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Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper Inft 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., peuvant dtre filmds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est tilm6 A partir de I'angle sup^rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 UUl ^Ov^ ^ y .-1 •i THE BEHRING SEA QUESTION. BY.Z. A. LASH, Q. C. The Tribunal of Arbitration now sit- ting at Paris was appointed under the provisions of a treaty between Great Britain and the United States of Amer- ica, signed at Washington on the 29th of February, 1892. The treaty recites that Great Brit- ain aud the United States being desir- ous to provide for an atnicivble settle- ment of the questions which have arisen concerning the jurisdictional rights of the United States in the waters of Behring Sea, and concern- ing also the preservation of the fur seal on or habitually resorting to the said sea, and the rights of the citizens and subjects of either country, as re- gards the taking of fur seal in or hab- itually resorting to said waters, have I'esolved to submit to arbitration the questions involved ; and it then pro- vides that the questions shall be sub- mitted to a Tribunal of Arbitration to be composed of seven arbitrators, who shall be appointed in the following manner, viz., two by Her Britannic Majesty, two by the President of the United States, while the President of the French Republic shall be jointly re- quested to name one, the King of Italy shall be so requested to name one, and the King of Sweden and Norway shall be so requested to name one. The seven arbitrators to be so named .shall be jurists of distinguished reputation in their respective countries, and the selecting Towers shall be requested to choose, if possible, jurists who are ac- quainted with the Engli.sh language. The following five points have been submitted to the arbitrators, and their award is to embrace a distinct decision upon each of them, viz. : 1. What exclusive jurisdi tion in the sea now known as the Behring Sea, and what exclusive rights in the seal fish- eries therein, did Russia assert and ex- ercise prior and up to the time of the cession of Alaska to the United States ? 2. How far were these claims of jurisdiction, as to the seal fisheries, re- cognized and conceded by Great Brit- ain ? 3. Was the body of water now known as the Behring Sea included in the phrase " Pacific Ocean," as used in the treaty of 1825 between Great Brit- ain and Russia, and what rights, if any, in tiie Behring Sea were held and exclusively exercised by Russia after said treaty ? 4. Did not all the rights of Russia as to jurisdiction and as to the seal fish- eries in Behring Sea east of the water boundary, in the treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty ? 5. Has the United States any right, and if so, what right, of protection or property in the fur seals frequenting the islands of the United States in Behring Sea, when such seals are found outside the ordinary three mile limit ? Should the determination of the foregoing questions as to the exclusive jurisdiction of the United States leave the subject in such position that the concurrence of Great Britain is neces- sary to the establishment of regula- tions for the proper protection and preservation of the fur .seal in Behring Sea, the arbitrators are to determine what regulations outside the jurisdic- tional limits of the respective govern- ments are necessary, and over what waters such regulations should extend. Great Britain and the United States have agreed to co-operate in securing the adliesion of other Powers to such regulations, and they have engaged to consider the result of the proceedings PfiOVU^CiAL ARCHIVES Of BX '" pt. V't C l UWIA, Q^ Q'- 2 go THE CA NA DIA N MA GA ZINE. of the Tribunal of Arbitration as a "full, perfect and final settlement of all the questions referred to the ar- bitrators." In 188G, three Canadian schooners, while engaged in the capture of seals in the open sea out of sight of land, were seized by a United States rev- enue cutter for alleged contravention of United States laws, were taken to a port in Alaska, and were sul)sequently condemned by proceedings in the United States Court for that district. The captains and mates of the vessels were fined and imprisoned. Diplomatic correspondence imme- diately ensued ; the people of Canada were greatly excited, and as other seizures were made in subsequent years, it looked at one time as if there might be an outbreak between Great Britain and the United States. It is by no means clear that the seizures were in the first instance directly au- thorized by the United States Gov- ernment, but as they were made by United States revenue citters, that Government had to assume the re- sponsibility, and they have never offi- cially repudiated it. On the contrary, they have attempted to justify it on various grounds. They claimed that Behring Sea is marc, clausum, and as such is subject to the territorial juris- diction of the United States ; they claimed that Russia, of right, exercis- ed jurisdiction over it, and that by the transfer of Alaska to the United States this jurisdiction also passed. Later on they claimed that as the seals visited the islands belonging to the United States regularly every year, and raised their young there, they were to be regarded as the pro- perty of the United States wherever found, and that whatever was neces- sary for their protection in the open sea was justifiable. The claim that the sea was viare clausum does not appear to have been seriously insisted on. But it has never been formally abandoned. The claim as to Russia's juri.sdiction prior to the cession of Ala.ska has been stoutly maintained, and although the claim as to the pro- perty in the seals was not made till a late period, and although it is without precedent to sup])ort it — yet counsel for the United States s,>ent hours bo- fore the arbitrators in attempting to uphtild this claim. A glance at the map, and a state- ment of distances, should be sufficient to show the absurdity of the fiist con- tention. The distance from the most western island heloncring to the United States to the nearest point on the Asiatic shore is over 300 miles, and from the same island to the nearest Russian island it is over 180 miles. The sea from east to west measures 1 100 miles, and from north to south 800 miles. Behring Straits, which form a passage way to the Arctic Ocean, are 30 miles wide at the narrowest part. The sea is not wholly enclosed by the territory of any one nation, nor was it when Russia owned Alaska. The name is of comparatively recent origin. The waters now known as Behring Sea were rarely, if ever, called by that name in the earlier part of the cen- tury. They formed part of the Pacific Ocean or South Sea. Much more can be said in favor of the contention as to Russia's jurisdiction, but the evidence in support of it falls far short of the jur- isdiction now claimed by the United States, and in view of the attitude of that country towards Russia ia 1822, as explained below, the inconsist- ency of the present position needs no comment. In 1822, His Imperial Majesty, the autocrat of all the Rus- sias, for the avowed reason that " the trade of our subjects on the Aleutian Islands, and on the north-west coast of America appertaining unto Russia, is subject, because of secret and illicit traffic, to oppression and impedi- ments," issued an edict establishing regulations, which declared that " the pursuits of commerce, whaling, and fishing, and of all other industry on all islands, ports, gulfs, including the THE BE/iR/N(; SUA OUESriON. 291 iS22, whole of the north-west coast of America, beginning from Behrin.,' Scrait to the 5 1st degree of northern latitude, also from the Aleutian Is- lands to the eastern roast 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' northern latitude, are exclusively granted to Rus.sian subjects. '• It is therefore prohibited to all foreign vessels, not only to land on the coasts and islands belontrinji to Russia, as stated above, but also to ap- proach them within less than one hundred Italian miles. The trans- gressor's ve.s.sel is subject to confisca- tion alonof with the whole carnfo." When this regulation was brought to the notice of the Presiilent of the United States, his then Secretary of State, John Quincy Adams, addressed to the Ru.ssian Minister at Washing- ton, by direction of the President, a couniuinication stating that the Presi- dent had "seen with surprise in this edict the assertion of a territorial claim on the part of Russia," to the Territory referred to, and that " to exclude vessels of our citizens from the shore beyond the ordinary dis- tance to which the territorial jurisdic- tion extends, has exerted still greater surprise," and Mr. Adams asked for " explanations of the grounds of right, upon principles generally recognized by the laws and usages of nations, which can warrant the claims and regulations contained in it." The Russian Minister replied that the measure was exclusively directed against the culpable enterprises of foreign adventurers, who, not content with exercising upon the coasts re- ferred to an illicit trade prejudicial to the rights reserved to the Russian American Company, took upon tliem- selves to furnish arms and ammuni- tion to the natives in the Russian po.ese8sions, exciting them to revolt. The Minister alluded to the extent of the Russian pos.^essions in the Pacific Ocean, and added, " the extent of sea ibo549 of which these po.ssessions form the limits, comprehends all the conditions which are ordinarily attached to shut seas {ra^vH fermees) and the Russian Government might consequently jiidf between five and six months. During this time they have rookeries on the Islands of St. Paul and St. George, which consti- tute the Pribyloff group and belong to the United States, and on the Com- mander Islands, which belong to Rus- sia. By far the larger number resort to the Pribylotf group. The rest of the year they are sup|)osed to spend in the open sea .south of the Aleutian Islands. The migration northward, is made through numerous pas.ses in the long chain of the Aleutian Islands, above which the courses of their travel con- verge chiefly to the PiibylofT group. The females generally give birth to their young within two weeks after reaching thj rookeries, and soon after they resort to the sea for the food which the}' require to enable them propei'ly to suckle their young. The 294 THE CANADIAN MAGAZINE. male seals, or bulls, as they are com- monly called, require little food while on the islands, where (they remain watching the rookeries and sustaining existence on the large amount of blub- ber which is secreted beneath the skin, and which becomes gradually absorbed durinjj the Hve or six months. The greater number of seals found in the water during the summer and early fall are females in search of food, but it is impossible there to distinguish females from males. When shot and killed in the water, a seal generally sinks almost immedi- ately, and great skill and quickness are required on the part of the hunter to reach, with his boat or canoe, the place where the animal was, in time to recover it ere it has sunk too deep. Those who have seen seal shooting on the Lower St. Lawrence will appreci- ate the difficulty, and will readily be- lieve that large numbers of the ani- mals killed in Behring Sea are lost. One of the special agents of the Trejus- ury Department, in a report to the Sec- retary of the Treasury at Washington, states his conviction that not more than one seal in ten killed or mortally wounded in the water is landed on the boats and skinned, and he thus esti- mates that to get the 30,000 skins which were taken in this way in 1887, 300,003 seals were killed. It is 'iifficult to believe that such an estimate is reliable. Mr. Bayard, writing to Mr. Phelps, in February, 1888, says that some authorities state that not more than one out of three of seals so slaughtered is ever secured, and he adds, "this may, howe'.er, be an over estimate of the number lost." Whatever the true proport'o i may be, it is evident that if indiscriminate de- struction of seals in the water by fire- arms or other similar means be permit- ted, the result may ultimately be dis- astrous to the enterprise, and, in any event, large numbers must be slaught- ered which are lost entirely, and large numbers of females, some bearing young, must also be killed. In the letter already referred to, Mr. Phelps refers to the result in other parts of the world, where, in the ab-seiice of concerted action amon;; the nations for its preservation, the fur seal industry has cea.sed, e.g., among the Kouth I'Acific Islands and on the coasts of Ciilii and South Africa, the Falkland Islands and adjacent seas. In former years hundreds of thousands of skins were obtained yearly at these places ; but, in 1880, according to the best statistics, less than ],.tOO .skins were taken at the Falkland Islands, and, in 1888, out of an estimated ag- gregate yield of 185,000 skins from all parts of the globe, over 130,000, or more than two-thirds, were obtained from the rookeries on the American and Russian Islands in Behring Sea. An estimate has been made of the numbers of breeding seals on the Pribyloff Islands in 188G and 1887. The sea margin of the various rooker- ies was measured, and the depth inland from the sea. The number of scjuare feet was thus a.scertained, and, allow- ing one seal for every two square feet, the result was the astounding number of over six millions breeding seals. This does not include the young male seals, which are not allowed by the old bulls to frequent the rookeries, and which are compelled to "haul out" on other parts of the islands ; so that the actual number, if the above estimate be at all reliable, must far exceed six millions. Two square feet to a seal certainly seems a very small allowance; but, whatever the proper space may be, it is evident that under any circum- stances the numbers frequenting these islands during the summer months must run up well into the millions. Mr. A. Howard Clark, in response to a request made by the United States Treasury Department, pre|)ared a mem- orandum as to the fur seal fisheries of the world in 1887. In it he says: — " A few men are still living who par- ticipated in the Antarctic seal fisher- ies years ago. Their stories of the former abundance of fur seals 1 have THE BEHRING SEA QUESTION. 295 obtained in personal interviews. As to the manner of destruction, there is but one thing to say : an indiscriminate slaughter of old and young, male and female, in a few years results in the breaking up of the largest rookeries, and, as in the case of Massafuera and the Falkland Islands, the injury seems to be a permanent one. As an in- stance, the South Hhetlands were first visited in 1819 when fur seals were very abundant, two vessels in a short time securing full fares. In 18?,(), thirty vessels hastened to the islands and in a few weeks obtained upwards of 250,000 skins, while thousands of seals were killed and lost. In 1821 and 1822, Weddell says, '320,000 skins were taken. . . . The system of extermination was practised, . . for whenever a seal reached the beach, of whatever denomination, he was in- stantly killed and his skin taken ; and by this means, at the end of the second year, the animals became nearly ex- tinct. The young, having lost their mothers when only three or four days old, of course died, which at the low- est calculation exceeded 100,000.' In subsequent years, till 1845, these islands were occasionally visited by vessels in search of seal skins, but never after 1822 were many animals found there. About 1845, the Ant- arctic fur sealing was abandoned." Mr. Henry W. Elliott, writing from the Smitiisonian Institution to Mr. Bayard, uses the following vigorous words: " Open these waters of Kehring Sea to unchecked pelagic sealing, then a Heet of hundreds of vessels, steam- ers, ships, schooners and what not, would immediately venture into them, bent upon the most vigorous and indis- criminate slaughter of these animals. A few seasons there of the greediest ra- pine, then nothing left of those wond- erful and valuable interests of the public, which are now so handsomly embodied on the seal islands." The old bulls drive away the young males from the rookeries and they are compelled to " haul out " on other parts of the Islands. They are driven inland by the hunters and killed by clubbing when a convenient distance from the salting houses. Experience has shown that the fur of a seal is most valuable when the animal is three years old, the proportions being, at present prices, that a two year old seal is worth $15 orSlO, a three year oldiSlG to S 11), a four year old !?1G, and a five year old only S2.50. When killing the seals on land, care is taken to select as many as possible within the ages of two and four. The seals walk as if on four legs, raising their bodies from the ground as they move. Under favorable conditions they travel about a mile and a half an hour : the longest drive made does not exceed eight miles. According to the report of Committee of Congress in 1889, the total amount paid by the Alaska Com- mercial Company under their contract with the government up to June 30. 1888, was 85,597,100 The total amount received from customs' duties on Alaska dressed seal skins imported from England (where the raw skins are for the most part sent to be dressed) was 3,42G,O0C To which should be added the customs' duties on seal skins taken by the Company on islands be- longing to Russia 502,000 Grand total . 89,525,100 The amount paid by the United Slates to Russia in 18G7 for Alaska was... 87,200,000 The total amount expended up to June, 1888, for sal- aries, travelling expenses of agents of the Treasury Department in Alaska, was about 250,000 ^KOVINCIU ARCMIVES OP B. G, 296 THE CANADIAN MAGAZINE. And for tho expenses of the revenue cutters cruising in Alaskan waters about 150.000 Total !?7,C()(),000 Deduct this from the $!),52.i,100 and the handsotno surplus of Si,92.>, 100 remains. The $250,000 and « 1 50,- 000 above mentioned seem to include all expenditure by the Government in connection with Alaska from 1807 to 1388. The receipts have been almost entirely directly connected with the seal industry. No wonder that a vigorous effort should be made to prevent any course which might threaten the destruction of this industry. A difficulty in the way of a joint arrangement among the nations inter- esterl for the preservation of the seal tishei.v.o, is doubtless the fiict that the nations owning the .seal islands have so great an advantage. Those who have to seek the seals in open sea can- not readily distinguish males from females, or old from young, and can- not fail to kill, if fire-arms bo used, large numbers which are entirely lost. Moreover, it is comparatively easy to check the take of those who kill on land, but not so easy to watch or check the work of a sealing vessel. Let us hope that some way out of the difficulties may be found, and that the great object in view may not be .sacr 'i" ' ibyany narrow-minded, short- sighted or selfish considerations v^n the part of any. Toronto, May, 1893. P