^he public has .lot been allowed to see it as _\et. Mr. Phelps tells us in the beginning of his paper, that: "The .Maska fur seal fishery .... was .1 iiiaterial element in the value of that province . and one of the principal inducements upon wliich the purchase was made." Two American witnesses, both particularlv familiar with the subject matter, Prof. Elliott in his monograph already cited, and Mr. C. A. Williams of the old Alaska Company testify to the extraordinary ignorance of the value of these fisheries prevailing everywhere, until the Alaska Company demon- strated it. Elliott in Vol 8, U. S. Census of 1880, p. (18, and Williams in H. Rep. ;-58.s3, oO C 2 S. p. 88.) Prof, Elliott points out that Senator Sumner !l; winter of 18;5n-;i(>, and i;, wliich caused such an r. A. Howard Clark, in ns Captain Morrell's rc- a million on Possession numbers" on two small of the United States by ies, published iSS7, Sec. •aph, Vol. «, U. S. Cen- ;sortini( to our islands — D by sealinef beyond the ernment in reducinji; the y tlie lessees, any such ., but the indications are owing of a sprat to catch :ed by any such move to ractical monopoly of the 1 for several years would low that if all other con- ins in the selling market 1 Alaska Company's wit- he market. One of their id we took the full quota, led, not because we could >t demand them. There 21 ; see also p. 101.) ily 1'1,0()0 seals" says Mr. y's agent on the Islands :nted them. The latter rlier than usual, giving l1 suggesting a stoppage contra, the Company's lelieve from the marked allowed by you to con- la of (iO,onO seals." (O.I. ;ury Agent refers to the July '90, as "Treasury iott's. (pp. :'. and Wl.) that: '-The .\laska fur le value of that province which the purciiase was familiar witii the subject and Mr. C A. Williams •y ignorance of the vulue laska Company d^mon- (18, and Williams in H. ut that Senator Sumner » 1 n was the chief spokesman in advocacy of the treaty of 1807, that his speech, (!) April '(17) "is the embodiment of everything that could be scraped togeth-* er, having the faintest shadow of authenticity, by all the eager friends of the purchase, which gave the least idea ( any vr.'uaole natural resources in Alaska; therefore, when in summing up all this, Sumner makes no reference whatever to the seal islands or the fur-seal itself, the extraordinary ignorance at home and abroad, relative to the Pribyloff Islands can be well appreciated." And it is a fact that Mr. Sumner does not even mention the seal rookeries. He speaks of "the seal" as having "always supplied the largest multitude of furs to the Russian Company," but he seems to have thought that these furs were those of the "common seal," for he goes on to say: "Besides the com- mon seal, there are various species" some of which he names, and then winds up: "There is also the sea bear, or, Ursine Seal, (O. I.) verv num- erous in these waters, whose skin, especially if young, is prized for cloth- ing." (p. 317, vol. 11, Sumner's Works.) He ascribed a far greater value, present and prospective, to the fish fisheries of Alaska, than to its entire catch or trade in furs. (p. 321-2). He did not share Mr. Blaine's delusion of the "enormous and inordinate" profits of the Russian American Company. He speaks of the territory to be ceded as : " . . . . outlying possesions from which, thus far, she has obtained no income commensurate with the possible expense for this protection." "Its settlements are only encampments or lodges. Its fisheries are only a petty perquisite, belonging to local or per- sonal adventurers, rather than to the commerce of nations." (p. 202.) He gives a statement of the receipts and expenditures of the Russian American Company from 1850-5!) inclusive (p. 252-3) according tc which, the Compa- ny's dividends for that period were at the rate of only $101,51)5.30 per annum, (which agrees pretty nearly with H. H. Bancroft's figures of $102,000 per annum for the period 1842-01), but Mr. Sumner's statement also shows that only 20-21 per cent, of the receipts were derived from the "sale of furs" — that is, all the furs collected from all the Company's stations, not from the Pribyloffs alone — whilst 48-50 per cent, was derived from "tea traffic". This latter source of profit was due to the Company's monopoly of the importation of tea into Russia by sea. This "tea traffic" profit was not a "natural re- source" of Alaska, nor available for the United States as a source of income. Taking out of the account, therefore, this profit of roubles 4, 145, 80!). 79, less charges, namely : duty, transportation and packing, and R. 200,000 for insur- ance, 2,551,401.57; say net rubles 1,594,408.22; not only is the whole divi- dend of R. 1,354,004 swallowed up, but an actual deficit 0f2jg.S04.22 is left. Nor is it difficult to understand that the fur trade, as managed by the Rus- sian American Company, should not have yielded a better result, because such management was in no sense that of capable and careful merchants, and besides th.; price of their main staple has risen enormously since those times, and the quantity has about quintupled. Mr. Williams states that up to the "fifties' the Russian American Company sent some 15,000 — 20,000 sealskins to London, dried, after that, salted; and that the Company had a contract for their sale delivered in London, at 14 shillings sterling, say $3.50, which remained in force until the cessation of the Russian American Company, (p. 78, H. R. 3883. 50 C. 2 S.) At the time of the cession of Alaska, nobody dreamed of the possibility of such a business in fur seals as the Alaska Com- i>j*tei^'^.vwe 12 I i 4 pany built up during the term of its Iiase, and though fasliion inay have been a powerful aid to this Coinpany, its success has been mainly due to the ex- cellent manaf^ement and tact of the very capable men who had its direction. Mr. Phelp's statements, considered so far, are those which concern alleged facts, having nothing to do with law, and susceptible of refutation by the counter proofs submitted. We now come to his assertions regarding tacts in their legal bearing, and his dicta concerning law. He makes several ar- guments, the first of which is that : the seals, "making their home on Amer- ican soil, .... belong to the proprietors of the soil, and are a fart of i/icir property, and do not lose this quality hy passing from one part of the territory to another, in a regular and periodical migration necessary to their life, even though in making it, they pass temporarily through water that is more than three miles from land." (p. 7(!1), H. M.) "The simple question presented is whether the 'United States' government has a right to protect its property and the business of its people from this wanton and barbarous de- struction by foreigners, which it has made criminal by Act of Congress ; or whether the fact that it takes place upon waters that are cla.ined to be a part of the open sea affords an immunity to the parties engaged in it which the government is bound to respect." (p. 7(!7.) Mr. Phelps thinks that to the "ordinary mind" this question would not be a difficult one. Probably not, because the falseness of the premises on which the alternative is based would escape detection by such a mind, but any mind with a grain of logic sees at once that Mr. Phelps is merely begging the real question; the primary one, which must be settled in his favor before his proposition can be'considered, and that is: can rve or a?iy natioji have any property zvhatever in seals or any wild animals, found beyond the national territorial jurisdiction'? Of course Mr. Phelps, a passed-master in law, knows that in law there is no property right in wild animals, whether fish, mammal or bird, outside of territorial limits; that any and everybody is free to appro- priate or kill them, so long as in doing this no right of territory is violated. To enable us to exercise lawfully any right of proprietorship in wild animals like seals, we must confine them within our territorial jurisdiction. To allow them to leave our territory, to escape into the "high seas" is to deliver them up to the tender mercies of mankind in general. And to pretend to prevent Non-Americans from doing what they like with seals foimd in the "high seas" is to fly in the face of all international law, and consequently to make ourselves ridiculous. Nor is the case altered one bit by the fact that the seals, or rather the mere majority of them, are born on our soil, nor by the unproved assertion that marine sealing is inhuman and wasteful, nor by the disingenuous implication through cunning wording, that the seals migrate from one part of our territory to oome other part of the same territory, and merely "pass temporarily through water that is more than three miles from land." As a matter of fact, marine sealing is no more wasteful or inliuman than seinc^-fishitig of mackerel, etc. If Mr. Phelps's theory, that the seal be- longs to the territory, rests on the reasons which he gives, namely: that the seal is not a "wanderer of the sea," but has "a fixed habitation on the Alaskan shore, from which it never long departs, and to which it constantly returns" (7()(! H. M.), then this theory is exploded by the following facts : The seals do not, on an average, stay more than 4 1-2 months on our territory, after gh fashion may have been eon mainly due to the ex- iien who had its direction, osc which concern alleged itible of refutation by the assertions regarding facts iw. He makes several ar- king their home on Amer- the soil, and are a fart of issing from one part of the igration necessary to their irily tlirough water that is [.) "The simple question it has a right to protect its wanton and barbarous de- al by Act of Congress ; or lat are cla.ined to be a part is engaged in it which the :his question would not be is of the premises on which such a mind, but any mind is merely begging the real ed in his favor before his ive or any nation hax'e any found beyond the national assed-master in law, knows lals, whether fish, mammal everybody is free to appro- ght of territory is violated. )rietorship in wild animals •ial jurisdiction. To allow h seas" is to deliver them And to pretend to prevent seals found in the "high and consequently to make e bit by the fact that the rn on our soil, nor by the n and wasteful, nor by the g, that the seals migrate of the same territory, and ore than three miles from more wasteful or inhuman s theory, that the seal be- e gives, namely : that the habitation on the Alaskan lich it constantly returns" lowing facts : The seals ths on our territory, after \ \ 1)( l-^a;; which they leave Bering Sea to become for 7 1-2 months, "deni/ens and wan- derers of the sea" in the Pacific. (II. Rep. SSSfi.oO C. 2 S. p. 89.) There is no evidence of their "constantly returning" to their former habitation, which ttiey are known to have abandoned in great numbers more than once. (p. 77 and 78 and U. S. Census of '80, Vol. 8, p. (li) and 10!»). Mr. Phelp's reference to national game laws protecting wild animals has, of course, no hearing on the question at issue; for any nation's game and fishery laws are limited in their scope to that nation's territorial jurisdiction, outside of which these, or other municipal laws, can be applied by such nation against foreigners, only with the consent of their governments. He knows this so well that he admits expressly: "This general proposition will not be questioned" (708 H. M.) Nevertheless, he imagines that he can evade the consequences of this axiomatic truth by giving a novel definition of "the free- dom of the sen" and invoking fictitious rights of property. "In what does the freedom of the sea consist.' What is the use of it that individual enterprise is authorised to make, under that international law which is only the common consent of civilization? Is it the legitimate pur- suit of its own business, or the wanton destruction of the valuable interests of nations?" He tells us that the proposition " . . . that these acts, pro- hibited by American law, unlawful to Canadians wherever territorial juris- diction exists, . . . and which are wanton and destructive everywhere, become lawful and right if done in the open sea, and are therefore a proper incident to the freedom of the sea" (p. 7(!8) that this proposition is refuted by its mere "clear statement" "in the minds of all who are capable of a sense of justice and able to discriminate between right and wrong." (p.7(!8 H. M.) Now let us present Mr. Phelps' contention in the most forcible way possible, by assuming, for argument's sake, that sealing in the open sea is morally a crime, more heinous than the slave trade or even murder, and even then, every sound jurist must admit, that such moral criminality gives us no legal right to interfere, in however slight a manner, with this pursuit by foreigners out- side of our jurisdiction ! Every textbook declares that even murder commit- ted on the high sea is not justiciable in any court, except in one of the nation under whose flag the crime was perpetrated I And that was precisely the position which our government has always maintained with regard to the slave trade. We were the first to declare that trade a crime, and to enact the death penalty for it, and yet we successfully denied the right of any for- eign authority to call an American to account for it, whilst, as a corollary, we disclaimed for ourselves any such right against foreigners. England, did for a time, arrogate to herself a right to try in her courts slavers of nations whose own statutes forbade that trade, and her courts condemned some for- eign vessels on that express ground. Such pretensions have long since been abandoned by her, and even at the time when they were still upheld, her judges declared emphatically the immunity from British interference of all those foreign slavers, whose own national laws did not forbid the trade. (May 1813, the Diana, 1 Dodson, p. 1)5). Even if revived, these exploded British pretensions could not serve as a precedent against British vessels for sealing in the open sea, because no provision of international or of British law makes that pursuit criminal or punishable. Mr. Phelps speaks of "... . these acts" (sealing) "prohibited by American law, "as if such a prohibition were by that law extended to the open ifin u I I i I Kca, and as if, in that case, the proliihition were of any validity against f ir- . eigners. All American law that bears upon tliat point is contained in Sec. l!lo(i, Revised Statutes, the scope of wliicli is confined to "the territory of Alaska or the waters thereof." and in tlie act of ;! March, 188!), which makes Sec. l!)o() applicable to " . . . all the dominion of the United States in the waters of Bering Sea." The Professor cannot have iiad the text of these enactments in mind when he wrote, nor the history of the abortive attempt in the House to stretch beyond legal warrant our jurisdiction in Bering Sea, which found such a ludicrous end in the said act of 18Si). He could not, otherwise, have been blind to the moral certainty, that our Supreme Court, (however much a solitary judge of an inferior court has been led astray) would construe such ordinary and customary phrases as "the waters thereof and "the dominion of the United States in Bering Sea" in their ordinary and customary legal sense, that is : limited to three miles from low water mark, and this even without the very significant evidence that the House had, on second thoughts, refused to be lured into claiming the slightest unusual extent of jurisdiction, and that, consequently, this court could not find any vessel, American or foreign, guilty of a violation of any existing American law,for sealing in Bering Sea, outside of the usual three-mile limit. Congress could forbid marine sealing by Americans anywhere, but it has seen fit so far, to limit the prohibition to three miles seaward from our shores. In the present state of our statutes it would be simply an academic discussion, whether or not, said section IWC), if it had been, or should be, extended by Congress to any part of Bering Sea beyond the three-mile belt, coulu be en- forced against foreigners, on the strength of our alleged "property" in the seals, without violating the law of nations. The recognized legal authorities who are men pre-eminently"capable of a sense of justice and able to discrim- inate between right and wrong," are unanimous in declaring against such a hypothesis, and that will suflice for the present. Mr. Phelps declines to restate Mr. Blaine's argument, that Bering Sea is not, as between ourselves and Great Britain, a part of the open sea in conse- quence of the treaties of 1824, '25, and '07, but he finds that "It is presented with great ability, fulness and clearness, and there seems to be nothing left to be added in either particular. It depends principally upon historical evi- dence, which must be closely examined to be understood ; and that evidence certainly tends very strongly to support the result that is claimed by the Sec- retary." (H. M. 708.) Deference to Mr. Phelps's standing as a jurist makes it impossible to suppose, that he has done more than glance hurriedly over such "historical evidence" as Mr. Blaine has seen fit to manufacture and sub- mit, and that Mr. Phelps has not given a moment's thought to what has been advanced on the other side. An examination of the real and complete evi- dence^ geographical, historical and legal, would have convinced a man of the Professor's acquirements that Mr. Blaine's argument lacks every one of the qualifications ascribed to it above ; that it is : not able, for it fails to refute or even meet the adversary's chief points, a mere evasion of which is attempted by the introduction of irrelevant side-issues, of misstatements, and of extracts falsified by being wrenched from their context; by conclusions in part incon- sistent even with such premises as are presented; subterfuges all, so trans- parent as not to stand a moment's investigation. !ilidit_y against l"')!*- |s contained in Sec. [o "the territory of 188!), which makes e United States in ad the text of tiiese c abortive attempt tion in Bering Sea, ). He could not, ur Supreme Court, s been led astray) the waters thereof" " in their ordinary les from low water that the House had, e slightest unusual could not find any ,• existing American lile limit. Congress ut it has seen fit so our shores. In the cademic discussion, )uld be, extended by le belt, coulu be en- ;d "property" in the zed legal authorities and able to discrim- aring against such a :, that Bering Sea is le open sea in conse- that "It is presented ns to be nothing left upon historical evi- d ; and that evidence I claimed by the See- ing as a jurist makes [lance hurriedly over rianufacture and sub- ght to what has been //and complete evt- ivinced a man of the cks every one of the 3r it fails to refute or f which is attempted lents, and of extracts usions in part incon- erfuges all, so trans- 15 It Not full: because it simply ignores, where it does not pervert, the most important geographical and documentary facts, and I he most elementary legal axioms. Not clear: because it is wordy to tediousness.bften illogical, and sometimes faulty in construction and grammar. The Professor in his next sentence is quite as obscure and pu/zling as Mr. Blaine at his worst. "If in this position he" Mr, Blaine "is right, it is the end of the case. Because it brings these waters, as against Great Britain at least, within the territorial jurisdiction of the United States, not by their geo- graphical situation alone'" but by the treaties (H. M. 708). This is an intima- tion that there is something about the geographical conditions of Bering Sea which of itself would or should give us the jurisdiction over it. "The situation "of that sea is between shores belonging to two difterent nations. In con- figuration it is not separated from the Pacific Ocean by a barrier of land pierced only by channels narrow enough for defence from on shore, but this sea forms an integral part of said ocean, with which it is connected by numerous very wide channels through the chain of the Aleutian Islands, and west of these by an uninterrupted expanse of open sea of more tlian 500 nauti- cal miles in width. In situation and in configuration, then, Bering Sea does not possess those qualities which in international law are the conditions sine qua nan of a closed sea, and which alone give a title to national jurisdiction over such waters. If Mr. Phelps knows of any other geographical character- istics, even aside from "situation", which have such an etfect in law, he ought in fairness to enlighten an ignorant world by a full explanation, and not to slur over so important a matter with a mere implication. Mr. Blaine would be very thankful for sucii information, as it might ensure a "diplomatic succe^r." The want of this information has forced him to disavow fervently all tl.ougiits of claiming Bering Sea as one closed from shore to shore, and to content himself with the make-shift of its partial closing, over a belt of one hundred, or even sixty miles only from the shores. If the old hard and fast rules, uniform for all nations, concerning closed seas, the freedom of the seas, and the pursuit on these of wild animals, have been outgrown by the world, there ought to be substituted for these rules, new ones, somewhat on the plan of the old, "sliding scale", establishing the precise territorial shore belts in conformity with the varying width of channels between seas and oceans, the varying value of a nation's "interest" or "property" in the different kinds of wild animals, and the varying degree of domesticity or vagrancy of the differ- ent kinds of such creatures. The successful working out of such a problem might not be less difficult than the squaring of the circle, but it would proba- bly have the same fascination for certain "minds". It would be interesting to know whether this part of Mr. Blaine's argument recommends itself as much to the Professor as that part relating to the effects of the treaties, and if so, on what juristical grounds. The examples which Mr. Phelps cites, in illustration of an alleged limitation of the rights of individuals on the open sea, are not to the point. The sea has never been closed to the slave trade in any such sense as he suggests. (770 H. M.) This trade is no crime against international law now, any more than it was formerly ; it is only a violation of the municipal law of certain individual nations, and this law is applicable solely by each one of / n; I I thcni iiuiividimlly, and to itH own citizens excluHivcl^'. But there is a Ntrik- Inji; ilillerence between the piocedun- of our hunianitiirianR who ieKi«l"te(l nf^ainst the .slave tiiuie, and that ol'our modern stal ions. The former j^iiarded scrupuU)iisiy against inlrintjin;^ u|>on the international riyhts of other btutes, but voluntarily gave up a lucrative tralVic, because they thought it wrong, and they were not deterred by the fact that the rest of the world still continued it freely. The latter deliherately violate the rights of all others, on the plea of nMirality, but with the avowed object that our Government may not lose even a modicum of its revenue, and that a very few of our fellow cit- izens may make a greater profit out of their monopoly. The morality involved is so transccndant that it becomes our duty to trample upon the rights of all other nations, if xve can, but if we cannot, then that morality vanishes in- stantly I Mr. Rlaine stated, officially, that if Canadians must be allowed to seal within ten miles of our islands the same privilege "must, of course, be at once conceded to American vessels." (72 H. E. D. 450. 51 il. 1 S.) This way of arguing does not impress one with the genuineness of Mr. Blaine's zeal for the morality doctrine, and unfortunately Mr. Phelps does not tell us how it strikes him. What limitations on the freedom of the sea belligerents may impose in time of war, has nothing to do with the present controversy, for we do not claim to act as belligerents. If Mr. Phelps had investigated the instances, cited by Mr. Blaine, of alleged violation of the freedom of the sea by Great Britain in time of peace, Mr. Phelps would have found out that they are nothing more than fictions of the Secretary's "riotous ima'gination", or else bad fits of "journalism" of the Ex- Editor. The Cevlon Pearl banks are outside of the 3-mile belt, but though the shells are obtained there, the pearls can only be extracted from them after the shells have been exposed for quite a while on the land, which is British, and this fact is Great Britain's warrant for taxing and regulating the business. All existing Australasian and Australian legislation concerning pearl fish- eries is limited in express terms, either to British vessels or to waters within three miles from shore. It is the same with Mr.Blaine's latest "instance" : the alleged British usurpation off the east coast of Scotland. The act there cited by him refers expressly to previous acts which impose exactly the same limit- ations. The St. Helena Act was the outcome of the policy adopted at the Vienna Congress by all the European Powers against Napoleon as an enemy, not of Great Britain alone, but of all mankind. Great Britain having been by that Congress charged with his custody, and authorized to take what measures she might think necessary to ensure it, passed the said Act. That provision of it which makes punishable, by Great Britain, the hovering of even non- British vessels within eight leagues of the coast of St. Helena, is, of course, a violation of the rights of all other nations, except ofthose who, by their author- ization at Vienna, had sanctioned beforehand Britain's measures, and the na- tions represented at Vienna constituted practically the whole civilized world. The United States was the only member of the family of civilized peoples which took no part in that Congress, and the passive indifference with which our Government treated the St. Helena Act is very significant. Already, on I I \y. But there is u strik- litariiUiR who le^iHluted liaiupioiis. Tlic fornuT I'lKitioDiil rij^litK of other tcciitise they tlioiight it he rest of the world still e ritj;ht8 of all others, on it our Government may ry few of our fellow cit- '. The morality involved le upon the rij^hts of all it morality vanishes in- iiins must be allowed to ; "must, of course, be at I). 51 C. 1 S.) This way iof Mr. Blaine's zeal for does not tell us how it liferents may impose in itroversy, for we do not by Mr. Blaine, of alleged n in time of peace, Mr. lore than fictions of the 'journalism" of the Ex- It, but though the shells )m them after the shells ich is British, and this ig the business. I concerning pearl fish- els or to waters within s latest "instance" : the d. The act there cited exactly the same limit- [adopted at the Vienna m as an enemy, not of |n having been by that to take what measures Act. That provision lovering of even non- [-lelena, is, of course, a who, by their author- measures, and the na- hole civilized world, ly of civilized peoples Idift'erence with which lificant. Already, on \ 1 IT the Itith Aug., 1H15, our minister at London was warned of one of the con- sequences, for us, of Napoleon's captivity oo the island, by tlie olFicial intima tion of an impending modification of the still unratified treaty of ii July, 1815. (Adam's Diary vol.;i, p. 252) Nothing was said at the time about "hovering" but neither Mr. Adams's diary, nor our diplomatic correspondence, as far as published, has any reference to the Act itself. The inference is, that either in consequence of explanations from the British Government, or in reliance upon our indisputable immunity, by international law, from any mere British statute, (and perhaps somewhat in view of the decisions of the highest Brit- ish court) our Government deemed it superHuous to take any notice of the British Act. At all events, it is a fact that t'le Act was never enforced against any American vessel, and the recorded decisions of the British courts make 't certain, that any attempt to do so would have been defeated by those courts, fvlready in May, 181!}, Sir William Scott (afterwards Lord Stowell) had ruled that foreigners, whose own laws tolerated the slave trade, could not be inter- fered with by British authorities outside of British jurisdiction. (The Uiana I Dodson p. !)5) Not long after, March, 1810, the same judge rendered his cele- brated decision in the case of "Le Louis," in which he broadened and empha- sized his former declaration regarding the immunity of foreigners, outside of British jurisdiction, from all British legislation. (2 Dodson p. 240.) Mr. Phelps argues (p. 771 H. M.) as if the precious concession by Great Britain — whatever it may have amounted to — of "the justice and expediency of ff convention," made it morally obligatory upon her to agree at once to any and every convention which might suit us ; as if she were precluded from withdrawing or even modifying such concession, — which, at the utmost, was for an"agreement" still to be made — tiotv that she has good reason for disbe- lieving the testimony on which the concession of "justice and expediency" was made. She established, in accord with Norway, a close time for sealing in one region, ergo, she ought to agree with us in doing the same thing in an entiiely different region ! The Professor hazards the opinion, that if the roles of the two nations in this controversy were reversed, "it is perfectly certain that . . . our gov- ernment would be apprised, that if unable to restrain its citizens from an outrage upon British rights which it did not assume to defend, the neces- sary measures would be taken by the injured party to protect itself." (771 H. M.) On the othT hand, Mr. Phelps tells us that it is not to be appre- hended that the forcible prevention by us of marine sealing" would lead to any collision with Great Britain." (773 H. M.) It is a mystery on what precedent in British history these two suppositions are based, but it is plain that they cannot both be correct. If it "is certain" that Great Britain would resort to force to impose upon us such pretensions as Mr. Blaine's, it is even more certain that she would fight us to maintain rights sanctioned by every rule of international law. And Jlr. F helps has forgotten that there is a necessary complement to his suppositious case, to wit : what our own coun- try would do! Does he feel equally certain that an enforcement by Great Britain against us of such theories, as he and Mr. Blaine now set up, would not lead to any collision? Would he or Mr. Blaine advocate our submission to such action by Great Britain? If both Mr. Phelps's suppositions are based solely on the alleged non-asser- tion by Great Britain of the legality, the perfect rightfulness of marine seal- 'tS*-% m "I I I" i I : I 1 1 l! ! I : 1> ! 'il. iii^; us now coiuliictcil l)j tlie c'aiiadiii'is, hoth suppositions are untenable, ns the premises have been disproved. In bis allusion to arbitration. Mr. Phelps <(ives an entirely wronj^ version of the faels. "Hut that has Ixeii alri'adv proposed by the I'liited .States, with- out sueeess. The otVer has been met by a counter proposal to arbitrate, not the matter in hand, but an incidental and collateral question." (77:5 II. M.) F^vni liiis one can only infer that nr wrre the Jhst to propose arl)itralion, and that ' ur proposal embraced the real '"matter in hand," whilst (irrat IhifiiiH trie I to I'luii/c t//is. On April ;!0, '!!(), the British submitted a "Draft of a North American Seal Fishery Convention" providint; for a ef)mmission of experts, and in Art. i? for arbitration in case of disaj^reement between the two nations as to the rej,'- ulatioiis to be adopted. (II. E. U, 460. p. 54 etc. ol C 1 S.) Rejected by us 1>I» May '!tO. (p. 70.) Jine 27, ".»(), Sir Julian Pauncefote wrote, that as one of the conditions for a request from the British L(overnment to British sealers to abstain from sealing, it would be necessary : "That the two governments agree forthwith to refer to arbitration the question of the legality of the Uni- Ulu rfer ith Br ted States Ciovernment in seizing sels engaged in the Bering Sea, outside of territorial waters, during the years lHHi\, 1887 and 1881)." (p. 77.) Rejected by Mr. Blaine, '-'July 'HO, (p. it;!.) August '2, 'ilO, Lord Salisbury wrote, if the United States "still dilVer from them" (the British government) "as to the legality of the recent captures in that sea, they" (the British government) '■'arc ready to agree tbat the (/ites- tioHS, with the issues that depend upon it, should be referred to impartial arbitration." (p. 11 II. E. D. 144. ol C '2 S.) This unconditional olVer was also rejected by Mr. Blaine on Dec. 17, 'It'), and it is only in his note of this date, that he made counter suggestions of arbitration which were the first ones coming from our side. The British, therefore, preceded us by six months in proposing arbitration. It was Mr. Blaine, and not the British, who made "counter proposals", and he tried to stnuggle in passages which appear to attribute special and abnormal rights in the matter to the United States. These passages Lord Salisbury objected to, in his turn, but he accepted all the other proposals in his note of 21, Feb'y '111, (p. 4 N. Y. Ev'g. Post 11 March, '!)I.) If the British offers to submit '■'the question of the Irga lit v" of our seizures, ''and the issues that depend upon it" do not meet "the matter in hand but an incidental and collateral question", words must have lost their customary meaning. Mr. Phelps's whole contention is, that we have the legal right to prevent marine sealing, and yet when it is proposed to have this "legality" arbitrated upon, it becomes all at once a mere "incidental and collateral ques- tion." ^Vhat other warrant but "legality" can there he for interference with the property of foreigners? As arbitration is now arranged for, and as, nevertheless, nobody seems to be aware of any consequent injury to our "honor and dignity", Mr. Phelps's derogatory remarks on that method of settling international differences, may be passed in silence, as the simple expression of an individual opinion, in glaring contrast to that of the vast majority of our cc intrymen. Speaking of the proceedings in re "VV. P. Sayward" now pending in our Supreme Court, the Professor informs us that "the only questions that it "'^fme^:^^mi'-W lottitioiiH lire untenable, oh 111 onfire! y wroii'^ vcrKion )y till' I'liitt'd StatoK.with- proposal to nrhitratc, not I question." (77!l II. M.) propose ai'hitration, and id," whilst (Jrrat Britain ^f a North American Seal of experts, and in Art. H two nations as to tiie rejj- 1 C IS.) Rejected hy us ncetote wrote, that as one ernnient to llritisii sealers riiat tlie two ^^overnincntB of the ieyality of the Uni- terferin^ with Britisli ves- il waters, durini' the years iA States "still dilVer from y of the recent captures in dy to agree that the c/ites- \ he referred to impartial :r. Blaine on Dec. 17, ".10, de counter suijgestions of m our side. The British, arbitration. It was Mr. p-oposals", and he tried to al and abnormal rights in )rd Salisbury objected to, |s in his note of 21, Feb'y ligalitv'o^ our seizm-es, the matter in hand but [lave lost their customary 'e have the legal right to li to have this "legality" lental and collateral ques- be for interference with Ihcless, nobody seems to |id dignity", Mr. Phelps's lational differences, may individual opinion, in •mtrymen. lird" now pending in our Ihe only questions that it ^iiaesss^R^f'^ would seem can he brought before the Court are, whether there is any act of C'ongreHs which reaches the case . . . .", of its constitutionality, of the regularity of the i>roceedings under it, ami of the correctness of the form of application for a writ of pn>iiil)ition. (77t 11. M.j This must have been written shortly after the action was be,i,uii, and with- out knowledge of the nature of the pleadings. In the briefs tiled, the peti- tioners take their stand entiiely on the non-existence of American jurisdiction in the case; whilst the Attorney General argues, — aside (rom technicalities — that the tnatter of jurisdiction, depending as it doe^ upon "extent of domin- ion", is a political question, which has alremly been deciiled by the Political Department of our (iovermenf, and that the Court is therefore precluded from considering this question. The court virtually overuled nil these objections, and issued an oriler to the judge of the Alaska coint, to show cause why prohibition shoukl not be granted. In his brief, in reply to this order, the Attorney (iencral makes certain admissions which refute the last cited assertion of Mr. Phelps. "Rut the only (juration at i.ssue in this case is the territorial jurisdiction of the Alaska Court.'"' (p. Dii.) "The United States derived no power over the Bering Sea, except through the cession by Russia in the treaty of 18(i7." (p. 1»4.) Mr. Phelps's article, /;/ extenso, is addeil to the brief (p. iliU-l'JH), but beyond this rather left-handed recognition of his great theory of o ir property right in the seals, the Attorney General ilid not venture., As the Professor admits, "Nor is the ctVort to bring the case before the court a just subject of criticisin" (p. 774 11. M.), it is a pity that he does not tell us, whether or not, the persistent endeavors of the Administration to balk said effort is open to criticism. The action was begun the llith of Jan'y,l8'.l|, its entertainment by the court was violently opposed by ourothcials, and then, as_ a last resort, the hearing was staved off from April last till the October term ! Our present government is so sure of its right in the premises, that it plunged at once into the extremest measures; during several years of con- tention, its oHlcial representative and his champions find not the least diffi- culty in demonstrating, to their own satisfaction, the invincibility of our Government's position and action, but when it comes to an investigation before a judicial court, where only genuine documents, bona fide law, and real facts are considered ; then all this courage oozes out, and we — are not ready to proceed, but have the trial put ofl'six months ! It is very strange; and all the more so, when one considers the character of the Court, and the inevitable effect of its decision in our Government's favor. Of all conceivable courts of law, is there a more competent one, or one less likely to be biased against our Government.'' Would not its justifi- cation of the seizures at once unite our whole nation in enthusiastic support of the Administration in this matter? Is there any other tneans of securing that unanimous popular sentiment in support, the absence of which is ad- mitted, and the necessity of which is implied, by Mr. Phelps? What other explanation can there be, then, for this procrastination than this, that the conviction which Mr. Blaine and his champions tell us they have, is a mere sham, and that in reality they have a very difl'ercnt, and a very well grounded one? That instead of being convinced tha they are ab- solutely right, and consequently sure of a triumphant issue from the action . a at law, they urc convinced of the inrvital)ility of n hopclcRH ilcfent in tlial iu-tion, iind conNei|iu'ntly Niiro of tlic inevitability of nn iKnontinioiiH retreat in tilt' Caif of llir world? Tlie i'rofi'hKor'N "rehiikc" to lliosv Ainericnns who iiavi- written a>;ainxl liii- poliev ol tlie Adminihtrntion in this qtieNtion, in more in tlic nature oltlic olil expedient of altusinj^ your opponent's connNel when you have nothing else to ndvntue, than in tlif nature f)("an aii;utnent, let alone a con^iHtetlt arnutnent. His ex|ierience willi tliose wltom lie lias tried to cnli;(liten must have l)een ex- ceptionally unfortunate, if it makes him think it possible that readers, however uidearned, are in danjjiT of (irawint,' Ruch an inference as he imputes to them, namely: that because a writer ehar<,'eK that our (Jovernment has asserted somethini^ wronj,', concerninj,' o»e suhjeet, it has therefore become a settled "proposition in international law" "that whatever is asserted by our own gov- ernment is necessarily wronj,'" (p- 77:.' II. M.) Of course, we all ari,'ue from our own experience, even with regard to others. If the Professor's article under reply, is a fair specimen of his usual style of nrjjuinentation, it is no wonder that he has come to expect 'unlearned" readers to draw startliu); conclusions, and he will find, moreover, tiiat the learneil are just as apt to do so. From his chief ar;L{innent in this case, his theory of a projicrty ri^ht in wild animals, whatever the unlearned may think of it, the learned are sure to infer only, that the Professor bus forufotten. or has chosen to i),'nore, one of the most elementary axioms of international law. Kvery reader must be sorely pu/zlcd to see a general rule s(|uarelv admitted, and yet to hear that in a ^iven case, it is not the admissibility of an exception, but the applicability of the tjeneral rule which recpiires to be proved; to be assured that the sea is free to all (p. 7(18), and nevertheless to be told that if any one undertakes to avail himself of this, for catching seals there, "It is for those who set up such a rifjht to sustain it." (p. 771.) It does look as if this would strike most readers as a sophism pure and simple, the analogue in argumentation, to intentional "revoking" at whist. "If our government is demanding what is wrong, the demand should at once be abandoned." (p. 772 H. M.) Exactly! We, of the opposition, have convinced ourselves that our government's claitn in this matter is utterly wrong, and that in making it the ailministration is perpetrating even a great- er outrage upon the honor of our nation, than upon the rights of the rest of the world; we are therefore determined to do all we can to bring about the abandonment of the demand. We care very little for "diplomatic success," but a great deal for the good name of our country as an honest and fair deal- ing one! We refuse to connive at a diplomatic success, possible only at the cost of that good name, and we are quite confident that this is also the s:en- timent of the nation. It is not for the benefit of foreigners that we refute the wretched misstatements and absurd sophisms which the administration at- tempts to palm off for arguments, but to prevent our own people from being duped by them. The British Government has already refuted every one of Mr. Blaine's pleas, but these refutations are seen, or even heard of, by comparatively few Amer- icans. It is astonishing to find an ex-diploinatist assert that, in a diplomatic controversy over a question of pure law and documentary evidence, any gov- ernment could possibly gain any advantJige from suggestions in the press. i-lltwyis ' ••:"*v.- a IwipelfNH ilcfent in that of III) iunoiiiiniotiH retreat n have written a^uinttt the •re in the nature of the old 1 vol! huvi- nothing «'l»*e to ne a coMsistont arynmfnt. iyiUen niUHt have been ex- Kihle that readfru, however nee an h»' iniputcH to them, (ioveniment Ikih asHerted tlierelore become a Nettled N asserted by our own Kov- f course, we all ai i,'ue from If the ProfesKor'H article of ttrj^umentation, it i» no readers to d:aw startling arned are just as apt to do ory of a projierty right in of it, the learned are sure IS chosen to ignore, one of very reader must be sorely and yet to hear that in a )n, but the applicability of be assured that the sea is if any one undertakes to t is for those who set up :)k as if this would strike lalogue in argumentation, , the demand should at of the opposition, have n this matter is utterly •rpetrating even agreat- the rights of the rest of ve can to bring about the or "diplomatic success," an honest and fair deal- ess, possible only at the tiiat this is also the »cn- gncrs that we refute the I the administration at- own people from being one of Mr. Blaine's pleas, Dinparatively few Amer- ^ert that, in a diplomatic itary evidence, any gov- .iggestions in the press. n tl The writers of these derive all their knowledge in the premUeH from nuch fragnuMitary testimony as the government)) choose to publish, and Irom text- books, and vet the>e writers are "to give points" to the very n>en who have the national archives at their disposal, and whose life-busiiiemk it istoi>ecome and keep familiar with everything bearing on the case, down to iti tnlnutciit detail! Mr. I'helpH implies that as "not a word ban been uttered or printed in that country" — England — "uofaras is known, against the Canadian contention, or In support of that cf the United States" (p. 772.), this fact is due exclu- sively to patriotic reticence on the part of British writers! He has forgotten that Uritish history is full of instances of the exact contrary ol his assertion that "The suggestion that the government might be prejudiced in conducting the discussion silences at once the tongues and the pens of both parties," (p. 77;i), and he has forgotten that "Her Majesty's Opposition" in Parlia- ment and press, is just as much a recognised institution in ICngland as Her Majesty's (Jovernment. Nor are conspicuous examples of the sturdiest, most determined opposition of the same kind, by men of unimpeached pat- riotism ami acknowlcdgetl capacity, any rarer in our own history. The admission, (p. 772) that, very little has been published here in support of our pretension, or indicative of a sustaining public sentiment, whilst much "ability and learning" "have been ilevoted to answering the arguments, and dis|)roving the tacts upon which the government has relied," suggests the probability that the smallness of the number of the supporters of our preten- sion, may be due to the same cause as the "obstinacy" of which the one "reasonable" juryman complained in his eleven fellows. An endeavor to have a new precedent in international law established may be very praise- worthy, but the rules of that law having been once established by the general consent of tnankind (p. 7(ilOi they can be changeil, or even improved, only by the same general consent. Do all you can to obtain it, but remember tliat without it a single government's attempt to "establish a new precedent" is as futile, as the one juryman's attempt to dictate the verdict. Conviction, not force is the remedy. "A nation tiivided against itself can never achieve a diplomatic success" (p. 772), nor can the Yale law faculty, even if it should be almost unani- mously of Mr. I'help's opinion (of which there has been no evidence), for it contains at least one very pronounced opponent of our claim. Mr. T. S. Woolsey, Professor of International Law at the Yale Law School, since 1871), in his new edition, (the (1th) of his celebrated father's (T. D. Woolsey; treat- ise on that science, characterizes on p. 7.'?, our pretension in Bering Sea as being "as unwarranted as if England should warn fishermen of other nation- alities off the Newfoundland banks." It is hoped that the necessity of meeting with documentary disproof, all Mr. Phelp's allegations concerning facts, will be accepted as an excuse for the length of this paper. An examination will verify all my data, and will con- vince everyone, not excepting Mr. Phelps, that, in this respect, he has done grave injustice to his subject and to himself by his article. As regards the law governing the case, the points at issue between Mr. Phelps and his opponents are, by his own admission, narrowed c'own to two : Whether, in the legal sense, seals are wild animals or national property. '22 wlien found putside of territorial juristiiction : and, wlietlier a nation, profes- sing to accept, as binding apon itself, the rules of international law, (which admit of no exceptions in time of pr:ice),can legally deny the validity of any of these rules, and can claim an exception therefrom in its favor, on the mere plea of a prospective pecuniary loss, on the alleged inability otherwise to se- cure whatever such nation may consider its due share of an industry, in which the rule gives that nation only an undivided interest, to be exploited in common with all other nations. The question whether on these points Mr. Phelps has done justice either to the subject or to himself, is one which may safely be left to the decision of the reader. Robert Rayner. Salem, Mass., June, 1891. I . ' -Ml ' ■ ' iJiWifi:. nation, profes- al law, (which validity of any or, on the mere )therwise to se- m industry, in ;o be exploited e justice either the decision of F-RT RaYNER.