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Un des symboles suivants apparaitra sur la darniire image de cheque microfiche, selon le cas: le symbols — »• signifie "A SUIVRE ". le symbols V signifie "FIN". 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 left hand corner, left to right and :op to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmAs A des taux de reduction diffirents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA, il est filmA i partir de Tangle supArieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nAcessaira. Les diagrammas suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 Parliamentary Papers. REPORTS, RETURNS. AND OTHER PAPERS. PRINTED BY THE HOUSES OF PARLIAMENT OF GREAT BRITAIN AND IRELAND. VOLUME 4- Behring Sea Arbitration, United States Case. ARRANC.KI) AN1» HOUND IIY P. S. KING & SON, PARLIAMENTARY BOOKSELLERS AND BOOKBINDERS, WESTMINSTER, LONDON, S.W. Ulu V.4 CONTEJ^TS . ^4.«^ The Case of the United States, hSo The Counter Case of the United States, kisi The Argument of the United States. 28; V8 UNITED STATES. No. 6 (1893). BEHRING SEA ARBITRATION. THE 0-A.SB Of The United States BBFORS THR TRIBUNAL OF ARBITRATION CONVENED AT PARIS UNDER THE PROVISIONS OF THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN, CONCLUDED FEBRUARY 29, 1892. INCLUDING THE REPORTS OF THE BERING SEA COMMISSION. Presented to both Houses of Parliament by Command of Her Majesty. March 1893. LONDON: PRINTED FOR HER MAJESTY'S STATIONERY OFFICE BY HARRISON AND SONS, ST. MARTIN'S LANE, FKINTEKS IV OHDINARX TO UER MAJE9TT. And to be purchased, eithor directly or througli any Bookseller, from EYKE AND 8POTTI8WOODE, East IIaudino Stbbet, Fleet Stubbt, E.C., and 32, Abinovon Sthebt, Westminstbu, B.W. ; oh JOHN MENZIES & Co., 12, Hanover Street, Edinhurou; and 90, WEB'f Nile Street, Glaboow; or HODGES, FIGGIS, Sc Co., Limited, 104, Grafton Street, Dublin. (a*»4«l TABLE OF CONTENTS. INTB0DT70TI0N. Tbkaty op ARniTHATioy OF 18y2: First flvo articles QiinBlions siibniitted.,.. Regulation* for protection of seals .... Question of fact niaj bo submitted ,Vf«/i(» rimirfi of 1902 Question of daniagei Printed Case of the United Slates Division of Cuso FurtLer provision of treaty Joint Commission to inTciS : PagP. Locution . . .... 15 Uroiip consist* of four Ulaiidii .... 16 St. Paul Island 16 St. Oeorgo Isbnd 17 Oftorlslanu 17 Walrus Island IH .Absence of harbors 18 C'linmte 18 Animal lifo 19 Inhabitants 20 Vegetation 20 DlSCOTBRT AND OCCUPATION' OF TDK HHOBES AND I8LANDS OF BeHINU SEA : Bering's first expedition 20 Bering's second expedition ... 21 Resources uf Commander Iclandxinnde known .. 22 Discovery of Pribiloflslunils; due to search for fur^ 23 Cook's expedition to Boring Sea 24 Subsequent Russian expeditions 24 .Shores and islandc became RuBsi..n territory as earl>' as I HUO 25 Claims to the Noktiiwest Coast of Ambrica : Early eonipetition for possession of coast of America 2(J R\i! But it )nu8t practically ])rohibit 376 Other remedies of no avail 376-377 Prof. AV. H. Flower 377 Progress of extermination 377-378 Raids on the rookeries 378 Comparison of raids and pelagic sealing .... .... 37H Recommendation as to management of islands ....378-370 Summai\i/ .... .... 370 Conclusions 370 Seals have decreased 370 Decrease caused by pelagic sealing 370 Suppress pelagic sealing 380 Appendix A : Seals xiiik when killed in water.... .... ... .... 381 ITair-seal-s 381 Fnr-scals 381-382 Hair-seals 382 Antarctic fur-seals .... .... 382 Hair-seals 382-383 Reason seals sink 383 Appendix B : Date* of arrirah of fur-neal at Pribilof Islaiida 1672-18QI 385 First arrival of bulls, cows, and pups at St. Paul Island, Bering Sea, 1872-1891, inclusive (from the official record) 385 First arrival of bulls, cows, and pups at St. George Island, Bering Sea, 1871-1891, inclusive (from the official record) 380 I; COKTKNTS. XVII Ai-rftviii.v 0; l»og(j. yiiiiHi/ nealii are Lorn on land or ice/ do not mwlM aljlnt, and can uol uurte in the ii-a/er 387 All scnls liorn on Iniid or ico 387 Nursing ini)i()»Hil)Io in wntor 387 Younj; souIh ilrond tlio wiilcr 387-389 ArPKNWX J) : yaliiral cni'inicK !Utl Tho kilU-r-wluili) 3»1 M'PKNDIX E : Fuod „flhefiir->ie' "[^ '''''"'■ Britain entered into a Treaty on February 29, 1892, " to provide for an amicable seUlement of the questions which have arisen between their respective Governments concerning tlie jurisdic- tional rights of the United Stai js in the waters of Behring's Sea, and concerning also the preserva- tion of the fur-seal in, or habitually resorting to, the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur-seal in, or habitually resorting to, the said waters " ; and they resolved, by the Treaty, "'to submit to arbitration the questions involved." The first five articles of the Treaty, which is Fiiv4 five ariicicn. published in full in the Appendix,^ relate to the organization of the Tribunal of Arbitration and to the preparation and presentation to the Tribunal of tiie Cases of the respective Governments. The iirticles which embrace a statement of the ques- iions submitted to arbitration are as follows: A'^ol. I, p. 1. [3151 B 2 INIRODI'CTIOK, AUTICLE VI. QucBtions sub mittcd. i| fl: " 111 deciding the matters submitted to tlie Arbitrators, it is agreed that the following five points shilll be submitted to them, in order that their award shall embrace a distinct decision upon each of said live points, to wit : " 1. What exclusive jurisdiction in the sea now known as the Behring's Sea, and what exclusive rights in the seal fisheries therein, did Eussia assert and exercise prior and up to the time of the cession of Alaska to the United States ? " 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain ? " 3. Was the body of water now known as the Behring's Sea included in the phrase ' Pacific Ocean' as used in the Treaty of 1825 between (ireat Britain and Russia ; and what rights, if any, in the ]3ehring's Sea were held and exclusively exercised by Eussia after said Treaty ? " 4. Did not all the rights of Eussia as to juris- . diction, and as to the seal fisheries in Behring's Sea east of the water boundary in the Treaty between the United States and Eussia of the 30th March, 18G7, pass unimpaired to the United States under that Treaty ? • "'5. Has the United States an v richt. and if I i IM'RODUCIION. 3 so, what viiAil of protection or proi)ertv iii the v,(ioiis sub- iur-seals frG({ueutiiig the ishiuds of the United States in Behring's ^"?i when such seals are found outside the ordinary three-mile limit? " xVrticlk VII. " If the determination of the foregoing; (|ues- Rcpuiations for *" _ protection of seals, tions as to the exclusive jurisdiction of the United States shall leave the subject in such a position that the concurrence of Great Britain is neces- sary to the establishment of Regulations for the proper protection and preservation of the fur- seal in, or habitually resorting to, the Behring's Sea, the Arbitrators shall then determine what concurrent Eegulations outside the jurisdictional limits of the respective Governments are neces- sary, and over what waters such Eegulations should extend ; and to aid them in that deter- mination the report of a Joint Commission to be appointed by the respective Governments shall be laid before them, with such other evidence as either Government may submit. " The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other Powers to such Eeijfulations." ,fl Ik- fT*" INTRODUCTION. M Article VIII. It I Question of fact " The Higli Contracting Parties having found ni ly hii submitted. themselves unable to agree upon a reference which shall include the question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it ; and being solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions, do agree that either may submit to the Arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation." Modus Vivendi oi On April 18, 1892, the Governments of the United States and Great Britain celebrated an- other Treaty, known as the ]\fodus Vivendi^ whereby it was agreed that during the pendency of the Arbitration the British Government would prohibit its subjects from seal killing in the east- ern part of Bering Sea, and that the United States would limit seal killing on tlie Pribilof Islands to seven thousand five hundred seals ; and in Article V of the Modus Vivendi the followincc ' Vol. I, p. 6. 1892 INTRODUCTION. question of damages was submitted to the Arbi- trators : Article V. " If the result of the Arbitration be to affirm Question of tiam- the right of British sealers to take seals in Behring Sea within the bounds claimed by the United States, under its purchase from Eussia, then compensation sliall be made oy the United States to Great Britain for the use of her subjects) for abstaining from the exercise of that right during the pendency of the Arbitration upon the basis of such a regulated and limited catch or catches as in the opinion of the Arbitrators might have been taken without an undue diminution of the seal herds ; and, on the other hand, if the result of the Arbitration shall be to deny the right of British sealers to take seals within the said waters, then compensation shall be made by Great Britain to the U lited States (for itself, its citizens and lessees) for this agreement to limit the island catch to seven thousand five hundred a season, upon the basis of the diilerence between this number and such larger catch as in the opinion of the Arbitrators might have been taken witlrout an undue diminution of the seal herds. " The amount awarded, if any, in either case 6 INTRODUCTION. shall be such as under all tlie circumstances is just and equitable, and sliall be promptly paid." Printed foso Uiiitucl States. of In accordance with the provisions of Article III of the Treaty of February 29, 1892, the Government of the United States has the honor to submit to the Arbitrators, duly appointed in virtue of Article I thereof, this Printed Case of the United States, accompanied by the docu- ments, the oOScial correspondence, and the other evidence on which it relies. " Divisiun of Case. The body of the Case is divided into two parts. The first part embraces a consideration of the first four questions co:.tained in Article VI of the Treaty, and is introduced by a brief geographical and historical review of Bering Sea and its adjoining coasts and islands. The second part relates mainly to the fifth question in Article VI and to Article VII, and involves a consideration of the right of protection and property in the fur-seals frequenting the Pribilof Islands, when outside the ordinary three-mile limit. These topics will require a somewhat detailed niquiry into the seal li' j and industr}'. There will follow a brief consideration of the question of damages submitted to the Tribunal of Arbitration. IXTRODrCTIOX. • Furtlier provision was iiuule in tlie TreuU' ol" ■',;;"''"■'• i"-^vi^ioa February 21), I8i)2, as follows: AUTICLK IX. '' The Hi'fli Contractiiiir Parties have a^rreed J'J'"' <'>i">uission •-' ° '^ to iiivesUgiito seal to appoint two Commissioners on the part of each ^'^^'^■ Government to make the joint investigation and report contemplated in the preceding Article VII, and to include the terras of the said agreement in the present Convention, to the end that the joint and several reports and recommendations of said Commissioners may be in due form submitted to the Arbitrators, should the contingency therefor arise, the said agreement is accordingly herein included, as follows : " Each Government shall appoint two Com- missioners to investigate conjointly with the Commissioners of the other Government all the facts having relation to seal life in Behring's Sea, and the measures necessary for its proper pro- tection and preservation. " " The four Commissioners shall, so far as they may be able to agree, make a joint report to each of the two Governments, and they shall also report, eitlusr jointly or severally, to each Government on any points upon which they may be unable to agree. "These reports shall not be made public until 8 Ecports of Ccm- niissioncrs. Appcntlis. IJ INTRODUCTION. they shall be submitted to the Arbitrators, or it shall appear that the contingency of their being used by the Arbitrators can not arise." The four Commissioners named by the two Governments have united in a joint report upon certain points under consideration by them ; and, having failed to agree upon other points consid- ered by them in their joint conferences, the two Commissioners on the part of the United States have united in a separate report to their own Government. The joint and separate reports are appended hereto for the information and con- sideration of the Tribunal of Arbitration. The documents, official correspondence, and other evidence submitted with this Printed Case will be found contained in two printed Volumes and a portfolio of maps and charts, constituting together the Appendix. The Volumes will be referred to in the Case thus : " Vol. I, p. 1," and the maps and charts will be indicated by the numbers marked on them. The lithographic illustrations will be referred to by the pages of the Appendix which precede them. The Government of the United States under- stands, hov/ever, that, under the terms of the Treaty, it may hereafter present " additional doc- uments, correspondence, and evidence," and it reserves the right to do so. it 't3 NO on id, id- wo tes wn >rls oil- PART FIRST. [llld 'ase nies iiig be 1," the )hic s of RELATING TO HISTORICAL AND JURIS- DICTIONAL QUESTIONS. ier- the loc- a it I 'l\ II PART FIRST. RELATING TO HISTORICAL AND JURIS- DICTIONAL QUESTIONS. OEOaBAPHICAL SKETCH OF BERING SEA. Bering Sea is the body of water lying between Location, boumi- aries niul ilinicnsioiis. the Arctic Ocean and tlie North Pacific Ocean. It is connected with the former by Bering'Strait, and with the latter chiefly by the opening which is found between the westernmost of the Aleutian Islands and the peninsula of Kamchatka. It is sometimes referred to and treated as a great land- locked sea.^ Generally speaking, it may be regarded as a triangle, with the vertex in Bering Strait and bounded on the east by the mainland of Alaska, on the north and west by Siberia and the peninsula of Kamchatka, while its southerly boundary is formed by the peninsula of Alaska and the line of the Aleutian Islands extended to Kamchatka. It has an area of about 873,128 square miles.- ' Fimllay's North Pacific Directory, 2(1 cd., London, 1870, p. 517. - Unless otlicrwiso stated, all measurements are given in Eng- lish statute miles, of which there arc C9i to a degree. 12 SKKTCH OK niCRING SKA. ' I' The distance from Bering Strait to the southern boundary of the Aleutian Chain is about 1,078 miles, and its greatest width from east to west about 1,437 miles. Bering stmit. To the uorth is Bering Strait, fifty-eight miles in width, but in its narrowest portion are situated the two Diomede Islands. The shores of either side of the strait are steep and rocky, of Bering sea!'"'^"''" ^lie castcm bouudaiy of the sea begins in a lofty hill at Cape Prince of Wales, the western limit of the continent of America and the eastern limit of Bering Strait. From Cape Prince of Wales the American coast stretches to the south- ward in a line broken mainly by the deep inlets of Norton Sound and Bristol Bay, between which are Cape Eoraanzof, Kuskoquim Bay, and Cape Newenham. The coast is generally low and marshy, no hills of any considerable size being visible. South of Bristol Bay it shoots out in a southwesterly direction into the long, narrow peninsula of Alaska, reaching westward almost to the longitude of Cape Prince of Wales. The chief rivers entering Bering Sea along this boundarv are the Yukon and the Kuskokuim. Northern nnd The northern and western boundary is in western boundary. marked contrast with the eastern. It is rugged throughout, the mountains growing higher and SKKTCII Ol" IlKRIN'O SKA. 18 bound- iiinsula uf higher as the chain, which eventually forms the backbone of the peninsula, extends south. The shore has several indentations, the chief one of whichistheGulf of Anadvr, into which flows the Anadyr Eiver. The peninsula of Alaska, forming a part of Sonthom the southern boundary of Bering Sea, is four AUka. hundred and fifty-six miles long and about fifty miles wide, and consists of a more or less level tract interrupted by single mountain peaks or clusters of peaks. Between these peaks, especially toward the western extremity, are low-lying, marshy gaps, which form portages, used by the natives for carrying their boats across from the Pacific Ocean to Bristol Bay.^ The chain of the Aleutian Islands, completing Southern bound- p -n • n • p'"'y- Aleutian la- the southern boundarv of Berinj; Sea, consists of lands. about forty principal islands and a considerable number of islets and rocks. From the peninsula of Alaska these islands sweep in a curve, convex toward the south, to the southward and west- ward for one thousand and seventy-Lliree miles to the island of Attu, and thence north and west two hundred and five miles to the Com- mander Islands, which are regarded by some ' Reclus, NouvoUo Odograpliio universelle, 17 volumes, Paria, 1875-IS91, Vol. XV, p. 201. 14 MKKTt'II or lll'IMNd SKA. Ill' laiulH. ' v. AliMitimi 1h. o o 1 1 From the ('oniiuaiulcr Islands to the Asiatic coast the distance is one Imndrcd and ten miles. The largest of the Aleutian Islands are TTni- mak, Unalaska, and Unuiak, the two former being about seventy-five miles long. The straits or passes separating the islands are of various Avidths, those in the easterly half being gener- ally narrow and but few of them available for navigation. The most important are I'nimak Pass, eleven miles wide, and Amukta or " Seventy-two " I'ass, forty-two miles wide. The entire chain is of volcanic origin, and lofty peaks rise from most of the islands. Some Alaskan or Aleutian crater is almost constantly in activity. More than thirty mountains have at various times been reported active, and new islands have been thrown up by volcanic action since the discovery of the region by the Russians." The chief islands Iving within Bering- Sea are the following : St. Lawrence, St. Matthew, Nunivak, Kantginski, and the Pribilof Islands. Larpo portion A peculiar feature of Bering Sea is the exten- vcry shnlhnv. . , i . t i • i i m ,• sive bank ol soundnigs wlucli stretches on lor two hundred and fifty or more miles from the Islands in Bering Sea. ' Vivion dc Snint-Martin, Nouveau Dictionnuire do Guograpliie uniTora-Uo, I'uris, 1871I, Vol. I, p. -tlG ; EncjcloiHudia of Gcogriipliv, revised ed., I'liiliulelphia, 1838, Vol. Ill, p. 311. = Rceliis, Vol. XV, p. 202 j North Piie. Dir., p. IDS c/ -wy. SKETCH OF THE PRIBILOF ISLANDS. IS :o portion allow. American coast, reiulering the easterly portion Larm Tcry 8UI of the sea very shallow.' The charts show that throughout one-third of the sea the depth of the water does not, generally, exceed fifty fathoms, and they also show that the average depth of the whole sea is very considerably less than that of the adjoining ocean." The sliores of Bering Sea are but thinly popu- Population, toric . totion and commer. lated, tiie native inhabitants oi those now belong- ciai products, ing to the United States being Esquimos and Aleuts. "^ The vegetation of the coasts adjacent to Bering Sea consists mainly of rank grasses and (in the more southern parts) of alder and willow. There are no agricultural products, though the interior valleys display considerable richness of vegetation.* The chief commercial products of the sea and its coasts are fur-bearing animals and codfish. GEOGBAFHICAL SKETCH OF THE FBIBILOF ISLANDS. The group of islands known as the Pribilof Location. Islands is situated in the shallow part of Bering ' See Xorth Pacific Dir., pp. 517, 5G7. - See alec Wallace's Island Life, New York, 1881, p. 295, map. •' Rccliis, Vol. XV, p. 225, ■* North Pacific Dir., p. 510 j Encycl. of Geog., Vol. Ill, p. 344 ; Wappiiup, llaiidbueh der allgemcinen Qeographie und Slatistik, Leipzig, 1855, Vol. I, part I, p. 298. [315J !| III 16 Location. Group consists of joiiv islnnds. Sl.PaulIsliind. SKETCH OF THE TRIBILOF ISLANDS. Sea, in about latitude 57^ N. and longitude 170^' W. It is of volcanic origin^ and far removed from other land, the nearest adjacent points being Unalaska Island, at a distance of two hundred and fourteen miles to the southward ; Cape Newenham, upon the mainland of Alaska, distant three hundred and nine miles in an easterly direction ; and St. Matthew Island, distant two hundred and twenty miles to the northward. The group consists, in the order of their mag- nitude, of St. Paul, St. George, Otter, and Walrus Islands. The first two are separated by forty miles of water. The last two are within six miles of St. Paul. The largest of these islands is St. Paul, situate in latitude 57° 10' N". and longitude 170° 20' W. It is from northeast to southwest thirteen miles long, with a maximum width of six miles. Its area is abou<" forty-two square miles ; its shore line forty-two miles. The highest hill attains an altitude of six hundred andthirtv-three feet; three others exceed five hundred feet in heiixht. The island comprises rocky uplands, rugged hills, and broad valleys, alternating with extensive bogs of moss and heather, some of which contain fresh-water ponds. Considerable stretches of Reclus, Vol. XV, p.205. ski:ti'ii of the pribilof islands. 17. sandv beach border some of the bays, but most at. raui isiami. of the shores are rocky. The photographs sub- mitted with this Case will enable the Tribunal to form a conception of the ruggedness of the shores and of the irregularity and confusion of the lava blocks that cover them. The average height of the upland is not over one hundred and fifty feet, but three small peaks, one of which in particular has the appearance of a crater, attain a height of nearly six hundred feet. i\.bout forty miles to the southeast of St. Paul lies St. Georgo island, St. George, in latitude 5G° 35' N. and longitude 169° 30' W. Its length is ten miles, while its great- est width is about four and a half miles. It has an area of thirty-four square miles, and a coast line of thirty miles. On St, George the coast rises precipitously from the sea, and is, for the most part, a succession of cliffs, with not more tliau six. or eight miles of low-lying shores and not over a mileof sandy beach, whereas large .itretc^lies of the shores of St. Paul are of the latter charac- ter St. George contains two hills, more than nhie hundred feet in height, and united by mod- eratelv high £-round. Its general altitude is a])0ut three times that of St Paul. Otter Island lies six miles south of St. Paul, ottor island. It is the only one of the group upon which are found evidences of recent volcanic action. It is [315J c 2 I (llf ; : i 18 otter Islnnil. Walrus Island. Absence of har- bors. Climate. .SKETCH OF THE PEIBILOF ISLANDS. about three-fourths of a mile long and half as broad. Its north shore is low, with a broken, rocky beach ; elsewhere its coast is marked by steep cliffs, which attain a maximum height of three hundred feet. Walrus Island lies seven miles east of St. Paul. It is a narrow ledge of lava about half a mile long, and so low that in stormy weather it is washed over by the waves. There are no harbors at any of these isiL^Tidp^ though both at St. Paul and St. George ■ anchorage for small vessels in moderately calm weather. During the prevalence, however, of winds from certain directions it is impossible to load or unload vessels of any kind in safety. Eocks or reefs are found in the neighbourhood of both these islands. There are, really, but two seasons upon the Pribilof Islands. Summer may be said to begin in he latter part of April, and winter in Novem- ber, the change from the one to the other being very rapid. Throughout the summer the climate is humid and disagreeable. Dense fogs prevail and hang in heavy banks over the islands, the atmosphere is rarely clear, and the sun is seldom seen. So dense is the fog that navigation in their vicinity is rendered extremely hazard- ous, and it is often Inipossible for navigators to M SKETCH OF THE PRIBILOF ISLANDS. 19 find them. Indeed, it is probable that their dis- Climate. cover}' was retarded on account of the preval- ence of fog.' The summer temperature ranges between 40*^ and 45° F., and is highest in August. By the end of October cold winds sweep across the islands, carrying away the moisture. These winds continue throughout a large part of the winter, rendering the climate during that time most disagreeabit. The winter temperature averages between 22° and 26° F. The sur- rounding sea generally freezes over in winter, and the ice remains until the latter part of April, when it rapidly disappears. The shallowness of the eastern portion of Bering Sea prevents any icebergs from reaching the Pribilof Islands. Further details respecting their climatic condi- tion will be given later in the Case, when the habits of the fur-seals are discussed. Tlie principal mammals inhabiting the islands Animal life, are fur seals, sea-lions, and hair-seals. Formerly sea-otters and walruses were found there in abundance, but owing to indiscriminate hunting they have been exterminated. Blue foxes are common on both islands and lemmings on Si. ' These conditions are not conCned to ^he Pribilof Islands, but prcvftil throughout i. groat part of Bering Sea. They are matter of common knowledge. See Beochy's Narrative of a Voyage to the Pacific Ocean and Bering Straits, London, 1831, Vol. T, p. 241 ; North Pac. Dir., p. 534; Wappaus, p. 298. 20 Tuliabitant)'. Yogetation. DISCOVERIES ABOUT BERING SEA. George. Myriads of birds breed upon the higb, rocky cliffs of the islands. The group was uninhabited when first dis- covered, but was soon colonized bv the intro- duction of natives from Unaiaska and other islands of the Aleutian Chain. In 1890 the popu- lation of St. Paul was two hundred and forty- four souls, of which twenty-two were white ; on St. George there were ninety-three souls, of which eight were white ; making the total population of the group three hundred and thirty-seven. Seal meat is the staple food of the natives to-day. The vegetation resembles that of the Aleutian Islands, in that no trees are found. It consists of numerous species of grasses of an intensely green color, and of many kinds of wild flowers, which grow in abundance. Bering's first cs- pcclition. DISCOVERT AND OCOTTFATION OF THE SHORES AND ISLANDS OF BERING SEA. The exploration of Bering Sea and of the coasts and islands of America which surround it fol- lowed upon, and was the direct result of, the oc- cupation^ of Eastern Siberia and the peninsula of • Voyage to the Puciflc Ocean under the direction of Capt. Cook and others, London, 1784, Vol. Ill, pp. 359-383; Coxc's Russian Discoveries between Asia ond America, London, 1801, p. 317 et seq. ; Miiller, Voyages from Asia to America, translated by Jeffries, London, 1764, 2d cd., pp. 1-44. DISCOVERIES ABOUT BEKINO SEA. lES AND Kamchatka by the Eussians in the seventeenth Bering's lirst .-x- *' peditiou. century. As early as 1G48 a Russian ship is re- ported to have sailed from the Arctic Ocean throujih Berinj? Strut to Kamchatka' : but not until the reign of Peter the Great was any organized efibrt made to explore the unknown regions of this sea. The execution of his plans, owing to his death, devolved upon his succef?sor, Empress Catherine. The first expedition, under Vitus Bering, sailed from Kamchatka in 1728 in a northeasterlv direction. After discovering St. Lawrence Island it passed through the strait which has since been known by the name of the great navigator.- Another part of this expedition reached the continent of America in about lati- tude 65°, in the vicinity of the mouth of the Yukon River.2 In 1741 Bering started out on his second Bering's second ex- expedition. It consisted of two parts, both of which discovered the continent of America. Upon his homeward voyage Bering landed at the Shumagin Islands, sighted a large number of the Aleutian Islands, and was finally shipwrecked peditiou. > Sec map in Miillcr's Voyages ; Cook, Vol. Ill, p. 361 ; Burney's History of Xortheastern Voynges of Discovery and of the Early Eastern Navigations of the Eussians, London, 1819, p. 60 tt seq. * MiUlor. p. 48. The name was conferred by Cook in 1778 : Green- Low's -Memoir on the North west const of America, Senate Doc. No. 174p, Twcnty-sisth Congress, first session, p. 82. ' Miiller, p. 55, and map (frontispiece) ; Burney, p. 130. DISCOVERIES ABOUT BERINa SEA. on the Commander Islands. He died upon the one which was subsequently named for him.^ Eesources of Com- This last expedition made known the valuable niandor IslandB made ^ known. fur resources of the Commander Islands, and brought back to Siberia large quantities of the skins of sea-otters, fur-seals, and foxes. This led to the organization of many private expe- ditions, and one adventurer, Bossof, is reported to have gathered on these islands furs to the value of at least one-half million dollars between the years 1743 and 1749.^ The voyages at this period were numerous and indicate great activity throughout the Aleutian Chain, island after island being discovered by private Russian adventurers.^ Discovery and subjugation to Russian rule went hand in hand with trade, the rich merchants of Moscow furnishing in great measure the money which sustained the cost of dis- covery ; and Cook, writing in 1784, says that the Russians had conquered the Aleutian Islands and made them tributary.* Several navigators under Russian Imperial authority i^ade further expe- ditions into Bering Sea and visited various parts of the coasts, but it was not until the year 178(> ' Miiller, pp. 93-97, and map (frontispiece) ; Cook Vol. Ill, p. 372 ; Burney, p. 176. * Berg, Chronological History of the Discovery of the Aleutian Islands, or the Achievements of Russian Merchants, and also an Historical Review of the Fur Trade, St. Petersburg, 1823, p. 1 et seq. » Burney, pp. 183-185 j Coxe, pp. 86-110. * Cook, Vol. Ill, p. 372. DISCOVERIES ABOUT BEEINO SEA. 28 that the most important of all the discoveries in ^.PJIT*^7 °\ ^^' '^ bilof Islands ; duo to this sea, that of the Pribilof Islands, was made. ^<^^'^^ ^<"" f""- It was brought about by the same cause which led to all the other enterprises in these regions, the search for furs. The Russians had alreadv become acquainted with the fur-seals upon the Commander Islands. They had also noticed what is to-day known as the Pribilof herd, as it passed semiannually through the channels of the Aleutian Islands ; and as the supply of sea-otters diminished, they began exerting them- selves to ascertain upon what shores these fur- seals landed. Much time was spent in following them both upon their northward and southward courses. In 1786 the final search for them was undertaken by Gerassim Pribilof, who for five years had been employed by one of the leading trading companies and was regarded as one of the best navigators of that region. For three weeks lie cruised in the neighborhood of the Pribilof group in a dense fog without finding it. " At last," says Veniaminof, " fate, as if relenting, yielded to the untiring efforts of an enterprising man and lifted the curtain of fog, revealing the eastern part of the island nearest the Aleutian Archipelago . . . ."' This ' Veniaminof a Notes on tlie Islands of the Unalaska District, St. Petersburg, 18i0, part 1, p. 271. 24 DISCOVERIES ABOUT MERIXG WEA. m ■■ :i island was named St. George. In the follow- ing year the island of St. Paul was discovered, to Bmng se.r"*'"" Meanwhile, in the year 1778, the English nav- igator, Captain Cook, had appeared in Alaskan waters, in cooperation with an expedition sent by the British admiralty to Baffin Bay in the hope that a northern passage might be discovered from the Pacific to the Atlantic.^ After visiting cer- tain points on the Pacific coast of Alaska, he passed into Bering Sea and sailed along the east- ern shore as far as Bering Strait, giving names to various places, among which are those of Bristol Bay and Norton Sound. At several points on the coast which he visited he found clear evidence of Eussian influence and customs, and he confirmed in the strongest manner the earlv Eussian discoveries. His vi.sit was never followed up by settlement, and it resulted in no acquisition of territory or claim thereto by his Government.- In 1791 an expedition, planned by Catherine II, passed from the Aleutian Islands to the northern parts of Bering Sea, including St, Lawrence ' Burney, pp. 219, 220. - On the contrary, ifc inured largely to (ho boi.efit of the Eiissinns, of whom Cook, in his third volume, .it p. 373, predicts that " they will undoubtedly make a jiroper use of the advantages we Imve opened to them by the discovery of Cook's River (Inlet)." See, also, Cose, p. 206. Subsequent Rus' eian expeditions. i \ DISCOVERIES ABOUT BERIXa SEA 25 Rii»- ions. Island and Cape Eodney, and returned alonff the . SuiKscqueiit Asiatic coast. Other expeditious followed at various times, an important one being that of Korasakovsky, who, in 1818, made a thorough exploration of a great part of the eastern shore, of the sea and established a fort at the mouth of the Nushagak.' The great wealth to be derived from the fur- shores mui isiamb bi't'Oiiif RiisHiun tcr- bearmg animals led to permanent settlements, ritory as enriy u* the subjugation of the native tribes, and the es- tablishment of forts or trading posts by the Eus- sians on various of the Aleutian Islands, on the Pribilof Islands, and on the eastern mainland of Bering Sea during the latter part of the eight- eenth and early years of the nineteenth centuries. Thus, by first discovery, occupation, and perma- jient colonization, the shores and islands of Bering Sea, the Aleutian Chain, and the peninsula of Alaska became, probably as early as 1800, an undisputed part of the territory of the Eussian Empire.^ ' The whole of this shore, together witli other territory, had already been elaimed by Russia in tlio iikasc of 1799, reference to which will bo hereafter more fully made. See, gimerally, upon the whole of the foregoing subject Vivien dc Saint-Martin, Vol. I, " Alaska," pp. 55, 56. - See " Russia's Early Title to parts of the Coast of America," Vol. I, p. 12. 1 I i i f 26 CLAIMS TO THE NORTHWEST COAST. i • • lilii V Hi CLAIMS TO THB NORTHWEST COAST OF AMERICA. Early competition While the title of Russia to the territory north tor posBCBsion of *' coast of America. ^11(1 west of, and including, the peninsula of Alaska was universally recognized, her claim to the Northwest Coast of the American continent, by which terra it is intended to designate the coast between Prince William Sound and the mouth of the Columbia River, was earnestly disputed by more than one powerful nation. During the latter pa^'t of the last century and the early years of the present, Great Britain, Spain, and the United States were competing with Russia by way of exploration, trade, and colonization for the possession of the Northwest Coast of America. Russian compoti- As early as 1741 Tcherikof, a Russian Cap- tion. Settlement it Kudink Island. tain Under Bering's command, visited the coast in about latitude 55° N. ;' but the earliest per- manent settlement east of the Aleutian Chain was made at Kadiak Island in 17H4 by Shelikof,^ an enterprising merchant, who afterwards laid the foundation for the Russian American Company. A trading post, dwelling houses, and fortifications were erected and a school established. Later, cruises were undertaken from Kadiak to the ad- ' Mviller's Voyages, map (frontispiece). - Cose, p. 207 et seq. CLAIMS TO THE NORTHWEST COAST. 27 ioiniii<: islands and the mainland around Cook's Russian comiicii- •• " tion. Sottlonicut at Inlet, Prince William Sound, and Yakutat Bay/ Kadiak isiaud. The influence of the Kadiak colony in the adjoin- ing continent is told by Coxe in these words : "The settlement formed by Shelikof in the isle of Kadiak has more contributed to spread the ex- tent of the Russian trade and power in the North Pacific Ocean than any of the preceding expedi- tions. He sent out detached parties, who formed establishments on various parts of the American continent and kept the natives in due order and subjection."- In one of these cruises, m.ade under Shelikofs direction, the continent was reached near Prince William Sound, and the coast was followed and carefully explored to the east and south beyond latitude 50°. Coxe says, speaking of the traders who conducted this cruise: "By comparing their accounts with the narratives of Cook, Portlock, Meares, and Vancouver, we have been able to ascertain most of the harbours and places at which they touched, and the general agreement with the accounts given by the English navigators proves the accuracy of their descrip- tion."' At Yakutat, in June, 1788, they took formal possession of the country and recc.vr'r'i ' Coxe, p. 232. ■ Coxe, p. 264 See also ibid., pp. 268, 269, 273. 28 CLAIMS TO TUE NORTHWEST COAST. • I'll i III i RuMian competi- from the native chief tokens of his acceptance of tioii. SoUloiiKMit at Kiidii.k isiuiid. Russiau dominion.' As further evidence of Rus- sian occupation of the mainhind of tlie Nortliwest Coast the Liunchlng of a vessel in 1 71)4 from the shores of Prince William Sound is chronicled, this being the first ship built in Alaska.'- Foiuuiiiij; of Sitka. Jjut the most important step taken by Russia to permanently establish her authority over the islands and adjoining shores of the Northwest Coast of the continent was the founding in the beginning of the present century of New Arch- angel (afterwards Sitka)/ w^hich soon became a fortress, the principal trading post, and the seat of government of the Russian American r ses- sions. From Kadiak, first, and from Sitk; r, the Russian merchants continued to push their traffic with the natives along down the mainland toward the Columbia River, and in 1812 they had even established a colony on the coast of California,* called Fort Ross, a few miles north of the Bay of San Francisco. As early as 1810 Russia had gone so far as to inform the United ' Sec, generally, Cose, pp. 2-10-254. - Tikhuienief 's Historical Review of the Development of the Russiiin American Company and of its Operations up to the present Time, St. Petersburg, 1861, Vol. I, p. 40. •' Vivien de Saint-Martin, Vol. I, p. 56. The year 1802 is generally taken as the date of the founding of Sitka. '* Greeuhow'a Memoir, pp. 9, 148j Vivien do Saint-Martin, Vol. I, p. 56. CLAIMS TO TIIK NORTHWEST COAST. 29 States that she claimed the coast to the Columbia liiver.^ Oil the other liaiul, Great Britain early laid Biitir*ii competi- tion. claim to portions of this samr Northwest Coast. Drake is believed by some to have touched it in his discoveries in 1579.- The famous British navigator, Captain Cook, appeared there in 1778, visited Trince William Sound and Cook's Inlet, and (as already noticed) passed into Bering Sea. Cook's voyages were followed by tliose of Port- lock, Dixon, Meares, and Vancouver. English traders, and especially the powerful Northwest Company (which in 1821 beciiiie united with the Hudson's Bay Company), were rapidly ex- tending their enterprise to the coast between the Columbia lliver and latitude 5G° N. and thus coming into competition and conflict with the merchants and traders of other countries, includ- ing those of Eussia.^ So, also, Spain following up the occupation of .Si)aiii8ii compcti- CaUfornia, soon after the middle of the eighteenth century began laying her plans for a complete occupation of the whole of the western coast of America washed by the waters of the Pacific ' American State Papers, Foreign Relations, Vol. V, p. 443. Sec, also, generally, " Russia's Early Title to the Coast of America," Vol. I. p. 12. - Burney's History of Discoveries in the South Sea, London, 1803, Vol. I, p. 356. See, also, Greonliow's Memoir, p. 37. ^ London Quarterly Review, Vol. XXVI, pp. 344-347. 30 CLAIMS TO THE NOBTHWEST COAST. Spnnish competi- Qcean, and in doing this she was actuated largely by knowledge of the fact that the Russians had a similar object in view.^ Prior to 1768 the Spanish navigators had explored it up to latitude 43°, and in 1774, 1775, and 1779 they visited various portions of the same as far north as Prince William Sound, taking possession of much of the country on behalf of their sovereign ; and an examination of '.he map of that region of the present day attests, in the geographical names, the \rly presence of the Spanish discoverers.^ As late as 1790 Spain asserted her right to the Northwest Coast to latitude 60° N.^ Some of the Spanish claims were brought to an issue in 1789 in the Nootka Sound controversy, which was the first dispute between European nations in regard to any territory lying between San Francisco and Prin<^-e William Sound. Nootka Sound is situated on the west side of Vancouver Island in about latitude 50° N".* In 1789, on being informed that Eussia was intend- ing to occupy it, the Spanish Government sent out two men-of-war with orders to anticipate her and drive away all foreigners. No trouble of ' Greenliow's Memoir, pp. 52, 96. " Vivien do Saint-Martin, Vol. I, p. 56 ; Greenliow's Memoir, p. 57 and chap. IV. " American State Pnpcrs, Foreign Eolations, Vol. V, p. 444. ■■ It appears to have been discovered, nnd was named, by Cook in 17S8. Greenliow's Memoir, p. 82. Tho Xootliii Sound controversv. CI.AIM'^ T<1 TlIK N(M{TII\VF.,ST COAST. r>i r, p. 57 3ook in any kind with Eussia arose out of these measures/ Tiio Nootka Sound controvorsj-. but the Spanish naval commander liaving seized two vessels en<:?ao'ed in trade there, together with certain houses and land, all of which the British Government claimed lo be the property of British subjects, the act of seizure was vigorously and successfully resented, and as a result of & heated controversy the treaty of 1790 was celebrated between Great Britain and Spain." Article III, Treoty of irio ^ bctwi'cn Great llii- of that .reaty is, in part, as follows : " It is agreed <»"' >"'" ^i'"'"- that the respective subjects shall not be disturbed or molested either in navigating or carrying on their fisheries in the Pacific Ocean, or in the South Seas, or in landing on the coasts of those seas in places not already occupied, for the pur- pose of carrying on their commerce with the natives of the country or of making settlements there; the whole subject, nevertheless, to the restrictions specified in the three following articles." This stipulation is of special signiiicance, as it constituted a basis of the adjustment made by Eussia with the United States in 1824 and with Great Britain in 1825, respecting [iic navigation of the Pacific Oceaa and the confilcfincr claims to the territory on the Northwest Coast. ' Amoricun State lapcrs, Forei^u Eolations, Vol. V, ]>. -H;'. '^ Vol. I, M. 32. bee Greenhow's Memoir, cimi). A'l. t% 1. 1 [315] ]) i;l '\0 Auieviciin conipe- titioii. CLAIMS '10 THE ^'ORT^WEST COAST. The partial navigation of the Cohimbia Eiver by the American Navigator, Captain Gray, in 1792,the expeditionof Lewis and Clarkeacross the Eocky Mountains in the years 1803 to 1805,^ and the establishment of the Pacific Fur Company on the Pacific coast in the early years of the present century, gave to the United States a permanent lodgment on the Northwest Coast and constituted the basis of an active competition on the part of that nation for the sovereignty and trade of a considerable part of the shores and waters of the Pacific- The troubles which early in this cen- tury arose between the United States and Great Britain as to ownership of these coasts were left undetermined by the treaty )f Ghent, following the war of 1812 ; and in 1813, being still unable to adjust the respective claims, the two powers agreed that all territory in dispute claimed by either of them between the Eocky Mountains and the Pacific Ocean should, with its harbors, bays, and rivers be op3n and free for ten years to the vessels and citizens of both nations,^ and not until 184G were their respective territorial rightson the Northwest Coast permanently settled by treaty. ' Grecnhow's Memoir, p. 126 et seq., p. 149. - Grecnhow's S[enioir, p]i. 152-158. =' Treaty of IblS between the United States and Great Britain. Vol. I, p. 34. n Hi CLATMS TO THE NORTHWEST COAST. 33 The claims of Spain to this region were trans- ferred to the United States by the treaty of 1819.^ It thus appears from the forefjoinsr historical '^^^^ competition ^ ^ no certain to result in review that, while the claim of Russia to the internationni conflict, territory embracing the Aleutian Islands, the peninsula of Alaska, and the coasts and islands of Bering Sea was undisputed, the shores and the adjacent islands of the American continent south of latitude 60° as far as California were during the latter part of the eighteenth and the first quarter of the present century the subject of conflicting claims en the part of Russia, Great Britain, Spain, and thf, United States . This condition of aflfairs in- dicated that an international conflict was likely to come sooner or later, and it was foreshadowed in an article printed in the London Quarterly Review of 1814, in which it was said : " How long the continent of Americ;i will afford a sup- ply of furs and peltry to the roiitending traders of England, Russia, and the United St.ites, we pretend not to determine, but we believe they have each of them lately experienced some diffi- culty in supplying the usual demand for those of the most valuable description. An increasing scarcity can not fail to produce a collision of in- terests and disputes, which at one time or other will probably terminate in a war."'^ ' Vol. I, p. 3*. " London Quarterly Review, Vol. XI, p. 292. [315] ' D 2 34 THE RUSSIAN A:MKBK'AN COirPANY. THE BUSSIAN AKEBICAN COKPAinr. Itt political and commercial impor- tance. The outgrow! h of trading asgooiations. Having thus presented a brief sketch of the political conditior of affairs in the early part of this century in the territory surrounding Bering Sea and on the Northwest Coast of America, it is proper, before entering upon a consideration of the events of international importance which follow, to refer to the organization and early history of the Russian American Company, an association which for a period of over sixty years carried on trade and administered public affairs throughout a great part of these regions. In the extent and variety of its operations it oc- cupies a position similar to that held by the East India and the Hudson's Bay Companies ; and its history is also the history of that portion of the globe to which the attention of the Tribunal cf Arbitration is directed. The Russian American Company was the outgrowth of the numerous trading associations,^ which, soon after the discoveries of 1741, began to develop the lucrative fur trade in the Aleutian Islands and Bering Sea. The rivalry and com- petition which grew up between them proved in many ways disastrous'^ and resulted eventually ' For a detailed account of same, see Berg, p. 1 el ncq. ■ Tikhmenief, Vol. T, p. 61. ir 'I ii THE RUSSIAN AMERICAN COMPANY, a« in placing the fur trade of the Colonies under the control of a single powerful organization.^ This was accomplished in 1799, in which year chartered in i799. a ukase was issued, creating the " Eussian Amer- ican Company " and containing its first charter.^ This ukase invested it with special and exclu-^i,J*g;/'«^^,\"^|;'; sive privileges for a period of twenty years on "'*'"**''• the shores of northwestern America between latitude 55^^ N. and Bering Strait, on the Aleutian Islands, the Kurile Islands, and the islands of the Northeastern or Bering Sea. To it was reserved the exclusive right to all products of the chase and of commerce in those regions ; and it was specially authorized to take possession on behalf of the Imperial Government of newly discovered countries, both to the north and to the south of latitude 55° on the coast of America. It was authorized to establish agencies within and without the empire, and to use a seal and a flag bearing the Imperial coat of arms. Its chief place of business, which was originally at Irkutsk, was soon transferred to St. Petersburg, where its shareholders, none of whom were allowed to be foreigners, embraced members of the Imperial family and the high nobility. ' Virien cle Saint-Maitin, Vol. I, p. 56. • Vol. I, p. 14. 36 THE RUSSIAlSr AMERICAN COMPANY. ? \ '' ■I ;^ While the privileges conferred by this charter were very great, the Company was, on the other hand, burdened with some heavy obligations. Its obligations, jj^ -^^s Compelled at its own expense to carry on the government of the region over which its priv- ileges extended, to maintain courts, the church, and a small military force, and, at a later period, to hold ready at various points on the coast provisions and stores for the use, in cases of emergency, of the naval vessels or troops of the Eussian Government. Its mode of govern. For the purposes of administration the Impe- ment. * rial Government and the directors of the Com- pany jointly appointed a chief manager, who resided at Sitka, and who at an early date was required to be an officer of the navy of high rank. His powers were absolute within the ter- ritory over which the Company exercised juris- diction. Under him were sub-managers, over- seers, and other agents. Eeports of the Com- pany's transactions were submitted originally to the Minister of the Interior, and later to the Minister of Finance. Officersof Imperial Dating from the year 1802 officers of the Im- navv engaged in its . ■, i. i.i • xv -i e service. penal navy were constantly m the employ of the Company. As long as it maintained a mili- tary and naval force in the Colonies at its own expense, such forces were entirely at the dis- THE BUSSIAN AMERICAN COirPANY. 37 uosal of the chief manager, who had the privi- Officersofimpermi * navy engaged in i(s lege of selecting the soldiers and sailors from any service. force stationed within the boundaries of Siberia. Even the officers of those naval vessels which were not maintained at the expense of the Com- pany, and which were sent out to the Colonies by the Imperial Governmein, were generally en- joined to obey the orders of the chief manager, and it will be made to appear from papers which will be hereafter cited that such orders were freely given. Under its charter rhe Company paid no raid no rovaity. royalty or rout to the Government, but as its trade consisted chieflv in the exchansje of furs for teas on the Chinese frontier, the Government received large hums through the duty collected on such teas. In short, the Company administered both Suunnurv. government and trade throughout the whole of the territory over which it was given control.^ ' See in reference to all that has been said regarding the rights, obligations, and government of the Russian American Company : Regidations of the United American Company, Tikhraenief, Vol. I, app., pp. 1-19 ; Charter of 1790, Vol. I, p. 14 ; ukase and charter of 1821, Vol. I, pp. 1(3 and 24 ; " .Additional Facts relating to th" T'-isgian American Company," A'ol. I, p. 9 ; Tikhmenief, Vol. II, ajip., pp. 17-63. TUE UKASE OF 1821. THE UXA9£ OF 1.21. !|[ ■^l!:i rkiisf of 1821 anil pccoikI flmrtor of tho Company. Purpojc ukase. of On the 4th of September, 1821, this famous ukase was made public, and nine days later, on the 13th of September, 1821, the Emperor renewed with certain additions for another term of twenty years the charter and privileges granted in 1799 to the Russian American Company. Both the ukase and the new charter appear in full in the Appendix.^ *i»c The objects which were sought to be obtained by the promulgation of the ukase appear from the recital prelixed to it, which is as follows : " Observing from Reports submitted to us that the trade of ouu subjects on the Aleutian Islands and on the North West Coast of America apper- taining unto Russia is subjected, because of secret and illicit Traffic, to oppression and im- pediments ; and finding that the principal cause of these difficulties is the want of Rules establish- ing the Boundaries for Navigation along these Coasts, and the order of Naval Communication as well in these places as on the whole of the Eastern Coast of Siberia and the Kurile Islands, WE have deemed it necessary to determine these Communications by specific Regulations which are hereto attached," . Vol. I, i>ii. K), 2I.. .;! THE UKASE OF 1821, 3a Its title a'ad first two sections arc as follows : u^ tiiio and iiiBt " Eules establislied for the Limits of Naviga- tion and order of Communication along the Coast of Eastern Siberia, the Northwest Coast of America, and the Aleutian, Kurile, and other Islands. " § 1. The pursuits of Commerce, whaling, and fishery, and of all other Industry on all Islands, Ports, and Gulfs, including the whole of the Northwest Coast of America, beginning from Bering's Straits to the 51° of Northern Latitude, also from the Aleutian Islands to the Eastern Coas: of Siberia, as well as along the Kurile Islands, from Bering's Straits to the South Cape of the Island of Urup, viz., to the 45° 50' Northern Latitude, is exclusively granted to Eussian subjects. " § 2. It is, therefore, prohibited to all Foreign Vessels, not only to land on the Coasts and Islands belonging to Eussia as stated above ; but also to approach them within less than a Hundred Italian Miles. ^ The Transgressor's Vessel is subject to confiscation along with the whole Cargo," The reason why the limit of one hundred miles Eeason why limit 1 r 1 .. -ii. • TIT of 100 miles chosen. was chosen appears from a letter written uy Mr. ' An Italian mile is the equivalent oi" a googra])hiciil mile, ofnliicli there are suTty to a degree. THE UKASE OF 1831. : ll , ' 'i I i 1 ResBon whv limit Middleton, United States Minister at St. Peters- 01 100 miles chosen. burg, to the Secretary of State, dated August 8, 1822, giving an account of an interview with the Governor-General of Siberia, who had been one of the committee originating this measure. The Governor-General said it was sought to es- tablish " limits to the marine jurisdiction on their coasts, such as should secure to the Eussian American Fur Company the monopoly of the very lucrative profit they carry on. In order to do this they sought a precedent, and found the distance of thirty leagues, named in the Treaty of Utrecht, and which may be calculated at about one hundred Italian miles, sufficient for all pur- poses." ^ As a similar and more recent prece- dent, though not for so great an extent of sea jurisdiction, might have been cited the fourth article of the Nootka Sound convention between Great Britain and Spain, already referred to, whereby the former conceded to the latter ex- clusive jurisdiction of the sea for ten leagues from any part of the coasts already occupied by Spain.* Thi8 limit enabled The Pribilof Islands, the home of the Alaskan Russia to protect ^ ^ i •,,ni ,i . ■> it seal herd of Pribilof Seal herd, are situated less than two hundred Italian miles from the Aleutian Chain on the south, and thus a sufficient portion of the eastern ' Mr. Middleton to Mr. Adams, August 8, 1822, Vol. I, p. 135. « Vol. I, p. 88. h THE UKASE OF 1821. 41 half of Bering Sea was covered by the ukase to enable Russia to protect the herd while there. In so far as it affected that sea and its shores, Russia regarded the ukase as merely declaratory of existing rights. The board of administration of the Russian American Company, writing from St. Petersburg to the chief manager of the Russian American Colonies at Sitka on Septem- ber 20, 1821, says: "With this precious act in your hand you will be enabled to assume a new position and to stand firmly opposed to all attempts on the part of foreigners to infringe upon our rights and privileges. In accordance with the will^'of His Imperial Majesty we will not be left to protect unaided the land and waters embraced in our exclusive privileges. A squad- ron of naval vessels is under orders to prepare for a cruise to the coasts of northeastern Asia and northwestern America. . . . We can now stand upon our rights, and drive from our waters and ports the intruders who threaten to neutralize the benefits and gifts most graciously bestowed upon our Company by His Imperial Majesty."^ ' Vol. I, p. 59. Thia and other documents hereinafter cited, relating to the affairs of the Bussian American Company, belong to the official records or archives of the territory which was ceded to the United States by Russia by the treaty of 18ft7. They camo into the poBsession of the United States by virtue of the second article of that treaty and are now in the Archives of the Department of State at Washington. Fac-similes of all the original documents referred to herein will be found nt the end of Vol. I. Ukase declaratory of existing rights. ■\'m 42 TUE L'KASE OF 1821. Ill II letter dated February 28, 1822, from the board to the chief manager of the Colonies, we lind the following statement : " As to fur-seals, however, since our Gracious Sovereign has been pleased to strengthen our claims of jurisdiction and exclusive rights in these waters with his strong hand, we can well afford to reduce the number of seals killed annually, and to patiently await the natural increase resulting therefrom, which will yield us an abundant harvest in the future."! Under uknso of ^^^^ official Eussian records show that after i^'^'Sertthe ukase or charter of 1799, granting to the jaeringSca.*"'''" "" Kuasian American Company certain exclusive control of trade and colonization, its authorities, acting under the sanction of the Eussian Govern- ment, did not permit foreign vessels to visit Bering Sea. The trading and hunting rights of the Company were jealously guarded there prior and up to 1821, as will appear from the docu- ments about to be cited ; and whatever creation or extension of exclusive Eussian jurisdiction was intended to be effected by the promulgation of the ukase of that [year applied to the Pacific Ocean proper, and to the coasts and islands east and south of the peninsula of Alaska. The only effect which could have been intended by that > Vol. I, p. 61. THK I'K ASK or lS2t, 43 edict upon the coasts and waters of Bering Sea Under uksse of * . 1799 foreign reucli and the Aleutian lalands was to strengthen and not pormittoa to hunt or trade iu confirm the jurisdiction theretofore exercised by Bering Sca. Russia, and this is made clearly to appear from the official documents of that period. On April 9, 1820, the Russian Imperial Min- Hoqucst of Mini- * stcr of Finance in ister of Finance, upon a report of a committee of isao and i82i that '■ cruiHcrsbcdispntcneci ministers appointed by the Emperor to obtain top'otft* Company's ' * •' * interests in Boring information respecting the Russian American Soa. Colonies, from which report it appeared that illicit visits of foreign vessels to Alaskan waters were being made, addressed an official commu- nication to the Imperial Minister of Marine, in which, after referring to this report, he states that "it appears of the most imperative necessity for the preservation of our sovereignty in the northwestern part of America and on the islands and waters situated between them, to maintain there continuously two ships of the Imperial fleet." He suggests that these two vessels should be dispatched during that year, one to cruise from Sitka westward and northward, and after " hav- ing thoroughly examined the shores of the Aleu- tian Islands, the coast of Kamchatka, the Kurile Islands, and the intervening waters," to winter in Petropavlovsk on the Asiatic coast. " The other ship, however, (sailing from Petropavlovsk), hav- ing examined the eastern coast of the Kamchatka I ! ''!t ■^' : ;;i!! I 'ill 1 .. ! ' .IP ifni'' ] • ><■ ,'1; I I! i THE UKASE OF 182i. Requost of Mini- peiiinsula up to 62" of northern latitude, and the ster of Finpncc in « » . n i • i • i i 1820 and 1821 Umtwest coast 01 Amcrica irom this latitude to the crimerHbedispatclicd . to protect Company's island 01 Unalaska, and the intervening waters interests in Bering ,,-,.-.» , ^^ ., . Sea. (Bering Sea), should proceed to Kadiak and from there to Sitka for the winter. The object of the cruising of two of our armed vessels in the localities above mentioned is the protection of our Colonies and the exclusion of foreign vessels engaged in traffic or industry inju'^'ous to the interests of the Hussian Company as well as to those of the native inhabitants of those regions:" In the following year, 1821, two similar ships were to be dispatched, and in " this manner two fjhips of war would always be present in the Colonies and the Company would be assured of their protection."' The board of administration of the Russian American Company, writing March 15, 1821, from St. Petersburg to the chief manager of the Colonies at Sitka, with full knoAvledge of the report of the committee of ministers and the action of the Ministers of Finance and of Marine of the year previous, clearly intimates the duty these war ships were to perform. In giving in- structions as to the management o; the fur-t.eais cm the TriHlof Islands, it says: "We must ' Vol. T, p. W. Killing of fur-seals at stn to be pre- vented. ■ ':5l ■1 , and the ie to the g waters Liak and le object els in the ection of jn vessels IS to the ell as to regions;" ilar ships inner two it in the Lssured of i Eussian 15, 1821, er of the [e of the and the 3f Marine tlie dutv V fiving in- fur-t,eals kVe must ^1 THE TKASK OF 1S21. 45 suppose that a total suspension of killing every Killing of fm-seais fifth year win enectually stop the dimniution ventod. of the fur-seals, and that it will be safe at the expiration of the close season to resume killing at the rate mentioned above (fifty thousand annu- ally). By a strict observance of such rules, and a prohibition of all killing of fur-seals at sea or in the passes of the Aleutian Islands, we may hope to make this industiy a permanent and reliabij source of income to the Company, without disturbing the price of these valuable skins in the market."' In 1819 Eiccord, the then commander of Kam- The Pigott affair. Oertai noon tract 8 »;liatka, acting under advice of one Dobello, a with foroigners. nnnullcel. Control foreigner in the employ of the Eussian Govern- exercised over Bering ° . . Sea prior to 1821. ment, granted to an Englishman named Pigott the right for ten yoars to hunt whales on the coast of Eastern Siberia." This grant was at once repudiated by the Government. A con- siderable amount of correspondence resulted, which illustrates the complete control which Eussia clauned and actually exercised over Bering Sea prior to 1821, and how jealous she and her chartered Company were of the intru- sion of foreigners. Under date of April 10, 1820, the Minister ' Vol T, p. 58. ' Tikhmeiiief, Vol. I, pp. 192-200. r-fjf '« 1 I < 4r> rilK VK \.-K OF iSL'l. 1 1 i f ; 1 t 'Ml i 1 1 ( ; ■ ' 1 1 ] ! 1 <, ' ^ 1 I 'f i i; The Pigott afftiir, of Fiiiauce wrote to the board of adininist ration continued. of the Russian American Company for its guidance in part as follows : " The commander of the government of Irkutsk is hereby instructed to forbid any foreigners, except such as have become Eussian subjects, to enter the mercantile guilds, or to settle in business in Kamchatka or Okhotsk; also to entirely pro- hibit foreign merchant vessels from trading in these localities and from anchoring in any port of Eastern Siberia, except in the case of disaster. . . . It is hereby ordered that the local authorities sliall inform the Eng- lishman Davis at Okhotsk and Dobello's agent in Kamchatka that the Government does not permit them to reside in those places, much less to erect buildings or other immovable prop- erty." In the same dispatch the minister said : " Hav- ing for the benefit of the American Company excluded r'l foreifniers from Kamchatka and Okhotsk and prohibited them from engaging in trade and from hunting and fishing in all the waters of Eastern Siberia, the Government fully expects that the Company, on its part, will hold itself responsible for supplj'ing those regions with all necessaries." And again: "In conclu- sion, it is stated as the decision of his Majesty TUE LKASE OF 1821. 47 the Emperor, in view of possible future compli- cations of this nature, that no contracts involving the free admission or navigation for trade of for- eign ships or foreign subjects in the waters adjoin- ing or bounded by the coasts of Eussian colonies will be approved by the Imperial Government."' On xVpril 23, 1820, the board of administra- ^.^'"'^'J"^" • .?.''°' ^ ' ' hibited from visiting tion of the Company at St. Petersburg wrote to waters frequented by ^ •' ° sea-otters and fur- the chief manager of the Colonies at Sitka, and ^'^^^- after reciting the contents of the foregoing letter, continued: "As soon as the Imperial Govern- ment ascertained that the contracts made (viz., those with Pigott) were in open violation of the privileges granted the Company, it prohibited at once all foreigners not only from settling in Kamchatka and Okhotsk, but also from all inter- course with those regions, enjoining the author- ities to maintain the strictest surveillance over their movements. Basing your own action upon this proceeding of our Highest Protector, you, as commander of all our Colonies, must prohibit with equal strictness all foreigners from engag- ing in any intercourse or trade with native inhabitants, as well as from visiting the waters frequented by sea-otters and fur-seals, over which our operations extend, under penalty of the most severe measures, [315] including the confiscation of > Vol. I, p. 51. J r > 1 P 48 THE UKASE OF 1821. Ml If! 1 'I 'SI 'I 1 1 i I .'if I ,, ii Foreigners pro- sliips and the iiiinrisoiiment of crews enrfSi^ed hibited from visiting o a waters frequented by in tliis illegal traffic. You iTiust act witli the sea-otters and fur- ^ •*'^«'*' greatest severity in cases where foreigners have sokl to the natives arms, powder, and lead. They must l)e made to understand that their presence in our waters is contrary to our hiws, and that they will never be admitted to any port unless 3^011 or your subordinates convince yourselves that such is necessary for the saving of life. In a word, you must preserve an attitude in full accord with I he views of the Imperial Government on this subject, and protect against all intruders the domain of land and water granted to us by the grace of the Emperor and necessary for our continued existence and prosperity. You must transmit tliese instructions without delay to your sub- ordinate commanders for their conduct in their intercourse with foreigners, and especially to the commanders of ships navigating our waters, to enable tliem to dri-ve awav the foreign intru- ders."^ This question of the contract with foreigners was ajrain referred to in a letter from the board of administration to the chief manager of the Colonies, March 31, 1821. Speaking of Messrs. Riccord, Dobello, and Pigott, it is said : " From Tlio Pigott affair, wntinued. ' Vol. 1, pp. 53, 54. TITE UKASE OF 1821. 49- the copy herewith inclosed of commiinIc;itioi\s The PigoM affair, t'outinuod. from the ministries, yon will see that the Imperial Government not only repndiated Messrs. Eiccord, Dobello, and Pigott, bnt also prohibited them altogether from trading in Okhotsk and Kam- chatka, with the result that to-dav the foreigners have abandoned their enterprise in that reirion, and no other foreigners will be allowed to visit these places in the future. The principles involved in this action of the Government you must also observe in dealing with foreigfners who may visit our Colonies, using all the force at your command to drive them from our waters. Together with our new privileges, which have already been promulgated by the minister and which are only awaiting the return of our Mon- arch, we shall also receive definite instructions how to deal with foreiiyners who venture to cross the limits of possessions acquii-ed long ago through liussian enterprise and valor."' It thus appears from tlie foresroinfj citations Minimavv. that, SO far as it concerns the roasts and waters Pi-oti-sts iiii'pcted to claim of jurisilio- of Bering Sea, the ukase of 1821 Avas merely''"" o^'^'' i''^'''""' '' Oi'i'aii and to claiiu declaratory of preexisting claims of exclusive '^" "^^^^ °^ continent, jurisdiction as to trade, which had been enforced therein for many years. The ukase of 1791), which set forth a claim of exclusive Eussian juris- M [315] ' Vol. I, p. 55. E 2 Protests directed diction as far south as latitude 55°, called forth no to claim of juris- diction over Pacific p: test froHi anv foreign powers, nor was objec- Occan and to claim ^ ^ to coast of continent, tion offered to the exclusion of foreign ships from trade with the natives and hunting fur-bearing animals in the waters of Bering Sea and on the Aleutian Islands as a result of that ulcase and of the grant of exclusive privileges to the Eussian American Company. It was only when the ukase of 1821 sought to extend the Eussian claim to the American continent south to latitude 51", and to place the coasts and waters of the ocean in that region under the exclusive control of the Ens- s"an American Company, that vigorous protests were made by the ( )vernments of the United States and Great Britain. And the correspond- ence which grew out of those protests' shows, that they were inspired by the claim of jurisdic- tion over large portions of the Pacific Ocean (as- distinguished from Bering Sea) and by the con- flicting claims of the three nations to the coast over which Eussia sought to extend exclusive authority. The United States and Great Britain had for years before the publication of that ukase been competitors for the trade and the ownership ' Vol. I, p. 132-152. Only suclx portion of the correspondence between Great Britain and Eussia is given, as was inclosed in Lord Salisbury's note , to Sir Julian Paunccfotc, dated August 2, 1890, Vol. I p. 242. THE TREATIES OF 1824 AND 1825. 51 of the coasts and islands lying between latitudes Protests iiirected ./ o (.Q claim of juris- ol° and 55", on what was known as the North- ^.'"t""" °\^' ^'>f^f^'> ' Ooean and to claim west Coast, and their citizens and subjects had "^^ '=°'^«t of continent. been actively engaged with their ships in hunting and trading on those shores and waters, and it was natural that they should vigorously protest against the attempt of Russia to exclude them from that region. On the other hand there is no record that such hunting or trading had ever been carried on by them within Bering Sea. The history of the period and the locality, the discussion which followed the ukase, and the treaties which were the result of it, attest that the object of both the United States and Great Britain in contesting the pretensions of Russia in this matter was to maintain their respective claims to the territory indicated, to preserve intact their valuable trade with the natives on the Northwest Coast, and to enjoy the free navigation of the Great Ocean which washed that coast.* THE TREATIES OF 1824 AND 1825. :t The controversy which followed the pronml- Settled the two- gation of the ukase of 1821 resulted in a treaty between the United States and Russia in 1824,^ * See Vivien de Saint-Martin, Vol, I, p. 56. - Vol. I, p. 35. ? A ! 1i 52 Sot tied dispute. Uevinjj Sea mil in- cluded ill tei'iiis used to deiuite I'lieide articlcS Oecaii. TJIb; TREATIES OF 1821i AIS'D 1825. two-fold and one between Great Britain and Eussia in 1825.' These two treaties settled the twofold dispute which had been raised by the ukase, namely, first, the maritime dispute ; second, the territorial dispute relating to the Northwest Coast. Tiie maritime dispute was settled by the first That of the British treaty was, at the request of the British negotiators," copied almost verbatim from the corresponding article of the American treaty, and the latter was based upon the third article of the convention of 1790 between Great Britain and Spain.*'' That the term "Great Ocean, commonly called the Pacific Ocean or South Sea," used in article I of the treaty of 1824 with the United States, and the term " The Ocean, commonly called the Pacific Ocean," used in article I of the treaty of 1S25 with Great Britain, did not apply to and include Bering Sea, is shown by a study of the maps, charts, and writings of navigators' at the time of and prior to the negotiation and celebra- ' Vol. J, p. 3''. - Lettei- G. Canning to S. Ciinuing, Dee. S, IHil, \o\. I, p. 2G0. "Vol. i.p. ;i2. ' I'umcy, speaking of tlio "lino of boniidavv wliieli seems de- signed by nature for this great sea,'" says : "' The northern liiriii.i are marked by the continuation of the American Coast from llount St. I'^lias towards the west with the chain of islands called the Fox and the Aleutian Islands." Barney's Chronological History of tlie Hisooveries in the South Sea or Pacific Ocean, London, 1803, Vol. I, p. 2. THE TREATIES OF 1821 AND 1825. 5S tion of these treaties, A list of these maps and charts is appended hereto/ and a careful exami- nation of the same is invited. It willljeseen from them that the best geographers have at all times distinguished this body of water from the ocean lying south of it by conferring upon it some separate name, in most cases either that of Sea of Kamchatka, Bering Sea, Northeastern Sea, or Eastern Ocean.- But in addition to the correspondence attend- Exi)rc8s iWhn^- ing the negotiations, the text of the treaties (Wnimeut j iinpliciitioii . . . ,. , , , .,-,., rights ciiiiincii i.v tics rcvokuig or hmitnig the juriscliction pre- Uiissia ovi'i- Ucriiijj . , \ ^ . Soa. viously exercised by Kussia over J^ernig bea, there is inherent evidence in all those instru- ments, as well as in the negotiations which pre- ceded them, that no such revocation or limitation was sought, conceded, or obtained by the high contracting parties. Eussia was quick to notice that her assumption of control over the waters of the North Pacific Ocean was untenable ; she therefore acknowledged this bv the first articles of the two treaties in question. But neither in the protests, negotiations, nor treaties is any reference found to Bering Sea, and it must be conceded from a study of those instruments and the subsequent events that the question of juris- dictional rights over its waters was left where it THE TREAT! KS OF 1821 AND 1825. 57 had stood before the treaties, except that the ex- Twitie* recoji. , uizod by impliuiitioii ercise ot these rights by iiussia had now, through rinUis iiainiwi by , , . I{ii>»iii over Boriiifi these treaties, received the iiuphed recognition ol soa. two great nations ; for while, by the ukase of 1821, Russia had publicly claimed certain un- usual jurisdiction both over Bering Sea and over a portion of the Pacific Ocean, yet in the resulting treat ii'S, which constituted a complete settlement of all dillerences growing out of this ukase,' no reference is made to this jurisdiction so far as it related to Bering Sea, although it is expressly •And conspicuously renounced as to the Pacific Ocean. The burden is thus placed upon Great Britain -11,11.(101, upoir to show that this jurisdiction, recognised in the ^i,ow timt tiust- year 1825 to exist, has been lost. It is noti.'.V. ' claimed that it was exercised ibr all purposes. Ivussia never sought to prevent vessels from passing through Bering Sea in order to reach the Arctic Ocean ; nor did she always strictly enforce the prohibition of whaling within the distance of one hundred miles from its shores ; but, so far as the fur-seals are concerned, it will be made to appear in what follows that the jurisdiction in question was always exercised for their protec- tion. Imvc bciMi .iiiii P-' , \\ ' Section 8 of the " Proceedings of the Conference," Vol. I, p. 68. TJIE TEEATIES OF 1624 AND 1825. Uy troiitios KiiSMia fcliiujuishod 1hv(j;c Doriion o( claimed. With regard to what may be termed the terri- ■oirst torial dispute, it appears from an examination of the correspondence and treaties that the southern boundary of the Russian territories was fixed at latitude 54° 40' N., whereby she relinquished a largo portion of the Northwest Coast which she had claimed by the ukase of 1821, and that the coasts, interior waters, etc., upon and in which the United States and Great Britain .were allowed to trade for ten years without restrictions, were limited on the west by Yakutat Bay and Mount St. Elias; that is to say, that this right was lestricted to the coast line, concerning the owner- ship of which there may liave been some possible dispute.' The specific declarations in the British treaty of 1825 as to the line of coast and water to which access and trade were thus granted leave no room for doubt as to what coast was intended ; and that the above limitation was understood by Eussia is expressly stated by the Minister of Finance in his communication of September 4, 1824, already cited. It may be mentioned here that at the expira- tion of this ten year clause, both the United States and Enoland made strenuous but futile > Art, IV of the treaty of 182'1 and art. VII of the treaty of 1825. Compare art. Ill of tlie treaty of 1818 between the United States and Great Britain, Vol. I, p. 31-. -•^V IllE TREATIES OF 1824 AND 1825. 5» :lie terri- iiation of soutliern i fixed al luished a 'hich she , that the which the lUowed to ons, were id j^.Iount right was lie owner- le possible the British and water Ls granted coast was ;ation was ted by the lication of the expira- le United but futile trciity of 1825. uted States ami i efforts to obtain a renewal of its provisions.' The United States expressly recognised that after 1884 this clause had ceased to be operative, as is proved not only by their course in the case of the Loriot,- but more particularly by the fact that in 1845, at the request of the Eussian Govern- nient, they caused to be published a notice,'* reminding the owners of Ameiican vessels of the prohibition of trade which existed in regard to the coast in question. The great object had in view by the Eussian Russia's objoci in , excluding Bering 8ci> Government in excluding Bering Sea from the fi'omi'fffct of treaties ° was protection of fur effect of the treaties of 1824 and 1825, and also industry, in liin'.ting the privilege of access and trade for even ten years to the coast south and east of Yakut at Bay, was obviously the protection of the valuable fur industry, the right to derive profit from which was the exclusive franchise of the Eussian American Company. This is apparent in all the correspondence between the Government and the Company following the pro- tests against the ukase and attending the nego- liations of the treaties. The Minister of Finance ' The diplomatic correspondence between the United States and Russia relating hereto is contained in the documents accom- panying the message of the President of tlie United States to Con- iress, December 3, 1838, and in Senate Ex. Doc. No. lOG, pp. 223-24G. = Note of llr. Blaine to Sir Julian Pauucefote, June 30, 1890, Vol. I, p. 224. •' Vol. I, p. 91. ; . (.., ' I Mb I ' i 1 n i ■i 1 J i 1 ii i ■ ! ' m THE TBEATTER OF flW4. *I^'D 1R23. Russiii^ obje.>t in ill his coniiiiiiTticatioM <^ Jnly 18, 1822, to the I'Xi'ludiiig Ik^ring iSoii froineflVftofircati.^- board of ac. liiii rati M wrote, in view of a '^iro- wiia protection of t'u*- . i r ^■^ j'luiiwtry. po«€fl mofVifjoatio' C)if fhe ukasf. as follows: **At -^Sft^ same time T am .Mil,. /,. -il to assure you thai e^i^y eflforl will be imn^ u, >e?^aare the adop- tion of .*i<'h rules as will e"fl&i*^rtu,'!iiy protect the Eussia.n ji!fti*erican Company from i rif/Mls on llie part of for(«fl';'/iiers ui>on their vesle(»l privileges, in strict coniWmity jioi oniy with f.k*^ privileges , ifranted bv hio-hest avJ. but juso with nhe edict of September 4, 1821." ' Under datp if April II, 1S24, Count ^-«i«d- rode, Chancellor of the Empire, wrote to M. ?*. Mordvinof, of the Vxjard of administration, ii. part as follows : " It is hardly necessary for me to repeat that in all '] '^<' negotiations with England we have recognized, and always will recognize, the paramount importance of the interests of the Eussian American Company in this rnatter.'"- Under date of August 18, 1824, Count Nessel- rode, in communicating \]iv report of the com- mittee, already noticed, to the Minister of Finance, wrote: "I flatter mj'self with the thought that these documents will convince you, most gra- cious sir, as well as the board of administiation of > Vol. I, p. 63. = Vol. I,]). (i.J. I'ERIOD FROM 1825 TO 18G7. the Ivussiaii American Company, that it is His Majesty's iinn determination to protect the Com- pany's interests in the catch and preservation of all mariuc animals, and to secure to it all the advantages 1o which it is entitled iinder the cliarter and privileges."' 61 ^^H PERIOD BETWEEN THE TREATIES ANB THE CESSION OF ALASKA TO THE UNITED STATES IN 1867. In addition to the foregoing, there is found Ru^^ia conHmics . 1 , 1 ' . (» , n -» J '" '"XL-vciso control positive connrmot:on that by the treaties oi lo'J4 over Emng Sen. and 1825 Eussia did not surrender her claim to exclusive control of trade, and especially of the fur industry, in JBering Sea, in the fact that the same control over the Avaters of that sea was enforced after the date of those treaties as before. The second charter of the Russian American Third charter of Company, which was granted for a period of twenty years, was confirmed in 182',),- except in so far as it had been modified by the treaties of 1824 and 1825, and was thus renewed with all its exclusive franchises for another period of twenty years on the 1st day of January, 1842. The new charter will be found in the Appendix." ' VU. 1, p. ()S. - Vol. I, ).. '7. ' Vol. I, p. 28. The cluirter was iiut iietuallj is-ued until ()ct, 1-1, ISU. n 1 4« f . ti I 1 • i ! 62 TERIOD FROM 1825 TO 1867. < iji Third ciinrtcr of Its first section is as follows : " The Eussian Company. American Company, established for trading on the continent of Northwestern America, and on the Aleutian and Kurile Islands, and in every part of the Northeastern Sea, stands under the most high protection of His Imperial Majesty." High Tiihio pificod After this charter was granted, the Govern- by Coiii]iniiy upon . , , ,. . fur-seal indiistry. iiient continued to protect the sealing interests of the Company in Bering Sea, and of these the board at St. Petersburg wrote March 31, 1840, to the'chief manasjer of the Colonies : " You will bear in mind that we look upon the fur-seal catch as the most important item of our colonial enterprises, which must be preserved at all hazards, even to the temporary neglect of other resources. Everything must be done to prevent a decrease or the extermination of these valuable animals."^ And March 20, 1853, the board, in writing to the chief manager of the Colonies, again used similar language in a letter more fully referred to below : •' The board of administration respect- fully requests that^ in case the interests of the Company require a deviation from your plans, your Excellency will never lose sight of the fact that the interests of the Company are centered at tlie present time in the district surrounding the > Vol. I, p. 71. ii -I ; Ii, ■ PERIOD FROM 1825 TO ISO". 6d seal islands of the Pribilof and Commander groups, and that consequently the colonial waters must be visited by the Company's cruisers con- stantly and in every part, in order to watch and warn the foreign whalers."' The communication iust cited throws much, Wntcrs frequented •^ by fur-deals patrolled light upon the commercial activity of the Eussian '">' '**™^"'^ emiscrs, American Company, and may be accepted as indie 'itive of the methods by which, during the last term of its charter, it enforced its control " in the colonial waters " of its interests " centered at the present time in the district surrounding the seal islands of the Pribilof group." It appears that during those years the Company gave em- ployirent to eight ships in the summer, and in the winter to seven, without counting its whale ships, deferring to the duties of one of its officials, who was to inspect certii'ii of its stations, it is said : " This agent must observe and keep a record of all foreign ships seen during the voyage, and of the position of the same when observed, for the information of commanders of our armed cruisers and of the colonial authorities in Sitka, Kam- chatka, and Ay an." In the same letter is contained the followino; protective scheme, which had been adopted by mm > i !: r 1 [315] ' Vol. I, p. 72, 74. F n fi4 PERIOD FROM 1825 TO 1867. m Waters froqucntcdthe Companv, and which was to be carried out by f ur-80ftl9 pntrolled by armed cruisers, by its vessels during the summcr of 1854 : " 2. One of the larger vessels should leave the port of New Archangel (Sitka) for Ayan not later than the 15th of May, to arrive at the latter port at the end of June, This ship, which must be armed, will carry passengers, stores, and sup- plies for our Asiatic stations. On the outward voyage, the course of thif. vessel should be laid to the northward of the chain of the Aleutian Islands, in order to meet foreign ships entering Bering Sea and to warn them againt cruising in pursuit of whales in the vicinity of the seal islands of the Pribilof and Commander groups. . " 3. A second small vessel, the swiftest of the fleet, probably the Menskikof, with a naval crew and commandt'd by a naval officer, must sail from Sitka at the end of April for the sole purpose of watching the foreign whale ships in the southern part of Bering Sea and along the chain of the Aleu- tian Islands. On this vessel supplies may be for- warded to Copper and Bering Islands and per- haps to Attn and Atka. . . . This vessel must be kept cruising constantly over the waters mentioned above, and must not enter any of the harbors except for the purpose of obtaining water and wood, on which occasions the stay of the PERIOD FROM 1823 TO 1867. 65 vessel must be limited to the briefest possible Waters froqucntod by fur-8Pals imtrollcd period. Each of the above-mentioned islands by armed cruUers. must be visited by this cruiser at least twice dur- ing the season. . . . The conclusion of this cruising voyage depends upon the time at which the foreign whale ships leave Bering Sea, which is probably at the end of August or the begin- ning of September. . . . " 5. The second large vessel must be employed to supply the islands of the Unalaska district, the Pribilof Islands, and St. Michael's redoubt, and also to carry on intercourse with the coast tribes of Bering Sea on the Asiatic as well as on the American coasts. . . . During the whole time of the presence of this ship in the northern part of Bering Sea and the vicinity of the Pribilof Islands, the commander must be charged with the duty of cruising in search of foreign whale ships and of English vessels carry- ing on trade \'ith our savages. This ship, also, must make no prolonged stay at any anchorage, and must be placed under the command of a naval officer, with a crew consisting principally of sailors of the navy. . . . " 7. The fourth large vessel of the fleet, which may be used for voyages to Kamchatka, must also be fitted out as an armed cruiser, and kept hi readiness to proceed -to any point in Bering [S15] F 2 I ; 1(1 Mr I ii '1. ^■i|l 66 PERIOD FROM 1825 TO 18G7. I '!l : 1 i , [ ) ' i P' ; \\ 1 1 1 ' ■ 1 1 !^ji 'ij ■' ; 1 ill 1:^. Wiitcrs frcquontci Sea or ill Siberian waters, from which the pres- bv fur-souls patrolled p p • i • i n i i by urnifci cruisers, eiicc oi lorcigii sliips may 06 reported by the smaller vessels in the course of the season. . . " In transmitting to your Excellency the iihova outlined plan for the employment of the colonial lleet, the board of administration respectfully requests that, in case the interests of the Company require a deviation from our plans, your Excel- lency will never lose sight of the fact that the interests of the Company are centered at the present time in the district surrounding the seal islands of the Pribilof and Commander groups, and that consequently the colonial waters must be visited by the Company's cruisers constantly and in every part, in order to watch and warn the foreign whalers. For this purpose detailed instructions have beenformulatedforourcruisers, as well as for the commanders of tlie whale ships of the Company, which are obliged to serve in the capacity of cruisers when engaged in whaling in Bering Sea. In all cases, the command of a vessel under orders to cruise in colonial waters must be given to naval officers, who will thereby find an opportunity to make themselves ac- quainted witii the routine of colonial trans- actions, while at the same time their rank will give authority to our proceedings."^ ' Vol. I, p. 72i PERIOD I'llOM 1825 TO 1807. 67 Uiicler date of June 20, 18G1, the chief man- Fuvtiiov instnio- lions us to cniisiiig. ager of the Colonies -wrote to Benzeman, of the Imperial navy, comnianding the steamer Alex- ander the Second, in part, as follows : " It has come to my kno^Yledge that in the present year two whaling vessels have sailed from San Fran- cisco for the purpose of trading on the Pribilof Islands or of hunting in their vicinity. Conse- quently I would suggest that during your pres- ence in those waters you will exercise the duties of an armed" cruiser, to prevent any unlawful acts on the part not only of these vessels, but of any others which you may find in Bering Sea."^ Lastly, there was issued from Sitka in the year rrocinmution of . . ^. 1864 us to trado in 1864 the following proclamation : " It is hereby Russian territory imd Wilt crs proclaimed to all whom it may concern, that if any person or persons after reading these pres- ents does not immediately abandon Russian ter- ritory or waters, or if they continue forbidden trade or traffic, they shall be seized immediately upon the arrival of the first Eussian vessel upon the scene of their illegal transactions and taken for trial to New Archangel (Sitka) ; and all goods, as well as the vessel found in possession of such persons, shall be confiscated."- > Vol I, p. 74. - Vol. I, p. 80. Ww ■I i ;:; ,!::.. i!: ( h 1 -A 1 1 ■ #ii « 68 PERIOD FROM 1S25 TO 1807. i Whniiiig oonipniiy lu 1850 there had been granted to the Russo- ])i'()liiliit I'd from viHiiiiiK waters fro- Fiiuiish WhuHiipf Compauy a charter which con- tjui'iitrd hy fur-sciils. tained the following provision : " The ships of the Whaling Company entering the ports of the Kus- sian American Company are subject to harbor regulations established for the guidance of all shipping, but they must not anchor or cruise in waters where the presence of sTlips or the pursuit of whales may alarm any marine animals or inter- fere with the regulations of the Company for their protection and increase,"^ While the foregoing only purports to be a municipal regulation, yet it is useful as furnish- ing another illustration of the constant protection which the Eussian Government extended to its seal herds. The third charter of the Eussian American Company expired in 18G2, but the Company nevertheless continued to operate under it pend- ing the decision of the question of its renewal for another term. With regard to the latter it was at first, in 1865, decided to extend the Company's privileges only to the region about Bering Sea ;^ but the following year it was determined by the Council of State, in an opinion which will be ' Sec. II, § 9. Tlio full text of the clmrtor will be found in Tiklimenief, Vol. II, app. p. 1 et seq. ' Letter from the Department of Commerce and Munufucturea to the board, June 19, 1865, containing report of the Minister of Finance, Vol. I, p. 75. Teriod from 18G2 to 1867. I ;i PERIOD FROM 1825 TO 18C7. 69 )e found in Concliisioiis from fort'Roing rcviuw, found in the Appendix,^ that "the exclusive right r.'ri.ui from isoa of the Company to engage in the fur trade through- out the entire colonial territory shall be con- t inued." No new charter, however, was granted, for the year following witnessed the transfer of tlie territory of Alaska to the United States. From the foregoing historical review itappears: First. That prior and up to the date of the treaties of 1824 and 1825, llussia did assert and exercise exclusive rights of commerce, hunting, and fishing on the shores and in all the waters of Bering Sea. Second. That the body of water known as Bering Sea was not included in the phrase "Pacific Ocean," as used in the treaty of 1825. Third. That after said treaty of 1825 the llus- sian Government continued to exercise exclusive jurisdiction over the whole of Bering Sea up to the time of the cession of Alaska to the United States, in so far as was necessary to preserve to the Eussian American Company tlie monopoly of the fur-seal industry, and to prohibit the taking on the land or in the water by any other persons or companies of the fur-seals resorting to the Pribilof Islands. Fourth. That before and after the treaty of 1825, and up to the date of the cession of jMaska ' Vol. I, p. 79. il I '. ., : ' i ' J i : 1 ^^^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 128 [25 ^ ^ ■ 2.2 •u ISA Mil Hf y^ 12.0 I m \\25 lllll 1.4 o^ ^ y] "^w>* J^ ^W^ '> v: / /A Photographic Sciences Corporation 23 WiST MAIN STREET WEBSTER, N.Y. 14StO (716) 873-4S03 ' !■' i iil 70 CESSION OF ALASKA to the United States, British subjects and British vessels were prohibited from entering Bering Sea to hunt fur-seals, and that it does not appear that the British Government ever protested against the enforcement of this prohibition. CESSION OF ALASKA TO THE UNITED STATES B7 THE TBEAT7 OF 1867. Russia coded to Qu March 30, 1867, the Governments of the Uiiitoil States iv por- tion of Bering Sea. United Statcs and Eussia celebrated a treaty, No objection ina-le. whereby all the possessions of Eussia on the American continent and in the waters of Bering Sea were ceded and transferred to the United States.^ This treaty, which, prior to its final con- summation, had been discussed in the Senate of the United States- and by the press, was an as- sertion by two great nations that Eussia had heretofore claimed the ownership of Bering Sea, and that she had now ceded a portion of it to the United States; and to this assertion no objection is ever known to have been made. Article I of this treaty establishes the boun- daries of the territory ceded. It takes for the eastern boundary the line of demarcation Boundaries of tcr^ ritory ceded. ' Vol. I, p. 43. - IIouso Ex. Doc. No. 177, Fortieth Congress, second session, pp. 121 et seq. l! 1 1 • TO THE UNITED STATES. n between the Russian and the British possessions Boimtinries of tor- . 11. ^ ritory ceded. in North America, as that hne was estab- Ushecl by the Briush-Russian treaty of 182o.^ On the west the line of demarcation is stated as follows : " The western limit, within which the territories and dominion conveyed are con- tained, passes through a point in Beliring's Straits on the parallel of sixty-five degrees thirtv minutes north latitude, at its intersec- tion by the meridian which passes midway between ^the Island of Krusenstern, or Igna- look, and the Island of Ratmanoff or Noonar- book, and proceeds due north, without limita- tion, into the same Frozen Ocean. The same western limit, beginning at the same initial point, proceeds thence in a course nearly southwest, through Beliring's Straits and Behring's Sea, so as to pass midway between the northwest point of the island of St. Lawrence and the southeast point of Cape Choukotski, to the meridian of one hundred and seventy- two west longitude; thence, from the intersection of that meridian, in a south- westerly direction, so as to pass midway between the island of Attn and the Copper Island of the Komandorski couplet or group in the North Pacific Ocean, to the meridian of one hundred and ninety-three degrees west longitude, so as to • ; » Vol. I, p. 89. r Cession uninciim' biTt'd. 72 CESSION OF ALASKA include in the territory convej'ed the whole of the Aleutian Islands east of that meridian." Article VI contains the foliowinf» stipulation : "The cession of the territory and dominion herein made is hereby declai'ed to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions by any asso- ciated companies, whether corporate or incorpo- rate, Russian, or any other, or by any parties, except merely private individual property hold- ers; and the cession hereby made conveys all the rights, franchises, and privileges now belong- ing to Russia in the said territory or dominion, and appurtenances thereto." RuHKi.i'8 rigiits The conclusion is irresistible from a mere over sealeries passeil „,.. , ni-i c to United States. rcadmg ot this mstrument that all the rights oi Russia as to jurisdiction and as to the sealeries in Bering Sea east of the water boundary fixed by the treaty of March 30, 1867, passed unim- paired to the United States under that treaty. In fact, the British Government has announced its readiness to accept this conclusion without dispute.^ Review of juris- The jurisdiction which Russia exercised over diction exercised bj- . ^ . . i . .1 i , Russia and her Bering Sca for a century prior and up to the date of the transfer of a portion of its coasts and waters to the United States has been so fullyset forth that ' Lord Salisburv to Mr. Blaine, Fob. 21, 1891, Vol. I, p. 294. TO THE UNITED STATES. 73 no further amplification seems necessary. The Review of jiiris. ; 1 • 1 . • 1 1 . ,."' »iir-«eai in. territory, or in the waters thereof. . . ."' That the waters above referred to were those of the eastern half of Bering Sea not only appears from the language of the treaty itself, but also from Mr. Sumner's definition of this language publicly given in the Senate of the United States. In the speech already cited, in describing the line of demarcation drawn in the treaty through Bering Sea, he refers to it as making the western boundary of our country the dividing line which separates Asia from America ; and he speaks of the waters contained within this boundary as " our part of Bering Sea."*^ ' The above sections haro been respectively incorporated into the Revised Statutes of the United States us sections 1U54 and 1956, Vol. I, p. OG. ^ House Ex. Doc. No. 177, Fortieth Congress, second session, at p. 125. Following are extracts from the above speech : " Starting from the Frozen Ocean, the western boundary descends Bchring Straits midway between the two islaiidii of Knisenstcrn and Ratmanof, tothe parallel of 06" 30', just below where the continents of America and Asia a))proach each other the nearest ; and from this point it proceed* in a course nearly southwcBt through Uehring Straits, midwny be- tween the island of St. Lawrence and Cape Ciioulcotski, to the meridian of 172" west longitude, and thence, in a southwesterly direction, trovorsing Behring Sea, midway between the island of Attu on the east and Copper Island in the west, to the meridian of IWi" west longitude, leaving the prolonged group of the Aleutian Islands in the IWBsessions now transferred to the United States, and making the western boundary of our country the dividing luie which separates Asia from Americ&." • * • • • " In our part of Behring Sea there are five considerable islands, the largest of which is St. Lawrence, being more than ninety-six miles long." [315] Q HO I"i;i!l(>l> S|N( K Till". ( MssroN. .\(iion<.f(oiigrc9s. My tlic act of Mai'ch 3, 18G9, Congress pro- vided " That the islands of St. Taid and hJt. George, in iUaska, be, and they are liereby, de- clared a special reservation lor Government pur- poses ; "' and on July 1, 1870, an act of Congress was approved, entitled "An Act to prevent the extermination of fur-bearing animals in Alaska,"- particular reference being had to the fur-seals of the Priljilof Islands. Hy the use of the term "in Alaska" in the two foregoing acts, Congress clearly recognized the fact that Bering Sea was i. part of the territory of Alaska, for the islands therein referred to are situated at a distance of two hundred miles from the maim and. The executive branch of the United States Government, in carrying out the foregoing con- gressional legislatit)n, has uniformlv held that the United States ha\e authority to protect their scaling interests throughout that portion of Ber- ing Sea contained within the western boundary referred to in the treaty of 1867. On the 12th of March, 1881, the Treasury De- partment so interpreted the law in a letter written to Mr. J). A. Ancona, collector of customs at San Francisco.'^ Speaking of this western boundary, ' Vol. T, p. 92, (15 Slat, 348.) = Vol. I, p. 02, (IGStnt., 180.) ■' Vol. I, 1). 102. Action of the Exeuutire. I'KHIOI) Hl.Vt'K TIIK t'KS.Sl<>N. 81 it is said: "All the waters within that boundary Action o[ thr UzpiMitive, fo the western end of tlio Aleutian Archipelago and chain of islaiuls are considered within the waters of Alaska Territory, All the penalties prescribed by law against the killing of fur-bear- ing animals would, therefore, attach against any violation of law within the limits before described.' This decision was confirmed by the Treasury Department April 4, 1881 , and again on March (J, 188(1. On this last occasion the Secretary of the Treasury wrote as follows: "The attention of your predecessor in o'Vice was called to this subject on April 4, 1881. This communication is addressed to you, inasmuch as it is understood that certain parties at your port contemplate the litting out of expeditions to kill fur-seals in these waters. You are requested to give due publicity to such letters, in order that such parties may be in- formed of the construction placed by this Depart- ment upon the provision of law referred to."' Since the year 1867 the Treasury Department Revcmio cuiiprs . , , sent to Bering Sen has, every year, with a single exception, sent one to protect fur-!..Mii life. or more revenue cutters to Bering Sea for the purpose of guarding the interests of the United States centered there,' including the protection ' Vol. I, p. 103. - Letter of the Secretary of the Tivasury to the Secretary of Slnte, July V,, 1892, Vol. I, p. 110. [315] G 2 rv2 nKKlOD SINCE THK CKSSIOX. I * I Vessels seized in ol lur seals aj^Riiist iiifractioas of the law relating 1886 and 1887. , i •, , • , -j j to them ; and tuat this law was not regarded as a dead letter is attested by the fact that in 1886, prior to which time vessels had not entered Bering Sea in any numbers for the purpose of pelagic sealing, there were seized in those waters four vessels, three of them British, while in the follow- ing year there were seized fifteen vessels, of which six were British ; the foregoing vessels, with a single exception, being found at a distance greater than tlii'ee miles from any land/ In 1888 unofficial assurances were given to the British Government that no seizures would be made; for at that time negotiations were being carried on looking to an amicable adjustment of the points at issue with regard to Bering Sea.'' By act of March 3, 1889,* Congress in effect ratified the interpretation heretofore made by the j^^xecutive as to the boundary of the United States in Bering Sea, as well as the seizures of vessels made under its orders in the vears i88<) and 1887. This is apparent both from the language ol' the act and from the debates which preceded its enactment. Its third section is as follows: "That section 1956 of the Eevised Congress rntifies action of P^xecntive. ' Table of vessels seized in Bering Sea, Vol. I, p. 108. - Mr. Kdwurdes to Mr. Blaine, Vol. I, p. 199. » Vo!. I, p. 99. PERIOD SINCE THE CESSION. 83 Statutes of the United States is lierebj^ declared to include and apply to all the dominions of the United States in the waters of Bering Sea, and it shall be the duty of the President at a timely President's procU- * . . tnation. season m each year to issue his proclamation and cause the same to be published, for one month at least, in one newspaper (if any such there be) pubhshed at each United States port of entry on tlie Pacific coast, warning all persons against entering such waters for the purpose of violating the provisions of said section, and he shall also cause one or more vessels of the United States to diligently cruise said waters, and arrest all persons and seize all vessels found to be or to have been engaged in any violation of the laws of the United States therein." Annually since the enactment of this law the Veiseis seized in 1889 President of the United States has issued his proclamation accordingly,* and in the year 1889 the revenue cutters again seized vessels dis- regarding its provisions, capturing in all six, five of which were British." In the month of June, 1891, the United States The Modtu n- and GreatBritain agreed upon the Modu.'i Vivendi,^ under the terms of which both Governments iiiKlertook 1o protect seal life in the waters of ' Vol. I, p. n, • Table of vessels seized in Cerinj; Sen, Vol I. p. lOS. ' Vol. I. p. 317. rendi. il 84 Action of United States courts. Siimnmrv. PEBIOD SINCE THE CESSION. Bering Sea, and in May, 1892, this Modtis was renewed for the season of 1892.* Lastly, the United States courts, whenever the question has come up before them, have refused to interfere with the executive branch of the Government in its interpretation of the treaty of 1867 and of the laws of Congress enacted on the basis of what the United States acquired by this treaty. The question as to the legality of the seizures of British vessels made by the United States revenue cutters in the year 1887 within the eastern portion of Bering Sea and at a distance greater than three miles from any land came up for decision before Judge Dawpon, of the United States court for the district of Alaska. The opinion, which was filed October 11, 1887, is given in full in the Appendix.^ It will be seen by reference to it that the court held that the United States Government has authority to protect seal life throughout the eastern part of Bering Se i, included within what is termed the western boundary line in the treaty of 1867. Other decisions to the same effect will be found in the Appendix.- The foregoing references are made in order to 'Vo'.I, p.O. •-"Vol. T, p. 115. PERIOD SINCE THK (.KSSlOiV. 85 show : first, the understanding which existed in Summary. the United States, at the time of the purchase and cession of Alaska, as to the scope and effect of the jurisdiction exercised by Eussia over the waters of Bering Sea, and the enhanced value which was thereby placed upon the fur-seal herd of the Pribilof Islands ; and second, that the United States have since the purchase continued to exercise the same jurisdiction for the purpose of protecting the herd. But in xLe United states , , . . ^ . • t , f . .• ^ do not rest their uetermmmg what right ol protection or property case nitogethcr upon , . _, -I'll. -in jurisdiction over Uer- this (rovernment has in the lur-seals irequent- ing Scu. iug the islands of the United States in Bering Sea when such seals are found outside of the ordinr 'y three-mile limit, it is not compelled, neither does it intend, to rest its case altogether upon the juris- diction o\er Bering Sea established or exercised by Eussia prior and up to the time of the cession of Alaska. It asserts that, quite independently of this jurisdiction, it has a right of protection and property in the fur-seals frequenting the Pribilof Islands when found outside the ordinary three-mile limit, and it bases this right upon the established principles of the common and the civil law, upon the practice of nations, upon the laws of natural history, and upon the common iutere-ls of niaiikiiid. I ;1 I il? 86 PERIOD SrN'CE THE CESSION. ft! In order that this claim of right of protection and property may be clearly presented, it will be necessary to enter in some detail upon an exami- nation of fur-seal life at the Pribilof Islands and elsewhere and of the various interests associated with it. PART SECOND. RELATING TO THE HABITS, PRE- SERVATION, AND VALUE OF THE ALASKAN SEAL HERD, AND TO THE PROPERTY OF THE UNITED STATES THEREIN. ill m PART SECOND. RELATING TO THE HABITS, PRESERVA- TION, AND VALUE OF THE ALASKAN SEAL HERD, AND TO THE PROPERTY OF THE UNITED STATES THEREIN. HABITS OF THE ALABKAW SEAL. THE PRIBILOF ISLANDS. The Pribilof Islands are the home of the Alas- kan fur-seal (Callorhinus ursinus). They are peculiarly adapted by reason of their isolation and climate for seal life, and because of this peculiar adaptability were undoubtedly chosen by the seals for their habitation.* The climatic conditions are especially favorable. The seal, while on land, needs a cool, moist, and cloudy climate, sunshine and warmth producing a very injurious effect upon the animals.^ These requi- site phe nomena are found at the Pribilof Islands and nowhere else in Bering Sea or the North Note. — Names foxind in citations refer to depositions of same found in the Appendix. ' Charles Bryant, Vol. II, p. 4; Samuel Falconer, Vol. 11, p. 164; T. F. Morgan, Vol. II, p. 61 ; C. M. Scammon, Vol. II, p. 475; Daniel Webster, Vol. II, p. ISO ; J. C. Redpath, Vol. II, p. 148. • Samuel Falconer, Vol. II, p. 164. ■ 90 CIimat«. i ji. HABITS OF THE ALASKAN SEAL. Pacific, save at the Commander (Komandorski) Islands.' From May to November, inclusive (the period when the majority of the seals are on land), the mean temperature is between 41° and 42" F. ;* during August, the warmest month, the mean is 47.2° F. ;' during the warm months of June, July, and August the highest temperature reached was 62°, which occurred but once in eight years/ and tlie lowest was 28°, which was reached but once during the same period.* This constancy of tem- perature is further supplemented by the absence of sunshine and the almost continual presence of fogs, mists, or light rains.** During eight years the mean percentage of cloudiness on the islands for the months of June, July, and August was 92 ;^ while during that period of eight years, con- sisting of seven hundred and thirty-six days, but eight clear days occurred and during the months of August not one.* The same peculiarity of climatic condition has also been observed at the ' Charles Bryant, Vol. II, p. 4. - Samuel Falconer, Vol. II, p. 164 ; T. F. Morgan, Vol. II, p. 61 ; Wcatber liureau Tables, Vol. I, p. 501. ■> Weather Bureau Tables, Vol. I, p. 591. < Weather Bureau Tables, Vol. I, p. 592. • . * Charles Bryant, Vol. II, p. 4 ; Samuel Falconer, Vol. II, p. 164 ; T. F. Morgan, Vol. II, p. 61 ; J. Stanley Brown, Vol. II. p. 12. « Weather Bureau Tables, Vol. I, p. 593. THE PRinil-OIf ISLANDS. ei antarctic coasts and islands once frequented by ciimnte. vast herds of fur-seals.' The Alaskan seals evidently consider the Home of the fur- seal. Pribilof Islands as their homej for while on or about them they are much less timid and fear- ful than when met with in the sea along the American coast.- Capt. C. N. Cox, master of the schooner E. B. Marvin, who was examined by Collector Milne, of the port of Victoria, British Columbia, in 1892, says ; " They (the seals) seem to be right at home there (in the waters adja- cent to the islands) and not travelling about so much.'" The two islands, St. Paul and St. George, St. Paul and St. are the only ones of the Pribilof group on which breeding seals land. The shores, com- paratively limited, occupied by the animals are termed " rookeries" and are divided into "breed- ing grounds " and " hauUng grounds."* The " breeding grounds " or " breeding rook- eries " (the areas occupied by the breeding seals and their offspring) are rocky areas along the water's edge, covered with broken pieces of lava of various sizes and shapes, those nearest the sea having been rounded by the action of the waves George. " Breedinsr grounds." '^James W. Budington, Vol. II, p. 694. 2 Samuel Falconer, Vol. II, p. 165; Daniel Webster, Vol. II, p- 182. " British Blue Book, U.S. No. 3 (1892) ; C— 6635, p. 176. * J. Stanley Brawn, Vol. 11, p. 12. w 92 " Broi'itinK grniindn." "Hauling Rroiindf JfABIlW OK THE M.AHKAN SKAI,. and the ice ; between the rocks are sometimes found smooth spaces of ground, but in no case are these areas of any extent, and they vary greatly in size. That these rough, uneven shores are chosen for the breeding grounds is probably because the bowlders act as a protection to the new-born seals from the surf and storms,* and also because the smoother rocks offer convenient resting places for the female seals in parturition.- The " hauling grounds " (areas occupied by the non-breeding seals) are tlie sandy beaches at one side of the breeding grounds, or the smoother spaces back of and contiguous to the breeding seals. '^ The areas covered by the rook- eries on the respective islands vary considerably, being in the ratio of about seven or eight on St. Paul to one on St. George. St. Paul is much lower than St. George, the shores are broader, and more territory is available upon it for occu- pation by seals than on the latter, which accounts in a measure for the disproportion in seal popu- lation on the two islands.* The former island has ten rookeries (the largest being the Northeast Point Rookery), and the latter has five.'' ' S. N. Buynitsky, Vol. II, p. 21. - J. Stanley Brown, Vol. II, p. 15. =' .T. Stanley Brown, A'ol. IT, p. 12 ; Samuel Falconer, Vol. II, p. 164. ■• J. Stanley Brown» Vol. II, p. 11. ' J. Stanley Bi-own, Vol. II, p. 13, TiiK rnnuroK islaxds. J)3 From the nature of the ground covered by the Cennux of «'ui lifo breeding .seals it is impossible to reach even an approximate estimate of the number of seals on these islands.' The roughness and unevenness of the breeding grounds preclude the possibility of calculating the number in a given area, so as to obtain a rule which can be applied to other rookeries or to other portions of the same rookery in estimating the seal population. The density of seal life varies according to the size and fre- quency of the rock masses and what might be a correct rule for one locality would be entirely incorrect for another. Besides this, the seals are constantly in motion, the females continually going to and coining from the water and new occupants of the breeding grounds are incess- santly arriving.^ Under these circumstances it is clearly evident that all estimates which attempt to fix the actual number of seals are so unreliable as to be worthy of no consideration for present or future calculations.^ On the other hand, any considerable increase or decrease in the seals on the islands can atofTeaU Determination of inoreabo or decrease ' W. B. Taylor, Vol. II, p. 178 j J. II. Moulton, Vol. II, p. 71; B. F. Scribner, Vol. II, p. 89 ; H. A, Glidden, Vol. II, p. 110 ; H. H. Mclntyre, Vol. II, p. 48 j H. N. Clark, Vol. II, p. 159 ; Daniel Webster, Vol. II, p. 181. '' W. B. Taylor, Vol. II, p. 176 ; H. A. GUdden, Vol. II, p. 110 ; Dnniel Webster, Vol. II, p. 181. ' W. B. Taylor, Vol. II, p. 176 j J. H. Moulton, Vol. II, p. 71; B. F. Scribner, Vol. II, p. 89; H. A. Glidden, Vol. II, p. 110. 91 II ARITs or ri||.; \|,\SK VN sK U, Detoriuiimtion of once be rc'co'niized bv one familiar with the inurcAM* or uecrenNu " «'•■•«'»''' rookerit's. The s])aces occupied by tlie breeding seals can be correctly measured.' If there has been an increase in the number of seals, the areas formerly occupied will be filled and new ground covered, for the seals crowd together on the bi'eeding grounds as closely as the nature of the ground will permit." Therefore, an increase in the extent covered by breeding seals is an infaUible indication of an increase in the seal herd. Bisllnctioii be- tweon Alaskan nnd Russian lierda. rilK ALASKAN SKAL IIEHD. Tlie tw*o great herds of fur seals which frequent the ]3ering Sea and North Pacific Ocean and make their homes on the Pribilof Islands and Commander (Komandorski) Islands, respec- tively, are entirely distinct from each other. The diflerence between the two lierds is so marked that an expert in handling and sorting seal skins can invariably distinguish an Alaskan skin from a Commander skin." Mr. Walter E. Martin, head of the London firm of C. W. Martin & Co., which has been for many years engaged in dressing and dyeing seal skins, describes the ' W. B. Taylor, Vol. II, p. 177 5 J. H. Moulton, Vol. II, p. 71 ; B. F. Scrihiier, Vol. II, p. 80. ^ J. ir. Moulton, Vol. II, p. 71 ; Daniel Webster, Vol. II, p. 181. W. E. Martin, Vol. II, p. £69 ; C. W. Price, Vol. II, p. 521 : George Bantle, A'ol. II, p. 508; George Rice, Vol. II, p. 673; Alfred Frager, Vol. II, p. 657. 3 rUV. ALASKAN SMAI, KKIMV 95 (lid'cronrc as follows : " The ConixM- Ishiiul (one Piiiinrdon i..- of the Comniaiulor Islands) skins show that the i{ii»»mi> lu' u. animal is narrower in iho nock and at tho tail ihan tho Alaska soal, and the fnr is shorter, [)ai'ticnlarly under the flippers, and the hair has a yellower tinge than the hairsof the Alaska seals."' In this statement he is borne out by Sneigerod', a native chief on the Commander Islands and onee resident on the Pribilof Islands,'- C. W. Price, for twenty years a dresser and examiner of raw seal skins, describes the difTerence in the fur as heing a little darker in the Commander skin.'' The latter skin is not so porous as the Alaskan skin, and is more difficult to uidiair.*^ The dif- ference between the two classes of skins has been further recognized by those engaged in the seal- skin industry in their difTerent market value,'"' the Alaska skins always being held at from twenty to thirty per cent, more than the " Coppers " or Commander skins." This difference in value has also been recognized by the Kussian Government.''' ' AV. E. Martin, Vol. II, p. 5G9. -T. F.Aforgftn, A'ol. IT, p. 201. ' C. AV. Price, Vol. II, p. 521 ; Ooorgc Baiitlc, A'ol. II, p. 508. * John J. Phclan, Vol. II, p. 520. ■' C. A. Williams, Vol. II, p. 337 i AV. E. Martin, Vol. II, p. BGO ; C. W. Price, A'ol. II, p. 521 j Gec"^o Bnnlle, Vol. II, p. 508. " C. A. AViUianis, Vol. II, p. 537) AVillinni C. B. Stump, Vol. II, p. 575. • C. A.AVillinms, A'ol.II.p. 537. . * [315] n m m I- 96 Does not minglo with Ku'iiiian herd. ILVmrS OF THE ALASKAN SKAL. These two herds of fur-seals do not intermin- gle." each keeping to its own side of Bering Sea and the Pacific Ocean, and each following its own course of migration." Dr. J. A. Allen, the well known authority on Pinnipeds,* and Curator of the American Museum of Natural History, says : " The Commander Islands herd is evi- dently distinct and separate from the Pribilof Islands herd. To suppose that the two herds mingle, and that the same animals may at one time be a member of one herd and at another time of the other, is contrary to what is known of the habits of migrating animals in general." ^ Capt. Charles J. Hague, who since 1878 has made about twenty voyages along the Aleutian Islands from Unalaska to Attn, mostly in the spring and fall of the year, states that he does not remember ever having seen fur-seals in the water between Four Mountain Islands and Attn ' Eepoit of American Bering Sea Commissioners, post, p. 323 ; J. Stanley Urown, Vol. II, p. 12; Charles Bryant, Vol. II, p. 4 ; C. A. Williams, Vol. II, p. 537 ; Gustavo Nicbaiim, Vol. II, p. 78; Arthur Newman, Vol. II, p. 210 ; C. H. Anderson, Vol. II, p. 205. 2 11. H. Mclnt) ve. Vol. II, p. 42 ; C. M. Sca-jimon, Vol. II, p. 474 ; John P. Blair, Vol. II, p. 194. * Article by Dr. Allen, Part III, Vol. I, p. 406; see also Beport of American Bering 8ca Commissioners, post, p. 323. * Dr. Allen, at the request of the Department of State, lias pro- pared a paper on Pinnipedia, Seal Hunting in the Antarctic Regions, tlie Alaska Seal Herd and Pelagic Sealing, which will be found in Vol. I, pp. 365-410, to which the attention of the Tribunal of Arbi- tration is especially directed. THE ALASKAN SEAL HEED. 97 Island.' Between parallels 174° west and 175° Docs not mingle ^ with RuBBian herd. east seals are seldom seen,^ and only a few scat- tering ones are seen at lonj:' intervals in the neighborhood of Attn Island, which probably, from the course in which they are traveling, are members of the Commander herd.^ Pud Zaotchnoi, one of the native chiefs of the Aleuts of Atka Island, says : " The fn.r-seal is only rarely seen about this region, scattering ones being seen occasionally during the months of September, October, and November, traveling from Ihe northward to the southward through the passes between Atka and Amlia islands. Those seen are always gray pups, and usually appear after a blow from the northeast. The most I ever saw in any one year was about a dozen I have never seen large bulls or full grown fur-seals in this region.* These gray pups are the young born that season, which having left the islands in the autumn are driven out of their course by the storms, being unable to battle against the waves as the older seals do. A further evidence that seals do not frequent the waters between the parallels of longitude men- • Cliarlos J. Hngue, Vol. II. p. 207. - Arthur Newman, Vol. IT, p. 210 ; C. H. Anderson, Vol. II, p. 205. •' Eliah Prokopief, Vol. II, p. 215 ; Filaret Prokopief, Vol. II, p. 210 ; Samuel Kohoorof, Vol. II, p. 214. ■* Vol. II, p. 213 ; Kassinn Qorloi, Vol. IT, p. 212. [HIT)] h'2 B< i* • 'i iMh 1 ■ , t 'i *( w 98 HABITS OP TirK ALASKAN SKAT>, il 4: f - , 4:1 .i, ClossiScation. Does not mingle tioncd is the fact that sealing vessels are seldom with KuBsian herd. seen in those regions, and never remain any length of time.* : :: '. ■; ;;-;.'. i/i.; ::.;n) v.'\ir-'i .' In considering the habits of the Alaskan sea" the herd will be divided into four classes, based upon age and sex. .•;':';r..' cr!) to j.r:o[i:;nr 1. First. The pups, or pup seals, being the seals of both sexes under one year of age. L !;;lii- 'J:o . Second. The bulls, or " sekatchie," being the mal 3 seals from six or seven years old upwards, which are able to maintain themselves on the breeding grounds. •' , ,. ' ,. , ' ■ Third. The cows, or " matkie," being the female seals over one year old. • • • . .- ' Fourth. The bachelors, or " hoUuschuckie," being the non-breeding male seals, their age rang- ing from one to five or six yer s. All references hereafter made to seals, unless specifically stated to the contrary, pertain to the Alaskan fur-seal, and all mention of rookeries refers exclusively to those located on St. Paul and St. George islands of the Pribilof group. ■ t. . • THE PUPS. ' - The pup is born on the breeding grounds during the months of Jun^? or July.- Its birth ' Elinh Prolcopief, Vol. II, p. 215 ; Knssinn aorloi, Vol. IT, ji. 212. - T. F: Morgnn, Vol. II, p. 01 ; Samuel Fulroner, Vol. II, p. 104. Birth. ..!.. :i' THE PUPS. luf:'.: 99 usually occurs within a day or two after the mother seal arrives on the islands,' and often within a few hours.- A young seal at birth weighs from six to eight pounds, its head being abnormally large for the size of its body ;^ it is almost black in color, being covered with a short hair, which changes to a silver-gray color af>^r tlie pup learns to swim.* These two grades of pups are distinguished by the names "black pups " and " gray pups." The coat of hair is its only covering, the under coat of fur not being found on the new-born seal.* i. For the first six or eight weeks of its life the pup is confined entirely to the breeding grounds, being unable to swim." Mr. Thomas F. Morgan, for nearly twenty years located on the Pribilof Islands as one of the agents of the lessees, states that he has often seen young pups washed off by the surf and drowned.^ Dr. W. L. Hereford, for many years resident physi( ian on the Pribilof Islands, relates that a pup being found which ' Charles Bryiint, Vol. II, p. 4. - Clmrlcs Bryant, Vol. II, p. 4 ; J. Stanley Brown, Vol. II, p. 13. Anton MclovedofE, Vol. II, p. 144 ; J. C. Rcdpath, Vol. II, p. 148. ' JMniol Webster, Vol. II, p. IbO. 'Samuel Falconer, A'ol. II, p. lOJ. M. II. Moulton, Vol. II,p. 72. " Anton Melovcdoff, Vol. II, p. 144; Aggie Kushin, Vol. II, p. 129; Karp Butorin, Vol. II, p. 101; John Frutis, Vol. II, p. 108; Article hy Ur. Allen, Part III, Vol. J, p. 407 ; Daniel Webster, Vol. II, p. 180. 'Vol. 11, p. (il. Birth. Inability to swim. 100 HABITS OF THE ALASKAN SEAL. il Inability to Bwim. had lost its mother, was placed near the water's edge in order that it might swim to an adjoining rookery and perchance find its parent. " Day after day " he continues, " this pup wai watched, but it would not go near the water, and neither did its mother return. After several days or so, a new employe of that season only, and knowing nothing whatever of fur-seal life and habits, coming along that way and finding the pup in the grass, thinking probably that he had gotten lost from the other side, took him up and threw him into the water, with a view of giving him a chance of swimming back home. It was mis- taken kindness, however, for he was immediately drowned."^ Dr. H. H. Mclntyre, for twenty years on the islands as superintendent of the Alaska Commercial Company, and who has made the seal habits and industry a life study, states " that it should be particularly noted that they (the pups) are not amphibious until several weeks old."'- Mr. J. H. Moulton, who was assist- ant Treasury agent on the islands for seven years, states that he " has seen pups thrown in the water when their heads would immediately go uuder, and they would inevitably drown ' Vol. II, p. 34. = Vol. II, p. 41. THE PUPS. 101 if not rescued.'" The fact that they are unable inability to sivim. to swim is further evidenced by their manifest dread of the water. Mr. J. Stanley Brown, a scientist detailed by the United States Govern- ment to investigate seal life on the Pribilof Islands, says : " The pups are afraid of the water ; they have to learn to swim by repeated elTort, and even when able to maintain themselves in the quiet waters will rush in frantic and ludi- crous haste away from an approaching wave."^ Capt. Bryant, Treasury agent in charge of the Pribilof Islands from 1869 to 1877, and who previous to that had been a whaling captain in Bering Sea, says : " They run back terrified whenever a wave comes in."" He is supported in tliis statement by Mr. Samuel Falconer,* Gen. Scribner," and Mr. Wardman, who have been Treasury agents on the Pribilof Islands, the latter adding that " young pups can not be driven into the water by man, and when I tried to drive them in before they had learned to swim, they would immediately run back from the water." / ' Vol. II, p. 72. - Vol. II, p. 16. s Vol. II, p. 5. ■• Vol. II, p. 164 * Vol. II, p. 89. " Vol. II, p. 178. f ,f" If t HP 102 HABITS or THE ALASKAN SEAL. Aquiitiu birtli im poisiblc. Ml J .'BH In view of the foregoing circimislaiices, it is clear that it is an impossibility for a pup seal to be born in the water and live ; this is conftrnied by the statements of all those who have studied into or had experience with seal life;' and is well known to be a peculiarity of all Pinnipedia.'- Prof. W. 11. Dall, a recognized authority on all Alaskan matters, states that a pup born under such circumstances would unquestionably perish, and further adds that "when it is the habit of an ammal to give birtli to its young upon the land, it is contrary to biological teaching and common sense to suppose that they could successfully bring them forth in the water. "'^ Mr. Stanley 13rown, in considering this question says : " Were not the seals in their organs of reproduction, as well as in ail the incidents of procreation, essentially land animals, the fact that the placenta remains attach- ed to the pup by the umbilical cord for twenty- four hours or even more after birth, would show the impossibility of aquatic birth. I have seen pups dragging the caul over the ground on the third day after birth. Even could the pup stand 'T. F.Morgan, Vol. II, p. 62; C'-arles Bryant, Vol. I[, p. 5; Korrick ArtonmnulT, Vol. II, j). 100. - Appendix C, Keport of Americuu Bering Sea Conimistiioucrs, /iW, p. Ml. ^ Vol. II, p. 23. : THE I'urs. 103 ilu' biiU'etiiio' of the waves it could not sui'vive Aiiuaiic birth im- such au auchor. No pup could be born in the water and live."^ To these unqualified state- ments of experts and scientists are added those of a large number of Indians and seal hunters along the American coast, and an instance which took i^ace during the Russian occupation puts the impossibility of pelagic birth beyond ques- tion. The following is an extract from a letter dated ^June 20, 1859, by the manager of St. Paul Island addressed to the chief manager, and inclosed in a letter dated May 13, 1860, from Capt. Ivan Vassilievitch Furuhelm to the board of administration of the Russian American Company : " The female seals came this year in May at the usual time after the ' sekatches ' had landed. Only a few had come ashore when, with a strong uovthwest wind, the ice came from the north. It closed around the islands and was kept there by the wind for thirteen days. The ice was much broken and was kept in motion by the sea. " It is an actual fact, most gracious sir, that the females could not reach the shore through the ice. Some of the Aleuts went out as far as it was safe to go on the larger pieces of ice and they saw the water full of seals. When the northwest ' Vol. II, p. 15 ; Article by Dr. Allen, Part III, Vol. I, p. 406. possib'o. 1, 1 i -i 1 ^'i it mi 104 IJirlli oil lu'lp UolIs iiiipossibie. HABITS OF TIIE ALASKAN SEAL. j^ale ceased the ice remained for nearly a week longer, being ground up in the heavy swell and no females could land. A few ' sekatches ' tried to go out to sea but did not succeed. On the lOtli of June the first females began to land, but they came slowly, and it was very late when the rookeries began to fill. Very few of the females, no more than one out of twenty or twenty-five, had their young after they came ashore. Nearly all must have lost them in the water, as for many weeks since the ice went away the bodies of young seals have been washed up by the sea in thousands. This misfortune I must humbly report to you. It was not the work of man but of God."^ These statements also apply to birth on beds of kelp, or seaweed, for a new-born pup would undoubtedly be washed from such a resting place and perish. Andrew Laing, a seal hunter of long experience, who was examined by Mr. A. E. Milne, collector of the port of Victoria, British Columbia, states on such examination : " I have heard a great deal of talk of females having younoit, p. 385; J. Stanley Brown, Vol. II, p. 13 ; Nicoli Krukoff, Vol. II, p. 133; John Fratis, Vol. II, p. 108 ; J. C. Kedpatb, Vol. II, p. 148 j C. L. Fowler, Vol. II, p. 25. -' Daniel Webster, Vol. II, p. 180. ■' Report of American Bering Sea Commissioners, ^jo«/, p. 325. ■• -J. C. Redpatli, Vol. II, p. 148. •'' Report of American Bn-ing Sea Connnissionerii, po-if, p. 325 ; II. II. Mclntyrc, Vol. II, p. 13 " Anton Mclovedoff. Vol 11, p. \U; Aggie Kusliin, Vol.11, p. 120 ; Nicoli KriiliofT, Vol. II, p. Or?, .Tolin Fratis, Vol. 11, p. 108 ; C. L. Fowl r, Vol. 11, p. 25. THK IllLLS. 100 do not haul up until the latter part of Juno ;' and Arrival oi tUo CO\Tlla the arrivals continue until the middle of July.' Each bull, bein*,' polygamous, gathers about Orunnixiiion of ' (lie li.in-mH. luiu as many cows as he can. Iho numhcr ot cows to a" hannu " (as the bull and his cows are called) varies according to the strength and position of the bull and the respective number of the sexes in the herd. The average is fixed at fr(mi fifteen to twenty-five.* Assistant Treasury Agent W. B. Taylor, who was on St. George Island in the year 18S1, reports that he has seen forty cows in one harem and that the bull was constantly trying to obtain more." This is but one instance of the great powers Vowcrs of fertiii- of fertilization possessed by the male seal. Mr. Taylor further states that he believes a bull can serve over a hundred cows during a season ;" Capt. Bryant says from seventy-five to one hun- dred ;" and Gen. Scribner affirms it as his opinion that a bull could fertilize a hundred or move cows ;^ and he is supported in this by Capt. Daniel Webster, who, as agent of the lessees, has ' J. Stanley Brown, Vol. II, p. 13. = Anton Melovedoir, A'ol. II, p. U4. •' J. Stanley Urown, Vol. II, p. 14; T. F. Morgan, Vol. II, p. G3. ^ J. Stunley Brown, Vol. II, p. It; Charles liryant, Vol. II, p. 0. ■• Vol. II, p. 177. " Vol. II, p. 6. ■ Vol. II, p. 89. ;,!•!(■ i;; ii 'S i ■(■ I ■■?;■ L- m I' no HABITS OP THE ALASKAN SEAL. Coition, .'■' I.:l JM Powers of fcrtii:- resided on the islands for over twenty-two years, and who prior to that time had been actively engaged in the sealing industry.' Dr. Allen thinks a bull is able to serve from forty to sixty cows.- Mr. Samuel Falconer states that a bull is capable of fertilizing at first six to eight cows a clay.' The act of coition takes place upon land, which, by reason of the formation of the genital organs, is similar to that of other mammals.* It is violent in character, and consumes from five to eight minutes." Copulation in the -water is affirmed by Mr. Stanley Brown, Dr. Mclntyre, and others to be impossible." The former bases his opinion on careful observation and on the fact that the cow being so much smaller than the male (a cow weighs from seventy-five to one hundred and twenty pounds) she would be entirely submerged aad would be compelled to remain beneath the surface longer than would be possible. Dr. Mclntyre makes the assertion on twenty years of careful study of seal life ' VoL II, p. 183. ■ Article by Dr. Allen, Part III, Vol. I, p. 407. 3 Vol. II, p. 168. ■• Eoport of American Boring Sea Comnnssioners, post, p. 327 ; -T. Stanley Brown, Vol. II, p. 14. ''' Report of American Bering Sen Commissioners, poxf, p. 325 ; J. Stanley Brown, A'ol. II, p. 14. « Vol. II, p. 14 ; A^ol. II, p. 42 ; J. M. Morion, Vol. II, p. G7. i THE BULLS. in under the most favorable circumstances. Un- doubtedly tlie sea otter, whose habit of pelagic coition is well known, has often been mistaken for the fur-seal, which has resulted in many believing that the latter copulate in the water,' Mr. Falconer, although he does not aiSrra that the act of reproduction is impossible in the water, states that he does not believe it could be effect- ual, and that it would be most unnatural." Dr. Allen, in considering this question, after giving an account of the jealous guardianship of the bull over his harem, says : " If parturition and copulation could occur in the sea, the exercise of any such tyrannical jurisdiction of the males over the females would be impossible, and the seraglio system, so well established, not only in tlie case of this species, but in all its allies, would not be the one striking feature in the sexual economy of the whole eared-seal faniil}', wherever its representatives are found."^ During the entire rutting season, which lasts for at least three months, the bulls :^emain constantly upon the breeding grounds, never leaving their positions, and never eating or drinking, and sleeping very little.* ' Article by Dr. Alliii, PaH IIT, Vol. I, p. 407 ; J. Sfiinlfv Brown, Vol. II, p. 15. - Vol. II, p. Hio. ' Article by Dr. Allen, Part III, Vol. T, p. Iu7. * T. F. Morgan, Vol. II. p. 63 ; CliorlesBrvH.it, Vol. II, p. (5. [315] Coition. Fiistlng, IH'I i 112 HABITS OF THE ALASKAX SEAL. 1' \ < v. I % \ 11 ii iil2' ' Digorganization of the rookeries. Departure inlands. Vitality. After all the cows have been fertilized and the pups begin to form into " pods," the order formerly existing on the breeding grounds gives place to disorder. The bulls no longer restrain the cows in their movements, and the rookeries become disorganized.' Some of the bulls at this time (about the 1st of from August) begin to leave the islands, and continue going till the early part of October.^ They are very lean and lank after their long fast, bit the followinj., May return to the rookeries as thickly enveloped in blubber and as vigc "ous as the former season.'' The bull seal must necessarily possess almost unsurpassed powers of vitality and virility to remain for such a period without nourishment of any sort, and still be able to fertilize so many iemales. THE cows. The cows or breeding female seals are much smaller than the bulls, the average weight being ' J. Stanley Brown, Vol. II, p. 16; T. F. Morgan, Vol. II, p. 63; Agt(ie KubIuu, Vol. II, p. 130 ; John Frntis, Vol. II, p. 108. - II. H. Mclntyre, Vol. II, p. 42 ; Siinuiel Falconer, Vol. II, p. 166; .Vnton Molovedoff, Vol. II, p. 141 ; Aggie Kuskin, Vol. II, p. 129. •' T. F. Morgan, Vol. II, p. 63 ; II. II. Mclntyre, Vol. II, p. 43 ; J. ('. Rcdimt'i, Vol. II, p. 118. Age. THE COWS, less than one hundred pounds ; the age of puberty is probably two years.' The exact age which is reached by a cow is necessarily a matter of conjecture, but micro- scopic examinations under the direction of Capt. Bryant showed that some of the older females had borne at least eleven to thirteen pups.'- It is therefore safe to say that a cow lives to be at least fifteen years old. After a cow lands on the rookeries and is Hmom life. delivered of her pup she is jealously guarded by the bull to who'ie harem she belongs, until a_<>ain fertilized,^ which probably takes place within two weeks.* The exact period of gesta- tion is not definitely known, but is believed to be about fifty weeks. '^ A cow produces but one pup at a birth," and Mr. Falconer adds that " two at a birth is as rare an occurrence as a cow to bring forth two calve:," and that during his entire experience of sevt i y(.;,^s he never heard of this happening Tr. : • / (lyre, Vol. 11, p. 42; Saiiu.»'l Falconer, Vol. II, p. 165. = Vol. 1 :. ,>. 0. •' J. Stank. 7 ^ wn, Vol. II, p. 15. ^ Samuel Falconer, Vol. II, p. 165. ■■ Report of American Boring Sea Conimissioner^, i«t/»<, p. 326. " W. H. Dull, Vol. II, p. 24 ; T. F. Morgan, Vol. II, p. 63 ; H. W. .Mcln.yre, Vol. II, p. 136 ; Kerrick Artomonoff, Vol. II, ]>. 100. 113 Number at a birth. of ]iiips *"" ! ;^i I 2 Vli ||> 1.1. h k 7il 1 - ' Mii'^f !t u: HABIT8 OF THE ALASKAN SEAL. Number of pnns but oiice.' The vouHg at birth are about equally divided as to sex.' A cow ass soon as a pup is brought forth begins to give it nourishment,' the act of nurs- ing taking place on land and never in water/ and she will only suckle her own offspring. - This fact is verified by all those who have studied seal life or had experience upon the j j'?";.^^.^ Mr. Morgan says : " The pup does not ap, to recognize its mother, attempting to draw milk from any cow it comes in contact with ; but a mother will at once recognize her own pup and will allow no other to nurse her. This I know from often observing a cow fight off other pups who approached her, and search out her own pup from among them, which I think she recognizes by its smell and cry."* Mr. Falconer says: "A mother will at once recognize her pup by its cry, hobbling over a thousand NourisiK-;oni.v i:cr bleating pups to reach her own, and every other approaching her save this little animal she will • Vol. II, p. 163. ' Report of Americiin Ucring Sea Conuiii W. H. Dall, Vol. II, p. 23 i II. H. Melntyre, Vol. II, p. 41 ; Karp Buterin, Vol. IT, p. lOt. " Vol. II. p. «2. THE COWS. 115 Death of cow caiisej death of pup. drive away."' These facts are verified by many Nourishe* only her others experienced in the habits of seals.' This habit of a cow is another evidence of the absolute dependence of a pup seal upon its mother. Capt. Bryant says in this connection : " I am positive that if a mother seal was killed her pup must inevitably perish by starvation. As evidence of this fact I will state that I have taken stray, motherless pups, found on the sand beaches, and placed them upon the breeding rookeries beside milking females, and in all instances those pups have finally died of starvation."^ Capt. Bryant's statement as to the certainty of death to the pup if its mother was destroyed is sustained by many experienced witnesses.* Necessarily after a few days of nursing her pup the cow is compelled to seek food in order to provide sufficient nourishment for her offspring.'* Soon after coition she leaves the pup on the Foetling. lookerv and jjoes into the sea,® and as the ' Vol. II, p. 164. - J. H. MouUon, Vol. 11. p. 71 ; W. S. Hereford, Vol. II, p. 33 ; Niaoli Krukoff, Vol. II, p. 133 ; John Fralis, Vol. II, p. 108; Daniel Webster, Vol. II, p. 180 ; J. 0. Redpath, Vol. II, p. 148. ■' Vol. II, p. 5. ' W. H. Dall, Vol. II, p. 23 ; George Wardman, Vol. II, p. 178. •' J. Stanley Brown, Vol. II, p. 15 ; Daniel Webster, Vol. II, p. 180. • Eeport of American Bering Sea Couiiniggioners, post, p. 329 : H. II. Mclntyre, Vol. II, p. 42; Samuel Falconer, Vol. II, p. 166; Vrticle by Dr. Allen, Part III, Vol. T, p. 407 ; H. W. Mclntyre, Vol. II, p. 136. H M 5' (' f; n il«i ' i'tt 'i Ri ' 5: ;f 116 I'eeding. Food. Feeding lions. exour- HABITS OF THE ALASKAN' ST^AL. pup gets older and stronger these excursions lengthen accordingly until she is sometimes ab- sent from the rookeries for a week at a time,' The food of all classes of fur-seals consists of Squids, fishes, crustaceans, and moUusks,^ but squids seem to be their principal diet, showing the seals are surface feeders.'' On account of the number of seals on the islands fish are very scarce in the neighboring waters ;* this necessi- tates the cow going many miles in search of her food. They undoubtedly go often from one hundred to two hundred miles from the rookeries on these feeding excursions.'' This fact is borne out by the testimony of many experienced sealers, who have taken nursing females a hundred miles and over from the islands,® and Capt. Olsen, of the steam schooner Ajina Beck, states, through the Victoria Daily Colonist, of August 6, 1887, ' Nicoli KrukofE, Vol. IF, p. 133 ; John Fm.is, Vol. II, p. 108; Ker- rick Artoninnoff, Vol. II, p. 100. * Report of American Bering 8ea Commissionei-s, Appendix E. post, p. 393 ; W. H. Dnll, Vol. II, p. 23 ; T. F. Mr in, Vol, II. p. 02. ' Report of American Bering Sea Comraissionerg, Appendix E, pn. MIGRATION OF THE HKKT). the presence of seals on the islands for at least eight months of the year, and that they have in fact been killed there in every month of the year.' * The primal cause of migration is undoubtedly Cauws. the severity of the winter weather," and to that may be added a lack of food supply." The seals evidently consider these islands their sole home, and only leave them from being forced so to do.* If the climate permitted they would without doubt remain on or in the vicinitv of the Pribilof Islands during the entire year.' That this is true is evidenced by the fact of their so remaining during unusually warm winters, as above stated, and from the further fact that the seals of the Galapagos Islands, which much resemble in their habits the Alaskan herd, do not migrate, not being compelled so to do by the weather." Capt. Budington, who has had twenty years' experience as a sealer in the southern hemisphere, states that "the Terra del Fuego and Patagonian seals never leave the rookeries or the waters in the vicinity, only going out into the inland waters in search ' Table of killing on St. Paul Island, Vol. II, p. 114. 5 W. H. Dall, Vol. II. pp. 23. 24 ; Charles Brvant, Vol. II, p 5 ; Daniel Webster, Vol. II, p.180. •'' Same authorities. * Charles Bryant, Vol. II, p. 5 ; Samuel Falconer, Vol. II, p. IGo ; Kerrick ArtomanofE, Vol. II, p. 100. 'Charles Bryant, Vol. II, p. 5 ; T. F. Morgan, Vol. II, p. 62; Article by Dr. Allen, Part III, Vol. I, p. 403. * C. W. Reed, Vol. II, p. 472 ; see also Isaac Liebes, Vol. II, p. 515. 123 it h ! .■■ !;»'■ V IB' ^t F ' M w 31' '■' i; U v: I'M if"' fi } w mm ilfl ill- 124 HABITS OF THE ALASKAN SEAL. Cauaos. of food. Abou . Terra del Fuego no ice forms, and no snow falls that remains. The terapera- • ture remains about the same summer and winter."' The course. The fact exists, however, that the Alaskan seal herd is compelled to migrate. The course pur- sued, which is confined to the eastern side of the Bering Sea and Pacific Ocean, is to a certain extent conjectural, but sufficient data have been collected to state it with approximate accuracy. On leaving the islands in November or Decem- ber the seals irn southward, pass through the channels of the Aleutian chain, and enter the Pacific Ocean.^ The bulls after entering the ocean remain in the waters south of the Aleutian Islands and th s Alaskan Peninsula, and in the early spring raay be found near the Fairweather Ground They are seldom seen below BaranoiF Island.' Turning eastward after entering the ocean* the remainder of the herd, cows, bachel- ors and pups, begin to appear off the coast of California the latter part of December or first of January.^ The seals now turn northward," fol- lowing up the coast, twenty, thirty or more miles ' J. W. BuJington, VoL II, p. 596. 2 H. H. Mclntyre, Vol. II, p. 42 ; T. F. Morgan, Vol. II, p. 62. ^ Report of Capt. C. L, Hooper to the Treasury Department, dated June 14, 1892, Vol. I. p. 504. * W. H. Dall, Vol. U, p. 24 ; Charles Bryant, Vol. II, p. 5. ^ A. J. Hoffman, Vol. II, p. 446 ; Alfred Irving, Vol. II, p. am. " Charles Lutjens. Vol. II, p. 45K ; H. H. Mclntyre, VoL II, p. 42. 1^'!.']. MIGRATION OF THE HERll. 125 from land. ^ The males pass mrch farther from ihecouwe. the shore than the females, and travel more rap- idly toward the islands.- The herd spreads along the coast in a long, irregular body, continually advancing northward until they begin to enter ]3ering Sea in May and June, through the east- ern passes of the Aleutian Islands, seldom going west of Four Mountain Pass, but the last of the herd do not leave the Pacific until July.^ The cows, however, are practically out of the Pacific Ocean hy the middle of June.* A chart showing this migration has been prepared from the data contained in the depositions herewith submitted.^ The manner of traveling of the seals is divided by the pelagic sealers into different lieads, namely, " sleeping," when a seal rests and sleeps on its back on the surface of the water TeHj,'""'"' Avith only its nose and the tips of its hind flippers protruding from the waves ;** " finning," when ir, lies on its back gently moving its flippers ;''' "rol- ' British Blue Book, U. .1 No. a (1892), C-fi635, p. 183 ; Annual Kcport of tbo Department of Fisheries, Dominion of Cnnnda (1886), p. 2(57. - Article by Dr. Allen, Part III, Vol. I, p. 405 ; Isuac Liebes, Vol. II, p. 454. •' Charlos J. Ilugue, Vol. II, p. 207 ; 0. H. Anderson, Vol. II, p. 205. * 11. B. Mclutyre, Vol. II, p. 42 ; Watkins, Vol.11, p. 395; Alfre i Irving, Vol. II, p. 380. ' See also C^hart of Migration, Portfolio of maps and charts ; British lilue Book, No. 3 (1802), C-6635, p. 183. " A. B. Alexander, Vol. II, p. 355. " I/M., Vol. II, p. 355. 'i of tra- ! 4 1 ( ( ' 11 ■111 r * H 'I ]f h ) t.| 126 HABITS OF THE ALASKiN SEAL. The coujic. ling," when lazily engaged in rolling over upon the surface of the water ;^ " traveling " or " feed- ing," when moving rapidly through the water," and " breaching," when leaping out of the water like a dolphin. - Hcrti (Iocs not During their migration the seals never land land except on Pri' *-' *-■ biiof i-.ianci», upon the coast and no rookeries of fur seals are known to exist upon the North American con- tinent or the islands adjacent thereto, except at the Pribilof Islands. Upon this point there is a unanimity of testimony, by scientists,^ experts,'*^ seal hunters of long experience,^ traders," and Indians along the coast and Aleutian chain of islands,'' which precludes the possibility of the existence of rookeries other than thc5e on the . ! ■! I ! ' A. 15. Alexander, Vol. II, p. 35.",. - Ihiit., Vol. II, p. :335. ■' \V. II. Dall, Vol. II, V. --i-''. ■* ir. H. Mclutyre. Vol. II, p. 4C; Joliii Fi-atis, Vol. II, p. Iu7. ■' Daniel Clausen, Vol. II, p. 412 ; Lutjoii!*, Vol. JI, p. 450 ; Andrew Lninf,', in British Blue Book, V. S. Xo. 3 (1&92), p. 1H3. « M. L. Wttshburne, Vol. II, p. 4H8. ' Chickinoff (Kadiak Island), Vol.11, p. 210; Paid Young (Kasan), Vol. II, p. 202; Billy Yellaeh.v (Howkan), Vol. II, p. 302 ; Selikala- tin (Yakniat Bay), Vol. II, p. 243; Ntkla-ah (Chatham Sound), Vol. IT, p. 2SS ; Nechantake (ley Bay to Wrangel), Vol. II, p. 241 ; George La L'liock (Sitka Bay), Vol. II, p. 205 ; Iloonah Dick (Cross Sound), Vol. II, p. 258; Eliah Prokopief (Attu Island), Vol. II. p. 215; Filaret Prokopief (Attu Island), Vol. II, p. 216; Samuel Kalioorof (Attu Island), Vol. II, p. 214 ; Chief Anna-tlas (Takou Inlet), Vol. II, p. 2.54; Metry Monin (Cook's Inlet), Vol. II, p. 226; Nicoli Oregaroff (Prince William Hound), Vol. II, p. 234 ; Hastings Yethnow (Kaswan), Vol. II, p. 803 ; George Ket-wooschish (Soutli- eastern .\laska), Vol. IT. p. 251. § t MtrthATiox ov 'I'ftfi itJcttf), 127 Pi-ibllof Islands, or of the sealf? ever hauling out Herd docs not land except on Pri- on tlie coast or neighboring islands ; and Capt. biiof islands. Andersen, who has cruised seven years in Bering Sou, savs the natives of Bristol Bav and St. Michael do not know what a fur-seal is.^ Capt. Victor Jacobson, one of the best known sealers of Victoria, British Columbia, who has seei\ eleven j'ears of seal hunting, and is tl\e owner and 1 aster of the sealing schooner Mary FMen and owner of the schooner Minnie, says : " I have never known a fur-seal to haul out upon any part of the coast of tlie United States, British Columbia, or Alaska. All parts of the coast have l)cen visited by the seal hunters, and if seals hauled out any place it would have been known l)y the hunters. '"- This statement is made still stronger by the iT.id does not ,, ,, . , ^ • ^ 1 enter inlimd wutorx, lact that the seals do not enter the mland wa' s of tiie coast during their migration, remaining always in tlie open sea or at the mouths of large bays, inlets, and gulfs."^ Father Francis Verbeke, Koman Catholic priest at Barclay Sound, says that he has never seen or heard of fur-seals inside of Barclay Sound ; they are all found ont- ' Vol. II, p. 205. - Vol. II, p. 329. ' .lolin Miirgathe, A*ol. II, p. .ms ; Billj Nalioo, Vol. II, p. 252; Konlional, A'ol. II, p. 251 ; Albert Keetniiclc, Vol. 11, p. 250. [a 15] K 11 ! I' I'll ',1 1 i h I m I ..1 }' ?fWf^^"" 128 HABITS OF TlIK ALASKAN SKAL. Illliii llcrd does not enter inland waters. j; I ,! ': ■A ji'ii wi side.^ llev. William Duncan, for thirty y^ars r. missionary among the Vancouver Indians, and whose successful labors in civilizing and Ciiris- tianizing the Indians is vv^U known in Canada and the United States, states that he has never heard of fur seal hauling upon the coast of British Columbia or Alaska, or anywhere save on the Pribilof Islands.'- Shucklean, an old Indian of Killisnoo, Chatham Sound, states that the seals do not frequent those waters, and he never saw a man Avho had seen a seal pup.^ Kah-chuck- tee, the old chief of the Huchenoo Indians, states that he has visited all the inlets and islands in Chatham Sound and other parts of Alaska as far as Sitka and nevjr saw a fur seal in the inland waters, and adds he would have heard of seal hauling upon the islands or main- land of Alaska from tlie Indians, who traded with his tribe for herring- oil, if such a thing had occurred, but he had never heard such a report.* Ruth Burdukofski, a native of Unalaska Island, states that " no old seals ever haul out in this vicinity," but that in the fall pups sometimes come on shore after a. heavy blow from the ' Vol. II, p. 311. See also Dick or Ehcnsliesut, Vol. II, p. 30(J ; Clat-litt-koi, Vol. II, p. IWo. - Vol. II, p. 27!t. ^ Sliuclilean, Vol. II, p. 2.53. Se.' alsj [vestli Riley, Vol. II, p. 252 ; Toodays Charlie, Vol. II, p. 249. ■• Kii1i-clmck-hv, Vol. TI, p. 2IH. MKHtVTKtN OF Tlf.^ HKRI). 129 north; these he believes to liave been separated ifoni dm-s lot . Ill 1 enter inliiiul \vnters. from their mothers, and seek shelter and rest from the storm on the island.' Pud Zaotchnoi, one of the Aleut chiefs at Atka Island (near the center of the Aleutian chain), says that fur-seals never rest on the shores in that region.'- It has been supposed that tlie fur-seals which formerly frequented the Guadalupe Islands and the coast of Southern California were a portion of the Pribilof Islands herd which remained south to breed ; a recent examination of specimens by ■I)r. Allen, Dr. Merriam, and Mr. Tiieodore Gill, all naturalists of repute, has proven that the Guadalupe Island fur-seal belongs to a species of the genus Arctoccphalus, which is entirely distinct from the CaUorhinns iirsinus, and have united in a paper to that effect.^ It is therefore certain that the Pribilof herd do not breed or land at any other point except the Pribilof Islands. The Eussian seal herd on leaving the Com- mander Islands instead of turning eastward, like the Alaskan herd, turns westward,* entering the ' ruitli Riirdukofski, Vol. IT, p. 200. See nlso Paul Repin. Vol. If. p. 207 ; S. Melovedoff, Vol. II, p. 20!), and David Siilainatoff, Vol. IF, p. 2(19 ; Ivun Kriikoff, Vol. IF, p. 20!). • Vol. II, p. 213. See also Knsj^ian tTovloi, Vol. II, p. 213. ■' Avticle b/ Dr. Allen, Part III, Vol. I, p. 40.1 ; Sti.; nncnt by Dr. Allon, Dr. Mcrriiim, and Mr. Tiieodore Gill, Vol. I, p. ,'»SG. See also Isaac Licbes, Vol. II, p. 453. ' Cluirles J. Hasue, Vol. IT, p. 207. The Eussian herd. m m Mh^AatUnSH OP TttK SEAL ROOfcUftlti^. Tho ttiis^an \\m\ Sea of Okliotsk, where tlie}^ are often found by whalers in the early spring,' and also range along the Japan roasts." This shows the similarity of haA)its of these two herds, but at the same time is further evidence that they never intermingle. MANAaEUENT OF THE SEAL ROOKERIES. |( Wi i:il!' i I RUSSIAN MANAGEMENT. After the discovery of the Pribilof Islands several Eussian fur companies sent expeditions thither for the purpose of procuring seal skin^ and annually great numbers were taken. "When the Russian American Company came into pos- session of these valuable rookeries in 1799, the unlimited slaughter ceased and a limitation was placed upon the number to be taken. Becoming more familiar with the condition and habits of the animals, especially their habit of polygamy, a further limitation was enforced providing that male seals alone should be killed, but no limita- tion was fixed as to the age of such males, the skins being procured from bulls, bachelors, and grey pups alike, the demands of the Chinese market being the principal guide as to the class taken. Toward the close of the Eussian occu- ' Cliiirles Bryiinl, Vol. If, p. 4. - Report of Ainericiui Bering Soa Conuiu.taioniMs. jtoul, p. ^'23, RL'SSIAX MANAOEMKXr. 131 pation, however, the taking of grey pups was practically sto})pecl, except for food and seal oil, and the bachelor seals supplied nearly all the skins taken on the islands.' Under the general protective system adopted by liussia for seal life and the restrictions added from time to time, the seal herd continued to increase" until tli*^ Mana- gers of the Kussian American Company ci^nsid- ered it possible and expedient to take sevent '- thousand skins from St, I'aul Island without clanger of depleting the seal population.^ The Aleuts, who had been brought to the islands when the Company first came into possession of the rookeries, had through generations of exper- ience become expert in the handling and taking of seals and discriminating between the killable and non-killable classes ; so ihat the annual (juota of skins was procured with the least possi- ble waste of life and disturbance of the breeding seals. ■ Letter from Boai-d of Adiuinistration of Bussian American t'o.ii l)iiiiy to Chief Manager A''oyevodsky, dated April 24, ISSi, Vol. T, p. 82. - Letter from the Chief Manager io tlie Board of Administration of tlie Russian -\nieriean Com)3ain-, dated January 13, 1850; Vol. I, p. 8(i; also same to same, dated Ojtober 7, 1857, Vol. I, p. 84. ■' Letter from the Chief Manager of the Eussian American Colonies to Mr. Milovidof, Manager of St. Tnid Island, dated May 1, 18C4. Vol. I, p. 8!). [;32 l^I.VNAOKMKNT OK TIIK SKAL KOOKEKTKS. ifiiHi mmi TIIK SLAllMITKR OF Ise'H. When the United States came into possession of these Islands by the ression of 18(57, it was impossible immediately to fonnnlato an admin- istrative system for all portions of the territory then so little known and so distant from the seat of governmejit. The year 1 8(58 Avas one of inter- regnum at the Pribilof Islands; Prof. W. H. Dall visited them that year, and briefly de- scribes the state of affairs there existing. He says : " During my visit to St. George Island in 18G8 thisva^st territory of Alaska had just fallen into the possession of the United States, and the Government had not yet fairly established more than the beginning of an organization for its management as a whole, without mentioning such details as the Pribilof Islands. In consequence of this state of affairs, private enterprise in the form of companies dealing in furs had established numerous sealing stations on the islands during 3868. During my stay, except on a single occasion, the driving from the hauling grounds, the killing and skinning, was done by the natives in the same manner as when under the Eussian rule, each competing party paying them so much per skin for their labor in taking them. Despite the very bitter and more or less unscrupulous com- AMKRICAN MAXAOKMKXT. petition among tlie various parties, all reco'^nized the importance of preserving the industry and protecting the breeding grounds from molestation and for the most part were guided by this con- viction.'"^ There being, however, no limitations as to numbers, about two hundred and forty thousand bachelor- seals' skins were taken that vear from the Pribilof Islands."'^ The same year the United States Government had sent an agent to these islands, who unfortunately was delayed and compelled to winter at Sitka.* AMERICAN MANAGEMENT. The following spring (J 869) the Government agent, Dr. H. H. McTntyre, and a revenue vessel, under command of Capt. John B. Henriques,* reached the islands, and immediately took pre- cautions to protect the seal herd from molesta- tion ; especial care being taken to prevent the breeding seal from being disturbed. The dogs on the islands were killed, and the firearms of the natives were taken possession of by the Govern- ment officials, in order that neither might terrify the occupants of the rookeries.'' After these pre- ' Vol. II, p. 23. - George K. Adams, Vol. II, p. 157. ' T. F. Morgan, Vol. II, p. 63. * H. II. Mclntyre, Vol. II, p. 47. ' J. A. Henriques, Vol. II, p. 31 ; Clmrles Bryant, VjI. II, p. 8. 133 [', •>'! I ini i >> x\ < f I H) > > m ; t*! fl y? N V6i MANAGEMENT OF TJIK .sEAl- KOUKERIES. I Jill cautions the United States took up the consid- eration of the most advantageous manner of workino- the seal industry. Tho loose of 1870. Various recommendations and suggestions were made to the Congress of the United States in relation to this matter, but after a thorough and careful examination of the various methods proposed the most expedient was found tt) Ije the leasing of the islands to a single, reliable company, under the inniiediate supervision and control of agents of the United States Treasury )jepartment duly appointed for that purpose. Pursuant to such investigation and conclusion, the Congress of the United States on July 1, 1870, passed an act accordingl}^* and in August, 1870, Mr. Boutwell, Secretary of the Treasury, advertised for bids for the lease of the " seal fisheries " for twenty years. Of fourteen bids' offered by different companies and associations, that of the Alaska Conmiercial Company, with a capital of $2,000,000, was accepted by the Treas- ur}' as the one best lilted to promote "the interests of the Government, the native inhabitants, the parties heretofore engaged in the trade, and the protection of the seal fisheries/' as required by the act of July 1, 1870.^ The method ' U. S, Stats, at Large, A'ol. XVI, c. IHi). - IT. I{. Doc. >fo. HIS. Fovtv-lirst Congress, pp. o-i>. •' II. K. JJoi-, No. H)S, Fortv-first Congi-css, j)p. 10, 'do. ;| P' i . ^H ' ■'''< ■■') ' i i ■ i rf ' '-*■ 1 i §'..), . ^^l ji W\\ 1 Til,'?' r^'! '.' ■ A .M K K IV \ N M A X AU K M KX T. 135 of maiiajjiiig tliu rookeries thus established iVnug ot Umo. allowed the lessees to take one hundred ihou- satid male seals over one year old during the iiiuiithb of June, July, September, and October of each year, jjrohibiting the use of iirearms or other methods tending to drive away the seals from the islands and the killing of seals in the water. In consideration for the skins thus obtained the lessees covenanted to pay to the Treasury of tlie United States annually fifty- live thousand dollars as rental of said islands, a revenue tax or duty of two dollars upon each fur-seal skin taken and shipped by them, and the further sum of sixtv-two and one-half cents for each fur-seal skin taken ; also to furnish, free of charge, the inhabitants of the islands of f^t. Paul and St. Geoi'ge annually twenty-live thousand dried salmon, sixty cords fh^ewood, a sullicieut quantity of salt and preserved meat ; also to maintain a school on each island for at least eight months in each year, and not to sell any distilled spirits or spirituous liquors on said islands.' The lease thus granted was more advantageous to the Government of the United IJtates and the inhabitants of the Pribilof Islands than the terms of leasing provided for in the act Laase to Alntika t'omnieruial Company, Vol. T, p. 1()4. f \.' II* Is A W ,( *. i I \ ''W \ > I ji'i ill 1 i. i'l ! J II 'll 1 » 1 ^1 1 ''* Mh. 136 Tcriu8 of Ica.^o All eiidinont Ttivet •' i)f the Aleutian Islands, Kadiak, and the ]| "Ml; UUl. - Hot]) the above-mentioned connnittees also Mciiiods of ii-.an- touk into consideration the method of administer- iiiLi' the seal rookeries as established by the act of July 1, 187t). One of the three following means must of necessity have been adopted for the management of the islands, viz. (1) leasing to a company ; (2) making the rookeries free to the l)ublic ; or (.'») the Government itself working the rookeries. ' Keport No. C23, IIoiisp of ReprcxMitntirca, Forty-fourth Con- j:iv>9, first si'ssion, p. 12. ■ If. K. No. 3883, Fiftiolli Congrpjo, second session, p. xxiii. iigi'mcnt. i! : $• s ? ; i^r 'ff^ ■v us JIAXAGEAIKNT Oi-' THE ^EAl, KOOliKKliiS. IM It 'hi Uiilii'oiist'il work- ing iinpi-acticabli'. Working by Gov ernmeut impracti cable. Tlie .se(;oiul courae would coiicededly have resulted in the extei'uiination of the Alaska seal herd in a veiy short lime,' as it has in all cases where seal kiilinu" has been general and unlini- iled.- The third method, direct uianaL'ement bv the Government, was also deemed impracticable to the committees who investi^'ated the question. The committee of Conufress in 1876 reported t..cit in their judgment the Government could not advantageously assume charge itself of the seal i)idustry and did wisely to intrust it to the Alaska Oomniercifil C')mpany.^ The connixittee of Con- gress which made a thorough examination of the question in 1888 reported : " All these witnesses (those examined by the committee) concur in testifying to the wisdom of the existing law oii the subject, and favor the retention of the pres- ent system. All other existing rookeries are manciged substantially in the same way by the diil'erent (jovernments to which the}' belong, all ibllowing the lead of Russia, who managed and protected our rookeries by a similar method from their discovery until their transfer to the United hi ' Sonati' ]>oc. Xo. 4H, l<"or*\ -Fourth Congresn, flrNt nossion, p. 4. - /Vav/, p. 21S. •' Koport Jv'o. Oi'.; lIoiiM' of l{c')irrMMitiitivi'.s. I'"orly-t'i>iirlli (uii- jiivs.", first scHsioi'. )). iL', AM miCk-a M AXArtflMKNt. m) States, tt did not require the testimor\' of wit- WoAing by Oov prnment impnicM' nesses to convince the committee that the Gov- cnbio, ernment itself couUl not successfully manage this business."' It is evident from the nature of the industry that in case the sealina' on the islands should be manajjed directlv bv the rioveriiment iiie opportunities for iVnud and tlieft are very great on the part of the agents, Avho under the act of 1870 are prohil)itod from being in anyway connected or interested in the industry; as it is now the lessees and agents are restraints upon each other. Further, the business requires ex- pert knowledge of seal habits, the market, and the ti-ansactions pertaining to th? sale of the skins, necessitating the preseuL-e of agents, not only on the islands, but in San Francisco and London, who are thoroughly conversant with these points. Immediate Government manage- ment is at once seen to be impracticable under these circumstances and the present method employed to be the only feasible one. The careful investioations made by the Con- "Workings of tiie Icil -of IH-O. gi'esf-ional committees showed that the Alaska Commercial Company had fulfilled the terms of the lease in all respects according to the require- ' Ri'port Xo. 3883, Ifonsc nf ■Ri-prc-cntntivos, Fiftit'tli Congress, si'i'onil session, ]i. xxiii. si mi w ':^ r I Mi * k ' f 1 H t I 1 I ii i J S 1 i r ii 140 AIAX.VGKMKXT OK I'll!': SKAI, ROOKKIUKS. ■II'M! i! 1 ' 1 Workings of the meiits of the Act of 1870 ;' that in coninliaiire lease of 1870. , _ with the terras of the lease (many of whicli are not contained in tlie Act of 1870) tlie lessees furnished the inhabitauts of the islands with a large number of commodious dwellinu^s, without charging rent, and making free repairs ;- built them two free schools ;^ kept stores at which goods were sold at low prices ;' supplied them with free provisions, medicines, and medical attend- ance {' established and maintained for them a savings bank, with a total of over forty thousand dollars of deposits,^ and prohibited the sale of intoxicating liquors on the islands/ CONDITION OV THE NATIVES. The improvement in the condition of the natives of the Pribilof Islands is one of the marked features of the benelit whicli has resulted ' Report No. (i'2'A, House of KopresciiltUives, Forty-fourth Congress first session, p. 11 ; lle])>''^ No. 38SI!, llauso of Ri'prescntiitivo:', Fiftieth Congress, pocoiid session, p. sxiii. -Report No. 023, House of Repreyeiii itives, ForH-fourlli dm- gress, first session, p. HO ; Report No. ;58S3, JFousjof Representative?, Fiftieth Congress, seejntl session, pp. lit, J?2. •' Report No. G2;J, House of Representatives, Fortv-fourtli Con- gress, first session, ))p. 30, 'Vi ; Report 3883, IIouso of Represcntalivci, Fiftieth Congress, seeon.l session, ]>. 31. ' Re|)ort ^o. 023, House of Repi-esentative.i, Forty- fourtli Congw.-s, first session, p. 30, No. 38S3, House of Representatives, Fiflietli Con- gress, seeond session, p. 32. ■ ■' Same Report, p. .30. '■ ., „ p. 31. „ „ p. 32. • ^ i coxnmox or tiik nativfcs. 141 from tlie managemoit of these islands under the • ■ system adopted i' 1870 by the Congress of the United States. When, the United States Government assumed UntW the Russian Company. control of the territory of Alaska the condition of these natives was wretched in the extreme, the Russian American Company having neglected their welfare and forced them into practical slavery. Capt. Bryant, who had an opportunity to observe their condition prior to active occupa- tion of the islands bv the United States, de- scribes and compares the situation of the natives under Russian management and under the system inaugurated by the United States. His testi- mony on this point is as follows : "When I first visited the seal islands, in 18o9, the natives were livinij in semisubterranean houses built of turf and such pieces of driftwood and whalebones as they were able to secure on the beach. Their food had been prior to that lime insufficient in variety and was comprised of seal meat and a few other articles furnished in meager quantity by the Russian Fur Company. They had no fuel and depended for heat upon the crowding together in their turf houses, sleep- ing in the dried grasses secured upon the islaiuls. " Forced to live under these conditions, they 1 si 4- -< l' t> t 1' W - \ , 142 AlA.VAaEMKJft or TMt! .SKAL i{ookj;«U:> Com])anj'. Under control. Araerirnn Under tl.e Russian cOUlcl not of COUl'SC lllJlke pronl'CSS tOWavds clviii- z.ition. There were no facilities for traiisportinu' skins ; they were carried on the backs of the natives, entailing great labor and hardship. " Very soon after the islands came into the pos- session of the American Government all this was chanffed. Their nnder«?ronnd earthen lodjzes were replaced by warm, comfortable wooden cot- tatjes for each familv;' fuel, food, and clothina' were furnished them at prices twenty-five per cent above the wholesale price of San Francisco ; churches were built and schoolhouses maintained for their benefit, and evervthincj done that woull insure their constant advancement in the way of civilization and natural progress. Instead of being mere creatures of the whims of their rulers they were placed on an equal footing with white men and received by law a stipulated sum for each skin taken, so that about forty thousand dollars was annually divided among the inhab- itants of the two islands. In place of the skin- clad natives living in tiirf lodges, which I found on arriving on the island in 18G9, I left them in 1877 as well fed, as well clothed, and as well ' Si'c pliotogrnpli. Vol. II, ]). !)o, -ihowing Villii(i;e of St. Paulin 1H70 and in 1H9I ; and ))hotognipli3 of niitivps, Vol. IF, p)). 8, 70, i:!:!. Letter from Chief MnnnfjerFuruhelm to the Hoard of -\dinini.>*ini- tion of till- Riifsian Anierienn Compnnr, dated .Tulj 10. IS(!:i; Vol. I. p. 88. COXDITION OF THE NATIVES. 143 housed as tlie people of some of our New Eng- Under Amcricm control. land villages. They had school facilities, atul on Sunday they went to service in their pretty Greek church, with its tastefully arranged inte- lior; they wore the clothing of civiKzed men and had polish on their boots. All these results are (hrectly traceable to the seal fisheries and their im.iroved management."' In this comparison of condition and in the improrement. marked improvement following the American occupation, Dr. H, H. Mclntyre also gives a graphic account, which is substantially the same as the one above quoted." Mr. Samuel Falconer who reached the islands in 1870, and remained until 1877, gives an account of the condition in which he found the natives and the great change which took place while he was located at the islands. He savs : " When I came there thev were partially dressed in skins, living in filthy, unwholesome turf hut?, which were heated by fires with blubber as fuel , they were ignorant and extremely dirty. When I left they had exchanged their skin garments for well-made, warm woolen elothes ; they lived in substantial frame houses heated by coal stoves ; they had become cleanl3% and the children were attendino- school ei^lit ' Vol. II, p. «. - A'ol. II, p. 509. [ni/i] 'f 144 MANAGEMKXT OP TITK SRAL ROOKERTKS. iniprovompiit. moi\tlis of the year,' They were then as well oil as vvell-<-o-do workingmen in the United Stales, but reci .ed much larger wages. No man was compelled to work, but received pay through his chief tor the work accomplished by him. A na- tive could at any time leave the islands, but their eas3' life and love for their home detained them. When I first went there (1870) the women did a good share of manual labor, but when I canio away (1877) the hard work was done by the men. I do not recall a simple instance in history where there has been such a marked change for the better by any people in such a short time as there has been in the Pribil"f Islanders since the United States Government Look control of these islands."'- Evidence might be multiplied on this point,but the foregoing testimonyof eye-witnesses of llie relative conditions of the natives under the Eussian Company and again under that of the American Government is sufficient to show that the management of the Pribilof Islands by the United States has raised the inhabitants in a few years from a state of ignorance, wretchedness, and semibarbarisni, which seventy years of the liussiah Company's occupation had failed to alleviate, to a condition of liberty and civiliza- ' See photograph of School. Vol. II, pp. 9, 163. = Voi. ir, p. ]fi2. i ■'•, ■ AM V.nU A \ M AXAOKIM KNT. 145 lion, wlilch l^iUrope and America need not feel imin-ovenu'nt. • ashiniied to find among tlieii- citizens.'" Tlie civil government of the islands is provided o o t o r n m o n t? for by sections 1973-1970 of the lievised Statutes of Ihe United States/ under which the agent ana Jiis assistants are practically the governors of the islands. They have the entire control of the natives, protect them from the impositions of (he lessees' agents, if such are attempted, and see that the supplies required by law for their sustenance are provided. The handling of the seals on the islands, being entirely done by the natives, is directly under the supervision of the Government agents. With the expiration of the Alaska Commercial (.'onipany's lease the United States Treasury Dcparlmenl again advertised for and received It'll formal bids, Avhich Avere carefully considered, and in 1890 the Government leased the seal islands for another period of twenty years to the jnesent lessees, the North American Connner- cial Company, Avhich Avas decided to be the most advantageous bidder for the Government. Lcasoi.nSOO. * N.B. — It nIiouIci be observed Uisit tlie affidavits of natives on the I'libilof Islands are sighj'd bv tlieui, and that they liave not s-iniplv " ii'.iide tlieir eross," as would be the method eni])loyed by namy lilizons of the civilized nations of the world. ' Vol. T. 1). <18. 815] L 2 1. j 14 i' T I i ' I ; I' I; lu 146 MANAlUaiKXT OK THK SKAL KDOKKRIKS. Com p u rison of leatiei*. i i' : . I ; I 1^1 :( An examhiatioii of the lease now in force will show that it is not only more favorable to the Government, but also to the inhabitants of the islands than the former lease' in the following respects : (1) The rental is ^60,000 instead of $55,000; (2) the tax per skin is $1).62^, instead of $2,621; (3) 80 tons of coal are to be fur- nished the natives, instead of 60 cords of wood ; (4) the quantity of salmon, salt, and other pro- visions to be furnished to them can be fixed by the Secretary of the Treasury; (5) the company is to furnish to the natives free dwellings, a church, physicians, medicines, employment, and care for the sick, aged, widows, and children; (6) instead of 100,000 seals per year, the company can take only 60,000 during the first year of the lease, and thereafter the catch is to be subject to the regulations of the Secretaiy of the Treasury. Under this lease it is difficult to see how the United States could have a more complete control over the seal industry on the islands, even if it took the entire management of the business. Leasing under SU' 'i terms gives the Government absolute power in fixing the quota according to the condition of the herd, and at the same tinu; avoids the details of management and disposing ' Leas-c to Nortli Aiuericiin Coniiiicrcial C'onipnnj' ; Vol. I, p. 101!. 'il THE SKALS. of tlie skins, which are the especial difticulties in I'ompHrisou leii'os. • the way of the United States working the rook- eries itself. The course thus adopted by the United States seems as free from criticism or improvement as any that can be suggested.' 147 ut° THE SEALS. Ilavinjj reviewed the }?eneral management of the Tribilof Islands as it pertains to the United States Government and the native islanders, the next point for consideration is the management of the seal herd, the methods employed in taking the seals, and the results of these practices upon the number and condition of the herd. The peculiar nature and fixed habits of the Control ami iio- . , mosticaliuii. seal make it an animal most easy of control and management. A herd of seals is as capable of being driven, separated, and counted as a herd of cattle on the plains.'- In fact, they much resemble these latter in the timidity of the females and the ferocity of the males. One example of the ease with which they can be controlled is mentioned by Mr. Falconer, who ' speaks of a herd of three thousand bachelor seals being left in charge of a boy after they ' See favorable criticism of the methods employed in " Handbook i)f the Fishes of Now Zeuhind," page 235. - ]r. X. Clark, Vol. IT, p. 150 ; " Handbook of the Fishes of New Zo;iliiii(l," page W5. F I ! :■ f 148 M.VNAllK.MKM UF TJIE WKAL |{i H)lvKlUKS. Ccmiroi and do- liaci been driven a short distance from the hradinu miistii'iitioii, 1 1 AT TT X' /.I 1 1 r grounds. Mr. Henry ^l. C'hirk, ^vho was ior six years (1884-188D) in tlie employ of the Alaska Conmiercial C'onipany and in cliarge of the " sealinj"" •jjaiii' " on St. (-feoroe Island, and wlio is therefore espeeially competent to speak of the possiljilities of driving and liandling the seals, says: ■' I was reaied on a farm and have been familiar from boyhood with the breeding of domestic animals, and particularly with the rear- ing and manargo 11. 'IVinp!.-, Vol, IT, p. IM. ' V,>1. II, p. 53. ' J. 5f. Morton, Vol. II, p. Hi); Loon Sloss, Vol. II, p. t)I ; II. V. i'li'tclicr. Vol. II,- p. 10(1; Goorgo II. IVniplc, Vol. II, p. 15U; Gus- tavo Xicbiuini, Vol. II, p. 77 ; iluim Armstrong, Vol. II, p. 2. • Vol. II, p. Uo. hi [(I t" if,! I! Wl ! : . 1 ; i ! Vii , I I I 1 'I u 150 MANACKMK.N r OF TlIK SKAL Ri lOKKKlKS. Cdiitnil mil', iiu'Ntii'utiDii. cii- Several other Pribilof islanders and white men lonu resident there make sii.iilar statements.' ' This pecuHar susceptibility to control has also been and is recox§ hr 1 < I I i I i I II III i 'i n 1 52 MAN.AGKMKXT OF TIIK SEAL ROOM'.RIK^ I'rot imo ion of Government olficer." ' And Mr. C. L. Fowler, fomules. _ _ - who has been employed on the ishmds ;i".nee 1 87!), Sciys that nothing ofTends the natives quicker than to have a female killed.- v^/^ith the c'0()])erati()ii of the natives, who alone do the driving and kill- ing, violation of this regulation is impossible. Another evidence of the strictness with Avhicli this rule is enforced is the testimony of furriers to the fact that the skins of female seals are never seen among those taken on the Pribilof Islands.'' The class of seals allowed to be killed are the nonbreeding males from one to five years of age which " haul out upon the hauling grounds TKj kilhlbll- C-1H:^S T^islui'liiinci- bi't'ciling seals. remote from the breeduiu grounds. "' Tl ic handling of this class of seals because of their separation from the " breeders " causes the least ■ pos.sible disturbance to the seals on the breeding grounds.'' „f Besides tnis the most stringent rules have he^'A\ and are enforced by the Government to prt eut any disturbar ce of ;he breeding seals." Capt. W. C. Couison, of the United States ' Vol II, p. 103. ■ ' - Vol. 11, p. 25. •' Q-. V. Lampson, A'ol. 11, p. 5G5. Set' also I'avorablo conmieiit mi the wiMilniii of tliix regulation in " Handbook of the Fislierios ;)F Nrw ZimIiuuI," p. 2\\r,. ' J. Stanley Brown, \o[. II, ]>. 10 ; T. F. Morgan, Vol. II, j). (VI. ' .1. Slaiiley Ui-own, Vol. II, p. 16 ; Danit-l ■^.'obslt'r, A'ol. II, ]>. is;! " Cliai'les Bryant, Vol. II, p. 8j S. X. \inyn tsky. Vol. II, p. 22. ^^-;^ TlIK SKALS. 153 luiveime ^[ariiic Sei'vicc, who visited the, ishiiuls Distm-baiicc of lu't't'diii" soul"* ill 18'JO and 189J,.sa3-s: "All firearnis were forbidden and never have been used on these islands in the kdlin"; and taklnu; of seals ; in fact, umisual noise, even on the ships at anchor near iliese islands, is avoided. Visiting the rookeries . is not permitted only on certain conditions, and aiivthiniT that niio'ht friqhten the seals is avoided. The seals are never killed in or near the look- crjes, hut are driven a short distance inland to i^ioands especially set apart for this Avork. I do not see hovv' it is possible to conduct the sealing process with greater care or judgment."^ Fire- arms are not pernritted to be used on the islands from the time; the first seal lands until the close of the season. '■ The /nuuber of seals allowed to be killed Nmubn' killed. amuKilly bv the lessees was, from 1871 to 1889 inclusive, one hundred thousand,^ but this num- h;r is variable and entirely wdthin the control of tlu! Treasury Department of the United States.'* In 1889 (!harles J. Goff', then the Government auent on the islands, reported to the Department that he considered it necessary to reduce the ' V.)l. II, p. 414. -.I.e. Kt'dpiitii, Vi)i. II, |). i:.o. M. Stanlev l',y>\.ii, Vol. U, \>. 18 ; II. 0. OLi.-<, Vol. 11, |i. S5. ' J. Sliuiloy Uro'vu, Vol. II, p. 10. Id' ,l :f.'- l\'i f ■ m :;! 1 S, m it • W I >■ - 154 MAXAGEMKNT OF IME UKAA. t;->.»KKEIKS. Numbei- kiikd. qtiota of skfiis to be taken ill 1890.^ Tlie Gov- ernment at once rediiiced the number to sixty tliouffind and ordered tW- ici]|Iiitn«i- of s^als . u cease on July 2if'i ' The 20th of Juiih- wr^ Hxed upon liecause in Swrnier years the tailtijng (.4 ,seal^ had p^'acticall}- ir-Hs«ed at that lime, tlie brftediiiLj j/rounds and ii?.t*ling grounds being up to that time entirely disi»i*K't and separate, anfl Id^sm-^e during the peiiod from Jiiiio 1 to July 'M the skins Avere in the most marketable condJition ' The killing of a portion of tlw^ surplus male lii^i- is undoubtedly a benefit to the herd, as k i« with other domestic and polygamous animals. Foi* it has always been found that such an act increases the number of the progeny.'* The American ( Commissioners also demonstratf^" bv the diagrams atta'-hed to their report, which are explained in the body of the document, that a large portion of the young male seals can be killed without reduc- injT or affecting the normal birth rate.* The United States Government formerly allowed the natives to kill a few thousand male pups for food, but such killing has been prohibited." ' Vol. II, p. 112. -H. (}. Otw, Vol. II, p. 8f5. •' Leon Slos8,'Vi)l. II, )>. 92 ; Gustave Niebaimi, Vol. II, p 77 j •! ' Kedpiith, Vol, ir, p. 1,-^2. * Hoport of /\ iiipncnn Bering Son ConiniifsioneM, ji;o«^, p. 366. ■'J. Stanley Urown, Vol If, p. 18; sec Regulations', Vol. i, |i. 103. Till-: SEALS. 155 The manner of taking seals on the islands is Manner of takii.g. rondiicted with the greatest care and precau- tious' and is directly under the supervision of the Government agents.-^ The methods employed have been the same for twenty years,-'^ without variation,'' and it is the universal testimony of all acquainted with the me hods employed that they can not be improved upon.'' The native^', who arc the only persons who ever drive oi handle the seals/' start out between 2 and (I o'clock in the morninn; when the weather is cool and there is the least liability of overheating the seals ;" separating a small herd of bachelors from se occupying a hauling ground they drive them inland.^ A hauling ground after a drive is "iven several da\s of rest and as a seal let qo from the killing grounds always returns to the .same hauling grounds, it has plenty of time to recuperate before being driven again." The herd is then driven as slowly as possible Driving, while still keeping the animals in motion.'' Ag- ' Clmrl^ Brvftnt, Vol. 11, p. 8 ; M. C. ErAine, Vol. It, p. 122 : W. ( .('.)iils.(n, Vol. II, p. 414. - B. K Seribner, Vol II, p. 8!) ; J. II. Moiilton, Vol. II, p. 72. •' W. S [ferefoH, Y,n II, p. :{6. ' ir II .rf.-Iimri', Vol.11, p. 45. S, Kii-li-on*r, Vol. 11, p. IGl. " W, C.C.mUon, Vol. II, p. 414; Sannul I'.i IcoiiiT, Vol.11, p. 101 ; Sinicon Afi'l iTidoff, Vol. II, p. 20f). ■ W. 13, T.ivl..r. Vol. ir, p. 170. " S, X. IJuymtskv, A'ol. H, p. 21. " Diini.'l Webster, Vol. II, p. 182. 'II I :i. 1 i H 1 ')() .MAXAOKAfKNT OK TIIK SKAF, IM toKKHI KS. ]>i'iviiijj. M ■:;'! tjie Kiislun, native piicsl on St. Paul Island, says ; " Tlie seals are never driven at a gi-eater speed than one mile in three hours ; and the men who do the driving have to relieve each other on the road beeau.se they travel so slow they u"e t ver}' CO Id. Other native seal drivers and ofliclals on the islands also speak of the slow- ness of tlie driving.' At suitable intervals the herd is halted and seals of the unmarketable age are allowed to separate themselves from the rest and return to the water.-' The greatest care has always been taken not to overheat the animals during a " drive," because the effect is very injurious.' Louis Kimmel, assistant Treasury agent in 1S82 and 1888, says: "In every case of a seal beinLj killed on the ' drive ' I, as Govennnent agent, imposed a line in ordei' that they mijfht be moi'e careful in the future. "' Frequent stops are made to allow the seals to rest and cool off'.'' A drive is never undertaken while the sun is shining," and if <^lie sun unex- pectedly comes out the drive is innnediately aban- ' Vol. II, p. V>'J -J. V. Wtdpatli, Vol. 11, p. 150. •' I'Imrk's 15rvuiit, Vol. II, ]). 8, ■* Siiinuol Fiilconpi'. Vol. II, p. ^&2 ; tT. H. Moiiltoii, Vol. II, p. 7'.' 'Vol. II, p. 173. ".T. II. Moultoii, Vol. II, p. 72. ' J. II. Moulton, Vol. II, )). 72 ; \. 1'. Loiul, Vol. IT, p. ;JS: Jolm Fl•ali^>, Vol. II. ](. 107; Wnlson C. Alli.s Vol. 11, p. ti7. '• .. ! i THE SKALS, (loiied and theseals allowed torcluru lotlicwater.' The natives understand how much fatigue can lie endured by the seals and the kind of weather suitable for " driving.' " therefore the number of seals killed by overdriving or by smothering was very inconsiderable at all times;' J. C. lledpath, who has since 1875 been one of the lessees' agents on the islands, says : " At the regulations re([uire the lessees to pay for every skin taken from seals killed by the orders of their local atients, and as the skin of an overheated seal is valueless, it is only reasonable to suppose that tliey would be the last men living to encourage or allow their employes to overdrive or in any manner injure the seals.''* Mr, Wardman says : '• Seals are rarely killed by overdriving."'"' Mr. IJuynitsky says he never saw a single seal killed ]jy overdriving,'' and Capt. Moulton states that '• u very few seals die during a ' drive,' amount- ing, to a very small fraction of one per cent, of those driven, /md in nine cases out of ten of those accidentally killed by smothering, the skins ' Suniuel Falconer, Vol. II, p. 162 ; J. 11. Moulton, Vol. II, p. 72 j n. F. ScribiuM-, Vol. II, p. !»U ; John Fralis, A'ol. 11, p. Iu7. -' W. (.'. C'oulsoii, Vol. II, p. 41.4. ■' II, II. IMcIntjre, Vol. II, p. 4."). ' Vol. II. ]). 150. ' Vol. II, p. ITS. " Vol. 11, p. 21. • U IV riving. P 4; li ! !i' . Si 1- ■ ■!: 158 Driving. Overdriving rcdriving. ' I. ilAXAGEMKNT OF TIIK SKAT. ROOKERIKS. are saved.' The same statement as to the re- moval of the skhis is stated by others, the skins being counted in the quota allowed to the lessees.'- In fact it may be questioned whether any seals are ever killed on a •' drive," except now and then one l;>y smothering." luui The effects of overdriving and redriving (that is, the repeated driving of the same animal several times during the season) upon the seals which from asfe or condition are unfit for killinji is of little or no i.nportance in relation to seal « life on the islands. After a " drive " the hauling ground is unmolested for several days and the seals let 50 from the killini^ fi^rounds, returning to the same haulinj? ijrounds as is their habit, have, therefore, several days to rest and recu- peratebefore undergoing whatever extra exertion is connected with beinjj driven.* (.ertainlv no male seal thus driven was ever seriously injured or his virility affected by such redriving." Mr. John Armstrong, who from 1877 to 188G was the lessees' agent on St. Paul Island, says : " The driving gave them, with, rare exceptions, very ' Vol. II, p. 72. S!«« also A. P. Loud, Vol. II, p. 38. -George Wiirdniuii, A'ol. II, )i. 17S; Siiniuel Fiilconer, Vol. IF, [i. !«:•; .Tolni Fnilis, Vol. II, p. 107. ' .lohn FratJ!'. Vol. II, \i. 107. ^ Daniel Webster, Vol. II, p. 1H± ■■' A. r. Loud, Vol. II, p. as ; C'Imrles Uryiint, Vol. II, p. 8; (ieori,'e Wiird.nnn, Vol. II, p. 17!» ; Dnnifl Webster, Vol. II, p. 182. THE SEALS. 159 little more exercise than they appeared to take OTordnviDg nni rwlriving. ■when left to themselves.'" Anton Melovedoft", an educateu native of St. Paul Island, and for seven years First Chief on the island, after stating tlie fact that before the American occupation the seals were driven sometimes twelve and one-half miles, says, " Ko one ever said in those days that seals Avere made impotent l)y driving, although lonjr drives had been made for at least fiftv years."- Mr. Samuel Falconer, in speaking of this question of redriving, says: "When we con- sider that the bulls, while battling on the rooker- ies to maintain their positions, cut great gashes in the flesh of their necks and bodies, are covered with gaping wounds, lose great quantities of blood, fast on the islands for three or four months, and then leave the islands, lean and covered with scars, to return the following season fat, healthy, and full of vigor to go through again the same mutilation, and repeating this year after year, the idea that driving or redriving, which can not possibly be as severe as their exertions during a combat, can affect such unequal vigor and virility is utterly preposterous and ridiculous."" Capt. Moulton, after eight years' experience on the ' Vol. n, p. 1. • Vol. II. p. 141'. ' Vol. II, p. 16a. See also Daniel Webster, Xo\. IT, p. 183, [315] M !i (' I m\k ;:!i'- : ! ;> y'l (ir Kio M A\.\()i:.-\ii;\i or jiiK sf.ai, rookeries. Ovcrdf If; I riving ;' iviiiK iiiiii islands, states it as his opinion that even il' a seal Avas driven twelve successive days for the aver- age distance between a hauling ground and a kil- ling ground, its virility would not be at all impaired.' Mr. Taylor says in relation to injury to the reproductive powers of the male seals " it would at once be noticeable, for the impotent hull would certainly haul up with the bachelorj,. liaving no inclination and vigor to maintain him- seir on the rookeries.'"" The same methods of driving are employed on the (jommauder Islands, and the rookeries are smaller, necessitating more redriving and the drive on Copper Island takes often a day going over a ridge seven hundred feet high ; and yet this driving, so much more severe than on the Pribilof Islands, has been carried on for over lifty years and is sufficient evidence that redriving does not injure the reproductive force of the male seal.^ All the drives on the Com- mander Islands are rougher and more severe than on the Pribilof Islands.^ That this injury to the male portion of the herd has not occurred is evidenced by the testimony of many on the islands in later years," and Mr. Eedpath, resident ' Vol. II, p. 72. - Vol. IT, p. 177. » C. F. Emit Krebs, Vol. II, p. 190. ■ ' - ^ N. B. Miller, Vol. II, p. :iOO. •'■ H. H. Mclntyre, Vol. IT, p. 45 ; J. Stanley Brown, Vol. II, p. IS; Diiniel Webstei-, A'ol. II, p. 182 ; J. C. Redpiitb, A'ol, II, p. 151 ; I' I... yowler, \ol. II, p. 2.">. "*« rriF, SE Ai.«i. 161 " riu' Ovrr-ilrivinj; iiml rt'-driviiif;. for seventeen years ou the islands, adiU man is not alive who ever saw a six or seven year old bull impotent."' The killing grounds are located near the water, so that those seals whose skins are unmarketable can readily and with little exertion return to that element ; they ore also established as near the hauling grounds as is possible without having the odor from the carcasses disturb the breeding seals.'- If it were not for this unavoidable cause of disturbance attendant upon th(^ killing and skinning of the animals, driving in any form would not be necessary, but as it is, the killing must take place at some distance from the haulintf and breeding grounds, which compels a certain amount of driving. The improvement over the Russian methods is iiuprovcment o\or Bussiun inetliods of marked in this particular, for in 1873^ horses and taking, mules were introduced by the lessees to transport the skins to the salt houses, previous to which time all this labor had been done by the natives, who were the sole beasts of burden ou the islands ;* and, therefore, the killing grounds were located much nearer to the hauliufv grounds than 'Vol. II, p. 151. - J. H. Moulton, Vol. II, p. 72 ; Daiiiol Wobster, Vol. II, p. 182. ' Charles Brjiint, Vol. II, p. 8. ■• Letter from Chief Manager Furnhelm to the Board of Adiuinix- trntion of the Eiissiun American Coiupuiiy, diited July 16, 1803. L* a 15] M 2 !-; ■ V-' : iM W J I' r I 1 i\\> ^f w MiKMKvr or ttik si;\i, iMOK!'i!ir:«<. ii I imin-ovoiiiput over before- tliis luoniis ol" transpoitation w:is ])rii- KiiHHiiui imoIIickN of •"i''"K- ^•id('d.' vVntoii .Meloxccloir slates tliat "in ilic Russian times, before ISilS, the seals were always driven across the island of St. Paul from North l']ast Point (the lar<,'est of the rookeries) to tlie ^ illage salt house, a distance of twelve and ono- lialf miles, but when the Alaska Commercial Ooiupany leased the islands they stopped lonj.' driviug and built salt houses near to the hauliiiii' grounds, so that by- 187$) no seals were driven more than two miles."- Other natives who were on the islands under both American and Eussian control also speak of the shortening of the drives by the American lessees.'' Under these improve- ments the killing season was reduced from three or four nionths under the Eussian occupation to thirty or forty days,^ showing how nmch Ameri- can management has facilitated the taking of seals and reduced the immber of days of disturb- ance to the herd. Kerrick Artomanoff, a native born on St. Paul Island sixtv-seven rears aoo, and who has driven seals for Mly years and was chief for seventeen years, says : " The methods I I ' .r. 11. AloiiUon, Vol. IT, p. T2 : Clinvl.'x Hrrant, Vol. IT, p. 9 ; H. If. MiJiityrc, Vol.n, p. 4->. ■ Vol. li, p. 1-12. ^.\jrBie Tvushin, Vol. 1 r, p. 12!) : Kiu-p Butorin, Vol. IT, p. 10-1 ; nMnielAVilKt.-i-, Vol. II, ]). 1S2; .1. ('. Rrdpnti), Vol. IT, p. l.'iO; KfiTic'lc ji'toiuniioffi, \'ol. II, p. 09. ' .T. Stanley Blown. Vol. IT, p. 18. ' Vol - Dm ^ ■'11., • Lot llMtiull \nl. 1, illicl |1|1( \> 0,. r ' I TnK SKALS. 163 used bv tho Alaska Commercial Comuanv and ,, Tmpi-ovoment ov^r ' * « nuanian muthods of the American Government for the care and 'akinp. preservation of the seals were mncli better than tliose nsed by the Russian (Toveriimciit/"' When a "drive" arrives at the killing ff rounds '^''"'"k. the animals are allowed to rest and cool off; then they are divided into ^n'oiips or '"pods" of from twentv to thirtv;" the killable seals are carefullv selected, those of three and four years being pre- ferred;' the killing gang then club those selected allowing the remainder to return to the water. The skins are removed from the carcasses, j,,^*""'""^ ""'"''''"'''■ coimted by the Government agent, salted, and packed in "kenches" at the salt houses. The llesh of the seals is taken by the natives for food/ Under the liussian management manv skins , ij'!i""V*"'T'' '" o • irealing tho ikiiif. were lost through the drying process, and also from the glutted condition of the Clhinese market, where the greatest number of t]ic skins were disposed of by barter. Bishop Yeniaminof says (Vol.1, p. 296) that "in 180:> eight hundred ' Vol. n, p. 09. -' Diiuiol Webster, Vol. II, p. 182. •' H. II. Mclut.vrc, Vol. 11, j). 57 ; J. Stmilcv Hrowu. Vol. If, p. Iti. ' l.pfh'r of Chief Miiniiger Fi;nibclm to ihc Boiiril of Ailiiiiui.''- liiiliuii (if ijic Kussiiin Aiuerieuii Conipuiiy, duted Jul.v Hi. \Hi>',i. \ III. I, p. h,S. .\ full iiccoillil (if tiu" uicdiod of ilrviiij;-, sulliiiy; . :iii(l |)iickiiiij the >kiiis i.-^ ifivfu lij^ Dr. II. II. ilcJiitvu', Vul. II |i J7. 'M\ t ■I,. m ; I'li ■■ ! ., I ^.'i^.. S^^- '%^ -^^ IMAGE EVALUATION TEST TARGET (MT-3) % 1.0 I.I 11.25 145 ■ SO lU ^ tiS, |Z8 |25 |2.2 2.0 m U 11.6 ^% '^ "^ Photographic Sciences Corporation 23 WEST MAIN STREIT WeBSTilt.N.Y. MStO (716)S72-4S03 % ^ 1 •; 1 WW 7, i W ■ « d i I 1 ill m 1, tl fe' ! ^ ij ;i 4 1 , i ^' i' ! t - .'t « i E 1 ' , i i '<»■ ■ti i 1 11 1 J 164 MANAGEMENT OF THE SE.VL ROOKEIIIE.1. improTemeut in thousand skins had accumulated, there being no treating the skini. . i zm • profitable sale for them at Kiakhta (the Chinese market town), and besides a large proportion of the skins became spoiled, and more than seven hundred thousand were burned or thrown into the sea." But under American control all skins are salted, as will be seen by an examination of the London Trade Sales, and there is no waste, increiwe. Under this careful management of the United States Government the seal herd on the Pribilof Islands increased in numbers, at least up to the year 1881 . This increase was readily recognized by those located on the islands.' Capt. Bryant says that in 1877 the breeding seals had increased to such an extent that they spread out on the sand beaches, while in 1870 they had been confined to the shores covered with broken rocks.* Mr. Fal- coner mentions the fact that in 1871 passages or lanes were left by the bulls through the breeding grounds to the hauling grounds, which he ob- served to be entirely closed up by breeding seals in 1876,' and in this statement he is borne out by the testimony of Dr. Mclntyre.* It must be remembered also in this connection that two ' Gustavo Niebaum, Vol. II, p. 77 ; H. W. Mclntyre, Vol. II, p. 138 ; Daniel Webster, Vol. II, p. 181 ; J. C. Redpath, Vol. II, p. 161. » Vol. II, p. 7. ' Vol. II, p. 181. ^Tol. n,p. 44. EVIDENCE OF DECREASE. 165 himdred and forty thousand male seals liad been intrcn»e. destroyed in 1868, and that this increase took place in spite of that slaughter and although one hundred thousand male seals were taken annu- ally upon the islands.' How this increase could be recognized has been already mentioned in con- nection with the question of estimating the number of seals, and is best shown by the charts marked A to K,^ which have been verified by those most famiUar with seal life during that period (1870 to 1881).^ That this increase in the seal herd was undoubtedly the result of the methods and man- agement employed by the American Government is a fact asserted and clearly proved.* DEOBEASB OF THE ALASKAN SEAL HEBD. JiVIDENCE OF DECItEASE. From the year 1880 to the year 1884-'85 J^;'*"' "^ the condition of the rookeries showed neither increase nor decrease in the number of seals on the islands.'"' In 1884, however, there was a "•hs- ' London Trade Sales, Vol. II, p. 585 ; tables of seals taken, Vol. II, pp. 127 and 172. ' Sec portfplio of maps and charts and explanatory affidavits of II. H. Mclntyrc, Vol. II, p. .30; Cliarlcs Bryant, Vol. II, p. 3 ; and J. Stanley Brown, A'ol. II, p. 20. ' H." II. Mclntyrc, Vol. II, p. 44 ; C'harlci Bryant, Vol. II, p. 7 ; T. K. Morgan, Vol. II, p. 04 ; Samuel Falconer, Vol. II, p. 167. ' .r. C. Cantwcll, Vol. TI, p. 408; II. O. Oti^ Vol. II. p. 87. M. Stanley Brown, Vol. II, p. IS: .1. H. Moiilloii, Vol. II. p. 71 : H. A. (Uild«n. Vol. II, p. 109. m r 166 DECHEASE OF TlfE ALASKAN SEAT- HERD. nation Period of »tug- perceptible decrease noticed in the seal herd at the islands,' and in 1885 the decrease was marked in the migrating herd as it passed up along the American coast, both by the Indian hunters along the coast - and by white seal hunters at sea.^ Since that time the decrease has become more evident from year to year, both at the rookeries* and in the waters of the Pacific Ocean and Jiering Sea.° The Bering Sea Com- missioners of both Great Britain and the United States, in their joint report, affirm that a decrease has taken place in the number of the seal herd ; " so that the simple fact is accepted by both parlies to this controversy. But the time when the seals commenced decreasing, the extent of such decrease, and its cause are matters for con- sideration. '• The American Bering Sea Conunissioners, after an exhaustive examination of the condition of the rookeries, as to the evidence of their former limits, and of individual witnesses who had observed the rookeries for several years, ' J. ir. l^rouUon, Vol. ir. p. 71 ; M. C. Ewkine, Vol. II, p. 422; Anton MclovedofF, Vol. IT, p. 130. « Alfrrd Trvinff, Vol. IT, p. 387 ; Bowachup. Vol. II. p. 376; N Ovcgiiroff, Vol. IT. p. ilU. •' K. W. Littli'john, Vol. II, p. 457: A. McLoiin. A'ol. 11. p. 4;<7. ' J. 11. Douglass. \v\. 11. p. 410 ; M. (.'. Erskinc. Vol. II. p. 4i'i'; >. Manilrcgin. Vol. II. |>. I K>. ' •luiiK'g Kc'i.ncilv, A'ol. II. )i. I4'.t ; Cliiiilcs l.iiljciis. Vol. II. p. l.",;i. ''.loinl Ki'puil (if Ui'i'iiig Sea I'niii.iii-sioiicH. j'uv/, p. 300. Oil PiibUof lands. :,l»l iii» EVIDENCE OF DECREASE. 167 state that the spaces now covered by seals are On PnbUof ' ii- much less in area than formerly, and that a marked yearly decrease is shown to have taken place during the last five or six years.' Karp Buterin, native chief of the St. Paul Islanders, who has lived on the island all his life, says : "Plenty schooners came first about eight or nine years ago and more and more every year since ; and the seals get less ever since schoon- ers came ; and my people kept saying, ' No cows ! no cows ! ' "'^ Dr. William S. Hen^ford, who was resident physician on the Pribilof Islands from 1880 to 1891, inclusive, says: "It is an indisputable fact that large portions of the breeding rookeries and hauling grounds are bare, where but a few years ago nothing but the happy, noisy, and snarling seal families could be seen ; "' and Mr. A. P. Loud, assistant Treasury agent on the islands from 1885 to 1889, says there was a very marked decrease in the size of the breeding grounds from 1885 to 1889.* Capt. Coulson, of the United States Revenue Marine, who cruised in Bering Sea in 1870, 1890, and 1891, also mentions the fact that the decrease in one year (1890-91) was ' Report of American Bering Sea Commissioners, poit, p. 3-10. - Karp Buterin, Vol. IF, p. 103 ; See also ('. L. Fowler, Vol, IT, p. I'o. ^ Vol. II, p. 30. ' Vol. 11, p. 89. . . , . 5i I 168 DECREASE OK THE ALASKAN SEAL HERD. I J. On Pribiiof !•• verv noticeable.' Commander Turner, Roval lands. ... . Navy, in a dispatch to Eear-Admiral Hotham, dated on the Nymphie at Esquimault, October 8, 1891, states that " on the largest rookery, a great tract of land, which a few years ago had been covered with seals, and the bowlders and rocks which had been worn smooth by them, was now totally deserted, and no increase had been observed on other rookeries to compensate for this deficiency. "- How great has been the decrease in the num- ber of seals is most plainly shown by the charts marked A to K. The areas covered by breed- ing seals in 1891, which were carefully platted by the Government surveyor from observations and measurements made by him during his sur- vey, should be compared with the lines of increase heretofore mentioned."' M. C. Erskine, a sea cap- tain of twenty-four years' experience in Alaskan waters, speaks of the scarcity of seals in Bering Sea in 1890 as compared with the numbers seen in former years,'' Treasury Agent Goff, who was in charge of the islands in 1889 and 1890, and who had reported the decrease of seals to the Government, in consequence of which report the ' Vol II, p. 415. - British Bluo Book, U. S. No. 3 (1S02), C-663o, p. 118. •^ Ante,Tp. 165. , - .; ,t; ; •. ♦ VoL II, p. 422. .... .;,*: , ." ^%^ 1 "■ * ^ = !:'] 1 tii iiii EVIDENCE OF DECKEASE. 169 number of seals to be taken had been reduced On Pribiiof !•• to sixty thousand, and the time for killing limited to July 20,' says : " As a result of the enforce- ment of these regulations the lessees were unable to take more than twenty-one thousand two hun- dred and thirty-eight seals of the killable age, of from one to five years, during the season of 1890, 60 great had been the decrease of seal life in one year, and it would have been impossible to obtain sixty thousand skins even if the time had been unrestricted. "'" He further adds that the weather in 1890 was as favourable to seal driving as in 1889 (when one hundred thousand skins were taken) and the driving was conducted as dili- gently in the latter year as in the former. - Besides the foregoing testimony, the natives and Eyidence. white residents on the islands state that the seals began to decrease in 1885 or 188G, and that the decrease has been the most rapid in the last tliree years.^ Thomas. Gibson, a seal hunter since 1881, says Along the coait. there has been a great decrease in the number of seals in the North Pacific and Bering Sea since ' Ante, p. 153. "Vol. II, p. 112. ' Anton Molovedo£f, Vol. II, p. 143 ; Aggie Kusliin, Vol. II, p. 128 ; Nicoli Krukoff, Vol. II, p. 132 ; John Frati8,Vol. II, p. 108 ; Alexander HanRnon. Vol. II, p. 116 ; Daniel Webster, Vol. II, p. 181 ; C. L. Fowler, Vol. II, p. 141 ; Kdwwd Hughoi, Vol. II, p. 87. 170 DECRKASE OF TlIK ALASKAN SEAL HERD. Along tho coast. ]ie began hunting,' and he is supported in this statement by James L. Carthcut, captain of a sealing vessel from 1877 to 1887, Alexander McLean, a captain of a sealing schooner for eleven years, Daniel McLean, also with eleven years' experience, and many others,- Peter Brown, chief of the Makah Indians at Neah Bay, in the State of Washington, a tribe who from lime immemorial have been expert seal hunteis and have through their industry acquired much property* and are among the few civilized aborig- inal tribes of North America, testifies to the decrease in the seal herd.' Hastings Yethow, an old Indian residing at Nicholas Bay, Prince ol Wales Island, who has hunted seals from boy- hood, says : " Since the white men with schooners began to hunt seal off Prince of Wales Island, the seals have become very scarce and unless they are stopped from hunting seal they will soon be all gone. If the white men are per- ■ ' . ■ ■ ' mitted to hunt seal much longer the fur-seal will become as scarce as the sea-otter, which were quite plenty around Dixon Entrance when I was a boy. The Indians are obliged to go ii 1 i ! ill 1 1 i 111 11 ' Vol. ir, p. 432. = G. Fogel. Vol. II, p. 42-i; U. Jsnaoson, Vol. 11. p. -WO; .laim-i Sloiip. Vol. TI. p. 477 ; J. I>. HfcPoimld. Vol. IT, p. 2tiH : I.oiii»riillci'. Vol. IT, p. 321. ■' Vol. II. p. u7s. ' '^ ^ , I ■ ♦ Itid., pp. 377, 378. ETII>KXCT. OK DKrWKlSK. 171 liiii'.^ way lor seal now, and often return after two ^'""« """ ''*""*• or three days' hunt without any."' George Skiiltka, cliief of the Hyda Indians at How- kan, says : " There are no seals left now ; they are most all killed off."- Chief FrJink, Second Chief of the Kaskan Indians, states that " fur-seal are not as ])lentv as thev used to be and it is hard for the Indians to catch any," and closes his testimony with the words, " there is one thing certain, seals are getting scarce."' Thomas IjOWC, a seal hunter belonging to the Clallam tribe, Vassili Feodor, a native hunter of the vil- lage of Soldovoi in Cook's Inlet, and many other Indians living along* the coast from the Straits of Juan de Fuca to Cook's Inlet, make the same assertion.* That this decrease, in respect to which the evidence is so unanimous from every point of observation, was not caused by any change in the methods employed on the islands has already been shown by the testimony of numerous reliable witnesses, who prove that ' Vol. II, p. 303 ; See also Chief Thomas Skowl, Vol. II, p. 30(t ; Smith Natch, Vol. II, p. 29ft ; NnMitou, Vol. II. p. 2ftS ; Robert Kooko, Vol. II, p. 296. ^ Vol. II, p. 290. " Vol. II, p. 280. ' Alfred Irving, Vol. II, p. 387 j Circus Jim (Ncali Bay), Vol. II. pp. .180, 381 ; Weekenunesch (Barclay Sound), Vol. II, p.' 311 ; Martin Singny (Sitka Bay), Vol. II, p. 268 j Kinkooga (Yakutat Bay), Vol. II. p. 240; Mike Kethusduck (Sitka Bay), Vol. II, p. 262; Echon (Shnknn) Vol. IT. p. 280 ; SimVon Chin-koo-tin (Sitka Bay;. Vol. II, p. 257. 7ft Ih:^^ 172 rtKruKAsKOF nw. ai.vskan simi, hkkp Along the coiwt. there was no change in the manner of handling and taking the seals in the last decade from that employed in former years, during which the seal herd materially increased.' I; i, »; I ' CAUSE. Lack of male life Nor was this marked decrease chargeable to not the oBUBc. '-' the fact that there were not sutficient males to serve the females resorting to the islands." Mr. J. C. Eedpath, already quoted as one thoroughly fainiliar with seal life on the islands, says : *' A dearth of bulls on the breeding rookeries was :i pet theory of one or two transient visitors, but it only needed a thorough investigation of the rook- eries to convince the most skeptical that there were plenty of bulls and to spare, and that hardly a cow could be found on the rookeries without a pup at her side.'"* Karp Buterin, Head Chief of the natives of St. Paul Island, says : " Plenty of bulls all the time on the rookeries, and plenty bulls have no cows. I never seen a three-year- old cow without a pup in July ; only two-year- olds have no pups."* Agent Goff particularly testifies that although the lessees had much diffi- ' Ante, p. 164. - .1. Stanley Brown.Vol. It. p. 18 -. Anton MelovedofT, Vol. II, p. U2 ; Pnniol Webfitor, Vol. IT. p. l«l. "Vol.11, p. 151. * Vol. 11, p. 1.04. m •I :b (.\r!«(K. 17;{ culty to procure their quota in 1889, a sufficient Li»i1> «>r nioio uf* not the I'uust'. number of males were reserved for breeding purposes.' Col. Joseph Murray, assistant agent on the islands in 1890, and still holding that position, says : '* I saw nearly every cow with a pup by her side and hundreds of vigorous bulls without any cows."'- And this statement is sup- ported by Mr. J. Stanley Brown, who was on the " ^ . , islands in 1891.^ Maj. W. H.Williams, thepres- pnt agent of the United States Government on the Pribilof Islands, and who held that position in 1891, says: "During the season of 1891 nearly every mature female coming upon the rookeries gave birth to a young seal ; and there was a great abundance of males of sufficient age to again go upon the breeding grounds that year, as was shown by the inability of large numbers of them to secure more than one to five cows each, while quite a number could secure none at all."* Aggie Kushin, for several years assistant priest in the Greek Catholic Church, and resident on St. Paul Island since 1867, says: "We noticed idle, vigor- ous bulls on the breeding rookeries because of the scarcity of cows, and I have noticed that the cows have decreased steadily every year since 1886, ' Vol. II, p. 112. » Vol. II, p. 74. » Vol. II, p. 14. ■ '■ « V«l. II, p. 94. ' 174 ltK»'RK.\J;iF, OF THK AI.A^K.W SEAL HF-Ri). iii'l'l Baid* on rookcHet not thp cniise. Uok of nmie life butniore particularly so in 1888, 1889, 1890, and not the •niuie, ..... 1891."' And the fact that the conflicts took place between the bulls on the rookeries in 1890 and 1891 is sufficient to show that virile males were not lacking.* It has also been shown that the decrease in the seals took place primarily among the female portion of the herd. Raids upon the rookeries, or the unlawful killing of seals on the islands by unauthorized persons, though injurious to seal life,'' have played no hnportant part in the history of the rookeries, and the few thousand skins thus secured never affected the number of the seal herd to any extent.* The American Commis- sioners after asserting that the number of seals killed by raiders is \evy inconsiderable, continue : '• It is also difficult for one familiar with the rookeries and the habits of the seal t(i conceive of a raid being made without its becoming known to the officers in charge of tlie operations upon the islands. The ' raid theory,' therefore, may be dismissed as unworthy, in our judgment, of serious consideration."'^ Mr. Stanley ' Vol. II, p. 128. See also John Frntis, Vol. II, p. 109 ; U. N. Clnrk, Vol. II, p. 159; Daniel Webstor, Vol. II, p. 181. - Report of Auiericun Bering Seo Commissioners, poxf, p. 3>tl), ■^ H. H. Mclntjre, Vol. 11. i). 46; T. b\ Morgan. Vol. II, p. (15. * W. B. Tnylor, Vol. II, p. 177 ; J. II. Moulton. A'ol. II, p. 72 ; If. II. McIntyre,'Vol. II. p. 40 ; .\ggif Kusliin, Vol. II, p. 128; Jolm J-'ratis, Vol. II. p. 108. ' Report of American Bering Sea C'ouimiMioners, iionf, p. 378. CAUSE. 175 Brown, in considering this question, and after a R««J« on rookcnc* . , , not the catuc. careful examination of the statistics relating thereto, says : " The inhospitable shores, the exposure of the islands to surf, the unfavorable climatic conditions, as well as the presence of the natives and white men, will always prevent raids upon the islands from ever being frequent or effective."' A further evidence of the infre- quency of such marauding is clearly shown by the affidavit of Mr. Max Heilbronner, Secretary of the Alaska Commercial Company, as compiled from the record, of said company,^ and the state- ment compiled by the Treasury Department from the reports of their agents during Ameri- can occupation, there being but sixteen such invasions reported.' If other raids had taken place besides these, the fact would certainly have been known on the islands, as their effect would have been seen on the breeding grounds ill the shape of dead carcasses of pups and other seals.* The difficulty of landing upon the rook- eries without being discovered is also made evident from the ineffectual efforts of predatory vessels to land mer on the islands, which are ' J. Stanley Brown, Vol. II, p. 18. • Max Ileilbronncr'fl statement, Vol. II, pp. 112-127. ^ Treasury Department, statement of raids. Vol. II, p. 519. , * Anton MeloTcdoff, Vol. II, p. 143. [315] N 176 DECREASE OF THE ALASKAN SEAL HERD. Management rookeries not oause. of tlie Excessive killinn tlie admitted cause. Raids on rookeries described bv members of the crews of such not the cause. vessels.' If, tben, this marked decrease in the Alaskan seal herd lias not been caused by the way the seals are handled or killed upon the islands, nor by a lack of male life resulting from excessive destruction of bachelor seals by the lessees of the seal rookeries with the consent of the Govern- ment of the United States, nor by the depreda- tions of marauding parties upon the islands, another cause of destruction must be sought. It is admitted by all parties to this controversy that a decrease has taken place in the Alaskan seal herd which has been "the result of excessive killing by man."- The acts of man in destroy- ing seal life can be performed either upon the islands which the seals have chosen for their home or in the waters of the Pacific Ocean or Bering Sea, while the herd is performing its annual migration or during its stay at the islands. That such destruction of the species on the Pelagic sealing the islauds lias not causcd the great decrease in the number of seals has already been shown ; there remains, therefore, but one other possible cause, namely, the killing of seals during their migra- • Joseph (Irvraes, Vol. II. p. 434 ; Peter Duffy, Vol. II, p. 421. ' Joint Report of the .Imericau and British Commissioners, jjoxl, p. 309. •i I i m : mi. ■ -J m ' 1 W; Kit ■ ■ f ■ J' liil ii CAUSE. i7r American commis- sioners. tion or in the waters adjacent to the islands; Peingic sealing tiip Til i> t ^^ cause. in other words, the sole cause of the present depleted condition of the Alaskan seal herd is open-sea sealing. This is shown particularly from the fact that the decrease has been prin- cipally in the female portion of the seal herd/ which will be shown later to form from eighty to ninety per cent, of the pelagic catch.- That opinions. Hucli is the cause of decrease is the concurrent opinion of a great number of witnesses, Indians and whites, of many occupations and of varied experience. The American Bering Sea Commis sioners, after a careful and exhaustive examina tion into the question of decrease, report the cause to be pelagic sealing.'* Dr. J. A. Allen, after Dr. Alien, examining and duly weighing the sources of information, American, British, and Canadian, declares it to be his opinion that pelagic sealing has been the sole cause of the great decrease in the Alaskan seal herd.* Such witnesses as Experts. Thomas F. Morgan, H. H. Mclntyre, and others, of twenty years' experience with the Alaskan herd and thoroughly conversant with all the conditions and phases of seal life, state ' Report of Amc rican Bering Sea CommiBBioners and tlio witnesses oxaiiiiiu'd by them, poiJ, p. 341 ; Karp Buterin, Vol. II, p. 103. • Report of Amoricai. Bering Sea Commissioners, post, p. 367. '' Report of the American Bering Sea Commissioners; post, p. 379. ' Article bj Dr. All. ., Tart III, Vol. I, p. 410. ^ Mr ' [ai5] N 2 178 Eipertg. 1 H^ ■ii "M DECREASE OF THE ALASKAN SEAL HERD. the sole cause of the decre.i,se to be pelagic seal- ing.' Capt. Daniel Webster, already mentioned, and one of the most, if not the most, expe- rienced white man in seal habits and life, after mentioning the increase of seals from 1870 to 1880 and the rapid decrease from 1884 to 1891, says : " In my judgment there is but one cause for that decline and the present condition of the rookeries, and that is the shotgun and rifle of the pelagic hunter, and it is my opinion that if the lessees had not taken a seal on the islands for the last ten years we would still find the breeding grounds in about the same condition as they are to-day, so destructive to seal life are the methods adopted by these hunters."^ Dr. W. S. Hereford, with eleven years' experience on the seal islands, says : " I made the conditions^ of seal life a careful study for years, and I am firmly of the opinion their decrease in number on the Pribilof Islands is due wholly and entirely to hunting and killing them in the open sea."' Charles F. Wagner, who was located at Unalaska in 1871, and has been a fur trader since 1874 to the present time, says: "lam » T. p. Morgan, Vol. II, p. 65; H. H. Mclntyre, Vol. II, p. 46; Gustaye Niobaum, Vol. II, p. 203. 2 Vol. II, p. 184. » Vol. II, p. 36. CAUSE. 179 sure the decrease is caused by the killing of Experts, females in the open sea."^ (It will be shown later in discussing the method and catch of open- sea sealing vessels that a large percentage of the seals thus taken are females.)^ Prof. W. H. Dall, the well known scientist and author, says : " It is evident that the injury to the herd frG7n the kill- ing of a single female, that is, the producer, is far greater than from the death of a male, as the seal is polygamous in habit ; the destruction to the herd, therefore, is just in proportion to the de- struction of female life. Killing in the open . waters is peculiarly destructive to this animal "^ A large number of Indians along the Pacific ^"<^'''" huntor*. coast from Oregon to the passes of the Aleutian Islaiids, whose depositions are appended hereto, are unanimous in declaring the cause of decrease in the seal herd to be open-sea sealing as it has been conducted for the past six or seven years. Evan Alexandroff, priest at Soldovoi in Cook's Inlet, unites with several native seal hunters of Ihat locality in stating that " fur-seals were for- merly much more plentiful, but of late years are becoming constantly scarcer. This is, we think, owing to the number of vessels engaged in hunt- » Vol. II. p. 212. = Tost, p. 196. 3 W. H. Dall, Vol. IT, p. 24. » n 1 H m |: I'j I: id „ It I 1 '■ i|hf ml 180 Indian banters. .!';.; I |i li ,13 i i! 11 DECREASE OF THE ALASKAN SEAL HERD. ing them at sea."^ Nicoli Apokche, a native fur trader at Fort Alexander, Cook's Inlet, says: " Fur seals were formerly observed in this neigh- borhood in great numbers, but of late years they have been constantly diminishing, owing to the large numbers of sealing vessels engaged in killing them,"" and his affidavit is signed by several other natives of that region engaged in seal hunting. Peter Brown, the old chief of the Makah Indians, already quoted, says : " White hunters came here about five or six years ago and commenced shooting the seals with guiLs, since which time they have been rapidly decreas- ing and are becoming very wild."^ Ellabasli, another Indian of the same tribe, confirms this statement in the following words: "Seals are not so plentiful now as they were a few years ago. They began to decrease about five or six years ago. A good many years ago I used to capture seals in the Straits of Juan de Fuca, but of late years, since so many schooners and white men have come arour: " here shooting with guns, that only a few come in here and we do not hunt In the Straits any more. I used to catcli forty or fifty seals in one day, and now if I get ' Vol. II, p. 229. = Vol. II, p. 224. 3 Peter Brown, Vol. IT, p. 378. CAusi:. 181 six or seven I would have great luck. I have to indion imntcw. go a long distance to get seals now. Seals are wild and afraid of an Indian, They have become so since the white man and the trader be^an to shoot thorn with shotguns and rifles. In a short time there will be no seals left for the Indian to kill with the spear.'" Watkins, also a Makah Indian, who has hunted seals for forty years in a canoe off Cape Flattery, after men- tioning the decrease in the seals, says : " So manv schooners and white men are hnntin" thera with guns all along the coost that they are get- ting all killed off."- Many other members of the same and other tribes also add their testimony rtiat the cause of decrease in the migrating herd is due to pelagic seahng Ijy white men.^ Numerous pelagic sealers also, in spite of their wiiite senior.-., interest being contrary to such a conclusion, ad- mit, not only the decrease in the number of seals, but that such decrease has been caused by those engaged in their occupution. Frank Johnson, for ten years a seal hunter, on being asked the ques- tion to what he attributed the decrease, replied: " The increase of the fleet and killing of all the ' Vol. II, i>. 385. •Vol. II, p. 395. •' Islikn, Vol. II, p. 388 ; Wisroo, Vol. II, p. 3!)7 ; George I.;i Check, Vol. II, p. 2G5 ; Jim ICasooli, Vol. II, p. 20G ; King Kaskwii, Vol. II, p. 295 J Percy Kahiktdav, A'ol. TI, p. 201. .182 ■White sealers. DECREASE OF THE ALASKAN SEAL HERD. females," adding that if continued the seal herd would soon be exterminated.* Alexander Mc- Lean, the well known sealing captain, accounts for the decrease as being the result of killing the female seals in the water, and there is no chance for the seals to increase because so many vessels are going into the sealing business.^ Daniel McLean attributes the decrease to " killing off the females."' He is supported in this statement by H. Harmsen, a seal hunter of many years' experience;* Niles Nelson,* Adolphus Sayers," and others engaged in the same occupation." William Hermann, who has been a seal hunter for more than a decade, says : " I think they (the seals) are decreasing on account of their being hunted so mucli."^ William Mclsaac says : " I think there are so many boats and hunters out after them that they are being killed off; they are hunted too much."^ William H. Long, a captain of a sealing vessel, takes the same view of the ' Vol. II, p. 441. ■ Vol. II, p. 437. 3 Vol. II, p. 444. * Vol. II, pp. 442, 443. » Vol. II, p. 470. « Vol. II, p. 473, ' Peter Collins, Vol. II, p. 413; James Kiornan, Vol. II, p. 150; Gustavo Isaarjon, Vol. II, p. 440. •^ Vol. II, p. 446. 5 Vol. II, p. 461. CAUSE. 183 matter,' as also many other sealers do.* Others White seaiow. less intimately acquainted with the business of open-sea sealing, but from experience and know- ledge of seal life qualified to judge as to the cause of decrease, unite in casting the entire blame upon the pelagic sealing industry.' Agent Goff, in speaking of pelagic sealing, says : " If con- tinued as it is to-day, even if killing on the islands was absolutely forbidden, the herd will in a few years be exterminated."* This unanimity of opinion, as expressed by every class and condi- tion of witnesses, scientists, sealers, both Indian and white, those who have watched the seals upon the islands and those who have seen the animals during their migration up the coast, is further supported by the statistics of the sealing fleet, its catch and number, as compared with the years when no increase was observable on the islands and when decrease was noted. Tlie period of so-called stagnation in the num- increase of sealing ber of the seal herd has been shown to be from 1880 to 188'4- '85.' According to the table of the sealing fleet, prepared from all available ' Vol. II, p. 458. - E. P. Porter, Vol. II, p. 347; James E. Loiinan, Vol, II, p. 370 ; Michael White, Vol. II, pp. 490, 491 ; J. D. McDonald, Vol. II, pp.266, 267. ' Joseph Murray, Vol. II, p. 74 ; H. H. Mclntyre, Vol. II. p. 46 ; Charles J. Goff, Vol. II, p. 112 ; J. Stanley Brown, Vol. II, pp. 17, 18, 19, 20. ' Vol. II, p. 113. '" Ante, p. 1C3. fleet. J t. V, ' ■ u r ^P^I <^'r? I, . I f i i \ i II ' p< ■i 1 1 ■ 1'; 1 ' ^^ ^' j ■ i. . ' ' M ' r I f: i , i 184 DECREASE OF THE ALASKAN SEAL HERD. fleet Increase of Maiing sourcGs,' the VGSsels had increased from two in 1879 to sixteen in 1880 ; up to 1885 the number of vessels varied from eleven to sixteen annuallj'. Besides this it will be shown, subsequently, that the hunters employed on these vessels during the period from 1880 to 1885 were principally Indians, and that their method of taking seals, though injurious, is not nearly as destructive of life as that employed by other hunters. In 188G, the year when the decrease in the seal herd w^as first noticed along the coast, the fleet increased from fifteen vessels to thirty-four, and over thirty-eight thousand skins were known to have been secured that year.- In 1887 there were forty-six vessels engaged in sealing, but a less number of skins were taken. In 1886, owhig to the seizure of several schooners in Bering Sea by the United States Government, the fleet fell ofi" to thirtv-nine vessels, the catch being about thirty-seven thousand.' No seizures being made in 1888, the fleet increased again in 1889, numbering sixty-nine vessels, with a total catch of over forty thousand.'* Vessels having been seized in 1889, the number again fell off in 1890 to sixty, but the catch increased to nearly ' ToMo of sealing fleet, Vol. I, p. 591. - Report of American Bering Sea Commissioners, po.if, p. 366. ^ Report of American Bering Sea Commissioners, poit, p. 3(56. •• Ibid., post, p. 366. sf ■' I cau.sk. 185 fifty thousand.' In 1 890 the sealers were unmo- incvcnso of miUu^ fleet. lested, and so in 1891 the number of vessels was nearly doubled, reaching the enormous figure of one hundred and fifteen,^ but the catch, because of the ever-increasing scarcity of the seals, reached but sixty-two thousand five hundred.^'-' The agreement between Great Britain and the United States in relation to pelagic sealing in Bering Sea in 1892, and the orders to naval vessels pursuant thereto, have not been of such a nature as to invite investment in the sealing fleet, and yet, in spite of the restrictions imposed and dangers incurred, the ileet of sealing vessels for 1892 is known to contain at least one hun- dred and twenty-three,* which is below the actual number, as undoubtedly vessels have been en- iraged of which the United States Government has received no reports. The decrease in the seal herd has thus been proportionate to the increase of the sealing fleet.* Another significant fact in this connection is that, until the period of decrease began, the sealing vessels did not, as a ' Report of American Bering Sea CommiBsioners, posf, p. 36G. -' Ibid., po.it, p. 371. •' Table of sealing fleet, Vol. I, p. 591. 'J. C. Eedpath, Vol. II, p. 141; Alexander C. Slivlia, Vol. IJ. p. 22G. * It is probable that the various arniial catelies given are much too small, as it has been most diflicult to obtain data and statistics in this respect. i*'"" m 'l! )r:fi '•'b L I ';?■«' 'i. .''I 186 DECREASE OF THE ALASKAN SEAL HERD. Increase of sealing rule, enter Bering Sea.* William Parker, for floot. ^ ten years engaged in the sealing business, says : •' There was hardly ever a sealing schooner that went to Bering Sea during these years (1881- 1884) or prior to 1885."* John Morris, a male of a sealing vessel for several years, says : " Prior to this (1885) I had never been in the Bering Sea, and with but few exceptions sealing vessels did not visit those waters."' These two facts, «cS^™§cet*lud de- *'^^"' ^^® plainly shown, that when the sealing fleet consisted of a small number of vessels, carrying Indian hunters, and the sealing was confined to the Pacific coast, no decrease took place in the number of seals ; but all increase ceased when the sealing fleet increased in num- crease. bers. The vessels being outfitted with white hunters, using firearms, and the hunting grounds extended so as to include Bering Sea, the de- crease in the seal herd became marked and rapid, constantly becoming greater as the fleet of seal- ing vessels increased. ' Andrew Laing, Vol. II, p. 335; Charles Peterson, Vol. 11, p. 346. - Vol. II, p. 344. 3 Vol. II, p. 340. HISTORY. 187 PBLAOIO BBAIilMO. HISTORY. Open-seal sealing, the sole cause of the enor- , Scniing by ;.Coa8t * ° ^ Indians. mous decrease- noted in the Alaskan seal herd in the last few years, and which threatens its exter- mination in the near future, was carried on by the Pacific coast natives in their canoes for many years previous to the introduction of sealing schooners. The catch was small, ranging from three to eight thousand annually,' and there was little or no waste of life from the loss of seals killed and not secured, as will be seen when the means and manner of hunting employed by the Indians is considered. Even after vessels were employed in the in- Vessels used, dustry, which, according to Mr. Morris Moss, vice- president of the Sealers' Association of Victoria, British Columbia, was about the year 1872,'^ the fleet was small, not numbering over half a dozen vessels.^ Indians only were employed as hunters, and the seals were killed with spears.^ With the iatrodnction of schooners to carry the canoes out into the ocean, the seaUng grounds were extended ' 0. M. Scammon, Vol. II, p. 475. ' Morris Moss, Vol. n, p. 341. 188 Vi'Kerlii imcd. Introiluplitn lire-ftMii!*. PELAGIC 8E.\UXa. from the area covered by a canoe trij) of twenty miles from a given point on the coast' to the waters frequentecl by the migrating herd from the Cohimbia River to Kadiak IsLind.- In 188;» the schooner Si ; Moses, Vol. II, p. 309; Wispro. Vol. 11, p. 396. •' Aiiie, p. 18C ; Gustare Niebaum, Vol. II, p. 78. MKTUOD. 18!) MRTIIOD. The vessel commonly used in sealing is a Vfs»ci», outnt, ote. schooner ranging from twenty to one hundred aiul fifty tons burden ; the average tonnage per vessel for the Victoria fleet in 1890 being (53.2 tons.' The number of hunters and canoes or boats carried by a sealer depends upon the size of the vessel, but the average number of canoes is between ten and sixteen, each manned by two Indians,'- and when the hunters are whites the boats generally number five or six,"* In some cases both Indians and whites are employed on the same vessel * The average number of men to a vessel in 1890 was twenty-two.' The Ind'ui hunter almost invariably uses a Indian hunters, speav, and though in the last tAvo or three years firearms have been carried in the canoe,* the principal weapon used by him is still the spear." A full description of the spear, canoe, and man- ner of hunting is given by Lieut. J. H, Quinnan, who accompanied some of the Indians in their canoe during a hunting excursion.' The most ' Canadian Fisliories Report, 1890, page 183. - Niels Hondo, Vol. II, p. 315-316 ; Moses, Vol. II, p. 310. ' Patrick Maronoy, Vol. II, p. 464 j J. Jamicson, Vol. II, p. 329- 330; Niels JJonde, Vol. II, p. 31fi. * James Dalgarduo, Vol. II, p. 364. • Peter Brown, Vol. II, p. 377; Morris Moss, Vol. II, p. 341. '' Peter Brown, Vol. II, p. 377 ; Moses, Vol. II, p. 309. '.Beport of Lieut. J. H. Qiiinran, Vol. I, p. 501. Sec also A. B. Alexander, Vol. IT, p. 352. I! I i| 190 Indian hunters. White hunters. :(!■*• PELAGIC SEALING. expert spearsmen are the Makah Indians of Neah Bay, Washington.' The Indian, from his method of hunting, loses very few seals that he strikes, securing nearly all.- The white hunter, on the contrary, loses a great many seals which he kills or wounds.' Each boat contains a hunter, a boat-steerer, aud a boat-puller -* the hunter uses a rifle,* a shot- gun,® or both,^ the shotgun being loaded with buckshot.® A minute description of the methods employed by both white and Indian hunters is given by Capt. C. L. Hooper, commander of the United States revenue steamer Corwin, who was many years in the waters of the North Pacific and Bering Sea, and makes his statements from personal observation." EESULTS. Waste of life. There are two ways in which a seal may be destroyed by this method of hunting without 1 A. B. Alexander, Vol. II, p. 352. 2 Thomas Zolnoks, Vol. II, p. 399 ; Osly, Vol. II, p. 391 •) Watkins, Vol. II, p. 395. ■' James £iernan. Vol. II, p. 450; James Kennedy, Vol. II, p. 4t9. ^ Thomas Lyons, Vol. II, p. 4fi0; James Moloy, Vol. II, p. 4G3; James Kennedy, Vol. II, p. 449. ^ James Kennedy, Vol. II, p. 449 j Eddie Morehead, Vol. II, p. 467; George Zammitt, Vol. IT, p. 507. " L. G. Shepard, Vol. II, p. 188 ; Adolphus Sayers, Vol. II, p. 470. ' Patrick Maroney, Vol. II, p. 464; Peter Collins, Vol. II, p. 413. >* Charles Lutjens, Vol. II, p. 459. ' Report of Capt. C. L. Hooper to the Treasury Department, dated June 14, 1892 ; Vol. I, p. 498. See also as f o white hunters, William Brcnnan, Vol. II, pp. 360, 361. If ■ ' L III fit |i ImM ^ i JT ii RESULTS. 191 ;h a seal may be hunting without Vol. II, p. sols Watkins, lorehead.Vol. II,p.467( being secured ; one is by wounding it so that, Waste of life, though it still retains vitality enough to escape from the hunter, it subsequently dies of it" in- juries ; the other is by the sinking of the seal, killed outright, before the boat can be brought alongside and the carcass seized by the hunter. Of the first of these means of loss Dr. Allen wounding, says : " Those only wounded, whether fatally or otherwise, dive and escape capture. The less severely wounded may, and in many cases doubt- less do, recover from their wounds, but in the nature of things many others must die of their injuries. There is a wide range of chances between an instantaneously fatal or disabling shot and a slight wound from which the victim may readily recover, with obviously a large proportion of them on the fatal side of the divid- ing line."' This is self-evident when the fact is taken into consideration that the boat is in almost constant motion, and the mark is the small head of a seal among the waves thirty, forty, fifty ,^ or, when a rifle is used, even a hundred yards' from the hunter. Four other conditions also modify this possibility of loss ; first, the state of the weather, for if the water is rough the boat and asury Department, dated white hunterg, W^iUiam ' Article by Dr. Allen, Part III, Vol. I, p. 409. = T. T. Williams, Vol. II, p. 494. =• T. T. Williams, Vol. II, p. 503. [315] 15)2 I'KLAaiC SKAMXCI. Woundinir. the Seal having more motion the percentage of those killed or stunned by the shot is much less than when the sea is smooth ;^ second, the con- dition of the seal shot at, or if breaching, the shot being at the body is not as liable to paralyze the animal, though it may be as fatal as when the seal is asleep on the water with only a portion of its head exposed as a mark ;^ third, the skill of the hunter is also to be considered ;' and iburth, whether or not the seals are wild and hard to approach, in which case the hunter is from necessity compelled to fire at long range. The Indian hunters, with their spears, who are forced to approach much nearer the game than a white hunter armed with rifle or shotgun, speak particularly of the increased timidity of the seals since firearms have been uded in taking them.* They also state that many seals taken by (hem have shot imbedded in their bodies,* and some are badly wounded." This, besides being evidence of the great number wounded and lost, naturally tends to making the seals fearful of the approach of man. Not only has the increase in the num- ' John H. Dalton, Vol. II, p. 418; James Kiernan, Vol. II, p. 450; WiUiain Mclsoac, Vol II, p. 461. = T. T. WiUiamg, Vol. II, pp. 4f)4, 504; Niles Nelson, Vol. II, p. 469. ■' Daniel Claussen, Vol. II, p. 112 ; Luther T. Franklin, Vol. II. p. 425 ; James Kleruan, Vol. II, p. 450 ; James Kean, Vol. II, ]). 448 * James Lighthouse, Vol. II, p. 389; Watkins, Vol. II, p. 395. * Wispoo, Vol. II, p. 397 ; James Lighthouse, Vol. II, p. 390. " James Lighthouse, Vol. II, p. 390, II, p. 450; .11, p. 4f.9, n, Vol . II. • II.l'. m X 395. .300. RESULTS, her of white hunters in the last few years made Wounding, the seals much wilder than before firearms were used, l)ut it has also added largely to the numLer of inexperienced hunters engaged in sealing. It is only necessary, in order to show how much the unskillful outnumber the skillful hunters, tc refer to the agreement entered into by the mem- bers of the Sealers' Association of Victoria, British Columbia, for the season of 1891 ; the portion of the agreement referring to this matter is as follows : " We also bind ourselves not to take more than three experienced hunters in the seal- ing business on each vessel represented by us, said hunters to be engaged at the scale or lay adopted by this Association, as hereinbefore par- ticularly described ; and we also agree that all hunters required in excess of the three hunters above mentioned for each vessel shall be new men at the business of seal hunting, and shall be engaged at the same scale or lay hereinbefore mentioned, and this clause shall apply to all ves- sels owned or controlled by the members of this Association, whether clearing from the port of Victoria or other ports in Canada or the United States, or any port where any vessel owned or controlled by any member of this Association may be fitting out for sealing on this coast.' ' ^tv Uritish Blue Book, U. S. Xo. 1 (1801). C-6253, p. S2. [H15] O 2 193 "1 y 1 If- in'- . \ i '> [! . '> i» I'M ■Wounding. Sinking. TELAGIC SEALING. The iiuiuber of hunters thus allowed to a vessel is therefore about one-half the n amber of those actually taken on a vessel employing wliite hunters. Besides those lost by wounding, in many cases, others killed outright are not taken, because the specific gravity of the seal being greater than water' it sinks before it can be secured." In order to save as many of the sinking seals as is possible, each boat carries a gafi",' with a handle from four to six feet long, with which to grapple the carcass if the point where it sank can be reached in time to do so.* Of course in securiuf^^ a sinking seal much depends on the distance from which the seal was shot, the condition of the water, whether rough or smooth, and whether or not darkened by the blood of the animal,* as also the skill of the hunter in marking with his eye the place where the seal sank. It can, therefore, be seen that the range of possible and probable loss in case the seal is killed outright is certainly large, though not so great as when the seal is wounded. ' Article by Dr. Allen, Part Ilf, Yol. I, p. 409. - Thomas Brown (No. I), Vol. II, p. 319 ; Bernliarclt Blcitlnev, Vol, II, p. 316; John W. Smith, Vol. II, p. 233 : John Womlniff, Vol.11, p. 506. ' T. T. Williams, Vol. II, p. 504; L. G. ShepherJ, Vol. II, p. m T. T. Williams, Vol.11, p. 504; Henry Mason, Vol. 11, p. 405 1 J:ime8 Laflin, Vol. II, p. 451. '- Henry Brown, Vol. II, p. 318. 4 rp RESULTS. 195 those killed. Under the circumstances, it is most difficult Percentage lost of to fix the actual number of seals destroyed and not secured by hunters using firearms ; but it is a conservative estimate to say that such hunters lose at least two out of every three seals shot by them. Charles Chalall, a seal liunter, says : " The average hunter would get one out of every three seals shot ; a poor hunter not nearly so many." ' Thomas Gibson, a seal hunter, or engaged in the sealing business, since 1881, says : " An ordinary hunter would not get more than one out of every three or four that he killed."'' Daniel McLean states " that about one- third are taken ; "^ and Capt. Martin Benson, of the sealing schooner James G. Swan, says about sixty-six per cent, are lost.* These men are all hunters of long experience, and their statements are not only supported by many others,^ but numerous witnesses give the number lost at a much larger figure. E. W. Soron, mate of a sealing vessel in 1888, says : " We only got about one out of every five killed."" Thomas Brown (No. 1), a boat-puller for three years, ' Vol. II, p. 411. = Vol. 11, p. 432. * Vol. II, p. 443. * Vol. II, p. 405. ■' Thomas Lyons, Vol. 11, p. 400 ; Bonihardt BleidniT, Vol. II, p. 315; M. L. Washburne, Vol. II, p. 489 j Martin Uunnou, Vol. II, p. 445. « Vol. II, p. 479. 4- m ! ,' ! ■< i, ^ K ( I In » i m B < 196 PELAGIC SEALING. (* ',: Percentage lost of states : " I don't think we got more than one seal those killecf. n • t out of SIX that we killed ." ' Caleb Lindahl, a seal hunter, says : " On an average a hunter gets one seal out of four. I have known of poor hunters losing niue out of ten."^ Henry Mason, also a seal hunter, says : " I do not think they would get more than one seal out of every six or seven they shot, and sometimes only one out of ten."'^ To these statements are added many others by competent and experienced witnesses, wliicli may be found in the Appendix hereto annexed.^ When the estimate, therefore, is placed at sixty- six seals unsecured out of every hundred killed with firearms, the probability is that [the per- centage lost is even more. Certainly this per- centage is constantly increasing, for the rapid growth of the sealing fleet in the last two years has increased the number of unskillful hunters, and the constant hunting of the herd has made the seals wilder each year than the year before,^ of Besides the great waste of life caused by the present method of sealing, another feature of pelagic hunting adds greatly to its destructive effect upon the Alaskan seal herd, namely, the Destruction female seals. ;! :. :, J, 1 ■ li >■ : ;]■ Psi?i •. i ■ ■ ' ', i ■ 'iit "^ ! . ■!■ ■'. i. I . 1 1- •• ' Hh I'ii r ■■ 1 ■! . 111 i ' i ' (No. 1), Vol. 11, p. 319. 2 Vol. II, p. 456. •' V'll. II, p. 465. < William Parker, Vol. II, p. 34-t ; Olaf T. Kvam, Vol. II, p. 236 ; William Mclsaac, Vol. II, p. 461 ; George Usher, Vol. II, p. 201. '■> Thomas Brown (No. 1), Vol. TV, p. 319. ir BBUULTS. ':. 220. ,, - v.. W. Soroii, A'ol. II, p. '179; Clmrles I'eter.son, Vol. 11, p. 315. ''' ■' GregarofT, ct ul., Vol. U. p. 231; N. Hodgson, Vol. II, p. 3G7 ; E. Morclifud, Vol. II, p. d67. ' luolosuvc 3 in No. 3, Britisli Hhie Book, U. S. No. 2 (1890), I -6l;U, p. 4. ' .iiilr, p, 77. of 1 t i i \ 198 Testimony of British furriers. PELAGIC SEALING. The first witnesses to receive consideration on this point are those who have handled and sorted the " Northwest " or pelagic catch. The skins of males and females can be readily distinguished from each other by those at all experienced in the fur trade.^ Sir George Curtis Lampson, head of the firm of 0. M. Lampson & Co., one of the oldest and largest of the London fur houses, states that " the skins of the Northwest catch are largely the skins of female seals. "^ Mr. H. S. Bevington, head of the London firm of Bevington & Morris, fur dealers, which was organized in 1726, says: "The skins of the Northwest catch are at least eighty per cent of them the skins of the female animal," and that prior to and in preparation of his deposi- tion " he carefully looked through two large lots of skins now in his warehouse, for the especial purpose of estimating the percentage of female skins found among the Northwest catch. "^ Mr. Walter Edward Martin, head of the English firm of C. W. Martin & Sons, the largest dressing and dyeing house of fur-seal skins in London, and successors of Martin & Teichmann, gives the percentage of females in the pelagic catch at ' Georgo Liebes, Vol. II, p. 511 ; B. E . Sterafels, Vol. II, p. 522. - Vol. II. p. 665. 3 Vol. II, p. 552. w'i'l :<■ i 8'- h M 1 RESULTS. 199 seveoty-five to eighty per cent.' Mr. Emil Teich- Toitimony of '- o/^ 1 Britiih furriers. mann, of the firm of C. M. Lampson & Co., and formerly a member of the firm of Martin & Teich- mann, mentioned above, states " that practically the whole of the adult, Northwest catch, seals were the skins of female seals. "'^ Mr. Henry Poland, head of the London fur firm of P. E. Poland and Son, says that a very large proportion of the adult skins of the Northwest catch are "obviously the skins of female animals."^ Mr. •■ George Rice, engaged for twenty -seven years in the dressing and dyeing of seal skins in the city of London, and who has handled a large proportion of tlie Northwest skins, says : " That in the North- west catch from eighty-five to ninety per cent of the skins are of the female animal."^ And Mr. William C. B. Stamp, who has been a London fur merchant for thirty years, estimates the percent- age of females in the catch of sealing vessels to be " at least seventy-five per cent " and probably more.'' All the above prominent English furriers are subjects of Her Britannic Majesty. George Bautle, who has been a sorter and packer of raw seal skins for twenty years, gives the principal characteristics by which the skins of the two ' Vol. II, p. 569. - Vol. II, p. 581. M'oi. ir, p. 571. ' A ol. II, p. 573. ' Vol. II, p. 575. Sec also Isaac Lk-bes, Vol. II, p. 453. lip' m i|-^:;*U :vr mi limmm II »!*!'■ irm 200 PELAGIC SKALINO, i . m To»timony o f sexes caii be determined/ aa do also Mr. John British furriers. J. Phelan'' and Mr. William Wiepert,'* both experienced furriers. Mr. Alfred Fraser, a sub- ject of Her Britannic Majesty, and a member of the London firm of C. M. Lampson & Co., says : " That he would have no difficulty whatever in separating the skins of the * Northwest ' catch from the skins of the ' Alaska ' catch by reason of the fact that they are the skins almost exclu- sively of females." This fact that the Northwest skins are so largely the skins of females is further evidenced by the fact that in many of the early sales of such skins tliey are classified in deponent's books as the skins of " females."* ' ' Sir George Baden-Powell, one of the British Bering Sea Commissioners, addressed a letter to the London Times, which appeared in that paper November 30, 1889, in which he says: "Their (the Canadian sealers') catch is made far out at sea, and is almost entirely composed of females." On the 29th day of April, 1891, Mr. C. Haw- kins, a subject of Her Britannic Majesty, addressed a letter to the Marquis of Salisbury, in which he states that " since about the year 1885 we have received in this country (England) large numbers of seal skin^ known in the trade - Vol. II, p. 519. •" ■! .' » Vol. II, p. 535. ' * Vol. II, p. 558. ■ ' Othor British testi monv. ■I: H;- I, i i ]■ i: i I RESULTS. I'l 201 as Northwest skins, the same having been taken other Briti»hto»ti. inony. in the open sea, and, from appearances tliat are unmistakable to the initiated, are exclusively the gkins of female seals pregnant."' : .'i/,- ,'rt'i'i\ And the Canadian Minister of Marine and Canadian tesu- mony. Fisheries, to whom the letter was referred, states " tliat the testmiony produced by Mr. Hawkins ill this connection is quite in accord with the information hitherto obtained."^ In the Cana- dian Fisheries Report of 1886 the following statement appears : " There were killed this year so far from forty to fifty thousand fur- seals, which have been taken by schooners from San Francisco and Victoria. The greatest number were killed in Bering Sea, and were nearly all cows or female seals."' And again in the said report for 1888 appears the statement that the fact can not be denied " that over sixty per cent of the entire catoh of Bering Sea is made up of female seals."* Eear-Admiral Hotham, Eoyal Navy, in a dispatch to the British Admiralty, dated September 10, 1890, states that he per- sonally saw Capt. C. Cox, of the schooner .Sap- ])h{re. Captain Petit, of the schooner Mary Tai/lor, Captain Hackett, of the schooner Annie Seymour, ' British Blue Book, U. S. No. 3 (1892), C-6C35, p. 5. - British Blue Book, U. S. No. H (1802), C-6635, p. 75. ,' , • 'l'age2«7. - * Report of tlie Department of Fislieries, Dominion of Canada (1888), p. 240. .«( ,!! .1. ■« • .■'..■•,.• A 'I ,!:- .{! 'iiil m i' I i'l t^ 1 1' I 202 PKLAOIC SEALING. Canadian monjr. Tnsliniony American t'urriors. I I tpsti- and Capt. W. Cox, of the schooner Triumph, and that " they also mentioned (among other things) that two-thirds of their catch consisted of female seals, but that after the Ist July very few indeed were captured ' in pup.' "' of Herman Liebes for thirty-five years engaged iu the seal-skin industry, and the largest purchaser of the skins brought into Victoria, British Co- lumbia, by sealing vessels,* says that he " has frequently requested the captains of poaching vessels sailing from the port of Victoria and other ports, to obtain the skins of male seals, and stated that he would give twice as much money, or even more, for such skins than he would pay for the skins of female seals. Each and all of the cap- tains so approached laughed at the idea of catch- ing male seals in the open sea, and said that it was impossible to do it, and that they could not catch male seals unless they could get upon the islands, which, except once in a long while, they were unable to do in consequence of the restric- tions imposed by toe United States Government ; because, they sai<^, the males were more active, and could outswitu any boat which their several vessels had, and that it was only the female seals who were heavy with young which could be caught."' ' BritiaU Bluo Book, U. S. No. 1 (1891), C-6253, p. 17. = Vol. II, p. 513; British Blue Book, U. S. No. 1 (1891), C-C253, p. 80 ; Vol. II, p. 561. a Vol. II, p. 512. [ 1 1 i- CUjJ "8 W ^k 1 Ilk.' i 1 1 ill'' I. 11 yi RESULTS. 203 Beiides the testimony ol' the witnesses above peiagi'"catch of I802. stated, 3,550 sea's skins were shipped this year from Victoria, British Columbia, to Treadwell & Co , of Albany, New York, being a portion of the " spring catch," so called, of 1892, taken by the sealing fleet along the Pacific coast. At the request and under the direction of the Govern- ment of the United States, these skins were examined by an expert in handling seal skins, Mr. John J. Phelan, for twenty-four years engaged in the fur business, for the purpose of determining the sex of the seals from which they were taken. Such examinations resulted in showing that of the 3,550 skins, 2,167 were taken from female seals, 395 from male seals, and the remainder, 988, from pups, seals under two years of age,' whose sex could not easily be determined, which shows that the proportion of females in the catch of a sealing vessel is to the males as 11 to 2, or 84^ per cent. The examiner of these skins also shows how the difference in the sex can be readily determined.' Mr. Charles Behlow, for thirty-four years engaged in the handling and sorting of seal skins, at the request of the Government of the United States, examined, in June, 1892, four lots ' Vol. II, p. 520. ' I ' 1 204 PET.AOIC HEALlXa. Exaniiuation of of skiiis landed at San Francisco from sealing pclogic catch of 1892. » vessels, being the " spring catch " for 1892 of said vessels. These lots aggregated 813 skins, ■which on examination proved to consist of 681 skins of adult female seals, 49 skins of adult male seals, and 95 skins of pup seals less than one year old.' The proportion of cows in these lots is shown to be to the males as about 14 to 1, or 93 per cent. The increased proportion of females in this examination over the examination made in New York is explainable from the fact that the New York examiner did not extend his examination to seals under two years of age, while the San Francisco examiner classed as pups only the seals less than one year old. On the 13th of July, 1892, the same expert examined the catch of the schooner Emma and Louise, consisting of 1,342 skins, taken this spring along the Northwest coast. Of the number, 1,112 were the skins of females, 132 of males, and 98 of gray pups less than one year old.' The propor- tion of female seals taken by this vessel as compared with the males is thus shown to be 89 per cent. George Liebes, a furrier, who has handled many thousands of the Northwest skins, in connection with his deposition attaches ' Vol. IT, p. 402. RKsrr/rs. i:!i 20^ of exhibits showing plainly how, even in the Examinntnn of ^ ^ _ •' pelagic catch of 1892. dressed and dyed skins, tlie sex of the animal C!iu 'le readily determined,' and also, in the cases of the female, whether the animal was in a state of virginity, pregnancy, or maternity, , ' the comparative size of the nipples being the test, which in the case of the two skins of males (bachelor and bull) are scarcely observable. Added to this testimony of experienced fur- Testimony pelagic sealers, liers, a large number of those engaged in seal hunting, whose depositions are appended hereto, affirm that the seals taken by them are princi- pally females. Luther T. Franklin, a seal hunter of three years' experience, states that about ninety or ninety-five per cent of those secured are females," Daniel McLean, an experienced sealer, says that about ten in a hundred of the serls taken are males. ^ Alexander McLean, on being asked the percentage of females in a catch, replied : " Say I would bring two thousand seals in acre, I may have ^^robabiy about a hundred males ; that is a large average."* Charles Lut- jens, also a seal hunter, places the average of females taken at ninety per cent,° and in this he ' Vol. II, p. B12. • ■ ' = Vol. II, p. 425. '■' ■■'-'!■ ' Daniel McLean, Vol. IT, p. 444. ' Vol. II, p. 4H7. ■• Charles Lutjens, Vol. 11; p. 458. / , ■ ■ n:->'tT. ".t.irr.l' I ..{,11 .137 ' k 1 t t * i il \ f *l \l i 'I, ; * i }',j-' i| 1 t 1' '^ i 206 Testimony pelagic sealers. Examination of catch of vessels seized. PELAOIC SEALING. of is supported by many others of the same profes- sion.' Other sealers, without fixing a percentage, state that the seals taken are " p^'incipally "" or " most all "' females. ' ' The skins upon vessels seized by United States officers in Bering Sea, which were subse- quently examined, also show a similar ratio of destruction of female liL . Captain Shepard says that over twelve thousand skins taken from seal- ing vessels seized in 1887 and 1889 were exam- ined, and at least two-thirds or three-four:,' were the skins of females.* Mr. A P. Loud, assistant Treasury agent, who in 1887 captured the sealing schooner Angel Dolly^ personally examined the skins found on board, and he states that " about eighty per cent were the skins of females."* Capt. A. W. Lavender, assistant Treasury agent on St. George Island, in Sep- tember, 1891, made a personal examination of one hundred and seventy-two skins, the catch of the schooner Challenge in Bering Sea, and of the whole number only three were the skins of male seals." It is only necessary to examine such an ' WUliam Short, Vol. II. p. 848 ; F. Johnson, Vol. II, p. 441 ; H, Harmsen, Vol. II, p. 442 ; A. J. Hoffman, Vol. II, p. 446. * William H. Long, Vol. II, p. 457 j James Kean, Vol. II, p. 448 James Kennedy, Vol. II. p. 449. » George Zammitt, Vol. II, p. 507; Adolph Sayers, Vol. II, p. 473 Thomas Brown (No. 1), Vol. II, p. 319. * Vol. II, p. 189. " Vol. II, p. ay. « Vol. II, p. 265. RESrLT!«, 207 array of testimony as the foregoing to determine Examiuatiou of catch of vessels the cause of the rapid decrease in the Alaskan seized, seal herd. But in addition to this threat slau"hter of the Destruction of produchig sex, another waste of life is caused, as already stated, through the pregnancy or mater- nity of a large proportion of the female seals. As long ago as 1869 Capt. C. M. Scammon, of the United States Eevenue Service, and author of "The Marine Animals of the Northwestern Coast of North America " (published in 1874), observed that nearly all the seals taken by the Indians near Vancouver Island were pregnant females, and August M), 1869, he addressed a letter on the subject of the double slaughter resulting to the Secretary of the Treasury.' Bowachup, a Makah Indian hunter, says : " I never killed any full-grown cows on the coast that (lid not have pups in them."^ Daniel McLt\u: says: "The females are mostly all with pi

. ■vh if' ^ mi n Destruction of the seals killed in the North Pacific are raostlv pregnant females. females carrying their young.' James Jaraieson, a sealer of five years' experience, makes the same statement.- Frank Morreau, with five or six years' experience as a seal hunter, says tha*^^ about seventy- five per cent, of the cows taken are " in pup,''^ and many others make similar state- ments.* e reason why such a large proportion of pi iiant female seals are taken along thd coast is clearly stated by Andrew Laing in his exam- ination before Collector Milne, of the port of Victoria, British Columbia, the deponent being recognized by the collector as one of the most experienced seal hunters. On bejig questioned as to whether he noticed " any marked difference in the manner the females carrying their young travel as compared Avith the males," he replied: " The only difference I could see is that they will travel very fast for a little distance, and then turn up and rest." And again being asked whether he thought the pregnant female more shy than the male, he answered, " No, I think ' Vol. II, p. 450. - Vol. II, p. 329. •' Vol. 11, p. 468. * Willinm Short, Vol II, p. 348; EUubasli, Vol. 11, p. 385; Pi'tor Simcs, Vol. II, p. 476; Tlioiuiis Brown (No. 1), Vol. II, p. 319; 'J'lioim- Lyonp, Vol. II, p. -160; John A. Swain, Vol. II, p. 350; Junics Xaiitn jim. Vol. 1 1, p. 272; Rondtii!..VoI.II,p.242; Amos Mill, Vol.11, p.285; Sinipon <.'!iiii-kon-tin, Vol. II, p. 256; Henry Uiown, Vol. II, j). 31". RESULTS. 209 they are not more shy. The female is always Reason prep»nt females are taken. inclined to be sleepy. The male is always on the watch."' Capt. J. D. McDonald, owner and commander of the sealing schooner Adventure, who hunts from San Francisco to Kadiak, says : "Must of the seals taken by me have been females with pup " ; giving as a reason that the female seals are easier to kill than the males.^ It is evident, therefore, that the female seal, when pregnant, is much more exposed to danger than the male,^ and this fact is also noted by the Indian hunters along the coast.* After the 1st of July the cows are nearly all Destruction of at the rookeries, and having given birth to their young they go into the water in search of food, in order that they may be able to supply their oiTspring with nourishment.* And as has been shown, they often go from one hundred to two hundred miles from the islands on these excur- sions." It is while absent fromi the rookeries feeding that they fall a prey to the pelagic seal hunter.^ Eear-Admiral Sir M. Culme-Seymour, nursing females. .ft '"I n'l 1 1 f t '.i H*' i!M ' British BIuo Book, U.S. No. 3 (18!)2), C-6635, p. 184. Sec also Jamus Sloan, Vol. II, p. 477 ; Isaac Liebes, Vol. II, p. 454. - Vol. II, p. 266. ^ British Blue Book, U. S. No. 3, 1892, C-G635, p. 184. < Charlie Wank, Vol. II, p. 273 ; James Unatajim, Vol. II, p. 272 ; i^imeon Chin-koo-tin, Vol. II, p. 256. ■^ Ante, p. 115. Mw/e, p. 116. ' Charles Chalall, Vol. II, p. 411 ; Peter Brown, Vol. II, p. 377- ;)"8; John Fjfe, Vol. II, p. 429 ; Henry Brown, Vol. II, p. 317-318. [315] P 2 210 I'ELAGIC SEALING. il ' |: im JlWp^K li':' , -: .111 nil ' Destruction of in a dispatch to the British Admiralty, dated nnmng femnles. *■ at Victoria, August 24, 1886, states that three British Columbian sealing schooners had been seized by the United States revenue cruiser Corwin, seaward seventy miles from off the land, killing female seals.' Edward Shields, of Sooke District, Vancouver Island, a hunter on the British schooner Carolina, which was seized in Bering Sea in 188(5, states that they were during the whole cruise out of sight of land, adding, " The seals we obtained were chiefly females."- The sealers, who have given testimony on this point in behalf of the United States, agree that nearly all the seals taken in Bering Sea are mothers in milk.^ Moses, a Nitnat Indian hunter from Vancouver Island, in speaking of a voyage he made to Bering Sea, says : ''We caught nineteen hundred seals, all of which were captured in the sea close to Unalaska ; most all of them were cows in milk ; but when we first entered the sea we killed a few co" j that had pups in them."* Charles Peterson, a sealer with four years' experience, after stating that most all the seals taken in Bering Sea were cows in milk, adds : "I have seen the deck almost flooded » British Blue Book, U. 8. No. 2 (1890), C-6131, p. 1. - British Blue Book, U. S. No. 2 (1890), C-6131, p. 8. '■' William H. Long, Vol. IT, p. 458 ; Henrj Mason, Vol. II. p. 4C5 E. P. Porter, Vol. II, p. 347. * Moses, Vol. II, p. 310. ' . • ; RESULTS*. •2U with milk while we were skinning the seals. Dostruction of , _ , , , , . -r, . mirsing females, Richard Dolan, a seal hunter who was m Bering Sea in 1885, says : *' I saw the milk flowing on the deck when we skinned them."" Capt. L. G. Shepard, of the United States Eevenue Marin^i Service, who seized several vessels in Bering Sea in 1887 while they were engaged in sealing, states that he saw milk flowing from the dead carcasses of seals lying on the decks of vessels a hundred or more miles from the Pribilof Islands." Mr, Eobert H. McManus, a British subject and resident of Victoria, British Columbia, made a sealing voyage in 1891 in Bering Sea on the Canadian schooner Otto as a newspaper corre- .spondent. During the voyage he kept a journal of events, which he has embodied in his deposi- tion, hereto appended,*which contains his views of the matters which took place. "• In an entry made August 29, he states the total catch of the day was seventeen seals, " greater proportion cows in milk ; horrid sight, could not stay the ordeal out till all were flayed."* He subsequently adds : "It may be safely asserted that over three-fourths of the catch of forty-eight were cows in milk ; ' Vol. II, p. 345. - \'ol. II, p. 410. ,. ■'Vol. II, p. 18V». M'ol.IT. p. :W7. I 11^: h I ;[ ' Y\ In 1 > 'H u n^. , i i Hi ;|li.| Si' 1 ' 'WW, 1 1 I Hti' 11 1 : ;!■ ™ ii k l¥ i ■ ■ 212 PELAGIC SBALI>G. f '! Dead pups on the rookeries. Destruction of this at a distance of two hundred miles from the nursing females. rookeries."^ And Mr. Francis K. King- Hall, sou of Sir WiUiam King-Hall, K. C. B., Admiral in the British Navy, who also was on the Otto dur- ing this voyage, makes substantially the same statements.- That a pup is entirely dependent upon its mother for the first three or lour months of its life, and also that a female will not suckle any pup save her own, has already been stated. As a result it is evident that if the mother is killed her pup will die of starvation ; and of this fact the evidence presented is unquestionable. When sealing vessels began to enter Bering Sea in pursuit of the seal herd (1884-85) at that same period dead pup seals on the rookeries first drew the attention of the residents of the Pribilof Islands,^ Professor Dall, who visited the rookeries in pups 1880, says : " There were not in 1880 suffi- cient dead pups scattered over the rookeries to attract attention, or form a feature on the rookery."'' Captain Bryant, who was on the islands from 1870 to 1877, says, "A dead pup was rarely seen."'' Mr. J. H. Moulton, who was No dead prior to 1884. ' Vol. II, p. 338, = Vol. H, p. 333. •'' Nicoli Krukoff, A'ol. II, p. 132. * Vol. II, p. 23. '• Vol. II, p. 8. I i RESULTS. 213 on St. George Island from 1877 to 1881, says: No dead pups ° . ■'J prior to 1884. " There were practically no dead pups on the rookeries. I do not think I saw during any one season more than a dozen." ' Mr. H. G. Otis, Treasury agent on the islands from 1879 to 1881, states that "it was a rare thing to find a (lead pup."'- Mr. H. A. Glidden, the Govern- ment agent from 1882 to 1885, says : "During the time I was on the islands I only saw a very few dead pups on the rookeries, but the num- ber in 1884 was slightly more than in former years." ^ From this time (1884) forward dead pups on Time of appear- ance of dead pups. the rookeries mcreased in numbers annually. Mr. T. F. Morgan says ; " From the year 1884 down to the present period when I left St. George Island, there was a marked increase in the number of dead pup seals."* Mr. A. P. Loud, assistant Treasury agent on the islands from 1885 to 1889, says that he can not make a statement as to the lunnber of dead pups on the rookeries in 1885, :is he was not present that fall : but in 1886 he saw a large number of dead pups lying about, and that these pups were very much emaciated. I ' Vol. II, p. 71. - Vol. IT, p. 87. ■' Vol. II, p. HO. See also John Armstrong. Vol. II, p. 2. ♦ Vol. II, p. 64. w^&m f-.' ,-;. r K'''i;^i ■ : f i 5:[&i' ■ \ |'.|',!^; if . \\\ ft* ' n 1 214 PFLAGIO SEALINa. lifiiii^ ]i ■ > Timo of appear- and had evidently been starved to death. lie anco of doiid pups. further states that the number of dead pups in 1887 was much larger than in 1886. In 1888 there was a less number than in 1887 or in 1889, owing, he believes, to a decrease of seals kill(;d in Bering Sea that year ; but that in 1 889 the increase again showed itself.' Dr. W. S. Here- ford, already mentioned as the resident physician on the islands from 1880 to 1891, says : " The loss of pup seals on the rookeries up to about 1884 or 1885 was compaiatively slight, and was generally attributed to the death of the mother seal from natural causes. Coincident with the increase of hunting seals in the sea, there was an increase in the death rate of pup seals on the rookeries."* Mr. Stanley Brown, in examining the rookeries in 1891, fixed the number of dead pups at be- tween fifteen and thirty thousand.^ Captain Coulson, who was on the islands the same year, says : " Thousands of dead and dying pups were scattered over the rookeries."* And Colonel Mur- ray fixes the number of dead that year at "not less than thirty thousand;" ^ Other witnesses support ' Vol. II, p. 39. - Vol. II, p. 32. » Vol. II, p. 1». * Vol. II, p. 415. *Vol. II. p.74. Number of dead pups in 1891. 'il^ RESULTS. 215 Cause of death of pups. these statements.' The rookeries, strewn with Number of doaU pups in 1891. dead and dying pups, were also in 1891 inspected by the British Bering Sea Commissioners.' And Kerrick Artomanoff, the old chief of the St. Paul natives, in speaking of their appearance on the rookeries during the last six years, says : " In my sixty-seven years' residence on the island, I never before saw anything like it."' At the request of Mr. Stanley Brown,* Dr. J. C. S. Akerly, then physician on St. Paul Island, examined a large number of the dead bodies, and after a careful and minute examination, which is fully detailed by him in hid deposition,** gives it as his opinion " that the great mortality during 1891 amongst the young seals on St. Paul Island, Bering Sea, was caused by the deprivation of mothers' milk." He sums up this opinion with eight reasons why he believed the young seals died of starvation.^ His opinion as to the cause of their death is shared by many others who had an opportunity to examine the dead and dying pups on the rookeries.^ The natives on the islands, ' Anton Melovedoff, Vol. II, p. 143 : H. H. Mclntyre, Vol. II, p. 31 : Charles W. Price, Vol. II, p. 521 ; Aggie Kushin, Vol. II, p. 128 : John Fratis, Vol. II, p. 108 ; H. N. Clark, Vol. II, p. 159. - Milton Barnes, Vol. II, p. 101. ' Vol. II, p. 100. ' Vol. II, p. 19. ' Vol. II, p. 95. " Vol. II, p. 96. ' W. H. Williams, Vol. 11, p. 9-i ; J. Stauley Brown, Vol. II, p. 19; Charles W. Price, Vol. II, p. 521 ; Aggie Kuihin, Vol. II, p. 130 ; John Fratii, Vol. II, p. 109. i I ' ■ 1 V . h r r If 11 ' ''( ,1 I If I 4 I ! '. t' ■' n 216 PKLAaiC MKALING. mi Effpcts of [iclugic Bcnling, r« Caunc of (icnth of wlio liave Uved there for many years, testify that |)ups. although they have eaten seal meat all their lives they never knew of a sick seal and never heard from the old residents of sickness amoiifi seals.' This great mortality, therefore, was not caused by an epidemic among the animals, for no dead adult seals were seen." The injurious and destructive effects of opeu- sea sealing, as demonstrated above, can be sum- med up as follows : Between eighty and ninety per cent, of the seals taken are females ; of these at least s(5venty-five per cent, are either pregnant or nursing ; that the destruction of these females causes the death of the unborn pup seals or thoi on the rookeries dependent on their mothers foi nourishment ; and, finally, that at least sixty-six per cent, of the seals killed by white hunters are never secured. Besides this, the females taken in Bering Sea have certainly in the majority of cases been impregnated, '' and their death means not only the destruction of the pups on the island, but also of the fetus. Hence, if 10,000 females are killed in one season, this fact means not only the depletion of the herd by at least 17,500 that ' Anton Mclovedoff, Vol. 11, p. 143; See nl&o Daniel Webster, Tol. II, p. 183 ; Kdward Hiiglies, Vol. 11, p. 37. 2 Aggie Kushin. Vol. II, p. 128; Nicoli Krukoff, Vol. II, p. 133; Karp Kiiterin, Vol. II, p. 103 ; John Fratis, Vol. II, p. 107. » Ante, p. 115. 1 ' i ; ' l» ft S|: : « ff iv'i ,: RESULTS. 217 year, but also the reduction of the annual birth- Kffmtn of \wUgw rate by T,500 each following year for probably iifteen years, besides the added loss of the young born to the female portion of the pups destroyed, which would be an ever increasing quantitj-. But disregarding these last two important points, the enormous destruction of seal life can be readily seen if we take the figures supplied by the Cana- dian Fisheries lleport for 1890.' In that year there were sold in Victoria alone about 55,000 .••kins taken by pelagic sealers ; allowing that 20,000 of these were secured by Indian hunters and only 35,000 by white hunters, the number of seals actually killed would be at least 125,000 ; of these 80 per cent., or 100,000, would be females and 75 per cent, pregnant or mothers, allowing one-half of these 75,000 pups thus destroyed by the death of the females to be of that sex, tjie total number of the producing sex killed would be 137,500, and the total loss to the herd of '200,000 seals, for which the sealers show but ■)5,000 skins. It must be remembered that 55,000 represented only the number of skins sold in Victoria, which is undoubtedly 10,000 short of the actual number secured by both the British and American sealing fleet. Each year also adds to the destructiveness of the fleet, for pji , .' } ¥, f ?iii ! i 234 Now Zeuland. « PROTECTION AND PBE8BEVATI0N. Capo Uopo. of S . 1: within the jurisdiction of the Government 6i the Colony of New Zealand." The " Handbook of the Fishes of New Zealand," already cited, a book " prepared under the instructions of the C< mmissiouer of Trade and Customs," reviews at some length the seal life and industry of the Colony, and in advocating stringent protection states that " seals are property the State should zealously guard." In pursuance of the foregoing cited laws and regulations the Government of New Zealand has kept a cruiser in service for some years for the purpose of patrolling *he waters of the Colony and enforcing the law.' It is now proposed to lease the exclusive right to c^ood take seals within the limits of the Colony to a company.^ In the Colony of the Cape of Good Hope sealing is prohibited at the rookeries and in the waters adjacent thereto, except under stringent regulations.^ The laws cind regulations of the British colonies just cited have reference to the fur-seals of the South Seas, similar in their habits to the seal herd of the Pribilof Islands, > Reports, Marine Department of New Zealand, 1882, 1883, 1887, 1888. ^ "Handbook of the Fishes of New Zealand," p. 264. =' George Comer, Vol. If, p. 597 j William 0. B. Stamp, Vol, II, p. 57|B. OTHEE SEAL HERDS. 225 having fixed habitations on the land, to which Capo of aood Hope. they regularly resort.' , , ,., •.. . . :.. But Great Britain and its dependencies do not British protection of hair-seal. limit their governmental protection to the fur-seal; it is extended to all varieties of seals, wherever they resort to British territorial waters, and they have thrown about them upon the high seas the guardianship of British statutes. In certain of the waters of the North Atlantic are found the hair- seal, of much less commercial value than the fur- seal, and to whose existence the land is not a neces- sity, as the young may be, and usually are, born and reared on the ice ; and yet these seals are under the special protection of British laws. Canadian statutes prohibit all persons, without prescribing any marine limit, from disturbing or injuring all sedentary seal fisheries during the time of fishing ior seals, or from hindering or frightening the shoals of seals as they enter the fishery. They also forbid the use of explosives to kill seals.^ The most important [hair-seal region of the world is found on the ice floes to the eastward of Newfoundland, often several hundred miles from the coast.* This region has bee for many years ' An examination of the " Handbook of the Fislies of New Zea- land" (pp. 230-238) will show that the fur-seal frequenting those islands is similar in habits to the Alaskan fur-seal in nearly every particular. - Kevised Statutes of Canada, c. 95, Sees. 6 and 7 ; Vol. I, pp. 441, 454. ^ Alien, "Monogniph of North Ameriean Pinnipeds," page 234. [315] •'^-■•-••-.■•^ ■-■••• Q 2 Xewf o undland regulations. 1^.1 I: ':' », Vu 226 PKOTECTION AND PRESERVATION. I- 1 .... 1 t - ^ ,r !■■ 11 W- 1 ■:■ ' lllffi 1 Newfoundland past Under the protection of the Newfoundland regulalions. Colonial Government, which has enforced a close season, not allowing sail vessels to leave port on sealing voyages before March 1, and steam ves- sels before March 10, and prohibiting seal killing before March 12, under a penalty of from four hundred dollars to two thousand dollars, and has enacted other stringent regulations.* But even these laws have not proved sufficiently effica- cious, and in April, 1 892, a new act "to regulate the prosecution of the seal fisheries " was passed.* This act defers the date of leaving port two days and prohibits the killing of seals at all seasons of the year except between March 14 and April 20, inclusive. It is further made an offence to bring any seal killed out of season into any port of the Colony under a penalty of four thou- sand dollars, and all steamers are prohibited from proceeding on a second trip to the seal waters in any one year. It will be seen from the deposi- tions of Eichard Pike, a master mariner of forty- four years' experience in hair*seal hunting, and of James G. Joy, master mariner of twenty-four years' experience in seal hunthig, that the law prohibiting the second sealing trip was enacted because it tended to the extermination of the hair- seals, as at least seventy-five per cent, of those > Newfoundland 8«al Act, 1879, Vol. I, p. 442. » Newfoundland Seal Act, 1892, Vol. I, p. 444. OTHER SEAL HERDS. 227 killed on the second trip are females, and many Newfound Und regulations. ■-' at that time are shot in the water and sink before they can be recovered.' Next in importance to the Newfoundland hair- jan Mayen regui*. seal region is that in the Atlantic Ocean east of Greenland, and known as the Jan Mayen Seal Fishery. This region in the open sea is em- braced in the area lying between the parallels of 67° and 75° north latitude and the meridians of 5° east and 17° west longitude from Green- wich. These fisheries were made the subject of legislative regulation, applicable to their own subjects, by the Governments of Great Britain, Sweden and Norway, Eussia, Germany, and Holland, by a series of statutes passed by these - . several countries during the years 1875, 1876, 1877, and 1878.' The 3rd of April is established as the earliest date each year on which the seals could be legally captured, and penalties are fixed for a violation of the prohibition. It will thus be seen that not only Great Britain Concurrence of nations, and her colonies have found it necessary to pro- tect by legislation the hair-seal of the North ' - , ' James Q. Joy, Vol. II, p. 591 ; Richard Piko, Vol. II, p. 592. 2 "The Seal Fishery Act, 1875," 38 Vict., c. 18; British Order in Council of Nov. 28, 1876; Law of Sweden and Norway of May 18, 1876; Ordinance of Norway of Oct. 28, 1876; Ordinance of Sweden of Not. 30, 1876 ; Law of Germany of Dec. 4, 1876 ; Ordi- nance of Oermany of Mar. 29, 1877 ; Law of the Netherlands of Dec, 31, 1876 ; Decree of the Netherlands of Feb. 5, 1877 ; Law of Buesia of Dec. 1878 ; Seo. 223 of Russian Code of Laws, 18SQ. [1. I '«i ' ^ ■■'Mm '.'-!!- i'l If, ,i ll";.! |. ![ .i: i i'i: ■ ;!■ 82a OoDourrence nations. White Sea regula tions. Caspian Sea reg< olatio'19. Fur-seal protection by other nations. raOTEOTION AND PBESERVATION. of Atlantic from extermination, but that other na-" tions have united and concurred in the same protection. Stringent regulations have also been adopted by Russia for the protection of the hair-seals in the Gulf of Mezen, a part of the White Sea, the greater portion of which is beyond the three- mile limit. All sealing is subject to the super- vision of public overseers, who have authority to determine the time at which the annual catch is to begin at certain designated places, and to preserve order during the continuance of sealing operations, as to which the law contains certain prohibitions.' ' ' .... . The sealeries in that portion of the Caspian Sea which belongs to Eussia are under the con- trol of a " Bureau of Fishing and Sealing Indus- tries," which is charged with a general supervision of ihe sealeries, and the enforcemenc of the law, which contains regulations for a close season, a license fee, and prohibition of killing or disturb- ance during the breeding time.' Similar enactments protect the fur-seal in other portions of the world, as other nations have recognized how indispensable to the preservation of the fur-seal species is the prohibition of un- licensed and unlimited sealing. The Lobos ' Code of Bussian Laws, 1886, and map of oroo, Vol. I, p. 445. ili ; I : N !i 1 " 'e^' IBBwB^^^^B ^iiii FISHERIES. 2Zd Island rookeries have for over sixty years been Fur-gcaiprotocMou •^ •' by other nntions, protected by the Government of Uruguay, and the right of sealing leased to a company under certain restrictions;' and as a consequence of this governmental protection Lobos Islands have for Lobos islands, many years past been the chief source of supply from the southern seas. The Governments of CapeHome. Chile and the Argentine Republic have also , ■....-, recently given protection to the fur-seals resort- ing to their coasts in the hope of restoring their almost exterminated rookeries." The Japanese Kuriio islands. Government has taken steps toward the restora- tion and preservation of the fur-seals at the Kurile Islands,' and the history of Russian pro- tection on the Commander Islands and Robben Island is too well known to need further citation. Commander and Bobbeu Islands. FISHERIES. The foregoing review of the legislation of various nations shows that they have deemed it necessary to adopt stringent regulations, not only in waters adjacent to, but also at great distances from, their respective land boundaries, in order to protect from extermination the fur and the hair-seal. But it will be interesting, and profit- ' Summary of Uruguay laws, in letter of April 2, 1892, by the Custodian of Archives at Montevideo, Vol. I, p. 448; Article by Dr. Allen, Part II, Vol. I, p. 397. - George Comer, Vol. II, p. 597. ■ , i • ,, ' Statutes of Japan, Vol. I, p. 449. • ': ■%j:i li, Ihi, ■ i6 ■11 'i,:r' •i' (I ,! : I' I t 1 230 IP f!- m Game laws. ,■1 .')i I . rri i 1 \ ■ 1! m l| iiiir^i: ' > " 1 Mil:' 4/ V : m^-J-: r j 1 : li H J^ If l'^- Ellin! i 1 i i yiL 1 I; PBOTEOTION AND PRESERVATION. able for the purposes of this Arbitration, to carry the investigation of national legislation a step further and to examine how far Governments have gone in the protection of other forms of animal life, in tho water, and to what extent extra territorial jurisdiction is exercised for tlie preservation of national interests. All nations and races in all ages have reco• 4:^7. mmm ii "i E -rW:: I 'i ' T y 234 PBOTECTIOJ!T AND PRESERVATION. ■;■• ililif h M fl hi Pearl fisheries of the two Countries mentioned to defined areas of AuBtralia. the open sea, of which the most remote points are about two hundred and fifty miles from the coast of Queensland, and about six hundred miles from the coast of Western Australia. These acts are, by their terms, limited in their operation to British subjects, but as Sir George Baden-Powell has pointed out, in a recent address delivered before the Association of the Codification of the Law of Nations,^ the remoteness of these waters renders it practically impossible for foreign vessels to participate in the pearl fisheries with- out entering an Australian port, and thereby rendering themselves amenable to Australian law. FrencU legislation. The fishery legislation of France also recog- nizes the same principle. A commission, ap- pointed by the French Government in 1849 to investigate the fisheries of that countrv and to make recommendations, reported that they deemed it inexpedient to assign any pre^^ise limit to territorial waters beyond which the laws recommended should cease to be operative." Accordingly the laws passed in pursuance of this report were so framed as to leave this question open, and the Decree of May 10, 1862, Sec. 2, ' Delivered at Liverpool, Aug. 29, 1890 ; see page 9. ^ Rapport de la Cominiasion du 26 juiu, 1849, pour rczanien d'lm projet do loi sur la p4chc maritime cdti^re, p. 26. FISHERIES. 235 went so far as to provide in terms that under cer- Fronch legislation, tain circumstances ^ jhing might be prohibited over areas of the sea beyond three miles from shore/ Numerous laws have also been enactied by France to protect and regulate the coral fisheries of Algeria, both as to natives and for- eigners, and the coral beds so regulated extend at some points as far as seven miles into the sea.'' The coral beds surrounding the island of Sar- Italian legislation, dinia and lying off the southwest coast of Sicily have been made the subject of elaborate regu- lations by the Government of Italy. The Sar- dinian coral beds are situated at distances from land which vary from three to fifteen miles.' The principal coral beds of Sicily are three in .•- number, and are respectively distant from the coast fourteen, twenty-one, and thirty-two miles. At present all coral fishing is prohibited on these banks by Royal Decree, for a designated period, ' French Decree and map, Vol. I, p. 469. ^ Miip, Vol. I, p. 469. " Les PAches Maritimes en Alg^rie ct en Tuiasie." Rapport au ministro dc la marine, par M. M. Bouchon Brondt'ly, Inspccteur general des p6ches maritimes, et A, Ber« thoule, Secretaire general de la Societe national d'acclimatation, inembre du Comite consultatif des pfiches maritimes. ' Map, Vol. I, p. 470. British admiralty chart No. 281. " II Carallo in Sardegna, Reiaziono prescntata h S. £. il ministro di Agricoltura, Industria e Commercio, dal Professore Parona Cor- rado, dcir University di Cagliari." " Annali dell' Industria e del Commercio, 1882." I n ^ 1 ' If. 1 5 IK-'** I is^ PROTECTION AND PRESERVATION. Norwegian lation. in;- !|fiii -Panama legis- lation. i il. Italian legislation, at the close of which the previous restrictive regulations will be again enforced.^ i- legis. This principle is also recognized in the legis- lation of Norway in the statute of 1880 for the protection of whales, during an annual close season, in Varanger Fiord, an arm of the open sea about thirty-two marine miles in width, lying off the northeast coast of Norway.* The Government of Panama, in the Eepublic of Colombia, has recently enacted a law prohibit- ing the use of diving machines for the collection of pearls within an area of the sea over sixty marine miles in length, and extending outward about thirty marine miles from the coast.' legisia- The Mexican pearl fisheries lying off the coast of Lower California, have been made the subject of special exclusive grants to private individuals. Along part of the coast the pearl beds have been divided for this purpose into two belts, of whicli the inner belt extends seaward a distance of five kilometers (about three miles), and the outer belt is bounded by lines drawn parallel to the coast at distances of five and ten kilometers. It is ob- ' statutes of Italy, and maps, Vol. I, pp. 470, 472. " Relazionc del Profcssore Giovanni Canestrini al Ministro di Agricoltura, Indus- tria e Commereio SuUe ricerclie I'atto nol Mare di Sciacca iiitorno ai Banelii Corallini." " Annali dell' Industria e del Coumiercio, 1882." - Statutes of Norway, Vol. I, p. 482. •' Statutes of Panama, and map, Vol. I, p. 484. Mexican tion. ALASKAN W^P. 237 vious that the greater portion of this outside belt Mexican legisia- tion. lies beyond the three-mile limit.^ Maps will be found in the Appendix, as cited, o*er cases of ex- ^ irir ' tratcrritonal juris- showing the extent of marine territory over which, diction, jurisdiction is exercised by the different Govern* ments named. Reference may also be made to the British Hovering Acts,'^ the St. Helena Act of 181 >,' and the Quarantine Act of 1825,* as well aj various international conventions for the pro- tection and regulation of fisheries on the high seas. ALASKAN HERD. » This hasty review of the legislation of near a score of nations clearly establishes the principle announced that any nation, having a peculiar interest in the continued existence of animal life in the high seas adjacent to its coasts or territo- - ■:: rial waters, may adopt such measures as are essential to its preservation, without limit as to the distance from land ai which such measures may be enforced. It is a remarkable fact, how- Unprotected con- ever, in view of the legislation just cited, that **"*°' the Alaskan seal herd, so valuable to the human ' Statutes of Mexico, and map, Vol. T, p. 486. '^ 9 Geo. II, 0. 35, Sec. 23, statute repealed in 1825, but partially reenacted as to the limit of four leagues as recently as 1845, 8 and 9 Vict., c. 86, Sec. 2. ' 5G Geo. Ill, c. 23, Sec. 4, Vol. I, p. 495. * 6 Geo. IV, c. 78, Sees. 8, 9, Vol. I, p. 496. ■\^' L' J:- ■' '■! t 1 ■ iH !f!W V I 23a PROTECTION AND PRESEEVATION. • TTnptoteeted con- race, stands almost alone in the animal life of dition. the ■wor\i in being dei^'ed protection during the necessary period of the reproduction of its spe- cies. The review of the habits of the Alaskan seal and of the practices of the pelagic hunters has shown that for at least nine months of the year this herd is exposed to the relentless and untiring pursuit of the pelagic hunter, and that during the remaining three months his hand is Only stayed by the inclemency of the weather which renders pursuit impossible. And it has beenfurther shown that this pursuit is mostaolive and destructive at the time when the female seal is approaching the season c the delivery of her young, or when she is nursmg the pup which is (entirely dependent upon the mother's milk for sustenance. Necessity of its The necessity of protection of this particular protection. ; ' N ' herd is affirmed by numerous witnesses of every degree of experience and knowledge, including leading naturalists of America and of many European nations, those engaged in the sealskin industry, both in the United States, Great Brit- ain, and France, experianced sealers, and many others conversant with seal life and the present condition of the Alaskan herd. tion. ALASKAN HERD. 239 The British and American Bering Sea Com- The Joint Com- misjion. missioners, although they do not assert in their joint report that protection is necessary, give, as a conclusion reached, the following : " We are in . ; thorough agreement that for industrial as well as for other obvious reasons, 't is incumbent upon all nations, and particularly upon those having direct commercial interests in fur-seals, to provide for their proper protection and preservation."* The British Government also has recognized . British rccogni- tlie necessity of protecting this seal herd from destruction, in its correspondence with the Gov- ernment of the United States, and has advocated certain methods of preservation through a close season and prohibition of sealing Avithin certain hmits.- Lord Salisbury, in 1888, so far recog- nized the need of protection to the seal herd as to suggest that a close season from April 15 to October 1 be established in the whole of Bering Sea and those portions of the Sea of Okhotsk and of the Pacific Ocean north of north latitude 47°, and that this limitation should be enforced 1)V international agreement between the United ' Joint Report of British apd American Bering Sea Commissioners. Foul, p. 309. ' Sir J. Pauncefote to Mr. Bhvine, April, 1890 ; Marquis of Salis- bury to Sir L. West, April 16. 1891 ; Sir J. Pauncefote to Mr. Wharton, June 11, 1891. [315] R i/niii I I' 11 11 1 11 ! •'tt 'H It. ; 1' M "i-i J 1 1 I .1 f' mMw I •mm ' f"! ;■ ->- >■ ' H'^'^ ■ i I ■ . 240 PROTECTION AND PRESERVATION. Dr. Sclator. British rocogni- States, Great Britain, Eussia, and other nations interested.' Opinions of ProfessorT.H. Huxlev, in Considering tliis ques- naturalists. ^ *" o i Professor Huxioy. tion of tlie decline of the ALiskan herd and the need of protecting itjSaj'-s : "That the best course woukl be to prohibit the taking of fur-seals any- where except on the Pribilof Islands."" Dr. Sclater, secretary of the Zoological Society of London, says "that in his opinion as a naturalist, unless proper measures are taken to restrict the indiscriminate capture of the fur-seal in the North Pacific he is of the opinion that the exter- mination of this species will take place in a few years, as it already has done in the case of other species of the same group in other parts of the Mc riani's world."* Dr. C. Hart Merriam, one of the Amer- can Bering Sea Commissioners, sent out a letter to a number of the principal zoologists and scientists of the world, stating briefly the results of his investigations as to the condition of the Pribilof rookeries and the cause of the decrease ; the letter closes - itli the following conclusions; " It seems to be a fair inference, therefore, that the only way to restore the depleted rookeries to their former condition is to stoptakingsealsat sea, ' Mr. White to Mr. Bayard, April 20, 1888 ; Marquis of Salisbiirv to Sir L. West, April 16, 1888. - Vol. I, p. 412. I =• Vol. I, p. 413. l)r, letter ALASKAN HERD. 241 and not only in Berinc: Sea, but in the North »»•• Mernam's *^ *- letter. Pacific as well."' In replying tb this com- munication, Dr. Raphael Blanohard, of France, Dr. Bianchard. says ; ** By reason of the massacres of which it is a victim, this species is advancing rapidly to- ward its total and final destruction, . . . and there is for our generation an imperious duty to prevent the destruction of the fur-seal, to regulate strictly its capture, in a word, to per- petuate this source of wealth and to bequeath it to our descendants."'^ Dr, Henrv H.-Gifjlioli, of ^r. Gigiioii. Italy, in his reply, says : " It is both as a nat- uralist and as an old Commissioner of Fisheries, that I beg to say , , . that I most entirely and most emphatically agree with you in the conclusions and recommendations you come to in your report on the present condition of the fur-seal industry in the Bering Sea, with special reference to the causes oi' decrease and the meas- ures necessary for the restoration and permanent preservation of that industry, which conclusions and recommendations are fully supported and jus- tified by the facts in the case.'"'' Professors A. E. rrofcs8or» Nor- *^ dcnskiolil ami LiUje- Xordenskiold and W. Lilljeborg, of Sweden, unit- borg. ing in a reply to Dr. Merriam's letter, say: " As to the pelagic sealing it is evident that a systematic ' Vol. I, p. 417. ^Vol. I, p. 427. ' Letter of Dr. Henry H. Gigiioii, Vol. I, j). 425. [315J 11 2 'Illll •I II if: ij ■ 242 PROTECTION AND PRESKRVATIOX. Profmors Nor- lumting of the seals in the open sea on the way dcnskiold and Lillje- ° . . borg. to and from- or around the rookeries will very soon cause the complete extinction of this valu- able, and, from scientific point of view, so extremely interesting and important animal."' Besides these declarations above quoted, other Other naturoiistg. scicutists, of France, Italy, Sweden, Russia, Ger- many, Austria, Norway, and Argentine Republic, to whom I")r. Merriam's letter was sent, unite in commending the conclusions set forth and affirm the need of protection to the seal herd/ Dr. Allen. Dr. Allen shows plainly the need of protecting the Alaskan herd, in a, brief summary of the results of pelagic sealing.' Canadian rcsogni- In the Canadian Fisheries Report for 1886, already adverted to, Thomas Mowatt, Esq., In- spector of Fisheries for British Columbia, in his report, after giving the catch for the year by sealing vessels, and stating the fact that it was composed almost entirely of female seals, adds : " This enormous catch, with the increase which will take place when other vessels fitting up every year are ready will, I am afraid, soon deplete our fur-seal fishery, and it is a great pily ' Letter of Professors Nordenskiold and Lilljeborg, Vol. I, p. 4'29. 2 Letters of Dr. A. V. Middendorf, Dr. Eniil Horub, Dr. R. Collett, Dr. Leopold Van Schranck, and others, Vol. I, pp. 418-433. » Article by Dr. Allen, Part III, Vol. I, p. 410. tijn ALASKAN HERD. 24 ;5 Opinions of Lon- don furriers. such a valuable industry could not in aome way . Canadian rcc gni be protected." Mr. Walter E. Martin, liead of the firm of C. W. Martin & Sons, already quoted, says " that the preservation of the seal herds found in the North Pacific regions is necessary to the contin- uance of the fur-seal business, as those herds are the principal sources of supply of sealskins left in the world, and from his general knowledge of the customs of that business deponent feels jus- tified in expressing the opinion that stringent regulations of some kind are necessary in order to prevent those herds from disappearing like herds which formerlv existed in large numbers in the South Pacific seas."^ Sir George Curtis Lampson, already men- tioned as the senior member of the house of C. M. Lampson & Co., says that he " has no doubt that it is necessary in order to maintain the industry that steps should be taken to preserve the existence of the seal herd in the JNorfh Pacific Ocean and Bering Sea from the fate which has overtaken the herds in the south seas."" The said firm of Lampson & Co., in a letter to the Earl of Iddesleigh, First Lord of Her Majesty's Treasury, dated at London, » Walter E. Martin, Vol. II, p. 570. - Sir George C. Lampson, Vol. II, p. 566. :' i I' 1 \ ^' /li*' lit 1- 't'l / J II ' M 1 4 11 1 it ' '^' ' '' f ^ 1 fl' i : iff 't WIW li'i 244 rROTKC'TION AND I'RliHKUVATlON. Opinioni of Lon- November 12, 1880, in relaLioii, ainoiw other dun fiirnorn. ' o things to the preservation of the Ahiskau herd, states that "shouhl Great liritaiii deny the riiilit of the United States Oovenimeiit to proteet I he (seal) fishery in an eflectual manner there can be no doubt that the Ahiska fur seals, which • furnish by far the most important part of the world's supply of sealskins, will be exterminated in a very few years, just as in the South Atlan- tic, the Shetland and Georgia fur-seals, wlucli used to furnish even finer pelts than the Alas- kas, have already been." ^ Again, in September, 1890, Lampson & Co. wrote to the Foreign Office that " unless a close season can be arranged immediately the animal will undoubt- edly become extinct within a very short tinu'. "■ Mr. C. Hawkins, a British subject, in a letter already mentioned, addressed to the Marquis of Salisbury, states that " this wholesale slaughter of the females will, in a short time, bring about the extermination of the seal in that district if not arrested."^ M. L6on Eevillon, a member of the well known Parisian firm of Kevillon freres, which has been engaged in the manufacture of sealskin gar- ments for over twenty years, in speaking for his ' British Blue Book, U. S. No. 2 (1890), C-61.31, p. 24. = British Blue Book, U. S. No. 1 (1891), 0-6253, p. 11. =' British Blue Book, U. S. No. 3 (1892), C-6635, p. 5. Opinions of Fn noli furriers. I'**|r{l- ALASKAN JIKF^n. iHAS company, says : '* We firmly b;;lieve that if the Oj.iiiion«ofFi»nfh fiin-ii'i's. sluigliter of the Northwest Coast fur-seals is not stDpiJcd or regulated, the Alaska fur-seals will (lisajjpt.'ar entirely, as is the ease with the seals of the iShelland Islands."' The same belief is also stated by M. Emin Hertz, head of the fur iirm of Emin Hertz & Cie., which is located in the city of Paris. He says : " If tliis pursuit in the open sea continues as in the past two years, the said firm firmly believes that in a short time the seal will exist only as a souvenir and will be completely exterminated. "' Mr. Elkan Wasserman, of San Francisco, who Opinions of Amori- cim furriers. has been a furrier for thirty years, says : " From my knowledge of the sealing business, I am satis- fied that the seals will be entirely exterminated unless protected from the indiscriminate pursuit in the waters that has been goimi on for the last few years."^ Mr. C. A. Williams, one of the original members of the Alaska Commercial Com- pany, formerly lessees of the I'ribilof Islands, but no longer interested in those rookeries, says that if open-sea sealing continues the seals of Bering Sea will within five years be as extinct as the seals of the South Sea Islands.* And Mr. ' Vol. II, p. 590. 2 Yol. II, p. 588. '■^ Vol. II, p. 53t. ^ Vol, II, p. 538. If p-^H'-Tfr?' |:frl| '■' ^ ' mi it j; mM F ^ I 24G PROTECTION AND PRESKfvVATIOX. ca Opinions of pelagic scalere. OpinioniofAmori- Herman Liebes, already spoken of as being the n Jurr.ers. ^ j l o largest purcliaser of the Northwest catch at Victoria, British Columbia, places the time of ex- termination at three years unless the herd is pro- tected from the depredations of pelagic ijcalers.^ Turning iiow to those still more conversant v,'lth the wasteful destruction of life through open-sea sealing, the resalting depletion of the Alaskan herd, and the probable effect of contin- uing pelagic hunting, the opinions alread}'- given are still further sustained. A great number of these men, sealers with more or less experience, unite in declaring the necessity of protecting the herd in order to preserve it from certain exter- mination in the near future. Alexander McLean was asked the question : " If se.iling continues as heretofore, is there any danger of exterminating them [the seals] ?" He replied: "If they con ti'.iue as they have been since I have been in the b liiness, I will give them ten years. After that the sealing business will be about finished."- Mr. Morris Moss, vice-president of the Sealers' Association of Victoria, British Columbia, says; " It is very important that if the fur seal is to be preserved, it must be protected from indiscrim- inate slaughter in the open sen or it will soon be ' Vol. II, p. 514. - Vol. II, ]). 438. '#,^-^ :H'; ALASKAN IIKRD. 247 exhausted."' John Morris, a sealer of experi- Opinions of pelagic sealers. ence, already mentioned, says : " With the pres- ent increasing fleet of sealing vessels the seal herd will soon become exterminated unless some restrictions are placed upon pelagic sealing.'" William H. Long, who has been a iiunter, a mate, and a captain on sealing vessels, says : "I t>i*.nk if something is not done to protect seals in the North Pacific and Bering Sea they will become exter- minated in a very few years. "^ Caleb Lindahl, who has sealed both in arctic and antarctic seas, says: '' If they keep on hunting them in the Bering Sea and the North Pacific, in the same way they have done in the last few years, they will exterminate them in the same way [as in the southern seas], because most all the seals killed are females."* To these statements might be added may others of those experienced in open-sea sealing,* The certainty of extermination of the herd if Opinions of Indian not protected is also set forth by many of the Indian hunters, whose long experience and care- ful observation of the condition of the migrating ' Vol. IT, p. 342. ' Vol. II, p. 340. •' Vol. 11, p. 458. ■* Vol. II, p. 456. ' Thomas Gibson, Vol. II, p. 432 ; A. J. Hoffman, Vol. II, p. 447 ; F. r. Feeucy, Vol. II, p. 220: Luther T. Franklin, Vol. II, p. 42G ; 0. Holm, Vol. II, p. 368 ; Martin Benson, Vol. II, p. 40C. '-Ii4- *|i H M - > '41 I Ilfj 248 PROTECTION .AND PRE.s^f:4<^ tTION. ■n H Opiiiionaof inriiunherd IVom \eav to year make them fullv comiie- luintei'M. . ' ' tent to give an opinion of value and weii>iit, Alfr«?d Irving, a Makah Incli^sn liujiter, sa\s : " If tliey kec"^ »ii killing them \K'J%k g;i{n« thie ''ibe, says: "If hu. '. "i '; guns they will all irt»^i be destroyed."' - % an Indian belonging to the Yakucat tribe, ^er stat- ing that seals are l)ecoming vent' scarce, gives a*" a reason that too many scbooner*i a*e huititini' them, adding " Seals will soon be no move unk»- the Great Father stops the schooners from hunt- ing,'"'' And a great many more Indians make like statements,'' Opinions of otiicr Other witncsses, who are thoroughly familiar with the habits and nature ol the Alaskan fur- seals, or who have had ample opportunity to ex- amine the constant decrease and compare it with the known facts and figure* of pelagic sealing and its increase, give like opinions as to the need of protection if the seals are to be preserved. Mr Maxwell Cohen says : " After twenty-two years' experience in Alaska in the fur business I ' Vol. II, p. 387. -' Vol. II, p. 389. •' Vol. II, p. 238. ' Peter Brown, Vol. IT, p. 378 ; Tliomus Zolnoka, Vol. II, \> I'"?: Charlo8 Miirtin, Vol. II, \> 2V7. ■• Sauniel Fulcoiier, Vol. I J, p. 162 ; M. A. Healy, Vol. II, p. 26; .1 P. Loud, Vol. II, p. 39 ; H. O. Otis, Vol. II, p. 88 i Wm. H. Williiim>. Vol. II, p. 94; Aggie Kxishin, Vol. II. p. 130; CM. Scamiiion. Vol. II, pp. 475, 47'J. ALASKAN HERD. 249 have no hesitation in sayintr that if the fur-seal Opinions of oiiicr _ witiu'sscs. species is to be saved from extinction, all pelagic sealing must cease."' Dr. H. H. Mclntyre, after twenty years of careful study of the habits and condition of the seal herd, necessitated by his position as resident superintendent of the Alaska Commercial Company on the Pribilof Islands, says ; " I am fully convinced, from my know- ledge of seal matters, that if this indiscriminate and reckless destruction of the Pribilof seal herd continues as it has done in the past six years in Bering Sea and the North Pacific, the seals will lie practically exterminated m a very few years, '•' . ?f the United States Government ahould not allow any seals to be taken on the Pribilof Islands, for the destruction of females in the water has reached a number that can not be met • by the annual increase."- The facts thus submitted are, that the Alaskan Conclusions. seal herd has decreased to a great extent in the kisr few years ; that the sole cause of such lecrcase has been the indiscriminate and waste- iul slaugliier of seals in the open seas, particu- l^.'ly pregnant and nursiug females ; that if such destructi'>i) continues the northern fur-seal will ''►- practically exterminated ; and that both from ' A^ol. II, p. 225. » Vol. II, p. 46. F'-^ii 250 rROTECTIOX AND PRESERVATIOX. Conclusions. a scientific point of view and from actual experi- ence it is necessary to protect the seal herd from this means of slaughter in order to preserve the species. Means necessary. Upon the qucstiou what are the restrictions or prohibitions needful to accomplish the desired results, it is only necessary to consider those applicable to open-sea sealing, for it has already been shown that regulations can be enlbrced upon the Pribilof Islands so that a certain mini- ber of young male seals can be taken annually on the islands for an indefinite period without decreasing or impairing the normal condition of the herd, and this is particularly shown by the American Commissioners and various witnesses.' As to what restrictions are necessary to be enforced in relation to pelagic sealing, the opin- ions naturally vary according to the knowledge, prej udice, or conclusions of the individual. These opinions may be placed in two classes, absolute prohibition and limited prohibition. Naturally, the majority of those whose interests would be affected by an absolute prohibition of open-sea sealing in all waters frequented by the Alaskan herd, will be found affirming the need of a ' Report of Americuu licring Woa Coiuiiiisaioners, i)ost, p. 352; K. If. Mclntjre, Vol. II, p. 45; WiUium H. WiUia-.iis, vol. II, r 94; George Wardman, vol. II, p. 179 : \f . H. Call, vol. 11, p. :i4. ALASKAN HERD. 251 limited prohibition, while those who are unbiased Means necessary, by interest or who desire the preservation of the seal declare that absolute prohibition only can accomplish its preservation. Mr. Phihp Lutley Sclater, Ph. D., secretary Absolute prohibi- _,.,_,. „^, , tion of pelagic seal* of the Zoological Society oi Loudon, says that ing. in his opinion as a naturalist, " unless proper measures are taken to restrict the indiscriminate capture of the fui jeal in the North Pacific the extermination of this species will take place in a few years, as it has already done in the case of other species of the same group in other parts of the world ; " that " it seems to him that the proper way of proceeding would be to stop the killing of females and young of the fur-seal altogether, or as far as possible, and to restrict the killing of the males to a certain number in each year ; " and that " ^^^lie only way he can imagine by which these rules could be carried out is bv killin Vol. II, p. 40. ALASKAN HERD. 253 industry in London, says " that, in his judgment, Absolute proinbi- tion of pelagic seal- the absohite prohibition of pelagic sealing, i.e., ing. the killing ol eals in the open sea, whether in the North Pacific or the Bering Sea, is necessary to the preservation of the seal herds now surviv- ing."^ Besides the statements given above, many other witnesses express the same opinion.^ Those asserting the need of only a limited pro- . i-imiteci proiiibi- ° ./A ^^QJ^ of pelagic seal- hibition are divided in their views as to the^'g- means necessary, some advocating a close season, in wliicli all killing of seals should be prohib- ited, others that the use of firearms in taking seals should be forbidden, others that the seal herd should not be molested in the waters of Berinsc Sea, and still others who believe that a zone about the islands of from tiiirty to fifty miles would be sufficient. The lirst of these propositions is supported by a close season, a number of sealers, but the period of time in which pelagic sealing should be prohibited varies. Daniel Claussen advocates a close season from July 1 to the last of October f Arthur Griffin, from April to September 1 , inclusive ;* Joshua ' Vol. IT, p. 557. ■' W. ('. CoLilsoii, Vol. II, p. 416 ; T. F. Ryan. Vol. II, p. 175 ; J. M. Mcmlloii, Vol. II, p. 73 ; W. B. Taylor, Vol. II, p. 177 ; B. F. Scribncr, Viil. II, p. 90; T. F. Morgan, Vol. II, \). 05; Ou-^taTe Isaacson, Vol. II, p. +10 ; J. A. Bratlley, Vol. II, p. 227; H. W. Mclntyrc, Vol. II, p. i;58, ' Vol. II, ]). 112. ' Vol. II, p. ;52(i. m t ^ . .ft II I r. I 'f 1 if ^li 1 . 1 i i 'i'H^^^B^^^K (■ i ''^H^^^^^K i / 1 i ) i i m , ;''! p '■ 1 ' 1 254 A close season. A close season iui' practicable. PROTECTION AND PRESERVATION. Stickland, from May 1 to September 15;^ Frank Johnson from the 1st of July to the end of the year ;- G. E. Miner, from January 1 to August 15.'' James Kiernau says the seals should be protected from February until October/ and Isaac M. Lenard, from February to November.' Thomas Brown (No. 1.) says that in order to prevent the extermination of seals the hunting of them should be prohibited until after the mother seals give birth to their young f which opinion is also advanced by Capt. Victor Jackobson.' William Short says that sealing should be pro- hibited in the North Pacific before the middle of June.^ And Charles Peterson says : " The prac- tice of taking seals in the water before they give birth to their young is destructive to seal life and should be prohibited."" A glance at the above opinions of those wlio have been or are engaged in pelagic sealing is sufficient to show that a close season cannot accomplish the preservation of the seal, for, taken ' Vol. II, p. 350. «Vol. Il,r. 441. 3 Vol. IT, p. 467. ■* Vol. II, p. 451. » Vol. 11, p. 217. « Vol. II, p. 319. ' \ ol. II, p. 328. " Vol. II, p. 348. 9 Vol. II, p. 346. See also George Dieliow, Vol. II, p. 323. \ ALASKAN HERD. 355 collectively, every month in the year is comprised ^t^i^^le""**" '*" in thestatement of one sealer or another, evidently showing that in every month the seal herd needs protection. Dr. George Dawson, one of the British Bering Sea Commissioners, in an article entitled " Note on the Question of Protection of the Fur-Seal in the North Pacific," which was inclosed in a communication from Sir Julian Pauiicefote to Mr. Blaine, dated March 9, 1890, says : " The circumstance that the female fur- seal becomes pregnant within a few days after the birth of its young, and that the period of gestation is nearly twelve months, with the fact that the skins are at all times fit for market (though for a few weeks, extending from the middle of August to the end of September, during the progress of shedding and renewal of the longer hair, they are of less value), show that there is no nataral basis for a close season generally applicable."' And Sir George Baden-Powell, the other British Bering Sea Commissioner, in a letter to the London Times, published Saturday, November 30, 1889, opposes a close season for all months excepting July, August, and Septem- ber, on the ground that " the Canadian sealers commence sealing in December and seal contin- N'o. -t. Sir Julian Paunccfote to Mr. Blaine, March 9, 1890, inclosure [31 5J l- ii uj. wu 3S |l Hil 1 ii ^g^H 1 Wm ii j l^lli '' '" i mim miflB pifl 3 '11 |r ii li'' ifl m li Ill III [-^■' Wm. iff m 266. PROTECTION AND PREfJERVATION. Probibitioii of use of flreiirnis^. A close season iin- uously from tlicii till August." rrofessor Huxley practicable. , , ,. also says : "In such a case as this 1 do not believe that the enforcement of a close time, either in Bering Sea or on the Northwest Coast, would be of any practical utility, unless the fishing is absolutely prohibited."* The second means of protection, the prohibition of the use of firearms, is naturally advanced by the Indian hunters.'^ It is but necessary to recall the fact that with less than twenty vessels engaged in sealing during the years from 1880 to 1885, when spears were practically the sole weapon used in the chase, the seals ceased to increase.^ If, then, the present fleet of over a hundred ves- sels carried only Indian hunters it is evident the seals would still decrease, for the catch of the Indian, like that of the white man, is composed of the same proportion of female seals and is entirely indiscriminate.'* Prohibition of pe- The third propositiou is to close Bering Sea from the invasion of sealing vessels.' The same suggestion made on the last point stated, that the seals ceased to increase from 1880 to 1885, with ' statement of Prof. T. J. Huxley, Vol. T, p. 412. 2 Twongkwak, Vol. II, p. 246; King Kooga, Vol. II, p. 210. See also F. R. King-Hall, Vol. II, p. 334. 8 Ante, p. 165. * Michael Wooskoot, Vol. II, p. 275 ; Kobert Kooko, Vol. II, p. 296; Jack Shucky, Vol. II, p. 289; Charlie Tlaksatan, Vol. II, p. 270. ■' William H. Smith, Vol. II, p. 478. lagic sealing in Bering Sea. '< I ALASKAN UKUU, 2.)7 less than twenty vessels in the business, is applic- Prohibition ..r pelagic (leuling in able to this method of protection ; for, as has Bering Weu. already been stated, the sealing vessels at that time seldom entered Bering Sea, confining their operations almost entirely to the North Pacific,^ and therefore a large increase in the fleet, even though excluded from that sea, would ultimately cause the practical extinction of the herd. The British Government, through its Minister to the United States, Sir Julian Pauncefote, in April, 1890, submitted proposals for a convention, in relation to the sealing industry in Bering Sea and the Sea of Okhotsk, in which Great Britain, Russia, and the United States should join. In these proposals the area suggested to be closed included not only Bering Sea, but a considerable portion of the Pacific Ocean south of the Alaska Peninsula and the eastern Aleutian Passes." And in the earlier correspondence Great Britain even proposed to extend the legislative protec- tion as far south as the forty-seventh parallel.^ Sir George Baden-Powell, one of the British Bering Sea Commissioners, in an article which was pubUshed in " The New Eeview," February, ' Ante, ]). 166. ■ Letter of Sir J. Pauncefote to Mr. Blaine, cliited April — , 1890, iiidosure 1. ■' Mr. White to Mr. Bayard, AiJia '.>;.\1888; Marquis of Salisbury to Sir L. West, April 16, 188'. See ilso Sir .Tuliiui Pauncefote to Ml'. Wharton, June 11, 1891. m w-w^ I i ■ ^ i " '■ I'. ! 1 ■ ■ 1 I. , [:315] s 2 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 IttlM 125 |5o ■■■ m^M ■u Kii 12.2 - IAS IM >- .. 0% H 'n ^^^/ ^^^ "* ^1 V Photcgfflphic Sdences Corporation 33 WIST MAIN STRKT WnSTiR,N.Y. 14SM (716)873-4503 ri ' 258 PROTECTION AND PRESERVATION. Prohibition of 1891, savs : " Effectively to protect the industry S»lagio aecliiig in •' . , ering Sea. one would have to include all the Pacific Ocean and coasts thereof to north of, say, latitude 50 deff."^ Great Britain has therefore conceded that the seal herd needs protection outside Bering Sea during the greater portion of its migration. Prohibition of The fourth and last means of a limited prohi- pelsgic sealing within a zone. bitiou proposed is to draw an imaginary line about the islands within which open-sea sealing should be prohibited. The distance suggested as a radius for such a zone about the Fribilof Islands varies from twenty-five" or thirty" to fifty miles.* Courses of sealing To show how ineffective such a means of pro- tection would be it is but necessary to examine Tcs»e;» the charts showing the courses of sealing schooners seized in Bering Sea in 1887, which have been platted, from the original log books of the vessels in the possession of the United States Government, by the Bureau of the United States Coast and Geodetic Survey and which have been ' " Tbo Bering Sea Dispute : A Settlement," by Sir George Bsden- Powell, Vol. I, p. 589. 2 Lord Stanley of Preston to Lord Knutsford, Feb. 28, 1892, British Blue Book, U. S. No. 1 (1892) C-fl633, No. 5, p. 2. * Henry Poland, Vol. II, p. 672 ; Sir J. Pauncefotc to the Msrqui* of Salisbury, Feb. 26, 1892, British Blue Book, V. S. No. 1 (1892), C-6633, No. 8, p. 8. ■• Morris Moss, Vol. II, p. 342. }Cl\ ALASKAN HERD. 259 certified to by t'le Chief of that Bureau. An Couiw of Beniing examination of the course of the British schooner Ada, of Victoria, British Columbia, will at once prove the ineflScacy of a zone as a means of protection, for it is there shown that within a given area the nearest point of which is one hundred and thirty-seven miles from the islands the catch for thirteen days was seven hundred and forty-seven seals, while in a given area nearly one hundred miles nearer the Pribilof Islands the catch for eighteen days was but five hundred and fifty- six ; and, further, that at no time was the vessel within forty-five miles of the seal rook- eries.' The course of the British schooner Alfred Adams shows the nearest point to the islands where sejils were taken by her in 1887 was about sixty miles south of St. George Island, and that the majority of her catch was made one hundred and twenty-five miles from the islands." The schooner Ellen never came within one hundred and sixteen miles of the rookeries on the islands,' and the schooner Annie's nearest approach to the islands was seventy-seven miles, her usual distance being over one hundred and fifty miles therefrom.* Edward Shield, of Sooke ' Chart of course of schooner Ada, Vol. I, p. S74. ' Chart, of course of schooner Alfred Adams, Vol. I, p. 648. ' Chart of course of schooner Ellen, Vol. I, p. 526. 'Churt uf courHC of schooner .<4«Mi>, Vol. T, p. -631. i -I ? ifilM ff ^(10' PROTECTION AND PEESERVATION. B' I i Couwesof sealing District, Vancouvcr Island, one of the hunters vessels. on board the British schooner Carolina, seized by Captain Abbey, United States Kevenue Marine, in 1886, says : " During the time while we were cruising about we were in the open sea out of sight of land.'" Much other testimony of the same nature might be advanced, but it will be sufficient to mention only the declarations of James Douglas Warren as to the places of seizure in the cases of the W. P. Wayward, Grace, Anna Beck, Dolphin, Alfred Adams, and Ada, vessels seized by the United States Government in 1887, the distance given shows how the seals wander many miles from land, for in all cases Mr. Warren states the vessel was engaged in sealing at the distances given : the W. P. Saywad about fifty-eight miles from Unalaska, the nearest land ;" the Grace about ninety-two miles from Unalaska, the nearest land '^ the Anna Beck about sixty-six miles from the nearest land ;* the Dolphin about forty-two miles from Unalaska Island, the nearest land;"* the Alfred Adams about sixty-two miles from Unalaska Island, the nearest land," and the Ada about fifteen miles ' British Blue Book, V. S. No. 2 (1800), C'-G131, p. 8. - Ibid., p. 145. ='/iid., p. 148. ., . , .„..,.. ^ /ftid., p. 152. . • v' •; « ■: .• V • 'Ibid., p. 156. ''Ibid.,]). 160. ALASKAN H£BD. 26r Fogs Soa. Boring northward from Unalaska Island, which said Oourws of »«»iing Toawla. island was the nearest land."* ' .'n * . ; : ' Sir George Baden-Powell, in the article pub- lished in the "London Times," already referred to, says: "As a matter of fact the Canadian sealers take very few, if any, seals close to these (the Pribilof) islands." ' •< .-,.•,•,.. The American Commissioners in their report, after speaking of the absurdity of such a pro- posed method of protection, say : " There is almost constant cloudiness and dense fog, and it is difficult for a vessel to know her own location Tvithiii reasonable limits after having cruised about for a short time. A margin of uncertainty would be nearly as "wide as the zone itself. . , ; In most cases it would be difficult to prove that the sealerwas actually within the forbidden area."- Captain Shepard, of the United States Eevenue Marine, who seized a number of vessels in 1887 and 1889, while engaged in sealing in Bering Sea, says : "It is ray opinion that should pelagic sealing be prohibited in a zone thirty, forty, or fifty miles about the Pribilof Islands, it would be utterly useless as a protection to seal life, because female seals go much farther than that ' British Blue Book, U. S. No. 2 (1890), C-6181, p. 161. See also WilUam H. Smith, Vol. II, p, 478 ; Fred Smith, Vol. II, p. 349. i - Bci)ort of American Beriug Sea Commissioners, post, p. 370. 262 PROTECTION AND PRESERVATION. Son. Fogi in Bering in Search of food, and because fogs are so preva- lent about those islands that it would be impos- sible to enforce any such prohibition."* Captain Abbey, also of the United States Revenue Marine, who seized several sealing vessels in 1886 in Bering Sea, says : " Fogs are almost constant in Bering Sea in the summer time. During the fifty-eight days I cruised in those waters fifty- iour days were foggy and rainy, the other four days partly clear. On this account it is most difficult to seize vessels in Bering Sea. The reports of the guns of the hunters might often be heard when no vessel could be seen. For fifteen or twenty days at a time I did not see the sun, and never while in Bering Sea did I see a star, the nights being continually overcast and foggy."* Captain Bryant, already mentioned as the Government agent on the Pribilof Islands from 1870 to 1877, and who prior to that time had been captain of a whaling vessel which for several years had been in Bering Sea, says : " A zone thirty, forty, or fifty miles about the island in which sealing is prohibited would be of little or no protection, as the females, during the breeding season after their pups are bom, wan- der at intervals over Bering Sea in search of food. But, to suppose an impossibility, even if ' Vol. II, p. 189. » Vol. IT. p. 186. ALAi^KAX HKHD. 2ea -■"\.m such a zone could protect seal life, it would be Fogi in Bwing impossible, on account of the atmosphere being ^ so constantly foggy and misty, to prevent ves- sels from crossing an imaginary line drawn at such a distance from and about the Pribilof Islands.^ Others also consider this question of a protecting zone and give the same opinion as the witnesses quoted above.- Commander Charles J. Turner, of Her Majesty's cruiser Nymphie^ which was in Bering Sea in 1891, states that "the weather experienced on the whole was very foggy and rainy, and the fogs greatly aided the sealing schooners in escaping observation."^ And Ijord SaHsbury, in discussing the possibility of limiting sealing to one side of a line drawn through the sea, says " that if seal hunting be prohibited on one side of a purely imaginary line drawn in the open ocean, while it is permitted on the other side of the line, it will be impossible in many cases to prove unlawful sealing, or to infer it from tlie possession of skins or fishing tackle."* And the soundness of this statement is still more evident when such an imaginary line is almost continually enveloped in fogs and mists. ' Vol. II, p. 9. = H. H. Mclntyre, Vol. II, p. 46; A. P. Loud, Vol. II, p. 39; Qeorge Wurdmim, Vol. II, p. 179 ; H. W. Melntyiv, Vol. II, p. 138; II. X. Clark, Vol. II, p. 160. 'British Blue Book, United States No. 3 (1892), C-663B, p. 116. *Sir Julian Pauncefotc to Mr. Wharton,' June 6, 1891 (In- I'losure.) r, •i i II >-ii ■■I I nil r >i i •.1 r:Jl .■ It- id ) 264 THE SEALSKIN INDUSTRY After a careful consideration of the four Abao^ute prohi- bition of jMlagio 1 1 /. 1 • • 1 • 11 sealing necessary, methods of limited protection proposed above, it is evident that none of these can preserve the Alaskan seal herd from certain destruction in the near future, no matter how stringently they may be enforced. The result, therefore, of this con- sideration is, that, if it is deemed necessary or expedient from a practical and commercial point of view to preserve the seal herds of the North Pacific and Bering Sea, pelagic sealing in every form and in all waters must be absolutely pro- hibited at all times. THB SEALSKIN INOUSTB7. IN THE PAST. The commercial value of the Alaskan seal herd, which needs the protection already shown in order to preserve it from practical extinction, is evident on an examination of the sealskin industry as it formerly existed and as it is at the present time. Sources of supply. Formerly— that is, prior to the American oc- cupation of Alaska and Bering Sea, the great sources of supply for fur-seal skins were in both the southern and northern hemispheres. Among those located in the antarctic regions, and from IN THE PAST. « •.-.'^ which hundreds of thousands of skins were taken in the early part of this century were Sandwicliland, South Shetland Islands, Desola- tion Island, Gough's Island, Kerguelen Island, Massafuero Island, San Juan Fernandez Island, the Falkland Islands, Tierra del Fuego, Pata- gonia, Cape Horn, South Georgia Islands, the Crozets,' the Cape of Good Hope, New Zealand, and olher localities described by Dr. Allen.' . ., It has already been shown how completely these antarctic rookeries have been depleted,^ but an instance of the enormous numbers taken by sealers in a short time, which shows how populous these southern coasts and islands had once been in seal life, is found in the case of the South Shetlands, where three hundred and twenty thousand skins were taken in two years (1821-1823),* and also in the case of Massafuero, from which island there were shipped to Canton in seven years over three million fur-seal skins.^ Besides the antarctic sources of sealskins there were those which may be called subtropical, consisting of the Guadalupe and Galapagos ' Eiuil Teichmann, Vol. 11, p. 577 ; James W. Biidingtou, Vol. II, pp. 593 594 ; George Fogel. Vol. II, p. 424 j C. A. Wiliittius, Vol. II, p. 53G ; George Comer, Vol. II, p. 59« ; Alfred Fraser, "ol. II, p. 556. - Article by Dr. Allen, Parts I and II ; Vol. I, i)p. 375, 894. , ' Antf p. 218. * C. A. Williams, Vol. II, p. 541. ' .... , 26ff Souroel of rapplj- lit- .\ If, I' If; ilM' m^ ,t P 'i 'I/' i >, 266 THE SKALSKIN INDtftTRV ; M 1 llir j f ^H li 1 i : ■ ^ I soiirM. of .uppiy. Islands, Lobos Islands,^ St. Felix and St. Ambrose Islands,' the depleted condition of all whicli is well known, except Lobos Island, which, as before shown, has been long protected by the Uruguayan Government.' The arctic supply was, as now, the Pribilof Islands, the Commander Islands, Robben Reef, and the Kuriie Islands, all these except the last mentioned being directly under the control and management of the Russian American Company. ' ' Mnriets. Prior to 1870 all the fur-seal skins save a few thousand were marketed and sold in China, where the skins were plucked,* the commercial value being about five dollars in that country and something less in Europe ;^ but the supply being so irregular the market price fluctuated so that a cargo of skins was sometimes sold as low sia fifty cents per skin." Russia also received a portion of the supply obtained by the Russian American Company.* A few skins, however, ' C. A. Williams, Vol. II, p. 542. "Article by Dr. Allen, Partu I and 11, Vol. I. pp. 871, 8P3; Oaffney, Vol. II, p. 430. » Emil Tcichmann, Vol. II, p. 578; Alfred Frazcr, Vol. II, p. 556; Vru'jiuayan documents. Vol. I, p. 448. ^EmilTcifhwann.Vol.II., p. 577; C. A. Williamg, Vol. II,p.641; Letter from the Board of Administration of the Bussian American Company to General Manager Baranof, dated April 6 (18), 1817, Vol. I, p. 80. » /«.rf., Vol. II, p. 542. " Letter from Board of Administration of Russian American Cdni* pnny to t'aptnin Riidakof, dated -April 22 (May 4). 1853, Vol. I, i>. S2 i; ,: m li^il 1 pH^ ^ jfiflBrMBliB m ni i , , \ '■ ^' ffl i ■^fe ■ n ' ■ ,\ H'}- '■1 1 1 IN THK PRESKNT. were purchased in England by J. M, Oppenheim Htrket*. . & Company,' and in the fifties New York' also re- ceived a supply from the Russian American Com- pany, but it was not until the lease of the Fribilof Islands to the Alaska Commercial Company in 1870, and through the united efforts of that Company with C. M. Ijampson & Company that the sealskin industry received the impetus which has built it up to its present condition.' At the same time the methods of dyeing and dressing the skins were peifected through the same agency, and sealskins made an article of fashion in general use in Europe and America, and became mnch more valuable as merchandise/ ?eT: IN THE PRESENT. As a result of these endeavors and the increased prices, London has become practically the sole market in which the skins of the fur-seal are sold, and buyers gather there semiannually from different countries to purchase the skins,' which, to the number of one hundred and fifty thousand or more, are sold at public auction." ' Wnlt.r E. Martin, Vol. II, p. 867. - Letter to the Board of Administration of the Rusnian American CompHiiy from the chief manager of the Russian American Colonies, dated November 8 (20), 1854, Vol. I, p. 83. ■ - ' '. ..kj i. • ' Emil Teichmann, Vol. II, p. 582. .' * '' * C. A. WiUiams, Vol. II, p. 546. ' Ibid., Vol. II, p. o46 ; O. C. Lampson, Vol. II, p. 564. ' H. S. Beyington, Vol. II, p. 552, s'M. I ; ."1 n If. -aea THE SEALSKIN INDUSTRY. k B„ 'i.. Pppendenco Alukau herd. on Source! of auppiy. The principal sources of supply for seal skins at the present time are, first, the Pribilof Islands ; second, the Commander Islands; third, the North- west or Victoria catch.' A small supply is also received from Lobos Islands, Cape Horn, the Falklands,'' and Australasia." The tables attached to the affidavit of Mr, Emil Teichmann, of the firm of C. M. Larapson &. Company, show that the Pribilof Islands have, since their lease to the Alaska Commercial Cora- pany,and until the year 1890,supplied onan aver- age over one-half of the skins sold annually in Tx)ndon ; that, including the Northwest catch, the Alaskan herd has produced over sixty per cent. of the world's supply, and that the two great herds of the North Pacific and Bering Sea, which are both threatened with extermination bv pelagic sealing, are the source of over eighty per cent, of the skins annually offered for sale at London. In 1889, the last year in which one hundred thousand seals were taken on the Prib- ilof Islands, the number of skins derived from these two herds was ninety-four per cent, of the whole supply, not twelve thousand skins being obtained from other sources.* From the fore- going it is evident that the destruction of the ' Eniil Teichmunn, Vol. II. P- 679. - H. S. Bevington, Vol. II. P- 561. "• • ' '* Emil Tcichmanu Vol II, P- 678. ..''■' * Eniil Toichmiinii Vol II P 686. on LOSS) IF IIKRD DESTROY RD. 269 Vlaskaii herd means practically the annihilation Dependence * •' Alaakan hem. of the seal-skin industry of the world. There- fore, the extent and value of this industry, the consequent loss in case pelagic sealing is not prohibited, besides the loss to the United States Government by destruction of the seal herd, are matters for consideration in this connection. . f LOSS IP HERD DESTROYED. Under the present lease of the i\'hilof Islands Lo8« to United »T • 1 rt /-I ■» • States. the United States Government den 'es a revenue on each raw skin taken on thf ' jland^ of over ten dollars ;* and under the same conditions which existed prior to the introduction of pelagic seal- ing, as it is now carried on, 100,000 seals could be annually taken upon the Pribilof Islands, as has been shown, without impairment of th" seal herd." The annual revenue from this source to the United States would, therefore, be over $1,000,000. Besides this profit the United States Government received a further revenue from Alaskan seals reshipped to America from Eng- land. At least seventy per cent, of the Alaska skins are imported into the United States after being dressed and dyed in the city of London. • Lease to North American Commercial Compouy, Vol. I, p. 106. • Ante, p. 161. i;»^l .iipii •i 1 1 ,, 'i i J 370 THK SKALsiKiX I.NULSTRV. .' I 'I Low to United Q. M. Lampson & Company, in a letter to the • - British Foreign Office dated December 30, 1890, state : " For many years past no less than 75 per cent, have been bought for American account and reshipped to the United States after having been manufactured in London."* This statement is corroborated by seven of the principal fur mer- chants in the United States, veho place the number of " Alaskas " imported at from 65,000 to 75,000.; The value of these skins before paying custom duty to the United States is shown to average for a series of years about $25 per skin.'* On these importations the Government of the United States received a duty of 20 per cent, ad valorem, or an annual revenue from duties on dressed and dyed Alaskan skins amounting to the sum of $375,000, which makes the total annuity of the United States Government, derived from the Alaskan Seal herd, at least $1,375,000, provided the usual quota of skins are taken by the lessees of the Pribilof Islands. In the United States these imported dressed and dyed skins are re- modeled and manufactured into sealskin articles, for which the people so employed receive on au average $7 a skin, or for the 70,000 skins so ' British Blue Book, U. S. (No. 18 191), C-6253, p. 11. ' Statement of American industry by furriers, Vol. II, p. 526. LOSS IF HERD DESTROYED. 27t imported annually the sum of |ft4 90,000.^ When Lom to VniuA States. to this IS adaea the profits to the wholesale and retail furriers and merchants engaged in the seal- skin industries in the United States, which, accord- ing to the American furriers quoted above, are • about {^30 a skin, or on the 70,000 skins annually- imported $2, 100,000,^ the total amount received each year in the United States from the man- ufacture and sale of Alaska skins aggregates $2,590,000. The average price per skin for " Alaskas " in the London Market for the last ten years, when the lease to the Alaska Commercial Company was in force (1880-1889) and when 100,000 seals were taken annually, was 68*. Sd.^ or (allowing 24,3 cents to the shilling) about §16.50. The present lessees, under a normal conditiou of affairs, might expect a similar price. ' In procuring the skins they pay the United States $9.62^ on each secured, and the $60,000 rent adds 60 cents, more on each skin ; allowing §3 per skin for wages of employes, transporta- tion, etc., the cost of a raw Alaska skin deliv- ered in London would be about $13.25, which selling at the average price of $16.50 would make a profit to the lessees of the islands of $3.25 per ' Statement of American industry by furriers, Vol. II, p. 526. •' Table of prices prepared by Mr. A. Fraser, Vol. II. p. 561. [315] T VP I 1' I ' ( i: m ' ' II'' it I 272 Loas Stat# Loss to Britain. THE SEALSKIN INOrSTBY. to United skin, and on 100,000 skins the profits would be $325,000. The natives who drive and kill the seals on the Pribilof Islands also receive 40 cents for each skin, or for 100,000 the sum of $40,000. Therefore the destruction of the Alaska seal herd would mean an annual loss to the Government and people of the United States of $4,330,000. Great The sealskin industry in Great Britain, which, as has been shown, is entirely dependent upon the Alaska seal herd for its existence, has alone in the city of London invested capital to the amount of £1,000,000,^ and employs between two* and three thousand'' persons, many of whom are skilled workmen with families dependent on them,* who would be compelled to learn some other trad>? in case the industry was destroyed. The fur brokers in London up to 1889 received 6 per cent of the price for which they sold the sealskins,^ which on 100,000 Alaska skins, at j^KJ per skin, would amount to $96,000. The next expense put upon the skins is dressing and dye- ing them, which is about 16*. askin,^ making in ' Emil Tcickumnn, Vol. II, p. 582 ; George C. Lunipson, Vol. II, p. 565. ? Emil Teiohmann, Vol. II, p. 582; Walter £. Martin, Vol. JI,p. 568; G. C. Lampson, Vol. II, p. 565; George Bice, Vol. II, p. 574; Arthur Hirschel, Vol. II, p. 563. » Henry Poland, Vol. II, p. 571 ; H. S. Bevington, Vol. II, p. 552. * Henry Poland, Vol. II, p. 571 ; Walter E. Martin, Vol. II, p. 568; G. C. LampBon, Vol, II, p. 565 ; George Bice, Vol. II, p. 573. * H. S. Bevington, Vol. II. p. 553. :li ilr ' ' ■nli LOSS IF HERD DESTROYED. 273 all for the 100,000 tlie sum of $368,000. This Loss . . . Uritaiii. makes an annual loss to Great Britain, in case the Alaskan herd is commercially exterminated, of §464,000 ; but this is only a partial statement of the actual damage sustained, for the depriva- tion of eight-tenths of the seal-skin supply must necessarily reduce the industry in Great Britain to a condition which will lead capital to abandon it ; and a permanent plant valued at £80,000 would become entirely useless if the sealskin industry were to come to an end.' The French Eepublic will also suffer a serious loss from the destruction of this valuable herd o'' fur-bearing animals, on which the sealskin indus- try so largely depends. The Paris firm of Revilloi i Freres has alone in the last twenty years bought upwards of 400,000 sealskins, the majority of which have been made up into garments by said firm, the sales of which have amounted to about 4,000,000 francs annually for the period of twenty years. This firm employs about three hundred persons, who are skilled laborers, and who would be thrown out of employment by the withdrawal of the supply of skins furnished by the Alaskan herd ; and it is safe to say from five to six hundred persons are dependent upon the sealskin industry in France.^ If the 20,000 to .Avvni [315] ' Arthur Hirsdiel, Vol. II, p. 563. • Leon R^villon, Vol. II, p. 590. T 2 8 Los3 to Fiin. I tit. ' f It , V' ... 'M^: s fill ^1 I'L ' 1 :u 1 m i ( i I ] \ ! 274 THE SEALSKIN INDUSTRY. Tjoi)ly of skins. wise there is great danger of loss to the buyers or sellers through fluctuation in prices, and vhe business of buying and selling becomes specula- tive. That this has been the result upon the market, through pelagic sealing in the last few years, is clearly shown by Mr. H. S. Bevington,- and Ills statement is supported by the American furriers and others engaged in the fur-trade.' It is therefore evident that even in case open-sea sealing could be carried on without insuring the destruction of the herd, the results would demor- alize and practically ruin the sealskin industry, now so firmly established. . * Iv.g ' I p ' f'i ' u f 1 Mf I t >♦!* INVESTMENTS. Having reviewed the general loss to the world Caiwdiaii invest- by the destruction of the Alaskan seal herd, it should now be compared with the Canadian industry in the pelagic sealing fleet, which would necessarily be abandoned in case open-sea hunt- ing is prohibited. According to the Canadian Fishery Eeports fgr 1890, the total valuation of the twenty-nine vessels engaged in sealing, ' Walter E. Martin, Vol. II, p. 568 ; Eniil Teichmann, Vol. II, p. 592 ; G. C. Lampson, Vol. II, p. 566. - Vol. II, p. 553. •' Statement made by American furriers. (See affidavits of S. I'll- iiiann, Vol. II, p. 527 j Alfred Harris, Vol. II, p. 529 ; Henry Tread- vAl, Vol. II, p. 529; and Hugo Joeckel, Vol. II, p. 531, attached.) 'I' ■ Vi I P 276 THE SK.VLSKIX INDUSTRY. m ii. Cunadiiin iiiTcst- inclusivG of canoes and boats, was $265,985.' mcul. in 1890. By this valuation the value per ton, exclusive of outfit, is ^121.54, which is undoubtedly exces- sive. Mr. T. T. Williams, who made a careful examination into the Canadian sealinfj industry in 1889, on behalf of the Alaska Commercial Company preparatory to the said Company's bidding for a new lease of the Pribilof Islands in 1890, states that it costs to build these seahng vessels and outfit them in Victoria ^80 per ton, and in the United States ^100." An examina- tion of the Canadian Fisheries Eeports for the years 1887 and 1890 shows that twelve of the twenty-nine vessels engaged in sealing from Victoria in 1890 were so engaged in 1887, and that some of them were verv old and of very V tr little value. Thus, the Mary Taylor and Mary Ellen have both been built thirty-five years; the Lilly has seen forty-six years' service ; the Black Diamond (called the Catherine in 1890), Juniata, Wanderer, Letitia, and Mountain Chief are all unseaworthy and have been taken out of the coast trade as being unsafe." A. K. Milne, Esq., collector of the port of Victoria, reported to the Dominion Government that the total value of the fleet of twenty -four vessels, with an ' Canadian Fisheries Report (1890), p. 183. » Vol. II. p. 500. » T. T. Williams, Vol. II, p. 500. \l INVESTMENTS. 277 acrrrresate tonnacje of 1,464 tons, in 1889 was Canadmu invest- O»^o ' 4*1 BOA $200,500,' or $83.50 per ton, which is $38.04""'"''" per ton less than the valuation given in 1890. It is difficult to see how the wear and tear on a vessel can appreciate its value, but such seems to be the case with the Victoria sealing fleet, according to the reports of Canadian officials. But admitting the Canadian valuation to be Contrast i)etweeii British and Cana- correct, the British capital (£1,000,000) invested dian inyestmcnts m ill the sealskin industry, which latter must be abandoned if pelagic sealing continues, exceeds the investment of Canada by over $4,600,000 ; ill other words, the Canadian capital invested is less than 6 per cent, of the British investment. ' The value of the Victoria fleet of forty -nine vessels and outfit in 1891 is given by the Cana- dian Fisheries Report for that year as $425,150, which is also excessive.- According to the Cana- dian valuation of 1890 the average value per ton for the fleet, including outfit, is $130.20 ; in 1891 the same authority gives the valuation per ton for vessels and outfit as $132.73, or $2.53 per ton over and above the inflated valuation of 1890. Levi W. Myers, Esq., United States con- sul at Victoria, had a careful estimate made of the value of the vessels engaged in the sealing business in Victoria, by two experts, both resi- ' T. T. Williams, Vol. II, p. 499-500. ^ Canadian Fisheries Report (1891), p. lxxxv. Canadian invest* ment, in 1S91. !5ii>t ■ \:K': tit m^ 1:^' : I'l I' -6 A'-! r Ji SJ78 THE SEALSKIN INDUSTRY. ! ; K Cttuiuiian invest- dents of Victoria, and one especially, Mr. W. J. men in 1891. ' r j ' Stevens, being recognized as authority on such matters, often having been employed by the Dominion Government in examining and rei)ort- ing on vessels.* According to such estimate the value of the vessels in 1891 was $203,200. Con- sul Myers also obtained from the custom-house records at Victoria the approximate age of the vessels, which shows that seven of them are " very old," two are " old," and thirty-three have seen over six years of service.^ In consideration of this last fact stated, it is evident that the Ca- nadian valuation is far above the true figure. BriUB"h""and***cira° Howevcr, assumiiig the value of the fleet of 1891 '"'*^*°"'"** *° 1891 as given in the Canadian reports to be ac- curate, namely, ||425,iri0, the Canadian capital is even then less than 12 per cent, of the British investment in the sealskin industry ; and Great Britain, through the necessary abandonment, of her permanent plant used in the industry, would lose more in this item alone than the entire Ca- nadian investment. ■'.,. f'x; !;;^: . According to the same sources of information, Canada employed in 1890, 678 white men and Indians in seal hunting,' and in 1891, 439 Indians > Vol. T, p. 507. 2 Consul Meyer's Report (No. LIB), Vol. 1, p. 511. ' Canadian Fisheries Report (1890), p. 183. K HI p 1 o y £ 8 in ' Canada and London. INVESTMKNTS. '210 and i.S, 280 TUK SEAL8KIX INDUSTRY. Vniuo to I'amuiii United States realize annually on Alaskan «kius nnd United Htnton. . , tt • i ci consumed in the United otates the sum of 32,100,000 ; the aggregate amount annually paid as wages to those employed in the American manufactories to be $490,000; the receipts of the Pribilof Islands natives to be $40,000 ; annually and the profits of the lessees of said islands, when 100,000 skins are taken, to be $32'),00U. The gross amount thus received by citizens of the United States each year from the Alaskan catch is about $3,000,000. The value of the Victoria pelagic catch for 1891 has not been published in the Canadian Fisheries Eeports, but assuming the value of the Victoria pelagic catch *o be $492, 2G1, as given by the Canadian report for 1890, which has been shown to be abnormal, the gross Canadian receipts per annum from the sealing fleet are less than 16^ percent. of the total profits to the citizens of the United States from the Alaskan catch. If the annual receipts to the United States Government be also included, the gross sum received by Canada from her sealskin catch is 1 Ij^ per cent, of the annual profits to the Government and people of the United States on " Alaska " sealskins. Employes in Tlic number of persons employed in the Canadu and United ■,%••■, tt • i a States. manufacture of sealskins in the United States is :'IU r IXVKSTMKMS. 281 3,3('»0,Mvhu'h is over thyee times as many as Km pu.vijs hi were engaged in the Vutoria sealing inunstry stutiM. in 1801, according to the Canadian oHicials, and live times as many as were so engaged in 1890. The receipts of France from her sealskin in- ^ f""»'-«''< '"'•woim. * 1' ri'iu'li and Caiinduui (liistry has been shown to be over $300,000 »"'■^♦""■"'"• (l,r)UO,000 francs), which is at least G6 per cent. of the gross receipts of Canada from pelagic sealinii' in a year when the prices of Northwest skins were abnormal. Under natural conditions, ;is ill 1 888 or 1 890, the French receipts from the industry would more than equal the gross re- ceipts of Canada from the sealing fleets catch. The number of men also employed in France is about the same as those employed in pelagic sealing in Canada in 1890. The number of persons engaged in the hand- „ Kinph.ves in ■^ o o Cimiulii mid in otlici* ling and manufacture of sealskins in the United foi't'tr'ti*- f^tates, England, and France is, therefore, about fi,400: or over nine times as many as are reported to have been engaged in pelagic sealing in 1890 in Canada, and about six and a half times as many as were so engaged in 1891. It is very questionable, however, whether there ^'aimdmn invctt- is any real investment in Canada in pelagic seal- ing. The vessels are all common vessels, the guns common guns, and the boats common ' statement of furriers, Vol. II, p. 586. m;nt questionable. f 1 .' '">4\ % It ] ; f Ifil *i: 1382 THK HEALSKIX IN'DU8TRV. (.'unadiaii inv.-»i- bojits, wliich can all be used in some otlier in- incut. iiuoDtionablo. i ^ i .• i .1 ii i uustry/ excepting, perhaps, the old and uusua- worthy vessels. .■.luSltioir"'''''*' " But admitting the validity of the investment, it can be questioned whether those eniljarkiiii.' therein as a rule pay the expenses incurred oui of the sum realized on the catch. An exaiiiina. tion of the table of sealing vessels and their respective catches, as given by \,he CaiKuliaii Fishery lleports, shows that the number of seals taken by a vessel varies to a great extent. Thus in 1889 several vessels took less than thiec hundred seals each ; one schooner, with a crew of twenty-nine men, took but one hundred aiul sixty-four seals, while another, with a crew of twenty-two men, took over three thousand.- In 1890 the same variation may beseen.^ In ISSi) the average selling price of skins in Victoria was $7.65.* On the catch of one hundred and sixty-four seals, therefore, the total received would be $1,254.60, of which at least $400 would have to be paid to the hunters, leaving $854.60 to pay the entire expense of the voyage of at least four months. If the men were paid $30 a month on an average, the cost of the • T. T. Williamg, Vol. II, p. 500. - Cannilian Fisheries Report, 1689, p. 253. » Uiil., 1890, p. 183. * T. T. "Williams, Vol. II, p. 199. ' iiii^ M >K 'I . INVESTMKXTS. 2S3 cruise, outside the expense of outfitting, would Peingi. M-aiin mi 1 IP 1 •poi'iiliiticn, l»e at least $3,000. The loss, therefore, to the owner or charterer of the vessel >> juld be cer- tainly $2,000 on his investment. If one thousand seals were taken, it is also evident that there would be a very close margin on the recovery of tlio money expended, and the investor would j)robably lose or certainly not receive one per cent, on the capital invested.' It is, therefore, the possibility of a large catch which leads persons to venture their money in pelagic seal- ing, and the business is a speculation of the most uncertain character. Those engaged in the industry also find the possibility of a small Hpccuiutinp small X u |)|]) 1 V supply of skins from all sources to be a fertile "kins, field for speculation, the price per skin being advanced as the number of skins on the market diminishes. It may be said, therefore, that the interests of the pelagic sealing speculators is to deplete the herd and thereby increase prices, unmindful of the ultimate result, which is sure to be the extermination of the Alaskan fur-seal. This phase of the speculation is referred to in a letter from the British Colonial OflUce to Sir Charles Tupper, dated June 13, 1891, which reads as follows : " That as the total cessation of sealing in Bering Sea will greatly enhance the » T. T. Williams, Vol. 11, p. 501. nil |l ! \ > 1 5 i'l < :i liiHi 284 THE SEALSKIN INDUSTRY. Ii'::i Speculating on value of the produce of the coast fishen% Her sniiill supply oi , ^ ^ , . ' skins. * Majesty s Government do not anticipate that British sealers will suffer to any great extent bv exclusion from Bering Sea."' This statement also met with the views of Lord Salisbury.- The cessation of sealing and the decrease of tlie seal herd would bring about the same result, an increase in the price of sealskins. It is more profitable, therefore, for those interested in the sealing venture to have prices raised even if the seal herd is depleted, for they will thereby derive larger returns from the investment. Yerv few of the owners or part owners of the Victoria sealing fleet are dependent upon pelagic senliin; for a livelihood, so that it is not particularly to their interest to preserve the herd, 'their principal object being to get large profits, whatever may be the result. Consul Myers, in a report to the State De-art- ment, gives the occupation of seventy-one own- ers or part owners of sealing vessels hailing from the port of Victoria. Of these only fourteen may be said to be dependent on sealing, and twelve others who are employed in maritime enterprises. The remainder are composed of individuals en- Among the list may Oi't'U))iitioiis of vi'ssol owners. gaged in various pursuits. ' British Bhio Book, U. H. No. 3 (1892), C C635, p. 29. - Ibid., No. 30. p. 16. INVESTMENTS. 285 of be found several public officials, seven grocers, Occupations _ , , vessel owners. a druggist, an auctioneer, a larmer, three saloon keepers, a plastcvci , ?n insurance agent, two iron founders, three real estate agents, a carriage manufacturer, a tanner, two women, a machinist, and others of difTerent pursuits.' It is evident that the people who undertake this venture are as varied in their occupations as the purchasers of lottery tickets, and the same spirit which in- duces persons to risk their money in the latter has persuaded them to take their chances in the sealing business. ■ ■ Under the present state of affairs the increase Results of pro- of the sealing fleet, the decrease of the seal herd, and its certain extinction in a few years if pelagic sealing is continued, the insignificant invest- ment of Canada for a few years compared with the sealskin industry of the world for an indef- inite future seems infinitesimal and unworthy of notice in considering, from an economic point of view, the advisability of protecting and preserv- ing the world's chief supply of fur-seal skins. Prohibition of pelagic sealing means the employ- ment of thousands of people in England and the United States for generations, and the invest- ment of millions of capital. ^'onprohibition means the employment of a R.-suits if not i)ro- few hundred persons for four or five years, the ' Roiwrtof U. S. Consul L. W. Myers, April 29, 1892, Vol. I. p. 514. f ■ U-: , ' t. I)'' mm iio ' S' IS' ' •2SG I'f.'sull ' teet-;l. iijl pro- CLAIM OF THE UNITED STATES investment of one or two hundred thousand dol- lars in a speculative and losing business, and the final destruction of the Alaskan seal herd, a never- ending source of wealth to the world, if properly protected and preserved. if.'^ il i I it CLAIM OF THE UNITED STATES POB BAUAOES. A vt iclc renewal of V ol 31odu> m \< \. m ClnssifiiTitioii diimnKC:''. Article V of the Convention of April 18, 1892, for the renewal of the Modus Vivendi in Bering Sea, provides that " if the result of the Arbitration shall be to deny the right of British sealers to take seals within the said waters, then compen- sation shall be made by Great Britain to the United States (for itself, its citizens, and lessees) for this agreement to limit the island catch to seven thousand five hundred a season, upon the basio of the difference between this number and such larger catch as in the opinion of the Arbi- trators might have been taken without an undue diminution of the seal herds." ot Any damages to which the United States maj become entitled under this Convention must be by way of compensation, first, to the Govern- ment for the loss of revenue sustained through the diminution of the number of seals caught; ind, second, to the North American Commercial Company for the loss of profits incurred through the same cause. I 1 ■4u h PI •IMS'' ( ' ■ * i i' FOR DAMAOES. 287 I. The Claim of the Government.— By the lease Ooyei-nment claim, made in 1890, the North American Commercial Company agreed to pay to the Government for the exclusive right to catch seals in the Pribilof Islands an annual rent of $60,000, the legal tax of $2 for each seal caught, and a bonus on each seal of §7.62^, Owing to the fact that the catch during 1891 was so restricted by Treasury Regu- lations, connected with the Modus Vivendi of last year, as to amount to only 13,482 seals in- stead of the 1 00,000 seals prescribed by statute, the Secretary of the Treasury agreed on June 27, 1892,' to accept from the lessees for the year ending April 1, 1892, in lieu of the above rents and taxes, the following sums, viz : Tax on 13,482 sealg, at $2 $26, 9C4. 00 Ii«ntal(i^x $60,000 ) 8,089.20 Bonuson 12,251 goodskins ( }^^, x $7.62 A x 12.231 11, 444. 13 \100,000 / Total 46,497.33 It will be observed that in the above compu- tation,the first item, viz, the tax, remains the same as before. The second item, viz, the rental, which in the lease is $60,000, is reduced iu the proportion which the actual catch of 13,482 bears to the maximum catch of 100,000. The third, ' Letter, Vol. I, p. 521. [315] mm !*1 * li'i " \ ! U t it K^'H^ IP M lllft m If m ! Ifl W' « l]li M til im m 1 if i ml 288 r| t OoTeroment 1 if : 'i 1 H^^^p - '^ : i i. Government i|il < Ifssees, [ ^pfi ,-i il ■ ' ' • - if 1 IhIHi I ^ 1 ^ H^^ il ■ t CLAIM OF THE UNITED STATES Oorernmentciaiin. viz, the bonus per sealskin, has been reduced on the same principle, and No definite arrangement has as yet been made betweeL thd Treasury and the lessees as to the amount to be paid by the latter for their fran- chises for the current year, but if, as is almost certain, the above-mentioned arrangement will be 'continued, then the loss sustained by the Government, for which it is entitled to hidemnity from the Arbitrators, can be estimated by substi- tuting for the number 13,482 in the above com' putation, such a number as the Arbitrators shall find might safely have been taken in excess of the 7,500 provided for in the convention. Basis of compu- For example, if it is determined that 40,000 tation of damages to Government. seals might have been taken over and above the 7,500, then the Government will be entitled to an indemnity of ^226,000, obtained as follows : Tax on 40,000 seals, at $2 Rental /^ieiOOO X $60,000 V V^ioo.ooo / ^""^K^'^^^^'O ^^'*^ 24,000 122,000 Total 226,000 The Government is entitled to damages in this amount because this sum represents the excess which it would receive from the lessees if the catch, instead of being limited to 7,500 were limited to the number of seals which could be FOB DAMAGES. 289 taken without an' liiidue diminution Of the seal ^ ?"'• of compu- tation of damages to herd, provided the Arbitrators found that number ^^^erarooi*' -' to be 47,500. If they actually determine upon a different number, then the result given above, by way of illustration, must be increased or diminished accordingly. ! j. • r II. The Claim of the Leasees. — Under the Con- The lessees' claim, vention of April 18, 1892, the North American Commercial Company are entitled, as the lessees of the Government, to such an indemnity as shall compensate them for the loss of profits incurred through the forced diminution in the catch of seals. When the Arbitrators have determined the number of seals which might safely have been taken during the present season over and above the 7,500 allowed by the Convention, it will be for them to determine next the amount of profit which the lessees would probably have derived from this increased catch over and above that which will be actually realized from the catch of 7,500 prescribed by the Convention. The balance of profits so obtained will constitute the sum to which the lessees are entitled as an I indemnity under the section of the Convention i above cited. In determining the amount of profit obtained Basis of compii- . tation of lessees' from each seal, some information may be derived damages. [315] u 2 290 CLAIM OF THE UNITED STATES Basis tation damages. Determination possible catcb. Opinion George Powell. ^ fiiijiji of oompu- from a claim for damages which the lessees have of lessees ° filed in the United States Treasury Department, for the years 1890 and 1891, a copy of which is found in the Appendix.' It may be added that this claim was adjusted on June 27, 1892,' by the remission by the Treasury Department, as stated above, of the greater part of the -^ntaland bonus due for the year 1891 under the lease. As the high prices for sealskins in the London market in 1890 and 1891 still continue, the esti- mate of profits in the above-mentioned claim would probably be as correct at the present time as in the years for which they were made.' of The Arbitrators will derive aid in determining how large a catch might have safely been made during the present season by reference to tiie following affidavits, viz., those on pages 73, 93, and 111, in Vol. II of Appendix. It is important to observe also the language of Sir George Baden-Powell, one of the Com- missionars sent by Great Britain in 1891 to examine into the condition of the seal industry. In his dispatch of March 9, 1892, to Lord Salis- bury, he said : " With reference to the modm ' Nortli American Commercial Company to the Secretary of th( Treasury, April 12, 1892, Vol. I, p. 520. * Tlie Secretary of the Treasury to North American Commorvul Company, Juno 27, 1892, Vol. I, p. 521. ^ The price of a sealskin in London in 1890 rose as high as 14()», and in 1891 as high as 125*. See Alfred Fraser, Vol. II, p. 561. of Sir Badon- SiKi l> i ' -'-iai-' •'■" i|-..isa,ii m- W' # KOR DAMAGES. 291 Vivendi, I am of the opinion that the taking of Opinion of sir one season s hmited crop cannot injure -he seal Powell, herd, but although not necessary the renewal of last year's prohibition and the 7,500 limitation would be beneficial." He then suggests the arrangement afterwards adopted, viz., that 7,500 "instead of 30,000" be taken on the islands, evi- dently employing the latter number, viz., 30,000, to designate the quantity of seals which might safely be taken by the United States, which is the same number as that suggested by Sir Julian Pauncefote in his letter to Mr. Blaine of February 29, 1892.* In view of these circum stances, it is submitted that 30,000 seals is the minimum number which the Arbitrators can reasonably assign as a safe catch during the present season. ' British Blue Book, U. S. No. 8 (1882), C-6635, p. 156. Il ^^■1 PI ^m ■1 ' ' ' W I^H'' .< ''- ' '1 1 ! Si':' i j ■im .= ■«. i » ; I , ! ■ 1 J . 1 .- ' H 1 '■Mi r 00? .';(•' 1'. :< ■j^ .•',;. lj-;;:7/'i^fifi ■.hr-jji.^ r; /-■i ; ) ' M ", fT ., I-; ;.i .or- "i t:;7'.'J '' *i *•,.;< .■C *j» > .r: .si. .;i;-i; i. .iL .r. :j .Tj^^.i ■ !;;ai-. u^ r;:; I. ! ; I ) I H^ ii.i> ,. .1 ; 1. 1 1 1 t ^B i Up HI' tiiiii 1 1 |;p '-I'i.1*i^^: CONCLUSION. The United States, upon the evidence here- with submitted and referred to, claim that the following propositions of fact have been fully established : First. That the Alaskan fur-seal, begotten, Iioin, and reared on the Pribilof Islands, within the territory of the United States, is essentially a land animal, which resorts to the water only for food and to avoid the rigor of winter, and can not propagate its species or live except in a fixed home upon land of a peculiar and unusual formation, suitable climate and surroundings, a residence of several months on shore being necessary for propagation ; that it is domestic in its habits and readily controlled by man while on the land ; that it is an animal of great value to the United States and to mankind, is the principal source from which the world's supply of fur-seal skins is derived, and is the basis of an industry and commerce very important to the United States and to Great Britain ; that the only home of the Alaskan seal herd is on the Pribilof Islands ; that it resorts to no other land ; ii Chnracterintics of the Altt^kmi herd. ': " :■ 296 CONCLUSION, Increase. Ch»ractcri«tic» of that its couFse when absent from these islands is tlio Alntkan licnl. uniform and confined principally to waters adja- cent to the coast of the United States ; that it never mingles with any other herd, and if driven from these islands would probably perish ; that at all times, when in the water, the identity of each individual can be established with certainty, and that all times, whether during its short excursions from the islands in search of food or its longer winter migration, it has a fixed intention, or instinct, which induces it to return thereto. Second. That under the judicious legislation and management of the United States, this seal herd increased in numbers and in value ; that the present existence of the herd is due wholly to the care and protection exercised by the United States and by Russia, the former owner of these islands ; but that the killing of seals in the water, which is necessarily indiscriminate and wasteful, and whereby mostly female seals are taken while pregnant or nursing, has so reduced the birth-rate that this herd is now rapidly decreasing in num- bers ; that this decrease began with the increase of such pelagic sealing, and that the extermina- tion of this seal herd will certainly take place in the near future, as it already has with other herds, unless such slaughter be discontinued. Dccrcnsp. ::■ t ':'■ '{ » J ■ ;■ I t i'si i! COXCLUSTON. 297 Third. That pelagic sealing is an illegitimate, Ppinpo upbIIiik. improper, and wasteful method of killing, is barbarous and inhuman in its immense destruc- tion of the pregnant and nursing female, and of the helpless young thereby left to perish ; that it is wholly destructive of the seal property and of the industries and commerce founded upon it ; and that the only way in which these can be preserved to the world and to the governments to which they belong is by prohibiting pelagic sealing in the waters frequented by the herd. Fourth. That prior to the treaty of 1825 BeSg se"."""*'"' '" between Great Britain and Russia, and from a date as early as 1799, down to the cession to the United States in 1867, Russia prohibited the killing of seals in any of the waters of Bering Sea, and exercised such control therein as was necessary to enforce such prohibition. Fifth. That Bering Sea was not included in the Bering Se» not . _ -. . , Pacific Ocean, phrase "Pacitic Ocean as used m the treaty of 1825, and that said treaty recognized tlie rightfulness of the control exercised by Russia in Bering Sea for the protection of the seals. Sixth. That all the rights of Russia as to the protection of the Alaskan seal herd passed unimpaired, to the United States by the Treaty of 1867, and that since the cession, ihe United States have regulated by law and by govern- tJnited control. States i5 s. if; t ii' n. 298 COXCLUSIOX. Acquiescence Great Britnin. m§ United States mental supervision the killing of seals upon the Pribilof Islands, have prohibited such killing in any of the waters of Bering Sea, within the Hmits of the cession, and up to the present time have insisted upon their right to enforce such prohi- bition, but, moved by apprehensions of a dis- turbance of the peace between themselves and Great Britain by the opposition of the latter, they ceased to some extent to enforce it. of Seventh. That Great Britain acquiesced in the exercise of this right by Eussia in Bering Sea and in the continued exercise of the same right by the United States up to the year 1886. Eighth. That this right and the necessity and duty of such prohibition have never been ques- tioned, until the excessive slaughter of these animals, now complained of, was commenced by individual adventurers about the year 1885. Ninth. That the investment of these adven- turers in pelagic sealing is speculative, generally unprofitable, and, when compared with the seal- skin industry of Great Britain, France, and the United States, which is dependent upon this seal herd, very insignificant ; and that the profits, if any, resulting from pelagic sealing are out of all proportion to the destruction that it produces. Eight of control unquestioned. luTcstments cou' ti-astedi ' •■ijii ., ■ , f: 'I ', ,^H- ) '; j : , '1 i teili CONCLUSION. 299 Upon the foregoing propositions, if they shall Questions for be found to be established, the material questions for the determination of this high Tribunal would appear to be : First. Whether individuals, not subjects of the Must United states submit to destruction United States, have a right, as against that Gov- of herd? eminent and to which it must submit, to engage ill the devastation complained of, which it for- bids to its own citizens, and which must result in the speedy destruction of the entire property, industry, and interests involved in the preserva- tion of this seal herd. Second. If any such right can be discovered, siiouid not mter- national regulations which the Uiited States confidently deny, *>« made ? whether the United States and Great Britain ought not in justice to each other, in sound policy, for the common interest of mankind, and in the exer- cise of the humanity which all civilized nations accord to wild creatures, harmless and valuable, to enter into such reasonable arrangement by concurrent regulations or convention, in which tbvi3 pa^ ticipation of other Governments may be properly invited, to prevent the extermination of this seal herd, and to preserve it for themselves and for the benefit of the world. Upon the first of the questions thus stated the , ckim o." United ^ ^ States. United States Government will claim : 300 CONCLUSION. Property in and Pirst. That, in view of the facts and circum- right to protect. stances established by the evidence, it has such a property in the Alaskan seal herd as the natu- ral product of its soil, made chiefly available by its protection and expenditure, highly valuable ;: to its people and a considerable source of reve- nue, as entitles it to preserve the herd from de- str.iction, in the manner complained of, by aa employment of such reasonable force as may be necessary. Such interest as Sccoud. That, irrespecr^rs; o.> Vie distinct right justifies protection. . i • i i i > tt • i n of property m this seal herd, the United States Government has for itself, and for its people, an interest, an industry, and a commerce derived from the legitimate and proper use of the prod- uce of the seal herd on its territory, which it is entitled, upon all principles applicable to the case, to protect against wanton destruction by individuals for the sake of the small and casual profits in that way to be gained; and that no part of the high sea is, or ought to ::■? opon to individuals for the purpose of acco ajj!'-:,/ ;; j^ the destruction of national interests of sucn a ^'^ar- acter and importance. ' As trustee, right Third. That the United States, possessing, as and duty to protect. ^ they alone possess, the power of preserving and cherishing this valuable interest, are in a most jusL sense the trnstee thereof for the benefit of Ill . UK ™,,.b CONCLUSION. 301 mankind and should be permitted to discharge a« trustee, right J and duty to protect. their trust without hindrance. In respect to the second question heretofore Magic sealing stated, it will be claimed by the United States, *""* "» p'o i > e . that the extermination of this seal herd can only be prevented by the practical prohibition of pelagic sealing in all the waters to which it ' ' resorts. w ir.,' r , .1 «..'. The United States Government defers argu- Argument de. ferred, ment in support of the propositions above an- nounced until a later stage of these proceedings. In respect to the jurisdiction conferred by Tribunal may . sanction conduct of the treaty, it conceives it to be within the prov- United states, or r^i,- I.- u rp 'u ^ i. • t, -^ j prescribe regulations. ince of this high Iribunal to sanction by its de- cision any course of executive conduct in respect to the subject in dispute, which either nation would,in thejudgmentjof this Tribunal, be deemed justified in adopting, under the circumstances of the case ; or to prescribe for the high contracting parties any agreement or regulations in respect to it, which in equity, justice, humanity, and en- lightened policy the case appears to require. In conc]uj;ion the Ur.ited States invoke the Prayer for deeis- judgment of thi^ high Tribunal to the effect : First. That prior and up to the time of the Russia pxcrciscd exclusive right in cession of Alaska to the United States Russia Bering Sea. i f ! ^ ii S 302 C'ON'CLUSTOy, Oreat Britain as ■OQted. Bering Soa not " Piiciac Ocean." Buuia exercised asserted aud exercised an exclusive right to the eTslusire right in , , Bering Sea. Seal fisheries in the waters of Bering Sea, and also asserted and exercised throughout that sea the right to prevent by the employment, when necessary, of reasonable force any invasion of such exclusive right. That Great Britain, not having at any time resisted or objected to such assertions of exclu- sive right, or to such exercise of power, is to be deemed as having recognized and assented to the same. That the body of water now known as Bering Sea was not included in the phrase " Pacific Ocean," as used in the treaty of 1825 between Great Britain and Bussia, and that after said treaty, and down to the time of the cession to the United States, Kussia continued to assert the same exclusive rights and to exercise the same ex- clusive power and authority as above mentioned. That all the rights of Eussia in respect to the seal fisheries in Bering Sea east of the water boundary established by the treaty of March 30, 1867, between that nation and the United States, and all the power and authority possessed and asserted by Eussia to protect said rights passed unimpaired to the United States under the treatv last mentioned. Bights of Bussia passed to United Htatcs. II 111 -i'-' ill'' CONCLUSION. 305 That the United States have such a property United state* hare property in and right and interest in the Alaskan seal herd as to justify to protect herd, the employment by that nation, upon the high sea8, of such means as are reasonably necessary to prevent the destruction of such herd, and to secure the possession and benefit of the same to the United States : and that all the acts and pro- ceedings of the United States done and had for the purpose of protecting such property and interest were justifiable and stand justified : and thatcompensation should, in pursuance of Article Damages. V of the Convention of April 18, 1892, be made to the United States by Great Britain by the payment by the latter of the aggregate sum hereinbefore stated as the amount of the losses of the United States, or such other sum as may he deemed by this high Tribunal to be just ; or, Second. That should it be considered that the Or Great Britain TT ■ T o t 1 P 11 • and United State* United States have not the fuU^property or prop- should concur in 111 "1 1 T regulations. erty mterest asserted by them, it be then de- clared and decreed to be the international duty of Great Britain to concur with the United States in the adoption and enforcement against the citi- zens of either nation of such regulations, to be designed and prescribed by this high Tribunal, as will effectually prohibit and prevent the cap- .ture, anywhere upon the high seas, of any seals helonging to the said herd. JOHN W. FOSTER, Agent of the United States. [315] X ii'l;: m Mmm ::•: ,.:v:i.l',:»tfl ■ '\ r. i^ I -1 * • ;r>i '\ I ii ^r, t ' In ^r .-:'•• BE] [315] 'A REPORTS OF f i| - li I* I : u.t 808 Beport. Sources of infof' mation. Meetings of Com' mission. EEP0RT8 OP BRRINa 8RA COMMISSION. And we, in accordance wib the above nrrvce- merit, having been duly commissioned by our respective Governments and having communi- cated to each other our respective powers, Couiul in good and due form, have agreed to the follow- ing report : 1. The joint investigation has been carried out by us, and we have utilized all sources of infor- mation available. 2. The several breeding places on the Pribilof Islands have been examined, and the general management and method for taking the seals upon the islands have been investigated. 3. In regard to the distribution and habits of the fur-seal when seen at sea, information based on the observations recorded by the cruisers of the United States and Great Britain, engaged in carrying out the 7nodus vivendi of 1891, has been exchanged for the purpose of enabling general conclusions to be arrived at on these points. 4. Meetings of the Joint Commission were held in Washington beginning on Monday, February 8, 1892, and continuing until Friday, March 4, 1892. As a result of these meetings we find ourselves in accord on the following propositions : il^4?i !" 1 MM M !H 7i It* JOINT REPORT. 309 Conulusions reached. 5. We are in thorough agreement that for in- Duty to protect seal herd. (Iiistrial as W(!U as for other obvious reasons it is iucumbout upon all nations, and particularly upon those having direct commercial interests in fur- seals, to provide for their proper protection and preservation. (). Our jointand several investigations haveled us to certain conclusions, in the first place, in regard to the facts of seal life, including both the existing conditions and their causes ; and in the second place, in regard to such remedies as may be necessary to secure the fur-seal against depletion or commercial extermination. 7. We find that since the Alaska purchase a Decreaso of seal herd. marked diminution ni the number of seals on and habitually resorting to the Pribilof Islands has taken place ; that it has been cumulative in effect, and that it is the result of excessive kill- ing by man. 8. Finding that considerable difference of opin- Further joint re port impossible. ion exists on certain fundamental propositions, which renders it impossible, in a satisfactory manner, to express our views in a joint report, we have agreed that we can most conveniently state our respective conclusions on ther'^ matters in the "several reports" which it is pi\> .lued may be submitted to our respective Governments. JliJV i I. ' • ': ': m 310 REPORTS OF BERINO SEA COMMISSION. Further joint re- Signed in duplicate at the city oi' Washiii"- port iinpoMible. ° ton, this 4th day of March, 1892. Thomas Corwin Mendenhall. Clinton Hart Merriam. George Smyth Baden-Powell. George Mercer Dawson. Joseph Stanley Brown, Ashley Anthony Froude, Joint Secretaries. liiil rl REPORT OF THE UNITED STATES BERING SEA COMMISSIONERS. #i| The Honorable Secuetary of State: — Sir : In your letter of July 10, 1891, received Appointment, by us in San Francisco on the ICtli, after referring to the diplomatic controversy pending between the United States and Great Britain in respect to the killing of fur-seals by British sub- jects and vessels, to the c? uses whicli led up to this controversy, and to some of the propositions which had at that date been mutually agreed upon, you inform us that the President has been pleased to appoint us to proceed to the Pribilof Islands and to make certain investigations of the facts relative to seal life with a view to ascer- taining what permanent measures are necessary for the preservation of the fur-seal in Bering Sea and the North Pacific Ocean. You further inform us that in accordance with Appoiutuuni of ... Britisli Coimiiis- tue provisions of the fourth clause of the modus sioners. virendi agreed upon at Washington on the 15th of June, 181)1, the Queen had appointed Sir George Baden Powell, M.P., and Professor Daw- 1) r- BE,-' "5 n^ r f •t VI t-ti U 312 REPORTS OF BERING SEA COMMISSION. |i Object of mission. Provisions agreement. Appointment of soii^ to visit the Pribilof Islands forthe same pur- British Commig- ■, .. .iii-i'ir^ Bioners. pose and as representuig the British «jroveriinient, Com- After explaining the use to which this informa- tion may in the end be put, namely, that it may be laid before arbitrators who would probably be selected to consider and adjust the differences he- tween the two Governments, you add that the President proposed, in reference to the appoint- ment of a Joint Commission, the agreement for which is to be made contemporaneously with the terms of arbitration, the following term'- of agree- ment: of " Each Government shall appoint two Commis- sioners to investigate conjointly with the Com- missioners of the other Government all tl e facts having relation to seal life in Bering Sea and the measures necessary for its proper protection and preservation. The four Commissioners shall, so far as they may be able to agree, make a joint re- port to each of i-he two Governments, and ihey shall also report, either jointly or severally, to each Government on any points upon which they may be unable to agree. These reports shall not be made public until they shall be submitted to the Arbitrators or it shall appear thi' t the contin- gency of their being used by the Arbitrators can not arise." ' Dr. George M. Dawson, Asst. Director, Geological .Survey o; Canada. fcjj 1 Ull fjjpll |;Q|| : H ■hh| ;al|i Wi ' TT" Sea. REPORT OF AMERICAN COMMISSIONERS, 313 And fiu'tliv.r, that while it was desirable that Conduct of in- 111 1 c 1 1 vustigation. our iiivestigation should, even beiore the conclu- sion of .1 formal agreement as to the duties and functions of a Joint Commission, be made con- currently with those of the British agents, yet until the agreement for the Commission shall have been concluded we were not authorized to discuss with them the subject of a joint report or to make auyinterchange of views on the subject of perma- iient regulations for the preservation of the seal. In accordance with these instructions, we at _ Proceed to Boring once proceeded to Bering Sea on the Fish Commission steamer Albatross, Lieutenant-Com- mander Tanner, which had been placed at our disposal for the purpose. We met the British Commissioners first at Unalaska, and afterwards at the Pribilof Islands. Several of the principal rookeries were visited in their company and our observations were made under similar circumstances and conditions. In addition to noting such facts as were clearly sources of infor- established by the physical aspect of the rook- eries themselves we sought information and obtairod much of value frori those who have resided long upt)n the isl nds, including both Aleuts and whites, all engaged exclusively in the sealing industry. At San Francisco and at iialaska on our way to the Pribilof Islands, Joint tions. investiga- mation. I I ( I III - 1, ft «• , mmm 314 EEPORTS OF BERINa SEA COMMISSION, mation. Return. Formal ment. appoint' Sources of infor- and at Port Townsend, Tacoma, and elsewhere on our return, we availed ourselves of the testi- mony of any person whose connection with this industry was such as to render his statements of real value. We returned to Washington before the 1st oi October and were ready at any time after that to take up the discussion of the subject with the representatives of Her Majesty's Government. The formal agreement to the creation of a Joint Commission had not been entered into, however, and it was not until the 4th of Feb- ruary, 1892, that v.e were form.ally designated as Commissioners on the part of the Government of the Uni .ed States. Arrangement as to We immediately called upon Sir George meetings of Joint Commission. Baden-PowcU and Dr. George M. Dawson, who had been similarly designated by the British Government, and who had come to Washington for the Conference, informing them of our readi- ness to begin the joint consideration and discus- sion of the subject at such a time as might suit their convenience. We also stated that as it was our understanding that the official existence of the Joint Commission depended upon the mutual agreement of the two Governments to the articles of arbitration, and as the articles had not yet been signed, only an informal conference if ^ I REPORT OF AMERICAN COMAfI SIONERS. 315 could be entered upon. It was believed, how- Arrangement as to meetings of Joint ever, that quite as rapid progress could be made Commission, in this way as in any other. To this proposition the Commissioners on the part of Great Britain offered no objection at the time, but on the following day they informed as that they were unable to enter into a conference which was informal in its nature. Desiring to remove every obstacle in the way Meetings of Joint ^ _ _ Commission. of the immediate consideration of this subject, the question of the formality of the Conference w'ts waived on our side and the formal meetings of the Commissioners in Joint Conference began on the afternoon of February 11, at the Depart- ment of State. Mr. Joseph Stanley-Brown was selected as the Meetings without secretary of the Joint Commission on the part of records. the United States, and ^' . Ashley Froude on the part of Great Britain, m determining the nature of the Conference it was n'.ieed that in order to allow of the freest possible discussion and presentation of views, no formal record of the proceedings should be kept and that none but the four members of the Commission should be present during its deliberations. In further at- tempt to remove all restrictions upon the fullest expression of opinions during the Conference, it was agreed that in our several reports no refer- held formal j*te m'- -I':} ■\ f P' mm II ; 1 u J ' if I ) . lirli yU|jjjkrt| ii " '^ III wm 1^ 1 1 316 KRPORTS OF BERIXa SEA COMMISSION. Meetings held ence to persons, as related to views or opinions without formal r " records. Meetings tinued. Disngrecmcnt. Article treaty. IX Application Article IX. expressed by members of the Commission dur- ing the Conference, should be made. )n- Meetings of the Joint Commission were held almost daily from the 11th of February until the 4th of March, on which day the joint report was signed and the Conference adjourned sine die. Early in the progress of the Conference it be- came evident that there were wide differences of opinion, not only as to conclusions, but also as to facts. It seems proper here to refer briefly to the attitude of the Commissioners on the part of the United States or to the standpoint from which they endeavoured to consider the questions involved. o^' The instructions under which we acted are contained in Article IX of the Arbitration Con- vention, and, as far as relates to the nature of the inquiry, are as follows ; " Each Government shall appoint two Com- missioners to investigate conjointly with the Commissioners of the other Government all the facts having relation to seal life in Bering Sea, and the measures necessary for its proper pro- tection and preservation." This sentence appears to be simple in its char- acter and entirely clear as to its meaning. The measures to be recommended were such as in or REPORT OP AlIERICAX COAf.MlSSIONERS. 317 our judgment were necessary and sufficient to Application of . . „ Article IX. secure the proper protection and preservation of seal life. With questions of international rights, treaty provisions, commercial interests, or polit- ical relations we had nothing to do. It was our opinion that the considerations of the Joint Commission ought to have been restricted to this phase of the question, so clearly put forth in the agreement under which the Commission was organized, and so evidently the original intent of both Governments when the investiga- tion was in contemplation. Had the preservation and perpetuation of seal Result of sud. • -I 1 -, , applicnt; jn. life alone been considered, as was urged by us, there is little doubt that the joint report would have been of a much more satisfactory nature, and that it would have included much more than a mere reiteration of the now universally admitted fact that the number of seals on and frequenting the Pribilof Islands is now less than in former years, and that the hand of man is responsible for this diminution. That our own view of the nature of the task Article ix inter- preted differently by before us was not shared by our colleagues rep- British Commis- sioners, resenting the other side was soon manifest, and it became clear that no sort of an agreement siifSciently comprehensive to be wofthy of con- sideration and at the same time definite enough 1 > I! : ! »* t^^ "^ ,■ ' ' \ i j^ ^mm n M r i i:' i ii 318 Article IX inter- preted differently by Britisli Commis- sioners. Disagreement as to application. Eeport of Joint Commission , Necessity of separate report. HEPORTS OF BRRINTr SK.V COMMISSIOX. to allow its consequences to be thought out, could be reached by the Joint Commission unless we were willing to surrender absolutely our opinions as to the effect of pelagic sealing on the life of the seal herd, which opinions were founded upon a careful and impartial study of the whole question, involving the results of our own observations and those of many others. Under such circumstances the only course open to us was to decline to accede to any prop- osition which failed to offer a reasonable chance for the preservation and protection of seal life, or which, although apparently looking in the right direction, was, by reason of the vagueness and ambiguity of its terms, incapable of definite interpretation and generally uncertain as to meaning. In obedience to the requirements of the Arbitration Convention that " the four Com- missioners shall, so far as they may be able to agree, make a joint report to each of the two Governments," the final output of the Joint Commission assumed the form of the joint report submitted on March 4, it being found impossible in the end for the Commissioners to agree upon more than a single general proposition relating to the decadence of seal life on the Pribilof Islands. It therefore becomes necessary, in accordance with the further provision of said { HI Jil ili'fil BEPORT OF AMERICAN COMMISSIONERS. 81!) Convention, for us to submit in this, our separate „^;jfj*^rt°^ report, a tolerably full discussion of the whole (lupstion, as we view it from the standpoint re- ferred to above as being the only method of treatment which insures entire independence of thought or permits a logical interpretation of the facts. . . ■ •■ .. ^.- In order that this discussion may be more readily understood it is thcuglit desirable to pre- face it by a brief account of the natural history of the fur-seal. THE BEHING SEA FUR-SEAL, ■'i/v ^ai'.u.-..- Callovhinns nrsinus (Linnaeus). The carnivorous mammals are divided by naturalists mio two principal groups, one com- prising the terrestrial wolves, cats, weasels, and bears ; the other, the amphibious eared-seals and walruses, and the aquatic seals. The second divi- sion (sub-order Pinnipedia) is in turn sub-divided into three groups called families, namely, the eared -seals, comprising the sea-lions and sea- bears, or fur-seals {Otariidce)^ the walruses {Odobenidce), and the true seals [Phocidce). The fur-seals and sea-lions form the connecting link between the terrestrial carnivores and the true seals, as recognized by all naturalists. The dis- tinguished director of the British Museum, Pro- [316] X Divisions maminhls. of 5 V tjir -''HI! ■\ -■ 1 ^fi: 320 REPORTS OF BERlNa SEA COMMISSION. ■ I'rofoBior'Fiowop. fessoF Flower, says : " The fur-seals or sea-bears ...f/»'f . form a transition from the Fissiped [terrestrial] Carnivora to the seals . . . When on land the hind feet are turned forward under the body, and aid in supporting and mov- ing the trunk as in ordinary mammals / . , As might be inferred from their power of walk- ing on all fours, they spend more of their time on shore, and range inland to greater distances, than the true seals, especially at the breeding time, though they are always obliged to return to the water to seek their food. They are gre- garious and polygamous, and the males are usually much larger than the females."* He states further : " The resemblance between the skull !-. . and other parts of the body of the fur-seals and the Ursoid [/.. ,n,^ .. ,;,.r.,... ,,:i!\- • ,, 10. The act of nursing is performed on land, never in the water. It is necessary, therefore, for the cows to remain at the islands until the young are weaned, which is not until they are Cow suckles her four or fivc months old. Each mother knows her owii pup and will not permit any other to nurse. This is the reason so many thousand pups starve to death on the rookeries when their mothers are killed at sea. We have repeatedly seen nursing cows come out of the water and usearch for theiv youngj^often traveling consider- able distances and visiting group after group of pups before finding their own. On reaching an assemblage of pups, some of which are awake and others asleep, she rapidly moves about among them, sniffing at each, and then gallops off to the next. Those that are awake advance toward her .with the evident purpose of nursing, but she :-|Mj. ihing an awake REPOaX OF AMERICAN COMMIS8iONER«. 327 repels them with a snarl and passes on. When Cow suckles her own pup only. she finds her own she fondles it a moment, turns partly over on her side so as to present her ,,, *,. • i, f nipples, and it promptly begins to suck. In one instance we saw a mother carry her pup back a distance of fifteen met,ers (fifty feet) before allowing it to nurse. It is said that the cows sometimes recognize their young by their cry, a sort of bleat. ' 11. Soon after birth the pups move away from 'Podding.' the harems and huddle together in small groups, called ' pods,' along the borders of the breeding rookeries aixl at some distance from the water. The small groups gradually unite to form larger groups, which move slowly down to the water's edge. V/hen six or eight weeks old the pups begin to learn to swim. Not only are the young Aquatic Wrth not born at sea, but if soon after birth they are washed into the sea they are drowned. 12. The fur-seal is polygamous, and the male Comparative IS at least nve times as large as tne female. As a rule each male serves aboi t fifteen or twenty ^'^ '"•«"• females, but in some cases as many as fifty or more. ■ , 13. The act of copulation takes place on land, Copulation, and lasts from five to ten minutes. Most of the cows are served by the middle of July, or soon im- Size m ■it.- :/.- .' t if fl'liiifiiii !•: m ' 'Copultition. Fertilization young C'Ow». 1!; 828 REPORTS OF BERING SEA COMMISSION. after the birth of their pups. They then: take the water, and come and go for food while nursing. of 14. Many young bulls succeed in securing a few cows behind or away from the bleeding liarems, particularly late in the season (after the middle of July, at which time the regular harems begin to break up). It is almost certain that many, if not most, of the young cows are served for the first time by these young bulls, either on the hauling grounds or along the water •front, il'f--^ I-: v-.;jvvo: :;/,.,;, .;.j: H.'/ ... These bulls may be distinguished at a glance from those on the regular harems by the circum- stance that they are fat and in excellent condi- tion, while those that have fasted for three months on the breeding rookeries are much • ■• ' ' emaciated and exhausted. The young bulls, even , when they have succeeded in capturing a number of cows, can be driven from their stands './v...... yfith. little difficulty, while (as is well known) the old bulls on the harems will die in their tracks rather than leave. Age of puberty in ' 15. The COWS are bclicved to take the bull first when two years old, and deliver their first pup when three years old. Age at which' IB. BuUs first take Stands on the breeding males go in breeding i . , • i i t) /• grounds. rookeries when six or seven years old. Detore cows. BEPORT OF AMERICAN COMMISSIONERS. ^29 this they are not powerful enough to fight the Age at winch . males go in breeding Older bulls for positions on the harems. ' groundg. sions. Food. Departure land »epart ads. 17. Cows when nursing regularly travel long Feeding distances to feed. They are frequently found one hundred or one hundred and fifty miles from the islands, and sometimes at greater distances. 18. The food of the fur-seal consists of fish, squids, crustaceans, and probably other forms of marine life also. (See Appendix E.) .jj.,.;.! 19. The great majority of cows, pups, and such of the breeding bulls as have not already gone, leave the- islands about the middle of November, the date varying considerably with the season. 20. Part of the non-breeding male seals (hol- luschickie), together with a few old bulls, remain until January, and in rare instances until Feb- ruary, or even later. , ;, 21. The fur-seal as a species is present at. the Pribilof Islands eight or nine months of the year, or from two-thirds to three-fourths of the time, and in mild winters sometimes during the entire year. The breeding bulls arrive earliest ancl remain continuously on the islands about four months ; the breeding cows remain about six months, and part of the non-breeding male seals about eight or nine months, and sometimes throughout the entire year. excur- from I Time fur-seals re- main on islands. h' ' tli *»i^ t ^^*iHl'^tt (11 liiitlf^l 330 REPORTS OF UERING SEA COMMISSION. I Lon^h of time of 22. Duriiig the northward migration, as has been stated, the last of the body or herd of fur- seals leave the North Pacific and enter Bering . . . • ^ '-', Sea in the latter part of June. A few scattered individuals, however, are seen during the sum- mer at various points along the Northwest Coast ; these are probably seals that were so badly wounded by pelagic sealers that th.^y could not travel w^ith the rest of the herd " » the Pribilof Accidental births Islands. It has been alleged that young fur- on com*. , ,, , ° JO seals have been found in early summer on several occasions along the coasts of Britisli Columbia and southeastern Alaska. While no authentic case of the kind has come to our notice, it would be expected from the large num- ber of cows that are wounded each winter and spring along these coasts and are thereby ren- dered unable to reach the breeding rookeries and must perforce give birth to their young— perhaps prematurely — wherever they may be at the time. Reasons that 23. The rcasou the Northern fur-seal inhabits Pribilof Islands are ,._.,.,„,- , . , « ,, , the home of the fur- the rriDiloi Islauds to the exclusion of all other islands and coasts is that it here finds the climatic and physical conditions necessary to its life vants. This species requires a uniformly low temperature and overcast sky and a foggy REPORT OF AMERICAX COMMISSIONERS. S31 atmosphere to prevent the sun's rays from injur- Reasons that . Pribilof Islands are ing it (luring tlie long summer season when it tue home of the fur- . , seals. ( remains upon the rookeries. It requires also rocky beaches on which to bring forth its young. No islands to the northward or southward of the Pribilof Islands, with the possible exception of limited areas on the Aleutian chain, are known to possess the requisite combination of climate and physical conditions. All statements to the effect that fur-seals of Alaskan fur-seals do not breed on coast this species formerly bred on the coasts and of California, islands of California and Mexico are erroneous, the seals remaining there belonging to widely different species. , , , ;.,,,-,■. In the general discussion of the question sub- Subdivisions of report. mitted to the Commission it will be convenient to consider the subject under three heads, ramely : ■ • •■ • ■ > :.>,•..> Conditions of seal life in the region under . consideration at the present time. Ccnises, the operation of which lead to existing conditions. Remedies, which if applied would result in .. , the restoration of seal life to its normal ' .■'."" I state, and to its continued preservation in . that state. .1 4 9 il r^? Hfunm ■''•n 'l,i)iHK 332 BEPOKTS OF BERING SEA COMMISSION. tlf rm tfrfs'iT I'v ? CONDITIONS. ii Vresent condition' Sources of infof' miition. In (considering the condition of seal life on the Pribilof Islands at the present time, it is impor- tant to inquire, iirst, is there any marked decrease in the number of seals frequenting th'^se islands during the past few years ; and, second, if such decrease has taken place, among what class or classes of seals is it most notable ? Although an affirmative answer to the first question is generally agreed to, it is worth while to consider for a moment the evidence on which such an opinion is founded, especially as it is all more or less related to questions concerning the amc lit of decrease and the period over which it extended, about which considerable differences of opinion are known to exist. This evidence easily resolves itself into two kinds : (1) the evidence of eyewitnesses or human testimony in which observations of several individuals cover the last quarter of a century ; and (2) what may be called the internal evidence of the rookeries themselves as they appear to-day. • "'• of It is proper to remark that in our judgment agg'^JuTed.* '"'^' "■ most, if not all, of the published estimates of the number of seals hitherto found on these islands are exaggerated. From the very nature of the case an estimate of numbers is extremely diffi- Estimates REPORT OF AMERICAN COMMISSIONERS; 3'M Decrease on North- east Point Rookery. cnlt. In short, one can say with much more Estimates of number of scali e»-« certainty that there are fewer seals here now aggerateci. than five years ago than he could attempt a com- parison by means of an actual or rather an assumed census. . . . ... . . r • I i'.V I..; '■> .■'^ (l) EVIDENCE OF EYEWITNESSES, 'f -u'.' The universal testimony of all who saw the rookeries a few years ago, and again in 1890 or in 1891, is that they have suffered a great and alarming decrease within the past six or seven years. In the case of Northeast Point Eookery, the largest single rookery known, and one from the hauling grounds of which about twenty to thirty-five thousand non-breeding male fur- seals were taken annually for twenty years, the. evidence is unequivocal and . conclusive. This great rookery is several miles in length, and its former boundaries can be distinctly seen, as will be described in detail presently. (See also accompanying photograph.) The area occupied by breeding seals in 1891 was a narrow strip along shore, with a small area in the rear used as ' hauling grounds ' ; while the zone of former occupancy varies from one hundi'ed to five visit of Commis hundred feet in width. Mr. C. IT. T(twnsend, resident naturalist of the United States Eish Commission steamer Albatross, visited Northeast Bioncrs. i Ir S;.. ■'■:■• 334 REPORTS OF BERING SEA COMMI8SIOX. :ii^=^ ' i : I I' : ^ ' I' Viiit. of Comrais- Point Eookery in company with the British and 1 >!4r United States Bering Sea Commissioners, August 5, 1891, and stated that when he visited tlie same rookery in the latter part of June, 1885, the broad zone here referred to " was covered solid with seals " Lieut. John C. Cantwell, of the Eevenue Steamer Hush, Dr. H. H. Mclntyre, Capt. Daniel Webster, Mr. J. C. Kedpath, and Mr. George E. Tingel, corroborate Mr. Townsend's statement that the yellow-grass zone, or zone of former occupancy, was denselv covered with seals in 1885. The testimony of natives and others in regard to other rookeries agrees very well with the above, or places the time of abandonment at a still later date, some of the natives maintaining that the yellow-grass zone was covered with seals as recently as 1887. It is evident, therefore, that the extensive area here described as the yellow- grass zone, behind the narrow strip at present occupied by the seals on the various rookeries, was thickly covered not longer ago than 1885 or 1886, and in some cases perhaps as late as 1887. In our examination of many persons who had Native testimony Bi to decrease. The great decrease. long resided upon the islands, there was univer- sal agreement thatthere had been a great decrease in the number of seals within a few years. Although the testimony gathered by us on this REPORT OF AMERICAN COMMISSIONERS. 333 and other points was not given under oath, its Tho great dccronso. value,in oarjudgmentjs not in the least lessened by that fact. In nearly all cases the witnesses were examined separately. No ' leading ques- tions ' were asked, and especial care was taken to prevent the examination from indicating in anyway what was desired to be proved. Full notes of answers and statements were made, and in all cases of special importance the question was repeated and the answer read in order to be sure that the opinion of the witness had been properly given. In short, the investigation was conducted precisely as it would have been had the question been one of scientific rather than diplomatic importance. A few extracts from the evidence relating to diminution in numbers will indicate its general character. Anton Melovedoff, native of the island of St. Paul. His father had been chief of the natives on the island, and he had served in the same capacity until recently, when he had been deposed because, as he himself expressed it, he was "work- ing in the interests of the Company rather than that of the Government." In his opinion the number of seals had greatly diminished during the last few years. J)r,A. A. Lutz, physician on the island of St. [315] z Extracts from tc* timony taken. h ■'! >l : ' .-■'4,?, 7^.1. „ if* i mm _ t iii- ■•1 i 336 REPORTS OF BERING SEA COMltlSSION. ExtrBcto from to«- Georj:^e since 1884: "There lias been a great Jimotiv tiikon. ^ • t r u falling oil duruig the past few years. Mr. Einnwns, collector of the j)ort at Una- laska : gets his information from the olficprs and men of the schooners and other craft engaj^ed in pelagic sealing ; thinks that if the present state of affairs is allowed to continue the herd of seals will soon be destroyed. NicoU Kruknfy bom in Sitka, came to the island of St. Paul two or three years before the time of the Alaska purchase ; is now second chief on the island ; speaks English very well. Seals began to decrease in number about seven years ago and have diminished rapidly since. It is his opinion that not more than one-fourth as many seals are now on the rookeries as were to be found ten years ago. Kerrick Artomanoff, aged sixty-seven years ; born in St. Paul ; his father was a sealer under the Russian rdgime, as was he also up to the time of the Alaska purchase. In all he has been em- ployed in seal killing for forty-five years. His testimony is interpreted by Nicoli, the second chief. The number of seals has diminished very greatly witliin the last few years. He has seen the rookeries so full that a cow could not get ashore in time for the birth of her young, in m ■■'■ '■ i 'i ]|HH jRI^I %i. ' . I ' lA ili. :!fii sil"i '! ''\,\ ij ■ ' ■ "^w l!li i ■ ' 1^ m e to the efore the ond chief .1. Seals ^en years It is his I as many ere to be KKPORT OF A:\rEBICAN COinriSSIONERS. which case tlie puj) was born in the water and Extnuu tinioiiy tiikc drowned. Mr J. C. RedjKith , resident agent of the North American Commercial Company, and previously affent of the Alaska Commercial Company dur- ing a period of fifteen years. Mr. Kt^dpath has enjoyed unusual opportuni- ties for tlie intelligent study of seal life. That he has made good use of them may be attributed to the fact that the best interests of the compa- nies which he has represented on the islands demanded that no one should be better informed than lie, especially in the matter of increase or decrease in tlie number of killable seals and the causes to which changes are to be attributed. He said : " Not more than one-half as many females are on the rookeries this year as were to be found there ten years ago. There is the same loss in the hollusehikie, about." Captain lFe?>.9^er, agent of the North American Comraercial Company on the island of St. George, has been on the seal islands for twenty- two years ; was a whaler and sealer in these waters before coming to the islands ; has been in the employ of the sealing companies from the beginning of the management by the United States. Captain Webster had a wide experience iis a sealer in other parts of the world before [315] Z 2 ;}37 frDin ti' II. 338 REPORTS OF DERINO HEA COMMISSION. Difllcultj of Ifs sre.i to obtain quotii. ExiniiiH from ivn- entering the service of the Alaska Sealinc timony taken. " Company. Few persons have as much knowl- edge of seals and the sealing industry as he, His statement was that the falling off last year at St. George was very great, and this year the number is considerably less than last. " There are not over one-third as many seals on this island as were here a few years ago." Evidence of this character might be multiplied to almost any extent were it thought necessary. It is well known that during the last few years the operating Company had experienced difficulty in finding a sufficient number of high-class skins to fill the quota permitted by the Government, and that finally that quota was greatly reduced by order of the representatives of the Govern- Undi^i.utid (ii- ment on the islands. It may therefore beaccepled as an undisputed fact that the seal population of the islands is greatly below what it was for many years and there is little doubt that if the causes which brought about this reduction are permitted to continue in operation, commercial extinctionof the herd within a few years will be the inevi- table result. But, fortunately, we are not obliged to accept this conclusion solely on the basis of such testi- mony as that given above, reliable and convinc- crease Ii .' - t ■ , ■ i 1- ! mA, REPORT OF AMERICAN COMMISSIONERS. 339 ineas it is believed to be. The evidence offered UndiKputcd do- by the physical condition of the rookeries them- selves would alone be sufficient to satisfy any- one that at some previous time the seal popula- tion had been vastly greater than at present. (it) intrinsic evidence AFFORDED BY THE ROOKERIES THEMSELVES. Behind each rookery is a more or less sharply Thr >. iio«-nia>.. zoiii'. defined strip or belt varying from one hundred to five hundred feet in width, which differs conspic- \iously In appearance from the ground 6n either side. It is covered with a short and rather fine grass of a yellowish-green color {Glyceria angus- tata), more or less mixed with tufts of a coarser species [Deschampsia ccespitosa), both differing strikingly from the tall and rank rye grass {Elymus mollis) usually growing immediately behind. In many places the ground between the tussocks and hummocks of grass is covered with a thin layer of felting, composed of the shed hairs of the seals matted down and mixed with excrement, urine, and surface soil. This felting could not have been formed otherwise than bv the movements of seals back and forth over the ground for many years. In the same zone the rough upper surfaces and angular projection of Wurn rocks. the rocks have been rounded off and polished by mn ,1 3i ■•ilti' 340 Bi. li ;;r!i.«> zono. * C'oiii|i!iviiliv(' i.if ai't".i>. roiikcrio-i. BEPORTS OF JiEEINa SEA COMMiSSION. the former movements of the seals. Tliis pol- ishing, though now partly iiidden by weathering and the growth of lichens, is still conspicuous, and can be attributed to no other cause than to the movemenLS of the seals on the rot)keries during a long period of years. The fact that the sides of these same rocks remain in their oi iginal rough condition is sufficient proof that the smooth upper surfaces could not have been pro- duced by sand-polish. In some of the rookeries another zone raay l)e discerned behind the yellow-grass zone, indi- cating tlie extent ot the rookery at some still more remote period. The grass on this area is bunch grass [Deschampsia ccespitom) ; the lichen growthontherocks is heavier than on the one just described, and the polished surfaces of the rocks show more weathering. This latter zone abuts against the more elevated turf bearing the char- acteristic tall grass of the islands, and marks thi period of maximum abundance of the seals. Tiie aggregate size of the areas formerly occu- pied is at least four times as great as that of the present rookeries. In short, the characteristics of a regiuu long occu i )ied by seals are so marked as to he i iimis- takf ole, and while it is possible to explain the existence of a small part of the unoccupied s. " I, EErCT'T OF AMERICAN COMMISSIONERS. :i4i I'round on the supposition that the seals ' rove ' Doercnsc shown i)j " _ ^ _ rookeries. more or less, occupying this field at one time and that at another, no one who studies the islands as they now are can fail to see that the space now covered by seals is only a fringe compared \yith the areas that were once alive with them. Having answered the first of the two queries Decrease ;.•< in female port ioii of relating to conditions of seal life at the present herd, time, the second becomes important. It is, Has the decrease in numbers been confined to any particular class of seals, or is it most notable in any class or classes ? In answer to this it is our opinion that the diminution in numbers began and continues to be most notable in female seals. It is quite likely, in fact almost cei'tain, that Difficult to notier "^ decrease in femnles. the decrease would not be first discovered or remarked in this class. The Government officers and Company's agents on the islands are principally concerned with the ' holluschickie,' in whicli class the kill- able seals are foinid, and the first signs of deca- dence would probably appear in the fact that more seals had to be driven in order to obtain a given number of merchantable skins. •': I ■ti^'-'i Life rr iy 342 MVGiHTS OF BEHINQ SEA COMMISSION. DiffuiuJty in <>fc- taining quota aift«r .1887. MiBtaking tffect for cavLse. ■i\ For eighteen years after the Alaska purchtuse ab»Si«»t one hunc red thousand Lachelor seals were aeci»rt*!d ar inually without difficulty and without impai'ni.ig the productiveness of the breeding rookerie*, bwt the decrease brought about by pelagic se-.i.iing rr^ade it extremely difficult tu obtain this num-rat^ atfter 1887, and the standard of size was lowt^ied several times in order to obtain the full quota. In 1890 the rookeries and haulint^ ground hat»*5Dt that the Treasury agent in charge ordered the kihJitfig to stop on Julj 20, at which date only twenty--- -^-^ thousand seals had been secured, and it ma)- .. .dded that this numl>er was taken only after the greatest exer- tion on the part of the Company's agents. The percentage of seals of killable size was so small (fifteen to twenty percent) compared with the percentage of yearlings, that it is not sur- prising that the Treasury agents on the islands were impressed with the sc-arcity of younj,' males, and being new men, inexjH'rifUced in matters relating to seal life, were easily led to mistake ejfect for cause and attriVjuted tl' decrease to the killing <^f too many you ji^^ males at the islands in pr'viouH years, instead of ti> the destruction of the mothers and y<»nng by EEPORT OF AMERICAN COMMISSIONERS. 343 t'cnt GofF. pelagic sealers, an error they were quick to Mistuking effect - , , . ^or cause. correct after another year s experience. The number of seals killed each day during Decreaso shown by •' *=• daily killing. the killing season may be taken as a rough index to the rapidity of the decline of the rookeries in the past few years. Treasury Agent Charles J. GoiF, in charge of the seal islands in 1889-'90, statf^s in his official report that the average daily killing in 1890 was five hundred and twenty-two, while in 1889 it was one thousand nine hundred and seventy-four for the"same period. In his report for 1889 Treasury Agent GofF^„f'i"'i^ii''^''^'"'"'>' states : " The alarming decrease in the daily, weekly, and monthly receipts of [skins by] the Alaska Commercial Company, and as a dernier resort by said Company to secure their one I.un- dred thousand skins, the killing of smaller seals than was customary attest conclusively that . . . there is a scarcitj' of seals, and that within the last year or so they are from some cause decreas- ing i'ar beyond the increase." He states further : 'I regard it absolutely essential, for the future of the rookeries, that prompt action be taken by the Department for the suppression of illegal killing of seals in Bering Sea, and that the utmost econ- omy be observed in taking the seals allowed by law." li - S . ■ ill ilf: {-I'iiii Why det'rcnsi' of fcMiuiloj was not notict'd. !l 344 REPORTS OF BERING SEA COMMISSION. A considerable decrease in the number of female seals upon the breeding rookeries might not be noticed at first where the total numbcrisso large, but in two or three years the effect of this loss would be felt in the class of killable seals, and might there be quite evident. The loss in one class would thus follow surely but some- what behind the other in time. When the dimi- nution in the number of killable seals became notable, attention was at once drawn to the breeding rookeries, and it was found that they were being depleted. Thus Captain Webstevde- Diminisiicd s 11 ,1 /> I • I Ml 1 number of mules exammation oi all the tacts in the case will show will not affect birtu- cODclusively that the latter of the two possible causes has had no appreciable part in the de- structive work that has been accomplished. The polygamous habits of the fur-seal have Buttles on rook- 111 1 Ml 11 ji j* evies show no lack of already been described, as well as the separation muies. in hauling out of the ' holluschickie ' or younger males from the breeding rookeries. Tlie battles among the older males for places upon the breed- 5t! r |i 4 pi l^frT^^ 1 ;; i 350 REPORTS OF BKRIXO SEA COMMISSION. iim^m m Battles; on rook- ing-grounds have long been described as one of pries show no Ini'k »♦' , , , . . insien. the peculiar characteristics or the species. A younger male is obliged to win his right to a harem by conflict with his older brethren already in possession. Many thousands of virile young males lie at a. convenient distance on the hauling grounds, ready to engage in a struggle for a place in the affections of the female seal should a favorable opportunity occur. Notwithstanding the depleted condition of the rookeries, these conflicts and struggles still go on. They went on last year and also in 1890. This condition of things is utterly incompatible with any theory which assumes a scarcity of virile Testimony iix to no inales. The evidence of the most reliable and credible observers goes to prove the same thing. Mr. Redpath and Captain Webster have already been quoted as declaring that it is among female seals that the great scarcity exists, but it is worth while here to repeat the statement of the latter, that " formerly there would be on an average thirty cows to one bull ; now they will not aver- age fifteen." Several of the native observers placed the number of cows formerly served by one bull at a much higher figure than thirty. These facts rather tend to show that males are relatively in excess on the breeding rookeries at the present time. Our own observations lack of mules. REl^ORT OF AMKRR'AS C'O.MMISMIU.NKRH. 351 convinced us that at least there could be no 'JVBtimony as to no . • 1 • • '"'''' "^ mules. ilefifiiency and that it was a practical impossi- bility for any breeding cow to escape service on account of paucity of virile males. The unavoidable conclusion is, then, that the i)i'(T(«nsi> nnusi'd bjr killing feiuulfs. deterioration of the herd must be attributed to the destruction of female seals. If a herd of seals be taken in its natural con- Nntumi condition of herd. dition, that is, as not interfered with by man, males and females will be found practically equal in number, as the number of births in a year of both sexes is the same, and we have no reason to believe there is any great difference in the natuial mortality of the sexes. The total num- ber of females may be divided into two classes, cinssos of females. the breeding and the nonbreeding, the former being probably a large proportion of the whole. The nonbreeding females include those that have not yet reached the reproductive age and the few which from old age or other causes are barren. The male seals may likewise be divided into Classes of males, two classes, the virile and the nonvirile, the lat- ter including those below the age of virility and those impotent on account of old age. The reproductive power of the herd, therefore, lies in thel)reediiig females and the virile males. The maintenance of the birthrate, the vital and essen- On what birtb-inte I' 1 1 . , . ■, . depends. tial element in the preservation and perpetuation [;)15J 2 A li" 1: m n ''IE n II il ■:l fi ',1 • i 1. ' ill ^, A^< s^ v> ^^^ IMAGE EVALUATION TEST TARGET (MT.3) 1.0 I.I 11.25 121 125 |J0 ^ 1^ 12.2 U IIIIIM y] /a /. '^Iv/ 7 ^ Photographic Sciences Corporation a WIST MAIN STRiET WEBSTIR.N.Y 14SS0 (716) •73-4503 4^ •■ -^ 352 EErOBTS OF BERING SEA COMMISSION. On what birth-rate of the herd, requires the preservation of the whole depends. of the class of breed ui(j females, while only a small number of virile males are necessary or at all concerned in the matter. This is the great essential difference betAveen the importance of the life of the female and that of the male to the conservation of the herd, and it is the fundamental proposition on which hangs the solution of the whole problem. Explanation of We have ventured to illustrate this by means of a graphic exhibition of a hypothetical herd of eighty thousand seals, in the accompanying dia- grams, in which the effect of killing males is shown to be harmless if kept within certain limits. In these diagrams the age of the seals is shown on the horizontal line at the base of the figure and the number of seals at any given age is proportional to the length of the vertical line on the diagram at the point representing the age. Unfortunately we have no ' tables of mortality' for seals ; we know only approximately their maximum age and we have little knowledge as to the distribution of their deathrate. Based on the best information available, we have assunnJ the normal age to be twentyyears, and, tolKJoi; the safe side, have further assumed that one-half of the seals born die during the first year after birth. The outer curve of the diagram, showing i.S fi lilllifilt be whole B only a try or at N. \t\v ■■ -•'^f^s between und that lerd, and cli hangs by means il herd of lying dia- raales is a certain [le senls is ise of the given age rtical line g the age. aortality' Dely their wiedge as Based on assiunt'd ,tol)eoi; t one-half ^ear after showing 10,000 APOO 8,000 ti I - ■ Tl TI If ,11.1, tt :;,-.r;:,r:-J:1;r-:-Tt -t -1^ Tt::: t • • t- ±i m ::ttt.! \t- -H--t-+ ttti: --(-f ----f- :l 4-' ^ 4-t m --+ :t±fl ^ 1 I K, U irti>iiii,»- MALE SEALS. NATURAL CONDITION. 20 Yenr.t 10,025 MaU seals CD vf/Z/^^V.' maJ^. 10,000 Bom a^iu^lly 1=1 ^''^^i^'*'^)- Xvss from, ruUumJ ceu4^es only. I 1 3itn-en H.rrufu '' Soiu.litb 3' MmIuu Ijm» WC ^900 V" "*T^ '■" ^'^ r j f 1 ' ■ 'I! f^ii- I It- I O N -M I- 1- 1 f ' t ) mmm * *- r- t t- -tU- tiU T\ +4 f4- ■i.iW fc ♦- 1- 1- kj»- -~»- ■■(ill il ^■4 -ul ^^^B ■ - ■*',.'' ill li'l B»iSj iijil iri B. FEMALE N AT U R A L C \ IO,OOC a,(ioo 8.000 l,0OO 6,000 A, 000 f;000 t.OOO 2,000 1, 000 ::"::-'--j--:iH- -1- ii \\\\ il!: 1::; t!:: l;t: :;;■ ■ " ^ '^ 1 t-- f ^ 'It: ' 1 i ' ' 1 • t > ■ f I • ■ :;: 1: ■:;.:,t. .if ■.tIt. \\\ V w \^v\ \\\\"V\\\ ': ||;;/_:^:||j|TT|| j::. :i;; -, -■■■, ;.:; -J-j _■ ■ • Ij- ']:■ )' j. 1 , .-.- 4 t H- t-.-i-r ■T-' '• ■ - + . -... -|. IT . . . .1 ) -j 1 -j- t- -j ij 1 *-t- M ■ i i 1 i * ' — ■ — it it" ■■'■^ ' 'M ] '--{i h - ' t - ! t-f-t • 1 ; ft 1 i • 1 L , . \ ^ - 4 -t 1 i- 4 1 ( t-4- -4 - - - t 1 ^ 1 'ft' ! i • '- -♦ "f 1 1 I 1 * ' ' L ..- 1-..-1-. .1 .y^ 1 j. ,.] J . J. .^. , , i j . , 1 , , . ! , , , 1 i ^lll]'l r -- ■ \ -I -t 1 t f . j - . I .. f , i . 1 . 1 , , . , -\ 4-f-l i 't i --t 1 1 ■ ^ ^t ' • ' r • ' ! ' ■ • : ■ : ' ' :::::::[:;::;:..;.:.: ". 1::.:.. ■^\\^\^^ \-rt-:\\t.\\'- A\\ "i .......]--.. . .1.. i i i I ■ 1 I i i Mil! II ::: + ::::■::-.;. :^:]::-- -It' ifl :-Hi \'A\ V\\ iil Hi i iiii: iiii: II:/ . '".. -.4-1-1- - J . -M.j \.\\\ \- ; l \ ;:;:i 11;:: i:i!^ t.. 1 .- t A .. -Ml t ! . \\ 1 ■\ ! 1 i T'TTtt^TJil i'*'' ' :::::::":::::::: "": ':"::: ■ r"..':' ""-• ■- "X-^t - ' " -- i. 1 - . - - 4- - iL ~" .9 w II (MOL 4/$J.I/97jfO J/S t0,025 Male^ Seals. 1 10,000 Bom anjiuaUjf i Lona frutri' tuuUwcU. causes onfy. [ B. FEMALE SEALS. JRAU CONDITION. 20Yetws. SecUft. uuuuiUy Em Barren 'taroA^ cajuses onfy. 1.. I Youn^ Breetivty FenuHes IlHtnson t Sinw.Lltb.3; Martiu.. Ijww.'.V.C IT W rr ■M 1) I t i I 1,1 !i RKPORT or AMERICAN COMMIMSIONKRS. 353 the distribution of ngCH from thiH time on pre- KxpUnntion of . . ... diHgrHin*. tt'iiflH onlv to ne an approximation, as it im impt)S- sihlo to ohtain thoaccurate iiiforinat ion necessary lora better representation. We maintain, liow- tver.tliat tbe fiiUcstknowledgewould necessitate 110 phnn^^e which would materially afteot the force of our argument based on these diagrams. Tlieloiii^'est vertical line at the left represents the minil)rr of births annnallv, which, for con- venience. is assumed to be ten thousand of each sex. At the end of one year the vertical line is iwlucod one-half in length, as half the seals born the year hefoie are assumed to be dead. At the end of tlie second year it is still further short- ened, and so on until tlie end of the twentieth yeai. There can thus be traced the history of a },noup of ten thousand seals from birth to final extinction, the area bounded by lines vertical at the beginning and end of any year showing the number ajive at any age, as between ten and eleven years of age, and the total area of the diagram is proportional to the total number of seals in the herd. Diagrams A and B represent the males and ♦ males of such a herd in its natural condition, that is, not interfered with by man. It is in a condition of practical stability, tht; males and teinales are equal in number, and the diagrams aie identical, except as to the coloring of the [•UoJ ^ -2 A 2 Ifl ih'i ill ii !] ti"1 '^m;^ r ' 354 REPORTS OF liERKNU i^EA t'OMMIbSIOy. Eft 'I - '• WwH r ■ t fWU. ; mm i i : 1:1 1 \ ■• . 1 ■ : ( ■ ;-" : ■ t In: , 1 mjlj; ; j| , J jfflWi •;^fi :■ 8 E I pi oil ut ion of different parts, by raeans of which it is attempted to represent the numbers of the different clusses of seals. We can fix the ages for ' killable seals ' with certainty, and all included under that head are represented in the diagram by that portion colored red. Male seals not killable and not old enough to take a place on the breeding' rookeries are shown in green, while those of the breeding age are shown in yellow. The lines of demarcation up to this point are quite accurately known and the dittgram may be regarded os correct, but we do not know certainly at what age the male becomes impotent and is driven otf the rookery. The best estimate based on analogies of other animals, places this period at about the age of seventeen years, and the dia- gram so represents it. In the classification of female seals there is some diflficulty, for while we are tolerably certain that the young female goes on the breeding rookeries at least at the age of three years, we know little about the age at which she becomes barren. The assumption that this period is reached, on the average, at the age of eighteen yeais, is, perhaps, not very far from the truth. The jounger females under the breeding age are presented in green, the breeding feuiales in yellow, and the barren in brown. lGUlated killing. T-r iW^ :i:;!l: iTf:* tt- I ' iim^ i!-M H fl- ^ i . t-l i fl f-i- -t TT m I - .1,1 i k- i iH 11 ■ft • •• f-f- ft f 4t-l fftfl /'; 1 'l.,:l| 1' ! 't ; Is y I c. MALE S EALS. NORMAL CONDITION UNDER PROPERLY REGULATED KILLING. 10 000 9,000 8,000 l.OOO e.ooo s.ooo t.ooo 3,000 9,000 1,OOC W Years 23.568 Male- SeUMal^s. UI2 BnJls^(brecdLng). I i Barrew. I I Yoiuiy. H-ni.TM) ■■ ooni lrtU.3 H^nmj LjmWC -]; BEPORT OP AMERICAN COMMISSIONERS. 355 Thus the diagrams give, it is believed, a fair Explanation of representation of the condition of a herd of about 80,000 seals, 10,000 males and the same number of females being born each year, showing the breeding and the nonbreeding of both males and females ; the breeding males, it must be remem- bered, including those not only found at the . head of hareras, but all of those that in virtue of their age and condition are capable of filling a place on the breeding rookeries. The killable males include only those not under two or over four years of age, which furnish skins of the finest quality and greatest value. It is important to remark here that everyone of the breeding females is necessary to insure the annual birth of 20,000 pups. If this were not the case and the herd were undisturbed it would increase in numbers, which is contrary to the hypothesis that it has already reached its normal condition of stability. Diagram. C shows tho male portion of the same herd when judiciously worked by man. No females under the breeding age can be killed, for that would very shortly reduce the number of breeding females, and none of these can be spared without reducing the number of births. The only females available for killing without injury to the herd are the barren females. Were their If: f'.l . I 'i ■■ R ■ A Jf '^r\ I- ? 4' u£ : f !,1 * itfiWMI 356 BEPORTS OF BERING SEA COMMISSION. Explanation of skins iiot inferior and of less value than those of diagrams. . . the young males it would be impossible, under the most favorable circumstances, to certainly dis- tinguish them from their more fruitful sisters. With males, however, the case is entirely dif- ferent. It is only necessary with those of the killable age given above to allow enough to escape the club to supply the annual deficit of virile males on the breeding rookeries. In other words, if 100,000 breeding females were required to maintain a given herd, rigorously spealcing, and assuming as a moderate estimate twenty females in each harem, only 5,000 breeding males w ould be required and it would only be necessary to spare enough to keep up this number. The diagram assumes a much more liberal supply of males, however, the ratio being assumed at twelve to one. The diagram shows that the total number of males in the herd would be greatly diminished and the census of the whole herd correspond- ingly lessened. But when once reached, the new condition would be constant and self-sus- taining; the same number of seals might be killed annually forever without danger of diminution, except from other causes. The calculation on which the diagram is constructed shows that the number of male seals would be I r « !i REPORT OF AMERICAN COMMISSIONERS, reduced to nearly one-half of what it would be Expia (liHgraras. in the undisturbed condition, and that about twelve to thirteen years would be required to reduce the male herd to this condition of stability under constant killing. Taking such a herd as is considered in the construction of the diagrams, it would number about 80,000, equally divided between the two sexes, 20,000 being added by birth and the same number subtracted by death each year. In order to represent more clearly the enor- mous herd of seals which it may be supposed at one time frequented the Pribilof Islands, undisturbed by man, these numbers may be multiplied so as to give a total of 3,000,000 seals, 750,000 being born every year and the same number dying from natural causes. Of the 1,500,000 females about 800,000 would be breeding, the remainder mostly too young to breed, a very small number being barren. Of the 1,500,000 males about 65,000 would be on the breeding rookeries, and the remainder, excluding the youn^ just born, would haul out uo 'hoUuschickie,' and would include 285,000 of a suitable age for killing, on account of the superior character and condition of their skins. In undertaking to utilize the products of this herd for the good of man, the problem which is 357 nation ol ii i ^¥> » ;' 1^^ )l\ M REPORTS OF BERTNO SKA COMMISSION". Explanation of presented is to determine how many and what diagraniB. classes of seals may be taken annually without diminishing the number of births. As alieady stated, the solution consists in taking a limited number of male seals between certnin ages, leav- ing a sufficient number of breeding males for the rookeries and guarding the females in the most careful manner. The investisjation shows that in this assumed herd of three million 80,000 males may be taken annually between the ages of two and five years, and that the total number of males will be gradually reduced from 1,500,000 to about 880,000, thus diminishing the total of the herd from 3,000,000 to 2,380,000, after which no further reduction will take nlace, When it is remembered that of the 880,000 male seals remaining, 375,000 are the recently born young, and after making the same reduc* tion of the total females (1,500,000) it will be seen that under these conditions the number of females is more than double the number of males and this fact alone would account for an exces- sive number of females taken by pelagic sealers. An examination of the diagrams will show that the number of seals included in the class of breeding females is but little in excess of the number actually necessary for the maintenance of the birthrate, provided every seal is fruitful One reason females are killed by pelagic sealers. Conclusions from diagrams. HKPORT OP AMRRTCAN COMMl!«ISIO!IERS. 350 every year. In the nature of things, this can Conciiwioni from ... diftgreras. not be expected, and the excess here existing is undoubtedly small enough to insure agoinst loss. ■: Although the allotment of one male to twelve females is believed to be less than the actual average in nature, the number of males allowed to escape the club is considerably in excess of that demanded on this supposition, and all of the hypotheses of the calculation are made to insure safety and perpetuity to the herd. The graphic representation of the condition of Effecin shown by diagrams. tlie herd serves also to emphasize the fact that when an attack is made on the life of the seal by destroying the females, the results of such destruction will be first noticed in a diminished number of killable males. The number of males being relatively small, any change is m£>re . ' readily observed, particularly since the killable males of the herd are the only seals in which the islanders are immediately interested. Having thus shown the possibility of contin- ually taking a large number of male seals with- out the slightest danger to the herd, and also that the only harmless killing of female seals is that in which the barren only are destroyed, let us examine the nature of pelagic sealing and its results as compared with sealing on the islands. 3G0 PoRBibility of re Btriction. Class of seals killed. Driving. REPORTS OP BERING SEA COMMISSION. SEAL KILLING ON THE PRIBILOP ISLANDS. In reference to the latter it can be positively aflBrmod that it can be entirely controlled by man. The sex and age of the seals killed may be fixed by regulation and the number to be taken definitely determined in advance. In fact, it is difiicult to imagine any operation of a similar character more perfectly controllable than this. Not only can the character of seal to be killed by rigorously prescribed, but the killing can be conducted in such a manner as to be least harmful to the remaining portion of the herds, and that freedom from disturbance during the breeding season which is so essential to the life of the seal can be assured. The only seals killed at the seal islands are nonbreeding males (under five or six years of age, called * holluschickie '). They come up on the rookeries apart from the breeding seals, and large numbers are present by the latter part of May or first week in June, after which they constantly pass back and forth from the water to the hauling grounds. They are driven from the hauling grounds to the killing grounds by the native Aleuts, who have been trained in this work from generation to generation. Here the seals are divided into little groups. Those selected as of suitable size are killed by a blow on the head for CriticiBnis on man- ner of ' driying.' REPORT OP AMERICAN COMMISSIONERS. 361 with a club, the others are allowed to go into Driving, the water and soon reappear on the hauling grounds. In this way about one hundred thou- sand young males have been killed annually on the Pribilof Islands for twenty years. • In addition to the commercial killing above Killing pups food. described, a number of male pups were formerly killed each year to furnish food for the natives, but the killing of pups is now prohibited by the Government. The only objections that have been urged against this mode of taking seals are such as re- late to details of the operations as ordinarily carried on, any of which could be modified if it was found desirable to do so. Much stress has been laid upon the destructive effects of seal driving, and it has even been aflfirmed that when a male seal has once been * driven ' its repro- ductive powers are lost. While there is no doubt that in some instances excessive driving has been allowed, that seals have been driven further than is actually neces- sary, and that proper care has not been taken to eliminate the nonkillable seals as far as possible before the driving is well under way, those are matters that are so entirely under control that a proper adjustment may be secured at once. ,!'.' Kwmt'i ' ' ''■ IHt; : . ' 1 km IBi: 'U; 1- ■' m "'-if J' . ■Mi :'l.^; if iiwmi m 362 Male leaU not injured by ' driring.' Management. BEPOBTS OF IIKKI.VO HK\ CO&IMI;!)8I0N. The assumption that driving is seriously injuri- ous to the reproductive powers of the male is doubtless unfounded, being quite contrary to the declared belief of Captain Webster and other sealers of long experinice. Against every asser- tion of this kind ii is only necessary to put the fact that there is no evidence of a lack of virility on the rookeries, but, on the contrary, it is evi« dent that there is a surplus of it at the present time, unless, indeed, it is assumed that harems are defended and held against the most ferocious attacks, often at a loss of much blood and muscle, by impotent seals. Seal killing on the Pribilof Islands has been and is conducted on the theory outlined above, that the male seal only should be killed, and of these a limited number whose age falls within certain narrow limits, and that the female should be spared at all hazards. The same principle controls the killing on the Commander Islands, and, as far as we know, wherever and whenever the operation has been subjected to intelligent control. Where these restrictions have not been applied the life of the herd was generally short and the commercial destruction complete. The picture presented by pelagic sealing is of a different character. ^j RKPORT OF AMERICAN COMMISSIONERS. 363 ,-t Miinncr of hunl- ing. SEAL KILLING AT SEA. OR PELAGIC SEALING. Pelaff ic sealing is carried on chiefly by means Ve»tcis and crew, of schooners, each of which is provided with a crew of twenty to twenty-five men and several small boats for hunting. When seals are en countered the small boats put out and the hunt ing begins. If a seal is seen on the surface the hunter approaches it as quietly as possible, and when near enough shoots it with the shotgun or rifle ; hut most seals are shot as they rise within range of the boat. When a seal is shot the oars- man pulls toward it as rapidly as possible in the hope of reaching it before it sinks. By the aid The gaff, of an iron hook on the end of a light pole many seals are secured after they have sunk below the surface but have not yet passed out of reach. Some of the sealing vessels use steam power, but most of them depend on sails. Formerly, Indian crews were taken almost indi*" ''untem exclusively, and the spear was used instead of firearms, in order not to frighten the seals. This method had the great advantage of securing nearly all seals wounded. Now, both Indian and white hunters are employed, and the use of the spear has been almost wholly superseded by the use of firearms. The shotgun is used more than the rifle for the reason that fewer wounded seals are lost therebv. Ml f t. 3L ^ ■■;:r;i ■■HB^Bv''! li^BBv 1 i ■' ( MB?:'-' '^'i^ ;. ll V -mMt- :M- [' '■ ■: f 1 ■^^H^ffi^iiw^^n M ■■1 ■^^^^^^H 1 364 REPORTS OF IlERING SRA COMMISSION. Indi»n hunter*. . In addition to tho destruction wrought by the sealing sciiooners, pelagic sealing is still carried on along shore by the native Indians in their canoes, but the number of fur-seals thus killed is relatively small. History. Pelagic sealing has been carried on fortui- tously and on a small scale for many years, but it was not until within the present decade that numerous vessels engaged systematically in the enterprise. The profits are so great in compari- son with the capital invested that, as the results of the annual catch became known each year, a constantly increasing number of vessels was led to engage in the industry, with a corresponding increase in the number of seals killed in the open Dostruution of to- sca. The fur-scals which move northward along the coast of the Northwestern United States, British Columbia, and southeastern Alaska from January until late in June are chiefly pregnant females, and about ninety per cent, of the adult seals killed by pelagic sealers in the North Pacific are females heavy with young. For several years the pelagic sealers were content to pursue their destructive work in the North Pacific, but of late they have entered Bering Sea, where they continue to capture seals in the water throughout the entire summer. The Pelagic scalers enter Bering Sea. 1 -J-. 1 '.i .r.i RErORT OF AMERICAN COMMISSIONERS. 365 females killed during this period are giving tuning femiM milk, and are away from the islands in search of food. Tlioir young starve to death on the rook- eries. We saw vast numbers of dead pups on ^""1* F"P* <>" **>• the island of St. Paul last summer (1891), which, from their emaciated condition, liad evidently (lied of starvation. The total number of their carcasses remaining on the Pribilof Islands at the end of the season of 1891 has been esti- mated by the United States Treasury agents at not less than twenty thousand. Pelagic sealing is now carried on in the North Boring Sca sealing Pacific Ocean from January until late in JuLe, and in Bering Sea in July, August, and Septem- ber, b line sealing schooners remain as late as November, but they do so for the purpose of raiding the rookeries. The number of seals secured by pelagic ^'^^^ "^ ieoiinu sealers is exceedingly difficult to ascertain, because no complete record has been kept of any except those sold in Victoria, British Co- lumbia. Many thousands have been sold in San Francisco, concerning which we have not been able as vet to obtain reliable information. I« I'M ! :| ' S i 3.66 BEPOKXS OF BE KINO b!KA COMMISSION. The number of seal skins actually recorded as sold as a result of pelagic sealing is shown in the following table : * Year. No. of skins. 1 Year. No. of skins. 1872 1873 1874 1875 1876 1877 1878 1879 1880 1881 1,029 4^949 l.GKJ 2,042 5,700 ! 9,593 12,500 + 1 13,G00 13,541 ! 1882 1883 1884 1885 1886 1887 1888 1889 1890 1891 17,700 0.195 114,000 13,000 38,907 33,800 37,789 40,998 48,519 62,500 Indiscriminate killing. t Number estimated from value given. It can not be denied that in pelagic sealing there can be no selective killing, as far as individual seals are concerned, and only in a limited degree by restricting it as to place and time. It necessarily follows that female seals must be killed and seals whose skms owing to age and condition are much less desirable. As • The figures for the years 1872 to 1876, inclusive, and 1891, nre from tlie London Trade Sales. Those from 1877 to 1887, incliuivo, are from the official reports of the Minister of Marino and Fifh- cries of Canada, and probably fall short of the actual catob, bo- cause the ratch of the United States vessels is not inoliuled. Tlif figures for 1888 arc from the same source (26,983) pl'is the United States pelagic catch (9,806), as stated in the Report of the United States Commissioner of Fish and lisheries for that year. The figured for the years 1889 and 1890 are from the Cnnaitiaii Fish- eries Reports, and comprise both the catch of the Cauadiiin fleet (33,570 for 1889 and 44,750 for 1890) and of other vessels wliieli sold their skins in Victoria, British Columbi". (7,428 in 1889 mid 3.708 in 1890). The catch of American vessels sold in San Fran- ciso is not included. REPORT OF AMERICAN COMMISSIONERS, 367 a matter of fact, there is Su6Scient evidence to. Percentage of .fe- males in catch, ..r convince us that by far the greater part of the taken at sea are females ; indeed, we have yet to meet with any evidence to the contrary. Tbe statements of those who have had occasion to examine the catch of pelagic sealers might be quoted to almost any extent to the effect that at least eighty percent of the seals thus taken are females. On one occasion we examined a pile of skins picked out at random, and which we have every reason to believe was a part of a pelagic catch, and found them nearly all females. When the sealers themselves are not influenced by the feeling that they are testifying against their own interests they give similar testimony. The master of the sealing schooner J. G. Swan declared that in the catch of 1890, when he secured several hundred seals, the proportion of females to males was about four to one, and on one occasion in '«, lot of sixty seals, as a matter of cm'iosity he counted the number of females with young, finding forty-seven. , > ; Evidence on this point might be extended indefinitely, but one or two additional references will be valuable. The.following is from Messrs, Letter of c. M. C. M. Lampson & Co., of London, the most exten- sive dealers in furs in the world, and everywhere [315] 2 b Lampnon & Co. m ■ i ■ .; ' 'd lil^ • Lettcir 6{ C. Lampgbn <& Go. BEFOBTS OF BEBING SEA COMMISSION. M. recognized as a high authority on this question. Referring to the regular supply of fur-seals that had for many years come into the market from the vicinity of Vancouver Island, they remark : r " The quantity, we should say, has averaged at least ten thousand per annum. This catch takes place in the months of March and April, 'and we believe that the animals from which these skins are derived are females of the Alaska 'Seals, just the same as those caught in the Bering •Sea. Had this quantity been materially in- .creased we feel sure that the breeding on the .'Pribilof Islands would have suffered more before now, but, fortunately, the catch must necessarily •be a limited one, owing to the stormy time of the year at which it i' made, and the dangerous •"coast where the seals, only for a short time, are found. It must, however, be evident that if Jthese animals were followed into the Bering "Sea and hunted down in a calm sea in the quiet- est months of the year, a practically unlimited quantity of females might be taken, and, as you say, it would be only a few years till the Alaska seal was a thing of the past." (Extract from a letter addressed to C. A. Williams, esq., August ■-22,. 1888.) •'/■"- "-^■. ' .: (■ -;. •• I; EBPORT OF AMERICAN COMMISSIONERS. 869 Essentially the same view is held by so well Opinion of sir George Baden- known an authority as Sir George Baden-Powell, Powcii, after having visited the western coast and thor- oughly investigated the question, as he says, from the point of view of natural history, in a . letter written by him to the London Times in November, 1889. Among other things, relating to the Bering Sea question, he says : "As a matter of fact, the Canadian sealers take very few, if any, seals cloce to these islands. Their main catch is made far out at sea and is almost entirely composed of females." In addition to evidence of this kind, the The London Trade Sales records of the London Trade Sales may be cited. In these the pelagic catch in Bering Sea and the North Pacific is quoted under the title "Northwest Coast," and the character of the skins is conclusively shown by the fact that their market price is invariably very much lower than that of the island catch quoted under the title of " Alaska skins." An important element in determining the Waste of life, effect of pelagic sealing is its wastefulness, glowing out of the loss of many seals at sea by their being wounded so that they either die and sink at once or escape without being taken, only to die soon after. "When female seals are [315] 2b2 ' n^t pirn '■* ■ ■ Wfe ' ' ' B^^Bl ' ' ■^HPi |v . l WB^Si^ ;»af^ i ii t; ri .K U 'H 370 REPORTS OF BERING SEA COMMISSION. Great numbers rounded. Waste of life. thus lost — and the great majority are shown to be females — a serious wound is inflicted upon the herd, without the ^^aiu of so much as a single skin. While ther sea. quickly rehder such restriction valueless. As at loiig as hunting was profitable it would be fol- lowed, and the profit considered would be that which is immediate. Hundreds of schooners. ..lUer private direction would have little thought of the good of the many, and the effort of every individual would be to take as many seals as possible during the season, regardless of sex, age,, or condition, for next year there may be no seals. to take. . . • ' .'. • :. i;*: Either pelagic sealing or killing on land must bear the responsibility for the decadence in seal life which has taken place during the last few. years, and this decadence is known to have; occurred contemporaneously with the develop- ment of pelagic sealing from a comparatively trifling industry (practised mostly by Indians, apd confined almost entirely to the North Pacific coast) to its present magnitude, such that, despite the presence of a Considerable fleet of vessels of both the United States and Great Britain patrol-. ling Bering Sea to declare it unlawful and to arrest those engaged in it, a pelagic catch of over sixty thousand Seals was had in a single aeason. In view of this fact, and of the careful comparison which we have made of the two scaling •jthods of taking seals, on land and at sea, and Decrease of herd caused by pelagic I: '■m ^mm 1 1 ffP"!Wi' Mil Hmih^ 374 BEPOBTS OF BEBINO SEA COMMISSION. j||ili!i^:;i^;i it Prohibition of pelagic sealing neces- sary. Decrease of herd of their efFects on the seal herd, we feel justified caused by pelagic scaling. in declaring our belief that the great diminution in the number ot seals on and frequenting tiie Pribilof Islands, which has been observed during the past few years, must be attributed to the evil effects of pelagic sealing. Having found the source of the evil, it is easy to determine the remedy. The principal meas- ure necessary for the protection and preservation of seal life in Bering Sea is one which must prac- tically prohibit pelagic sealing. Argument on this point is unnecessary if we have succeeded in establishing the propositions already laid down in this report. It may be worth while, however, to refer briefly to one or two plans, restrictive as to time and place, which have been offered as a Limited protection solution of this problem. It is evident that any scheme that contemplates continued license to pelagic sealing, eveii in a much restricted form, is not the logical outcome of the facts and cir- cumstances as they exist to-day, and must fall short of accomplishing the desired result. Among other plans that have been suggested, is the establishment of a zone surrounding the islands outside of which pelagic sealing might be allowed and inside of which no sealing vessels should be permitted to go. This plan has the advantage of being satisfactory, if properly A zone of prohibi- tion inadequate. ^ii , BEFOBT OF AMERICAN COMMISSIONERS. STS executed. If the radius of this protected area is A tone bf prohAu great enough to insure the exclusion ot pelagic sealers from Bering Sea and the North Pacific Ocean it would be entirely acceptable. But when a radius of ten miles or of thirty or even fifty miles is suggested, the impression is strong that such a proposition is not intended to be seri- ously considered. An examination of the chart showing the location of sealers when warned in the summer of 1891 will show that they are widely distributed. On the occasion of our visit to the Pribilof Islands in July and August of that year seals appeared in considerable numbers while we were from one hundred and fifty to one hundred and seventy-five miles from the islands, and many were seen up to the time of our reach- ing the islands. ' ■ • ', The possibility of properly executing any pro posed scheme of protection must also have great possfbie weight in determining its value. For instance, a proposal to permit pelagic sealing with the con- dition that only barren females were to be hunted and killed would be quite free from objection, for if all such were destroyed the herd would not suffer. But the absurdity of such a proposi- tion is at once evident to all who are familiar with the elements of the problem. The difficulty Discrimination 'by pelagic sealers im> '. :5: _ -; --I fpip Z7^ ^BlfORTS OP BERIJiG SEA COMMISSION. . impoMibie to in maintaining a protected zone about the is- namtjun ft sfine. lainds, the radius of which shall be comparatively small, will be clear to all who know the condi- tions prevailing in that part of the world. There is almost constant cloudiness and dense fog, and it is difficult for a vessel to know her own loca- tion within reasonable limits after having cruised about for a short time.- The niargin of uncer- tainty would be nearly as wide as the zone itself. Often the navigator r cei ves his first information regiardiug the nearness to the inlands by hearing the cries of the seals on the rookeries, which he can not see. Under such circumstances few arrests would be made of trespassing vessels that Qould not make a plausible plea in self-defense. In most cases it would be difficult to prove that the sealer was actually within the forbidden area. - AijloM Season; . A more reasonable proposition is that involving a close time. A regulation fixing dates between ^hich pelagic sealing would" be every wliere for- bidden would be of easy execution compared But it must prac- with the zoual restrictions. But, as already, ticallv prohibit. stated, to be of value it must be of such a nature as to practically prohibit the taking of se:ils at sea. ;..'....,• : ..:, '.■:!;:.,■; ,■... .: other remedies of Other remedies h; ve been proposed, but ^heii ^xaminied they are found tq have.the vital dofect of licensing or legitimatizing the evil practice ffii- REPORT OF AMRRICAN COMMISSIONBBS. 377 Prof. W. H. Flower. which haa already resulted so disastrously, and" iMhor rethediet of no avail. without any adequate means of controlling the ma^Miitude of its developments. In short, if we do not wish the history of the fur-seal in • • • / , Bering Sea to be a repetition of that of the rookeries of the Southern Ocean and of other localities where seals once flourished, measures adequate to the existing evil, heroic, if need be, must be adopted. In 1889, Prof. W. H. Flower, director of the Natural History Museum, Lon- don, wrote as follows, after referring to the total annihilation of the rookeries of the south seas : "Owing to the ruthless and indiscriminate slaughter carried on by ignorant and lawless seal- ersregardless of every thingbutimmediate profit," he says, " The only spot in the world where fur-seals are now found in their original or even increased numbers is the Pribilof group, a cir- onmstance entirely owing to the rigid enforce- ment of the wise regulations of the Alaska Com- mercial Company, which are based on a thorough knowledge of the habits of the animals. But for ' . v.: this the fur-seal might before now have been added to the long list of animals exterminated from the earth by the hand of man."^ Less than three years have elapsed, and the Progress of exter- mination, catastrophe here hinted at is well under way. Its progress can be arrested only, we believe, by i i< I • I .1 i' Pi'' i m r i iiii)i Wm ..J M il «78 HEFOBTS OF BERING SEA COMMISSION. Raids rookeries. oa CompariBon of raids and pelagic ,»«alii\g,; • PrMrcM oi axter'the acceptance of the principles stated above, which are the logical deductions from established facts. ^^° It may be worth while to add that the sug- gestion has been made that the decrease in the number of seals is due to piratical raids upon the islands themselves dtiring the breeding season. While it is unquestionably true that such raids ,have occasionally occurred during the past, and that some skins have been obtained in that way, the number of these is so trifling in compariaon with the annual pelagic catch as not to aftect in any way the question under consideration. It is also difficult for one familiar with the rookeries and the habits of the seal to conceive of a raid being made without its becoming known to the officers in charge of the operations upon the islands. The " raid theory," therefore, may be dismissed as unworthy, in our judgment, of • serious consideration. In addition to the establishment of such regu- R e c m mendation as to management of islands. lations &h v'vould practically suppress pelagic sealing, it is strongly recommended that killing on the isia-.jds be subjected to somewhat more strict and competent supervision. While it is '■-•'■' "- ■' ■' . not believed that any serious consequences have .resulted from looseness in this respect, the inter- HErORT OF AMERICAN COMMISSIONERS. S7^ ests involved are so important, and in some Rocommcndation M to maiiagcinrnt of respects so complicated, that too much care can wiftuds. not Ije given to the selection of the proper persons to be intrusted with their conservation. The practice of frequent changes in the Govern- ment agents is deplorable. They should be so famili ir through association and observation with the appearance of the various rookeries as to be the first to notice any changes which may take place. They will thus be enabled to determine annually the r;;:mber of seals which may be taken with safety and from what rookeries, whether the driving is properly conducted, etc., and their whole efforts should be directed to the preservation of the seal herd in its normal con- ' ' dition. . • •a SUMMARY. Conclusions. The number of seals frequenting the Pribilof SoaU have de- _ * ^^ creased. Islands has greatly diminished during the past few years. Proofs. — The physical condition of the rook- eries and the testimony of natives and of Govern- ment officers and Company agents who have resided upon the islands for many years. The decrease in the number of seals is the Decrease caused by pelagic sealing. result of the evil efiects of pelagic sealing. U'' 'Mi' I Mil 3.8ia EPOBTS OF BERING SEA COMMISSION. ! • • .. Proo/s.— The seal is polygamous ; many males . may be killed without injury to the reproductive forces, but no females, except the barren. Kill- ing on land may be and is selective ; no females are killed. Pelagic sealing is not and can )iot be selective ; a majority of seals killed are females. The presence of dead pups in great numbers on the rookeries last year proves that their mothers had been killed at sea while in search of food. Thus, for nearly every skin taken two seals were killed, to say nothing of wastefulness through failure to recover seals shot at sea, , There is no evidence of a lack of virile males on the rookeries. . , . . , w^rn ^"'** ^^^'^ Remedy. — The suppression of pelagic sealing. When this is secured, the Government, insist- ing on a strict enforcement of its regulations through the agency of responsible and compe- tent officers, can render this industry, so impor- tant and valuable to all the civilized world, as nearly perpetual as it is possible for man to determine. Thomas C. Mendenhall. C. Hart Merriam. Washington, April 15, 1892. ^jm^ Appendix A. SEALS 8INX WHEK KILLED IK THE WATEB. ■•--I . It. is well known that seals in general sink when killed in the water. To prevent the loss of such sjals various devices are employed. In the Newfoundland and Labrador seal fisheries the ^reat majority of the seals killed are taken on the ice, but some are shot in the water. In order to secure the latter, each hunter is provided , with a reel of stout cord, to which is attached a lead weight beariug several large hooks. When a seal has been shot, the hunter holds the coil of loose cord in one hand, and swings the weight with the other until it attains sufficient momentum, when he lets it fly in the direction of the seal, hoping to overreach the animal, in which case the lead weight c.«,rries the hooks rapidly downward on the far side of the seal. By means of a strong pull on the cord, the hooks are made to take hold of the seal and he is drawn in. In the Norch Pacific, the pelagic sealers are provided with slender poles, each bearing an iron hook at one end, with which they secure many seals that have begun to sink. In order Hair-seala. l iiiii I i >i IH 382 Fur-seals. EEPORTS OF BERING SEA COMMISSION. Hair-seals. to use this pole, the hunter in his boatapproaches the seal to within shotgun range ; after tiring, the oarsman propels the boat rapidly to the spot, thus enabling, the hunter in an uncertain per- centage of cases to reach the seal with his gaff. Mr. Hinckelmann, Royal Superintendent of Fisheries, in an article entitled " Injuries to the Fisheries in the Baltic by Seals," states : " The seal when mortally wounded invariably Rinks to the bottom, where, at least in deep Tnte -^ can not be reached. . . . Thehuntsi. m „ only in very rare cases prove t: at his shot has been successful, as the dead seal Can not be taken from the surface of the water, but sinks to the bottom." (Translated in Bull. U. S. Fish Com- mission, Vol. VII, for 1887-1889, p. 81.) Antarctic fur-seals. Captain Musgrave, who was shipwrecked on the Auckland Islands, and for a year and a half subsisted largely on the flesh of seals and sea-lions, states : "When they are killed in the water they sink like a stone." (Quoted by R. A. A. Sherrin in "Handbook of the Fisheries of New Zealand," aSSG, p. 248.) • • ■ Payer and Copeland m their accoun* of " Hunting and Animal Life in East Greenland," state respecting seals : " When dead they sink very quickly." (The Zoologist, No. 124, 1 876, Hoir-scals. p. 4744.) ' ;i f r.'. II '^m REPORT OF AMERICAN COMMISSIONERS. 383 Robert Warren, in a note in The Zoologist for Hair-seals. 1880 (3rd series, Vol. IV, pp. 358-359) states that a gray seal (Halichcerus gryphus) was shot in Killala Bay while in the act of devouring a fine salmon. "On receiving the ball through the binder part of his head, he sunk out of sight, but was thrown ashore by the next tide, and even then retained a part of the salmon between his jaws." The reason seals in general sink when killed Keaaon seals sink, ia the water is that the specific gravity of their flesh and bones collectively is considerably greater than that of water, while the specific gravity of the layer of fat beneath the skin is less than that of water. This layer of blubber is much thicker in the hair-seals than in the fur- seals, but is not thick enough to float the body ; consequently, even the hair-seals sink when killed at sea. It is true that a certain percent- a'i-e of seals killed in the \vater float long enough 1. ];ri recovered. Such seals, as a rule, are shot ''y;ui;h the lungs, permitting enough air tc esc'ip . from the lungs into the body cavity and wounded tissues to cause them to float. Pelagic sealers admit that seals shot in the head, when the rest of the body is untler water, are almost certain to sink before they can be reached. [315] 2 c ilH '■' 'Kl 'iFi : 1 1^ ( 11 %\ nl ^M i« 111 1 1 I. .. if i' i > V , i •! ^ i ^ j ' ! i 1 ' I j ! Appendix B. DATES OF ABBIVALS OF FUB-SEALS AT PBIBILOF ISLANDS, 1871-1891. First arrival of bulls, cows, and pups at St. Paul Island, Bering Sea, 1872-1891, inclusive (from the official record). * On June 21 rookeries rapidly filling up, t " Arriving in fair numbers," J " Good many T-ported." Year. Bulls. Cows. Pups. ! 1872 May 18 June 3 June 13 1873 Apr. 24 8 25 1874 28 May 24 til 1875 28 June 7 10 1876 May 3 5 No record. 1877 17 May 25 May 29 1878 6 June 8 No record. 1879 Apr. 29 16 June 18 1880 30 No record* 10 1881 May 5 June 8 12 1882 26 No record.* No record. 1883 May 6 do. do. 1884 Apr. 30 do. do. 1885 27 do. do. 1880 10 do. do. 1887 May 1 do. do. 1888 1 do. May 21 1889 3 June JIO June J 10 18i)0 Apr. 28 6 10 1891 May 1 11 13 [815] 2 c 2 M P'l"'!ff|iT »Jtt)9^lS ! i i;. tl: ^8(5 Kia'OKTS OK HERIXO SKA COMMISSIOX. Fir.tf arrival of bulln, vows, and ptipn at St. Geori/e Island, Bnim Sea, 1871-1891, uiclusice (from the official record). Year. Bulls. Cows. Pups. 1871 May 4 No record. No record. 1872 (> ' . y i tTff^'WIflp 404 SUBJECT-INDEX OF CASE. II if! i i I ^a*||t. Determination of poBsiblo catoh DimcnsionB of Boring Sea Dioiucdo Islands Discovery ; Of Aleutian Islands Of Bering Strait Of Commander Islands Of Pribilof Islands Of shores of Bering Sea Disorganization of the rookeries Dispute. (See Ukase of 1821 ; Treaty of J824 ; Treaty of 1825.) Dispute between the United States and Groat Britain as to Pacific Coast Distance the cows go in feeding Distinction between Alaskan and Kussian seal herds Documents. (See Treaty of Arbitration.) Dogs killed on the islands Domestication and control of the seals Drive. (See Driving.) Driving Care taken not to overheat seals while Ezpertness uf natives in Improvement over Russian method of Longest; under American control.... Longest; under Russian control Long; stopped On Commander Islands more severe than on Pribilof Slowness of Duties on Alaskan skins imported into the United States Eastern Ocean. (See Bering Sea, other names for.) Effects of pelagic sealing Employes ; In Canada and London In seal-skin industry In United States Enumeration of seals impossible Evidence. (See Treaty of Arbitration of 1892.) Examination of catches of vessels seized Examination of dead pups Examination of pelagic catch of 1892 Extraterritorial jurisdiction. (See Jurisdiction, Extraterritorial.) Exclusive rights. (See Jurisdiction over Bering Sea,) Exclusiva rights of Russian American Company (See also Jurisdiction over Bering Sea; Russian American Company.) Executive, action of, relative to Alaska. (See Alaska.) Expedition, Bering's first ... .... Expeditions, early ones to Aleutian Islands 290 11 12 21 21 22 23 20 112 32 116 94 133 147 155 156 167 161 162 162 162 160 156 270 216 278 281 21i 203 35,45 20 22 SUBJECT-INDEX OF CASE. Filklsnd hlandi, protection of goals at Fmting of tho bulls on the rookeries Ficding: Eirunions for Manner of Very little, by bachelors fertilization, powers of bull in f ireamu ; Forbiddrn on islands Used by white hunters Used in pelagic sealing Fisheries : Algerian coral Australian pearl Ceylon pearl Irish oyster Mexican pearl Norwegian whale Panama pearl Protection of, by France Sardinia, coral Scotch herring Sicilian coral Statutes protecting Fleet of sealing vessels. (See Sealing fleet.) Fogs in Bering Sea ' Food of the seals Foreign vessels. (See Foreigners ; Jurisdiction over Bering Sea.) Foreigners : Abandoned all business in Okhotsk and Kamchatka Carried on no regular trade in Bering Sea Contracts with, annulled Forbidden to reside or carry on business in Kamchatka or Okhotsk Officials ordered to drive them away Their presence in Russian waters illegal Trade of, on Northwest Coast (Ste also Jurisdiction over Bering Sea.) FortKoss French legislation for protection of fisheries Fur Company. (See Russian American Company.) Fur industry. (See Furs.) Furriers; .American, opinions of, as to the need of protection American, testimony of, as to number of females in pelagic catch British, opinions of, as to need of protection 405 Page. 221 111 110 115 121 lot) 133 100 188 235 233 233 232 236 23ti 230 234 236 232 235 220 18, 261 116 40 51 45 46-40 49 48 51 I 28 231 245 202 243 i '' m\ ■iM imi! n 106 SUBJ£Cn-IND£X OF CASE. Furriers— Contimiod. Brit isli, tostiinony of, ui to pelagic cut ell French, opinions of, aa to need of protoction Furs : Karly Toyages in search of Large quantities brought from Connnander Islands by Bossof Quantities of, exported during Russian occupancy of Ahisku Value of, known to American negotiators Value of, taken from Boring Sea prior to 1807 {See also Fur-seals.) Fur-seal industry. (Sse Furs j Fur-seals.) Fur-seals : First found on Bering Island by Bering Harvest expected from Jurisdiction over Bering Sea always exercised for protection of Killing of, at sea to bo prevented .... .... Laws of United States relating to Most iraportont part of colonial enterprises Protection of, i-etison why Russia excluded Bering Sea from effect of treaties .... Reduction in number killed Revenue yielded by, to United States Right to prnfect Alsskon, passed to the United States Russia's rights over, j-assed to the United States Whaling company prohibited from cruising in waters frequented by (See also Jurisdiction over Bering Sea.) Fur trade. (See Rutsian American Company.) GttfE, used by pelagic sealers Game laws , Geographical sketch of Bering Sea Geographical sketch of Pribilof Islands Gestation, period of Government agents • .... Government claim for damages Government working impracticable Gray pups Killing of, stopped Great Britain : Acquiesced in control exercised by Russia and United States Burden on, to show that Russia's rights over Bering Sea lost Concedes that Russia's rights over seal fisheries passed to United Stales Modus Vivendi of 1892 between the United States and. (iSee Modus J of 1892.) Protest by, against ukase, (^ee Protests against ukase of 1821.) Should concur with United States in regulations Trade of, on Northwest Coast IW 74 22 42 6; U 78-84 t;2,(i3 ■9 4:i '7 72,7(i 72 (8 194 23U 11-15 15-2U 113 145 2S7 138 131 00,298,302 67 72 iveiidi 302 51 II a I; lllf SUBJBGT-INDEX OF CASE. 407 (See Ti\'aty of 1700 between Great (See Trcoty of 1818 bo- 1825 between Qreut (See Orent Britnin— Continued. Ireiity of 1703 betwoon Spiiin and Urituin iiiid Spoin.) Treaty of 1818 botwoon the United States and tnivii the United States and Groat Britain.) Tmitv 1)1' W-'> between Russia unil. (See Treutv o Britain and Russia.) Treaty of Arbitration of 1892 between the United Stotes and Treaty ol' Arbitration of 181)2.) Oreat Ocpiiii. (See raoiflo Ooean.) Oundaliipo Iiilunds, seals of, a different speeios from Alaikan seala Oiins. (■!»'" Firearms.) Habits: , Of the Alaskan seal (.yet I'ribilof Islands; Alaskan seal herd: Pups; Bulls { Cows; Baelio lors ; Migration.) Uair-fPil i British proteetion of , .... .... XcwfoinuUand regulations eoncerning rroti'ction of, by Jan Mayen regulations ProtL't'tion of, in Caspian Sea Trotection of, in White Sea Harbors at I'ribilof Islands llarcini : C'uw's life in the Disorganization of the Number of eows in tho Oigiinizution of Haulini; grounds Uistoiit'ttl unil jurisdictional questions. (See part first.) Uome of the fur-seal .... Hovering acts of Great Britain Hudson's Buy Company .... Hunters, (See Iiulian hunters and Pelagic sealers.) Hunting, inaiincr of, seals by Indians .... , Ignalook Island ImpvovcmcDt in treating skins Improvement over Russian methods of taking seals , Inability of pup to swim Imrcuso Ceased in 1880 How detcnuined llow shown KcBulting from American management Under Russion management h:tme of seal herd. (See Increase.) Page. !• I: i^i ' 129 89 22S 225 227 228 228 18 113 112 109 109 91 237 29 189 71 163 161 90 164 165 93 164 164, 296 131 I) i ■(? Mr 408 SUBJECT-INDEX OF CASE. iii m Increase of Bealing fleet Indian hunters : Description of spear, canoe, and manner of hunting by Lose very few seals ritrnck Opinions of, as to need of protection Indians : Catch of, along coast Employed as hunters prior tc 1885 Makah on or use of decrease Opinions ol, as to cause of decrease Seal hunting along the coast by Industry. (See Fur-seals : Sealskin industry.) Inhabitants of Pribiiof Islands. {See also Natiyes) Introduction .... Investigation : Congressional, of 1876 .... Congressional, of 1888 • Investigation of management. (See Invcfltigation, Congressional.) Inyostment, Canadian : In pelagic sealing in 1890, exaggerated In pelagic seahng in 1891 In sealskin industry in 1890 Insigniflcant Questionable Investments .... Canadian and United States, compared French and Canadian, compared In 1890, British and Canadian, contrasted In 1891, Canadian and British, contrasted Irish oyster fisheries Islands in Bning Sea Italia:; legislation Jan Mayen hair-seal fishery Joint Commission Eeport of Jurisdiction : Claimed by ukase of 1821 o>'er North Pacific Ocean Kussja relinquished, claimed over Pacific Ocean Extraterritorial British hoverinj; ads ... .... .... By France, protecting Alf^'-'iin coral flsherios By Italy, protectinij coral Cslu i ics By Mexico, protecting penrl fisheries By Norway, protecting whales ,. By Panama, protecting pearl fisheries Ill relation to fisheries Page. 183 180 190 217 187 187 180 173 187 20 I 13" 137 276 277 275 278, 280, 298 281 273 279 2S1 277 272 232 .... 14,21) 235 227 7 .... 7,8 5ii 231 237 235 235 236 236 236 230 ■; -h\ i' 1 SUBJECT-INDEX OF CASE. Juriidiction— Continued. Irish oyster fisheries Protecting Australian pearl fiBheries Qu!trantine act. Scotch herring fishf-ry act St. Helena act Jurisdiction over Bering Sea : Eiercise of, by Eussia : Acquiesced in by Great Britain Alter the treaties of 1824 and 1825 Always exercised for protection of fur-seals Cruisers should be constantly maintained in Bering Sea Foreign vessels not permitted to hunt, fish, or trade in Sea Foreigners to be dr 'en from Bering Sea Not exercised for all purposes Not relinquislied by treaties of 1824 and 1825 Pelagic sealing prohibited Pigott affair Prior to ukase of 1821 Prohibition against visiting waters Trequentod by sea-otters Protest* not lirected against Recognized by treaties of 1824 and i825 Summary and conclusions Ukase of 1821 in relation to CFnderstanding of United Si.ates as to Exercise of, by United States Acquiesced in by Great Britain until 1886 Bight acquired by United States as to easterly half Seizures United States do not rest their case altogether on right to Visited annually by revenue cutters Vessels seized Eadiak Island ; Early expeditions to mainland from ; Settled by Shelikof i Kciidiing the skins .... I Killible class, The. (See Bachelors.) I Killinf; : Eicusoive, cause of decrease .... Manner of, on islands I Killing grounds ; Located near hauling grounds Methods employed on 409 Page. 232 233 237 232 237 69, 298, 302 61-70 57, 295, 2y7, 301 43 Bering .. 42, 47, 61-70 41, 48 57 .. 55, 56, 61-70 44 45-48 42 or fur- 47 60 56 69 41, 49 76 78-85, 297 69, 298, 302 .. 70, 72, 76, 79 82 85 81, 82 82 27 26 163 176 163 IGl 163 I } -1 'i \ i li J h ■ J. — I .'J _, ifer ,,''J ■'^m I' I m 4 410 SUBJECT-INDEX OF CASE. Killing of certain number of male seals ; A benefit Does not aifcct birthrate Killing seals, regulations for Killing seals at sea. {See Pelagic sealing.) Krusenstern, island of Kuskoquim Bay Laws. (See Statutes.) Leaae of 1870 Allowed 100,000 male seals t« be taken Comparison of, with lease of 1890 ; Conditions of Consideration of Fourteen bid* for More advantageous than required by law • Practical workings of Terms of Lease of 1890 .... Comparison of, with lease of 1870 More advantageous than lease of 1870 Number of Oids for Lease. {Ss_f Lease of 1870 and Lease of 1890.) Legislation, protective. (See Statutes.) Letter by Pr. Merriam Letters from Naturalists. (See Naturalists.) Letters of L^mpson & Co. to British Government Limit of 100 miles : Enabled Eussia to prctect Pribilof herd in Bering Sea Why chosen .... Location of Bering Sea Location of Pribilof Islands London seal-skin industry ., Loi'iotaffair ,,. Loss from customs duties Loss if Alaskan herd destroyed ■ To France ; To Great Britain To the world To United States Makah Indians. (iS'ee Indians.) Male seals not injured by redriving Management : Approval of , by committees of Congress Government agents , Government working impracticable .... Improvement over Russian method of taking seals IM 154 150 n 12 134 135 m 134 135 135 135 139 135 145 140 146 145 240 243 4i) 40 11 15 272 51) 280 263 273 272 274 2iJ9 158 138 145 138 lei V .r SUBJECT-INDEX OF CASE. ]{iugement— Continued. Utnner of taking seals on the islands Methods of.... ■.. ■ Hot a cause of decrease Result of American UnlicdDsed working of rookeries impracticable Management of rookeries American •. Ruisian Msnagement of the seals ..i Control and domestication Ease of .... .... .... •■•. ..i. .••. Manner of hunting. Of white and Indian hunters JIanner of taking seals on the islands Manner of traveling Mapf : Of Pacific Ocean (See ako Charts.) Msritime dispute. {See Dispute.) Markets. Cbina Inthepast .... Means necessary for protection of Alaskan herd Men-of-war. (See Cruisers.) Method of killing seals on the islands Methods of management Meiioan legislation Migration. Antarctic seals hare no Course of Alaskan herd During, seal herd does not enter inland waters During, seal herd does not land ..., Lack of food supply, a cause of Manner of ti-areling during Of Alaskan seal herd Of Russian seal herd .... Seals are east of Four Mt. Pass during Seals travel in irregiJar body Winter weather a cause of [WiMr/tienrfiof 1892 Damages Prohibition of seal killing pending jKativcs of Pribilof Islands, condition of. (See Condition of natives.) JKaluralists, opinions of.... ...> .... Dr, Henry H. Giglioli Dr. J. A. Allen ,. 411 Page. *..* 165 .... 137 .... 176 .... 164 .... 138 ...■ 130 ...• 133 ■ •>• 130 .•*• 147 .... 147 .... 148 .... 190 .... 155 .... 125 62 130 266 250 163 137 236 123 123 127 126 123 125 122 129 125 125 123 84 6 , 4 242 24t 242 m \-m% 412 SUBJECT-INDEX OP CASE, -Continued. Naturalists, opinions of- Dr. P. L. Sclater Dr. Bapbael Blanchard Professor Lilljeborg Professor Nordenskiold Professor T. H. Huxley Nayal ressels. {See Cruisers.) New Archangel, founding of Newfoundland regulations protecting hair-seals New Zealand, protection of seals at Noonarbook, island of Nootka Sound controversy Nootka Sound convention (See also Treaty of 1790 between Great Britain and Spain.) Northeastern Sea. {See also Bering Sea, other names for) North Pacific Ocean, necessity of protecting seal herd in .... Northwest catch. {See Pelagic catch.) Northwest Coast of America : American and British trade on the American competition for Claims to British competition for Earl^ competition for Portion of, thrown open to trade for ten years Protests against Bussia's claim to, in 1821 Russian competition for .... Russia relinquished claim to large portion of, by treaties of 1824 and Spanish competition for ... Visited by Cook in 1778 Northwest Company Norton Sound Norwegian legislation Number of dead pups in 1891 Number of male seals, killing of, a benefit Number of seals allowed to be killed Number of seals lost of those killed Number of seals to be killed fixed by Secretary of the Treasury .... Occupation of owners of sealing vessels Officers of Imperial navy employed by Russian American Company Okhotsk, Sea of, Russian seal herd winters in Open-sea sealing. {See Pelagic sealing.) Other seal herds : Destruction of Destruction of, caused by indiscriminate killing Otter Island, sketch of Outfit of sealing vessels P^. ^■. 240 ^B Orerdriri 241 ^m 241 ^m Tery 241 ^H Orerheati 240 ^m Pacific Oc ^H 28 ^H Deck 225 ^H Jurie( 222 Bb Maps n ^M Protes 30 ^^ Sussia 40 nPl -^^^ }^i Panama le{ 35 ■k Fart first... 251 ^1 Fart seeonc ^B Fajmcnt of H Pearl fisher 51 H Of Aus 32 H Of Cey 26 ^M Of Mex . .;.. 29 H Of Pan 26 ^B Percentage c 58 ^m Percentage o oO H Percentage 26 H Period of gcs ad 1825 58 H Pelagic catol 29 H Cauadia 29 H Eighty t 29 H Examini 12,24 ■ Of 1886 236 B Of 1888 214 B Of 1889 154 B Of 1890 153 B Of 1891 195 B Of 189L>. 136 B Sir Geor 284 B Testimor 36 B Pelagic sealer 189 B Opinions B Opinions H loerease 218 H Testinion 219 B Weapons 1? B Pelagic sealir 189 B pelagic geali H (I SUBJBCT-INDEX OF CASE. 413 • Page. OrerdriTing 158 Skins saved when seals killed by 167 Very few scrls killed by 157 Orerheating. (See OTerdriying.) Pacific Ocean ; Charts of 52 Declarations of Russia concerning the term 63-56 Jurisdiction over, relinquished by Russia 66 Maps of 52 Protests against ukase directed to claim of jurisdiction over 49 Russia's attempt to exercise jurisdiction over, resisted 49 Term does not include Bering Sea 52,64,297 Panama legislation 236 Part first 9-86 Part second 87-291 Payment of award 5 Pearl fisheries : Of Australia 233 Of Ceylon • 233 Of Mexico 236 OfPanamn 236 Percentage of female seals taken by pelagic sealers 196 Percentage of pregnant females destroyed by pelagic sealing 207 Percentage of seals lost of those killed 195 Period of gestation .... 113 Pelagic catch : Canadian testimony as to the nutuber of females ■.... 201 Eighty to ninety per cent, femile seals 198 Examination of, on vessels seized 206 Of 1886 184 Of 1888 184 Of 1889 184 Of 1890 184 Of 1891 • 185 Of 1892, examination of 203 Sir George Baden -Powell's statement as to proportion of females in 200 Testimony of pelagic sealers as to number of feniak's in mm 205 Pelagic sealers : Opinions of, as to cause of decrease 181 Opinions of, as to need of protection 246 Increase of inexperienced '. 193 Testimony of, as to number of females in catch 205 Weapons used 190 Pelagic sealing, absolute prohibition of, necessary. (Sea Prohibition of pelagic scaling.) >■' 'f • '! .1 I !i i |li ■i 414 SUBJECT-INDEX OF CASE. Pelagic sealing . .■..; ;...• .•..; Age of Tessr'j t.'gaged in .■...' Comparison oi, with seal-skin industry Canadian investment in 1890 Cause of decrease .... Destruction of female seals by .... Destruction of pregnant females by Distance of, from islands Effects of Fire-arms introduced in History of Incrpiie of inexperienced hunters in Indian hunters, manner of Indians employed as himters prior to 1885 Makes the seals wild Methods of.... Number of persons employed in Canadian Percentage of seals lost of those killed by Prohibition of, by Russia Besults of Seals lost by sinking Seals lost by wounding Speculative Two ways in which a seal may be killed by, and not secured VcBsel's outfit, etc Vessels used in Waste of life by Peninsula of Alaska Period between 1862 and 1867 Period between the treaties of 1824 and 1825 and tlie cession of Alaska . Pigott affair •■• Podding of seals on killing grounds Prayer for decision .... • Preservation of seal herd. (See Protection of ser'. herd.) Pribilof Islands Absence of harbors Anchorage at ; ■ Animal life of .... Climate Decrease as Been on Discovery of Geographical sketch of Home of the fur-aeal .... Inhabitants of Location of Pa?e. 297 276 78,80,81,277 ..•. 275 170 197 .■■. 207,209 2oS 21C 188 187 193 189 187 192 189 278 IM U ISO m 191 282 190 189 187 ... 190,216 13 .... G8-70 .... 61-70 .... 45-19 105 163 15,8? 18 18 W 18, W 166 23 15-:'t) 91 20 15 Pai»e. 297 276 78,80,81,277 .... 27.-) 170 107 .... 207,209 253 21C 188 1S7 193 189 187 192 189 27S IM H \\*> 104 191 282 190 189 187 190,216 l;! .... 68-70 .... 61-70 .... 4549 105 163 15,Sf> It I'J 18,90 166 23 15-20 91 20 15 SUBJECT-INDEX OF CASE. 415 Pribilof Wands— Continued. Page. Natives, condition of. (See Condition of Natires.) Kookories 91 ScbooU on, established 135 St. George Island 17,91 St.PaulIsland 16,91 Termed "Golden Islands" 74 Vegetation of 20 Leases of. (See Lease of 187C and Lease of 1890.) Printod Case of United States 6 Division of 6 rrjileffes of Russian American Company 35 Proclamation : Issued from Sitka in 1864 67 Of President of United States , 8.3 Proiliiets of Alaska 77 Prohibition of pelagic sealing : Absolute, necessary .._ 251, 264, 301 During a close season 2.53 In Bering Sea 250 British opinions of 257 Limited 253 Within a zone' 258 Prohibition of seal killing pending arbitration. (See Modus Vivendi of 1892.) Prohibition of use of firearms 250 Property interest in seal herd justifies protection 300 Property of United States in Alaskan seal herd 300,302 Protection ; By Argentine Republic, of fur-seals 229 By Australia, of pearl fisheries 23' By Ceylon, of pearl fisheries 233 By Chile, of fur-seals 229 By France, of Algerian coral fisheries 235 By France, of fisheries 234 By Great Britain, of hair-seal 225 By Great Britain, of the seal 221 By Italy, of coral fisheries 235 By Jopan, of fur-seals 229 By Mciico, of pearl fisheries 236 By New Zealand, of fur-seals 222 By Norway, of whalrs 23G By Panama, of pearl l?sheries 236 By Russia : Of fur-seals » 229 Of Imir-seals '. .... 228 By Uruguay, of fur-seals 229 [315] 2 E S." .'' % i 416 SUBJECT-INDEX OF CASE. Protection — Continued . Great Britain and United States should concur in protecting seals Necessity of, for cows ,... Neccsgity of, for seal life Of Alaaknn herd : American furriers on British recognition of need of By close season By prohibiting firearms .... By prohihilion of pelagic Bualiug, {See Prohibition of pelagic sealing.) By zone about the islands Canadian recognition of necessity for Close season unavailable for Conclusions reached as to Dr. Blanchard on ' Pp. Giglioli on Dr. Sclater on .... French furriers on Indian hunters on Joint Commissioner's report on Justified by property interest of United States London furriers on .... Means necessary for .... United States and Great Britain should concur in Necessity of Opinions of naturalists Pelagic sealers on .... Professor Huxley on Professor Lilljeborg on Professor Nordenskiold on Various witnesses on Of female seals Of fur-seals : By Argentine Republic By Chile By Japan By other nations By Uruguay Of hair- seal : By Holland By Germany .... .... .... .... .... .... .... By Great Britain By Newfoundland By Russia .... .... .... .... .... ,,,, By Sweden and Norway P»ge. 302 151 221 245 239 253 251) 2.5S 242 254 249 241 241 240 244 247 239 300 243 230 303 238 240 24« 240 241 241 24S 150 a 229 229 228 229 225 22' 22/ SUBJECT-INDEX OF CASE. 417 ProWction— Continued. Of bttir-spiil— Continued. t'oiuMirrenee of nations in In I'lispian Sea In Greenland fishery In White Sea Of Irish ovHter beds Of laud and waters granted to Russian American Company .... {See also Jurisdiction over Bering Sea.) Of miirino life in extraterritorial waters Of rights of Russian American Company, by means of cruisers Ri'sult.s of, of AhiHkan herd Hosults if Alaskan herd is not protected Of Scotch hen-ing fisheries Of sealM at Capo of Good Hope Of seals at Falkland Islands Of seals at New Zealand Rogiilations of 1869 for Protfrtion and preservation Protests against ukase of 1821 : Directed against assumption of jurisdiction over Pacific Ocean Not directed against jurisdiction over Bering Sea (See also Ukase of 1821.) Birth of Birth of, in water impossible Birtli of, on kelp beds impossible Classification of .... • ■• Departure of, from islands Dependence of, on their mothers Destruction of, by killing mothers Inability to swim Killing of, for food, prohibited Learning to swim Locomotion of, on land .'. .... Number of, at a birth Podding of Tamcness of .... .... .... ; Vitality of Weight of Pups, dead : Do not die of epidemic Died of starvation Increase of Inspected by British Bering Sea Commissioners Number of, prior to 1884 Poge, 227 228 227 228 232 41 231 43, 44, 61-70 285 28.5 232 224 221 222 133 218 49 49 98 98 102 104 99 106 lOG .... 115,212 99 154 106 105 113 105 149 107 99 21G .... 213, 215 213 215 212 111' if [H15] 2 E 2 418 SUBJECT-INDEX CASE. Pups, dead — Continued. Number of, in 1801 On the rookeries Time of appearance of „„ Pup seals. (See Pups.) Quarantine act Q,uc8tion of damages Questions submitted to arbitration Raids : Difllcult to make Number of, on rookeries , On rookeries, not a cause nf decrease Ratmanof Island Reason pregnant females are taken by pelagic sealers Rcdriving .,., Male seals not injured by .... Regulations : Against use of firearms .... As to number killed For killing Protecting breeding seals from moll ion Of 1869 Only bachelor seals killed on the islands Russian, as to killing seals To bo established by the arbitrators Replies of scientists. (See Protection). Report of congressional committee. (See Alaska.) Reports of Joint Commission Repi'oduction. (See Coition.) Rciiults of pelagic sealing Results of protecting Alaskan herd Residts if Alaskan herd is not protected Revenue. (See United States.) Rifle. (See Firearms.) Rights of Russian American Company. (See Jurisdiction over Bering Sea.) Rookeries Antarctic, depletion of Breeding grounds Condition of, show decrease Disorganization of .... Hauling grounds .... Management of. (See Management.) On Cape Horn On Kurile Islands On Lobos Islands Raids on. (See Raids.) Ross, Fort Pa((o. 211 212 213 237 3 1h 175 171 71 208 15S 158 153 153 150 152 133 152 130 3 7,3 m 2S5 285 (II 2ii5 til ICi) 112 92 229 229 228 H '•! SUBJECT-INDEX OF CASE. 419 BuMift! PoRO. Alffajs recognized interests of Buasiuii American Company 60 Attempt of, to exercise jurisdiction over FaciQo Oucan, resisted 60 Ceision of Alaska 70 Dcc'lurutions regarding term "PaciQc Ocean" 58-56 Object in excluding Bering Sea from effect of treaties 59 Relinquished jurisdiction orcr Pacific Uueuu and largo portion of coast cluinied 72, 76 Bights of, as to seal fisheries passed to United States 70, 302 Treaty of 1824 between United Stales and. {Hee Treoty of 1824 between the United States and Russia.) Treaty of 1825 between Groat Britain and. (See Treaty of 1825 between Great Britain and Bussin.) Treaty of 1807 between the United States and. (See Treaty of 1867 between the United States and Russia ) {See aim Jurisdiction over Bering Sea.) Russian American colonies. (See Russian American Company.) liussian AmiTican Company : Admi istration of affairs of 86 charters: First charter 85 Second charter 88 Second charter (confirmation of) 61 Third charter , 61 Exclusive rights of. (See Jurisdiction oyer Bering Sea.) Kur-seftls most important item of business of 62, 63 luir trade in colonies carried on exclusively by 85, 7 Uistory of 34 Intevcsts of, always recognized by Russian Government 60 Obligations of .... 36 Officers of Imperial navy in service of 36 Organization of 34 Outgrowth of trading associations 34 I'iiicl no royalty to Government 37 Period from 1862 to 1867 68, 69 Powers of chief manager 36 Protection of waters of 41, 46, 47, 61-70 Rights and rivilegesof 85 Trade of, with China 37 Whaling company prohibited from cruising in waters frequented by marine animals 68 (See also Jur'sdiction over Bering Sea.) Russian competition for Northwest Coast 26 Eussian management of rookeries 130 isian method of taking seals, improvement orer .... 161 I ,i ( f r f' i9ir i * It' 1 kiii^ . \ d20 SUBJECT-INDEX OP CASE. KuBsiin loal herd : Doorcase of DiHtinotioii between, and Alaska .... Docs not. mingle with Alaskan herd Migration of .... Winters in Sou of Okhotsk Saltin^r the skins tian JJifffu. Kntcrtt Bering Sea in 1883 Saj/ivanl case. (See United States courts.) Schools on Pribilof Islands ostabli:-t It; I, <'■ If '■ ;i I 1 i '; ,-■ ■■•:>': in t1' Ui "Ji'. . M!:- • Mi mm,- 422 SUBJECT-INDEX OF CASE. ^ealsking — Continusd. Number of, imported into United States Price in London market of ..., ..., Snltingtlie Sex of the animals can be told from Seizures : Effects of, on staling fleet Of vessels in J*c;ri^g Sea Si)paratc report? .of CoinuilBsioners Ses of seals counut be distinguished in the water Shelikof, settled Kadiak Island Shores, ot iJeriiig Sea : Discovery of Occupation of When became Eussian territory Shotgun. (See Firearms.) Si-iking of seals killed by pelagic sealers Sinking, use of gaff to secure seals Sitka, founding of Skins. {See Sealskins.) Jlaughter of 1868 240,000 bachelors killed Slaughter of seals prior to 1799 South Sea. (See Pacific Ocean.) Spain ; Treaty of 1790 between Great Britain and. Great Britain and Sjoain.) Treaty of 1619 with United States. United States and Spain.) Spanish coUipetition for Northwest Coast Spauisli explorations on Northwest Coast Spear used by Indian hunting Speoulatior : On fiTii '' supply of skins Pelagic aling a Speech of Sumner .... Speed in swimming Statutes . Of Australia, protecting pearl fisheries ,. Of Canada, jjrotecting hair-seals Of Ceylon, protecting pearl fisheries Of Falkland Islands, protecting fur-seals Of France, protecting fisheries Of Germany, protecting hair- seals Of Great Britain, protecting hair-seals ,. Of Holland, protecting hair-seals (Sev Treaty of (See Treaty of 1819 fagc. .... 270 271 .,., ltl3 193 .... 181 .... 82 .... 8 t... 197 26 ,,,, 20 .... 20 .... 25 .... 191 .... 191 .... 28 .... 132 .... 133 ... 130 1790 between between Uie 29 30 189 283 233 7o,7!) 1)9 233 223 233 221 23-1 .■).■)• '«.^ SUBJECT-INDEX OF C\SE, 423 Swtutes-Continued. Page. Of Itnly, protecting coral fisliorics 235 Of Mexico, protecting pearl fisheries 236 OiXewfoiindland, protecting hair-sealfl 225 Of New Zoaland, protecting f ur-seala 222 Of Norway, protscting wbttles 236 Of Panamii, protecting pearl fisheriea 230 Of Russia, protecting hair- scab 227,228 Of Sweden and Norway, protecting hair-seals 227 Of United States. {See Alaska.) Of Druguar, protecting fur-seals 229 Protecting game 230 Protecting Irish Oyster Bods 232 Protecting Sea Fisheries 229 Scotch Herring Fishery Act 232 St. George Island 17,91 St. Helena act 237 St.PaulIsland 16,01 Sumner, speecli of 75^ 79 Sivimming, speed of the seal while 119 Ttrritorial di.5pute. (See Dispute) I.erra ilel Fuego, seals of 123 lime of departure. (.S'ee a/*o Jurisdiction oTer Bering Sea) f 'ause of treaties of 1821 and 1825 Declaratory of existing rights Extension of jurisdiction . ... Limit .if 100 miles, why chosen Objects of .... .... .... .... .„, Proposed niodiflc»+ion of, by Eussia .... Protests against, not directed against jurisdiction over Bering Sea .... Ecason why limit of 100 miles chosen Eights of Eussia in Bering Sea confirmed by Purpose of .... .... .. Vessels prohibited from approaching coasts within 100 miles United States : Acquired jurisdiction over easterly part of Bering Sea Acquired Eussia's rights as to Alaskan «eal herd Action relative to Alaska since the cession. {See Alaska.) Cession of Alaska to ,, Claim of, before the Tribunal Conduct of, may be sanctioned by Tribunal of Arbitration Do not rest their case altogether on jurisdiction over Bering J^ea Duty of, to protect seal herd Modus Vivendi of 1892 between Oreat Britain and. (See Modus rici 1892.) Portion of Bering Sea ceded to rage, 51 5S 51 .... 51-61 5S 54-i-,7,61-7n :r> .... 3G,5; 5't .iC .... "0-7s .... 70. Td ■.]i 29(1 .^ ;iiji :)iil .... »\ ;,[ .... 41, 4H 42 39 ,1S 60 .... 42,4:1 3!' ..„ 70,*tl 7«,7C,;« .... » ■» of :! i Spain uuder Sea 51 5S 51 .... 51-(il 5S 54^57, 61-7n 52 .... 56, 5T 59 56 .... 70 7s .... 70,;(! 72 SI 32 290 :iiil .V. 41,4. 42 .39 .')" ;tii 42.43 7u.; 72,70,*'2 S«a ,di>■ '■ ' * ?'-■ [J- 4 Boring Sea Commission — Continued. Disagreement as to application of Article ix Disagreement of .... roniinl appointment of Meetings of Meetings of, lield without formal records Necessity of separate report .... .... Object of Proceed to Bering »Sca Reports of Return of Sources of information of Visit rookeries .... .... .... Birthrate Explanation of diagrams of How, may be lessened Interference with, injurious .... Not affected by killing certain number of males On what depends .... .... .... Birth. (See Pups.) British Commissioners, appointment of Bulls : Ago at which, go on breeding grounds .... Arrival of, at islands Battling of Comparative size of co'vs and .... Copulation No lack of Cateh of scaling vessels Table of Causes of decrease. (See Decrease). Close season C. M. Larapson & Co., letter of Must practically prohibit .... Coition. (See Bulls.) Commander fur-seals : Difference between Alaskan fur-se&is and .... .... Do not intermingle witli Alaskan Commissioners. (See AnBerican Comtuisjionors and British Commissioners.) Conclusion as to food anu feeding Conclusions of American CoiTimissioners Condition of rookeries. (See Rookeries.) Copulation. (See Bulls.) Cows : Age of puberty in .... Arrival of, at islands 3H 31ii 3U 315 315 318 312 31;) 305 3U ^308,313 333 3« 352 3W 348 34!) 351 311 32S 325, 3S5 325 32; 327 31ii 365 3iJiJ 310 3ii" 324 323 3W ilil 32- 32-* 325. 3^' ii *i' j sioners.) 3H 31ii 3U 315 315 318 312 313 305 3U 308,313 333 3« 352 3tt 348 34!) 351 311 32S . 325, 3bo 325 32; 32- 34',! 365 3ij6 3:0 3i;- 3T6 324 323 3E« 379 32" 32" ... 325. 3S.' SUBJECT-INDEX OF REPORTS. Cows— Continued . Cliissosof Com) "^tive sizo of bulls and Decrc. ■ is among Destruction of, by pelagic senling Effects on miilo life of decrease of Feediiif; l■xcursion.^ by Fertilization of young Nursing, destroyed by pelagic sealing .... One reason, are killed by pelagic scalers Percentage of, in catch of sealing vessels Sucitlo their own pups .... Ilioliarem Deatlirate Explanation of diagrams of Man does not necessarily increase Decrease : Caused by killing of cows Caused by man Cause of, mistaken for effect Great, in last few years In cows difficult to notice Is in female portion of herd Native testimony as to Not cau.sed by lack of male life .... Of cows, effect of, on male life .... Of seal Licrd affirmed in joint report Of seals has taken place On Northeast Point Rookery Pelagic scaling, cause of P.oo'jerics afford evidence of Shown by daily killing Shown by difficulty to obtain quota .Shown by difficulty to obtain quota in 1887 Shown by d'minished size of ludispiitcd Why, of cows not noticed Diagrams : Conclusions from Effects shown by .... Explanation of .... Driving. (See Management.) Enemies, natural, of fur-seal Hvidence taken by Commissioners Eiterniination imminent W'fding, conclusions as to (*p also Cows.) 429 Page. 351 327 341 364 SU 329 328 365 358 3G7 32G 327 346 353 348 351 345 342 334 341 341 334 349 344 309 379 333 345, 373 339, 340 343 338 342 344 338 344 358 359 352 :;;)i :;33 377 396 I- '■ i I ! :i1i h\-i ti a U>l I* , M 430 SUBJECT-INDEX OF REPORTS. Food I Conclusion as to Examination made at Waeliington, D. C. Examination made on Fribilof Islands Found in stomachs Female seals. (See Cows.) Flower, Prof. W. H Flower, Professor, on seals Food • Fur-seals Bering Sea Class of, killed Distinction between hair-seals and Females : (See Cows.) Food of Ilomes of the Killing of, in the water. (See Pelagic sealing, Life history of Migrations of Reasons I'ribilof Islands are homes of (See Alaskan fur-seals.) GafF, the Grass zones, evidence of decrease Harem Diminished size of ITair-soals, distinction between fur-seals and Hunters. (See Pelagic sealing.) Indian hunters. (See Pelagic sealing.) Investigation by Bering Sea Commission Joint Report Killer-whales Killing : Of pups for food Possibility of restricting Regulation of London Trade Sales Male seals, elaises of Manogement Criticisms of manner of driving Driving .... Male seals not injured by driving Recommendation as to .... Mammals, division of Meetings. (See Bering Sea Commission.) Migration : Course of, northward ) Page, 396 304 393 393 377 320 329,393 321 319 3(10 320 329 322 322 323 330 363 339 327 3H 320 313 307 391 361 3i;o 3W 369 351 362 361 360 362 378 319 324 SUn.TF.rT INDKX' OF UKPOni'S. Migration— Continiu'd. ExtPiit oF Li'iiKtli of time of lligrntion of fur-Hcals Nortlienst Foinl Rookory, dccrense on Open-sea, killing of seals. (See Poliigic sculing.) Pelagic! si'uliiig Cause of (Icoreiiso of Alaskan licrd .... Cornparud with raids on the rookeries Coniparod with sealing on land Destruction of cows by Destruction of nursing cows by Great numbers wounded by .... Growth of History of Indiuii hunters liidiseriniinate ... .... Licensing of no avail .... Manner of hunting Must bo suppresaed .... .... .... One reason cows are killed in Percentage of cows in catch .... .... I'ei'centage of seals lost in Priiliibition of, {See Prohibition.) Season of, in Boring Sea Ihefiaff Vessels and crow Waste of life caused by .... .... Yearly catch Pribilof Islands, reasons for being homo of fur-seals Percentage of seals lost in pelagic sealing Progress ol' extermination ProliibitioM, absolute, necessary .... .... Protection : By close season. (See Close season.) Duty of, of seal herd afliruied .... Lci;alizing pelagic sealing no Limited, inadequate Nccessiiry .... Zone of, inadequate I'rovisions of iigroement between United States and Great Britain Pups; Accidental births of, on coast .\qnalic birth of, impossible Arrival of, at islands .... .... l!irtli'of,tlie Page. 32-1 330 323 333 363 373 37H 372 301 3G5 370 371 364 3()3 3G6, 37.5 376 363 380 358 367 370 365 303 303 300 306 330 370 377 380 309 376 374 374. 374 312 330 327 385 326 I I ^If^ ii ,?'■ K m i [H15] 2 F ,' Ml u fcti^iil tfi 432 SUBJKCT-INDEX 01- HEroUTS. Pups— Contiiiuod. Born on land Can not niirso in water .... Cows MiK'klo only their own .... Deiid, on tlio rookeries Driicndcncc on their niotlu'r.s Dreiul thn water EITect of birth of Mingle Killed for food Nuniljcr of, at birth Podding of Raids on the rookeries Coiiipnrcd Mith pelagic sealing .... Roguhition of killing Report, joint AfBrm.si decrenic of seal herd Affirms iluty to protect seal lierd Concluiions reached in Differences of opinion make further, impossible Rejiort of Aniericnn Commissioners, divisions of Rejiorts of Bering Sea Commission Reports, separate, necessity of Report of Treasury Agent Goff Report of United States Bering Sea Co)nnii8sioncrs. Commi.t! :ifi.'i ;t2ii lis; ;i^ 3(;i 32(; 327 378 378 318 307, 318 30!) 30il m 300 331 3(15 31H 3 lit 1 305 33li X 3;h 305 ;i6'." 382 3S1 381, 3b2 381 383 30S :i35 SUBJECr-INDKX OK liKroUTS. Treaty— Continued. Artiili' IV of Dill'i'i'iMlly interproti'd hy Aiiicriciiii iiiul Dritish Results of iippliciition of Tiviitv, rr(i\isioii» of Unite uf lil'c. (Xee rdajjic sealing.) Witiii'ssps t)J?» 4ii*yl:i :,s • /,• m J i: r:n.l T Pre UNITED STATES. No. 7 (1893). BEHRING SEA ARBITRATION. THE COUNTER CASE OF The United States BEFORE THE TRIBUNAL OF ARBITRATION CONVENED AT PARIS UNDEK THE PROVISIONS OP THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN, CONCLUDED FEBRUARY 29, 1892. Presented to both Houses of Parliament by Command of ITer Majesti/, March 1893. LONDON: PRINTED FOR HER MAJESTY'S STATIONERY OFFICE, BY HABRISON AND SONS, ST. MARTIN'S LAME, FBINTBBB IN OBDIMABT TO HBU IUJB8TT. And to be pnrohased, either directly or through any Bookseller, from ETRE & SPOTTIUWOODE, £a»t Uaruino Stubet, Flbk- STbRBT, E.C., anil 82, ARiNODoir Stbbbt, WBBTianBTBB, 8.W.; or JOHN MENZIES A Co., 12, Uanotbb Strbbt, Edinbvboh, and 90, Wbst «ilb Sthbbt, Olaroow, or HODUES, FIGUIS, ft Co., Limited, 104, Ubafton Stbbbt, Dublix. ^So i. \U' il ^kl ^h i V H {'■■ s;" TABLE OF CONTENTS. COUNTER CASE. INTRODUCTION. The CorxTKB Case op the United Status^: Its object .... .... .... Oriirinal Britisih Cmc and Siipploinciit PART FIRST, ' UHrLY OF THE UNITED STATB8 TO THK IlIUTIbH CASE FIHST I'BESENTED. The Tkie Issues in the Phesent CoNTitovEnsv : DifTorenco of views as to tlie objfct of the pros'^nt arbitmtion Protoi'tiiin of goals the main object of the urbitruf ion Orii;in iif the controversy u.s to jurisdiction Liinl Piilisl)ury"8 reference to the Hiissian ukase Mr. Itnvaril invites internatioiial cooperation Mr. liliii'ic's statement of the issues .... Justification of seizures of ecalin;; vessels .... I.iird Salisbury again introduces the ukase.... Till' f lilted States sought international agreement Tin: KiiHCNKors Tkanslatiox op Certai.v RrssiAX Doci'mknts ; Imposition jinicticed u|)on the United States Government .... I'artiiil restatement of its case necessary .... .... Tin; SiTf.tTiov ABOUT HniuNa Ska and on tmi-: Xi)1itii\vi:8T Coast down to TlIK Thhatiks of 1824. '25: Uus^iii's colonial system .... ... lluscofiTiJO tTm]itpr 1 of British fuse Distinction between Bering Sea region and Piuillc Ok an L'kai-cof 1821 I'JIKO- / 7 s N it 10 11 12 V.i i:t It i;. 15 15 10 18 I It i I Hi;! m \ '-' ; ■'^ u '%\ J £\' ^) dm [:UG] IV TABLK OF CONTEXTS. TiiK SrTi'ATios ABOUT Bkrino Sha, etc.— Continued. Chanii'tor of control rlaimi'tl ovi'P Bering Sea No exclusive territorinljurisdiotinn claimed Protest against ukuse and resulting treaties Case of the /"enr/ TkUIOU FOLIOWINO THE TrBATIES : Continuation of the colonial system Case of the ior/o^ .... Chapter IV of tlie British Case Visits of whalers to Bering Sea Rif^hts to protect seals not relinquished .... Evidence of surveillance over Bering Sea .... Conclusions from foregoing evidence Russia's action in 1802 Final observations on historical and jurisdictional qiiestions First, Russian sealskin industry Second, Russia never renounced her right to protect such industry Third, United States's right to protect, in accord with rights asserted by Russia .... The RtouT of Fbotectiox and of Pbofertt in the Alaskan Seal Hebu. British view of protection and property claims History of protection and property claims Mr. Blaine insisted on right of protection .... Mr. Blaine asserted ownership in seals Jurisdictional questions not the true issues Mare elauaum doctrine inapplicable .... Mr. Phelps asserted ownership in the sealeries All acts not justifiable because committed on high teas Growth of international law The United States adopt Mr. Phelps's view* Lord Salisbury in error .... Rights arising out of ownership of islands and habits of seals All facts relating to property claim fully discussed Claim of protection and ownership not new Case of the Harriet is i:t 20 23 21 2.J 2fi i» 2!t .KJ 30 31 32 32 32 ■■)3 33 34 34 3o 3,) 3.5 % 3« 37 PABT SEOOND. bel'lx of thb united states to that pobtiion of the case op obbat dbitilx contained in the kefobt of the bbiti6h ccmvissionebs. Tub Bbitisu Cohhissionebs and theib Repobt: The Bering Sea Commission The British Commissioners Secretary Blaine's note to the British Minister Meetings of the Joint Commission Report of the British Connuissiouers 43 45 4.1 4ti 46 '11 il i QBSAT BBlTilS SEHS. .... « .... ^ 4.) .. * . « TABLE OF CONTENTS. V I'ugo. FiHST, Nkw Propositions Allkoed on Mattkus Alubady Considkked: Habili uffhefur-seah. 1. Distribution of seals iii Berinjr Soa and intoniiiii|;liiit of hcnl : Tiit(>rniiiigliii)r of tlio Aliisiiim iiiiil Runsiun licnl» 4K Chiirts No8. Ill iiiul IV of the Report .19 Cliart No. II of the Report 40 Data from which the charts wore compiled .... 40 limufficiency of data 50 Principal data n>lied upon in Report 50 Chart of cruises in Bering Sea in 1892 51 Scaling chart of 1892 51 2. Alleged promiscuous nursing of pups by female seals : Promiscuous nursing denied 53 Elliott and Bryant as authonties in the Re]iurt SJJ Cow'ji affection for her young .... 53 Analogy with other animals 54 Authorities relied ujion in the RepoH oV Mr. C. n. Jackson a questionable authority 55 Sir F. McCoy as an authority • 55 ;). Period at which the female seals go into the water 57 Position taken by the Report and the authorities 57 Cai)t. Bryant's statements.... ... .... 58 The one authority for the Report's position 59 Testimony of C. II. Townsend .... .... 59 Testimony of J. Stanloy-Brown (K) 4. Aquatic coition : Afllrraation of its possibility by the Report tiO The evidence in favor of aquatic coition .... ... (}1 Capt. Bryant as an authority 02 W. II. Dall as an authority 02 Insufficiency of the evidence advanced by the Report 03 Inconsistencies of the Report .... (i3 Late arrival of the cows at the islands .... 04 Management as aii alleged cause of decreate. The niethod8 admitted to be almost perfect .... 05 Excessive killing alleged 05 Proof must be limited to period, 1870-1880 65 Admission as to period after decided decrease 66 Ii'rclcvuncy of such admission 67 Failure of the Report to show change of management after 1880 08 Reservation as to charges of fraud 08 Foundation of charge of excessive killing 09 Capt. Bryai.t as a witness for the Commissioners .... .. .... .... 09 Reasons for his report 69 Divisions of evideuce in the Report 71 [316] A 2 ' ,i.1: f m v: tahle ok contknts. lilii :;■■: ^ FIK8T, NkW iMorOHITIONH, BTC. — Coiitimuul. Mauai/emvnt ax an tillt'/fed vaiiie of ihrrea»e—Co\\{'\\nmi\. Frrelovoncy of tho first division ... ... .... Unfnirnoss of statoniciits as tu RiiHsiiin jieriod .... Tho miiiibei' of seals killed from IWK) to ISfiS Second division of evidence .... '' Coinpnriions of hurenw, 1870 to 18110, irrelevant The curtailment of H. W. Elliott's statement Harems in 1801 Surplus of virile males Size of harems in 1892 Alleged lummary of a roiwrt of 11. W. Elliott in 1890 Allegeil recognition of decrease by lessees Average weights of Alaskan cut^^h, 1870-1889 .... Number of seals taken from Northeast Point Alleged resort to resen-ed areas in 1879 No hauling grounds over roHcn'od .... Overdriving and redriving subsequent to 1880, irrelevant Denial of decrease prior to 1880 Pelagic sealing. The Re])ort, an apology for pelagic sealing 1. That tho percenUigo of female seals in pelagic catch is not large. The Indian evidence submitted .... Testimony of intereBted jwrticn submitted .... Percentage of females admitted to be taken .... Statements inconnistent with the Report ... The SbiU'ments in the Report denied Capt. Hooper's in ventigations, summer of 1892 • • ■ Catches of vessels seizetl by Russia, 1892 ; 90 per cent, females Examination of pelagic catches, 1892 ' Proportion of females taken at sea prior to 1870 2. That pt^lagic sealing in Bering Sea is not as destructive to seal pelagic sealing in tho North Fac-iflc. Grounds for the Rejiort's statements Pregnant females Nursing females Capt. Hooper's investigations, 1802 Examination of seals by C. H. Townsend, 1892.... Deiul pups on tho rookeries Cause of death ' Mr. Blaine's note of Manh 1, 1890 Causes of death alleged in the Re|)ort * 1. Driving and killing of the mothers '' 2. An epidemic • '' - • ?. Pups crushed in stampedes 1'.,. life "I 71 ;\ 71 7t 7!i 7!l 7!l M.I .Ml SI SI SI K St s:i M SI S4 83 S"l m; Mi S7 \'< yi S!l Ml 90 - S TABLE OF C0NTKNT8. VU Fii'T, Nkw PftOPOSiTiONS, RTC— Continued. Pflagip /c(i/i»j— Continued. 2. That pelagic loaling in Bering Hon is not destructive to seal life as pi'lngio sealing in tlie North Paoiflo — Continued. 4. Possible raids os a cause All tlio bodies emaciated Ureat decrease of dead pups in 1H92 Cause of decrease of dead pups .... .... Increased mortality on Russian rookeries Comparative sizes of Bering idea and Pucifle catches Sealing season in Bering Sea and Pacific compared Arorago daily catch in Bering Sea and Pacific compared 3. TImt the waste of life resulting from pelagic sealing is iusignifi* cant. Waste of life insignificant I The evidence advanced in the Report Percentage of seals lost by Indians Percentage of seals lost by white hunters Tabulated statement of white hunters .... Inconsistencies of statements Sources of " White Hunters' " table Table only gives seals lost by sinking Seals lost by wounding The bases for the apology unwarranted.... Second, Nkw Mattbb Alleqed not Ukrbtoforb DisciriisRD. Halifji of the fur-seal*. 1. That the Alaskan seal herd has a defined winter habitat. The " winter habitot " theory Object of proposing this theory The bulls do not resort to the " (9(N/er AaiiVar' The data insufllcient to establish... Testimony in opposition Seals followed along Vancouver Island Seals scattered during winter months .... Seals foimd in lot. 40° N. and long. 172° W New migration chart presented with Counter Case 2. That the Alaskan seal herd has changed its habits as a result of disturbance on the breeding islands and of pelagic sealing. Increased pelagic nature alleged " Stagey " seals taken at sea Table of average catch per boat and per man Why averages for 1885 and 1886 are not used Such averages of no value Average per bo:it in "spring catch," 1886-1 Increase pelagic nature, an assumption .... ... Change of rookeries based on hearsay .... New Asiatic rookeries 00 Ul Ul 93 83 93 94 94 95 95 95 95 94 f6 97 97 98 09 100 101 101 102 103 104 104 105 105 106 106 107 107 107 108 109 103 110 i. I I Ji V i' i f ,i i ; f - W'^M •\ 'f|i VIII TAULK OF CONTEN'J S. Skiond, Nbw Matteh Aueoed not Hbbktofore DiHCrsBEp -Colli inuod. C'oiitiliun Jl;i'•^ ■*'!§ Th 1i 1 ^ r '1 ■ j 1;. - .7, ; Jit bil$ of the fiir-tPah—Couiinuei]. 2. That llio AluKkan srnl IipkI Iihs rlmnged U» linbitr, cti-. One liome of Alnskan 8val herd I'ribilof I^nnds in)mhited for one hundred years Slaughter on Robben Island, 1851-'53 Error in statement relied on by the Report AUfffed fraudulent adminintrationon the Pribllof Inlands: Indirect chnrRes of frond in the Report Tlie parties i-hnrged Great Britain und the frauds charged Reason the United States consider tlie chnrgo Fraud, ns alleged in the Roport No authority for charges II. W. Elliott's statements distorted Counting skins on Pribilof Islands Recount at San Francisco A few bundles opened Packing and shipment Only two skins in a bundle Three skins in a bundle would be detected Implied fraud in weight of bundles Explanation of weight Various oounts of skins compored Practical agreement of pounts Moore's report of 1875 Employes of leasees as Government agents IRD, REOrtATIONS rBOPOSBD IK THE RbPORT. The only regulations sufllcient Jurisdictio.i of Tribunal of Arbitration Unfairness of regulations proposed.... .... (a) Improvemenfn in the methods of taking seals. On Pribilof Islands At sea • Use of the rillo obsolete Licenses applied to only one-half of the hunters Increased licenses of steam vessels of no value (i) Restriction in the number of seals to be taken. Unfairness of limitations proposed (c) Spemfic scheme of regulations recommended. Rogiihitions recommended .... Limitation of quota on Pribilof Islands Protective zone proposed Close season proposed .... .... Basis of proposed close season Close season would have little effect Not entering Bering tJea before July 1, no concession Ill III l!i III K 11:1 11:1 111 II.; II.-, II.-. lli: 11; ih lis lb 11:1 11:1 12U ]i\ l:'l l:'i \ii lj:i l:'.! la i:4 lij K> l:'.-| l:'.-i lid ]:'0 12ti Ei 1% TAB1.K OV COXTKXTS. IX [linn, REorr-ATtovs PRopoBi:n i.v tiik Rki'obt— rDntimicil. I •) Sperijic nc/ifmi' of rf//iilafii>»s recomini-iulfil — I'mitiiiiieil. P«Ke- "Coiii|)HiMi»t.ory udjustiiientij" propospd 127 Siipixwl peltigic ciitcli, 10,000 a wock • .... 128 L'nfiiirm'!s takkn in the Cask 136 tou or CoBMBK Cash 137 ($11! f> !? If 1 i \w III ^i^l'i II' III :■ t * ■f r. bitra and( here\ the I panie sponc Case, heret Th objecl rebut havei could therei [31i COUNTER CASE or THE UNITED STATES. INTRODUCTION Pursuant to Article IV of the Treaty of Ar- counter Cwe. bitration of 1892, between the United States and Great Britain, the Agent of the (Jnited States herewith presents to the Tribunal of Arbitration the Counter Case of his Government, accom- panied by certain additional documents, corre- spondence, and evidence, in reply to the Printed Case, documents, correspondence, and evidence heretofore submitted by Great Britain. The United States conceive it to be the main object of »ame. object of the Counter Cases to present matter in rebuttal of such points raised by the Cases as have not already been sufficiently dealt with, and could not reasonably have been so dealt with, therein. They do not, therefore, regard them- selves as now called upon to traverse all the posi [316] B I ; I, jeli !fl ■ 1% : Original British Case Md supplement. I 3 IXTRODUfTTON. Object of •nine tions maintained by Great Britain in its Printed Case, and, where any of such positions not dis- cussed or refuted herein are at variance with those assumed by the United States in tbeir Printed Case, the Tribunal is respectfully referred to that document for a sufficient expression of their views concerning the matters in controversy. The United States will deal more fully and at later stages of this controversy, through the printed and oral arguments of their ( ounsel,witli all matters requiring argumentative discussion. On the 5th day of September, 1892, the Agent of the United States received from the Agent of Her Britannic Majesty copies of the Printed Case of Great Britain. The United States considered that the Case thus presented was not a full com- pliance with the terms of the Treaty. A diplo- matic correspondence between the two Govern- ments followed, in which the position of the United States in regard to this matter was fully set forth,^ and, as a result of this correspondence, HerMajesty'sGovernment delivered totheAgent of the United States and to the Arbitrators the Report of its Bering Sea Commission, accompa- nied by the Statement that the Government of the United Stales was at liberty to treat this Eeport as a part of the British Case. The United ti. ' l*0»f, p. 189. Ri INTRODUCTION. 3 States have accordingly notified Her Majesty's Original Britisii Cnseand supplement. Government that they regard the Case first pre- sented and the above Report, taken together, as the whole of the British Case, and that no further opportunity is afforded under the Treaty for the introduction of matter not properly in reply to the Case of the United States.^ For the sake of more convenient reference the term " British Case," when standing alone, will refei' to that portion of the same first pre- sented. The term "Report " will refer to the portion last presented, consisting of the Report aforesaid. ' Post, p. 147. [316] b2 u ■ 1 ■; \M::4\ ■S'-' ¥ m m RE PART FIRST. REPLY OF THE UNITED STA.TES THE BRITISH CASE FIRST PRESENTED. !-'■'• ■ m i i 5 i i ;M n 1^: ■-Il.-J , 1 L >: ,'s PART FIRST. REPLY THE UNITED STATES TO THE BRITISH CASE FIRST PRESENTED. THE TBUE ISSUES IN TEE PBB8ENT CONTBOVEBBY. It appears, from an examination of the British Difference of view* Case and the diplomatic correspondence above tration. referred to, that a different opinion is entertained hy the two Governments as to the object and scope of the present Arbitration. That Case is devoted almost exclusively to showing that the Government of the United States is not entitled to exercise territorial jurisdiction over the waters of Bering Sea or to exclude therefrom the vessels of other nations. On the other hand, the Case of the United States makes it plain that the main object had in view by the latter Government is the protection and preservation of the seal herd which has its home on the Pribilof Islands. The distinction between the right of general Protection of scaio tije main object ot" unci exclusive jurisdiction over Bering Sea and Arbitration, the right to protect the seals from extermination is wide and obvious. In order, therefore, to show Ml $ m Mil*! ■'«: til ih Ilii 4* f^TAliflfi '^r Jig II |4?'-" '4 1' 3 h 'I ■ * i;' 8 THE TRUE ISSUES. Arbitration. Origin of juritdio- tional controrenj. Protection of aeait that the latter, and not the former, is the main the main object of , . question before the Tribunal, the Agent of the United States deems it proper to place clearly before it some important considerations touching the manner in which the controversy resulting in the Treaty of Arbitration arose, and to indi- cate what have at all times been regarded by the United States as the essential issues. The diplomatic correspondence shows that as early as the year 1887 the United States claimed a property interest in the seals of the Pribilof Islands ; that the question of sovereignty over Bering Sea was first introduced by Her Majesty's Government and was not touched upon by the United States in the correspondence until three years after the first seizures of British vessels had taken place ; and that the subsequent discussion of that question has been at all times incidental to the main question,^ viz., the proper protection of the seals. On the lOth of September, 1887, Lord Salis- bury, in a note to the British Minister at Wash- ington calling attention to the transcript of the judicial proceedings in the cases of the Carolena, Omvard, and Ihornton, referred to the ukase of > Mr. Blaine to Sir Julian Fauncefote, June 4, 1890, Case of llu< United Statee, Appendix,. Vol. I, p. 218, and aho closing portion of Mr. Blaine's note to Sir Jidinn Fauncefote, December 7, 1890, ihid.. pp. 288, 287. , , , Lord Salisbury refers to Russian idcase. 5 \ ii THE TRUE ISSUES. [) 1821 and the treaties of 1824 and 1825, and ' ? -'/f ■v insisted that they were conclusive in favor of ' Great Britain's right to taiie seals throughout Bering Sea.^ The United States Government did not reply Mr. Bajardinvitei international copper- to the point thus raised. On the contrary, on ation. the 19th of August, 1887, Mr. Bayard, Secretary of State, had already sent out to various foreign governments a note,^ in which he said : "Without • laising any question as to the exceptional meas ures which the peculiar character of the property in question may justify this Government in taking, and without reference to any exceptional marine jurisdictiou that might properly be claimed for that end, it is deemed advisable . . . to obtain the desired ends by international co- operation." -^ • . ■. * This was followed on the 7tli of February, 1888,^ by a note addressed to Mr. Phelps con- taining general suggestions for international action, which, in principle, appear to have been assented to by Lord Salisbury.* ' Appendix to Caso of the United States, Vol. T, p. 162. - Appendix to Case of the United States, Vol. I, p. 168. ' Appendix to Case of the United States, Vol. I, p. 172. * Appendix to Case of the United States, Vol. I, pp. 175, 212, 218. ) i^ 1 1 ' I .ii ■ ij it I 10 Mr. Bayard invitM international oo5per- ation. THE TRU£ ISSUES. Mr. Blaine's state- ment of the issues. On the 2d of March, 1888, Mr. Bayard again insisted on tlie necessity of protecting the seals " by an arrangement between the governments interested, without the United States beingcalled upon to consider what special measures of its own the exceptional character of the property in question might require it to take, in case of the refusal of foreign powers to give their coopera- tion." ^ At pages 168 to 194 of Volume I of the Appendix to the Case of the United States will be found the correspondence relating to the pro- posed international measures. On the 22d of January, 1890, Mr. Blaine, Sec- retary of State, wrote to Sir Julian Pauncefote, Her Majesty's Minister : " In the opinion of the President, the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that was contra bonos mores, a pursuit which of necessity involves a serious and permanent injury to the rights of the Gov- ernment and the people of the United States. To establish this ground it is not necessary to argue the question of the extent and nature of the sovereignty of this Government over the waters of the Behring Sea ; it is not necessary to explain, certainly not to define, the powers and privileges ceded by His Imperial Majesty the Appendix to Case of the United States, Vol. I, p. 175. THE TRUE ISSUES. 11 Justification of seizures. Emperor of Kussia in the treaty by which the Mr. Blaine's state- . o 1 1 TT • 1 ment of the issues. Alaskan Territory was transierred to the U nited States. The weighty considerations growing out of the acquisition of that Territory, with all the rights on lard and sea inseparably connected therewith, may be safely left out of view, while the grounds are set forth upon which this Gov- ernment rests its justification for the action com- plained of by Her Majesty's Government."^ The grounds set forth were these : (1) The value of the sealeries and the absence of any interference with them down to 1886. (2) That the taking of seals in the open water rdpidly leads to their extermination, because of the indiscriminate slaughter of the animal, espe- cially of the female ; with which slaughter Mr. Blaine contrasts the careful methods pursued by the United States Government in killing seals upon the Islands. . (3) That the right of defense by the United States against such extermination is not confined to the three-mile limit, and Mr. Blaine remarks as follows : " Does Her Majesty's Government seriously maintain that the law of nations is pow- erless to prevent such violation of the common rights of man ? Are the supporters of justice in !r; tfti' ti ' Appendix to Case of the United States, Vol. I, p. 200. 12 THE TRUE ISSUES. Juttifluation of all nations to be declared incompetent to prevent teizures. . ' wrongs 80 obvious and so destructive ? "In the judgment of this Government, the law oftheseais not lawlessness. Nor can the lawof the sea, and the liberty which it confers, and which it protects, be perverted to justify acts which are immoral in themselves, which inevitably tend to results against the interests and against the wel- fare of mankind."^ Lord Salisbury Thesc wcrc the questious involved, accorcliii" Bgain introduceg , ^ uk»sc. to the view of the Government of the United States. But, notwithstanding the clear manner ill which they were presented, and the explicit statement of Mr. Blaine that the right of the United States to protect the seal does not depend upon the nature of their sovereignty over the waters of Bering Sea, Lord Salisbury in his note of May 22, 1 890,^ again recurs to that subject by quoting Mr. Adams's protest against the ukase of 1821, relying thereon to establish the right of British subjects to fish and hunt throughout Ber- ing Sea, outside the three-mile limit, which right, granting it to exist, Mr. Blaine hadalreadystated, would not afford the requisite justification.^ ' Appendix to Case of the United Stales, Vol. I, p. 200. - Appendix to Case of the United States, Vol. I, p. 207. •'' Appendix to Case of the United States, Vol. I, p. 202. THE ERROXEOrS TRANSLATIONS. 18 It thus appears that nt the inception of this United ststeK sought internitional controversy the United States asserted no right Mgrcomcnt. to sovereignty over Bering Sea, but sought the concurrence of Great Britain in an international affieementfor the protection of the seals,and that it was not until after this effort had failed, on ac- count of the opposition of the Canadian Govern- ment,' that the Government of the United States undertook a reply to Lord Salisbury's assertion that the treaties of 1824 and 1825 with Kussia precluded it from protecting the seals in Bering Sea beyond the three-mile limit. It was in this manner that the first four questions stated in the Treaty of Arbitration were raised. It is not in- tended to say that they did not occupy a promi- nent place in the diplomatic correspondence, but only to point out that, long before they had arisen, the other and more important issues sub- mitted to this Tribunal had been the subject of elaborate discussion between the two Govern- ments. 1SE EBBONBOTTS TBANSLATZONS 07 CEBTAIM BUSSIAN DOOXnCENTS. Sometime after the United States Govern- imposition pnuj- raent had delivered its case to the Agent of Her states GoTemment. Britannic Majesty, it learned that an imposition ' Appendix to Cas* of the United Sl«tes, Vol. T, pp. 215, 21C, 218, f 1 :i till n ft, -. r^i|j 14 TWK FRRONKOUS TR^XST-ATTONS «) ; J iini)(.HUi.)ii proc- had been practiced upon it by a taithless otKcial, ticed u|M)ii United •iii»i i. ' x i- staie» Oovornment. and that it had reued on certain translations of Russian documents made by him, appearing in thn first volume of the Apj)endix to its Case, which translations liad in reality been falsified to a considerable extent. Notice of this was im- mediately j^iven to the Agent of Her Britannic Majesty, and as soon as possible he was furniahed « with specifications of the false translations and with revised translations of those documents which the United Staten now retain as a part of their Case.^ Copies of the revised translations and of the notes sent by the Agent of the United States to the Agent of Her Britannic Majesty in connection with this matter have already been delivered to each of the Arbitrators. Some evidence which the United States Gov- ernment had relied on, to prove that for many years prior to the time of the cession of Alaska Kussia had prohibited the killing of fur-seals in the waters frequented by them in Bering Sea, thus turns out to be untrue ; and it now becomes necessary for the United States to restate, in i)art, their position in respect to some of the questions submitted to this Tribunal. In so doing they will at the same time introduce such criticisms upon, or rebutting evidence to, the British Case as may seem to be called for. Partial restatomont of its Case necessary. ' Post, pp. 151-174. PERIOD PKF.«F,niN« TIIK TRKATTKS. 15 ,- rl" ill ^ Q« ■ f .; colonial TBI SITUATION ABOUT BBBIMO SBA AHD ON TBB VOBTHWBST COAST DOWN TO THB TBBATirS OF 18S4-'S. Russia appears to have first definitely asserted RuMia'« her riglits to the territory surrounding Bering Sea, and to the Northwest Coast of America bor- dering upon the Pacific Ocean, in the ukase of 1799. It was clearly the intention of the Russian (lovernment, as manifested both by this ukase and by its subsequent action down to the time of * the cession of Alaska to the United States, to maintain a strict colonial system in the regions iibove mentioned. And the records show that down to a period as late as 1867, the j aar of the cession of Alaska, Kussia persisted in this policy, although the control she exercised over those distant regions was not always vigilant enough to prevent a certain amount of unlawful trade with the natives from being carried on there in disregard of her prohibition. The ukase of 1799 was directed against for- UkMeofi799. eigners. Upon this point a quotation is given from a letter from the Russian American Com- pany to the Russian Minister of Finance under date of June 12, 1824, as follows :^ "The ex- clusive right granted to the Company in the year 1799 imposed the prohibition to trade in those ' A facsimile of this docuiient was delivered to the British Govern- ment on November 12, 1892. ll t;Mi 16 PERIOD PRECEDIN& THE TREATIES. Ukase of 1790. Chaptev British Case. regions, not only upon foreigners but also upou Russian subjects not belonging to the Company. This prohibition was again affirmed and more clearly defined in the new privileges granted in the year 1821, and. in the regulations concerning the limits of navigation." This interpretation of the ukase of 1799 is sustained by the subsequent history of those same regions, of In Chapter I of the British Case an endeavor is made, however, to show that under the ukase of 1799 Russia reserved to the Russian American Company no exclusive rights as against foreign- ers, and that for many years prior to 1821 the waters affected by the ukase had been freely used for all purposes by vessels of all nations. This is sought to be made out by treating the waters of Bering Sea and those adjoining the NorthwestCoastof Americaas a single area;^ and numerous instances are referred to in which portions of this area, namely, the shores and waters of the American Coast east and south of Kadiak, were visited by foreigners for trade with the natives. Distinction be- The territories and waters which the British re^on and "padfic Casc thus coufounds the United States have carefully distinguished, and they take issue with Her Majesty's Government upon the point that • British Case, -j. 13. PERIOD PRECEDIXa THE TREATIES. ir "no claim has been advanced by E-ussla which Distinction be- -,. . . , tween Bering Sea could possibly render a distinction between region and Pacifie Ocean. Behriiig Sea and the main Pacific of the slightest importance" (British Case, p. 6o). The United States have devoted a portion of their Case, under the title, "Claims to the Northwest Coast". (pp. 26 to 33), to showing that the part of the American continent which is Avashed by the North Pacific Ocean was being constantly visited by vessels of all nations, and that serious con- flicts arose as to the trading rights there. Indeed, of all the voyages of foreign vessels, whether for discovery or trade, enumerated at pp. 14 to 20 and 29 to 31 of the British Case, not more than two or three relate to the shores and waters of Bering Sea. The fact is, that, while Russia's title to everything south and east of the Alaskan Peninsula w^as, in the early part of this century, in serious dispute, her title to the coasts north of this peninsula and to the Aleutian Islands, based upon prior discovery and occupa- tion, was admitted en all sides, and her rights there Avere respected by all nations. This has .'ilready been pointed out.^ The British contention (British Case, pp. 33, '■^5,64) that the United States contested Russia's 'Appondii to Case of the United States, Vol. I, pp. 12, 13, fsiipcially the extracts from tlie Qunrterlv Review and the North American Beviovr. • [316] unr,' JitU ■ : ll 18i PERIOD PEECEDING THE TREATIES. Diatinotion be- title to any portion of the North American coa- tmen Bering Ses , . rv • i • regien and Pacific tinent IS sufficiently disposcd 01 by a remark made by Mr. Middleton, in which he shows that he is merely denying her claims to any portion of the coast east and south of Prince William Sound, or thereabouts. He says, speaking of the early Russian discoveries: '' From these dis- coveries Russia derives her rights to that long chain of islands intervening between the western and eastern continents, and even to a very con- siderable portion of the continent of America— rifjhts which have never been contested." ^ Ukase of 1821. The ukaso of 1821, which was a renewed dec- laration of the colonial system already referred to, prohibited to foreign vessels the approach within one hundred miles to the shores of Berinfj Sea and to e large portion of the Northwest Coast of America bordering on the Pacific Ocean. The objects thereby sought to be accomplished are set forth at pp. 38 to 40 of the Case of the United States. Character of Much miscoiiception cxists in the British Case over Bering Sea. as to the character of the control which the United States claim was exercised or intended to be ex- ercised by Russia within this limit. The Govern- ment of the United States has already shown, at p. 57 and pp. 295 to 303 of its Case, that it does ' Appendix J;o Case of the United States, Vol. I, p. 13, aud Ameri- can State Papers, Foreign Relations, VoL V, p. 4o0. PERIOD PRECEDING THE TREATIES. 1% X (1 exclusive rritorial juris- not irnpnte to Russia an intention to treat the c h a r a e t « v of ■"■ control claitiieu one-hundred-mile belt as territory belonging to over Bering Sea. her, with the right to exclude therefrom vessels of other nations for all purposes. Nor have the United States any wish to dispute the construc- tion given by the British Government at pp. 33 to 40 of its Case, so far as it is designed to show that the main purpose of the ukase of 1821 was the protection of Russian interests upon the shores of the colonies, and that its maritime pro- visions were only intended to serve the purpose of effectually carrying out such protection. The distinction between the right of exclusive territorial jurisdiction over Bering Sea, on the diction ciaimcci one hand, and the right of a nation, on the other hand, to preserve for the use of its citizens its interests on land by the adoption of all necessary, even though they be somewha.t unusual, mea- sures, whether on land oi* at sea, is so broad as to require no further exposition. It is the latter right, not the former, that the United States contend to have been exercised, first by Russia, and later by themselves. The ukase of 1821 evoked strong protests, and the character of these protests is explained at treat-es pages 50 and 51 of the Caseof the United States. It is further pointed out at pages 52 and 53 that in the treaties resulting from these protests [316] c2 I'l'Otests against ukase, and resulting !■' 20 PERIOD PRECEDING THE TREATIES. Case of the Pearl i \^ f' !" Protests against a clear distinction is intended to be drawn be- ukase, and resulting treniies. twecn the Pacific Ocean and Bering Sea, and that by formally withdrawing the operation of the ukase as to the Pacific Ocean, but not as to Bering Sea, a recognition of its continued opera- tion over the latter body, of water was necessa- rily implied. The chief evidence, aside from that contained in the treaties themselves, upon which the United States rely to establish this con- clusion, is the seventh paragraph of the con- ference report of the Russian imperial com- mittee, appointed in 1824, which report is referred to at page 54 of their Case.^ At pages 57 and 73 of the British Case an incident arising out of a voyage of the American brig Pearl is cited to prove that, in the year following the promulgation of the ukase, Russia acknowledged the maritime jurisdiction claimed therein to be without warrant as to any of the waters to which it related. The facts of the case are not, however, susceptible of such an inter- pretation, as will appear from the folio win i# British Case. waters of Bering Sea and the Pacific Ocean adjacenttothe Northwest Coast during the period following the treaties. Some of the vessels re- ferred to as having made voyages to those regions visited the Northwest Coast only where, it is to he remembered, for ten years after the treaties tradewas carried on by American and British citi- zens with the express consent of the Russian Government. After 1835, however, most of the ' Post, p. 180-184. 'y::\ 24 PERIOD FOLLOWINO THE TREATIES. ciiBptor IV of the vovages that extenclerl to the coast nortli of latU British Case. "^ ^ ... . tude 54''40'vvere in violation of Russian law. All violations may not have been punished, Init that the law was none the less in force is shown by the seizure of the Loriot, by the proclamation of the United States Government in 1845/ and by the proclamation of the Russian Governmentinl8G4.- Viaits of whalers Later, however, especially in the vears follow- to Bering Sea. ^ "^ 1," . ing 1840, Bering Sea was actually visited, as pointed out at pp. 83 to 90 of the British Case, by numerous vessels, mostly whalers. But it is shown by Bancroft, the author so frequently quoted by the British Government, that the whaling industry was not, for the Russians, a profitable one,^ and there appears to have been no motive for protecting that industry by the imperial ukase or the regulations of the colo- nial government. Bancroft is also referred to in the British Case (pp. 83 and 84) to show that in 1842 the Russian Government refused Etholin's request that Bering Sea be protected against invasions of foreign whalers, on the ground that the treaty of 1824 between Kiissia and the United States gave to A.merican citi- zens the right to engage in fishing over the ' Cnse of tlie United States, p. 59. - Pout, p. 164. ' - •' Bancroft's Alaska, p. 584. PERIOD FOLLOWING THE TREATIES. 2S whole extent of the Pacif" J Ocean.' From what Visiu of wbaiew is said, however, by this same author immedi- ately folio ving the above citation, it appears that, through the endeavours of Etholin, " the Government at length referred the matter to a committee composed of officials of the navy department, who reported that the cost of fitting out a cruiser for the protection of Bering Sea against foreign whalers would be 200,000 roubles in silver and the cost of maintaining such a craft 85,000 roubles a year. To this a recommendation was added that, if the company were willing to assume the expenditure, a cruiser should at once be placed at their disposal."* Hence, accord- ing to Bancroft, the failure to protect Bering Sea can not be traced to the fact that the Russian Government considered it had lost the right to do so by the treaties of 1824 and 182.5. The position of the United States does not, Right to protect 1 1 1 j^i i» • 1 J- seals not relin- however, depend on the foregoing explanation quished. being the true one. Why Russia claimed to ffuaid her coasts for a distance of 100 miles has already been pointed out ; and from the fact that, for whatever reason, she may have suffered the caiTving on of whaling or of any sort oi fishing in Bering Sea, it does not follow that she relin- Banoroft's Alaska, p. 683. ■;t." n m\ i t I &hi.Jaiiteli i| f \ 1 ■1't: -"7 p-, rj p '<8 26 Evidence of Bur- Teillance over Be- ring Sen. PERIOD FOLLOWING THE TREATIES. quished her clear right to protect lier seal herds on their way to and from th^^ir breeding grounds. Even as to the whalers this much i.s cortuiii : their movements were, after the year 1850, or thereabouts, closely watched ; and in support of this, and of the broader proposition tliat a genend surveillance was exercised over the colo- nial seas, the following evidence is otVered. It appears that in 1849 foreign whaler.s visited the PribiJof Islands. This evoked from the board of administration of the Russian American Company a letter to the chief manager, dated July 13, 1850, in which it is said: "At the same time the board of administration expects that you, like your predecessor, have taken all necessary measures for guarding the Pribilof Islands, which are of such importance to the Company, from a repetition of similar attempts on the part of foreigners. In future, and until the clearing of those waters from whalers by means of a cruiser, of whose sending the board has already received information, you are directed to order the Company's cruisers to pay particular attention to the Pribilof Islands."' On the 18th of April, 1852, the board of administration again wrote the chief manager concerning the visits of foreign whalers, and " Fosf, p. 199. PERIOD FOLLOWING THE TREATIES. stated that it had requested the governor-general Evidence ot Tcillanoo cvit of pjastern Siberia, " in order to save the Com- ring Sm. pany fron injury caused by such occurrences, to issue instructions, making it the duty of such armed cruisers as his excellency nuiy have at his disposition to patrol the colonial seas, espe- cii'lly around the Commander Islands," where the foreign whalers were reported to assen ble in LTCut numbers in the summer season. Con- tinuing, the board directed the chief manager " to iit out a Company's cruiser, independently of the naval cruiser, and to instruct it to cruise in those places where, on close investigation, it may appear necessary."' On the 20th of March, 1853, the board of administration of the Russian American Com- pany wrote to the chief manager, giving full directions as to the disposition to be made of the colonial fleet in that year. One vessel was to " be sent at the end of April to cruise and keep a watch over the foreign whaling ve3sels in the southern part of Bering Sea, and along the Aleutian '"group," and this vessel was to cruise throughout the above district continually, entering port only in cases of necessity. Another vessel was to proceed to the northern part of Bering Sea and there do duty as a cruiser " to keep watch over the foreign whalers and the ' Post, p. 200. 27 mir- --,--' tl :t Hi ii] 1 I lifliii 1 ■Bli il ■ 't-ixnua v^^l ini ' ,^^H ;.-, JH 'i'i^H 1 1 I 9 2K PERIOD KOLLOWINCf TUE TKKATIES. Kvidence of giir- Englishmen witli regard to the trade carried on vcilliinco over Bo- ii i liiiRHoii. by them witli our savages. One of the concluding injunctions of this letter to the chief manager is as follows: " Tlmt the colonial seas, so far as possible, be visited in every part by the Company's cruisers for the purpose of keeping watch over the foi'eii,'neis, and for this purpose, in giving instructiDns to our cruisers, that you conform yourself to the intended movements of the Company's whaling vessels, which can also do duty as cruisers if they are carrying on their fisherylin Beiing Sea, and provide that the Company's vessels designated for visiting the many islands of the colonies be, so far as possible, under the com- mand of naval officers."' On the 2()th of June, 1861, the chief manager wrote to Benzeman, of the imperial navy : " It has come to my knowledge that two whaling vessels have been sent this year from Sph Francisco to trade on the Pribilof Islands. I therefore request your excellency, during the time appointed for your voyage, to do duty as p cruiser on the exact basis of the instructions herewith inclosed, which have been approved by the Emperor."* ' Post, p. 161. = Post, p. 162. PE While it does jrning documents of Berihj^ Sea Hi her colonies agai there is nothing meanwhile recede ukase of 1821 a States claim, by contrary, the brc of the colonial se especially about Islands, strongly period Russia wa interests by all n It is true, no i recordei' where a for actv.ally killii Bering Sea. Bu Russia's solicitud especially in the ^ be doubted that would have been i ing this assertion are fully sustains summer of 1892. assembled in gr( raander Islands ai territorial waters £ PERIOD FOLLOW FNO THK TREATIES. 29 While it does not appear from any of the fore- Conclusion* from" , ^ . foregoing pvidnici-. ijninf^ documents to what distance from the shores of Berihj^ Sea Russia actually sought to protect her colonies against inroads from foreigners, yet tiiere is nothing to show that she had in the meanwhile receded from the position taken in the ukase of 1821 and sanctioned, as the United States claim, by the resulting treaties. On the contrary, the broad language in which a patrol of the colonial seas is directed to be instituted, especially about the Pribilof and Commander Islands, sti ungly suggests that even at this late period Russia was still safeguarding her colonial interests by all necessary means. It is true, no instance appears to have been recordet' where a vessel was warned or seized for actvally killing fur-seals in the waters of Bering Sea. But in view of what we know of Itussia's solicitude and care for her sealeries, especially in the years following 1836, it can not he doubted that such killing, had it occurred, would have been regarded as unlawful. In mak- ing this assertion the United States believe they Russia's action in . ... 1892. are fully sustained by Russia's action during the summer of 1892. In that year sealing vessels assembled in great numbers about the Com- mander Islands and killed fur-seals in the extra- territorial waters surrounding thisgroup. Russia, m — -i* 80 PERIOD FOLLOWING THE TREATIES. II iiiifili m I ^m - 4' c I Russia's action in anticipating that her seal herd would be thus preyed upon, had dispatched to those waters in the early part of the season two cruisers, which seized six vessels, five of them Brititli and one of them American, carrying them in from a distance greater than three miles from any land.' Final observations In conclusion, and by way of final observation tipon historical and i • t jurisdictional ques- upon this branch of tlic controversy, the United tions. ' /-< States Government has only to say that in its view the whole subject of the character and ex- tent of the Russian occupation and assertion of right in and over Bering Sea, and all the diplo- matic discussion which has taken place in refer- ence thereto, is of secondary and very limited importance in tho consideration of the case sub- mitted to the Tribunal, and it relies upon the evidence submitted in respect to that subject as showing only : First. That soon after the discovery In' Eussia of the Alaskan regions, and at a very early pe- riod in her occupancy thereof, she established a fur-seal industry on the Pribilof Islands and annually killed a portion of the herd frequentinc; those islands for her own profit and for the pur- poses of commerce with the world ; that she car- ried on, cherished, and protected this industry by all necessary means, whether on land or at ' Post, p. 201. PERIOD FOLLOWING THE TREATIES. 31 sea, throughout the whole period of her oc^u- -tmni observa- . , tions upon histori- pancy ^ind down to the cession to the United cai and jurisdic- ' . Ill ... . tionai questions. States In 1867 ; and that the acquisition of it was one of the principal motives which animated the United States in making the purchase of Alaska. Second. That by no act, consent, or acquies- cence of Russia was the right renounced to carry on this industry without interference from other nations, much less was a right in other nations to destroy it in any manner admitted or recog- nized ; and that no open or known persistent attempt had ever been made to interfere with it down to the time of the cession of Alaska to the United States. Third. That the claimnowmade by the United States Government of a right to protect and de- fend tiie property and interest thus acquired, and which it has ever since sedulously maintained, while in no sense dependent upon any right pre- viously asserted by Russia in the premises, is, nevertheless, in strict accordance with, and in continuo,tion of. the industry thus established and the rights asserted and maintained by • . Russia in connection therewith. {^ i , I I \h r • ! :|- .^t . s ::;! 32 PROTECTION AND PROPERTY RiaHTS. ■| U if ^11 History teotion and erty claims. of pro- prop- THE BIQHT OF FBOTECTION AND OF PEOPEBi^Y IN THE ALASKAN SEAL HEUD. British Tiew of At pagcs 11 aud 135 of the British Case the protectionand .. property claims. proposition Submitted in the fifth question of Article VI, viz, whether the United States liave any right of protection or of property in the fur- seals of the Pribilof Islands when found in extra- territorial waters, is described as new in the present di? cussion and as being of an unprece- dented character ; all of which the United States deny. In view of the correspondence ivlj has re- sulted in the submission of the fifth question to arbitration, this declaration is most surprising. As early as August 19, 1887, Mr. Bayard, in his note, sent out with the hope of obtaining the co- operation of all governments in the protection of the seals, speaks of the " exceptional measures which the peculiar character of the property in question " might justify the United States in taking towards its preservation. * A similarstate ment was again made by him March 2, 188P Mr. Blaine, in his note to Sir Julian Fa iv fote of January 22, 1890, insisted on the right of the United States to protect the seals, quite irre- spective of any peculiar rights in Bering Sea.'' Mr. Blaine sists on right protection. in- of i'-i ' ApptMidix lo Case of United States, Vol. I, p. 168. - Appendix to Case of United States, Vol. I, p. 175. 3 Appendix ♦o Case of Uni^od States, Vol. I, p. 20O. PROTECTION AND I'KOPEETY RICrdTS. 33 This note has already been referred to at some Mr. Blaine intists on right of protec- length (ante, p. 10), and some of the grounds Hon. have been pointed out upon which the United States Government deemed itself justified in its action. Mr. Blaine assimilated this right of protection to that conferred upon Great Biitain by her '"ownership" of the Ceylon pearl fisheries. Although it is not specifically claimed tli^reiu that the United States own the seals, yet the point is strongly suggested, while the right of protection, irrespective of strict ownership, is asserted in clear terms. On June 4, 1890, Mr. Blaine wrote to Sir Mr. uiaine asseru uKncrship in seals. Julian Pauncefote: "May I ask upon what grounds do the C'.nadian vessels assert a claim, unless they assume that they have a title to the increase of the seal herd ? If the claim of the United States to the seals of the Pribilof |pands be well founded, we are certainly entitled to the increase as much as a sheep-grower is entitled to the increase of his flock."' On the 17th of December, 1890, Mr. Blaine Jurisdictional addressed to the British Minister an exhaustive issues, note in relation to the construction of the ukase of 1821 and the treaties of 1824 and 1825.^ Notwithstanding the ean^estnesf, and vigor with ' Appendix *o C'aee of United States, Vol. I, p. 219. - Appendix to Case of United State m, A'ol. I. p. 2G3. [:U6] V h ¥i ' ■■■I f4-: k,- j ^1 34 PEOTECTION AND PROPERTY RIGHTS. Mr. PlieljJH iiHserts ownership iii eeiil- Juiisdietiontti which he had defended his position based upon quostions not tlie true t • • i i i issue. those documents, he insisted at the (dose of his note tliat he had not been dealing with tlietnie issues in the case ; and he forthwith proceeiled to state those issues by quoting tlie following from a despatch written by Ma Phelps when United States Minister at London to Mr. Bayard, Secretary of State, on the 28th of September Aiui-e ciaimnm doc- 1888.' Much learniiiQ' has been expended unou the discussion of the abstract question of the right of ware clausum, I do not conceive it to be applicable to the present case. " Here is a valuable fishery, «and a large and, it properly managed, permanent industry, the pro].- erty of the nation on whose shores it is carried on. It is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this busi- ness by the indiscriminate slaughter and exter- mination of the animals in question in the open neighboring sea, during the period of gestation. when the common dictates of humanity ought to protect them, were there no interests at all involved. And it is suggested that we are pre- vented from protecting ourselves against sucli depredations because the sea, at a certain dis- tance from the coast, is free. cries. ' Appendix to Caso of United States, Vol. I, p. 287. PROTECTION AND I'aOPERTY RIGHTS. 35 '• The same line of argument would take under au acu not justiu- . . able becauso com- its protection piracy and the slave trade, when mitted on high sea^', prosecuted in the open sea, or would justify one natiun in destroying the commerce of anotlier l)y [(lacing dangerous obstructions and derelicts in the open sea near its coasts. There are many thing's that can not be allowed to be done on tlie open sea with impunity, and against which every sea maareclauiium. And the right of self- defense a,s to person and property prevails there as fully as elsewhere. If the lish upon Canadian coasts could be destroyed by scattering poison in the open sea adjacent, with some small profit to those engaged in it, would Canada, upon the just prin- ciples of international law, be held defenseless in such a case 't Yet that process would be no iiioredestructive, inhuman, and wanton than this. " If precedents are wanting for a defense so oro«iii of imur- *- national law. necessary and so proper, it is because precedents for such a course of conduct are likewise un- known. The best international law has arisen from precedents that have been established when the just occasion for them arose, undeterred by the discussion of abstract and inadequate rules." The views thus expressed by Mr. Phelps were declared by Mr. Blaine, in his note, to be the ^'ews views adopted by the Govermnent of the United States. [316J . ; L) 2 The United States adopt Mr. Pheliis's ^ I iJ- '> ' li 36 PROTECTION AND PROPERTY RIGHTS. If. ^1 Lord Salisbury in On the 14th of April, 1891, Mr. Blaine wrote to Sir Julian Pauncefote : ** In the opinion of the President, Lord Salisbury is wholly and strangely in error in making the following state- ment : ' Nor do they (the advisers of the Presi- dent) rely, as a justification ^or the seizure of British ships in the open sea, upon the conten- tion that the interests of the seal fisheries cav\' to the United States Government any right for that purpose which, according to international law, it would not otherwise possess.' TiiRiiLs umiiig out " The Government of the United States Im^ JiiiuU and Lubiis oE Steadily held just the reverseof the position wliidi Lord Salisbury has imputed to it. It holds tku the ownership of the islands upon wliioh seals breed ; that the habit of the seals in refvularlv resorting thitherand rearing theiryoung thereon; that their going out in search of food and vn^n- larly returning thereto, and all the facts and in- cidents of their'relation to the islands, give to the United States a pr'^oerty interest therein ; that this property interest w-as claimed and exercised by Russia during the whole period < if its sover- eignty over the land and waters of Ahiska ; that England recognized this property interest so far MS recognition is implied by abstaining from all interference with it during the whole period o*' Russia's ownership of Alaska and durini;' tht inteniatiunal PROTECTION AND PROPERTY RIGHTS. 37 first nineteen years of the sovereignty of the Rights ari«ing out of ownership of I«- Tlnited States, It is yet to be determined whether lands and habits of seals. the lawless intrusion of Canadian vessels in 1 886 and subsequent years has changed the law and quity of the case theretofore prevailing." The correspondence also shows thM,t the habits ^^^ <»«*» relating * to property claim of the seals, all the details as to their life on the '"^'y discussed. Pribilof Islands, the character of their annual migration, and all the facts necessary to support the claims of protection and of property set up by the United States, have been the subject of careful investigation and discussion between the two Governments.^ ' Appendix to British Case, Vol. Ill, Part 1, pp. 424-453, and House Ex. Doc, No. 450, 5l8t Cong., Ist sess., pp. 15-51. At pp. 45 of Vol. Ill and 48 of the Ex. Doc. aforesaid, Dr. Dawson, one of the liriiish 15crir.g Sea Commissioners, under date of March 5, 1890, discusses fully tiio facts upon which the property claim is based. Seo also Debates House of Commons, Dominion of Canada, 1888, Vol. XXVI, p. 97G. In a speech made April 25, 1888, Mr. Baker, it.P., quoted the following from the tenth census (1880) of the Tnitcd States : " The fur seals of Alaska collectively and individually lire the property of the general Government. • * * Every fur foal playing in the waters of Bering Sea around about the Pribilof Islands, no matter if found so doing 100 miles away from the rookeries, belongs there, has been begotten and born therein, and is the animul that the explicit shield of the law protects; no legal scepticism or quibble can cloud the whole truth of any statement f«i'e)." Commenting on the foregoing, Mr. Baker says : " It would appear that the United States revenue cutters are going on some absurd contention of this kind in their seizure of British vessels in the Bchrirs Sen." M' m \-j I'.t § Mb i 38 Claim of protection and ownership not npw. Case of the Rar- riff. \ PROTECTION AND PROPERTY RIGHTS. The foregoing completely disproves the state- ment at page 135 of the British Case that the claim of protection and of ownership by the United States in the fur-seals is new ; and also the statement at page 140 relating to the " absence of any indication as to the grouiuls upon which the United States base so unprece- dented a claim." The British Case refers at page 136 to the case of the American schooner^arne^ for the purpose of showing that the United States have denied to other nations a right of protection and property in seals when on the high seas. A careful exami- nation, howcA'er, of the facts will readily show that they fail to bear in any way upon the point to prove which they were cited. In 1831 one Vernet, who had been appointed by the Republic of Buenos Ayres governor of the Malvinas (Falkland) Islands, seized the Ilo^inet. charged with the taking of seals on tho^se islands. The American Charge at Buenos Ayres protested against the seizure, and a lengthy correspondence ensued, all the material parts of which are given in the Appendix hereto.^ From this correspon- dence it is apparent : First. That it was not the intention of either Government to raise any question as to the jurls- ' Poi»^p. lR4-]m. PROTKCTION AND PROPERTI RIGHTS. 89 diction over the hip,h seas, or as to the rights ot .C'«fi »' H'« ■»<"•■ protection or property in seals when found on the high seas. Seals were never taken at the Falkland Islands otherwise than on land, and the Harriet was not charged with the offense of taking them on the high seas. Second. The real question in the dispute was whether the Republic of Buenos Ayres owned the coasts upon which sealing had been in- dulged in by the captured schooner, and upon this point issue was actually joined by the two Governments. The position assumed by the American Charg^ was that the Falkland Islands were unoccupied and under the sovereignty of no nation, and that, therefore, sealing on them was open to all. Third. It is true, the American Charge asserts that " the ocean fishery is a natural right," and that " every interference with it by a foreign power is a natural wrong ;" and these assertions appear to be relied on at page 137 of the British Case to defeat the claims of protection and pro- pertynow put forward by the United States. The context^ shows, however, that, so far a^s sealing is concerned, the Chargd was merely laying a foun- dation for the proposition that, granting the title of Buenos Ayres to the coast in question to be ' Pout, p. 190. ii:- J' > ill li ' •;(! 40 PROTFOTION AND PROPERTY IHOHTf^. Cue of the Rar- pei*fect, vet it WES bare and nninlia j' ed, and rift. ... ' therefore, justice required that " the shores, as well as the body of the ocean, ought to be left common to all;" which proposition, if established, would have justified the act of the Harriet. The accuracy of this proposition the United States are not now called upon to discuss, sincje it has no bearing upon the present issues. In dismissing the case of the Harriet the United States again insist that it is wjiolly irrelevant to the present controversy, for the reason that no occasion had arisen for the asser- tion of any right to pi'otect seals when away from land, and no such right was, in fact, either asserted or denied Jby either party. ^■!K3 :ri! ■.'■ i f ;t .n- sary to detail here, are sufficient to demonstrate that tlie main migration routes of the seaJs fre- (juenting the Commander Islands do not tou?li the Aleutian chain, and there is every reason !» believe that, although the seals become more (H less commingled in Bering Sea during the sum- mer, the migration routes of the two sides of tlif North Pacific tire essentially distinct." (Str. 198.) DISTRIBUTION IN BEKINO SEA. 49 Afi^ain, in considering this question, after mak- iniermingiing of " . • . tho Alaskan and ing j)racticaJly the same statement, that the mi- Russian herds, crration routes are distinct, the Commissioners add " "" ^^ * it is beheved that, while to a certain extent transfers of individual seals or of small groups occur probably every year between tlie Pribiloff and Commander tribes, that is exceptional rather than normal" (Sec. 453). In spite, however, of these admissions that all inter- mingling of the two herds is abnormal and infre- quent, they still assert that such interchange takes place (Sec. 170). In support of such an assertion two charts are presented in the Eeport (Nos. Ill Charts Nos.iii and . . IV of the Report. and IV, facing p. 150) purporting to give the distribution of seals in Bering Sea during two periods, namely, July 15 to August 15 and Au- gust 15 to September 15 (Sec. 213). The chart ChartNo.iiofth* 1 1 • 1 1 1 Report. also, which purports to show the resorts and migration routes of fur-seals in the North Pacific (No. n, facing p. 150), assumes a similar distri- bution. . ' . . ; The data, from which these charts as to the Data from which . _ , . ri • *''*' '•harts were com- distribution of seals in Bering Sea were con- piled. structed, are stated in the Report to be the seal- ing logs kept by the American and British cruisers in Bering Sea during the season of 1891 and " information on the same subject * * * sought in various other ways, such as by inquiry [316] K '' r V ri:- 't ---r-i i-sSr rf- iliHn ;i.ui I ; {'■ li t ' i I. )» .t'l; 'M 50 HABITS OF THK FURSJCALS. Insufliciency data. Data from which fioui the captains aud hands of sealing vessels the charts were com- , • -tt' .. • i tt i .. i . piled. met HI Victoria and Vancouver and Irom the in- habitants of various places touched at during the of summer" (Sec. 210). The United States deny that the data collected by the American and British cruisers warranted such construction of the charts Nos. Ill and IV or of that part of chart No. II which purports to give the summer resort of the two great seal herds. And the United States claim that the "information" ob- tained "in various other ways" should have no influence upon the Tribunal, inasmuch as the evidence or statements thus reited upon are not presented and the Commissioners have even failed to give the names of their informants. It is evident, from the particular manner in which the Report describes the way in which the data collected by the war ships of the two nations were taken (Sees. 210, 212, 213), that such data were their principal source of informa- tion ; but it is contended that the observations of seals, reported by the vessels, do not sustcaiii the assumed density and distribution of seal life in Bering Sea which is made to appear by the charts above referred to. In support of these denials the United States produce the copies of the data relied upon, compiled from the seal logs of the British cruisers by the British Commis- Principal data relied upon. DISTRIBUTION I\ BERING SKA. 51 sioners, and by their courtesy furnished to this Principal iiutn • 1 1 n 1 velii'il upou. Government, and the data compiled from the seal logs of the American vessels.' The attention of the Aibitrators is particularly directed to the area of sea between the Pribilof and Commander Islands, the extent covered by the cruises in that section, and the number of s«als there observed. The United States also present in support of j^^ g'^/* ^^''1^ their contention on this question a chart showing ^®^^- the cruises of American vessels ii. Bering Sea (luring the summer of 1892, which vessels made particular observations as to the density and locality of seals in Bering Sea." This chart is compiled by the Navy Department of the United States from the logs of the American Bering Sea squadron on file in that Department, and it demonstrates how completely the sea areas about the Pribilof Islands were covered by the observations of 1892. ." ' The United States also present in support of Scniing chart, their position on this question a chart, compiled from the seal logs of said vessels, kept in the same manner as those of 1891 by each vessel of the squadron, which chart shows the num- l Clmrts of cruises and seals seen, I89I, Nos. 1 and 2. Portfolio of maps Hiid charts appended to Counter Ciise of the United Stutex. ■ Chart of cruises, 1892. Portfolio of maps and charts appended to Counter Case of the United States. ,; , ; 1 ■. ,. , „i^i(n-,\- [316]- . ' E 2"»'^"' >^s -w- 'Ml 11 52 Seal 1892. HABITS OF THE FUR-SEALS. ing chart, ber of seals seen, the locality where observed, and the date of the observations.' A comparison of this chart with the sealing chart submitted with the Case of the United States," the charts giving the data from which the British Com- missioners drew their inferences,^ and the chart showing the cruises of the American squadron .^^':, in 1892,* demonstrates conclusively the lack of ' evidence to sustain the Commissioners' assertion, and shows that the assumed distribution of seals in Bering Sea, exhibited by charts Nos. II, III, and IV of the Report, is unwarranted and mis- leading.* It may also be noted that the Com- missioners in chart 1 1 make it appear that the Commander and Robben Island seals inter- mingle ; this is, however, specifically denied by Mr. Grebnitzki, the Russian official so often quoted in the Report." : J i' ' Seal Chart, 1892. Portfolio of maps and charts nppetidecl to •_, I 1 Counter Case of United States. ^ • •:' ' Sealing chart. Portfolio of maps and charts appended to Case of the United Stales. No. 4. ' Charts of cruises and seals seen 1891, Nos. 1 and 2. Portfolio of maps and charts appended to Counter Case of the United States. * Chart of cruises, 1892. Portfolio of maps and charts iippended to Counter Case of United States. ' See also Capt. Hooper's investigations in 1892 as to range of Pribilof seal herd in Bering Sen. Report September 6, 1892, jwrf p. 216. • Post p. 363. Mr. Grebnitzki, the Russian military cliief on the Commander Islands, is so often cited by the British Coniniissioners that the attention of the Arbitrators is particularly directed to his statements, hereto appended, po-i' pp. 362-367. ■ 'i'- • 1 ALLEGRD PKOMISfUOUS NUKSING OF PITS. The alleged promiscuous nursing of pups hy i>n;ri<'v;i female seals. ,, ,,;,,; .,, The United States deny that the statements Promiscuous nur- made in the Report, in support of the assertion that a cow will nurse pups other than her own, are based on evidence sufficient to establish the facts alleged. '• - • m,- , ^. • • i .. jn.'^- The two most prominent authorities relied on Elliott and Bryant in the Report are Mr. Henry W. Elliott and Report. Capt. Chailes Biyant, the former being quoted over fifty times in the first one hundred and ";,/,, forty-five pages, and the latter forty times in the same space. Yet the opinions of these two observers are to the contrary on this point ; and, while their opinions are taken without reserva- tion on all points favorable to the conclusions of the Commissioners, they are, in respect to this question, characterized as a " theory " (Sees. 320, 322, 323) and " not proven " (Sec. 321).' The Report attempts to disparage Mr. Elliott's Cow's affection for her young. opinion by quoting him to the effect that the female seems to possess no natural affection for her offspring (Sec. 322), but fails to state that .' ;, , ", , . Sir F, McCoy, F. R. S., also quoted in this con- nection (Sec. 324), publishes, in his article referred to in the Report, a letter from an in- ' See also N. A.,\ Grebnitzki, i)ost p. 366 ; Dampier's statement, Eopoi't, Sec. 848. . - .■;. ,„ , , 1 ,i. 1 1 , IV. 11 in i ■ '. ■ ' ( ■ ■:i; ' 1 ■ 1 ^rai '■ EllHI :■ rlH !■ H ! ill If -IB ffl o4 HABITS OF TJIK FUR-SKALS. ft';,-i 1 I. .1 1 \'.i 1 Analogy wil h other animals. Cow'g affection for formant, on whom he relies for his Icnowledge of her young. ... . seal habits, in which the following statement is ■"«■ ...,,"• made: " They [the cows] keep good watch and care aflfectionately for their offspring. * * •• I have seen three pups washed ofi' the rocks and the cows have immediately followed and brought them on the rocks again in an astonishingly rapid manner." ' The attention of the Arbitra- tors is also called to the testimony presented on this point in the Appendix herewith submitted.- The Keport admits that " analogy with most other animals appears to favor this view " (Sec. 317), and that it "may hold in the case of the fur- seal" (Sec. 318), but insists that the observers have been misled by this analogy (Sec. 317) and by the circumstance that they have seen a cow refuse to take the first pup she meets and select another to be nursed (Sec. 323), adding that such selection may b^) the mere act of tinding a ' r,: •■ •. pup which does not have the smell of fresh milk- about it (Sec 323). . And it is further suggested that this selection may be made " perhaps by Authorities relied souiid " (Sec. 323). Two authorities are particu- upon in the Report. /.i •• i- larly quoted in support oi the position taken in the Report: "Sir Samuel Wilson, M. P., the - ' ProdroniuB of the Zoology of Victoria, by Sir F. McCoy, F. R. S., decade VIII, p. 9. - J. Stanley- Jirown, p. 888 ; W, H. Williams, p. SGS ; C. H. Town- send, p. .393. :l ALLKGKI) PROMISCUOUS NURSING OF rUl'M, 9ft eminent Australian sheep- breeder," who says, Authorities relied upon in the Report. " it is connmon and easy to make ewes suckle other ewes' lambs," and then demonstrutes how difficult it is to do so (Sec. 325); and Mr. C. H. Jackson, Government Agent in charge of the Seal and Guano Islands of Cape Colon}', who asserts that " a cow will suckle any of the young seal, whether her own or not " (Sec. 324). As to the statements of Sir Samuel Wilson, they are sufficiently in accord with the position taken in the Case of the United States on this question to demand no criticism here. Mr. Jack- Mr. c. ii. Jackson .1 ii T_ J 1 T . ,• a questiouablo son, on the other hand, makes a direct assertion authority, on the subject wh Ich is opposed to the evidence contained in the Case of the United States and to the principal authorities of the British Com- missioners. An examination of the report of this gentleman (pp. 154, 155) fails to reveal upon what knowledge he bases such a statement; and there is no proof that he has ever seen the seal islands of Cape Colony or even been informed by experi- enced individuals respecting the habits of the fur-seals found there. Undersuch circumstances the United States insist that his statement is unworthy of consideration as evidence. The Report also alleges that "the same state- Sir f. McCoy as r ,, T I > -1 • 1 •,! an authority. nient [as Mr. Jackson sj is made with respect to the fur-seal of the Australian coast" (Sec. 324), ! " il (, I' it • I !^:^ I: '■; k a:' I 1:1 56 UABITS OF THE FUR-SEALS. :l: Sir F. McCoy cs referring in a footnote to the work of .Sii- F. an autlioritj. • i i • i McCoy, already mentioned herein.' Ihe fol- lowing is the statement as it appears in the aiti- cle referred to and is an extract from the letter of Mounted Constable Ardill, incorporated in full in said article and republished in the Appendix to this Counter Case :" "Should a cow die or be killed, her pup is suckled by the other cows. This I am told is the case, but I can't vouch *'or it." This last noted authority, which appears m the Report as Sir F. McCoy, proves to be a mounted constable, who makes the statement on a report so untrustworthy that he will not even vouch for its truth. * , The United States, therefore, claim that tl'" Commissioners have failed to advance a tijoo-lp authority whose opinion is of value to support their contention that a cow will suckle any pup except her own, and that the contrary position taken by the United States and sustained bv ample evidence^ stands uncontroverted. ' Ante, p. 53. ■ Pout p. 2V»2. ' ' - ' ' •' N. A. Grebnitski, post p. 366, and testimony submitted with tbc Case of the United State?, Appendix, Vol. II, pp. 62, lOt, 117, 375, etc. !i i l1 ,1 It I WHKN tOW« KNTKK TUK WATKR. 57 ;; Period at which the female serih go into the icat''r The Report, without defiuitelystatintr tliat the PfiHo" token *>y female seals do not seek the v\ ater for from four authoritic*. to six weelcs after the birtii of their young, practi- cally adopts the opinion of " Snegiloff" [Sniege- roff], the native foreman on the Russian Islands, as well as the statement once made by Capt. Bryant on this subject, and supports these opin- ions by reference to the Commissioner's own observations as to the relative number of cows and pups on the rookeries at different times in the season of 1 ?9 . (Sec. 30G). The " very general belief among natives on the Pribilof and Com- mander Islands to the eflfect that the females do not leave the land to feed while engaged in suckling their young" (Sec, 307) can not be accepted as evidence in the absence of names of persons holding such belief; and the fact that two females killed in September in the presence of tlie Commissioners had no food in their stomachs (Sec. 307) may be dismissed without considera- tion, as at the time when these cows were killed the C(unmissioners admit that the majorityof the cows were feeding (Sec. 306) ; and the number killed is too small to establish the assertion advanced in the Report. The information also given by Her Majesty's Minister at Tokio — that "It is sometimes stated \ •' i y.;';. 58 HAHITS OF THK FURSKALS. ':■ ' I'll! Position tiikcn by that the breeding cows are in the habit ofieuv- tho Keporl and llie _ _ /. i n i uutiioritics. ing tlie rookeriss to fish for the support of their . . ' young, but the experienced authority on whose remarks these notes are founded is not of this opinion. He has njver found food inside the female fur-seal taken on the breeding grouiidf^; (Sec, 307) — must be rejected for the reason tluit the statement is based on no actual knowledge Capt. Hrjivnt'8 The reference, given in coi.' "Action with Capt, stiiteraents. .... Bryant s opinion, is to his report, made when lie was special Treasury agent in Novenibei", 18G1), and which is published in the Appendix herewith submitted, so far as+he samerelatesto the Priuilot' Islands. ' The statement referred tt) i n the Report is as follows : " The females go into the water to feed whenthepnps are somesix weeks okljeav-no' them on the uplands." " In another portion of his report Capt. Bryant says: "About the middle of June the males have all arrived and the gromrl is fully occupied by them. Soon after this the females begin to come, in small numbers at first, increasing as the .season grows late, until the middle of July."'' At another place ho states: " About the middle of July tlie females go from the rookeries into the wafce/.'"- It is, therefore, > Post p. 275.1 - FoKf p. 278. •* foil p. 376. S' itiA "R?;'ISI«it»:-l.'; Mi WHEN COWS ENTER THE WATER. 5^ evident that the period could not have been six Capt. Bryant's , T , 1 • • statements. weeks according to his own statements in 1869. Ten years later, after eight years of experience on the Pfibilof Islands, he states : " 'I'he females after giving birth to their young, temporarily repair to the water, and are thus never on shore allatonce."^ ' • -• • '-.,■■[ ■ - - ■ - ';i . - He carefully omits to give any definite period between the birch of the pup and the excursions of the i ow for food. This omission is of impor- tance in this connection, as he prefaces his state- ment at this time with the following note to Dr. '" . Allen : " You will understand that where any of my former statement;: are omitted or changed, it is due to correction made necessary by my longer experience.'"'" it is evident, therefore, that Capt. Bryant had publicly discarded the opinion used by the Commissioners to maintain their position. One native of the Commander Islands is, there- '^^° o"" authority ioT the Report's tore, the sole authority for the statement of the position. British Commissioners. The United States deny the sufficiency of this ,„ Tesiiinouyof c.H. •^ "^ To.viisend. evidence and offer the testimony of Mr. C. H. To\vnsend,of the United Siu.tes Fish Commission, to sustain such denial and. to prove to what extent ' Monograph of North American Pinnipeds, p. 38«. - Monograph of North American Pinnipeds, p. 382. '>\ ;l ■ i I ji ,. { •■ V \ n f \ 60 HABITS) OF THE FUK-SKALS. Tesiiaomofc. ir. tUe nursiiig femules had already extended their Townseud. . . '' food excursions even in the last days of July.' The same witness states that on the 27th of July, 1892, large numbers of the females were away from the rookeries on St. Paul Island, and that four-fifths of the seals on the breedinn- grounds were pups.* It may be noticed in this connection that this was the same date at which the British Commissioners arrived on the Islands in 1891 (Sec. 759), when they state that "the rookeries were still at their fullest. ".(Sec. 3). Mr. 5t,inioiiy of J. Stanley -Brown, whose special study of seal life ley-Iirown. • *■ '' on the Islands in 1891 and 1892 has made his opinions of the utmost value, states that the females leave the rookeries within fourteen or seventeen days after the birth of their pups, and he shows by what observations he became con- vinced of the fact.^ Test Stanley AflTirnialion of its Sossibility by the leport. 4. Aquatic coition. The Report states that " most writers," for cer- tain 1 asons, have advanced "an erroneous state- ment " that the place where fecundation of the female seal occurs is on the land (Sec. 295). The Commissioners affirm, on the contrary, that it is not only possible for seals to copulate in the ' Post p. 393. - Post p. 386. AQUATIC COITION. QV water/ but that such act is of great frequency Afflrmation of if» " possibility by the when the males are insufficient in number on the Report. ivokei.es (Sec. 297). This allegation as to the possibility of pelagic coition is stated in the Report to be established by "ample proof" (Sec. 246). An examination of this '' ample proof " shows The evidence favour of aquatic that it consists of the following : The opinion of coition. Capt, Bryant, contained in his report to the Treasuiy Department in 1869 (which, as has been shown, is entirely superseded by his paper in the ''Monograph of North Americrn Pinni- peds "), and two statements made by him in the latter work (Sec. 295), the references being to pages 385 and 405 (footnote, p. 52), both of which clearly allege the possibility of coition in the water. Besides these statements of Capt. Bryant, the Report quotes Mr. W. H. Dall, who made a statement to Prof. Allen that the female seal receives the male in the water (Sec. 296, p. 53). Tiie remainder of the '* ample proof" con- sists of " special inquiries " made by the Com- missioners, which "have fully confirmed Bryant's original statements, the evidence obtainedinclud- incv that of four or five gentlemen Mho have liad long experience with the Pribilof and Com- ' Mr. Qrebnitzki, un authority recognized by the Report, declares t'lat he believes copulation in the water to be impossible, Post p. m. '-h' in •! V ■ If 1^ 1 jj 1:1 if I*! '< mtwi S^f: . H lit ii* . ; h !. QSb HABITS OF THK FUR-SKAT.S. The evidence in mandef Islands, and several intelligent and favour of aquatic coition. observant hunters who have been enofafred in ■o"n^ M ! sealing at sea " (Sec. 296). The latter general- ization of information, in which neither the names of the " four or live gentlemen " nor those of " the intelligent and observant hunters" are given, can not be considered in the light of proof to substantiate the position of the Report on t ms question. It is a significant fact in connection with the proofs advanced by the Commissioners that, not- withstanding the observations made by these officials on andabout the Pribilof and Commander Islands, they fail to have seen, or at least to re- cord, a single instance in which the act of coition took place in the water, although it would seem that instances must have been frequent in the w^aters about their vessel, if their statements as to the scarcity of the adult males on the Islands are to be accepted. .1 ■ ' As to the opinion of Capt. Bryant, relied upon by the Commissioners, the attention of the Arbi- trators is directed to his deposition submitted with the case of the United States.' The other w. H. Daii as an authority cited in the Report, namely, Mr. W. H. Dall, gives the following testimony in rehition to pelagic coition, after saying that his statements ' Appendix to Case of the United States, Vol. II, p. 6. Capt. Bryant ni an authority. AQUATIC COITION. G3 'as to copulation in tlie water rest largely upon W. ii. Daii nf. an , . . . , authority. iissuraption," and after reciting his observations as to seals seen playing in the water : " 1 have never had au opportunity to assure myself that the pairs of seals seen playing in the water were of opposite sexes, or, if they were, that their play was of a sexual nature, or, if it was, that the act was complete or effective."' In view of the facts stated and of the quantity ,,,SfS°/d in of testimony on this point published with their *'''' ^^v^rt. Case," the United States submit that there is no proof, " ample " or otherwise, to support the as- sertion that coition takes place in the water. (Sec. 246, p. 43.) The United States further claim that the posi- tion taken in the Report on the question of when the female seals leave the rookeries after the birth oftlieiryoung(anie,p. 57) is entirely inconsistent with the proposition maintained by the Connnis- sioners"thfitthetimeof impregnation ofthefemale isuot necessarily comprised within theperioddur- ing which she seeks the shore for the purpose of giving birth to her young " (Sec. 2*J7), and the statement made in the lleport that the breeding females remain for several weeks on shore after bearing their young (Sec. 30). As the period of ' J'oxt p. 359. -Appendix to Cnse of the United States, Vol. II, pp. U, 42, 1(J5, Otf. Inconsistencies of the Ke])(>vt. II ^ ! ■ 'h{ h ^m. m ! FE 64 lIABirS OF TIIK FUR-SKALS. Inconsistencies of gestatioii is stutcd bv the Commissioners to he the report. about twelve months (Sec. 434), coition in the water /ould necessarily be four or even six weeks (Sec. 306) later than the arrival of cows at the Islands, which would necessitate the arrival of the cows by as many weeks later the follow- ing year, since they give birth to their younf immediately upon landing (Sec. 30). Liih- arrival of the jf ^\^q frequency of pelao-ic coition be as m-eat cows ut tlie Islands. i J L a n "■'■ as alleged in the Report, the date of the arrival of the cows would be growing continually later and would be now much later than in former years. No proof is offered in the Report on this important point. In opposition thereto the United States CommissiontiS have appended to their report a table showing the arrival of the various classes of seals on the Islands,' and the United States herewith submit on the same question the farther evidence of Maj. W. H. Williams, Special Treas- ury Agent in chai'ge of the Pribilof Islands, who states that 9 5 per cent of the cows had given birth to their young by July 12, 1891, showing the arrivalsmust have been at the usual time," and of Mr. Stanley -Brown, who arrived on the Islands on the 9th of June, 1892, and who states that some cows had arrived previous to that date.' ' Case of the United States, p. 386. 2 Post p. 397. » Po-it p. 386. MANAGEMENT. 65 MANAGEMENT OF THE PRIBILOF ISLANDS AS THE ALLKGED CAUSE OF THE DECREASE OF THE ALASKAN SEAL HERD. Tlie British Commissioiiera at several places in .'J'j^'l /"ethods ad- '^ mitted to bo almost their Eeport admit that the regulations in force perfect, and the methods employed in taking seals on the Pribilof Island are the best that could have been adopted, having been founded on the long expe- rience of the Russian Government after nearly a century of occupation (see Sees. 659, 676). The Report further states that " from a tran- scendental point of view the methods proposed were appropriate, and even perfect, but in prac- tical execution, and as judged by the results of a series of years, they proved to be faulty and injurious " (Sec. 662). It is, therefore, not the methods, butthemannerof their execution, which is the subject of criticism by the Commissioners. Other than this general chare;e of faulty execu- Excessive killing . , . alleged. tion, the one variation from the Russian methods made by the United States which is disapproved of in the Report is the number of seals allowed to be taken (Sec. 659). In establishing their assertion that the number Prcof miistbeiimi- ° ted to period 1870- ofseols annually killed on the Islands was excess- i**so. ive, it is insisted by the United States that the Commissioners should be confined to the first decade of the lease of the Pribilof Islands to the Alaska Commercial Company (1871-1880), be- [316] F r'l I '■, i f; 66 MANAOKMKNT. period after decided decrease. Proof must be limi- cause pel'doic sealinff was then too insicjnificant ted to period 187C- . it,. i i 1880. to perceptibly affect seal life, and that any con- sideration of the management subsequent to the introduction of pelagic sealing, which is admit- ted to be a factor " tending towards decrease " (Sec. 60), is irrelevant to the question at issue, unlsss it can be shown that there was a sufficient increase in the number of seals killed on the Islands, or sufficient changes in the jnethnds employed in taking the quota, to materially affect and deplete the seal hei'd, even without the introduction of pelagic sealing. Admisiiion ns to The United States admit that, after a decided decrease in the birth rate of the seal herd liad been caused by pelagic sealing, the number allowed by the lease to be killed was more than the reduced herd could properly endure ; but they assert that any evil effects resulting from the management on the Islands is directly charge- able to the conditions established by pelagic sealing. ' ' -•■ '■' ■ " • Tt was not until the year 1 889 that thedecrease in ohe birth rate of the seal herd (which decrease had been augmented annually by an ever in- creasing fleet of pelagic sealers) became suffi- ciently evident among the young male portion of the herd toseriouslv attract the notice of and to alarm the Government accents oa the Islands.' ' Cnse of the United State?, p. 184. AN-ALLEOED CAUSE OP 1)K( REASE. 417 In tlint yefti' for the first time the weio-ht of skins Admission «» i.) pcriotl nftor deeitl ■:! fell below the average of former years.' The '•«''•"'''«''• report of the official in charge of the Islands resulted in an immediate reduction of the quota allowed by the Treasury Department at Wash- ington, and in a cuitailment of the time allowed within which totakesuch quota." Notwithstand- ing the endeavors of the United States to meet the new conditions created by pelagic sealing . . .. with restrictions upon slaughter, which were made still more rigid in 1891, the herd con- tinued to become more and more depleted, and in 1892 a decrease appears over 1891, though the consensus of opinion of those on the Islands is that in the last year the male seals have increased to a limited extent.'^ The United States, however, insist that the TrrcioTanoy ofsucii failure, if any, to take into account the " new factor" (viz, pelagic sealing) is wholly irrelevant to the true issue, and they have presented testi- mony in relation to the management on the Islands for the purpose of showing, and which sliows, that such management could not, under normal conditions, have caused a decrease in the Pilbilof seal herd. - • • ■' • ' ' ' • " ■ ' Max Heilbroniier, posi p. 369 and table facing. '*■ ' Case of the United States, p. 153. ' ' ' ' ' •' .r. Stanley-Brown, foiif y. 385. i ■ \ ' '^«: ;' i [31 G] F2 f « ■/■^ ! > i 68 MANAQEMENT. Kcscrration as to charges of fraud. Failure of Report The Report fails to establish a sintfle instance to nhow change of iimmigemont after where the manajjement on the Islands ov the 1880. " '" methods employed thereon have been chaun-etl since 1880 from the " appropriate and even per- fect" system adopted in 1870, or where the number of seals killed annually has been in- creased beyond the annual quota of the first ten years of the lease. The Government of the United States reserves to another portion of this Counter Case the re- peated and, as it conceives, very imjustlfiable insinuations of the Commissioners of the malfea- sance b'* United States officers, of fraudulent practices of the Alaska Commercial Company when lessees, and of collusion, necessarily im- plied, by the London firm of C, M. Lampson & Company ; only stating here, that all such evi- dent attempts to mislead the Tribunal of Arbi- tration and to obscure the true issue are un- founded in fact and unsupported by proof or evidence of any sort. All reference, therefore, to the management of the Pribilof Islands subsequent to the introduc- tion of pelagic sealing, when it became a factor in the decrease of the seal herd, tlie United States repeat, is irrelevant to the true issue— the cause of the present depleted condition of the Pribilof rookeries. AN ALLEQEP CAUSE OF DECREASE. 69 Tilt! alleged excessive killing of male seals Fomuiution of clinrgo of oxroasiTO imist rest entirely on the proposition, which the killing, lieport endeavors to establish, that, by means of this license to slaughter 100,000 young males on the Islands, the breeding males have become ao depleted as to be unable to fertilize the females, thus creating a decrease in the birth rate suffi- cient to account for the present condition of the Ahiskan seal herd. To establish this, the Com- missioners refer, among other things, to the re- port to the Treasury Department in 1875 of Taptaiu Charles Bryant. This official did, as Ciptain Brym-.t a» u witness for the Coin- s'atedin the Report (Sec. 678), advise the Secre- missioncrs. taiy of the Treasury, in view of his observations, to reduce the number of the quota to 85,000 skins ; but the true reason of this recommend; i- tion is obscured in the Keport by a collection of quotations from various writings, of which he is the author, and by placing an erroneous inter- pretation on his language. The reasons for his report of 1875 are clearly Reasons for iiis re- shown by an examination of his testimony before a committee of the House of Representatives in 1876. Captain Bryant there makes the follow- ing statement : " In the season of 18G8, before the prohibitory law was passed and enforced. numerous parties sealed on the Islands at will and took about two hundred and fifty thousand seals. port. ;. , I MANAOICMKNT. ...pj'i. / ' F f:\ W^ ;■' 'it' \i •! :f Kc.i8i.ns for iii» re- Thoy killed mostly all the product of 1 HWy-'Cu. In making our calculations for breeding seals we did not take that loss into consideration, so that in 1872- '73, when the crop of 1860-07 would have matured, we were a little short. These seals had been killed. For that reason, to ren- der the matter doubly sure, I recommended to the Secretary a diminution of 15,000 seals for the ten years ensuing. I do not, however, wish to be understood as saj'ing that the seals are all decreasing — that the proportionate number of • male seals of the proper age to take is decreasing. " Q. The females are increasing ? " A. Yes, sir ; and consequently the nimiber of pups produced annually.'" In 1872 the seals taken were principally four and six years old and some of seven years old were killed (Sec. 812). This was drawing from the same class of seals killed in 1808," which would, had they been spared, have appeared on the rookeries as breeders in 1873 and the years thereafter. The follov/ing year (1873) the class of skins preferred were "three-year-olds" (Sec. ^13), or those born in 1870; the so-called " crops '' of 1 869 and 1870 would not have been fit to goon > Ho. Eop., 44th Cong., 1st Sess., Kept. No. 623, p. 99. - Appendix to Case of the United Stnlcj, Vol. H, p, 7. AN AILEGKI) C'AUSK OF DKC'REANK. ti the In-cedinuf jyfronnds till 1875 or 1876, which Hi-wons for hu ro- pert. would correspond with Captain Bryant's state- ment that the decrease in male life ceased in 187(5 and breeding male seals bef:jan to increase to such an extent in 1877 that ho affirmed that in two years (1871)) the loss would be made ofood (Sec. 679). This is further and fully ex- plained by the same witness in his deposition appended to the Case of the United States.' The evidence presented m the Rep6rt, which Divisions of cvi- treats of the period from 1870 to 1880, consists (1) of stfitements to the effect that 100,060 or more skins could not be taken on the Islands without depleting the herd, and (2) of other statements or conclusions to the effect that the male seals, both breeding and nonbreeding, had decreased during the first decade of the lease of 1870. As to the first statements mentioned, it is in- irrrievuncy of iho first division. sisted by the United States that it is entirely irrelevant how many seals were taken on the Islands annually, unless it can be shown that the number killed resulted in a diminution of the normal number of the seal herd, or at least the male portion of it. The so-called proof, how ever, on this point which the Report presents as Unfuiincssofstnto- I ,1 T, . -IP ,• • ■ ! i- "lents as to Bussiim 10 the Kussian period ot occupation' is so mant- period. ' Appendix to tlio Case of the United States, Vol. II, p. 7. : 1! i " Ik m'- i i- • "^ 1 Ilussian pcnorl. MANxVGEMENT. Unfiiirness as to festly Unfair thal< attention slioiild be directed to .itatiMnents as to . ' „,, its misleading character, ihe Commissioners state that from 1787 to 1 806 the number of skins taken was 50,000 annually; from 1807 to 1816, 47,500 ; and from 1817 to 1866, 25,000. The desire is to suggest the inference that the killing Oi" 50,000 was excessive, the Report giving as a secondary reason for the evident decrease the "nearly promiscuous slaughter (for the first part of this period) of seals of both sexes and all ages." (Sec. 40.) The United Statt'S contend that the "nearly promiscuous slaughter," mentioned as a second- ary cause, was the principal cause, and that the expression "for the iirst part of this period" is intentionally indefinite, though it appears from the Report that the killing of females was not prohibited until 1847 (Sec. 37, p. 8). The Report states that in 1836 an exceptionally severewinter caused a great mortality among the seals, so that only 4, 1 00 of ail classes were observed on the rook- eries (Sec. 800), which rediiced the birtb rate for a number of years and necessarily, also, the annual number of skins secured. The inclusion of this time of scarcity in all classes of seals in the period ofl834tol866is most misleading as to the question (f how many male seals can be taken when the rookeries are in tLeir normal AN ALLEJED CAUSE OF DECREASE. 73 Second division of evidence. conflition. An examination of the Russian doou- The numbers killed from 1830-1865. meiits herewith submitted shews that from 1 360 to 18G5, inohislv^e (when it may be assumed the rookeries had recovered from the mortality of 183G and the slaughter of female seals prior to 1847), the annual quota ranged from 45,000 to 70,000 on St. Paul Island alone, and that the only reason why more were t.ct taken was the plethoric condition of the Chinese, Russian, and American markets.' The other class of statements or conclusions advanced, to show that the Ijreeding and non- breeding seals decreased during the ten years followinof the leasing" of the Pribilof Islands in 1870, may be divided into three heads, namely, (1) ail alleged increased proportion of females to breeding males, (2) an alleged recognition by the lessees of the decrease of male seals, and (3) alleged overdriving and resort to new areas to obtain the quota. Tlie first allegation is CompariEonsof 1 1 ,• 1 • 1 . ji , liavoina 1870 and based entirely on comparisons between the early isoo irrelevant, years of the lease of 1870 and the last two or three years of the same (1889-1891). The United States insist that such comparisons are irrelevant, for, even if the breeding males were disproportionately few during the latter years, it ' Pott i.p. 103-199. Bin«roft'8 Alaska, p. 582 : " In 1851, 30,000 potiltl be killed annually at SI. Paul Islanl alone, and in 1881 as many ns 70,000, witliout foar of exliaustinj; Iho supply." :: i i ; v. II if k\ , J 1 ' flHi I IH 1 fli j' ^H| r 7' '] 1 ;. =';■: ' i Mkeiit 74 -M'.^-^^OKMEXT. Coiiipirisoii. oc is tlie result i»t' w d'ecreaned birth rate caused bv luu'fms 1 S7<) and i83oiriYiov:iui. pelugic ,<«ealirt,G'. The Uuited States, however. dy tha« ha»P'^-niK have ir. Teased "from four to eight time« " ^jjwei- l^tueir wze in 1870-1874, (8ec. 5-4.) TiK>.M.rt;iiiMK^Mt<>f Mr. Menry W. .Kiliotr. who is rehed on as an »ii*hority in this matter bytit». Commissioners to il^^vuxr that the haremcs j*v«i9»a(jrefl from 5 to 20 C0W8 in 1&74 (8ec. 293), tM:Mim, in the same pas- sage fromM'hieli the quotatii.s been fully treated of in the Case of the Unit'-d States,' ' Unitod Stales Census Ecporl, 1880, p. 30. ■ Case of the United States, p. 172. niiilos. AN ALLEUKD CAUSE OF DECREASE. 75. and a pliotogniph taken by Mr. Stanley- Brown Suqiiis of virile ill 18!)-, at the heifjht of the breedhig season, shows a number of vigorous bulls located on the lireedinu grounds unable to obtain consorts.' On sizo or huroms in " ^ 1S0:J. July 19, 1802, Professor B. W. Everraann, of the United States Fish Commission, a well-known authority on subjects of natural history, counted the number of bulls, cows, and pups on a section of Lukannon Rookery; St. Paul Island, and the resiilt was as follows : 13 bulls, 90 cows, and 211 pups.- If each cow in a harem was repre- sented by a pup, the average number to a bull woukl be 1 5, certainly not an excessive number even according to the Report. The Commissioners also rely on a newspaper Alleged sump-.ui'y •^ ^ ^ of 11 report by II. W. extract, which purports to be a summary of a EUiou in isoo. report made by Mr. Henry W. Elliott in 1890 ti) the Secretarj-^ of the Treasury, to establish several alleged facts (Sec. 832). One of these statements in this alleged summary (Sec. 433) is that there were 250,000 barren females on the Pribilof Islands in 1890 (Sec. 332, p. 40). This is cited by the Commissioners to show the lack of virile males on the rookeries in that year. Ai. examination of the extract as published in ' J. Sdr.lej-Brown, poxt p. 386. - B. W. Eveniiann, post ]). 2G'l. I y. M I" "" F m% If « lilM' lii ! 70 MANAGEMENT. Alleged recogni- tion of dccrense by lessees. Alleged summary vulume III of the Appendix to the Case o" Gieat of a report bv 11. V\'. . • / r-k i • -r> /-^ Elliott in 18 Jo. Bntaiu (Parhamentary Paper C — 6368, No. 2, 1891, p. GO) discloses the fact that this state- ment appears after the signature of Henry W. Elliott, and it can not, therefore, be construed as a portion of such report. Furthermore, how the Commissioners can question Mr. Elliott's power to compute the number of seals on the Islands, as they have done, and still rely at all on his computation as to the number of barren females needs explanation. The second mode by which they endeavor to show a decrease in the seal herd prior to 1880 is by pointing to an alleged recognition thereof on the pyrt of the lessees in the reduction made by them of tlieir catch in 1875, and to an alleged lowering of the standard of weights of skins. The Report proceeds as follows: "In the same year [1875] the number of skins obtained was considerably reduced in the face of a steady market and before the decline in prices of the two succeeding years " (Sec. 44). This state- ment is clearly incorrect, as is shown by the references cited.' Another allegation as errone- ous as the foregoing is contained iri the state ■ ' Urilish Comrs. Kept., p. 132. Appendix to Case of the United Stiites, Vol. 11, pp. 058, 585. Tuble of scds taken on Piibilof Islam's for nil pnrposc s, po.it p. 427. :fii >. 1 f>«' :'IH AN ALLEGED CAUSE OF DECREASK. 77 meat of the Tieport tliat the standard ot skins was lowered from tune to time, implyinrij an i!icreasin,(v scarcity of males (Sec. G94). In 1 876 Avorarro wci^iitsof , ^ ' Alaskiin cutfh, 1870- the average weight of all the skins of the Alaska iss;). Ccatch was 8 pounds, which remained about the average till 1886, the average weight being in that year 10-i-j pounds ; from that time, coinci- deiitally with the increase of pelagic sealing, the weight dropped to 9| pounds in 1886, 8f pounds in 1887, 8|- pounds in 1888, and finally in 1889 to 7-nn) pounds, the lowest standard ever reached.' The United States, therefore, deny the stateiTents made in the Report as to the reduction of the " standard of weights " (page ll'J, C). The Commissioners also rely upon a statement Tiio numbor of seals taken from alleged to have been made to them by Mr. Novtiuast Point. Daniel Webster that, in 1874 and 1875, from 35,000 to fi6,00^ skins were taken from North- east Point rookery and that, since 1879, from 29,0CO to 18,000 skinw only had been taken there, thus implying a Wge decrease in the seals resorting to this great rookery (Sec. 677). The annual killings on Northeast Point are comljined ill a table submitted herewith," which givet- the numbers annually taken thereon and the percent- ' Mux Iloinironner, ^;o.v< p. 3G9 anil table facing. -' Table ol' seals lulled on Isorthoast I'oint, ^ov< p. 127. % % I i m :f I Will li.,. 78 MANAOEMENT. Tiic nunibpr of age to thc wliolc iiuinber killed on St. Tnul 8ou1h lakon from ^ i i • i • Ko:-tii-nis.t I'oiiit. Jsliiiid. rvoiti tliis table it appears that in 187;{ 2G,36i) seals were taken, being 3-1.9 per ceui of the whole number ; in 1874, 34,520, or 37.5 per cent ; in 1875, 35,113, or 39 per cent ; in 1888, 33,381, or 39.7 per cent; and in 1889, 28,794, or 53.9 per cent. The average percentage for the nineteen years during which the lease may be said to have been in operation (some 3,400 only having been taken the first year under the same) is 31.4. The Commissioners give the number taken in 1889as 15,076, claiming the same to be from official records, but the citation given is to a report to the House of Kepresentatives printed in 187G (Sec. G77). Evidently this is a clerical error, but it deprives the United States of the opportunity to examine the authority intended to be cited. The question of driving in 1879 from areas. before reserved and untouched, is used in the Keport to show that the male seals had decreased to such an extent as to compel the resort to these hauling grounds. The Commissioners refer to this in the following words : " Whatever may have been the detailed history of the seal inter- ests on St. Paul in the intervening years, the fact that in 1879 it became necessary for the first time to extend the area of driving, so as to in- AUegeil resort to reserved areas in 1879. AN ALLKOED CAUSE OF DECREASE. 70 elude Zapadnie and Polavina rookeries, or the Ailogod resort to reservod iirons iii hauling grounds adjacent to tliem, shows con- 1«79. clusively that a great change for the worse had already occurred at that date " (Sec. (584). This statement is not in accord with the facts. No hauling gioimcU ever reserved. Prior to 1879 Polavina had been driven from every year but two, and Zapadnie had r applied its portion to the quota of skins every year of the lease prior to 1879, as is shown in the table cited. ^ The United States, therefore, insist that this statement in the Report should not be considered, in examining the (question as to the cause of the decrease of the seal herd. The Overdriving und ,. p i«- 11--1 1 1 redriving subsequent question ot overdriving and rednvmg has already to isso irrelevant, been fully treated of in the Case of the United . States ;'~ it may be noted, however, that Mr. Elliott is quoted as stating that overdriving was first begun in 1879 (Sec. 714), which is the year mentioned in the erroneous statements, above referred to, as to the commencement of driving f''om Polavina and Zapadnie. ' ' It is insisted by the United States that driving and redriving after the introduction of pelogic sealing, if any occurred, are directly chargeable to the condition created by open-sea hunting. The United States, tterefore, deny that any Denial of decrease r 1 . 1 1 " 1 /- prior to 1880. valid evidence has been advanced bv the Com- ' Appendix to Case of the United States, Vol. Tl, pp. 117-127. ■' Cii:4o of the United States, p. l.>8. :\ I ' I ■ ' ■u W- i H m i ' - 'i^'^i- 1 i ■ t. i, 1 80 PKLAOIC SEALING. denial of iiocrcasc missioners Sufficient to establisli tliat any portion prior to 1880. . ' of the seal herd decreased })rior to 1880, or that there was a paucity of male life during tluit period on the breeding grounds, or that the management and methods in force on the Prihilof Islands have been a cause of decrease in the Alaskan seal herd. PELAGIC SEALING. The Report an That portion of the Eeport of the British Com- apology for pelagic *• •• sealing. missloners M'hich considers the effects of pelagic sealing upon the Alaskan herd is in the nature of an apology and an attempted justification, for the Commissioners specifically admit that pelagic sealing is indiscriminate (Sec. G33) and tends towards decrease (Sees. GO, 71). The apology rests upon three propositions which they endea- vor to establish by evidence principally obtained from interested parties at Victoria and -which are herein treated in the order of their import- ance as recognized in the Ileport. 1. TJiat the percentage of female seals in the pelagic catch is not large. The Report first cites in this connection so- called " evidence," alleged to have been obtained from Indian hunters at various points along the Northwest Coast (Sees. G35-G41), and in which there is a careful avoidance of names of inform- The Indian evi dence submitted. rERCEXTAOE OF COWS IX CATCn. 81 ants. It is insisted by the United States that Tho indinnevi- such testimony is vakieless for the purpose of establishing any conchision worthy to be relied upon in this controversy. The second class of testimony presented to Testimony of inUM- •^ -^ csti'd parties siibiiiit- sustain the ])osition of tlie Report is obtained ^'^'''• fi'om sworn statements of Canadian sealers, which the Commissioners admit are not " entirely un- tinctured by motives of personal interest " (Sec. ih'A). These alleo^ed statements of Indians, whose names are not made known, and of other witnesses, admitted to be subject to suspicion. are the sole foundation, so for as matters of ftict are concerned, for the defense by the British Commissioners of pelaoic sealing-. The laro-est pcrcentafje of females admitted „ Peif'^ '><";-'«' by these "most experienced and intelligent '^^'**'*^'"' pelagic sealers" (Sec. 642) to have been taken by them along the Northwest Coast is fifty out of one hundred seals, and but three men make this admission (Sees. 044, G45, G46). The other witnesses (pioted (fifteen in number) vary con- siderably in their opinions as to the number ol' females taken in a catch, the percentage nlleged randno- from two and a half to over forty, the nf I (o ma jority giving it as from twenty to thirty (Sees. 644, G45, 64G). It is dlfficidt to understand how statements in- ' consistent wUh tlie these stytements can be harmonized with the de- Kcpoit. L31G] G li '' iiii; :. ' f mi It i' f m 82 PELAGIC 8KALL\a. statoments in- pletccl coiicUtionof the male life of thePribilof seal I'onHiBtont witli tlio ^ i • i herd, so often alleged m the lieport, and with tlu; Ri'porl. Tlic stateiiieiits in tlie Re])ort deniod. .statement that " the persistent killing of youiKc males has led of lato 3'Pars to the exiHtence of a very laroe surplus of females, and that, there- fore, the proportion of females to the whole mini- ber i)f seals, wdiether at sea or ashore, is, at the present time, according to the information ohtained by us, quite abnormal " (Sec. ()35). As this information last referred to has evidently not been publish''d b^^ the Commissioners in connec- tion with their discussion of pelagic sealing, un- less it is embodied in the statements obtained at "a conference held with a number of representa- tive pelagic sealers" (Sec. G48), at which con- ference " no degree of reticence w^as shown in answering direct questions on all points in- volved " (Sec. Oi8), it is impossible to draw any conclusions therefrom, except that this mfornia- tion is in direct contradiction to the testimony of the witnesses named in the Report. In view of the admitted untrustworthiness of the evidence advanced, and in view of the con- clusive proof presented in the Case of the United States on this question, the United States deny that the percentage of females in the pelagic catch has been exaggerated in their case, and present herewith as corroborative evidence on PKRCENTAOE OF I'OVVfti IN t ATC'ir, HI] this subject the report oi'.Ctipt. C. L. Hooper, Cupt. iroopc/s in- U, S. H. M., who cnusod m lieniig bea auriagof ihw. thesummerof 18'J2 unci uiitlertho direcfcionof the (lovernmontoftlie United States niadeaseries of systematic observations as to the distribution and cksses of seals found in tliose waters, for which purpose he took a limited number of seals at sea.' Thu result of his observations and experiments was that, of 41 seals shot and secured, 29 Cateiica of vcsmIh seized by Ku:siii , were fenmles. Mr. Malowanski, the afjent of i^^^. '^ i^r i'^'"'- fenmles. the Russian Sealskin Company on the Com- iiiauder Islands, examined about 2,700 skins taken from sealing schooners, seized in the neighbor] lood of those Islands by the Russian authorities during the summer of 1892, and t'onncl that over 90 per cent were the skins of foraale seals." This is also verified by Mr. Grebnitzki,^ the Russian official in charge of the Commander Islands, and by an examination of over 1,000 of thesame skins specially made in London.'' The Kx"i"iiii>i iou t.r *■ '' pelngif catclies, ]S 71 ^? Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. USED (716) •72-4503 o^ 84 PELAGIC SEALING. Exnminfttion of confirm the fact that a very liirt-e proportion of pelagic catchw, 1892. . \. , the pelagic catches consist of 1' niale seals.' Proportion o( This large ratio of females t;iken at sea doea females takrn at sea -i • /»• /. i i i i • prior to 1870. not dmer from that observed before the Pribilof Islands were leased. In the official report on the seal question made by a special agent of the United States on November 30, ISfiO, the following appears : " Nearly all the 5,000 seals annually caught on the British Columbian coast are pregnant females ^'' ^^ "'V* * and Capt. Bryant, in 1870, also states that "formerly in March and April the natives of Puget Sound took large numbers of pregnant females." "• 2. That pelagic sealing in Bering Sea is not mde- strvctive to seal life as pelagic sealing i.n the North Pacijic. There is an evident attempt on the part ot the British Commissioners to establish that the principal harm to the seal herd resulting from pelagic sealing is inflicted during the herd's Grounds for tiio migration in the Pacific Ocean. This is based, Keports statenientB. . ., ,, ,- l^ •^ primarily, on the assumption that no gravid females are taken in Bering Sea (Sec. 048), and that the alleged occasional deaths of " a few ' C. J. Behlowr, post pp. 353-358. ' Ex. Doc. No. 32, 4l8t Cong., 2cl So88., p. 39. ^ Bull. 2, Mu9. Comp. Zoology, p. 88. IN BERING SEA AND NORTH rAOIFIC females in milk " (Sec. 649) (^oes not destroy flround* for tiio Report's slatemenU. the offspring of such females (Sees. 355, 356). It will be seen, on an examination of the state- ' ments of the pelagic sealers quoted in the Report (Sees. 645, 646), that but eight refer to the num- ber of females taken in Bering Sea, and these give percentages which are practically the same as those given for the catch in the North Pacific. It is, therefore, conceded that the destruction of female life in Bering Sea is as great as along the Northwest Coast. The distinction is made, how- rirpimut rcumiti. ever, that no gravid females are taken in Bering Sea. It must be recollected, in this connection, ihat the admitted period of gestation of the fur- seal is " nearly twelve months " (Sec. 434), and that, therefore, an adult female which has been fertilized is pregnant at all times when found in the water, and certainly so if the fact alleged in tiie Report, that the female remains on the rookeries from four to six weeks after giving birth to her young, could be established (Sees. 30G, 307). ■ " ■ • The designed implication that very few nursing N,,rging females, female seals are taken by pelagic sealers (Sec. 040) is based on pure assumption, no evidence capt. Hooper's ir.- being advanced to support it. Capt. Hooper, ''"''«**'°'"'' ^"''*"- alreadv referred to, states that of 29 female seals taken by him in 1892 in Bering Sea, 22 were •J', ; ii ; .;) Mendent solely upon their mothers for nourish- ment has already been discussed both in the Casi' of the United States and in this Counter Case. The Commissioners, to support their position. endeavor to explain away the obvious inference derivable from the fact that a large number of dead pup-seals were observed by them on the Pribilof rookeries during their cursory examinn- tion of seal life on the Islands. It is evident, from the eftbrts made and theories advanced to explain this mortality, that the Commissioner^ considered the presence of these bodies prima facie evidence of the fact they endeavour to dis- prove (Sees. 344-356). These officials have, through some strange circumstance, been led into the belief that they were the first to l)i';i(l pups on the ro'AiTii'-. :> 't ' Capl. Hooper's report, poxt tnblc facing p. 210. ■ C. H. Townsend, post p. 394. ^ Arte, p, 53. ': ■ ,;,,*,. ■ :, IN BERING SEA AND NORTH PACIFIC. 87 observe this mortality amoiiof the pups on the Dciui pups on lUe . . r..okcrit". rookeries (oec. 8;i), from which belief they draw the inference that " the death of so many young seals on the Islands in 1891 was wholly excep- tional and unprecedented " (Sec. 355). The dep- ositions, however, of many witnesses appended to the Case of the United States show not only that dead pups had been observed on the rook- eries as early as 1885, but that the numbers had after that year annually increased.' Mr. J. Stanley-Brcwn testifies that he had already seen and noted the dead bodies before ^he Commis- sioners arrived at the Islands in 1891, and that, tiie cause of death had been fully discussed by those on the Islands.* ' The same opinion as to the cause of this mor- cause :f death, tality, which * in no instance was ^* * * at first voluntarily advanced " (Sec. 83) to tlr Com- missioners, namely, " the killing of the mother at sea " (Sec. 83), existed for several years before the British ofScials examined the Pribilof rook- eries.' It is unfortunate for the position taken by the Commissioners, to the effect that the mor- tality was unusual and that the cause assigned , ' ' Appendix to Cato of the United States, Vol. II, pp. 32, 30, 51, 71, etc. - Api)endix to Cate of tho United States, Vol. II, p. 19. 'Appendix to Case of United States, Vol. IT, pp. 32, 39, 51, 71. etc ..! N., .5 1 I 1^ 88 , .... PELAGIC SEALING. CiiHsc of death, by those on the Islands a day or two after the investigations by these cfficialswas a novel hxw. ge8tion,that,notwithstanJingthe'care''u.s.seited by them to have been taken to complete their per- sonal knowledge of all documentary evidence obtainable, '* including the previous oilicial cor- respondence " (Sec. 8), they should have ovei-- Mr. Blaine's nolo looked a note from Mr. Biaine to Sir J. Pauiice- of Man^b 1, 1890. fote, dated March 1, 1890 (Parliamentary Paper [C, G131], 1890, p. 424), in whicii were inclosed extracts from an official report made to the House of Representatives in 1889, which document is so often quoted in the British Report. Among these extracts appears the following statement made by Dr. H. H. Mclntyre {ibic^., p. 400) : " The marauding [pelagic sealing] was exten- sively carried on in 1885 and 188(1, and in pre- vious years, and of course the pups that would have been born from cows that were killed in 1885, or that perished through the loss of their mothers during that year, would have come upon the islands in 1888. "' * "' I would say, fur- ther, that if the cows are killed late in the season, • say in August, after the pups are born, the latter are left upon the island deprived of the mothers care, and, of course, pensh. The effect is the same whether the cows are killed before or after the pupa are dropped. The young perish in either TN BERTXO SEA AXD N'ORTIT P.Al [Fir. 89 case " {ibid., p. 430). At another place, quoting Mr. Biaine'i note from the testimony of Jacob H. Moiilton, the following cippears : " Q. When a female is nure iijof her young and goes out for food and is killed or wotmded, that results also in the death of her young? — A. Yes, sir" {ibid., p. 432). This explanation of the cause of the death of. Cau»ei of death al- *- leged in the Report. pup-seals is not recognized by the lieport, except to contradict it. In place of it four specific causes lire advanced, " to which the mortality noted may be attributed with greatest probability " (Sec. :) 56) : First, the killing of the mothers by taking them ill " drives " from the borders of the breed- ing grounds ; second, an epidemic disease ; third, crushing of the pups in stampedes ; and, fourth, raids on the rookeries (Sec. 356, a, b, c, d). The first cause alleged, namely, the d riving and .^ i- ^"[J°8 '■^^^]^f' killing of the mothers, is unsupported by any lUwuwod. proof whatsoever, and will not account for the deaths on Tolstoi Rookery, where the greatest number of bodies were seen by the Commission- era (Sec. 350), because no " drive " was had in 1S91 within a quarter of a mile of that rookery.' The second cause alleged, an epidemic disease, 2. An epdemc. is mere hypothesis, and has already been treated in the Case of the United States.^ ' J. Stanley-Brown, ;»o*< p. 888 ; W. H. Williams, post p. 399. ' Case of the United States, p. 216. I! §\ i 1 . 1 ^:i i- IE '! f h\ M; fiO PKLAOIC 8EALINO. 3. Piipnorusiiofiin The tliird alleged c;\u8e, the crusliiiif; of tlip »f:Mn|lO(lo!<. pup8 in stampedes, has no evidence to support it. The only instance of even a supposed stampede en any breeding grounds is mentioned in the Report in the following words : " During the summer of 1891 a panic was caused on the Reef • ' Rookery of St. Paul Island by the drifting over it of the smoke from a steamer which was en- tering the anchorage there " (Sec. 332). The Commissioners do not specify the inrormaLioii upon which this statement is made, and Mr. J. Stanley-Brown testifies that no one saw such an alleged stampede.' The difficulty and j)ractical impossibility to cause a stampede or create a panic on a breeding ground are clearly shown by Dr. H. H. Mclntyre,'- Mr. J. Stanley-Brown,' and others conversant with seal life.' If a stampede ever did take place among the breeding seals, no evidence has been advanced to piove it. The fourth and last cause, which is stated to be " within the bounds of probability " (Sec. 3oG, p. G4), is that the female seals were killed by raiders, or by a stampede resulting from a raid. The Report offers no evidence whatever of such 4. Possible raids ns V. cause discu8»e(.1. 1-1 1 ' Post p. 888. " Pott p. 371. ' W. H. WilliamB, pott p. 398. '[ ,;V. .n\':h.ri i;j4iit'/: IS llKKIXa SKA AND XORTll PACIFIC. 4. Po«8ililp raids at II ciiusr uj)t. ettbrts of the naval vessels charged with the pro- tection of the seal herd and the enforcement of iheModiis Fj'wHrf/.fewsealingvessels enteredthe eastern half of Bering Sea in 1892, and those waters were practically free from open-sea huntei*s. If the cause of the mortality of 1801 amon^ the pups was any of those advanced by the Report, it is a remarkable and, for the opinion of the Commissioners, an unfortunate circumstance that with the decrease of sealing in Bering Sea dead pup-seals have decreased likewise. On theotherhand, the increase of seal- iiui-ea»»ii mor- • « • • ^ 1 /-« 1 T 1 1 tulity oil KuMiuii iiigm Asiatic watersaoouttheCommander Islands i-ookoneg. has been followed by a large increase of deaths among young seals on the llussian rookeries.' Tiie destructiveness of the Bering Sea catch, Cojiiiiaraiivo mz.-. ^ of Bering Jsc* aau as compared with that in the North Pacific, is ^''""^" ««tci»"- furti\er shown by the relative si^ses of such catches. A. compilation made from the state- ments of yearly catches of the Victoria sealing fleet, attached to the Report of the British Com- missioners (pp. 205-2 1 2), shows that the average catch per vessel for three years (1889-181)1) along the Northwest Coast was 587, while the Bering Sea catch for the same period of time was 783.'' It is impossible to compute accurately the ' John Malowanski, poat p. 374 ; N. A. Qrebnitski, pott p. 366. ' Tables compiled from Commisaionen' tables, poat p. 411. i' if II 04. PELAGIC :^EALINa. • - - - f I '■ Coiiip»r»iivc Hise» ratlo between Ihe North Pacific and Berintr 8ea of Bi-ring Sea and * i'aciflo catciiuii. catcliGS foi' u lou^Qv period, as prior to 1881) the Bering Hea catch included a portion of the catch in the North Pacitic (p. 211, note). bS^3'p.J:: Tlie Report, in treating of pelagic soalinK fle i-ompami. along the coast, states that the season extends from February to June, inclusive, and that in Ber- ing Sea it includes July and August (Sees. 132, 212, 308, .')82). It can be assumed, tiiereforc, from the statements in the Keport, that the coast catchoccupies four and one-half months in taking and the Bering Sea catch but two months. On the authority cf these statements above noted a ' table has !)een compiled, which shows the aver- Avoraae ciuHy r^„Q (Jailv catcli per vessel for three years (1889- ralfli in Uorinj,' S( :i o ^ t- ./ \ tvmii'ncinccoini.aiv'i. 1891) aloug the coast to have been 4.3 and in Bering Sea 13.' This includes 181)1, when the ' ■ ' '. enforcement of the Modus Vii'endi scriouHly qin- tailed the season in Bering Sea. The United States, therefore, contend that pelagic sealing in Berinij Sea is at least three times as destructive to seal life as that along the Northwest Coast. 3. That the ivaste of life residtiiKj from pckujlc sealing is insignijicant. This third proposition is advanced in the Keport in defense of the method employed in Table compiled from C'onuuissiuncrs' tableii, jiont p. HI. RESULTING WASTE OF LIFE. 95 takiiiL' weals in the open sea : and the Couunis- Wo»tc of life imig- . . ... niflcont, sioners, in order to estabhsh their position, col- .• . lect and quote the statements of a number of pei-sons wlio disa^j^ree with the proposition which the Keport endeavors to substantiate (Sees. 613, G14). These statements are all characterized as being made by persons " presumably interested in.orengaged in protecting the breeding islands, but without personal experience in the matter " ■ ' (Sec. G15). The Report then proceeds to arra> J^^ea rn'ttT against these opinions a number of statements '"'"'• 'for the most part made by persons di» ovtly interes+ed in pelagic sealing," but which, it is al- leged, " must be considered as of a much higher order of accuracy" (Sec. 616) than the former statements. These interested parties thus quoted in the Report (Sees. 616-621) state that the ,J^yfi;\",;;7J '''•''•' Indians lose of the seals killed by them " very fe«'" (Sec. 618), "at most, a few" (Sec. 619), and "one per cent " (Sees. 617, 621) ; the white ^iSehuS'"*' ^'^ hunters, on theother hand,arecreditedwithlosing from 3 to 6 per cent (Sees. 616-621). The Commissioners then present a number of state- ments (Sees, 623-626) collected from inexpe- « rienced individuals, which are open to the same criticisms as the adverse statements first quoted in the Report. 'JS tn I'V'H^ i'f^.i L ■■u in'. '■ uu:^,:'\., t ■ 1 nt'.. Mai f] I I ^i 06 PELAGIC SKALINO. Tabulated itatc- An endoavoi* is then made " to' elucidate tlio ments of whiU hun* »"«to me ^"- question " under consideration by tabulating a number of statements made by white hunters and Indians, some of which are supported by their depositions and others not. " The results of this method of treatment" show that the white hunters affirm that they lose but 4 per cent of the seals they kill, while the Indians give their incoimstencics of Joss as 8 per cent (Sec. (527). The table en- statements. ^ ^ ' titled "White Hunters" (p. 107) is averaged, whilethe tableentitled "IndianHunters"(p. 108) is not, for the obvious reason that these Indians (Sec. G27) appear to have lost twice as many seals as the whites, which is in direct contradic- tion of the statements quoted in the Keport, where the Avitnesses speak of both classes of hunters (Sees. G16-621). If the Indian state- ments are to be accepted that 8 out of 100 seals killed by them are lost, and also the statements of Captains Warren, Petit, and others (Sees. 616-621) that the white hunters lost five times lis many as Indian hunters, then the former are admitted to lose at least 40 per cent of the seals they kill. It is difficult to harmonize this con- clusion with the table entitled "White Hunters" (p. 107), and the evidence tjhus presented is so contradictory that it is hard to see how any con- clusions could have been reached by the Com- missioners. BESULTINa WASTE OF LIFE. fie The table entitled " White Hunters is made Sonnjeiof "Wiiit» „ , „ . . Hunters "table. up from the statements of sixteen witnesses ; five of these (Nos. 1, 7, 20, 26, and 27, p. 107) state specifically that the loss of seals they refer to are seals lost hy sinking ; six others, examined at the same time as the former witnesses, do not state what they mean by " seals lost," but it is to he presumed their meaning is the same ; the statements of three others whose evidence " was personally obtained " can not be examined on this point, as such statements have not been published ; Abel Douglass's ratio of loss is given ill the table without reference to where it was obtained, so that what he means by " seals lost " is impossible to determine ; the one remaining hunter used in the compilation of the table (William Fewing) is the only one who definitely, or impliedly, states that " seals lost " refers to those escaping as well as to those that sink, and this is particularly noted in the table under "Remarks." > It can be fairly assumed, therefore, that this Table only gire*. *' Ma^s lost by sinking. table only represents the seals lost by sinking. The whole question; so important to this contro- versy, as to how many seals are lost by wound- ing is summed up in the vague admission, that " a certain proportion of the seals shot of course escape" (g;.c. 628), and is dismissed bycalculat- [316] • It I !• *i .1 :' Si ■■n"*r ..liv si- • K s| i ii m 98" Table scali lost Seals lost wounding. i PELAGIC SEALING. only giTesinc; the numbfcF of encysted bullets found In by sinking. ° ^ "^ ^ male seals killed on the Islands in 1890, s'.iowing an average of one bullet to 280 seals killed (Sec. 628), The notion that the carcass of every seal killed on the Islands is searched for encysted bullets is sufficiently absurd, but it seems to be assumed in the reasoning of the Commissioners. by The necessarily large percentage of seals which lose their lives by wounding is shown by Mr. Townsend in his account of his experience as a pelagic hunter.' He states that " many times the animal is wounded sufficiently to get out of reach of the hunter before it dies;"' and, again, "it is from the instantly killed tht; seals are secured ; the wounded animal uses its death struggle to get out of reach."* It is evident how much this class of "seals lost" must outnumber those which, killed outright, sink before they can be secured f and yet the Commissioners have, presumably through oversight, ignored this important factor of waste of life and have dealt solely with the '_, seals which ptlagic hunters lose by the sinking of the carcass. ' Po*t p. 395. " •■ • See also reports of Capt. C. L. Hooper, post pp, 208-219. •is-. RESULTING WASTE OP LIFE. 99 The United States, having reviewed these Tiic bases tor the . apology insufli oiont. three propositions set forth m the Report, namely, (1) that the percentage of female seals in the pelagic catch is not large, (2) that pelagic sealing in Bering Sea is not as desitructive to seal life as in the North Pacific, and (3) that the waste of life resulting from pelagic sealing is insignificant, deny that any one of these grounds for the Commissioners' apology have been, or can be, established. ■■■ \ ' y |-v< .''•';> ', I :tU [316] H 2 ..!.; ":•■.' h \'-t ',''.«> I < 1 /Ad ill n I \ r > f- I *.j;i ^1 .(■.'• !■... SECOND. KATTEBS WON WHICH THE BEPOBT BELIES TO ESTABI.ISH CONCLUSIONS ADVANCED THEREIN AND TO F0BMX7LATE THE BEOXTLATIONS BECOK- VENDED, WHICH MATTEBS HAVE NOT BEEN DEALT WITH IN THE CASE OF THE UNITED STATES. HABITS OF THE FUR-SEALS. 1. That the Alaskan sea herd has a defined luinter habitat. The Commissioners have advanced a most extraordinary theory as to the life history of the Alaskan sea herd. It is presented in the The " wiiuoi- iiabi- following words : " Tiie fur-seal of the North Pacific may thus be said, in each case [referring^ also to the Commander herd], to have two habitats or homes between which it migrates, both equally necessary to its existence under present circumstances, the one frequented in summer, the other during the winter " (Sec. 28). Again, the Report states that the portion of sea lying off the West Coast, between the 56th and 46th parallels of north latitude, which limits include the whole length of the British Colum- bian coast, " is the winter habitat of the fur-seal of the eastern side of the North Pacific " (Sec. 192, p. 31), and that Bering Sea may be named " their summer habitat " (Sec. 192, p. 31). WINTER HABITAT THEORY. 101 This theoretical projiosition of an animal pos- Object of proi>o«- sessing two homes is contrary to what has been observed in respect to the habits of animals in oreneraJ, and is advanced for the sole purpose of establishing a property interest in the Alaskan seal herd, resulting from the alleged presence of seals for several months in the waters con- tiguous to Vancouver Island. This object is shown from the following statement in the Report : " This independent native hunting [by the Indians of British (Columbia] is undoubtedly a primitive vested interest of the coast tribes, aud its character in this respect is strengthened by the fact, now made clear, that the winter home of the fur-seal lies along, and is adjacent to, the part of the coast whicb these seal-hunt- ing tribes inhabit " (Sec. 113). ^., An examination of the evidence (if statements Tbo bulls do not '•esort to the " tc^nttr made by the Commissioners without giving the habitat:' names of their informants can be so called) on which this remarkable proposition is advanced shows an important fact, which seems to have been entirely overlooked by the Commissioners. It is, that " the full-grown males, known as beachmasters ' or ' seacatchie,' have seldom or never been reported to the south of the 50th parallel" (Sec. 1 93). It is evident that the Com- missioners never heard of a bull seal below that li: ■ir M: ':TC 102 HABITS OF THE FUR-SEALS. resort habitat li' The bulls do not parallel, nor do they anywhere state that thev sorttotho"jr»»^«- ^ ' y ^ j ever heard of a full-grown male below the 56th parallel, the assumed northern limit of the winter hahitat (Sec. 192, p. 31) which they have created, and Capt. Hooper particularly states that bulls are seldom seen below Baranoff Island, the lower extremity of which is above the said parallel.^ This southern "home" is, therefore, according to the Keport, resorted to by but a portion of the seal herd ; and that essential part of all animal life, the virile male, has, as is practically admitted, no home but the Pribilof Islands. The new and peculiar habitat alleged by the Commissioners is, therefore, only the winter resort of adult females and the young of both sexes, the remainder of the herd lieing confined to one home, the Pribilof Islands. It is, however, denied by the United States that the seals, during any portion of their migra- tion, can be said to remain within any limits, such as are assumed in the Report, or that suflBcient data have been produced, of any sort whatsoever, to warrant the construction of Chart II (facing p. 150), especially the area to the right of such chart marked in a blue color, which is stated to represent the "winter habitat " of the fur-seal. The data insufR- cient to establish. Appendix to Case of the United States, yol. I, p. 504. WINTER HABITAT THEORY. 103 Capt. Kelley, one of the witnesses whose lesti- Testimony in op- '■ / _ position. monyis submitted with the Keport(p. 21 9), states that ho has sealed south of Cape Flattery "and has followed the sealsall along the coasts of Brit- ish Columbia to Bering Sea" (p. 2 1 9, Question 3). Capt. Petit also makes the same statement (p. 220, Question 5). It is evident from these state- ments that sealing below the area termed " winter habitat" in the Report was a matter of common occurrence, and not unusual, as would be inferred fro'n the chart heretofore referred to. This is also supported by the statement of every witness whose deposition is submitted with the Report and who was questioned on this point (pp. 231, 237). A (juantity of testimony may also be found in theCaseof the United Statesproving that sealing begins off the Califomian coast. ^ The Commis- sioners state that " it would appear no large catches have been recorded south of the Columbia River, and much of what has been classed in the returns as 'south coast catch ' has been obtained off the entrance of the Straits of Fuca " (Sec. 190). This statement is entirely unsupported by evidence of any sort, and seems to have been ad- vanced for the sole purpose of establishing the "winter habitat "theory. It may also be noted in ' Appendix to Case of the United States, Tol. II,'"pp. 330, 331, 844, 846, etc. M; < . • , ! ■•HI s. • -.!■ I* :? i i i 104 HABITS OF THE FUR-SEALS. aiionthg. So»i« followed this connection that both Capt. Kelley and Cant along VanoouTer ^ "^ 1 • Island. Petit, above mentioned, state that they have followed the seals "along" the coast of British Colurabia, which is evidence of the fact that the seal herd was moving northward when ImnteJ off Vancouver Island. Seals scattered The distribution of the Alaskan seal herd is during winter much iTQore scattered during the winter months than is implied by the Report, and the range of portions of the herd is much farther south and west than appears on the Commissioners' chart of migration. Capt. Hooper, R. M., who ex- tended his observations of 1892 in Bering Sea into September and continued his investigation of seal life and the migration of the herd until some time in November, states : " Th-^se that leave [the Pribilof Islands] earliest go i ivthest south) arriving on the coast of California, and those leaving later reach the coast further up. # * * They appear at about the same time off a long line of coast, reaching from California to Washington. When they are so found they are known always to be moving northward up the coast. "^ This is also more fully treated in his report of November 21, 1892.^ Capt. Walter H. Ferguson, who has f )llov/ed ' C. L. Hooper, po - / p. 370. ' Eeport of Capt. Hooper, November 21, 1992, post p. 228. WINTER HABITAT THEORY. 105 the sea as a profession for twenty years, and S"*!* toxmd in ist. ^ . . 40 N. and long. who made a careful investigation for six years I'^J' w. of the winter resorts of the Alaskan seals fur the purposeof hunting them during that season, says : "All reports tend to show there must be an im- mense feeding ground between latitude 40" and 42° north and extending from longitude 172° west to 135° west. * ^=' * The reports of these vessels all show for the months of Novem- ber, December and January, large bodies of fur- seal in this locality." ^ In a volume entitled "List of Reported Dangers in the North Pacific Ocean," compiled by the United States Hydro- graphic Office and published in 1871, mention is made of an area about 40° north latitude and 150° to 151° west longitude where the sea swarmed with seals. ^ It is evident, therefore, that the limited range of the fur-seal during its migration, as depicted by the Commissioners, is erroneous. .- From thefurther data collected and mentioned ^'"w migration cliart presented with above a new migration chart has been con- Counter case, strncted, correcting and modifying the one sub- ! mitted with the Case of the United States. The attention of the Tribunal of Arbitration is here- with directed to this chart, which the United • Walter H. Ferguaon,/)o«< p. 362. - Post ]p. 288. ''■^iwm !* H Ifeirl II m 1 W V 1 J?l 'ti i| ^^^B! ' It 1 10(> HABITS OF THE FUR-SEALS. Tncrensed nuturo alleged New migration gtates insist is more accurate and based on fuller chart piwicntod with '^' Countor Case. ^j^ta than the chart contained in the Report. ' 2. That the Alaskan, seal herd has changed its hahits as a result of disturbance on the breed- iny islands and of pelagic sealing. pelagic ^^^ The first assertion advanced by the Kepoit under this head is that the seals, for the reasons above stated, have become more pelagic in their nature (Sees. 44, 85, 86). ... This assumption is resorted to, as it appears, to show that land is not a necessity to the fur- seal and ill order to harmonize the sworn state- ments of the pelagic sealers appended to the Report, that at sea the seals have not decreased, with the acknowledged decrease on the Islands. To support this proposition the evidence of these interested sealers is advanced to show that there has been no decrease at sea similar to the de- crease on the Islands, but rather a possible increase (Sees. 87, 89, 94, 402). At the same time it is asserted (Sec. 281) that no "stagey" "Stagey" seaiB seals are taken at sea, that the " stagey" period on the rookeries lasts about six weeks, and that this period of hair shedding is caused by pro- longed resort to land. All seals must at some ' Chart of migration, Portfolio of maps and charts, appeDdcd to the Counter Case of the United States. ALLEOKD CIIAXOES. 107 charts, appended period each year shed their hair, and it is a fact "Stagey" »eniH . »)i 1 token nt »«i' that many taken in the water are "stagey, the cause alleged by the Report being undoubtedly the true one. A seal must, therefore, of necessity be on the Islands each year at some peri9d, and it is insisted by the United States that observa- tions on the rookeries and hauling grounds are the only criterion of the numerical condition of the seal herd. The Commissioners also present a table giving Tnbio of *-erng«* cntcli per boat and the average catch per man and per boat to show per imm. th;it the number taken respectively from yei„r to Year has not materially changed, notwithstanding '"' -;' the continual decrease (Sec. 409, p. 74). This compilation begins with 1887 and includes 1891. The years 1885 and 1886 are not used, for a reason whicli becomes obvious when the statistics Why aTorages for 1885 mid 188G not in the Report are examined, namely, the average used. per man in 1885 was 127 seals, or 68 more than in any year given in the table, and in 1886, 77 seals, or 1 8 more than the highest number in any following year. In the year 1886 the average per boat was 241, or nearly one-third more than Such averages of no value. in any year thereafter. It must also be recol- ' Charles Behlow, post p. 357 ; 0. W. Preiss, vogt p. 384 ; Walter £. Matin, ^oj< p. 376; see, also, title-pago of London catalogue of sales, poit p. 412. • These averages are taken from the tables of catches transmitted with the Report, pp. 209, 210. i!> ,*fM ■ II II^H IT I^H >l p n Kfl^^^H \ 'it 1 IH '' ' V<' (1]:' 11 H .! "'^'''fi'.lt 'j ■ HtMii r • 'H ,'i ' m <\ ^H 1 C ^ ' 'nH' 1 ' ! ''' 'i' 8 ' M ip:!| 1 Ri' IHl .|iii';, ^ ill;.. 1 ' 1 ' flJlillfl 1 i If) '^^^^mff'^ :i! ; n ' H '•' : '1 ml 1 Hi ■■ ' 1 SBH^ f| ^B H li^H H ^R MM lii V iij_%i M^H w B wm^H||^^^^^.|^H) 1 1 1 ^^^nfl' I Ir h:] J^HP ™' i ^Hi 1 1 ^Hi m ■ I^Hpll 1 1 i Kii'^ 1 Hi 1 '9s^' ! '11^ ' i ' ,' ; i^H M ]^^B 'f ' ' ' Tf^ i I ■1 i MHE:' ' * 1 ! Hj wttttS?^' , 1 ■ h\ I :.',''< 'Ii.' * t '■ '*'■ < \ ' fli -■ jiii'i^i^i ' '' ' ' i :l 1 ' IlilHiB' ' ' ' i '1 ' 1 i' 1 ifMBii j ! ■ ■ , p n f ^fJfsTim 1 i]I i : 5 ■ • t 1 Jlii i ^1 £ 1 tts ffli^B iHB ^ -' - ^ i.u S 1 1 Si wSs ^^BJ '- ' 1 r ' fl ■ n ^1 pK|j ^ ' 1 i ^1 Mm wB^^x ^I^^Mi' '«■ H' H M ^^^Mi' w H II AhIwI 1 I 3 H BiH^I 1 ' 1 Mm Wg-Wty B^^^^^B i ^^1 p^^li lOH HABITS OP THE FUR-SEALS. Such iivorngoi of lected ill considering this questioii that tlie seal- no Tiihio, . . ing captains have eacli year become inure and more familiar with the migration routo of tho seals in the North Pacific and their fe»'iliii(r grounds in Bering Sea, which naturally tends to increase annually the catches in these localitiei; and it is, therefore, only by tne comparison of the catches taken in the oldeDhunting areas, with which pelagic sealers have been familiar for twelve or fifteen years, that any evidence of value can be obtained. Average per boat For this purpose a table has been prepared in "spring catch," * *. . . . ' ' 186C 1801. from the Commissioners' tables, giving the aver- age per boat for the " spring catch," which is obtained in and about the alleged ' winter habitat " of the fur-seal. As there is only one hunter to a boat, the average per man is of no value. This table shows an average of 118 seals per boat in 1886, and a constant decrease each following year until in 1891 it was but 15|.' The United States deny, therefore, in view of evidence already presented in their Case- and the facts above stated, that the seals have not de- creased at sea in a like ratio to that observed on the Islands. ' Table of average catch per vessel and per boat, jiosl p. 411. = Case of the United States, p. 169. ' ALLEGED CILVNGES. 10!» The Commissioners also assert that the seals inUcponiitui nek- foiuul m Bermg Sea are not seals which have temporarily left the rookeries to feed, but are piiicticully independent pelagic herds (Sec 219). The only evidence referred to for this is some alleged observations of the direction of the wind and tho locality where seals are found, together with the assertion that the locality must be affected by the weather ; but these observations are not given, and, even if true, are quite too slender to furnish a foundation for any conclu- sion.' Tills suggestion of increased pelagic nature is incrooscd peiuKic ^ _ naturo an n^suni))- biised on mere assumption, for which no pr jf, lio"- reliable or otherwise, is advanced by the Com- missioners, and the United States insist that it is unworthy of serious consideration in this contro- versv. (6) That the location of the breeding rook- eries is dependent solely upon the fact that the seals while there are not disturbed by man. This assertion (Sees. 523, 524), implying also CLangoofrookeiie* ^ / r ./ o based on hearsay. the possibility of a change of rookeries when the seals are harassed, is partly founded on Indian legends and statements by J. W. Mackay and J.G. Swan, based on hearsay (Sees. 447,448, 449), that rookeries formerlv existed on the North- ' C. L. Hooper, post p. 370. It) t ^ 110 HABITS OF THE FUR-SEALS. I'; cries. changoof rookeries west Coast, and they are summarized in the s based on henrsnv. . r> ^ ^ i i • i tions referred to; but such statements the Co missioners have failed to authenticate. By w of further proof of the same assertion the Ilei) presents the al legation that n e w breeding- rooki jr had been at times noted on the Kamchatka co; (Sees. 518, 5 19), which, however, were not visit Kew A.iaiic rook- jjy the British officials. Mr. Malowanski. who the agent of the Russian Sealskin Comixm}-, w induced by the " various good authorities on t Commander Islands," on whom the Coniin sioners rely for this statement (Sec. 518), to vi a reputed fur-seal rookery on the Kamchat coast, and found the reported fur-seals were st lions. ^ If all the incipient breeding rookeii alleged to exist on the Asiatic coast were exai iaed, doubtless they would be found to be simil to the one above noted. Mr. Grebnitzki, alreac referred to, states that he deems it to be whol improbable that the Commandei herd visits ai land other than the Commander Islands.- The United States deny that the Alaskan se;i have any other home than the Pribilof Islanc or that, even if constantly disturbed by man wlii on the rookeries, they would seek a new hal tation. In this connection, the attention of tl One home of Alasknn seal herd. ' John Malowanski, ^o«< p. 376. • N. A. Qrehnitz'ii, post p. 363. ALLEGED CHANGES. Ill Islands for 100 Error in statement relied on by Report. Arbitrators is called to the fact that the Pribilof .^ PjJJ^f Islands have been inhabited by man for a cen- y"*- tury, and the seals have not deserted their home though slaughtered indiscriminately in the early vears of the Russian occupation ; and to the fur- , ^^?"8^*f',2" ®°^' '■ ben Island, 1851- o3. tlier fact that in 1 85 1-'53 the rookeries of Robben Island wei'e cleared of fur-seals (Sec. 510), but the few that escaped returned to the rookeries m the years following (Sees. 510, 511). The Commissioners have endeavored to estab- lish their position as to the change of habits of the seal herd, through the undue disturbance of therookeries, by citing the fact that Capt, Bryant referred to the abundance of fur-seals along the coasts of Oregon, Washinorton, and British Colum- bia In 18G9 (Sec. 422) ; and they seek to create the impression thereby that this was directly the result of the great numbers killed in 1868 on the Pribilof Islands. The Commissioners, through no error of their own, have been led into making this incorrect statement. The " Monograph of North American Pinnipeds," quoted by them, so states; but Dr. J, A. Allen, the author of the work, says th.it the year was 1870, instead of 18G9, as erroneously printed.^ The statement as to the abundance of seals off the Oreacon coast was first published by Dr. Allen in the " Bulletin of ' Letter of Dr. Allen, post p. 413. .ri ■!>;'"■ I si? •fJTirf^r? :.1l: ■M 112 MANAGEMENT. ■ii(; Error in statement the Museum of Comparative Zooloory," najye RS reUed on by Beport. . ^ oJ' I h''°'^, wherein he quotes from a letter received by him from Capt. Bryant, " under date of June 14, 1870," as follows : " The present year unusually large numbers have been seen off the coasts of Oregon, Washington Territory, and Biitish Columbia. * * •« They were mostly of vevy young seals, none appearing to be over a year old." An examination of the " Bulletin " on this point by the Commissioners would have revealed the error in the later publication, used by them in their Report, and the further fact that these pup-seals could not have been of sufficient age, while on the Islands, to have been affected by any slaughter whatsoever. ALLEGED FRAUDULENT ADMINISTRATION OX THE PRIBILOF ISLANDS. As already noted [ante, p. 68), the Biitish Commissioners have, without making actual charges of fraud, insinuated and apparently en- deavored to give the impression that fraud was perpetrated on the Pribilof Islands by the former lessees, the Alaska Commercial Company, in taking sealskins therefrom over and above the number allowed annually by the lease. This parties covert charge of maladministration is a reflec- tion upon the integrity of the United States Indirect crliarges of fraud in Report. The chai'ged. .TTON ON THE FEAUDS CHARaEB IN EEPOBT. 113- officials at San Francisco and those who have at The partie*. different times for twenty years had the charge '' "^ and management of the Alaskan rookeries. And, inasmuch as no such increased numbers of skins appear in the reports of sales by Messrs. C. M. Lampson & Company, of London, it involves a reflection, also, upon the integrity" of that well- known house. The Government of the United States is loath ^, Great Britaii an*, the frauda chat|'iln 118 MANAOEMETNT. n< ii . ;f ■ -i '5 !■ ! , : ii J !l Implied fraud in weight of biuidles. weiglit. ■ai'>--\' The Commissioners further rely upon Mr. Elli- ott's statement, that skins weigh from 5^ pounds to 12 pounds (Sec. 671), and upon the compari- son of such statement with that of Lieut. May- nard, " an independent observer," who gives the average weight of bundles as 22 pounds and the weight of the largest as G4 pounds (Sec. 672). This "appears" to the Commissioners to require "some explanation" (Sec. 673). The implication is evident, and the United States offer the expla- nation in vindication of the oflScers of the Gov- Exiiianation of emment who are thus charged. A bundle con- tains not only the two sealskins proper, but salt and blubber, with which they are packed for their preservation; this naturally adds greatly to the weight, as does also the moisture collected by the salt and fur. A bundle will, therefore, some- times weigh as much as 60 or 70 pounds, if the two pelts are large, and even when consisting of only two skins of "yearling pups," weighing when dry probably 5 pounds, the bundle weighs sometimes 20 pounds.' It is also a fact that in the early years of the lease some exceptionally large skins were taken on the islands,^ A comj)arative statement of the counts of the sealskins for the entire term of the lease, made, respectively, by the Government oflficial on thels- ' W. H. Williams, post p. 399 ; Louis Slo»s, jr., post p. 381. ■ II. H. Mclntyre, post p. 373. Vainous counts of skins compared. FRAUDS CHARGED IN REPORT. llJr Moore's report af 1875. lands, the custom-house inspector at Sau Fran- Varioug ponnii. ..i skim compared. cisco, the Alaska Commercial Company's packers before shipment to London, and by C. M. Lamp- son & Company, shows that but DOO more skins were sold during twenty years in London than appear in the original count made when the bundles w ere loaded on the steamer at the Pribilof Islands.^ This is an average of 45 skins per year Practical aurw- 1 ™<"'t "f countx. out of a quota of 100,000, which quota was fully taken in seven years only. To this extent, and this extent alone, can fraud be charged. Ill 187;") Special Agent J. S. Moore made a re- port to the Secretary of the Treasury, embodying the result of certain investigations made by him as to the number of skins taken by the lessees of the Pribilof Islands. He found that 559 more skins had been sold in London than those ac- counted for in the tax receipts from the Treasury Department, and he submitted a table, compiled by him, giving the number of skins on which tax was paid, the number accounted for as shipped to C. M. Lampson & Company, and the number sold by ihem. He summarizes the result of his investigation as follows : " I am perfectly satis- fied that these figures are correct, unless not only the company, but the cuistoms officers on the Islands, the officers of the ships that bring the ' Mat Ileilbronncr, post p. 368. ' ' I j I t^9 120 MANAGEMENT. ;f^:■f| ,;) y \l\ Moore's report of skins, the customs ofBciuls at San FraiicLscoand 1876. ^ . the great house of Messrs. Lampson & Com- • pany in London ai'e one and all in colliision and conspiracy to defraud the Treasury of the United States. There would, besides, be another difli- culty to overcome, as it would be necessary to keep false books and false entries, while in fiict nothing is so easily detected as false bookkeej)- ing.' .'Empioy^gof leaeeee As to the allegations in the Report that Gov- ernment officials were formerly employes of the ■ lessees, the United States admit that in one in- stance a Government agent (John M. Morton), who had charge of the administration of the Pribilof Islands, was formerly in the employ of the Alaska Commercial Company," but deny that any similar casa has occurred, and assert that the imputation of fraud from such a circum- fitance is unwarranted. Further vindication of the officials and citizens of the United States, to whom the Connnission- ers have seen fit to impute fraudulent practices and conspiracy to defraud the Government of the United States, is considered to be unneces- sary. > Post p. 283. - Oustave Nicbaum, post p. 283. ,p m m THIRD. REaULATIONS PBOPOSBD IN THE BEPOBT. The Commissioners of Great Britain have in- troduced in their Report a number of schemefe for the future regulation of taking fur-seals be- ionffing to the Alaskan herd. The United States . ^I'c only rcguiu ° " fit)ii8 siifllcicnt. insist, as claimed in their Case, that they have, upon the facts established by the evidence, such a property and interest in the seal herd frequent- ing the Islands of the United States in Bering Sea, and in the industry there maintained arising out of it, as entitles them to protection and to be protected by the award of this Tribunal against all pelagic sealing, which is the subject of controversy in this Case. And, quite irre- spective of any right of property or of self- defense in respect of their territorial interests, they claim to have clearly shown that no regu- lations short of prohibition will be sufficient to prevent the early destruction of the Alaskan seal herd. In a consideration of these regulations sug- gested, it is apparent that the principal curtail- tion. ment of seal-killing, in each of the various plans proposed, is to be applied to the Pribilof Islands. Jurisdiction of Tribunal of Arbitra- ir ■ *■* H 122 RKQULATIONS PROPOSED. • « ■:i , ' i : ;j ■UV: 'X Juri»(iietion of All recoinmeiHlatioiis applying to the teiritorvot Tribunal of Arbitru- , ^t • i i •/• i tion. the United States, even it the })roperty of tliut Government in the seal herd is not coiisidt.'ied, us seems to be the case from the proposals ad- vanced by the Commissioners, are irrelevant in this Arbitration. The jurisdiction of the Tri- bunal of Arbitration does not, accord in;^ to the understanding of the Government of the United States, extend to territory or territorial waters, which are not in dispute and the rights ovei- which have not been submitted to this Tri- bunal. Unfiiirncis of The manifest unfairness, however, of the renii- roguliitions proix>9cd. lations suggested calls for the attention of the United States, as the proposals submitted i)y tiie Commissioners demonstratemostclearlythespirit of partiality which is a feature of the whole Re- port. For this purpose the United States will give brief attention to these suggested regula- tions ; nevertheless, always insisting that all proposals affecting the unquestioned territorial rights of the United States are without the jurisdiction of this Tribunal and are irrelevant to tie present contention. (a) Improvements in the methods of tahncj seals, {Sees. 147-150.) On Pribilof la* The first suggestions advanced by the Com- lands. . . .,,.,. 1 ■ xi missioners are in relat'.on to improvement in tlie METHODS OF TAKING HEALH. 123 methods of taking hcuIh on the breeding islands ; On I'ribiiof u- Inmlj. all <»f' these proposed improvements are already in force on the Pribilof Islands, though the United States admit that in some minor details a change may he beneficial. The second suggestions are as toimjjrovements ^f "«»• in the methods employed at sea. The first pro- posal is to prohibit the use of the rifie. The fol - , ^'^s "' *'" ''"'' ' '■ obsolete. lowing statements in the Keport show the little importance of such a regulation : " The rifie was introduced though soon superseded by the shot- i'un, which has now become the usual huntinji- weapon" (Sec. 564, p. 100) ; "if killed, as happens in the majority of cases, especially now that the shotgun has superseded the rifle," etc. (Sec. 604) ; " the use of the shotgun for the purpose of kill- ing seals at sea has now become so nearly univer- sal that it is doubtful," etc. (Sec. G57). It does not seem that the Commissioners can seriously advance a proposition to prohibit a weapon the use of which in pelagic sealing has become ob- solete. . . • The second improvement is the adoption of a Licenses apply to system ot licenses tor White hunters, there bemg no suggestion made for such licenses for Indian hunters. In 1891, according to the Commis- sioners' table (p. 205), 715 whites and 368 In- dians were employed on the vessels constituting i^ -i 124 REGULATIONS PROPOSED. , f|5 ITF I '! 1*^ ^ ;i Licenses apply only the Victoria Sealing fleet. Of all these vessels to half of hunters. , , , , , . / but three had white seamen (p. 205). It can therefore, be assumed that at least 360 of the hi- dians were hunters or canoemen : and, as but two Indians go in a canoe,' 180 of the 369 boats and canoes given in the table contained Indian hunt- ers, so that this general "improvement" proposed would only affect one-half of the hunting force of the Victoria fleet. Besides this, the system of licenses proposed, the United States contend, could not be made effective, even if it covered all classes of hunters. Increased license The third " improvement ■' suggested is to in- crease the license fee for " vessels propelled by machinery. " As but two out of fifty of the Vic- toria fleet appear, by the table in the Report (p. 205), to have used machinery in 1891, and as their catches were but 50 and 385 skins, respec- tively, while the average per vessel is sliown by the table to have been nearly 1,000, it is impossi- ble to see how such a restriction would be par- ticularly beneficial. It has also been stated by those interested in pelagic sealing at Victoria that the steam vessels used in seal-hunting have never paid expenses.* ' Appendix to Cast- of the United States, Vol. I, pp. 408, 304 1 Vol. II, pp. 317, 326, 369, etc. - Report of Special Agent Henry, fost p. 246. for steam yesscls of no value. Vol. I, pp. '1!*8, 5W; SPECIFIC SCHEME SUGGESTED. 125 Ih) Restriction in the number of seals to he taken. {Sees. 151-154.) The Report presents suggestions whereby it is Unfairness of limi- . , nil T t*tioD8 proposed. proposed to limit the number of seals taken. It is observable that the Jimitatipns proposed for the Islands are for a fixed number and class of seals ; while the restrictions for pelagic sealing are pro- hibitions as to time and place, no provision being made as to number or kind of seals taken. The unfairness of such proposals is manifest. (c) Specific Scheme of regulations recommended. The Commissioners, after this generalization Reguiationsrecom- . . mended. asto the methodsof restriction necessary, present specific limitations " at shore and at sea," which Ihey believe would afford the requisite degree of protection, in view of the actual condition of seal life as it presents itself to them at the present time. (Sec. 155.) The first restriction proposed is to limit the Limitation of quota on Pribilof Islands. number of seals to be taken on the PribiJof Islands to a rixed maximum of 50,000 (Sec. 155a). This proposed regulation, being appli- cable to the territory of the United States is, as already noticed, without the jurisdiction of this Tribunal. The second proposition is to create a zone about Protective . . . . , proposed. the Pribilof Islands with a radius of 20 naatical zone E 126 EEGULATIONS PROPOSED. \'- ' f i Close season pro posed. .r': Pi-otectivc zone miles, within which pelagic sealing shall be pro- proposed. hibited (Sec. 1551)). The Case of the United States has fully dealt with this plan of zonal pro- tection/ and the Report itself practically admits the difficulty of enforcing such a prohibition (Sees. 160, 768). The third proposal of the Commissioners is a close season for pelagic sealing, extending from the 15th of September to the 1st of May in each year, with the additional provision that uo.sonliag vessel shall enter Bering Sea before tlo !>. : Basis of proposed Jujy in gach year (Sec. 155c). This is based on Mose season. •' ^ \ / the assumption that males and barren fenuiles constitute substantially the whole of the pelagic catch in Bering Sea (Sec. 648). If, however, this could be established, it is at once evident that, if the alleged faults in the management of the PribiJof Islands were corrected, the class of barren females, alleged as forming a large per- centage of the Bering Sea catch (which assertion is advanced as an apology for pelagic sealing), would entirely disappear. Thus the excuse for open-sea sefiling is based on the alleged mis- management of the seal rookeries by the United States. Close season would 'fhy period in whicli sealing is allowed by the Imvc little effect. \ , ® , -^ regulations proposed is substantially the same as ■ Case of the Unit«d States, pp 256-263. ■&I ;he same as SPECIFIC SCHEME SUGOESTED. 127 the time occupied by the sealers in taking tlie '"lose season would . . hare little effect. » so-called "SandPoint and "Bering Sea "catches, which in 1891, according to the Commissioners' table (p. 205), constituted 93 per cent of the total catch of the Victoria fleet. The Commissioners thus propose that the Pribilof Island quota be cut down 50 per cent and the pelagic catch but 7 per cent. As to the further coi^cession of the Report, Net entering Be- ring Sea before that sealing vessels maybe prohibited from enter- July i, no concession, ing Bering Sea till the 1st day of July in each year, it is to be noted that the Commissioners state that the sea is "now usually entered by pelagic sealers between the 20th of June and 1st of July" (Sec. 649). It can not be that such a useless restriction can be suggested in the Report, except for the purpose of appearing to make a concession when none is really made. The Beport further pioposes that for every "Compensatory *■ -^ "^ Qiljustments " pro- decrease of 10,000 Sv^als taken on the Islands an rosed, increase of 10 nautical miles be given to the ""dth of protected waters about the islands (Sec. :* 5u). As this is simply an extension of the zonal question to a larger area, it is considerei to be unnecessary to further discoss this proposed "couipensatory adjustment." A c^^cond proposal of the same nature is to curtail the open season for pelagic sealing by seven days if the quota 1 RPM j 'HI ■ i 128 EEQULATIONS PKOPOSED. "Compensatory Oil the Islands is reduced 10,000. The Commis- adjujitnicnts " pro- posod. sioners evidently consider that this suggestion is " a just scale of equivalency as between shore and sea sealing" (Sec. 156); that is, that one Supposed pelagic week of pelaoric sealinor equals 10,0008eals killed. catch, 10,000 a week. r o o 1 » As the open season proposed by them consists of nearly twenty weeks, this presupposes a pelagic catch of 200,000 seals, or four times as many as are contemplated by their regulations to be p.Mowed to the Pribilof Islands. It would also make the combined number o^ skins derived from the Alaskan herd 250,000, which certainly would be more damaging to seal life than the present condition of affairs, even if the United States allowed 100,000 skins to be taken on the Islands. The recommendation by the Commissioners of a series of regulations such as those above considered is clearly indicative of the bias and partisan spirit which appear in nearly every section of their Report. The alternative regulations proposed (Sees. 163-168), such as entire prohibition of killing seals on the breeding islands and periods of rest, with the necessary governmental charge thereby imposed, are not regarded by the United States as subjects requiring attention in the Counter Case. They are manifestly inadmissible. Unfairness of Conv missioners shown. Alternative me thods of regulations. REPLY OF THE UNITED STATES TO THE BRITISH CLAIMS FOR DAMAGES. In regard to the schedule of claims for damages appended to the Case of Great Britain, upon which findings of fact are asked under the provisions of Article VIII of the Treaty ot Arbitration : _ , ... The United States admit that a portion of the Seizures admiitcd. vessels named in the schedulewere seized by their cruisers at or about the time stated, that the vessels were at the times of such seizures in the waters of Bering Sea and more than one marine league from any land owned by or within the jurisdiction of the United States ; but such seizures were made upon the waters included in the treaty of cession of March 30, 1867, between Piussia and the United States. As to others of the vessels mentioned in the Prohibition of seal- schedule, the United States admit that they were admitteii. ordered by the cruisers of the United States to leave Bering Sea, where they were unlawfully engaged intakingfur-seals; and, as to others, that they were about to enter that sea for the same unlawful purpose and were warned not to do so by the cruisers of the United States. But, whether the vessels so ordered out of Bering Sea, or warned not to enter the same, left it, or refrained from entering it, by reason of such [;3i6] K . ' m ■■Is! M3f ,> •ftp . ^ 130 REPLY OF UNITED STATES \\i I ^ ■I < i i ci{, ' I S h ), Reasons whj sei- zures made. ProhibitioLofseai- ordeis iind Warnings, the United States ai'o not ing in Bering Sea , admitted. informed save by the statements accompauyinf said claims, and they do not admit that such orders or warnings were obeyed. The United States charge that each and all of the vessels when so seized were engaged in the hunting of fur-seals in the waters of Bering Sea in violation of the statutes of the United States, and that such seizures were made in accordance with the laws of the United States' enactetl for the protection of their property interest in the fur-seals which frequent Bering Sea and breed only upon the Pribilof Islands, which Islands are part of the territory of the United States ; and that the acts of the crews and owners of these vessels in hunting and catching seals were such as, if permitted, would exterminate the Alaskan seal herd and thereby destroy an article of commerce valuable to all civilized nations. Vessels seized, It is further insisted, ou the part of the United owned by United „ , , \ ^, ^ States citizens. States, thatthesteam schooners Thornton, (rmce, Anna Beck, and Dolphin a ^ the schooners Say- ward, Carolena, Pathfinder, Alfred AdamSyElack Diamond, and Lily, for the seizure of whiuli claims for damage are made, were at the time of their seizure owned in whole or in part by citi- ' Sec. 1956, Revised Statutes of the United States ; see Appendii to Case of the United States, Vol. I, p. 96. TO BRITrsir CLAIMS FOR DAMAGKS. 131 it that such lies; see Appendix zens of tlie United States, and that, tlierefore. Vessels seized. 1 • 1 • 1 °'^'"^^' ^y United no claim lor damages can be urgetl in their be- states litizens. half by Great Britain ; that the steam schooners Thornton, Grace, Anna Beclc, and Dolphin and one-half of the schooner Sayward were owned hv one Joseph Boscowitz, a citizen of the United Roiations of Bos. ■' *■ cowitz, Warren, ana States ; that James Douglas Warren, in whose ^°°\>^^- name the claim is made as to the steam schooner Thornton, had no real interest therein, but that the same was mortgaged to her full value to i Joseph Boscowitz, who was in fact the real „''!°**;P'' Boscowitz, * United States citizen, owner ; and that Thomas H. Cooper, in whose °"'"'"'- name the claims growing out of the seizures of the schooner W. P. Sayward and of the steam schooners Grace, Dolphin, and Anna Beck are made, had in fact no interest therein and has in no respect been damnified or sustained loss by the seizures thereof, either as owner of these schooners and steam schooners, their outfits, or their catches, the same being mortgaged to their full value to Joseph Boscowitz, above referred to, and having been conveyed to Thomas H, Cooper, .without consideration, for the sole pur- pose of giving them a registry as British vessels.' It is also insisted by the United States that A. j. b edit el, United States citizen, the schooners Carolena and Pathjinder were in owner. ' Deposition of Thomas H. Cooper, post p. 320. Affidavit of T. T. Williams, Appendix to Case of tbe United States, Vol, II, p. 491 ; post p. 351. Testimony in Warren vs. Boscowitz, post p. 301 3iO. [;316] K 2 132 REPLY OF UNITED STATES J\ it ll 'i III i A. J. Beohtei, fact at the time of tlieir seizure owned by one Unitod states citizen, . ^ ^ . . . .. /.iT-t- owner. A. J . iiechtel, then a citizen ot the U n ited Stiites,' and that William Muhsie and Frederick Carne, in whose names the claim for damages glowing out of the seizure of these schooners are made, had in fact no interest in the schooners or their outfits and catches ; that the schooners Alfred Adams, Black, Diamond, and Lily^ for the seizure of which claims are made in the schedule, were A. Frank, United in fact at the time they were seized owned by Stftteg citizen, owner. . -ri i i i • • p / one A. rrank, who was then a citizen of ti)e United States ; that Gutman, in whose name the schooner Alfred Adams was registered, was not the actual owner of the schooner, her outfit or catch, but, on the contraiy, that the said scbooner, her outfit and catch, were owned by said Franic ; that after the release of the Alfred Adams from seizure her name was changed to Lily, in behalf of which damages are also claimed in the schedule, she remaining the property of A. Frank, and he alone being interested in her outfit and catch, and not Morris Moss, in whose name the last mentioned claim is presented ; and. that said Frank was also the owner of the schooner Blad Diamond, her outfit and catch, and that he was the real person who sustained damage or loss by ' T. T. Williams, post p. 351. TO BRITrSH CLAIMS FOR DAMAGES. 133 reason of the seizures of the Aljred Adams, Lily, A. Frank, United States citizen, owner. and Black Diamond. It is further insisted, on the part of the United No damage* can be awarded for prospcc- States, that all the items in the several claims in tive profit*. the schedule, designated as " loss of estimated catch," " probable catch," " balance of probable catch," " reasonable earnings for months of October, November, and December," "loss of profits," for seasons subsequent to seizure, and ;ill items in said claims based on future or con- tingent events, are in the nature of prospective profits or speculative damages, and are so uncer- tain as to form no legal or equitable basis for finding facts upon which damages can be predi- cated. Claims of the same nature were made on behalf of the United States before the Tribunal of Arbitration on the Alabama Claims, which met at Geneva in 1872, and in passing upon this class of claims that Tribunal said : " And whereas prospective earnings can not properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies, the Tribunal is unani- mously of opinion that there is no ground for awarding to the United States any sum by way of indemnity under this head.^ ' W. H. Williamg, post p. 352. • Papers relating to tlie Treaty of Washington (Alabama Claims), Congressional publication, Vol. 4, p. 53. DcciBion in GencTa Arbitration. ji:-, Hi fnsji ill m is? 134 REPLY OF UNITED STATES. All (lainugos It is further insisted, on the part of the Uif 1 claimed excessive. States, that the value of each and all the vessels so seized, mentioned in the schedule of claims, and the detailed accounts in relation thereto, are grossly exaggerated, and that, in fact, the values of these vessels and their respective outfits were far below the amounts stated and claimed ; and the damages claimed are in all respects excessive,' aside from those which, as stated above, are wholly untenable. Questions sub- The United States do not deem it necessary to Viii. , state in detail wherein the valuations and dam- ages claimed are excessive and exaggerated, or submit proofs in relation thereto, further than bv the analysis of said claims found in the Appen- dix to this their Counter Case,at page 339,for tlu' reason that the "questions of fact involved in the claim " of either of the parties to the Treaty against the other, to be submitted to the Tribu- nal of Arbitration under the provisions of Article VIII, should, as this Article is understood by the United States, have relation only to such facts as tend to fix the liability of one party to the other, and do not include facts which only relate to the amounts of such claims. -•' •t^' " ' ' ' Tables showing values of vessels seized, ete., jioH pp. 339-34U Report British Commissioners, pp. 205, 210, aVid 2il. CONCLUSION. 189 The Government, of tlie United States, in clos- Roassoiu the poii- lions tuken in the iiigits preaentivtion of the matters in controversy cobo. bythis reply to the printed Case of Great Britain, reasserts the positions taken in its printed Case and all of the propositions and conclusions con- tained therein, and is prepared to maintain the same by argument before the Tribunal of Arbi- tration. JOHN W. FOSTER, Agent of the United States. i.i tiij.; 4i- mm I !' If* IS; I ) )il A A A A Ai Ba Be SUBJECT-INDEX OF COUNT£R CASE. Acta comiiuttod on high seas, not always justi bio .... Admission as to decrease after 1880 Affection of cows for pups Agents of QoTernniunt as employes of lessees Alsbanm cliiims, decision of Tribunal of Arbitration on Alaskan fur-seals. (•S'«e Fur-seals.) „ Bcal-herd : Decrease of (Se* Decrease.) Intermingling with Russian herd One home of Alfred Adami I American ownership of Xame of, changed to XtVy Alternative regulations proposed in Report American ownership of sealing vessels seized Anna Beck, American ownership of Apology for pelagic sealing. {See Pelagic sealing.) Aquatic coition : Bryant's opinion as to .... Dall's opinion as to Evidence in favor of Frequency of, affirmed by British Commissioners Inconsistent with statements in the Report Insufliciency of evidence in Report favoring Necessitates later arrival of cows each year No instance of, seen by British Commissioners .... Possibility of, affirmed by British Commissioners Arbitration. (See Treaty of Arbitration.) .Argument - Arrival of cows. (See Cows.) Article. (See Treaty of Arbitration.) ArdlU, Mounted Constable ABiatic rookeries, new. (See Change of rookeries.) Authorities in the Report : Charles Bryant Henry W. Elliott Average catch per boat : In 1836 Spring catch, 1886-1891 (See Table.) Average catch per man m 1886 and 1836 Ban^n female seals. (See Cows.) Beschmasters. (See Bulls.) Page. 36 66 63 120 133 48 no 130 1"? 128 130 130 62 62 61 61 63 63 64 62 60 56 63 63 107 108 107 ■ii 'II >l t ■ M. f :^' 11 J| INDEX OF COUNTER CASE. Bcclitel, A J., a citizen. of United States Bering; Sea : Alleged to be summer habitat of fur-seals Banoroft's views as to protection of, from whalers Captain Hooper's invostigations in, in }892 Catoh 'u, not included in proposed close season .... Control exercised over Cruisers in, in 1892 .... Distinction between; ind Paciflc Ocean Distribution of f'.tr-seuls in ... .... Independent seal herds in, alleged .... ... .... Intermingling of Russian and Alaskan seal herds in Jurisdiction over. (Sep, a/«o Control eiercisod over.) No Territorial rights claimed over Not included in term Pacific Ocean Pelagic catch ir . (See Pelapic sealing). . . „ sealing in, compared with that in North Pacific ... Percentage of co\v8 taken in Prohibition of sealing in, by United States Right to fish in, c" not include right to take seals in Russian cruisers in Russia's title to shores of, undisputed Time of entrance of, prope.ned to be limited .... Visits of whalers to .... ... .... ... ... .„ ,, not inconsistent with position of United States Warning of Tessels out of .... .... Wl\aler8 visiting, clo ely watched .... Bering S?a Comnaission .... Organization of (See British Conir.rissioners.) Birth iTite, effect of pelogic sealing on ... J?tec/fc i>f'a».o>trf, A:nerican ownership of Boscowitz, uooeph : A citizen of United States .... .... Ownership of, in vessels seized Relations of Warren, Cooper, and British ease: ^ ..... , ' o As originally presented ; Chapter I of , , Chapter IV of.... Consists now of original Case and Report Deals, With what matter Diplomatic corres])ondence resulting from, as originally presented Fails to distinguish between Bering Sea aad Pacific Ocean Incompleteness of , Misconceives character of control claimed over Bering Sea Reply of United States to Supplement thereto ' British claims for damages, reply of United States to British Commissioners .... Co -"de nothing by proposed time to enter Bering Sea Curtailment of KUiott's statement as to size of harems by Did not first see dead pups on the rookerii » .... „ visit alleged new Asiatic rookeries P«eo, 132 UK) '2:, H,1 1:'7 18, 10, Hf), 29, ;iO 51 17 -IS iu;i 4,S 7 Vi 20 84 So 129 2.) 27-3U 17 127 24, 2t>-2S 28 120 26 *) 44 llG ru l;!l 131 2 Hi 23 2,3 7 2 17 2 W t 2 129 43 87 IIU '■■( tcs I Patti". 132 100 2.) 83 127 18, I'J, lifi, 2 , r\ , a;i •i -! I k% 150 INDEX OF COUNTER CASE. Sea gpnliiig. (Si'e Pfliigit; icuIinK.) iSoiicntcliii". (Sre Dutic) Hi'iil liertls. (.SVfl AliMkun *eal herd, RusBJan »onl henl, Furical*.) Healing. (.SVf rdajjic Kcitling.) Hi'iiling clinrt. (Set Clmrts.) Hi'iiliiig fleet. (See VicloriB fleet.) Healiiip', logs of — 1801 ., Piinei])iil (liitii for chart* in Rciwrt 1892 Healing vessels about Coinmanilcr IslaniU in 1892 Heal.s. (See Kiir-seals.) Heiils lost. (iSee I'eliigio sealing.) Heals lost by sinking SeaLskins — Bundling of. (See Bundles of sealskins.) Counting of. (See Counting of skins.) Paeking of ' .... Heeretarj- Btuinc to Hir J. Pauncefcto .... Seizures : Certain, of settling vessels admitted Cooper not injured by Plaeeof Reacon, were made (See Vessels seized.) Shedding of bai:. (See " Stogey " seals.) Hbotgun, general use of, in pelagic sealing Sinking, seals lost by .... Spring eateli, average cateh per boat in " Stagey " period " Stagey " seals : Alleged, not found in water Are taken at sea Stampedes : No evidence of any Not a cause of death of pups .... Standard of weights : Average, since 1876 .... Fell below average in 1889 for first time , Reduced in 1889 Stanley- Brown, J., on when cows enter water Steam-vessels, licenses proposed for Suckling. (See Nursing.) Summer habitat. (See Winter habitat.) Surveillance. (See Bering Sea, control exercised over.) Surplus of virile male seals .... .... Table— Of average cateh per boat ond per man presented by report „ „ in spring catch Of catch per boat ond per man omits years 1885 and 1886 Table entitled "White Hunters "— Only gives seals lost by sinking ... Sources of , Thornton, American owner:nl(i by , Hi> Kxppi'ii'nce of, as to cows feeding ,.„ ... (K( On scftlu lost by wounding OH Translntiong — {Sff Erroneous translations.) Treaty uf 1824 between tho United States and Russia 10, 21, 22, 21 „ 1H25 between Great Britain and Russia I'J, 21 „ arbitration — British claims for damages under Article VIII vf 120 Clmracter of case called for by 2 Contemplates only case and counter case !) Counter case under 1 Difference of views as to object of 7 How controversy resulting in the, arose H Main question involved is tho protection of seals.... 7 Questions submitted under Article VIII of 134 Tribunal of arbitration — Jurisdiction of, as to regulations 121 Tribunal of arbitration on Alabama claim^^, decision of, as to spoculatiro danittgcs ' 133 Ukaw of 1799— Directed against foreigners ... 15 Object of, to maintain colonia' system 15 Ub8eofl821 IG, 33 Construction of, by British government 10 First referred to by Lord Salisbury 8,12 Protests against 19 Renewed declaration of colonial system 18 rnfairncss of British Commissioners. {See British Commissioners.) Udc of rifle in sealing obsolete 123 United States — • Citizens of, interested in vessels seized. {See Boscowitz, Bechtel, and Frank.) Early claim of property in seals by 8 Imposition practiced upon 14 Keply of, to British case .... 7 Beatatcnient of their case necessary 14 {See Issues.) (5ee Jurisdictional controversy.) (>S'ee Right of protection and property in seals.) Views of, as to true issues 35 Vessels seized : American ownership of 130 By Russia in 1892 30 Ownership of Alfred Adams 130 „ Anna Beck 130 „ Black Diamond 130 „ Boscotritz, an American, in .... 131 „ Carolina 130 „ Dolphin .... .... .... .... .... .... .... .... 130 „ Grace 130 „ Lih/ 130 Pathfinder 130 „ Sayward 130 Thornton 130 M i' I! i>i< m jljilli m 152 INDKX ')F COrXTEK CASK Vessels ; Seizure of sealing. (See Seizures.) Vessels, steam, number of, in Victoria fleet Victoria fleet, steam vessels in .... W. P. Sai/ward. {See Sai/ivard.) Warning of sealers out of Bering Sea Warren, James Douglas, relations of Boscowitz, Cooper, and Waste of life. {See Pelagic sealing.) Weapons. (-See Eiflo and Shotgun.) Weight of Bundles. {See Bundles of sealskins.) W^eight of sealskins. {See Standarl of weights.) Whalers : Closely -watched by cruisers Protection of "tiering Sea agaiuct Visits of, to Lering Sea .... „ ,, not inconsistent with position of United States White hunters : Licenses proposed for .... {Si'p Pelagic sealing.) Table based on btat.ements of t Wilson, Sir Samuel, on nursing of lambs Williams, Maj. W. H., investigation of, as to number of skins in a bundle ... Winter habitat : Advanced by the Beport .... .... Bulls do not resort tO .... Data insufficient to establish Location of, alleged Object of advancing, by the British Commissioners Only risort to, by portiou of seal herd Sealing begins below Seals followed ^/iroH^iA Used to establish properly interest of Indians in seal herd Winter resort of bull-seals Witnesses : Pelagic sealers, interested Wounding : Seals lost by Seals lost by, not considered by Beport Zapadnie Eookery. {See Eookeries.) Zone, protective — Increase of, by 10 miles for 10,000 deci'easc of quota Proposed by Report 124 129 131 .... 126 24 24, 26-28 123 97 54 117 100 101 102 100 101 102 103 104 101 101 SI flS 97 127 12.) mm\ 121 1-24 120 131 .... 12fi 24 24, 26-28 123 !t7 54 117 100 101 102 100 101 102 103 lot 101 101 HI UNITED STATES. No. 8 (1893). BEHRING SEA ARBITRATION. ARGUMENT OF The United States BEFORE THE TRIBUNAL OF ARBITRATION » CONVENED AT PARIS CNDEU THE PROVISIONS OF THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN, CONCLUDED FEBRUARY 29, 1892. flS 127 12.') Presented to both Houses of Parliament by Command oj Her Maiestji. March 1893. LONDON: PRINTED FOR HER MAJESTY'S STATIONERY OFFICE, BY HARRISON AND SONS, ST. MARTII/S LANE, FBIMTBB8 IN OKOINABT TO HKH MAJBBTT. And to be purchased, either directly or through any Bookseller, from EIRE & SP0TTI8W00DE, East H\hdino Stkket, Flkkt Stbkbt, E.G., and 82, Abingdon Stbebt. Wkstminstbb, 8.W.; or JOHr (dENZlES A Co., 12, Uanovbb Btbbbt, Edinbuboh, and 90, Wb8T NiLl Stbbbt, Giasoow; or HODUKS, FlQOIS, & Co., Limited, 104, Urapton Stbbbt, Dublci. t'^Sl TABLE OF CONTENTS. FIRST. j ffkt law is to govern the decision Appendix to part first (Mr. Carter's argument) Citations from writers upon the law of nature and nations, showing the foundation of international law, its relations to the law of nature, and the sources from which the knowledge of it is to be derived Fkgt. 1-9 10-26 10 SECOND. I Ihe acquisition hj Russia of jurisdictional or other rights over Bering Sea and the transfer thereof to the United States 27-40 THIRD. I He property of the United States in the Alaskan seal herds, and their right to protect their sealing interests and industry 41-107 I. The property of the United States in the Alaskan seal herd 41 The form of the institution— community and private property .... 57 Ownersliip not absolute 58 Summary of doctrines established 68 Application of the foregoing principles to the question of property in the Alaskan herd of seals 69 Principal facts in the life of the fur-seal 75 Appendix to port third, division I (Mr. Carter's argument) .... 108-129 Authorities upon the subject of property in ammala fera natnriB .... 108 II, The right of the United States to protect their sealing interests and industry 130-179 Appendix to part third, division II (Mr. Phelps Argument) .... 180-189 Additional authorities on the question of property 180 FOURTH. ICotrarrent regulations 190-214 FIFTH. |"«iiii5 for compensation J Bamages claimed by the United States II. Damages claimed by Great Britain 215-227 .... 215 .... 217 A 2 IV TABLE OF CONTENTS. i m :y>>' STXTTT. W^ it: Summary of the evidence „ I. The general nnture and charocteristics of the fur-seal II. The difference between the Alaskan and the Bussian fur-seals A. The herds arc different B. The Alaskan does not mingle with the Bussian herd C. The Alaskan fur-seals hare but one home, namely, the Pribilof Islands. They never leave this home without the animus revertendi, and are never seen ashore except on those islands ,.,. III. Movementa of the seals after the birth of the young , • IV. The entire office of reproduction and rearing of young is and must be performed on land . .... :.' ■ V. Tlie pup is entirely dependent upon its mother for nourishment for several months after its birth The cows will suckle their own pups only, and the suckling is dono on land ' VI. The cows, while suckling, go to the sea for food, and sometimes to distances as great as 100 and 200 miles, and are during such eyeur- sions exposed to capture by pelagic sealers VII. Death of the cow causes the death of the pup VIII. The fur-seal is a polygamous animal, and the male is at least four times as large as the female. As a rule, each male serves about fifteen or twenty females, but in some cases as many as fifty or more (Case of the United States, p. 327) IX. Destruction by pelagic sealing and its extent — the remedy proposed by the British Commissioners — the tnio and only remedy consists in ' _ absolute prohibition of pelagic sealing Paee. 228-3131 .. 2301 2.121 2331 241 1 2191 25lj 25l| m i; •4! SEVENTH. Points in reply to the British Counter Case 314-32] !!■ "f"^ ■■'!■ I ly, the Pribilof out the animus hose islands .... is unci must be nourishment for suckling is (lone nd sometimes to luring such ercur- is at least four male serves nbout many as fifty or medy proposed by cmedy consists in ■Washinoton, February 23, 1893. i Sir, We hftve the honor to hand yon herewith the argument prepared ly as as counsel of the United States, in order that in pursuance of [ Article V of the treaty between the United States and Great Britain, of J9th Februarj^ 1892, it may be presented to the Tribunal of Arbitration constituted by that treaty. Very respectfully, your obedient servants, E. J. Phelps. J. C. Carter. H. M. Blodgetx. F. R. COUDERT. Hon. John W. Po.strr, Agent of the United Htates. m ARGUMENT OF THE UNITED STATES. The undersigned, ouanael for the United States, conceive that before entering upon the argument which it has been made their duty to pre- pare, they owe more than a formal and ceremonious expression of their sense of the importance and dignity of the occasion and of the august character of the Tribunal which they are to address. Instances have heretofore occurred in which nations have submitted their controversies to peaceful arbitration ; but the most important of them have been cases in which mere pecuniary reparation was sought in respect to acts which could not be recalled. To-day two most powerful nations agree that their conflicting claims to permanent dominion shall be reconciled and determined without a resort to those methods of violence which carry with them such limitless destruction and snfEering. A just hom- age is thus paid to the civilized sentiment of mankind that war is sel- dom, if ever, necessary ; and that the conclusions of reason should be to supersede the employment of force. FIRST. WHAT LAW IS TO OOVEBN THB DECISION P The undersigned helieve it to be in a high degree important that it iihould at the outset bw clearly understood what principles and rules are to guide the Arbitrators in reaching their conclusions. Otherwise no argument can be intelligently framed. We do not indeed appre- hend that there can be any serious difference of opinion upon this point. The consciousness and immediate conviction of every one having any part in the proceeding — Arbitrators and counsel alike — might be safely m ' I ' 'ff' ':i -Mm \i ' f.rM I I 2 ARGUMENT OF THE UNITED STATES. appealed to for the response that the determination Tnust be grounded upon principles of right. It can not be that two great uations liuvc volun- tarily waived their own convictioiis and submitted their rival claims to the determin(^tion8 of caprice, or merely temporary expediency. It is not to such empty and shifty expedients that national pride and power have paid their homage. The arbitrament of force can be worthily replaced only by that of right. This Tribunal would be robbed of its supreme dignity, and its judgment would lose its value, if its deliberations should be swayed in any degree by considei-ations other than these of justice. Its proceedings would no longer be judicial. The nation for which the undersigned have the honor to be retained is prepared to accept and abide by any determination which this Tribunal may declare as the just conclusion of law upon the facts as established by the proofs. It can not be content with any other. But what is the rule or principle of right ? How is it to be described and where is it to be found ? The answer to this question, thoagli not 80 immediately obvious, is yet not open to doubt. In saying that the rule must be that of right, it is intended, and indeed declared, that it must be a moral rule, a rule dictated by the raoral sense ; but this maj not be the moral sense as found in any individual mind, or as exhibited by the concurring sentiments of the people of any particular nation, There may bo — there are — differences in the moral convictions of the people of different nations, and what is peculiar to one nation can not be asserted as the rule by which the conduct of another nation is to be controlled. The controversy to be determined arises between two dif- ferent nations, and it has been submitted to the judgment of a tribunal composed, in part, of the citizens of several other nations. It is im- mediately obvious that i*^ must be adjudged upon principles and rales which both nations an t all the Aibitrators alike acknowledge ; that is to say, those which arc dictated by that general standard of justice upon which civilized nations are agreed ; and this is international hw. Just as, in municipal societies, municipal law, aside from legislative enactments, is to be found in the general standard of justice which is! acknowledged by the members of each particular state, so, in ihe larger society of nations, international law is to bo found in the general stand- ard of justice acknowledged by the members of that society. Theie is, indeed, no legislation, in the ordinary sense of that word, for the society of nations ; nor in respect to, by far, the larger part of the affairs of life is there any for municipal societies ; and yet there is 'OBt^iii^ is it to be described uestion, thodgh not In saying that the ed declared, that it enso ; but this may ind, or as exhibited y particular nation. convictions of the one nation can not tliev nation is to be g between two dif- ^ment of a tribunal nations. It is im- irinciples and rules cnowledge ; that is standard of jusikc \ international hic. de from legislative of justice which is j ;e, 60, in ihe larger the general stand- society. Theie is, ;hat -word, for the | larger part of the and vet there is 1 WHAT LAW IS TO GOVERN THE DECISION ? 3 for the latter an always existing law by which every controversy may bo determined. Tho only difference exhibited by the former is that it has no regularly-constituted body of experts, called judges, tlothed with authority to declare tho law. And this distinction is wiped aw&y in the case of the present controversy by the constitu- tion of this tribunal. That there is an international lata by which every controversy between nations may be adjudged and determined will scarcely be questioned anywhere ; bnt here no such questioning is allowable. The parties to the controversy are, to employ a word familiar to them, estopped fi-om raising it. They have voluntarily made themselves parties to a judicial proceeding. For what purpose is it that these nations have submitted rival claims to judicial decision if there is no legal rule which governs them ? Why is it that they have provided for tho selection of arbitrators preeminent for tbeir knowl- edge of law, except that they intended that the law should determine their rival claims ? Nay, what is the relevancy, or utility, of this very argument in which we are engnged unless thei-e is an agreed standard of justice to which counsel can appeal and upon which they can hope to convince ? The undersigned conceive that it will not bo disputed that this arbitration was planned and must bo conducted upon the assumption that there is no place upon the earth, and no transaction either of men or nations which is not subject to the dominion of law. Nor can there be any substantial difference of opinion concerning the sources to which we are to look for the international standard of justice which the undersigned have referred to as but another name tor international law. Municipal and international law flow equally from tho same source. All law, whether it be that which governs tho conduct of nations, or of individuals, is but a part of tho great domain of ethics. It is founded, in each case, upon tho nature of man and tho environment in which be is placed. The formal rules may indeed be varied according to the differing conditions for which they are framed, but the spirit and essence are everywhere and always the same. Says Sir James Mackintosh : The science which teaches the rights and duties of men and of states has in modem times been styled " the law of nature and nations." Under this comprehensive title are included the rules of morality, as they pre- scribe the conduct of private men towards each other in all the various leiations of human life ; as they regulate both tho obedience of citizens to the laws, and the authority of the magistrate in framing laws and iidministeriug government ; and as they modify the intercourse of inde- pendent lonimonwealths in peace and prescribe limits to their hostility i * 'ii' 11 I ,i . iHi f' I i > 'nv m 4 AKGUMENT OF THE UNITED STATES. in war. This important science comprehonds only that part of private ethics which is capable of being reduced to fixed and general rules.' And Lord Bacon has, in language often quoted, pointed to the law of nature as the source of all human jurisprudence : For there are in nature certain fountains of justice, wliuuco all civil laws are derived but as streams, and like as waters do take tinctures and tastes from the soils through which they ran, so do civil laws vary according to the regions and govornmenta where they are planted, though they proceed from the same fountain.' This original and universal source of all law is variously designated by different writers ; sometimes as " the law of nature," sometimes as "natural justice," sometimes as "the dictates of right rea-soa ; " but however described, the same thing is intended. "The law of nature" the most approved and widely employed term. The universiil obli- gation which it imposes is declared by Cicei'O in a passage of lofty eloquence which has been the admiration of jurists in every succeeding age.* And the same doctrine is incuioatod by the great teacher of the laws of England in language which may have been borrowed from the great Roman : This law of nature being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over the globe, in all countries, and at all times ; no human laws are uf any validity if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. * The dependency of all law upon the law of nature is happily ex. pressed by Cicero in another often quoted passage : " Lex est mprema ratio insita a natura qum jubet ea qucu facienda sunt, prohibetque con- * Dissertation on the Law of Nature and Nations. - De Augmentis Scientiaruni. •* " Est quidem vera lex recta ratio naturae congruens, diffusa in ounies, coiutans, sempitcrna, quae vocet ad offieiuni jubondo, vetando a fraude deterreat, quae tiimou nequc probos frustra jubet aut vetat, nee iniprobos jubendo aut vetando niovct. Huic legi nee obrogari fas est neque derogari ex liac aliquid licet neque tota ubrogari potest, neo vero aut per scnatum aut per populum solvi hac lege possumus, neque est quaerendui explanator aut interpres ejus alius, nee erit alia lex Homae, alia Athenis, alia iiuiic, aliu posthac, sed at omnes gentes et omni tempore una lex et sempiterna et inimutabilii continebit unusquisque erit communis quasi magister et imperator omnium deus : illc log)-' hujus inventor, disceptator, lator, cui qui non parebit, ipse se fugiet ac mituituii liouimi! aspematus hoc ipso luet maximas poenas, etiam si caetera supplicia quae putantur. effugerit." (De Republica, Lib. Ill, Cap. XXII, § 33.) * Blaekstone, Com., Book I, p. 41. WHAT J AW 18 TO GOVERN TUB DECISION ? part of private ral rules,' itod to the law whonco all civil 3 take tinctures I) civil laws vary ley are planted. 'ioualy designated •e," sometimes as lit reason ; " bat, law of nature" 10 universal obli- passage of lofty every succeeding eaclier of the laws ed from the great ler dictated by God It is binding luman lavrs are of aro valid derive immediately, from ire is happily ex. ' Lex est mprema prohihetqtie m- 111 in omnes, con!tall^, ieterreat, quae tiimin Tctando niovct. Huic le tota ubrogari potest, _,, neque est quaercndus A-thenis, alia nuiu', A )iterna ct immutabili! mniuiudeus: illc kgi* ict lie nutuniin liomiw* iplicia quae putantur. traria."^ And it is ^ >iry clearly illustratod by the fact that tho gveat expositors of the Roman law in socking for a conciao formula which would express its original and fundamental principleH, have simply borrowed or framed a statement of the dictates of natural justice : "/«ri« precepta sunt hcnc : honesta vivere, alterwa non Iwdere, suum cnique irihwrr."' Sonio writers have been inclined to question tho propriety of designat- ing as law that body of principles and rules which it ia asserted are binding upon nations, for the reason that there is no common superior power which may bo appealed to for their enforcement. But this is a superficial view which has received no considerable assent. The public opinion of the civilized woi'ld is a power to which all nations are forced to submit. No nation can afford to take up arms in defence of an assertion which is pronounced by that opinion to be erroneous. A recent writer of established authority has well answered this objection : It is sometimes said that there can be no law between nations, because they acknowledge no common superior authority, no interna- tional executive capable of enforcing tho precepts of international law. This objection admits of various answers : First, it is a matter of fact that states and nations recognize the existence and independence of each other, and out of a recognized society of nations, as out nf a society of individuals, law must necessarily spring. The common ruies of right approved by nations as regulating their intercourse are of themselves, as has been shown, such a law. Secondly, the contmry position con- founds two distinct things, namely, the physical sanction which law derives from being enforced by superior power, and the moral sanction conferred on it by the fundamental principle of right; tho eiTor is similar in kind to that which has led jurists to divide moral obliga- tions into perfect and imperfect. All moral obligations are equally perfect, though the means of compelling their performance is, humanly speaking, more or less perfect, as they more or less fall under the cog- nizance of human law. In like manner, international justice would not be less deserving of that appellation if the sanctions of it were wholly incapable of being enforced. ******* But irrespectively of any such means of enforcement the law must remain. God has willed the society of States as He has willed the society of individuals. The dictates of the conscience of both rnay be violated on earth, but to the national as to the individual conscience, the language of a profound philosopher is applicable : " Had it strength as it had right, had it power as it has manifest authority, it would absolutely govern the world." , , * * • ' * * % * Lastly, it may be obsei'ved on this head, that the history of the world, and especially of modern times, has been but incuriously and unprofitably read by him who has not perceived the certain Nemesis which overtakes the transgressors of international justice ; for, to take ' Oic. De Legibus, Lib. I, c. VI, § 6. « Just. 1, 1. 3. fl •5; I ARGUMBNT OP THE UNITED 8TATES. i,i.. i ■ ' i but ono instancp, what an " Iliad of woos " did the precedent of the first j)artition of Poland open to the kingdoms who participated in tlmt grievous infraction of international law! The Koman law nobly ex- presses a gi'eat moral truth in the maxim, " Jurisjurandi contonipta roligio satis Doum habct ultorem." The commentary of a wise and learned French jurist upon these words is remarkable and may not in- aptly close this first part of the work : " Paroles (ho says) qn'on peut appliqucr egiiloment A touto infraction des loix natnrelles. La justice do I'Auteur de ces loix n'est pas moins armeo contro ceux (jui les trniis- gresHont que contre les violatenrs du sorment, qui n'ajoute rien ii I'obii. gation [do les observer, ni A la force de nos engagements, et qui no sert qu'A nous rappeler le souvenir de cetto justice inexorable." (I'hilli. moi'o's International Law, third edition, London, 1879, Vol. I, Section LX.)' That there is a measure of uncertainty concerning the precepts of the law of nature and, consequently, in international, law which is derived from it, is indeed true. This uncertainty in a greater or less degree is found in all the moral sciences. It is exhibited in municipal law, although not to bo large an extent as in international law. Law is matter of opinion ; and this differs in different countries and in different ages, and indeed between different minds in the same country and at the same time. The loftiest precepts of natural justice taught by the most elevated and refined intelligence of an age may not be acquiesced in or appreciated by the majority of men. It is thus that the rules actually enforced by municipal law often fall short of the highest standard of natural justice. Erroneous decisions in municipal tribunals are of fre- quent occurrence. Such decisions, although erroneous, must necessarily be accepted as declarative of the rule of justice. They represent the ' The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of states are all parts of one eonsistent system of universal morality. Between the most abstract and elementary maxims of moral pbilosopliy and the most complicated controversies of civil and public law there subsists a connection. Tbo principle of justice cleeplv rooted in the nature and interests of man pervades the whole system and is diseovcrablc in every part of it, even to the minutest ramification in a legal formality or in the con- struetion of an article in a treaty. — (Sir -Jamei Macintosh, Discourse on tlie Law of Nature and Nations, .sub fine.) Mr. Justice Story says : " The true foundation on which the administration of iiitei'- national law must rest is that the rules which are to govern are those which iirise from mutual interest and utility, from a sense of the inconveniences which would result from a contrary doctrine, and from a sort of moral necessity to do justice in order f.liat justice moy be done to us in return." (Conflict of Laws, Ch. ii, Sec. 35.) And, sitting as a judge, ho declared : " But I think it may be unequivocally affirmed that every doctrine that may be fairly deduced by correct reasoning from the rights and duties of nations and the nature of moral obligations may theoretically be said to exist in the law of nations ; and, inilcss it be rcl.ixcd or waived by the consent of nations, which may bo evidenced by their general practice and custom, it. may lie enforced by a court of justice wherever it arises in judgment." (La Jeune Kiigenie. 2 Mason's Reports, p. 449.) WHAT LAW IS TO (JOVKllN THE DECISION ? national standard of Jiistki- accepted and adopted in Htates whore they are pronounced. So far as thoy arc wron^j tlioy will ult'inately bo cor^ reeled as noaror approaches are made to the trutli. So aUo in inter- national law, the actual practice of nations docs not alwayw conform to the elevated precepts of the law of nature. In such casoH, however, tlio BCtnal practice must bo accepted as the rule. It is this which exhibits what may bo called the international Htandard of justice ; that is to say, that standard upon which the nations of the world are agreed. As municipal law embraces go much of natuml justice, or the law of nature, as the municipal society recognizes and enforces upon its members, so, on the other hand, international law embraces so much of the same law of nature as the society of nations recognizes and enforces upon its members in their relations with erch other. Tho Supremo Court of the United States, speaking through its greatest Chief Justice, was obliged tD declare in a celebrated case that slavery, though contrary to tho law of nature, was not contrary to the law of nations ; and an English judge, no less illustrious, was obliged to make a like declaration.' Perhaps the same question would in the present more humane time bo otherwise determined. Bat, although the actual practice and usages of nations are the best evidence of what is agreed upon as the law of nations, it is not the only evidence. These prove what nations have in fact agreed to as binding law. Bat, in the absence of evidence to tho contrary, nations are to be presumed to agree upon what natural and universal justice t.ictates. It ig upon the basis of this presumption that municipal law is from time to time developed and enlarged by the decisions of judicial tribunals and jurists which make up tho unwritten municipal jurisprudence. Sovereign states are presumed to have sanctioned as law the general principles of justice, and this constitutes tho aiithority of municipal tribunals to declare the law in cases whore legislation is silent. They are not to conclude that no law exists in any particular case because it has not been provided for in positive legislation. So also in interna- tional law, if a case arises for which the practice and usages of nations have furnished no rule, an international tribunal like the present is not to infer that no rule exists. Tho consent of nations is to bo presumed in favor of the dictates of natural justice, and that source never fails to supply a rule. If the foregoing observations are well founded, the law by which this ' The Antelope 10, Wkeaton's Reports, p. 120 ; The Louis, 2 Dods, 238. Ul !(l ■ ij ' .M '|4 K fl w u i 8 ARGUMENT OK THE INVITED STATES. Tribunal is to be guided is the law of natioiib* ; and tde sources to which we are to look for that law upon any qa^Jstion which may arise are these: First. Tlie actual practice and usages of nations. These are to bo learned from history in the modes in which their relations and Interconi'se with one another are conducted; in the acts commonly done by them ■without objection from other nations ; in the treaties which they make with each other, although these arc to be viewed with circumspection as bv^ing based often upon temporary and shifting considerations, and some- times exacted by the more powerful from the weaker states ; and in ^lieir diplomatic coi'respondenco with each othei*, in which .supposed principles or the law of nation.^ are invoked and acceded to. Second. The judj-'ments of the courts which profess to declare and administer the law of 'lations, such as prize courts and, in some instances, courts of admiral fcy, furnish another means of instruction. Third. Where the above mentioned sources fail to furnish any rule resort is to be had to the great source from which all law flows, the dictates of righi. reason, natural justice; in other words, the law of ) lature. Fourth. And in ascertaining what tlio law of nature is upon any particular question, the municipal law of States, so far as it speaks with a concurring voice, is a prime fountain of knowledge. This is for the reason that that law involves the law of r ature in nearly every con- ceivable way in which it speaks, and has been so assiduously cultivated by the study of ag3s that few questions concerning right and justice among n.en or nations ran be found for which it does not furnish a solution. Fifth. /. id, finally, in all uae s, the concurring authority of jurists of establifhed reputation who have made the law of nature and natioiis a study is entitlei to respect. Mr. Chief Justice Marshall has expressed from the bench of the Supreme Court of the United States what we conceive to be the true rule. He says: The law of nations is the greal, source from which we derive those rules respecting belligerent and neutral igh^-s which are recognized by all civilized and commercial states throaghout Europe and America. This law is in part unwritten, and in piict conventional. To ar certain that which is unwritten we recur- to the great principles of reason and justice; but as these principles will be difFerently understood by dif- tei'eni niitioiis under different circumstances, we consider them ns being, in some degree, rendered fixed and stable by a series ot judicial decisit-ns. The decisions of the ccurts of every country, so far os thev are founded upon a law common to every country, will be received WHAT LAW JS TO (iOVERN THE DECISION ? Ll the sources to v.-hicl may arise are these : JUS. These are to bo ations and Intercoui'se inionly done by them ties which they make vith cii'cnmspection as isiderations, and some- ker states ; and in +lieir ch supposed principles not as authority, but with respect. The decisions of the courts of eveiT country show how the law oi' nations, in the given case, is under- stood in that country, and will be considered in adopting the rule ffbicli is to prevail in this.^ James C. Carter. I Sixty IlogslieaJs of Sugar v. Boyle, 9 Craneh, 191, 197. Tlie views stated in the text concerning the foundation of the law of nations iiiil the sources from which it is to be gathered, are, it is believed, supported by the concurrent voices of writers of established authority. DifPerences will be found in the modes of statement ; but there seems to be no substantial disagreement. A collec- tion of extracts from many writers of difPerent nations will be found in the Appendix amediiitcly following. profess to declare and and, in some instances, action. il to furnish any rule bich all law flows, the her words, the law of of nature is upon any , so far as it speaks with vledge. This is for the •e in nearly every con- 30 assiduously cultivated ming right and justice it does not furaish a authority of jurists of of nature and natiOiis rom the bench of the conceive to be the true I ■ i:l ft;-; I 'If w ARGUMENT t^>V THK ITNITED STATRS. I. Ill ifljl P *l 1 ^ % I u I- fill 1," it, ;! , \i ltd APPENDIX TO PART FIRST MR. CARTER'S ARGUMlNT). CITATION* FKOKC WRITERS '>?01F THK LAW OF NATURE AND ■ NATIOfJfS. ««(;OWINO THK FOV-'*X>A'r'ON OF INTERNATIONAL LAW. ITS a9¥L.AT'0NS TO THE UAW OF NATURE, AND THE SOURCES F»*«ff ./HICK THE KiP»*WXie3>0« OT IT IS TO BE I>ERIV£D. [POMEBOy. Lt'ctu«Ss t>r riitcrimfionnl Law, ed., lii««, faap. I. Sees, 20. 30. 31, 33, pages Zi-ZQ. j 8f:c. 29. (2) A htrge iM"«iber of luleH whic'i govow the mutual "dii- tions of states in their c-^rporate . apacitj' are properlv called inkr- national law, on account of th* object?) u'liif ■ they subserve atvJ the riplits and duties they create. They atre also jn-operly law, because they have been established by particular states aw a pai^ of their >wu iMunicijial systems, and are enforced by their judi<>ary a.u'J e»<;cutivi» in the .same manner as other portions of the local codes. Th»vy ai'c in fa*r principle.s of the law of nature or mora 'ity put in the form of human 'Vwnmand.s, and clothed with a hunmn isanotion. (3) What is called international law in its "'cnr /al .sense. I WO'V term international mocality. It ';oiisists of those ru! s founded iiii justice and equity, and deduced by right reason, according to wlm independent states are accustomed to regulate their mutual intcv course, and to which they conform rlieir mutual relations. Tlust rules have no binding font in ihemselvcK as law ; but states are more and more impelled to obsei'\ e them by a deforence to tlie gen- eral public opinion of Christendom, by a conviction that they are riglit in themselves, or at least expedient, or by a fear of provoking hostilities, This moral sanction is so strong and is so constantly increasing in its power and effect, that we may with pi'opriety say these rules create rights and corresponding duties which belong to and devolve upon in- dependent states in their corporate political capacities. Sec. ;30. We thus reach the conclusion that a large portion of inter- national law is rather a branch of ethics than of pf)sitive liunion jaris. prudence. This fact, however, affords no ground for the jnrist or llie student of jurisprudence to neglect the science. indeed, tlici't- is tlie greater advantage in its study. Its rules arc based upon fibstract ji)«- tice ; they are in conformity with the deductions of riglit reason; having no positive human sanction they appeal to a higher sanction than do v.i<- precepts of municipal codes. All these features cloth*- them with a nobler character than that of the ordinary civil jurisprudence, as God's law i- more perfe<;t than human legislation. Skc. 31. The preceding ii!)!ilysis of the nature and charactcri- iw "1 international law enables us to answer die general (juestion, What are its sources Y If we confine our attention to that portion which is in every sense of the term strictly international, and i«. therefore, as we have seen, morality rather than law, these sotircca are plainly seen to be: (1) The Divine law; i) P>nlightened reason acting upon the abstract principles of ethics ; v d (3) The consent of nations in adoptmir the particular rules thus dra vn from the generalities of the moral law APPENDIX TO PART P^IRST. 11 ARGUMENT). I. aecn. 29, 30, 31, 33, iliaiiicterii.iCH »t' actiiiK upo" by the aid of riplit reason. It is only with this portion of international law that we need now concern ourselves. That other portion vhieh I have already described as international only in its objects, and strictly national and municipal in its creation and sanctions, springs from the same sources whence all of the internal law of a particular State arise? — from legis- latures and the decisions of courts. We will then briefly consider these principal sources, or, if I may use the expression, fountains from which iloff the streams of the jiis inter gcufes. 8kc. .S3. (2) Beasou. But the prece])ts of the moral law, either as contained in the written word, or as felt in the consciousness of the human race, are statements of broad, general principles ; they are the germs, the fructifying powers ; they must be developed, must be cast in a more practical and dogmatic form to meet the countless Jemands of each indi- vidual, and of the societies we call nations. To this end we must api)eal to reason; and hence the second source which I hwe mentioned, namely, enlightened reason acting upon the abstract principles of morality. 1 can not now stop to illustrate this proposition ; we shall meet many pertinent examples in the course of our investigations. I wish now, however, to dwell upon one fact of great importance — a fact which will help you to avoid many difficulties, to reconcile many discrepancies, to solve many nncertainties. This fact is, that an international law is mainly based upon the general principles of pui'e morality, and as its particular rules are mainly draAvn therefrom, or are intended to be drawn therefrom, by reason, iti.s, us a science, the most progressive of any department of jui'isprudencc or legislation. The improvement of civilized nations in culture and refinement, the more complete understanding of rights and duties, the growing appreciation of the truth that what is right is also expedient, have told, and still do tell, upon it with sudden and surjjrising effect. The result is that doctrines which were univeisally received a generation since are as universally rejected now ; that precedents which wei-o universally considered is binding a quarter of a century ago would at ■iie present be passed by as without force, as acts which could not endure the light of more niodn'n investigation. More particulaily is this true in respect to the rules w hich define the riglits of belligerents and neutrals. liie latest Avorks of European jurists are, as we shall see, conceived in a far different spirit from standard treatises of the lln-mer generation. itvas the entire ignoring or forgetfulness of this evident and most l>«"^ii f.ict by Mr. Senator Sumner, in the celebraied and elaborate •'.'■Mi which he delivered a few years since upon the international ' 'V of England, that rendered the speech utterly useles.s as an ■rsrumciit, exposed it to the criticism of European jurists, and left it "111}' a monumfEit of unnecessary labor in raking up old precedents from history, which no civili''.ed nation of our own day would quote nan law, that wonderful result of reason working upon a basis of Mtiact right, ifi largely appealed to in international discussions, as oiitain- "ig rules which, at least by analogy, may serve to settle international disputes. No one can be an accomplished diplonuitist without a familiar Mquaintauce with much of this immortal code. [Piiillimore. Intornational law, 1871, Ch. Ill, pages 11-28.] XIX. * * # Wiiat aro in fact the fountains of international juris- prudent!; ? ■' * * * •XX. Grotius enumerates these sources as being " t^^sa natiira, leges diviHcr, I'^is, el pacta," [317] B r 'iu 12 ARGUMENT OF THE UNITED STATES. I ' ' !'■ ) \ V ,;i ,! M I II '% In 17.53 the British Government made an answer to a memorial of the Prussian Government, which was termed by Moutosqiiiea rvprmse sans r('plifjuc, and whicli lias been generally recognized as one of the iibiest expositions of international law ever embodied in a state paper. In this memorable document "The Law of Nations" is said to be founded upon justice, equity, convenience, and the reason of the thing and confirmed by long usage. XXI. These two statements may bo said to embrace the substance of all that can be said on this subject. * * « XXII. Moral persons are governed partly by Divine law, » » « Avhich includes natural law — partly, by positive instituted human law, • * » States, it has been said, are reciprocally recognized as moral persons. States are therefore governed, in their mutual relations, partly by Divine and par^/ly by positive law. Divine law is either (1) that which is written by the finger of God on the heart of man, when it is called natural law ; or (2) that which has been miraculously made known to him. ♦ * # XXIII. The primary source, then, of international jurispnidence is Divine law. XXVI. * * * Cicero maintains that God has given to all men conscience and intellect ; that where these exist, a law exists, of which all men are common subjects. Where there is a common law, he argues, there is a common right, binding more closely and visibly upon the members of each separate state, but so knitting together the universe, " ut jam universus hie mundus una civitas sit, communis Deorum atque hommm cxistim,anda," That law, this great jurist says, is immortal and unalterable by prince or people. * « * XXXI. This would be called by many who have of late years written on the science, international morality ; they would restrict the term law absolutely and entirely to the treaties, the customs, and the practice of nations. If this were a mere question as to the theoretical arrangom'nt of the subject of international law, it would be of but little importance. * * * But it is of great practical importance to mark the subordina- tion of the law derived from the consent of states to the law derived from God. XXXII. * * *^ Another practical consequence is that the law derived from the consent of Christian states is restricted in its Operation by the divine law ; and just as it is not n orally competent to any individual state to mtike laws which are at variance with the law of Gud, whether natural or revealed, so neither is it morally competent to any assemblage of states to make treaties or adopt customs which contravene that law. Positive law, whether national or international, being only declarntor}', may add to, but can not take from, the prohibitions of divine law. " Civilis ratio civiiia quidern jura corrumpere pottst, tiaturalia nouuhijtn', is the language of Roman law ; and is in harmony with the voice of international jurisprudence as uttered by Wolff ; '^ Absit vera, ut cxistmes, jus (imtium voluntarium ab paruin volv.ntaic ita projiscisci, id libera sd i-arum in codem ctyiidcndo voluntas, et stel, pro ratione sola rulvnias, num hahita raiiono juris iiatumlis." XXXIII. This branch of the subject may be well concluded by the invocation of some high authorities from the jur'sprudcnce of all countries in support of the foregoing opinion. 'i APPENDIX TO PART FIRST. 13 substance of all jurispmdence is rable by prince or Grotius Hays emphatically : " Nimirum Inimana jura MUI/IA cunstit- aere possunt pr^tkr naitiram, contra nihil." John Voet speaks with great ener<^y to the same effect : " Qnod si mlra recta rationis dictamen genfes vai' qucedam introdtixerint, NON ea JBs (jenthim recti dixeris, skd pks«imam potius moul'ii humani gen- esis CORliUPTELAM." Suarez. who has discussed the philosophy of la\/ in a chapter which contains the germ of most that has been written upon the subject, says : " Leges autem ad jus gentium, pertincntes verm leges sunt, ut expli- tiiixm maiiet, propinquiores sunt legi naturali qiiam leges civiles. ideoque impossibile est esse coutrarias cequitati naturali." Wolff, speaking of his own time, sajs : " Omnium ferr anirw^s occupavit fmersa ilia opinio, QUASI KONS juris gentium sit utiljtas I'RO- ?kIA; tmde contingit, id potentice cocvquari. T)amnar,ius hoc in yrivatis, kmnamus in rectore civiiatis ; ed ^:que ihem damnandum est i\ ;ENT!BUi<." Mackintosh nobly sums up this great argument : " The duties of men, of subjects, oi pi-inces, of lawgivers, of magistrates, and of stales, ni'o all parts of one consistent system of univert'iil uiorality. Between the most abstract and elementary maxim of moi'al philosophy, and the most complicr.ted controversies of civil or public law, there subsists a connection. The principle of justice, deeply rooted in the nature and interest of man, pervades the whole system, and is discoverable in every part of it, even to its minutest ramification in a legal formality, or in the construction of an article in a treaty." [Henry Sumner Maine, International Law, pages 13-47.] In modern days the name of International Law has been very much confined to rules laid down by one particular class of writers. They may be roughly said to begin in the first half of the seventeenth cen- tury, and to run three parts through the eighteenth century. The names which most of uy know are, first of all that of the great Hugo Grotius, followed by Puffoudorf, Leibnitz, Zouch, Selden, Wulf, Bynker- shoek, and VatteJ. The list docs not absolutely begin with Grotius, nor does it exactly end with Yattel, and indeed, as regards the hither en(? of this series the as.sumption is still made, and 1 think not quite fortunately, that the race of law-creating jurists still exists. * * * Theii I the writers named and a few ofchers] system is that convention- ally known as International Law. A great part, then, of Interuiitioiuvl Law is Roman law spread over Europe by a process exceedingly like that which a few centuriea earlier kd caused other portions of Roman law to filter into the interstices of fvery European legal system. ^I'lie Roman element in International Law belonged, however, to one special province of the Roman .sy.stem, tliat which the . Romans themselves called natural law, or, by an alter- native name. Jus Gentium. 1ti a book published some years ago on "Ancient Law" T made this remark : "Setting aside the Treaty Law of ^ations, it is surprising how large a j)ai't of the system is made up of pure Roman law. Wlierever there is a doctrine of the Roman jui'is- ""isults affirmed by them to be in harmony with the Jus Gentium, the PnWioists have found a i-eason for borrowing it, however plainly it ™iiy bear the mark of a distinctive Roman origin." * * * /"fen in the light of a stoical doctrine the law of nations eaiue to be iJcntified with the law of nature; that is to say, Avith a number of siip- [317] B 2 !. hi 14 ARGUMENT OF THE UNITED STATES. posod pi'incl|ilcs of conduct wliicli man in society ol)oys simjily because ho is man. Thus the hiw of natm-o is simply the law of nations wn\ in the lif^lit of a pcculiai- theory. A i)iissago in the Roman iiiHtitutos shows tliat tlio ex|)ressions were |5ractioally convertible. The "rciitest, function of the law ot" nature was discharged in giving birth to niodei'ii international law. * * * The impression that the Ilonuin law sustained a s^'stem of wliut would now bo called international law, and that tbis system was iden- tical witJi the law of nature had undoubtedly much influence in ciiusinc the rules of wbat the Romans called natural law to bo engrafted on, and identified with, tlie modern law of nations (page 28). It is only necessary to look at tlie earliest authorities on international law, in tho "De Jure Belli efc Pacis " of Grotius for example, to see that the law of nations is essentially a moral and, to some extent, a religious system. Tho appeal of . * * * But what are the rational and moral grounds of international law ? As we have seen, they are the same in general with those on which the rights and obligations of individuals in the state and of the single state towards the individuals of which it consists, repose. If we define natural jus to be the science which from the nature and desti- nation of man determines his external relations in society, both the question, What ought to be the rights and obligations of the individual in the stator and the question. What those of a state among states ought to be ? fall within this branch of science. That there are such rights and obligations of states will hardly bo doubted by those who admit that these relations of natural justice exist in any case. There is the same reason why tky should be applied in regulating the intercour.se of states as in regalatinc that of individuals. There is a natural destination of states, and a divine purpose in their existence, which makes it necessary that they should have certain functions and powers of acting within a certain sphere, which external force may not invade. It would bo strange if the state, that power which defines rights and makes them real, which creates moi-al persons or associations with rights and obligations, should have no such relations of its own- should be a physical and not a moral entity. In fact, to take the opposite ground would be to maintain that there is no right and wrong in the intercourse of states, and to leave their conduct to the sway of mere con- venience. [Wolff, quoted by Vattel, preface t« seventh American ed., page 9.] Nations do not, in their mutual relations to each other, acknowledge any other law than that which nature her.self has established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual persons living together in the state of nature; and, for that reason, we must apply to them all the duties and rights which nature prescribes and attributes to men in general, as being naturally born free, and bound to each other by no ties but those of nature alone. The law which arises from this application, and the obligations resulting from it, proceed from that immutable law i founded on the nature of man ; and thus the law of nations certainly belongs to the law of nature ; it is, therefore, on account of its origin, called the natural, and, by reason of its obligatory force, the necessary, law of rations. That law is common to all nations ; and if any one of thein does not respect it in her actions, she violates the common rights of all the others. But nations or sovereign States being moral persons and the subjects of the obligations and rights resulting, in virtue of the law of nature, from the act of association which has formed the political body, the nature and essence of these moral persons necessarily differ, in many respects, from the nature and essence of the physical individuals, or [ APPENDIX TO PART FIRST. 17 men, of whom they are composed. When, therefore, we would apply to nations the duties which the law of nature prescribes to individual man, and the rights it confers on him in order to onablo him to fulfill liis duties, since those rights and those duties can bo no other tlian what are con- sistent with the nature of their subjects, they must, in their ai)plication, necessarily undergo a c lange suitable to the new subjects to which they are applied. Thus, we see that the law of nations does not, in every par- ticular, remain the same as the law of nature, regulating the actions of individuals. Why may it not, thororore, be separately treated oi as a law peculiar to nations ? From " Dos Droits et des Devoirs dog NatioiiH Neutres en Temps de QiiLrro Maritime," par L. B. Hautcfouillo, 1848, Vol. I, pages 46, 12 e( seq. Translation.] He (God) hns given to nations and to those who govern them a law which they ai'e to observe towards each other, an unwritten law, it is true, but a law which he has taken care to engrave in indelible char- acters in the heart of every man, a law which causes every human being to distinguish what is true from what is false, what is just fiom what is unjust, and what is beautiful from what is not beautiful. It is the divine or natural law ; it constitutes what I shall call primitive law, This law is the only basis and the only source of international law. By going back to it, and by carefully studying it, we may succeed in retracing the rights of nations with accuracy. Every other way leads infallibly to error, to grave, nay, deplorable error, since its immediate result is to blind nations and their rulers, to lead them to misunderstand their duties, to violate them, and too often to shed torrents of human blood in order to uphold unjust pretensions. The divine law is not written, it has never been formulated in any human language, it has never been pro- mulgated by any legislator ; in fact, this has never been possible, because such legislator, being man and belonging to a nation, was from that fery fact without any authority over other nations, and had no power to dictate laws to them. This lack of a positive text has led some publicists to deny the existence of the natural law, and to reject its application. They have based their action in so doing more particularly upon the different way in which each individual interprets that law, according as his organization is more or less perfect, more or less powerful, if I may thus express myself ; hence, it results that this law is different for each individual and for each nation, that is to say, that it does not exist. One of these writei-s, in support of his denial of the natural law, lays dov»n the principle that man brings nothing with him into this world except feeling? of pain or pleasure, and inclinations that seek to be satisfied, which can never be entitled to the name of laws, since they vary according to the organization of each individual, because they are by no means the same among all nations and in ail climates.' These opinions would perhaps have some appearance of reason if the natural law were represented as a written system of legislation or as a complete code similar to those which govern human society and the mem- bers who compose it. Then it might be said with Moser : " What What is natural in man is his feelings of pain or pleasure, his inclinations ; but to «11 these feelings and inclinations laws, is to introduce a false and dangerous view and to put language in contradiction with it«ell', for laws must be made for the very purpose of repressing these inclinations. * * * (Jeremy Bcntham, False Manner of Seasoning "o Matters of Legislation.) li I ■Ji^ ' 1 :P i I: 18 AROrMENT OF THE UNITED 8TATEM is tliis law wliicl' is so rniieli talkoil about ? Must wo Hook its principles in (irotiiiH or llol)l)Gs r* " ' iSoinn oun rnii^litiisk to sec that, code wliicli is dcstinod to provoiitall wins hy i'oi'OHeeiii^ anil cmuloiiuiiii!,'' all luijiist cliiiiusiii advaiiiic. It is not tlms iiowover, tliat tlif natural law is ])rcHonte(l hy tlioso authors who liiuc tfikcn its tcachinos as tlu! basis ol' their wi'itiiitjs: tlu?y have never snutrlit to L'ivc it a body or to put it in the t'orni of a written law. Wiiat is ti'ac, ami, in my o])inion, iueontestable, is that notions ot" what is just and what is unjust are found in all men; it is that all individuals of tho hiunnn nice that are in tho enjoyment of reason ha\e these notions pfi'aven upcjn tjuji' hearts, and that tliey briny' with llieni into the world when they ;ii'o Ijoin. These notions do not extend to all (lie details .)f law as do civil Imws, IimI they have reference to all the most prominent points of law, if I umv tliii> expi-ess myself. It can not bo denied that the idea of property is a natural and iniKitc id(Mi. The same is the case with the idea whieh imj)els evi!ry imlividiml to exercise care for his own ])reservation with that which forl)ins tlt-K |)lus modorncs dcs nations Puro|iOi'iiiu'Mi. pnix et en gnerro, 177!S-17!S0.") APPENDIX TO PART FIRST. 19 : its principles in provoiil, all will's I. It, is not tlius, I wlio linvc thkcri L'l' souu:ht to <:\\-v b is true, luiil. in just and what is tlio iiunmii raco av(Mi upon tiicii' II tlii'v ;ii'0 born, () civil laws, Imt i\v, ir 1 may tliu> tiiral aivl iiuiuti' every inilividiial I forbids men to ics tlic ohliiratiiiii a promise nimlt', iniiu brinjxs with llio uatiii'iil law; f.pproacli to tlu'su one that can ho nd and having nu m secondary laws t can arise anion;,' nijilc, it is eviileiit that every nation rinciple is recoi;- is necessary and ■'.tion may freely ver it may choose y on such trailf, permission of a is that it must ■need not trouble ;e a third nation. tive and iiatur;il I are as clear ami is the lUitgrowtli Isecms to me ini- it is a kind of |r; the principli^ they arc in tlu' wliere they aiv lie and priniitiu' lliis siii,u1i' li'"'' ' to rcu'uhite all Lf the universe. ] justice; it exists Itioni' ouvopeonm's fi'. independently of all legiwlntion of all human institutions, and it ir one for all nations. It governs peace and war, and traces tbo riglits and duties of iwry posit ion. Tho rights wiiieh it gives are clear, positive, and abso- lute; they are of snch a nature as to reciprocally limit each other without ever coming into collision or conti'adiction with each othei-; they aro correlative to each other, and are coordinated and linked with tlio most mifeet harmony. It can not bo otherwise. lie who has arranged all tho parts of the universe in so admirable a manner, tho Creator of tbo world, (iiiild not contradict liimsclf. « * *i' # * # * The natural law is, from its very natui-c, always obligatory. Tho uvatics which recall its provisions and regulate their api)licatioii must !im'.'* /: '/ /A Hiotografiiic Sdences Corporation 23 WIST MAIN STRKT WIBSTIR.N.Y. 14SM (71«)S73-4S03 \ \\ ^^ -8^\ ^r\\ '<^ 7 4^ iV S^ 20 ARGUMENT OF THE UNITED STATES. 'W: ; II a3 the different kinds of acquisition, contracts, and other similar things, either belong to the natural law or form part of the civil law of every nation. And, although in regard to those things which are not based npon rhe univemKl constitution of tlic human race, the laws are the same araone the majority of tUe nations, no particular kind of law results from this, for it is not in vii'tne of any agreement or of any mutual obligation that these laws are common to several peoples, but purely and simply from an effect of the particular will of the legislators of each State, who have by chance f.greed in ordering or forbidding the same things. Hence it is that a single people can change these laws of its own accord without consultini; others, as has frequently been done. We must not, however, absolutely reject the opinion of a modern writer who claims that the Koman jurisconsults understand by law of nations that law which concerns those acts which foi-eiguers cuuld per- form, and the business which tiiey could validly transact in tlic states belonging to the Roman people, in contrast with the civil law that was particular to Roman citizens. Hence it was that wills and marriages, which were valid among citizens only were referred to civil law while contracts were considered as coming nnder the law of nations, becaase foreigners could make them with citizens in such a manner that they were valid before the Roman courts of justice. Many also apply the name law of nations to certain customs, especially in matters relatiug to war, which are usually practiced by a kind of tacit consent, aniung the majority of nations, at least among those that pride themselves on having some courtesy and humanity. In fact, inasmuch as civilized nations have attached the highest glory to distinction in war ; that is to say, to daring and knowing how skill- fully to cause the death of a large number of persons, which has in all ages given rise to many nnnecessaiy or even unjust wars, conquerors, in order not to render themselves wholly odious by their amhition, have thought proper, while claiming every right that one has in a jast war — have thought proper, I say, to mitigate the horrors of war and of military expeditions by some appearance of humanity and magnanimity. Hence the usage of sparing certain kinds of things and certain classes of persons, of observing some moderation in acts of hostility, of treating prisoners in a certain way, and other similar things. Yet while sach customs seem to involve some obligation, based at least upon a tacit agreement, if a prince in a just war fails to observe them, provided that by taking an opposite course he does not violate natural law, he can be accused of nothing more than a kind of discourtesy, in that he has not observed the received usage of those who regard wnr as being ore of the liberal arts ; jnst as among fencing masters, one who has not wounded his man according to the rules of art is regarded a.s an ignorant person. Thus, so long as none but just wars are earned on, the maxims of natural law alone may be consulted, and all the customs of other nations may be set at naught unless one is interested in conforming thereto, so as to induce the enemy to perform less rigorous acts of hostility against us and against our party. Those, however, who undertake an unjust war, do well to follow these customs, so as to maintain at least some moderation in their injustice. As, howeve.", these are not reasons that are generj,lly to be considered, they can constitnte no universal law, obligatory npon all nations ; especially since in all things that are only based upon tacit consent anyone may decline to be bound by them by j expressly declaring that he will not be so bound, and that he is willing j that others should not be thereby bonnd in their dealings with him pp APPENDIX TO PART FIRST. 21 liiou of a moderii erstainl by law of eiguerH could per- lact in tlic states civil law that was lis and marriages, to civil law while { nations, becaase manner that thej ny also apply the matters relating to onsent, among the emsclves on having . the highest glorj knowing how skill- 8, which has in all b wars, conquerors, by their ambition, ; one has in a jast lorrors of war and and magnanimity. and certain classes [ostility, of treating Yet while such least upon a tacit •ve them, provided te natural law, he lonrtesy, in that he jganl wn.r as being '8, one who has not led as an ignorant ^e observe that not a few of these cnstoms have, in coarse of time been abolished, and that in some cases directly opposite customs have been introduced. la rain has a certain writer impugned our opinion as if it wore subver- sire of the foundatio»^g of the sirfety, advantage, and welfare of nations; for all that is not dependent upon the customs just referred to, bat upon the observance of the natural law, which is a much more solid principle and one deserving of much greater respect. If its rules are carefully observed, mankind will not have much need of these customs. Moreover, by basing a custom u|)ou tlie maxims of natural law, a much more noble origin is given it, and also much greater authority than if it were made to depend upon a mere agreement among nations. Ortolan. Int«^matiuual Bules and Dipluuiaey of the Sea. Paris, 18<)4, Vol. I, Book 1, Chap. 4, page 71. Translation.] It is apparent that nations not having any common legislator over them have frequently no other recourse for determining their respective rights bat to that reasonable sentiment of right and wrong, but to those moi-al truths already brought to light and to those which are still to be demon- strated. This is what is meant when it is said that natural law is the first basis of international law. This is why it is important that Governments, diplomats, and publicists that act, negotiate, or write upon such matters should have deeply (rooted) in themselves this sentiment of right and of wrong which we have just defined, as well as the knowledge of the point of certainty (point dc certitude) where the human mind has been able to attain this order of truths. But nations are not reduced only to that light, too often uncertain of human reason, for defining their reciprocal rights. Experience, imitation of accomplished precedents, and long practical usage habitually and generally observed add to it what is termed a custom, which forms the rule of international conduct and from which flows on one or the other side positive rights (adroits). The binding force of custom is founded on consent, the tacit agreement, of nations. Nations have thus tacitly agreed among themselves, and they have bound themselves through this tacit agreement, for the reason that they have practiced it so long and so generally. The supremacy of custom is much more frequently exercised and mnch more extensive in international law than in piivate law ; pi'e- cisely because in international law there is no common legislator to i^strain such supremacy by formulating the rule of conduct in writ- ing. Custom is often conformable to the light of reason upon that which is right or wrong because it emanates from communities or col- lections of reasonable beings ; but frequently also it is contrary to it, because the reason of man, individual or collective, is subject to error ; finally, it tends more and more intimately to approach it, because the path of man, an essentially perfectible being, is a path of improvement and progress. It must be stated that treaties, far from justifying the exclusion of moral truths of what is right or wrong, among nations, which one v.'i8he8 to deduce fi-om them, precisely only obtain tneir binding force but from one or the other of those truths. It is because the natural senti- ment of right dictates to all that a regular agreement of indepen- dent wills between qualified pore^ns on allowable subjects and oases binds the contracting parties to each other, it is therefore that treaties l.?i:t 1;^ , i .1 : ■; f-! '' 22 ARGUMENT OF THE UNITED STATES. are recognized as obligatory. They only draw, therefore, their fanda- mental authority except fi-om natnral law, employing for an instant this term, the sense of which we have before explained. And it is also from natural law that is generally deduced the idea of the necessary conditions to establish the validity of treaties, and that of the legitimate consequences ensuing from their violation. [From "A Methodical Sy»t«ni of Univcrwil Law," by J. O. Heinei-ciiw (TumbuH's Tninertition), Vol. 1, od. 1763.] Skc. XII, page 8 : The law of nature, or the natural rule of rcctitndc, is a system of law promulgated by the eternal God to the wliolo liunwii lace by reason. But if you would i-ather consider it as a scioiife, natuial morality will bo rightly defined the pi-aetical habit of discovering the will of the supreme legislator by reason, and of applying it as a rule to cvei-y particular case that occurs. Now, because it consists in deducing and applying a rule coming from God, it may be justly called divine jurisprudence. Skc. XXI, page 14 : *Since the law of nature comprehends all the laws promulgated to mankind by right reason ; and men may be con- sidered either as jiarticulars singly, or as they are united in certain political bodies or societies ; we call that late, by which the actions of particulars ought to be governed, the laio of nature, and we call that the law of nations, which determines what is just and unjust in society or between societies. And therefore the precepts, or the laws of both are the same ; nay, the law of nations, is the law of nature itself, respect- ing or applied to social life and the affairs of societies and independent states. Skc. XXII, page I.') : Hence we may infer, that the law of nature doth not difl'er from the law of nations, neither in respect of its foundation and first principle s, nor of its rules, but solely with respect to its object. Wherefore their opinion is groundless, who speak of, I know not what, law of nations distinct from the law of nature. The positive or secondary law of nations devised by certain ancients, does not properly belong to that law of nations wo arc now to treat of, because it is neither established by God, nor promulgated by right reason ; it is neither common to all man- kind nor unchangeable. [From Viittc'l on llu- Law of Natiouei, st-vciith Aiiifrieuii t-d., 184'J.] There certainly exists a natural law of nations since the obligutious of the law of nature iiro no less binding on states, on men united in political society, than on individuals. But, to acquire an exact knowledge of that law, it is not sufKcient to know what the law of nature prescribes to the individuals of the human race. The application of a rule to various sub. jects, can no otherwise bo made than in a manner agreeable to the nature of cacli subject. Hence, it follows, that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or so\ ereigns. (Preface, page V.) ' The moderns are generally agi-eed in restricting the appelation of " Tlu' Law of Nations" to that system of right and justice which ought to inevaii between nations or sovereign states. (Preface, pagevi.) The necessary and the voluntary law of nations are therefore both established by nature, but each in a different manner ; the former as a sacred law which nations and sovereigns are bound to respect and follow in all their actions; the latter, as a rule which the gcnenil welfare "^^ APPENDIX TO PART FIUST. 23 einocciiw (TurnbuU's ind safety oblige them to admit in their f ranHactionH with each other. The necessary law immediately proceeds from nature ; and that com- mon mother of mankind recommends the observance of the voluntary lav of nations, in consideration of the state in which nations stand with respect to eacli other, and for the advantage of their affairs. (Preface, pjgexiii.) As men are subject to the law of nature — and as their union in civil society can not have exempted them from the obligation to observe those laws, since by that union they do not cease to be men, the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laivs of nature, and is bound to respect them in all her proceedings. (Pago Lvr, sec. 5.) "We must, therefore, apply to nations the rules of the law of nature, in order to discover what their obligations are, and what their rights : consequently, the law of nations is originally no other than the law of M/iire applied to nations." (Page i.vi, sec. 6.) TromO. F. von Martens, Law of Nations, page 2 of Intrctluction. (German.) Trang- latt'd by William Cobbet, 4th ec*.., 1829.] The second sort of obligations are those which exist between nations. Each nation being considered as a moral being, living in a state of nataiv, the obligations of one nation towards another are no more than those of individuals, modified and applied to nations ; and this is what is called the natural lata of nations, It is universal and necessary, because all nations are governed by it, even against their will. This law, according to the distinction between perfect and imperfect, is per- fect and external (the law of nations, strictly speaking), or else imperfect and internal, by which last is understood the morality of nations. [Sec. 2 of the Positive Law of Nations.] It is hardly possible that the simple law of nature should be sufficient even between individuals, and still less between nations, Avhen they come to frequent and carry on commerce with each other. Their com- mon interest obliges them to soften the rigor of the law of nature, to render it more deterir.inate, and to depart from that perfect equality of rights, which must ever, according to the law of nature, be considered M extending itself even to the weakest. These changes take place in vi'tue of conventions (express or tacit) or of simple custom. The whole of the rights and obligations, thus established between two nations, form the positive law of nations between them. It is called positive, particular, or arbitrary, in opposition to the natural, universal, and necessary law. [From Jan Helenas Ferguson, Dutch, but apparently written in Unglish, "Manual of International Law" (1884), Vol. I, Part I, Ch. Ill, sec. 21, page 66.] International law, being based on international morality, depends upon the state of progress made in civilization. Hence arises the diffi- culty of giving an all-comprehending definition to international law. ^hat ought to be permanently understood among civilized nations as tbe main principles and the basis of their mutual intercourse, we have noted already to be the moral law of nuture. But we have also seen ikat the spirit of law is the practical medium through which this general l^w influences humanity at all the stages of progress on the road to civiliiation. " . .. i M ' , i ' ' -tji 'i'' '^, 24 ARGUMENT OF THE UNITED STATES. Invt'Htigating thu8 this spirit of law, we find the definition of inter- national law to consist in certain rules of conduct which reason, prompted by conscience, deduces as consonant to justice, with such limitations and modifications as may he established by general consent, to meet thf exigenciet of the present state of societi/ as existing among nations and which modern, civilized states regard as buiding them in their relatitms with one another, with a force comparable in nature and degree to that binding the conscimtiout person to obey the laws of his country. [From " Lf Droit Public Intoniatiunul Maritime," par Carlos Testa (Portuguese), tranS' lilted by H. Boutiron, 1886, Part I, Chap. 1, r>age» 46 et xeq.] Force may constitute, in physical matters, the superiority of one in- dividual over another; but reason and conscience establish, in moral matters, other means which are controlled by the notion of duty and right. Tt is the whole body of these precepts, which are just, neces- sary, and immutable, for every reasoning being, and graven by God in the hum m conscience, that constitutes the natural or primitive law. The object of a law regulating the conduct of men is to impose moral obligations or to authorize certain acts from which advantages may result. In the former case the law establishes the duty ; in the latter it con- siders the right. The natural or primitive law, when if designates the duties that it imposes, at once establishes the correlative duties whicii are its outgrowth, and which constitute the principles of natural ur primitive law. The science of natural law is therefore based upon the principled of that intuitive law which, while giving the ability to practice that which is morally just, establishes the principles to be observed in tlie relations between oRe individual and another for the different hypotheses of social life. Duty is a matter of precept, while right is optional ; yet right and duty are essentially correlative ; and in the reciprocal relations between one individual and another, that which constitutes a duty for one, establishes a right for another. The same is the case in the mntua! relations of collective bodies. It is an axiom which results from the study of the moral nature of man that alone and isolated he cannot attain his welfare, and that sociability is a condition which is by nature necessary to enable hira to attain his highest advantage. This natural cause has produced the family, a social element which determines the formation of nations. Now, natural law, which is essentially connected with human nature, and which prescribes certain principles that ai-e to control the recip- rocal relations between one individual and another, is likewi.se and for the same reason applicable to the relations existing among collective bodies of individuals, which constitute so many moral entities. It is, therefore, the common law of association — that is to say, of nationali- ties. This application of the precepts of natural law, which obliges nations to practice the same duties t!:at it prescribes for individuals, tonsti- tutes the law of nations, which, when considered according to its ongic (which is based upon natural law), is also called the primitive (ir nectssarv law of nations. Respect for the law of nations is consequently as obligatory aiiionj.' nations as is riv^pect for natural law among individuals. From the fact that the various civil societies whiclj form nations or states, are independent, it results that the internal laws which cous'i- tute the public law of some can not be extended to the others — that is to i "^ APPENDIX TO PAUT FIRST. 25 I the principled of ractice that which id in the relations ent hypotheses of af, the internal public law of oftc'i nation or 8tat«' can not bo regarded nflti cxt.'inal and absolato lav, to whiili otlicrH must submit. HeiitT it results that, in order to lix the limits at which the law of utioDS stops, it is absolutely necessary to have recourse to the varioas eltmeots that can give it birth. These elements are : 1, The general principles of natuml law, constituting the primitive liw which is the outgrowth of the presumable consent of nations ; 2. The law of custom, constituting the secondary law that emanates from tacit consent ; :!, Conventional law, likewise constituting the secondary law which irises from expressed consent. The origins of international law are therefore three in number: 1, The raason and the conscience of what is just and unjust, independent of any prescription ; i Cn.stom ; :]. Pablic treaties. The principles, practices, and usages of the law of nations, in accord* uce with these limits, regulate the conduct of nations, and it is for this KuoD that in their generality they constitute international law. Conventional law may abrogate the law of custom, but it loses its character as a law if it establishes provisions at variance with natural law. Although in the philosophical order natural law occupies the first place, yet in the practical order of external relations, when questions ire to be decided or negotiations conducted, its rank is no longer the same; in these cases the obligations contracted in the name of conven- tional law, in virtue of existing treaties, are considered in the first place. If such treaties ai-e lacking, the law of custom establishes the rule; and when there are neither treaties to invoke nor customs to fol- low, it is usual to proceed in accordance with what reason establishes Mjust, and with the simple principle of natural law. When external public law derives its origin from the law of conven- tion and custom, it constitutes what publicists designate as positive or secondary international law ; when it is derived merely from the prin- ciples of natural law, it is called the primitive law of nations. From Burlamaqui " The Principles of Natural and Politic Law." Translated by Nugent, 1823, Part II, Chap. 6, pages 136, 136.] IV. All societies are formed by the concurrence or union of the wills °( several persons with a view of acquiring some advantage. Hence it is that societies are considered as bodies, and receive the appellation of moral persons. • • * V. This being supposed, the establishment of states introduces a kind of society amongst them, similar to that which is naturally between men ; and the same reasons which induce men to maintain union among themselves, ought likewise to engage nations or their sovereigns to keep "P a good understanding with one another. It is necessary, therefore, there should be some law among nations to wrve as a rule for mutual commerce. Now this law can be nothing flae hut the law of nature itself, which is then distinguished by the Mme of the law of nations. Natural law, says Hoblses, very justly (De Give, cap. 14, sec. 4), is divided into the natural law of man and the IJ^'ura! law of states; and the latter is what we call law of nations. "los natural law and the law of nations are in reality one and the ^me thing, and differ only by an extetaal denomination. We must I therefore say that the law of nations, properly so called, and considered a law proc -^ding from a superior, is nothing else but the law of ■ 26 AHGl'MENT OF THE UNITKD STATES. ^;r nature itsoU, not iipj)liu(l to nun, eonsiilercil simply as sucli, but to nations StatoH, or their chiefs, in thy rehitious they have toj^ethor, and the soviM-al interests tlicy havo to nianago between each nlher. VI. Thi-ro is no room to question the reality and certniiity of siicli u law of nations ol)licjatory of its own nature, and to which nations, oi' tlio sovereigns that ruU* them, oufrht to submit. For if (iod hy nu'iins (if right reason im|iose-« certain duties l)etwoen individuals, it is oviilcni lie is likewise willing that nations, which are only human s jL-'icticf, slnmM observe the sanu duties betweon themselves. (See ch. V, see. 8.) Skc. IX. • • * There is certainly an universal, necessary, niiii Belf-obligatorv law of i.itions, which differs in nothing from the law i4 nature, and is consequently immutable, insomuch that the iicoplc nv sovereigns can not dispense with it, even by common consent, witlioni transgressing their duty. There is, besides, another law of nations which we may call arbitrary and free, as founded only on an e.xprcss or tacit convention, the effect of which is not of itself universal, kin,' obligatory only in regard to those who have voluntarily submitUil thereto, and only so long as they please, because they are always at liberty to change or repeal it. To this we must likewise add that tlio whole force of this sort of law of nations ultimately depends on the law of nature, which command.s us to be true to our engn;,'cinonts, Whatever really belongs to the law of nations may be reduced to one or other of these two species ; and the use of this distinction will easily appear by applying it to particular questions which relate cither to war, for example, to ambassadors, or to public treaties, and to the decidinir of disputes which sometimes arise concerning these matters between sovereigns. Skc. X. It is a point of importance to attend to the origin and nature of the law of nations, such as we have now explained tliem. For, be- sides that it is alvvayp advantageous to form just ideas of tilings, tl is still more necessary in matter of practice and morality. It is owin<,' j perhaps to our distinguishing the law of nations from natural law, tlmt we have insensibly accustomed ourselves to form quite a diffei'ent jiKli.'- ment between the actions of sovereigns and those of private people. Nothing is more usual than to .sec men condemned in common for things Nvhich we prai.se, or at least excuse in the persons of princes. And vet it is certain as we have already shown, that the maxims of the law of nations have an equal authority with those of the law of nature, and aiv equally respectable and sacred, because they have (Iod alike for their author. In shoi-t, there is only one sole and the same rule of justice for all mankind. Princes who infringe the law of nations eonimit as I great a crime as private people who violate the law of nature; and if there be any difference in the two cases, it must bo chariied to tiie j prince's account, whose unjust actions are always attended with more i dreadful consequences than those of private people. Other citations might be added almost indefinitely. The followinj;! references may be adaeil : F. de Martens, Int. Law, Paris, 1883, Vol. 1, pages 19, 20 ; Li. R. P. Tuparelli d'Azeglio, de la Compaguie de Jesus, Traduit de I'ltalien, deux ed. tome ii, ch. 2; Grotius Do Jure, Belli ac Pacis, Prnlcg; Heff- ter, Int. Law of Europe, page 2; Bluntschli, Le Droit Int. Codihe, pages 1, 2; Pasqnala Fiore, book 1, ch. 1 ; Ahrens, Course of Natural Law and The Philosophy of I^aw, Vol. ii, book lit, ch. I; M. G. Mn.ssp, Commercial Law in its Relations to the Jaw of Nations, etc., Paris, 1874, book 1, Lib. u, ch. 1, page 33; Louis Renault, Introduction a I r£)tade du Droit International, Paris, 1879, pages 13, 14. T EH. iic'h, but to nations, tof^elluT, ii!ul the -r. •ortninty oi' Mich a licli niitions, or thi! (iod liy iiu'aiis (if .Irt, it is (sviili'iii lu' III s-jL'ictii'.i, slidull V, sec. H.) * sal, necessary, and n^ from the law of bat the |)i'i)])lc m- m consent, withoiu ler law of nntiuns inly on an express elf universal, bfiii'^ luntarily submittal ;liey are always at :e\vise add that the ily depends on the ~) our enirafjcinonts, • be reduced to one istinction will easily cli relate either to and to the deciiliiiLt 36 matters between e origin and nature L'd tliem. For, be- leas of things, tiiis ality. it is owini; m natural law, that I ito a diffei-ent jiuli.'- of private people. common for things f princes. And vet ixims of the law of | of nature, and are iod alike for their ime rule of justice nations commit as I of nature; and if bo obartri'd to the { ttended with more ily. The following I s 19, 20 ; Li. R. P. raduit de I'ltahen,] 'ads, Prolog; Heff- Droit Int. Codihe, Course of Natural _.b. 1; M. G. Ma.sse,| Nations, etc., Pini?. It, latroduction a ■14. JUIIISDICTIONAL Al J OTHER RIUHTS OV£R BfiRIMO SEA, 27 SECOND. IBS AOQUISZTION BT BX7S8ZA OF JTTBZSOXOTZONAZ. OB OTHXB BIOHTO OVEB BBBZNO SBA AITZ) THB TBAN8VBB THBBBOF TO THE UNITBD 8TATBS. The first four questions submitted to the High Tribuual by the Treaty are these : 1. What exclusive jurisdiction in the sea now known as the Behring's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States ? 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain P 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 Britain and Russia ; and what rights, if any, in the Behring Sea were held ind exclusively exorcised by Russia after said treaty P 4. Did not all the rights of Russia as to jurisdiction, and as to the seal Esheries in Bering Sea east of the water boundary in the treaty between the United States and Russia of the 30th of March, 1867, pass unimpaired to the United States under that treaty P The learned Arbitrators may have themselves had occasion to ob> serve, and, if not, it will at an eai'ly stage in the discussion of this con- tioversy become manifest to them, that in the consideration by writers upon international law and by learned judges administering that law, o{ the authority which nations may exercise upon the high seas, two Babjects, essentially distinct, have been habitually confounded, and We not, even at this day, been clearly separated and defined. One is the exercise of the sovereign right of making laws operative upon the high seas and binding as well upon foreigners as citizens, which right must necessarily be limited by some definite boundary line. The other is the protection afforded by a nation to its property and other rights by reasonable and necessary acts of power against the citizens of other nations whenever it may be necessary on the high seas with- out regard to any boundary line. Much of this confusion has arisen ud been fostered by the lack of precision in the meaning of words. The term "jurisdiction " has from the first been indifferently employed lo denote both things. It has thus become a word of ambiguous import. - [317j .it^. i'-^ r' n 26 AUGUMENT OF THE UNTTKD bTATES. ■i? I I 1 '3 Thfsu two Biibjccts may appear to have been to aomc extent con founded, or blended, in the minds of the ncgotiatoi-s of the treaty, for the fonv qui'stioHH now about to bo considered appear, at first view, to embrncc botii. The Tribunal irt called upon to determine, on the ont; Imnd, what '■■I'clitsivc jurisdiction in Bering Sea Russia has .assorted and exercised, \vi,icli may not unreasonably be viewed as referring to the exorcise of the soveitign power of legislation over that sea, tantamount to an extension of teiritorial sovereignty. '• ■ " "^ *-~' •* ' ' '•'■•'^- ?*•- '' It is also called upon to determine what exclusive right in the "seal fisheries " in Bering Sea Russia asserted and exercised prior to the cession l.> tho United States — a totally different question — although a deeisioii of it, affirming the exclusive right, might cairy 'with it, aa a consequence, the right to protect such iislieries by a reasonable exercise of nationBl power anywhere upon the seas where such exercise might be necessary. ' ■■' " " ' '•• ""^ ' ■' • '-"- ' ■ ' i'- ■■ And yet it is not probable that tho negotiators, oven if tlie two ques- tions were to them distinctly in view, really intended to assign a distinct and separate importance to the first. Tho real controversy was upon the second, and tho first was intended to be included, only so far as it niight have a bearing upon the second. This is quite manifest from the circumstauee that in neither of thp four questions is the first of the two rights or claims stated alone and apart from tho other ; and still mor*' from the language of the second question, which clearly implies that the claim of a light to exercise authority on the sea in defense of a property interest is the one pnncipally intended to be submitted. The language is as folloMS : " How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain." This language clearly shows that the Russian claims of exclusive jurisdiction designed to bo submitted to the Tribunal were such only as asserted a right to protect the sealing interest of Russia by action upon Bering Sea. And there is nothing in the diplomatic correspondence which led up to the tieaty disclosing any assertion on the part of the United States to tho effect that Russia had ever gained any right of exclusive legislation over that sea. On the conti-ary, such assertion had been emphatically disclaimed. It is by no means intended in what has been said that the question I what authority on Bering Sea, or, to use tl»e ambiguous word, what "jurisdiction" in Bering Sea, Russia had asserted and exercised in relation to her sealing interests, is unimportant. That question, althongnj [VlSj .Il'KlSDICTIONAL AND OTHKII UrOHTS OVER BERINfl SEA. t\> n no seiiso a vital oiip, lias a loaterial honriiip, and wan (ieHignod to bo embrft'-'t'd l»y the arbitration. Tho f|iH'stiun whether pi-operty rights and intenntH exist, is ono thinjf ; tlio question wliat tho nation to which they Wong may, shoit of an exercise of tho sovereign power of exclusive logis- litioii, d(» hy way of protecting thcin, is another; and both are by the tr,iy Hul)niitted to the Tribunal. Should it appear that Russia had for [ aearly ft I't'iitiiiy actually asserted and exercised an authority in Bering Ml for the purpose of jirotecting her sealing interests, and that Great Britain hud tiever resisted or disputed it, it would bo quite too late for her I sow to draw the reasonabluncsa of it iiito (juestion. A stadied effort is made in the Case of Great 13ritain to make it lippeartliat the United States have shifted their ground from time to !ime in relation to tho subject of this controversy, by first asserting :lijt Uering Sea was mare clausum; then by setting up an exclusive I jirisdictinn over an area with a radins of 100 miles around tho Pribilof lliiands; and, lastly, by abandoning both those positions, and asserting a Iproperty interest in the herds of seals. This appears from the deliberate litttement which closes tho Seventh Chapter of the Case of Great Britain, 1 1! follows : The facts stated in this chapter'show : That the original ground upon ■which the vessels seized in 1886 and hi^'i were eoudemned, was that Bering Sea was a marv clausum, an Inland sua, and as such had been conveyed, in part, by Russia to the ICiiited States. That this ground was subsequently entirely abandoned, but a claim was I'lieii made to exclusive jurisdiction over 100 miles from the coast-line of lie United States' territory. That subsequently a further claim has been set up to tho effect that the llnited States have a property in and a right of protection over fur-seals Imionterritorial waters. It will be necessary, in order to expose the error of this statement, to fietly review the several stages of the controversy, and draw attention to pet'iounds upon which the Government of the United States has taken s positions. I'tffasiii September, 1886, that tho attention of that Governmetit was Rt called by Sir L. S. Sackville-West, Her Majesty's minister at Wash- Jton, to a reported seizure in Bering Sea of three British sealing vessels ya United States cruiser. Information only i-especting the affair was 'fifst asked for, and considerable delay occurred in procuring it; but, K to September, 1887, copies of the records from the United States ■strict Court of Alaska of the Reizure and condemnation of these ^rll-5^ been furnished to the British Government. It appeared m c2 i 1 iniii .j ! 'A SO ARGU.MKNT OF THE ITNTIED HTATKrt. fi-oiii tboso tliat tlio Hoizures weru iniide in Dering Sea iit a gi'eiitt>r distance than three miles fruin the Itiiul ; and lliereupun Lord Salisbury, ii|ipui'uiitly assuming that the statutes of the United States wltiuh authurized tbi' seizures, were based upon Home supposed jurisdiction over licring Rt'u I acquired from Hussia, addrossud a note to Sir L. S. SackvillcWcut, in which he called attention to the Uussinn ukase of 1821, wliicli iiSNmeil a peculiar right in that sea, the objections of the United States unjl Qi-eat Britain to that assertion, and the treaties between those twol nations, respectively, and Russia of 1824 and 1825, and insiHtvd tlmt these documents furnished evidence conclusively showing that the soiziiieHJ were unlawful.' The United States Government did not then reply to the point tliiHl raised; but its first attitude in relation to the matter was to suggest. I>y| notes addressed to the different maritime nations, that a jwriiliar propurlA interest was involved, which might justify the United Statea (ioveinaiciitl in exercising an exertional marine jurisdiction ; but that inasmuch as t'unl race of fur-seals was of great importance to commerce and to nianicinil,! it seemed the part of wisdom for the nations to consider whether nodim concurrcc'j measures might not bo agreed to which would, at the samJ time, preserve the seals and dispose of the cause of possible controversy^ The first attitude, therefore, taken by the United States was the suggestiua of a property interest, and of an exceptional maritime right to protect itb* preventing the destruction of the seals ; hut that all nations ought tu niiit* in measures which would preserve them, and thus avoid occasioa torcoiij troversy concerning the right. On the 22d of January, 1890, Mr. Blaine, who had succeeded MiJ Bayard as Secretary of State, had occasion to make answer, in a notd to Sir Julian Pauncefote, to further complaints on the part of thJ British Government concerning the course of the United Statoi cruisers in intercepting Canadian vessels while engaged in taking furl seals in the waters of Bering Sea. In the outset of his coramunicatioi Mr. Blaine begins by pointing out that it is unnecessary to discuss siij question of exclusive jurisdiction in the United States over the waterj of that sea, because there were other grounds upon which the conrseo the United States was, in his opinion, fully justified. He thus expressej himself : In the opinion of the President, the Canadian vessels arrested anj detained in the Behring Sea were engaged in a pursuit that was in itsf ' Case of the United States, Appendix, Vol. I, p. 162. ' • ■ ; = Cu»p of the United Statw, Appendix, Vol. I, p. 168. Krt. b a greutt'i'diNtAnce lUsbury, ii]ipiirtMitly ich autliurizeil the n over Mcriiij; Suu I . Sack villt'-\V out, in 821, wliieli iisserlwll United Staten ui:d| between those two I , and inoiHtcd tlmtl iiiff that tlie Hcizuiesj ly to the iioint thin I r was to suggest, l.yl ,t a jurnliar -prapfirlA I Statea (iovcrnmentj that inasmuch as tiwl [•ce and to niankiiiil,| jnsider whether som* h would, at the samel possible controversy' ;e8 was the suggestion right to protect it by [nations ought to unit ,void occasitm tor con-j had succeeded Mi'j like answer, in a rotd on the part of thj the United Statfl Igaged in taking furl lof his corarannicatiol lessary to discuss A bates over the wateij which the course o He thus expressej , vessels arrested ad lirsmtthatvrasinitsf p. 162. , p. 168. .niRlSDTCTTONAL AND OTHKR "RIOHTa OVER BERING SEA. 31 ■ „tra bonof viotm, a pursnit which of neceBnity involves a H(>riouH antl nor- Dinent injury to the rights of thu Government and pouplo of tho Unit«.>(l iNinst the welfare of mankind." 'tis, therefore, entirely clear that Mr. Blaine improved tho first occasion j'pon which he was called upon to refer to the subject, to place the claims l«f the United States distinctly on the ground of a property interest, which Innid not bo interfered with by other nations upon the high seas, by Ipnctices which in themselves wen essentially immoral and contrary to tho l^^^nf nature.' ■ • . ■ Mr. Blaino to Sir Julian Pauncefote, Case of the United State*, Ai)pendix, Vol. 1. I 32 ARGUMENT OF THE UNITED STATES. m n I ' Tins correspoudenoo was followed by further diplomatic lommuuicalions ] looking to the establishment of regulations deiignod to restrict pelacic sealing ; and on the 22d of May, 1890, tlio Afarquis of SaliHbury addressed a note to Sir Julian Pauncefote, in the nature of an' answer to the note last above mentioned from Mr. Blaine, and it appears fi-om tliJH, veiy I clearly, that ho did not misunderstand the positions taken by Mr. Hlaine He thus expresses himself : Mr. Blaine's note defends the acts fomplained of by Tier Majesty's Government on the following ground : 1. That " the Canadian vessels arrested and detained in tlio JJeliring Sm i were engaged in a pursuit that is in itself contra honns mores- -ii imisiiit which of necessity involves a .serious and permanent injury to the rij^'htsuf the Government and people of lt -^A:.- -viva^H^f fr vjorvi^T n^i^a-iv ^ai .James 0; Cautkb. ■ Int. Law, Yol. I, pp. 269, 260. PROPERTY IN THE ALASKAN SEAL HERD. 41 3 Treaty shoulj igf Sea was uot •)i.ii. 1.. If.,.. ... ■/. .'■.■;> .' ,v< ■•p' A' f ') ..- ;.',.»„)< ,,Vr.r .-iii ... .■(,'.•■ ;• >■ ' .V'. THIRD. I. ■i.uj, ') ,. ..:..'i^. ...■•,,• • ' 1 ., ., ■:•. .u.. .'• U <'>',.' > • ■.•Hi - I. T I . . '.I . t.' "i 1' .'I, lEE PBOPERTT OF THB TTNTTBD STATES IN THE ALASKAN SEAL EEBD AND TflEIB BiaHT TO PROTECT THEIB SEALINO ZNTBBBSTB AND INDUSTBT. I.— The Peopkrty op THK United States SEAii Herd. IK THE Al.ASKAV ES 0. Cartkb. The subject which, in the order adopted by the treaty, is next to bo considered, is that of the assertion by the United States of a property interest in the Alaskan neals. Under this head there are two ques- tions, which, though each may involve, in large measare, the same con- siderations, are yet in certain respects so different as to make it neces- sary or expedient that they should be separately discussed. The first i« whether the United States have a property interest in the seals ttemselves, not only while they are upon the breeding islands, hut also while they are in the high seas. The second is whether, if they have not a clear property in the seals themselves, they have such a property interest in the industry long established and prosecuted on the Pribi- lof Islands of maintaining and propagating the herd, and appro- priating the increase to themselves for the purposes of commerce and profit, ns entitles them to extend their protection to such herd against capture while it is on the high seas, and to require and receive from other nations an acquiescence in reasonable regulations designed to afford such protection. . ... i . ., , , •- ,. .,, .>•.,■ The material difference between these questions will be perceived from n glance at the consequences which would flow from a determina- tion of each of them respectively in favor of the claims of the United States. If it were determined that the United States had the pi-operty interest which they assert only in the industry established on the shore, it might, with some show of reason, be insisted that, if the industry were not actually established, they would have no right to forbid inter- ference with the seals in the open sea ; bat wero it determined that the United States had the property interest which they assert in the seals themselves, it would follow that they would have the right at any time to take measures to establish such an industry, and to forbid any inter- 1 .. 42 AHGUMKNT OF THE UNITED STATES. t ' ' :\; ferenco with tho seals which would tend to make its establishment impos- sible or difficult. The proposition which tho undersigned will Brst lay down and endeavor to maintain is that the United States have, by reason of the iiuturu nml habits of the seals and their ownership of tho breeding grounds to wliicli the herds resort, and irrespective of the established industry above men- tioned, a property interest in those herds as well while they are in the higli seas OS npon the land. It is first to bo observed that although tho established doctrines of municipal law may bo properly invoked as affording light and informa- tion upon the subject, the question is not to be determined by those doctrines. Questions respecting property in lands, or movable things Avhicli have a fixed situa within the territorial limits of a nation arc, indeed, to be determined exclusively by the municipal law of that nation ; but the municipal law can not determine whether movable things like animals are, while they are iu the high seas, tho property of one nation as against all others. If, indeed, it is determined that sacb animals have a situs upon the land, notwithstanding their visits to, and migration in the sea, it may then bo left to the power which has dominion over such land to determine whether such animals are property ; but tbe question whether they have this situs must bo resolved by inter- national law. The position taken on the part of Great Britain is, not that the seals belong to her, but that they do not belong to any nation or to any men ; that they are res communes, or res nullius ; in other words, that they arc not the subject of property, and are consequently open to pursuit and capture on the high seas by the citizens of any nation. This position is based upon the assertion that they belong to tho class of wild animals, animals fenc naturcv, and that these are not the subject of owner- ship. On the other hand, it is insisted on the part of the United States that the terms wild and tavie, ferce and doniitce, naturou, aro not sai- ciently precise for a legal classification of animals in respect to tlic question of property ; that it is open to doubt, in many cases, whether an animal should be properly designated as wild or tame, and that the assignment of an animal to the one class rather than to the other is by no means decisive of tho question whether it is to bo regarded as pro- perty. In the view of the United States, while the words wild and tame describe sufficiently for the purposes of common speech the nature and habits of unimals, and indicate yenei-alhj whether they are or| ^i rnoPERTY IK TIIK ALASKAN SKAL HERD. 4 a blishmcnl impos- wn and endeavor if the natuiu and grounds to whicli Listry above men- ey aro in the higli ished doctrines of light and informa- erminod by those ir movable things of a nation arc. aw of that nation : ir movable things i le property of one jrminod that such their visits to, and (vhich has dominion 3 property; but tbe Resolved by intei- i, not that the seals tion or to any men; ivords, that they are pen to pursuit and ion. This position ass of wild animals, subject of owner- the United States dum, are not saffi- in respect to tiie |nany cases, whether | tame, and that the ;o the other is by no e regarded as pw- ;he words vild and speech the nature ither they are or tru not the subjects of property, yet there are many animals which lie near to the boundary imperfectly drawn by theso terms, and in respect to which the question of property can bo doterminod only lij a closer inquiry into their nature and habits, and one mure particularly guided by the cnuBiderations upon whiuh the institution of property stands. If the question wui-e asked why a tame or domestic animal should be property and a wild one not, these terms would be found to supply no reasons. The answer would be because tamo ani- hihU exhibit certain qualities, and wild ones other and different qual- ities; thus showing that the question of property depends upon tho ciiaracteristics of the animal. This view seems to be cori-ect upon its mere statement, and it will be found to be the one adopted and acted upon by the writers of recognized anthority upon the subject of property. It would be sufficient for the present purpose to refer to tho langaage of Chancellor Kent upon this point. No dissent from it will anywhere be found. He says : Animals ferce naturae, so long as they are reclaimed by the art and power of man, are also the subject of a qualified property ; but when tliey are abandoned, or escape, and return to their natural liberty and ferocity, without the animus revertendi, the property in them ceases. While this qualified property continues, it is as much under the protec- tion of law as any other property, and every invasion of it is redressed in the same manner. The difficulty of ascertaining with precision the tpplieation of the law arises from the want of some certain determinate statidard or rule by which to determine when an animal is fer(H, vel iomitos vaturce. If an animal belongs to the class of tame animals, as, for instance, to the class of horsed, sheep, or cattle, he is then a subject clearly of absolute property ; but if he belongs to the class of animals, which are wild by nature, and owe all their temporary docility to the discipline of man, such as deer, fish, and several kinds of fowl, ^' i the animal is a subject of qualified property, and which continues so long only as the tamencss and dominion remain. It is a theory of some natnralists that all animals were originally wild, and that such as aro domestic owe all their docility and all their degeneracy to the hand of man. This seems to have been the opinion of Count Buffon, and ho I says that the dog, the sheep, and the camel have degenerated from the strength, spirit, and beauty of their natural state, and that one principal I cause of their degeneracy was the pernicious influence of human power. Grotius, on the other hand, says that savage animals owe all their I nntamed ferocity not to their own natures, but to the violence of man ; lit the common law has wisely avoided all perplexing questions and refinements of this kind, and has adopted the test laid down by Pufl'en- dorf, ' by referring the question whether the animal be wild or tame to I Mr hmvledge of his habits derived from fact and experience. To this citation we may add the authority, which will not be disputed a this controversy, of two decisions of the court of common pleas in ' Law of Nature and Nations, Lib. 4, Chap. 6, •ec. 6. [317] » Kent's Com., Vol. II, p. 318. D |i 'mM^^' liiti >'J ■ r-i' f"ivi «!;! .'ji !• 44 AJ[ same beneficial The difficulty of identification may bo Buo^gested, but it does not exist, There is no comniin»ling with the Russian herd. Every fnr-soal on tho Xorthwest coast belong.i indisputably to the Alaskan herd, But if there were any such supposed diflicnlty, it would matter nothing. If a man, without authority, kills cattle wandering without guard over tho honnd- bs plains of tho interior of the United States, ho is a plain trespasser. It might be difficult for any particular owner to make out a caso of damages against him, but he would be none tho less a trespasser for that. H a man kills a reclaimed swan or goose innocently, and believing it to be wild, he is, indeed, excusable, and if there were different herds of fur-seals, some of them property and others not, it might bo difRcnlt to show that one who killed seals at sea had notice that thoy were property ; but there are no herds of fur-seals in the North Pacific which are not in the same condition with those of Alaska. It does not, therefore, appear that the diffei'ouces obsorvablo between the fur-seals and those other animals commonly designated as wild, which are held by the municipal law of all nations to bo tho subject of ownership, are material, and tho conclusion is fully justified that if the ktter are property, the former must also be property. But there is another and broader lino of inquiry, by following which all doubt upon this point maybe removed. What are the grounds^ and reasons upon which the institution of propcrijr stands ? Why is it that society chooses to award, through the instrumentality of the law, a right of property in anything ? Why is it that it makes any dis- tinction in this respect between wild and tame animals ; and why is it that, as to animals commonly designated ns wild, it pronounces some to be the subjects of property and dcTiios that qualit}' to others ? It can not be that these important but differing determinations are founded npon arbitrary reasons. Nor does tho imputation to some of these ani- mals of what is termed the animus revrrfoidi, or the fact that they tiave a habit of returning which evidences that intent,, of themselves, explain anything. They would both be wholly unimportant imless they were significant of some weighty social and economic considerations' arising out of imperious social necessities. If wo knew what tlicso reasons were, we might no longer entertain even a doubt upon the 'inestion whether the Alaskan seals ai'o tho subjects of property. If it should appear upon inquiry that every reason upon which bees, or deer, Of pigeons, or wild geese, and swans are held to be property requires 'lie same determination in respect to the Aliskan seals, the diffei*ence.s ill III: 50 ARGUMENT OF THE UNITED STATES. If ! S i4i observable between these various species of animals must be dismissed as wholly unimportant and the conclusion be unhesitatingly received that the fur-seals are the subjects of ownership. The attention of the tribunal is, therefore, invited to a somewhat careful inquiry into the original causes of tue institution of property and the principles upon which it stands ; and the counsel for the United States will be greatly disappointed if the .cesult of the investigation should fail to satisfy the Tribunal that there is a fundamental principle underlying that institution which is decisive of the main question now under discussion. That principle they conceive to be this, that when- ever any useful tcild ayiimals so far submit themselves to the control of particular men as to enable them exclusively to cultivate such animals and obtain the annual increase for the supply of human wants, and at the sanu- time to preserve the stock, they have a property in them, or, in other words, whatever may be justly regarded as the product of human art, industry, and self-denial must be assigned to those who make these exertions ns their merited reward. The inquiry thus challenged is in no sense one of abstract specula- tion, nor is it a novel one. It proceeds upon the firm basis of the facts of man's nature, the environment in which he is placed, and the social necessities which determine his action; and the pathway is illumined by the lights thrown upon it by a long line of recognized authorities. The writers upon the law of Nature and Nations, beginning with Gro- tius,' have justly conceived that no system of practical ethics would be complete which did not fully treat of the institution of property, not only in respect to nations, but also in respect to private persons. Re- cognizing the fact that a nation could not defend its possessions against other nations by an appeal to any municipal law, they have sought to find grounds for the defense of those possessions in the law of nature which must be everywhere acknowledged. It is upon the broau, general principles agreed to by these authorities that wo shall endeavor to establish the proposition above stated. i It is easier to feel than it is to precisely define the meaning of tht word property ; but as the feeling is substantially the same in all minds there is the less need of any attempt at exact definition. It is com- ' Grotius, de Jure Belli ac Pacis, Bock 2, Chap. 2 ; Puffendorf, Law of Nflture hikI | Nations, Book 4, Chap. 5. See also Blackstono's elegant chapter on " Propcrtj- General" (Couimentaries, Book 2, pp. 1, et acq.); and Locke on Civil Govemmfnt, I Chap. 6. mm PROPERTY IN THE ALASKAN SEAL HERD. 51 fflonly said to be the right to the exclusive posseBsion, use, and disposition of the thing -which is the subject of it ; but this defines rather the right upon which property rests, than property itself. The somewhat abstract definition of Savigny more precisely states what property really is. 'Property," says he, "according to its true nature, is a widening of individual power." ^ It is, as far as tangible things are concerned, an extension of the individiial to some part of the material world, so that it is affected by his personality.^ Bat whence comes the right of the individual to thus extend his power over the natural world, and what are its conditions and limita- tions? In thus speaking of rights, moral rights alone are intended, tor the law knows of no other, if, indeed, any other exist. There are no natural indefeasible rights which stand for their own reason. If rights exist, it is not for themselves alone, but because they subserve tlio happiness of mankind and the purposes for which the human race was placed upon the earth. Even the right to life, however clear in general, is not natural and indefeasible. It is held subject to the needs of mankind, and in a great number of cases may be justly taken by society. In order to ascertain the soarce and foundation of the right of property, we must look, as all moralists and jurists look, to the natnre of man and the environment in which he is placed. We find that the desire of exclusive possession is one of the original and prin- t\f&\ facts of man's nature which will and must be gratified, even though force be employed to vindicate the possession. We know, also, that man is a social animal and must live in society, and that there can not be any society Avithout order and peace. Even in savage life it is a necessity that the hunter should have the exclusive ownei-ship of the beast he has slain for food and of the weapon ho has made for the cha.se. Otherwise life itself could not be maintained. His rnde society, even, is not possible unless it fn.nishes him with some guaranty that these few possessions be secured to him. Otherwise ho is at war with hi.s species, and society is gone. The existence of property, to at least this eitent, is coeval with the existence of man. It stands upon the imperi- ' Jiirid. Relations (Lond., 1831, Rattcmiiii's Tmiir<.), j). 178. • I/ockc oxpresscs the same idcii ; " Tho fruit or venison wliieh nonriHhes the wild Indian * * # must bo his, and so his, i.e., a part of him, that another can no longer liavc any right to it," etc. (Civil Ooveriinient, Clinp. 5, § 25.) "In milking the object my own I stamped it with the mark of my own person ; whoever iitacks it attanks me ; the blow stniek it strikes me, for I am present in it. Property is ^«t the poriplierv of my person extended to thingi*." Ihering, quoted by George B. Womb, Pol. Scii'iic.' Quarterly, Vol. 1, p. flOt. .,i^^ ,^:,' ^■^iiii.#vip I VV "W^U!'- ^^-t" 'J-'»"M A i I 52 ARGUMENT OF THE UNITED STATER. oas and indisputable basis of necessity. " Neoessifcy begat property." ' Neither history, nor tradition, informs us of any people who have in- habited the earth among whom tho right of property to at least this extent was not recognized and enforced. And an interesting eontirma- tion is fonnd in the circumstance that the rude originals of tho admin- istration of justice are everywhere found in contrivances designed for punishment of theft. The circumstani-e that in tho eai'ly advances of society from savage to industrial conditions we find that in many things, especially land and the products of land, community property is found to obtain in place of individual property, does not impair in any degree the force of the views just expressed. The institution of property is in full operation, whether society itself — the artificial pei-son — asserts ownership, or per- mits its members to exercise the privilege. Wherever the supreme neces- sities of society, peace and order, are fonnd to be best subserved by owner- ship in the one form rather than in the other, the form most suitable will be adopted. Community property Avas found sufficient foi* the early stages of society, and it is the anticipation, or the dream, of many ingenioas minds that the expedient will again, in the further advance of society, be fonnd necessary. But the desire of human nature for exclusive ownership is not lim- ited to the weapons and product of the chase, as in savage society, or to the reward of a proportional share, as in early industrial communi- ties. Man wishes for more, for the sake of the comfort, power, con- sideration and influence which abundant possessions bring. He wishes to better his condition, and this is possible only by increase of posses- sions. And the improvement of society, it has been fonnd, can be effected, or best effected, only through the improvement of its individ- ual members. This desire of individual man to better his condition is imperious, and must be gratified ; and inasmuch as the gratification tends to general happiness and improvement, a moral basis is furnished for an extension of the institution of individual property. As the first necessity of the social state, peace and order, require that ownership should be enforced to at least the limited extent which savage cp.i- ditions require, so the second necessity of society, its progress and advancement — that is to say, civilization — demands that individual effort should be encouraged by offering as its reward the exclusive own- ership of everything which it can produce. In these two principal neces- ' Blackstone'g Com^ Book 2, p. 8, PROPEBTY IN THE ALASKAN SEAL HERD. 53 sof human condition, tiio peace of society, and its progress and advance • Lent in wealth and numbers, both founded upon the strongest dosii-es of man's nature, the institution of property has its foundation. There are several features of this institution which in this discussfou I sioold be well understood and carried in mind ; and, first, the extent of its operation. Manifestly this must be coextensive with the human lesires and necessities out of which it springs. Wherever there is an Uject of desire, not existing in sufficient quantity to fully satisfy the d of all. conflict for possession will arise and consequent danger to I peace, -.ociety finds its best security foi- order in extending the privi« lege of ownership to everything which can be owned. The owner may ie the state or community, as under early and rude social conditions ; tr private individuals, as civilization advances; but, in either case, I nothing is left as a subject for strife. The grounds and reasons which I Bciety, af ter the introduction of individual property, may allow as suffi- Itientfor awarding ownership to one rather than to another are various; IliDt they all depend upon some consideration of superior merit and rt. That one man has by his labor and skill formed a weapon or I I tool is instantly recognized as a sufficient ground to support his title I to it, And if he simply takes possession of some things before unappro- priated by any one, or finds property to which no other owner asserts It claim, his right, though less impressive, is still superior to that of my other. We therefore easily reach the conclusion that the necessities which demand the institution of property equally demand its extcn- aon over every object of desire as to -which conflict for possession may lirise, ' • • ' But it is not only the necessity of peace and order which requires I jat all-embracing extent of the institution of property. It is alike IJemanded by that high moral purpose already alluded to as constituting t of the foundation of the institution, namely, the improvement lot society and of the individual man. This, as has already been seen, I an be brought about only by the cultivation of the arts of industry by hMch nature is made to yield a more abundant provision for human jwants. These arts will not be practiced unless the fruits of each man's plior, whether it be the product of the field, of the workshop, or the liicrease f animals which are the subject of his care, are assured to lliini, We find, therefore, that the institution of property is so imbedded p the nature of man, that its existence is a necessary consequence |iif forces in operation wherever man is found, or wheresoever his power > 1 Si'' 1! i h • I' 54 ARGUMENT OF THE UNITED STATES. I I m n , may extend, and that the fundamental formula by which tho institntion iJ cxprPHsed is that every object of desire, of which the supply is limit vd, nmgfc bo owned. It is with this proposition that Blackstone closes his chapter upon " Property in General." " Again, there are other things in which a permanent property mayl subsist, not only as to the tempoi-ary use, but also the solid substance! and which yet would frecjucntly be found without a proprietor liad notl the wisdom of the law provided a remedy to obviate this incnnvenicnceT Such are forests and other waste grounds, which were omitted to be[ appropriated in the general distribution of lands. Such also are wrecks I estrays, and thiit species of wild animals which the arbitrary con-f stitntions of positive law have distinguished from the rest by the wclll known appellation of game. With regard to these and some othei'sj as disturbances and quarrels would frequently arise among individuals! contending about the acquisition of this species of property by fii'sti occupancy, tlie law has therefore wisely cut up the root of dissension by vesting the things themselves in the sovereign of the State, or| else in his representatives appointed and authorized by him, beiii2 usually the lords of manor.*. And thus the legislature of England \ universally promoted the grand ends of civil society, the peace uA security of individuals, by steadily pursuing that U'iae and orderly maxim of assigning to everything capable of oionership a legal and deterviinnti oioner." ' ' Sir Hi'iirv Mnino, nftor tmcing with his wonted ncutenoss tho course of the (lpvel(i]i.| ruent of the conception of property, also findH tliat it finally results in the pi'o]io8iti(m tlialf everytliing must be owned. ■' It is (inly wlien the rights of jiroperty gained a sanction from long pnicticiil inTJiJaJ bility, and when the vnst nmjority of objects of enjoyment have been subjected to \mu\i ownership, that mere possession is allowed to invest tho first possessor with doiiiiiiidi over commodities in which no prior proprietorship has been asserted. The st'iitimcnt ia tvhich this doctrine originated i.s absolutely irreconcilable with that infre(|U('ii('v anil luioertainty of pro])rietary rights which distinguish the beginning of civilization. ThJ true basis seems to he not an instinctive bias towards the institution of property, but i presumption, arising out of the long continuance of that institution, that emiilhuii ought to hare an owner. When possession is taken of a * res uullius,' thai is, ofiiB object which is not, or has never, been reduced to dominion, tho possessor is ponnittcJ to beconu" i)ro|)ri("tor from a feeling that all valuable things are naturally subjects as an exclusive enjoyment, and that in the given case there is no one to invest with the right! of propci'ty exce])t the occupant. The occupant, in short, beconu^s the owner, because nil things are jiresuuied to be .sonu-body's property, and because no one can be pointed out aJ having a better right than be to the proprietorship of this particular thing." (Ancinil Law, t!h. H, p. 219.) Lord Chancellor Chclmsfowl made tho jiroposition that everj-thing nuist be owiuhI by some one, the ground of bis decision in the House of Lords of the case of Blades "I Higg.^. (Law Journal Reports, N.8., 286, 288.) From Counncntaries on the Constitutional' Law of England. By George Bow}it| D. C. L., 2d ed. London, 18 IG, p. 427 : "in. The third primary right of the citizen is that of property, which consists iil the free use, enjoyment, and dis])osaI of all that is his, without any control or diiuil nution, save by the law of the land. The institution of property — that is to say, inl appropriation to yavliculitr jicrsons and uses of things which were given l>y <.tod t" sll mnnUind — is of natural law. The reason of this is not diflicnlt to disiover. for 111 increase of mankind must soon have rendered connnunily of good? cxceedinglv ml rnOPERTY l\ THK ALASKAN SEAL HERD. .);) d. Bv George BovfT.TJ Xothing which is not an object of human desire — that is, nothing ihiclihasnot a recognized utility — can bo tho subject of property, "for I there is no possibility of conflict for the jMssession. Property, thcre- |lore, isnot predicable of noxious reptiles, insects, or weeds, except under cial circumstances, whero they may bo kept for the purposes of I science or amusement. The supply, indeed, may be limited; bnt tho dement of utility, which excites tho conflicting desires which property ; designed to reconcile and restrain, is absent. Nor is pi-operty pro- I fable of things which, though in the highest degree useful, exist in I iexhftastible abundance and within the roach of all. Neither air nor it nor running water are the subjects of property. The supply is un- liiinited, and where there is abundance to satisfy all desires there can be no Itonflict. There is a still fai'ther qualification of the extent to which the institution I if property is operative. Manifestly, in order that a thing may be owned, I it must be suscpptible of oionerghip, that is, of exclusive appropriation to lile power of some individual. There are things of which this can not be lisserted. Useful wild animals ate the familiar instance. Although objects I tf desire and limited in supply, they are not, as a general rule, susceptible lof exclnsivo appropriation. They are not subject, otherwise than by lapture and confinement, to the constant disposition of man as he may lilioose to dispose of them. We can hold them only by keeping them in laptivity, and this we can do only in i-espect to an insignificant part. mat, in the view of the law, constitutes this susci-ptihilittj of exclusive appro- Ifnatm is an interesting and important question, which will be hereafter liliscussed in connection with the question what animals are properly to bo I denominated as wild. The importance of the conclusion reached by the foregoing reasoning hlonld be marked by deliberate restatement. The institution of property Imbraces all tangible things subject only to these three excepting con- liHtions: First, They must have that utility which makes them objects of human I desire. Second. The supply must be limited. Third, They must be susceptible of exclusive appropriation, imrement or impossible consistently with the peace of society; and, indeed, by Ibthcgreatornumberof things can not be made fully subserA-ient to the use of mankind li the most beneficial manner unless they be goTemed by the laws of exclusive appro- |Fi«tion." ■•:• 1 i ... - .. ■■■ ^-■.-..i.... -,,-. ,..-,- - - ■■ ■ n ly $' I" : f *> % rt^'' or. ARGUMENT OF THE UNITED STATES. i' . » mm ' liiiiliil I KllWi This conclusion is a dednction of moral right drawn from tlio fncts df man's nature and the environment in which ho is placed ; in other words, it ii> a (ionclusion of tlie law of nature ; but this, as has been licretdforc shown, is international law, except so far as the latter may iippeiir, from the actual practice and usages of nations, to have departed from it, or, to | speak more properly, not to have risen to it. i Turning to the actual practice of nations, that is, to the observed fact, we find that it is in precise accordance with the deductive conclusion, No tangible thing can bo pointed out, which exhibits the conditions above stated, which is not by the jurisprudence of all civilized nations pronounced to be the subject of property, and protected as such. This seems so manifest as to justify a confidence that the assertion will not be disputed. In the foi'ogoing reasoning no distinction has been observed between i ownership by private individuils under municipal law, and by natioasj under international law. There is no distinction. Nations are hut aggre. gates of individual men. They erhlbit the same ambitions, are subjett to like perils, and riust rosort for dafety and peace to similar ex- pedients. JuHf. ns r, is necc 30 rules by which property maybe acquimll and preserved is not, and can not be, drawn into question ; as the title to lanA<, wpe-l cially, is, and must be admitted, to depend entirely on the law of the nation in ThicU tliey lie, it will be necessary, in pursuing this inquiry, to examine, not simplv tlio»l principles of abstract justice which the Creator of nil things has impressed on thiM of his creature, man, and which are admitted to regulate in a great degree the rijiiW of civilized nations, whose perfect independence has been acknowledged, but those pnn-j ciples also which our own Government has adopted in the particular case, nnd gi^« as the rule of decision. "On the discovery of this immense continent, the great nations of Europe ww ^Pi propi<:rty IX the alaskan seal iiekd. 57 And, for the most part, the vast territories thus acquired were not even M!ei\, The inaritimu coasts only were explored, and title to the whole interior, stretching from ocean to ooeau, or at least to the sources of ihu rivers emptying upon the coaNtH explored, was as.icrted upon the biisis of this limited discovery. Some limitations were placed upon these vast claims resulting from conflictH in the allegations of priority ; but. for the most part, the effectiveness of first discovery in giving title to great areas which had not been even explored was recognized. If the mere willing by the first discoverer that things Nusceptiblo of ap« propriation should bo his property was held sufficient to make them so, it could only have been from a common conviction that ownership of ivery part of the earth's surface by some nation was so essential to tho jeneral peace and order, that it was expedient to recognize tho slightest moral foundation as sufficient to support a title. The principle has lieen extended to vast territories which are oven incapable of human Dtcnpation. The titles of Great Britain to her North American ten-i- tory extending to the frozen zone, and of the United States derived from Russia to tho whole territory of Alaska have never been ques- tioned. I'HK FORM OF THK INSTITUTION — COMMUNITY AND I'KIVATE PROPEKTY. But although the existence of human society involves and necessi- tates the institution of property, it does not determine the form which that institution assumes. The necessity that all things susceptible of ownership should be owned is one thing; but who the owner shall be nations of Europe »« i-igfrto ajipropriate to tliomsdvpa so itnicli of it as they could re8p^cti^■(■ly lU'qtiirp. Its vast ntciit iifrorcU'd an aniplo field to the anibitimi and onterprise of all; and tlu" cliamctcr Mil religiim of its inliabitants afforded an apology for considering them as a jieoj)!!' over j »hoiii the superior genius of Europe might claim an ascendency. The jjotentates of 'lie world foimd no difficulty in convincing themselves that they made ample eompensa- 'i™ to the inhabitants of the new, by bestowing npon them civilization and Chris- tianity, in exchange for unlimited independence. But, as they were all in ))ursuit of nearly the same object, it was necessary in order to avoid conflicting settlements, and Nnjequent war with each other, to establish a principle which all should acknow- Irfge as the law by which the right of acquisition, which they all asserted, shoidd be ffgulated as between themselves. This principle was that discovery gave title to jilif goTerruuents by whose subjects, or by wlioso authority it was made, against all I other European governiiients, which title might be consummated by possession. The jeiclusioii of all other Europeans necessarily gave to the nation making the discovery j till' sole right of acquiring the soil from the natives and establishing settlements upon j"' It was a right with which no Europeans could interfere. It was a right wliicli Nlanserted for themselves, and to the as ertion of which by others all assented." f- i* iP r I. .i ■ '1 c ! i ! ■ I ■;, 58 AHOUMKNT MF TIIK I'NITfclb STATK.S. iH aiiothor. Ah Iiuh iilruadj buuu puinlol out, tliu ubHulute iieneNgitiis of ruilu fiociuty niiiy bo mitiNtiod by inakitif^ society itself tlu> iinivtrsnl owner; wbich iti tlio comlition iictually pruNeiitod \)j houiu vciy tmly conirnunitioH ; but indiviilual ownorHliip is the condition fuiind in a|| MOcic'tii'H wbich Inivu reached any considerable degree of advanci-imut, TliiH matter of the f(irin of the iiiNtitntiou in, of coui'hc, dotcnniimd in a municipal Bocioty by itH lawn; and these are in tuin diterniinwl by its morality. Owners!. ip is awarded iu accordanue with the sunso of riffbt and fitness wiiicli pi-ovails among the members of society, It is this which determines its will, and its will is its law. In seeking for the moral grounds upon which to make its award of the rights of private ownership that wiiich is first and univorNally ac- cepted is what maybe called deseW. *^ Snmn caique /ri6were," lies as an original conception at the basis of all jurisprudence. In respect to land indeed, an original grant may be required from the community or tin sovereign ; but whatever a man produces by his labor, or saves by tlif practice of abstinence, is justly reserved for his exclusive use and benefit. This is the principle upon whicli the right of private property is by tlie great majority of jurists placed ; and it is often, somewhat incorrectly perhaps, made the foundation of the institution of property itself. In our view a distinction is observable between the institution it.self and the form which it assumes. The first springs from the necessity of peace and order, society not being j)Ossible without it ; but when private property, which is also the result of another necessity, namely, the de- mands of civilized life, becomes the fox'm which the institution us.sunies. the principle of desert comes into operation to govern the award. OWNERSUll' NOT ABSOLUTE. But what is the e^'tpp^ < f the dominion which is thus given by the law of nature to the owner of property ? This question has much im- portance in the preseiit (Uscussion and deserves a deliberate considera- tion. In the common apprehension the title of the possessor is absolute, and enables him to deal with his property as he pleases, and even, if he pleases, to destroy it. This notion, sufficiently accurate for most nf the common purposes of life, and for all controversies between man ami man, is very far from being true. No one, indeed, would assert that he had a moral right 1o waste or destroy any useful thing; but tbis limitation of power is, perhaps, commonly viewed as a mere moral or^ PltorRRTY FN TFTF, AT,ASKAN SEAL IIERI*. ft0 wligious precept, for tlio violntion of whirh man is reHponsiblo only to liin Mfikcr, and of wliicli liiiniaii law takes no notico. Tho trath is far iithiTwise. This precept is the baHis of muc)t niiuiicipal law, and has a widely-reaching operation in international jurisprudence. There are two propositions belonging to this part of our inquiry, closely connected with mcli other, to which tho attention of tho Arbitrators is particularly invited. They will bo found to have a most innportant, if not a wholly decisive, bearing upon the present controversy. First. No possessor of property, whether an individual man, or a nation, Ims an absolute title to it. His title is coupled with a trust for tho licnefit of mankind. Second. Tho title is further limited. The things themselves are not ifiven him, but only the usufruct or increase. He is but the cnstodian of tho stock, or principal thing, holding it in trust for the present and future L'C'uerations of man. The first of these propositions is stated almost in the language em- ]iloyed by ono of the highest authorities on tho law of nature and nations. Says Pufftmdorf, *' God gave the world, not to this, nor to that man, but to the human race in general." ' The bounties of nature are gifts not so much to those whose situation enables them to gather them, bat to those who need them for use. And Locke, " God gave the world 10 men in common.'" If it bo asked how this gift in common can bo leconciled with tho exclusive possession which the institution of pro- perty gives to particular nations and particular men, the answer is by the instrumentality of commerce which springs into existence with the beginnings of civilization as a part of the order of nature. Indeed it is only by means of commerce that the original common gift could have been made effectual as such. Every bounty of nature, how- ever it may be gathered by this, or that man, will eventually find its way, through the instrumentality of commerce, to those who want it for its inherent qualities. It is for these, wherever they may dwell, that it is destined. Were it not for these the bounty wonld be of little use even to those whoso situation enable;- them to control it and to gather it. But for commerce, and the ox- changes effected by it, the greatest part of the wealth of the world wonld be wasted, or unimproved.^ The Alaskan seals, for instance, Law of Nature and Nations. Book 4, Chap. 5, sec. 9. ' Ciril Government, Chap. 5, § 34. "Wherewith accords that of Libanius, God, saith he, hath not made any one part of the world th« storehouse of all his blessings, but hatli wisely distributed thrui L317] K r 51 *i » ( .ii. I (iO ATIOUMENT Ol' THR UNFTKP STATES. would be nearly valueless. A few liandreds, or thousands at tlio most, would suffice to supply all the needs of the scanty 'popnlation living on tlic islands where they are found, or along the shores of the seas thrmiofli which they pass in their migrations. Indeed, the Pribilof Islands would never have hecn inhabited, or even visited, by man except for the purpose of capturing seals in order to supply the demands of distant peoples. The great blessing to mankind at large capable of heinp afforded by this animal would have been wholly unrealized. Tlie sole condition upon which its value depends, even to those who pursue and capture it, is that they are able, by exchanging it for the products of other and distant nations, to furnish themselves with many blessings which they greatly desire. This truth that nature intends her bounties for those who need them, wherever they may dwell, may be illustrated and made more clear by inquiring upon whom the loss would fall if the gift were taken away Take, for instance, the widely used and almost necessary article of India rubber. It is produced in but few and narrowly-limited areas, and we may easily suppose that by some failure of nature, or misconduct of man, the production is arrested. A loss would, no doubt, be felt by those who had been engaged in gathering it and exchanging it for other commodities ; and a still more extensive one would fall upon the largely greater number Avhose labor was applied in manufacturing it into the vaiious forms in which it is rsed ; but the loss to both these classes would be but tempoiary. The cultivators could raise other products, and the manufacturers could employ their industry in other fields. The oppoi'tunities which nature offers for the employment of labor are infinite and inexhaustible, and the only effect of a cessation of one industry is to turn the labor devoted to it into other channels. But the loss to the consumers of the article, the loss of those who need that par- ticular thing, would be absolute and irreparable. If these views are well founded it follows that, by the law of nature, every nation, so far as it possesses the fruits of the earth in a measure more than sufficient to satisfy its own needs, is, in the truest sense, a through nil nations, that so each needing another's help he might thereby lend men to society ; unci to this end Ik' discovered unto them the art of nicrchan-iising, that so wlint- soever any nation produced might be communicated unto others." • • * So Thesotiii speaks very pertinently — ". ~ ^ ' " Wliat to one nation nature doth deny, ' ' , . That she, from others, doth by sea supply." "'"' (Gvotius ; De Juro Belli ae Paeis, Book 2, Chap. 2, § 13.) See also Phillinioiv. Inter- national Law, Vol. I, p. 261, 262. PROPERTY I\ THE ALASKAN SEAL HEBD. 61 so Phillinwiv, Inter- inutee oi the surplus foi" the benefit of tliose in other parts of tbe 'vorld who need them, and are willing to givo in exchange for them the products (if their own labor ; and the truth of this conclusion and of the views from which it is di'awn will be found fully confirmed by a glance at the approved usages of nations. It is the chai-acteristic of a trust that it is olii.jatory, and that in case of a i-efusal or neglect to perform it, such per- fnrmanoe may be compelled, or the trustee removed and a more worthy nistodian selected as the depository of the trust. It is an admitted principle of the law of nature that commerce is obligHtory upon all nations; that no nation is permitted to seclude itself from the rest of mankind and interdict all commerce with foreign nations. Temporary prohibition of commerce for special reasons of necessity are, indeed, allowed ; but they must not be made permanent.' ' The instrumentality of commerce as a part of the scheme of nature in securing to mankind in general the enjoyment of lier various gifts, in whatsoever quarter of the earth iheyinaybe found, has been pointed out by many writers upon the law of nature and nations. A few citations will bo sufficient, the views in which all concur. It will appear from those which are herein furnished — 1. That man does not begin to desire tlie benefit of the gifts to be found in other lands and in which he is entitled to share imtil he has made some advances towards ririlization, and, consequently, commerce may be said to be the offspring of civili- nation. 2. But it react* upon and greatly stimulates the cause from which it springs, so that liviliznfion may also be said to bo the fruit of commerce. 3. In its relations to civilization it is like the division of labor and has sometimes been >tylod"tiio territorial division of labor." i. Dcubtless there is a large discretion which each nation may justly exercise in respect if the conditions under which it will engage in commerce with otlier nations. But an absohite or unreasonable refusal is in clear violation of natural law. It is a denial by ilif refusing natio.i of the fundamental truth that the bounties of nature were bestowed 'i|wn mankind. From " Des Droits et dei "Devoirs de» Nations Neutres en Temps de Guerre Maritime," !'»rL, B. Haiitefeuille. Poris, IStS. Vol. I, p. 256 : "The Sovereign Master of nat\ire did not confine himself to giving a jjttrticular »i»l)osition to every man ; he also div n-sified climates and the nature of soils. To iifh country, to each region, he assigned different fruits and special productions, all "' "I'll '..>• all of wliich were susceptible of being used by man and of satisfying liis "ants or his pleasures. Almost all regions doubtless ))roduced what was indispensable It the sustenance of their inhabitants, but not one produced all tlie fruits that were iiiwsary to meet all real needs, or more particularly all conventional needs. It was, iho^foro, necessary to have recourse to other nations and to extend commerce. Man, |a'pelled bv that instinct wliich leads him to seek ))erfection. created new needs for """self a.s he made new discoveries. Ho accustomed himse'f t^ tlio use of all the iwliictions of tlie earth and of its industry, The cotton, sugar, coffee, and tobacco 't the New World have become articles of prime necessity for the Juiropean, and an "imenso trade is carried on in them. The American, in turn, can not dispense witli '"■viuied jiroductions of European manufacture. The development of commerce, that " '0 say, the satisfaction of man's instinctfl cf sociability and jcrfectibility, has greatly '"iilrihuted to connecting all the nations of tin' universe ; it lias served as a vehicle, [•^7] E 2 i -- t > f I > i: ill . « ) 1' ' )•; I iS \'ii If , or. the general law of nature; for, says Vattel, 'one counti_, abounds in corn, aiiotl. .• 11- • i:itures and cuttle, a third in timber and metals ; all tliese countries trading logetlier. agreeably to human nature, no one will be without :- U'h things as arc useful 1111(1 neeessary, and the views of nature, our ei>"iinon n.other, w.ll be fultilled. Further. "lie eomitry is titter for .some kind of ])roducts than unothci-; us for vineyards more iliaii tillage. If trade and barter take place, evoi-y nation, im the certainty of pro- iiiriiig what it wants, will employ its ii dustry and its ^lu•>lId in tluinost advantageous manlier, iiiwl mankind in genend pror,> a gainer by it. Such are the foundations of the siiurai obligation incumbent on nations reciprocally to cultivate commerce. Therefore, iTeryoup is not f)nly to join in trade as fur as it reasonably can, but eren to countenance ^iiid promote it.'" H- ddic (1 .iquiries into International Law), 2d Ed. 1851, Chap. 5, Part II, sub see. 2, ' 'i .1 ;'07l: Sill the chief source of the intercourse of nations in their individual capatity is • Vnttel, Book 1, Clisp. 8, lec. 88. \ I I s '" ' Sil a. I >i } I in 'I i 64 ARGUMENT OF THE UNITED STATES. IS a crime. And the wrong is not limited by tlio houndai'ies of nations but is inflicted upon those to whom the blessing would be useful wherever they may dwell. And those to whom the wrong is done have the right to redresD it. Let the case of the ai-ticle of India rubber be again taken for an illug. tration, and let it bo supposed that the nation which held the fields fiiim which the world obtained its chief supply should destroy its plantations and refuse to continue the cultivation, can it be doubted that other nations would, by the laAV of nature, be justified in taking possegsion by force of the territory of the i-ecieant power and establishing over It ii governmental authority wliich would assure a continuance of the cultiva- tion ? And what would this be but a removal of the unfaithful trustee, and the appointment of one who would perfoi-m the trust ? ' the exchaiij )iii'Jiodities, or natural or artificial production. Tlie ti recipro- cally advantageous for both nations. And, as it is a moral duty in individuals to pro- mote the welfare of their neighbor, it appears to be also the moral duty of a nation not to refuse commerce with other nations when that commerce is not hurtful to itself." From Kent (Commentaries on American Law. (Tho Law of Nations, Part 1.) Ed. 1866. Chap. 2, p. 117) : "As the aim of international law is the happiness and perfection of the general society of mankind, it enjoins upon every nation the punctual observance of benevo- lence and good will, as well as of justice toward its neighbors. This is equally the policy and the duty of nations. They ought to cultivate a free intercoui-so for com- mercial purposes, in order to supply each other's wants and promote each other's prosperity. The variety of climates and productions on the surface of tlie globe, and the facility of communication by means of rivers, lakes, and the ocean, invite to a libeml commerce, as agreeable to the law of nature, and extremely conducive to national amity, industry, and happiness. The numerous wants of civilized life can only be supplied by mutual exchange between nations of tho peculiar productions of each." ' Cases in which nations have supposed themselves justified in interfering witii the territory and affairs of other nations have frequently occurred. The war celebrated in Grecian history as the first Sacred War was an early and illustrative instance grow- ing out of the religious sentiment. The temple of Apollo at Delphi was tho prin- cipal shrine in the religion of Greece. It was within the territory of the state of Krissa whose people had desecrated by cultivation the surroundings of tho spot where it was situated, and by levying tolls and other exactions had obstructed the pilgrimages which the votaries of the god were wont to make. A large part of Greece arose to punisli this violation of the common right, and in a war of ten years' duration destroyed the town of Krissa, and consecrated the plain around tho temple to the service of the god by decreeing that it should forever remain unfilled and unplanted. (Grote, Histon of Greece, Lond., 1847, Vol. IV, p. 84.) China has furnished one of the few instances in moden?. times of unwillingness to engage in foreign commerce. This was not the avowed but was probably one of tho real cnuscs of the war waged against that niition br Great Britain iti 1840. s. PROPERTY IN THE ALASKA-N SEAL HERD. ^>5 lai'ies of nations, e useful wherever I have tho right to iken for an iliug. d the fields fi»ra oy its plantations abted that other ing possession by )lishing over It ii ce of tho cultiva. mfaithfal trustee, t?' n. Tlie territory of of the wants, for tho ite generally abounds idities is thu8 rccipro- in individuals to pro- iral duty of a nation ce is not hurtful to rations, Part 1.) Id. action of the geueral sbservancc of benevo- This is equally the intercouwo for com- promote each other's ICO of tho globe, and ocean, invite to a conducive to national can only be supplied each." interfering with the Tlio war celebrated itrative instance grow- Delphi was the prin- of the state of Krissa le spot where it was ho pilgrimages which •eece arose to punish duration destroyed to the service of the ted. (Grote, History of the few instances This was not the .gainst that nation by It, is, indeed, upon this ground, and this ground alone, that tho con- quest by civilized nations of countries occupied by savages has been, or can be, defended. The great nations of Europ'i took possession by force and divided among themselves the great continents of North and South America. Great Britain has incorporated into her extensive empire vast territories in India and Australia by force, and against the will of their original inhabitants. She is now, with France and Gei'- many as rivals, endeavoring to establish and extend her dominion in tho savage regions of Africa. The United States, from time to time, expel the native tribes of Indians from their homes to make room for their own people. These acts of the most civilized and Christian nations arc inexcusable I'obberies, unless they can be defended, under the law of nature, by the argument that these uncivilized countries were the gifts of nature to man, and that their inhabitants refused, or were una- ble, to perform that great trust, imposed upon all nations, to make the capabilities of the countries which they hold subservient to the needs of man. And this argument is a sufficient defense, not indeed for tho thousand excesses which have stained these conquests, but for the con- quests themselves. The second proposition above advanced, namely, that the title which nature bestows upon man to her gifts is of the tisufrurf only, is, indeed, but a corollary from that which has just been discussed, or rather a part of it, for in saying that the gift is not to this nation oi- that, but to mankind, all generations, future as well as present, are intended. The earth was designed as the permanent abode of man through ceaseless generations. Each generation, as it appears upon the scene, is entitled only to me the fair inheritance. It is against the law of natur'> that any waste should be committed to the disadvantage of the succeeding ten- ants.* The title of each generation may be described in a term familiar ' Since the power of man over things extends no further than to use them ucconl- iiigly as tliey are in their nature usable, things are not matter for consideration in law except in i-egnrd to the use or treatment of which they are capable. Hence no -'ght to things can exist beyond the right to use them according to their natuiv ; and this right is Property. No doubt a pci-son can wantonly destroy a subject of liropcrty, or treat it in ns many ways which are rather an abu.se than a u.so oi' (lie iliinjr. But such abuse is wasteful and immoral; and that it is not at the same time illegal, is simply because there arc many duties of morality which it is impossible, inoxpecUcnt, or unnecessary for the positive law to cncorjiorute or enforce. I therefore fiffine property to be the right to the exclusive use of a thing. It will, perhaps, bo objected to this that if gathering the acorns, or other fruits of llie earth, etc., makes a right to them, then any one may engros.s ns much as ho will. r m- m i?l * i * J I * 1i "J' i^5 f '''ill 66 ARGUMENT OF THt: UNITED KTATE.S. to English lawyers as limited to an estate for life ; or it may with rqual pi'opriety be said to bo cDnpled with a trust to transmit the inheritauce tu those who succeed in at least as good a condition aa it was found, reason. able use only excepted. That one generation may not only consume or desti'oy the annual increase of the products of the earth, but the stock also, thus leaving an inadequate provision for the multitude of successors which it brings into life, is a notion so repugnant to reason as scarcely to need formal refutation. The great writers upon the law of nature and nations properly content themselves with simply affirming, without laboring to establish, these self-evident truths. The obligation not to invade the stock of the provision made bv nature for the support of human life is in an especial manner imposed upon civilized societies ; for the danger proceeds almost wholly from them. It is commerce, the fruit of civilization, and which at the s >nie time extends and advances it, that subjects the production of eacli part of the globe to the demands of every other part, and thus threat- ens, unless the tendency is counteracted . by efficient husbandry, to encroach upon the sources of supply. The bai'baric man with spaist' numbers scattered over the face of the earth, with few wants, and not engaged in commerce, makes but a small demand upon the natural in- crease. He never endangers the existence of the stock, ajid neither has, nor needs, the intelligent foresight to make provision for the future. But with the advance of civilization, the increase iu population, and the multiplicali' 'I of wants, a peril of overconsumption arises, and along with it a development of that prudential wisdom which fjeeks to avert the danger. The great and principal instrumentality designed to counteract this threatening tendency is the institution of priic*t individual prtyperty, which, by holding ont to every man the promise that he shall have the exclusive possession and enjoyment of any increase in the products of nature which he may effect by his cai*e, labor, and abstinence, brings. into play the powerful motive of self-intei-est, stimulates the exertion in every direction of all his faculties, both of mind and body, and To which I answer : Not so. The same law of nature that does by this ineiins gito HB property, does also bound that property too. " Q-od has given us all things ricLly.'' (1 Tim. Ti, 17,) is the Toice of reason confirmed by inspiration. But how for Laf lie given it to UB ? To enjoy. As much as any one can make use to any advantage of life before it spoils, so much he may by his labor fix a property in. Whatever is bejond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or deitroy. (S. Mai tin Leaks, Jurid. Sec, Papers, Vol. I, p. 632.) PROPERTY IN THE ALASKAN SEAL HERD. (>7 pi'Dvision made by ial manner imposed blmost wholly from which at the b>mc' production of eaeli rt, and thus threat- ient husbandry, to ic man with sparse few wants, and not pon the natural in- stock, aiid neithei' isiou for the future. population, and the n arises, and along fjeeks to avert the to counteract this individual properly, at he shall have the in the products of abstinence, brings nulates the exertion ind and body, and en thns lends to a prodigiously increased production of the fruits of the earth. There are some provisions to this end which are beyond the pcjwer of private men to supi)ly, or for supplying which no sufficient indaccmeut can beheld out to them, inasmuch as the rewards can not be secured to them exclasively; and here the self-interest of nations supplements and cooperates with that of individuals. A large share of the legislative policy of civilized states is devoted to making provision for future generations. Taxation is sought to be limited to the annual 'ncomo of society. Permanent institutions of science are established for the purpose of acquiring a fuller knowledge of natural laws, to the end that waste may be restricted, the earth be made more fruitful, and the stock of useful animals increased. The destruction of useful wild animals is sought to be prevented by game laws, and the attempt is even made to restock the limitless areas of the seas with animal life which may be made subservient to man. The same policy is observable in the ordinary mnnitiipal law of states. Whenever the possessor of property is incapable of good husbandry, and therefore liable to waste or misapply that part of the wealth of society which is confided to him, he is removed from the custody, and a more prudent guardian substituted in his place. Infants, idiots, and insane persons are deprived of the control of their property, and the state assumes the guardianship. This policy is adopted not merely out of regard to the private interests of the present owner, but in order also to promote the permanent objects of society by protecting the interests of future generations. There are some exceptions, rather apparent than real, to the law which confines each generation to the increase or usufruct of the earth. Nature holds in .some of her storehouses the slow accumula- tions of long preceding ages, which cuu not be reproduced by the agency of man. The products of the mineral kingdom, when con- snmed, can not be restored by cultivation. But here the operation of the institution of private property is still effective, by exacting the liighest price, to limit the actual consumption to the smallest extent tiinsistent with a beneficial use. Again, it is not possible to limit the I'lnsuniption of useful wild birds to the annual increase ; for they can '"' be made the subjects of oxclusivo appi'opriation as property, and consequently can not be increased in numbers by the care and absti- I'-nce of individual mtin. The motive of stlf-intercst can not here be I brought into play. But society fetill makes the only preservative effort m 1^' 68 ARGUMENT OF THE UNITED STATES. i •, itg power by restricting consumption thx-ough the agency of game laws. So, also, in the case of fishes inhabiting fhe seas and reproducing theii' species therein. It is impossiblo to limit the extent to which they may be captured ; but here nature, as if conscious of tho inability of man to take care of the future, removes the necessity, in most cases, for such care by the enormous provision for reproduction which she makes. The possible necessity, however, or the wisdom of endeavoring to supplement the provision of nature, has already been taken notice of by man, and efforts are now in progress to prevent an apprehended destruction of the stock. The case of fishes resorting, for the purposes of reproduction, to interior waters, has, for a long time, engaged the attention of governments, and much success has followed efforts to make the annual increase adequate to human wants. bmi-ilil SUMMARY OP DOCTBINES ESTABLISHED. The foregoing discussion concerning the origin, foundation, extent, form, and limitations of the institution of property will, it is believed, be found to furnish, in addition to the doctrines of municipal law. decisive tests for the determination of the principal question, whether the United States have a property in the seal herds of Alaska ; but it may serve the purposes of convenience to present, before proceeding to apply the conclusions thus reached, a summary* of them in a concise form. First. The institution of property springs from and rests upon two prime necessities of the human race : 1. The establishment of peace and order, which is necessary to the existence of any form of society. 2. The preservation and increase of the useful pi-oducts of the cartli, in order to furnish an adequate supply for the constantly increasinir j demands of civilized society. Second. These reasons, upon which the institution of property is I founded, require that every useful thing, the supply of which is limitd, PROPERTY I\ THE ALASKAN SEAL HERD. G.) agency o£ game and which is capable of ownership, should be assigned to some legal uiul (ieterminate owner. Third. The extent of the dominion which, by the law of nature, is con- ferred npon particular nations over the things of the earth, is limited iu two ways : 1, They are not made the absolute owners. Their title is coupled writli a trust for the benefit of mankind. The human race is entitled to parti- cipate in the enjoyment. 2. As a corollary or part of the last foi-egoiiig proposition, the things I themselves are not given ; but only the increase or usufruct thereof. ' them in a concise Bsts upon two prime Is necessary IPPLICATION OP THE FOBEQOINO PRINCIPLES TO THE QUESTION OF PROPERTY IN THE AtASKAN HERD OF SEALS. In entering upon the particular discussion whether, npon the 2)rinciples I ibove established, the United States have a property interest in the seal lierd, it is obvions that we must have in mind a body of facts which have I not, as yet, been fully stated. We were obliged, indeed, while showing that the seals must be i-egarded 1 19 the sabjects of property under the settled and familiar rules of mnni- Icipallaw, to briefly point out that the question whether they were, under I that law, the subjects of property depended upon theii' nature and habits, lud not upon whether they were to be classed under one or the other of ) vague and uncertain general divisions of wild and tame ; and also that llliey had, as part of their nature and habits, all the essential qualities upon Iwliich that law had declared several other descriptions of animals com- Imonly designated as wild to be, nevertheless, the subjects of property, iBat this brief description is not sufficient for the purposes of the broader lirgument upon which we are now engaged. We should have in mind l> complete knowledge of every material fact connected with these linimals. In the foregoing discussion, which involves only the most general principles, and mceming which there is little controversy, we have avoided frequent reference to fttliorities in order not to interrupt the attention. But an examination of the authorities ^d not be omitted. To facilitate this, soipewhat copious citations are gathered and fed in the Appendix to this portion of the argument. ■;--l: illilll ^i V'<: 70 AimUMRNT OF THE UNITFD STATES. Tlic Krht Htop, tliei'ofoic, in the further progroas of our nrguinrnt must l)u to nsHt'inblo iiioro procisoly and fully our information concernini; the utility of these animals, their nature and habits, the modes b- w'liih they arc pursued and cni)tured, the danger of extormluation to whidi they are exposed, fiom what modes of eapture that danger arisen, wlietliui it is capaljlo of being averted, and by what means. W(! proceed, tliurufdiu, to place before the learned Arbitrators a concise statement of the facts I bearing upon these points. And first, concerning their uHlity. That they belong to the ckss ol I useful aniuial.s is, of cour-se, a conceded fact; but in this general a^imi^• | sion the extent of the utility, the magnitude of the blessing which tlicv bring to man, may not bo adequately estimated. They are useful furl food, and constitute a considerable part of tbe provision for this pur- pose which is availal)lo to many of the native tribes of Indians whul inhabit the coast along which their migrations extend. They are abso- lutely necessary for this purpose to the small native population of the I Pribilof Islands. These could not subsist if this provision were lost,{ They are useful for the oil which they afford; but their principal ntilityl consists in their skins, which afford clothing, not only to the native! tribes above mentioned, but, when prepared by the skill which is nuwl employed upon them, furnish a garment almost unequaled for its com- foi't, durability, and beauty. There is, indeed, no part of the animal wliict does not subserve .some human want. The eagei-ness with which! it is sought, and the high price Avhich the skins command in the maiketsj of the world, are further proof of its exceeding utility. Its prodigiousi numbers, even after the havoc which has been wrought by the i-elentlessl war made upon it by man, exhibit the magnitude of the value of thel species ; and if we adil to these numbers, as we justly may, the increase! which would come if its former places of resort, which have been laidwnstel by destructive pursuit, should bo again, by careful and protected cultiva-l tion, repeopled, the annual supply would exceed the present yield perhapsi tenfold. Leaving out of view hei-e the unlawful chai'acter of the employment^ we may say that there is a further utility in the employment given td human labor in the pui'suit and capture of the animal and the nianiiH facture of the skins. There are probably two thousand persons ini-| ployed for a large part of the year in the taking of seals at sea, and i large number in the building of the vessels and making of the imple-j ments required in that occupation. A much Inrger number, princip m rp.ild there bi' I any corresponding f^ain. In tho ca.se of some useful wild animals, the American bison, for instance, which inhabit the earth atid subsist upon I its fruits, and which are necessarily exterminated by tho occupation of the wild regions over which they roam, there is a more than compen- sating advantage in the more numerous herds of tamed animals which I subsist upon the same food. But the seal occupies no soil which would otherwise be useful. Tho food upon which it subsists conies from the illimitable storehouses of the seas, and could not otherwise be made pro- ductive of any distinct utility. Wc arc next to take into more particular consideration tho nature I ni habits of the seal, and the other circumstances above adverted to which enable us to measure the perils to which the existence of the race is exposed, and the means by which these may be best counter- acted, It is here that we encounter, for the first time, any mateiial contradiction and dispute in the evidence; and, inasmuch as it is in a %h degree important that we should ascertain the precise truth upon these points, it should be clearly understood Avhat evidence is really [Wore the arbitrators, and what measure of credit and weight should allowed to the different classes of evidence. Any critical and de- I tailed discussion of the evidence, if incorporated into the body of tbo »r?ameiit, might involve intenniptions too much protrncted in the chaii ;' reasoning,', and will, for that reason, be separately presented in appendices ; hot some general notion should be had at the outset of the relative import- I »nce of the various pieces of evidence. First. There is a large body of common knowledge respecting the I natural history of animals and the facts of animal life, which all intel- ■ent and well educated minds are presumed to possess. In the ab- |s«iice of thotte facilities, such as municipal tribunals afford for the pro- fjl S '■,■ I: b > ' m i.'i 7*J ARO! MKN'T OF THF- I^NMTKP STATES. duction and exatiiination of witnoHscs, it is HoppoNod by the uiidiii'sijfncd that this common knowledge may, with largo latitude, bo deemed to be already poHsessed by the learned ArbitratorH, and to bo available in thi' discussion and decision of the controvorsy. Second. In the next place this knowledge may be supplemented by an appeal to the authoritative writings of scientific and learned men, and also to the writings of trustworthy historians and of actual observers of the foots which they I'olatc. Third. The reports, both jf)int and separate, of the Commissioni'is appointed in pai'suancc of tlie ninth article of the Treaty, are, by the terms of the Treaty, viadr evidence, and were undoubtedly contemplated us likely to furnish most important and trustworthy information. Fourth. The testimony of ordinary witnesses, actual observers of the facts to which they testify. This is contained in ea; parte depositions, Imt must, notwithstanding, be received as competent, llo mode having been provided by which witnesses could bo subjected to cross-examination, these depositions must be accepted as belonging to the class of best obtain- able evidence. The necessity of caution and scrutiny in the u of it is manifest ; but it may be found to be of great value, dependii in the number of concuriing voices, and the degree of intelligence ui... needom from bias which may be exhibited. Concerning the i-eports of the Commissioners, some observations aiv appropi'iate in this place. Their duties were defined in concise but very clear language in the ninth article of the Treaty, as follows : £ach Government shall appoint two Commissioners to investigate, con- jointly with the Commissioners of the other Government, all the facts having relation to seal life in Bering Sea, and the measures necessary for its proper protection and preservation. The four Commissioners shall, so far as they may be able to agree, make a joint report to each of the two Governments, and they shall also repoii, either jointly or severally, to each Government on any points upon which they may be unable to agree. They found themselves unable to agree, except xipon a very few points, the most important of which are expressed in the following language : 5. We are in thorough agreement that, for industrial as well as for other obvious reasons, it is incumbent upon all nations, and particularly upon those having direct commercial interests in fur-seals, to provide for tneir protection and presei*vation. * * * 7. We find that since the Alaska purchase a marked diminution in the number of seals on and habitually resorting to the Pribilof Islands ha.« taken place ; that it has been cumulative in effect, and, that it is the result of excessive killing by man.^ ' Case of the United States, p. 309. IMiOlMItTV IN TriK ALASKAN SKAL IIRHK. 73 Tlii'sf gentlemen weit-, sorno of thfiii iil loiisf, iiiini omiiient in the world of Hcienci", and acknowledged experts upon tlio subject committed Id tht'in for examination. The langungo of the treaty simply called for their opinions and advice upon a question mainly scientific. What was the reason which prevented them from coming to an agreement? Wa8 it that the question was a difficnlt and doubtful one upon which men of science might well differ ? It would sceni not. Tt is described in the joint report as being " coTisiderablo difference of opinion on certain fundamental propositions." What it really was appears from tte Hcparato Report of the Commissioners of the United States. • ronceived, as is therein stated by them, that the only subject which they were to consider was the facta relating to seal life in the Bering Sea, and what measures were necessary to secure its preser- I lation. If there were any question of property, or international right, M political expediency, involved, it was, presumably, to be determined bj others. They had no qualifications for such a task, and were not called upon to perform it. But the Commissioners '>i Great Britain took a different view. In that view the question of the respective [lational rights of Great Britain and the United States was one of "fundamental importance," and no measures were entitled to consider- lation which denied or ignored the supposed right of subjects of Great Britain to carry on pelagic sealing. Their understanding of the ques- \(m upon which they were to give an opinion was not simply what I measures were necessary to preserve the seals from extermination but Iwhat were the measures most effective to that end which conld be llevised consistently with a supposed right on the part of nations generally lo carry on pelagic sealing. It is not surprising that no agreement could p reached. There was a radical difference of opinion between the Com- liiissioners in respect to their functions. According to the views of the uited States Commissioners, a question mainly scientific was sub- mitted to them; but their associates on the part of Great Britain t that legal and political questions were also submitted, or if lot submitted, that they were bound to act upon the view that the Nge of their scientific inquiry was bounded and limited by assnmp- pons which they were required to make respecting international rights ; I other Avords, their functions were not those of scientific seekers for pf truth, but diplomatic agents, intrusted with national interests, and prged with the duty of making the best agreement they could con- JBlently with those interests. ' Ibid., pp. 316-318. l< 'Ih ! ! 1^ t' i'j ^t 74 AllGUAIENT OF TlllO UXfTliD STATES. It seems very clear that tins i'onc'ej)tion of their powers and fnnutioiis was wholly erroneous. There were differences between flrcat Britain and the United States respecting the subject of pelagic seal hunting; but both nations wen- agreed that it was extremely desirable that thp capture of seals should be so regulated, if possible, as to prevent the extermination of tlie specif. It was extremely desii'ablo to Ixith parties to know one thing, and that was, whether any, and if any, what measures wev c necessary in order to prevent this threatened extermination. This was a mainly sc'entific question; but whether tlu' measures which might be found to be thus necessary could bo acceded to by both parties to the controversy was quite another question, the decision of which was lodged with the political representatives of tlic respective governments. J*^ they should bo prepared to accede to them, all difficulty would be removed. If they should not be able to agree, n tribunal was provided with power to determine what should he done, and the reports o- the Commissioners were to be laid before it for its instruction. Such being the view which the Commissioners of Greai; Britain took I of their own f unctiouy, their report should be i-egarded as partaking of the same character, and such it appears to be upon inspection. There is in no part of ?.i any purpose discernible to discover and reveal tlici true cause which is operating to diminish the numbers of the far-seal, and to indicate tlie remedy, if any, which science points out. It isap- ])!irent throughout the report that its authors conceived themselves lo| be charyed tcit/i the defense of the Canadian interest in ])elagic scaling: and it consequently openly exhibits the character of a labored apolosyj for that interest, pai-ticularly designed to minimize iv... destructive tend- ency, and to oupport a claim for its continued prosecution. This beiiifrj its distinguishing feature, It is, with great respect, submitted that anyj weight to be allowed lo it as evidence should be confined to tlio ,<:'i/- )iients of fads which fell under the observation of its autliors; tb.ill these should be regarded as the utterances of nnimpoachfible ^Yitnesscsj of the highest character, testifying, however, under a strong bins; iindl that the opinions and reasonings set ftn'th in it should be treated ffi!li| the attention which is usually accorded to the arguments of counsel, bntj as having no value whatever as evidence. In +bu8 pointing out the geueml character of the Report of the Com- missioners of Great Britain, no reflection is interded upon it.s auth' Similar obRcrvatit)ns would be appllcabie to the Report of the IIiiiti'J| rilOl'KRTY IN THE ALASKAN SKAL HKRD. 75 ruvs and fmiL'tions sen Great Tlrltaiu asic seal liuntiiig; desirable that tho as to prevent the desirable to botli any, and if any, it this tlircateneil ; but whether tlie y could be acceded other question, tlie »resentatives of tlic to accede to them, be able to agroo, ;i it should be dooe, lid before it for its Great Britain took ■dcd as partaking of inspection. There over and reveal tlici bers of the far-seal, loints out. It is tip- eived themselves to I ; in ])elagic scaling: of a labored apoloiry i... destrui!tive tend- ccution, ThisbciuL'l submitted that aiijj intinod to th(3 f^ fur-senlt <»f tropic*! and warm teiuperato latitudet do ""* I uftigi«t«. 'm»m ivn passes of the : -with those of the ,r. In summer the interval of several from the Pribilof ■action, while thoHe Siberian and Japan jeing separated in jrds is in obedience n definite routes in I to hrred. Were it bility of species, for ic conditions wonW Jly from that of tho ly distinguished by commanding mucli ;s. not known ix) mnge i and yonng appear ifornia. Returning, )f Oregon, Washing- March, occuwing at ka coast northward | n June, traverse the ' once to the Pribilof j icK earlier, the first ley at once land and j ival of the females. |ar which t" I'emains 1 lever leaving for a ! Id nor water. Both es (called cows) tlie n the rookeries an! wounded. AH the \e earlv in May, and end of May or first Fovember, but many [February. Ijon appear in large Elaces on the rook- [month, the precise Int the old bulls in Iplete early in July, It is well known to hd, or membors of other Imotic comlitioiii or the the home of a specie^ throughout the rm. Jthat the northern fur- |p»rBt« latitude* J« "'^ FROPERTY r\ THE AJ.A.SKAN SEAL HERD. 77 Ltffhich time tho breeding rookeries attain their maximum size and com- iMctness. ... ' . j 8. The cows give birth to their young soon after taking their places on ;lie harems, in the latter part of June and in July, but a few are delayed Ijntil August. The period of gestation is between eleven and twelve I months. 9. A single young is born in each instance. The young at birth are I iboat equally divided as to sex. The act of imrsing is pei'formed on land, ncvei- in the water. It is Isecessary, therefore, for the cows to remain at the islands until the young Ibe weaned, which is not until they are four or five months old. Each liother knows her own pup, and will not permit any other to nurse. This lii the reason so many thousand pups starve to death on the rookeries Itkn their mothers are killed at .sea We have repeatedly seen Itiirsing cows come out of the water and search for their young, o:ten liravelling considerable distances and visiting group after group of pups l*fore finding their own. On reaching an assemblage of pups, some of liliicli 10 awake and others asleep, she rapidly moves about among them, Qi; iit each, and thfsn gallops off to the next. Those that are awake Itlvance toward licr, with the evident purpose of uuivsing, but she repels I'liem with a snarl and passes on. When she hncis her own, she fondles it linioment, turns partly over on her side so as to present her nipples, and it Ipmptly begins to suck. In one instance we saw a mother carry her pup Ikk a distance of 15 meters (50 feet) before allowing it to nurse. It is liid that the cows sometimes i-ecognize their young by their cry, a sort of \m. 11. Soon after birth the pups movo away from the harems and huddle lusether in small groups, called " pods," along the borders of the breeding liwkcries and at some distance from the water. The small groups gradu- Jillyanite to form larger groups, which move slowly down to tho water's fe, When six or eight weeks old the pups begin to learn to swim. Not Ifliiyare the young not born at sea, but if soon after birtli they are waslied lito the sea they are drowned. 12. The fur-seal is polygamous, and the male is ai a <*st five times as lkrjea.sthe female. As a rule each male serves about fifteen or twenty IfDiales, but in some cases as many as fifty or more. I'i. The act of copulation takes place on land, and lasts from five to tfu Itimites. Most of the cows arc served by the middle of July, or soon aftt;r eWrthof their pups. They then take the water, and come and go for [tod while nursing. U, Many young bulls succeed in securing a few cows behind or away lomthc breeding harems, particularly late in the season (after the miadle ifJuly, at which time the regular harems begin to break up). It is almost rtain that many, if not most, of the young cows are served for the first « by these yoimg bulls, either on the hauling gi-ounds or along the |»«er front, i These bulls may be distinguished at a glance from those on the regular pms by the circumstance that tliey are fat and in excellent condition, pliile those that have fasted for three months on the breeding rookeries are Kit emaciated and exhausted. The young bulls, even when they have kceeded in capturing a number of cows, can be driven from their stands FJili little difficulty, while (as is well known) the old bulls on the harems pdie in their ti-acks rather than leave. I lo. The cows are believed to take the bull first when two years old, and Hiver their first pup when three years old. Bulls first take stands on the breeding rookeries when six or seven lii. '3171 f 'J * 'U ] y 1 ,u i' < 1 1 9i.9l m '' ^^S^D iMi i ) 78 ARGUMENT OF THK UNITED STATKS, years old. Before tliis they are not powerful onougli to fjt^lu the oldei' bulls for positions on the harems. 17. Cows, when nursing, regularly travel long distances to feed. Thev arc frequently found 100 or loU miles from the islands, and sometimes at gi'eater distances. 18. The food of the f ur-seal consists of fish, squids, crustaceans, and! probably other forms of marine life also. (Sec Appendix E.) 19. The great majority of cows, pups, and such of the breeding bulls m have not already gone, leave the islands about the middle of November, the date varying considerably v-ith the season. 20. Part of the nonbreeding male seals (hoUuschickie), together with few old bulls, remain until January, and in rare instances until Februan-j or even later. ■21. The fur-seal as a species is present at the Pribilof Islands eight oi nine months of the year, or from two-thiids to three-fourths of the tiniei and in mild winters sometimes during thr entire year. The breeding b arrive earliest and remain continuously on the islands about fou- montlisi the breeding cows i-emain a jout six months, and pai't of the nonbreedin| male seals about eight or nine months, and sometimes throughout the entii year. 22. During the northward migration, as haa been stated, the last of I body or herd of fur- seals leave the North Pacific and enter Bering ^ in the latter part of June. A few scattered individuals, however, a: seen during the summer at various points along the Northwest Coast these are probably seals that were sc badly wounded by pelagic seaiei that they could not travel with the rest of the herd to the Priuil Islands. It has been alleged that young fur-seals have been found early summer on several occasions along the coasts of British Colnmbi and southeastern Alaska. While no authentic case of the kind La; coi to our notice, it would be expected tiom the large number of cows are wounded each winter and spring along these coasts and are tlierel rendered unable to reach the breeding rookeries and must perforce gi' birth to their young — perhajis prematurely — wherever they may be the time. 23. The reason the northern fur-seal inhabits the Pribiloi Islands to tl exclusion of all other islands and coasts is that it here finds the climal and physical conditions necessary to its life wants. This species rpqiii a uniformly low temperature and overcast sky and a foggy atmosphere prevent the sun's rays from injuring it during the long summer season wk it remains upon the rookeries. It requires also rocky beaches on which bring forth its young. No islands to the northward or southward of PAbilof Island.s, with tin- possible exception of limited areas on the Aleuti chain, are known to possess the requisite combination of climate ai physical conditions. All statements to the effect that fur-seals of this species formerly bied the coasts and islands of California and ^Mexico are erroneous, the remaining there belonging to widely different species. In the general discussion of the question submitted to the Comi sion it will bu convenient to consider tlic subject undei- three liei namely : ... Conditions of seal life in the region under consideration at the pn' time. (James, the operation of which lead to existing conditions. Remedies, which if applied would result in the restoration of seal li'i its noi'mal state, and to its continued preservation in that state. i.>p, iDllih lp"il m PKOPERTY IN THE ALASKAN SEAL HERD. 7!) 'li to iight the olden We make no apology for adopting these statements of the United States I (ommissioners in their own language. The fp.cts could hardly be more I precisely expressed, and it is believed that every part of the statement Uiil be accepted by the Tribunal as true. There is, indeed, but little to If found even in the report of the Commisgionoi's of Great Britain in ;lie way of direct contradiction. In order, howevei", that the Arbitrators be facilitated in the vei'ification of any facts as to which they may I le iiuloubt, a brief discussion of the facts as to which any question has I ten made in the Report of the British Commissiouera will bo found in |part Sixth of this Argument (pp. 228-313). There are certain material propositions of fact which are not wholly limbraced in the above quoted extract from the Report of the Commis- hionei's of the United States, although they are substantially contained lllcreir, which deserve formal and separate statement. First. In addition to the climatic and physical conditions above onume- Inted as necessary to render any place suitable for a breeding ground for lllie seals, exemption from hostile attack or molestation by man, or other lleirestrial enemies, should be included. The defenceless condition of Itkese animals upon the land renders this security indisj)ensable. If no Iterrestrial spot could be found possessing tho favorable climatic and Ifhvsieal requii-ements above mentioned, and Avhich was not at the same im e.xempt from the unregulated and indiscriminate hostility of man, liie race would speedily pass away. •■ Second. Tho mere presence of man upon the breeding places does not rfpil the seals, nor operate unfavorably upon the work of reproduction. lOn tho contrary, presence and the protection which he alone is capable of ifordiiig, by keeping off marauders, arc absolutely necessary to the eservatiou of the spe<;ies in any considerable number.s. isideration at the pH Liird. if man invites the seals to come upon their chosen resorts, p^l;lins from .slaughtering th(!ia as they arrive, and cherishes the breeding pimnls during their sojourn, they will as confidingly submit themselves to rpiwcr as domestic animals .-ire wont to do. It then becomes entirely racticaMc to select and separate from the herd for slaughter such a Imnlior of iionbrccding aninuds as maybe safely taken without encroaching P"ii tbi' pt'rniaiient btock. .^ L !■'. i h:i! "^TW*p^t "Vl'-t 'f I t'-i I 'll'' liflili: HM. ao ABGUMENT OF THE UNITED STATES. Fourth. If the herd were exempt from any depredation by man, its! nambers would I'cach a point of equilibrium at which the deficiency ot'l food, or other permanent conditions, would prevent a further incrense. At this point, the animal being of a polygamous nature, an anuaal diaftj from nonbreeding males might be made by man of 100,000 — perhaps al larger numbei- — without causing any appreciable permanent diminution ot| the herd, Fiii !» Omitting from view, as being inconsiderable, such killing of seals! as is carried on by Indians in small boats from the shore, there are two! forms of capture at present pursued : That caiiied on under the authorityj of the United States upon the Pribilof Islands, and that carried on atstaj by vessels with boats and other appliances. Sixth. The killing at the I'ribilof Islands if conlineii, as is ciitirelv practicable, to a properly restricted num])er of noii-brecdiug males, audi if pelagic sealing is prohibited, does not involve any Jnuger of thol extermination of the herd, or of appreciable diminution in its nornmll numbers. It is far less expensive than any other mode of slaujrhter,! and furnishes the skins to the markets of the world in the best condition. The killing at these islands, since the occupation by the Unitcfl States,! has been I'estricted in the manner above indicated. It has been tliel constant endeavor of the United States to carefully cherish the seals! and to make no draft except from the normal and regular increase of! the herd. If there has at any time been any failure in carrying (iiitj such intention, it has been from some failure to carry out instructions, or! want of knowledge respecting the condition of the herd. The United States are under the unopposed influence of the strongest motive, that of self-interest, to so deal with the herd as to maintain its numbers at tliej highest possible point. The annual draft made at the islands since thel occupation of the United States has been until a recent period aboiitj 100,000. This draft would be in no way excessive wei'e it the only onel made upon the herd by man, Seventh. Pelagic sealing has three insepai-able incidents : (1) The killing can not be confined to males ; and such aio the jfieateij facilities for taking females that they comprise three-fourtha of the whole! catch :es. ■ datiou by man. its! li tlio deficiency ofl u further increase, re, ail annual ilraftl 100,000— perhaps a| [vncnt diminution o(| ^uch killing of sealsj shore, there are t\vi)| under the authorityj hat carried on at sea I ilined, iis is ciilivt'lyl breeding males, ami any danger of tliuj ution in its normall mode of slaufjliter, 1 the best condition,! ' the United States,! d. It has hoeii tliej [y cherish tlio sealsj regular increase ofl TO in carrying out! out instructions, or herd. The Unitedj ■est motive, that nf I its numbers at tbej ;lie islands since the I •ecent period abontj kvere it the only one I ^nts : such are tlie greater I Jourths of the whole! PROPERTY IN THE ALASK.vN SEAL HERD. 81 (2) Many seals are killed, or fatally wounded, which are uot recovered. At least one-fourth as many as are recovered are thus lost. (.S) A large pi-oportion of the females killed are either heavy with young, or have nursing pups on the shore. The evidence upon these points is fully discussed in Appendix. , . - ■ ',.■.. Eighth. Pelagic sealing is, therefore, by its nature, destructive of the sloch. It can not be carried on at all without encroaching pro tanto upon the normal numbers of the herd, and, if prosecuted to any con- siderable extent, Avill lead to such an extermination as will render the seal no longer a source of utility to man. Returning to the main proposition hereinbefoie established, that some legal and determinate owner must be assi^-ned to all tangible tilings which are (1) objects of desire, and (2) Hinited in supply, and (3) of ownership, the question is, do the Alaskan fur-neals exhibit three essential conditions of property ? Respecting the first two, no discussion is needed. That this animal is in the highest degree useful to man, and an object of eager human desire, is not questioxjed, and this eaniest controver.sy is abuixdant proof of it. That the supply is limited and in danger of being nit off by the depredations of man is agreed to by the parties.' Whatevei' difference there may be, must and does arise upon the question whether the animal is susceptible of "mefshij). Uoubt and difference are indeed possible here, and the first step in the effoi't to remove them should be to have a clear undoi'stand- ing of the meaning of the term, S2.J'I The ratif^e of thought by which the rights nf ownorahip nro liniit«i| to a clear pliysical possession id charactoristic of the barbaric ago. The Hrst advauoes beyond it are promoted and accompanied by the he^n. ninga of the conception of ownership as distinct from pnssesstcu, and the full development of that conception is the condition and aocouipani. menfc of the advanced stages of civiliaation. Its final expi-eHsion is in the main proposition which stands at the basis of our argument, and was laid down at the beginning, namely, that every useful thing the supply of which is limited should be the property of a determinate owner, provided it is susoeptiblo of exclusive appropriation. With those things which are capable of actual possession at all times there is no diflSeulty. The right of pmperty once established by possession continues, but in the case of those things not thus capable the law (liflli'ult to iiml now uuiulmbil^d latulx; ami on Iho other hiuul continued kabitntiun ul' the same pliicc engenderoil ii too nipid consumption of the natural fruits of tlie euiih for thcni to kuIIIco for the subsistence of nil the inhabitiints and of their flocks, witlioul clumping lociilit v, or witliout providing therefor bj- cultivation in a coustnnt and ri-gulur niunncr. "Thus agriculture was tiu' naturiil result of the incwuse of the huniiin Hpmcj; agriculture in turn favored ))opnlation, and rendered necessarj the establidlinient nf perniani>nt ))roi)eHy. For wlio would give himself the trouble to hibor and to sow, it ho liad not tlie certainty of reaping ;■' "The fiehl that I liave cleared and sown shoidd belong to me ul least until 1 lunr gathered the fruits that my labor has produced. I have the right to employ furci' to repulse the unjust ))erson who woulil wish to dispossess nie of it and to drive away liini who should have seized it during my absciyje. 1 am regarded as continuing to oti'up^ the lield fnnn the first tilth to the harvest, though, in the interval, I do aot perform each moment exterior octs of occupation or of possession, because one cannot supposo that I have cleared, cultivated, and sown without intention to reap. " Sec. 69. This habitual occupation, which i-esults from cultivation, preserves thi'ii- fore the right of preference which I had acquired by first occupation. It is this Imbitiiul occupation which civil law (If droit cicil) extended and applied as a means of preserviuj; ])osse8sion, in establishing as a maxim that possession is preserrcd by sole iiitciUiun. iiiido animo. " Cultivation foruiK a stronger aiul more lasting tic than single occupation ; it givet a perfect right to the harvest. But how maintain a right (droit) other than by douhtt'ul contest before the foundation of the civil state P "Skc. 70. Moreover the right which cultivation gives and the effects of oceujwtion which are derived therefi-om cease with the harvest if there are no new acts of ooltivu- tion J for nothing would further indicate an intention to occupy. The field whiili would cease to be cultivated would again become vacant and subject to the right of tin' limt occupant. "Agriculture alone, therefore, was not sutQcient to establish })ermanenfc propeHy ; iimt since as before the invention and the usage of agriculture, property was acqtiired l>.v occupation, was preserved by continued or habitual possession, and was lost with possession. This principle is still followed in regard to things whieh liave remained in the primitirp ^tato or negative community, such as savage animals. " Sec. 71. In order to give to property a nature of stability whieh we obseiveil iu PROPEftTy IN THE ALASKAN SEAL HERD. 85 does not lend its aid to reint'ort'O tlio ian)orfoct poMBeasiou nulcNN tiiu greut purposcH of liunian soi'ioty require it. • That it will lend its aid to the utmost extent whon ncceHsnry in order 10 iittain its own jyioftt pnrposeM is iiuido manifest by the tendency of tlie iidvaneing eivili/ation of the present a^^e to award a right of property in the products of the mind, which are wholly intangible and not the Mil)ject of posses-iion in any form, and to extend the right, not only by iiiunieipal law throughout the territories of particular states, but beyond their boundaries by the means of an international recognition. This right, fully defended by natural law, and long established in iwpcot of useful inventions in the arts, has been for years pressing for recognition in respect to all the products of the mind and throughout the world. Its inherent moral force has secured a certain measure of obodionoe without the aid which is furnished by judicial tribunals, and iiieh we obseiTeil iu It to-(liiy, jioHitivo lawH and iiiu(5i»l mtos to exei'iitc tlii'iii wore necewnvj" i in other wohIh, the civil state wns required, "The increase of tlie liuiimn 8))eeies Imd reiidcri'd uKriculture iiccessarv ; the neeil liMissiire to tlio eiiltivator tho fniits of his labor iiinde tVlt the necesMity of jienimneiit |iro|uiHv and of laws to ])rotet't them. Thus, it is to ]>roi)erty that wo owe tlie fouuda- I ion of tile eivil state. Without the tie of property it would never have been pos.-iiblo to subjeet man to the Malutary yoke of the law ; nntl without permanent property tho I'srtli would have eontinued to renuiin a va.st forest. "Lot UH say, therefore, with tho most exaot writers, that if transient ownership or the right (jf prof(!rcnco with oceupation g\\es, is anterior to tho foundation of eivil soeiety iwiiianent ownership, as we know it to-day, is tho work of eivil law. "It is civil law which has ostablishod as a maxim that oneo acquired property is never \oA without the aet of the owner, and that it is preserved even after the owner hn» lost possession or detention of the thinjt, and when it is in the hands of a tliird party, " Thus property and possession, wliieh in the primitive state wore confounded, became bv the eivil law two distinct and independent things; two things, which, according to tlie language of the laws, have nothing in common between them. Property is a right II legal attribute ; possession is a fact. "It is scon by this what prodigious changes have been wrought in property, and how luiu'li civil laws have changed its nature. " Sei'. 72. Tins change was effected by means of real action that tho laws granted against the possessor whoever he might be, to compel him to surrender the thing to the owner who had lost possession thereof. This action was granted to the owner not alone against the possessor in bad faith, but also against- tho possessor in good faith, 10 whom the thing had come without fraud or without violence, without his being lognizant of the owner's rights, and even though ho had acquired it from a third party by virtue of n legal title. "Sec. 7H. Property was, therefore, conaidered a moral quality inherent in the tiling, as a roiil tie which binds it to the owner, and which can not be severed without an aft of his. "This right of reclaiming a thing in whatever hands it is found is that which foims the principal and distinctive characteristic of property in the civil state." (Toullier French Civil Law, Paris, 1842. 5th ed., vol. 3, tit. 2, eh. 1.) ft 11 ? ii-- lit ' ''' i, 1^:!? :ii : U 86, AKdUMENT OK THE TNITED bTATEC. itH complete eHtahliNlinient hy tlio iiiNtriiiuetilality of formal iiitei'iiatioiml lopyrijflit lawH is impatiently awaited. ThoMG considerations lead up to tlie partiiiular problem upon which wu are onjrajjfed, namely, what is capalnlihj of oirnfmhip, that is to say, under what oireunistaneeH, and to what extent, will and does society step in and aid the injinnily of individual powr by stamping the character of oiniemliip npon things which avo out of the actual possession and away from the presence of tho owner? Tlu; general answer is obvious; it will do this whenever soiual necessities i-equire, and to the extent to which thoy require it. And this answer is b(!sfc justiticd by pointing out what society, through the instrumentality of the law, universally docs. We may first look to tho instant-e of land. In reHj)ect to the earth itself, society will recognize no title which is not directly, or indirectly, acquired from itself. No man is permitted to assert in respect to uninhabited countries, or countries inhabited only by savagen, a private title. JJut nations may assert a title thereto, although there is a limit to such assertion. No nation can assert an ownership over such lands to an extent greater than it can reasonably occupy and improve. The limit is found in that principle of the law of nature which declares that tliu earth was made for nuiiikiiid, and in order to enable the human race to carry out its destiny, and that to this end civilized nations may supplant barbarous ones ; but that every nStion in thus appropriating to itself the waste places of the earth, must not take from others what it can not itself improve and apply to the gi-eat destiny for which in the order of nature it has been given. In respect to individual ownership of lands, the state will recognizi' and maintain private titles to such lands as it choose.^ to give. Sonic- times, as we have already shown, in early and rude social conditions, it prefers to give nothing, but to retain the ownership in itself. In general, however, civilized societies permit and encourage the acquisition of lands by individuals and place no limits npon the extent of acquisition. Society acts upon the assumption, for tho most part un- doubtedly correct, that under individual ownership its territories will be best improved and turned to the purposes intended by nature. That tlio underlying motive upon which society acts is the intention that tbu soil should be devoted to those pui-poses to which the law of nature dictates that it .should be applied, is well manifested by the circum- stance that, wJiere the action of the private proprietors tends to count- eract this policy, the state is often moved to revoke its gifts, and make IMIOPKUTY l\ TUi: ALASKAN rtlvVL HKUD, R7 nl intci'iiatioiml n new (HHpoNition of its liinds in lini'niony wiMi imtiira! law. Tliis teniloncy in ohservablo where f^ront proprietors rcsm-ve larjif*! triict< of land for game preserves, for the piirpnaes of mere pleasure, oi' hold thorn under a system of rental unfavoniblo to agricultural improvoineut, and not adapted to supply the wants nt' an increasing population. The recent legislation of Great Ri'itnin in respect to Ireland is a notable instance of an assertion by the State of thnt supreme dominion over its lands which a nation always retains, to the end that they may be made the more subsci'vient to tlic purposes for whicli the earth was destined. From what has just been said it is apparent that land, altlioupli uo individual can actually appropriate more than a very small area to his exclusive use, is nevertheless regarded in the law as smccplible of ev. cltisive appropriation. The state permits its citizens to assert title to it to an unlimited extent, and tlie assertion may bo made without even any formal physical act of possession. No fences oi- enclosures even ai-e necessary. The execution of an instrument in writing is of itself sufficient. The law steps in to aid individual power and enables u private person to hold tii-L to a province as securely as he holds the harvests he reaps from his fields witii his own hands. And the reason is immediately obvions. It is only by the award of property that the earth will be cultivated. No man will sow that another may reap ; but if the law will lend its aid to human power by protect- ing the owner of land in his exclusive enjoyment of it, he can and will draw from it by his art and industry its annual product without im- pairing its capacity for production, and will even increase that capacity-. This is the only way in which an increased population can be sup- ported. Social necessity, therefore, requires that land should be deemed susceptible of exclusive appropriation, and all structures atiixed to the land become a part of it and are property together with it. In respect to such mavahle things as are the fruits of the land or the products of industry, there is no limit to the assertion of ownership, and the circumstance of actual possession is absolutely immaterial. The fruits of the cultivation of the earth nmst, of course, be the property of the husbandman, else his title to the soil would be unavailing, and, in respect to all other products of industry, the same social necessity protects them as property. But for such protection they would not be produced, except for the personal use of the workman. The various arts may be said to be subsidiary to the better cultivation of the earth, for it is these which enable the cultivators to devote their exclusive attention to it. ' . i vjniiriLi" prwiiD^I,! iwiftll mill i' I It '\ 88 AROU.MKNT OF THE UJSITKD STATKS. All tlic useful domestic aui Dials are held to be the subjects of (■xcln- sive appropriation, however widely they may wander from theii' mas- ters. A man may assert his title to vast herds, which roam over bouml. less wastes, and which he may not even see for months in succession, as easily as to the cattle which are nightly driven to his home. Ilf has no proper possession of them other than that which the law supplies by the title which it stamps upon them. And the obvious reason is that from their nature and hahits he has such a control over them as enables him, if the law will lend him its aid, to breed them, in other words, to Qultivate them, ord furnish the annual incn^nse for the supply of human wants, and at tlie same time to preserve the stock. In no other way could this be iiccom])lished. AV^ithout the protection affor;^""] by tlic safeguard of property tlic rac<' of domestii- intimnls ,vouUl not have existed. In the case of animals in euery respect wild ami yet useful, such as sea fishes, wild ducks, and most other species of g.ime, we find difteveiit t!onditions. Hero man has no control over the i'nimals. Thoy do not, in consequence of their nr\tur3 and habits, regularly subject them- selves to bis power. He ijannot determine in any casi, what the annual increase is. He cannot separate the superfluous increase fnv.ii the breeding stock, and confine his drafts to the former, leaving tlio latter nutouched. I'or the most part these animals are not ■puhjrjuuwus, but mate with each other, and no part of their numbers ai'c supirjhoun rather than another. All drafts made upon them art equally destnu- tive ; for all must be taken from breeding animals. No selections for slaughter can be made. In short, man can not, by the pi-actice of nti and industiy, breed them. They can not be made thi,' subjects of /(«<■ bandry. And yet man must be permitted to take rhem for lis.', or be wholly deprived of any benefit frcm them. No award of a pi'operty interest in them to any man or set of men would liave any effcci in enabling the annual increase to he applied to satisfy hum.'>,n wants ami at the same time to preserve the stock. The law could not give to individual men that control ovcl them which their nature and habits deny : and the law never makes the attempt. The fish of the sea ami most of the fowls of the air are, and must forever remain, in <'verv sense wild. They are not, therefore, the subjects A' property. And hero nature, a.s if conscious of the inability of man to fiiruisli that protection to these wild races against destructive pursuit wliicli the institution of property affords in the case of don^estic aninial«. 'lui- ; iineful, sucli iis vc find diftevent . Tlioy do iioi, subject theni- cast, what the IS increase hvw •mcr, leaving tlio not 'pulij(jiniiou)', |rs arc Hupi-rjhon.'' equally destrin'- o selections for practice of art subjects uf ,•(«»■• in for lis.', or be ■d of a proverly ivc any effect in lioipn wants iuul ;ouid not givo t.) ,turc and luilnts of the sea ami lemain, iu *'^'^''y icvty. man to faruish •c pursuit wlii*-'li ,tic animal", ho'"- rnopEnxv in thk alaskan skal hkiu). 80 ,e\i makes provision for the purpose. In limiting within narrow hounds bis control over theiii, she correspondingly limits his power of destruc- tion. She confers upon these races the means of eluding capture. And, besides this, in the case of wild animals most largely useful, she makes destruction practically impossible by furnishing a prodigious supply. The gre»t families of useful fishes are practically inexhaust- ible. This is, however, much less so in some cases than in others. In respect of many species of fishes, game birds, and other animals, the linmau pursuit is so eager as to endanger tKo existence of the species: iind in such instances, society, unable by the award of a property interest to aiTcst the destruction, resorts to the mo.st efi'entive devices which are in its power to seciiro that end. It confines and Units the destruction to lertain seasons and pi 'ces by positive cnnctments of which »ame laws are tlio type. \V*e now come to thoNe animals which lie near the vague and imleflnitc boundary which separates the wild fl'om the fame, to animals w'hicli exhibit some of the qualitie.s of each class ; and we shall instance those iilieady made the subject of discussitn when confining our inquiry to the settled doctrines of the municipal law. These instances were those of hes, deer, pigeons, wild geese, mid stcans. All these, it will be remem- bered, are regarded in that Iiw as subjects of property so long as they possess the animum revertendi, evidenced by their usual habit of returning to a particular place. These animals diffei- widely from each other in their nature; but they have certain characteristics Avhich are common to pll. Each of them, habitually and voluntarily, so far subjects itself to the control of man as to enable him, by the practice rf art and indnstty, to take the annual increase for the supply of human Avants with- out diminishing the stock ; in other Avords, to hrerd then , and to make them the subject of husbandry ; and, in the case of each, unless a property iatevest were awarded by the law, that is to say. unless the law came to the aid of human infirmity, and declared thera to be fiiiscept /'bh' of owru'r- *'p, notwithstanding the want of actual possession, they would cease to exist and be lost to the world. The case of hep« is an instructive illustration. They are by nature wild. They can not be tamed so as to be made obedient to man. They move freely through the air and gather their honey from flowers in all places. But they have an instinct which moves thera to adopt a snit- rtle plaoe for a nemo, and man may avail himself of this to induce thr>ro to take np th«ir abode upon his property, where he can protect them 1'. I V. i ' t ' git." From " Principles of Economics." Alfred Marshall, professor in the Uuivei-sity of I'air-I bridge, London, 1870. Vol. I, Book 7, t'hap. 7, sec. 2, p. 012 : " A man who, working on his own account, makes a thing for himself has tiie] usance of it as the reward for his labour. The amount of his work may be determiiiedj in a great measure by custom or habit, but in so far as his action is deliberate he »il cease bis work when the gains of further work do not seem to him worth the tmiinlo| of getting tbeui. But the awakening of a new desire will induce him to v»ork on furtiierj He may take out the fruits of this extra work in immediate hnd passing enjoyment, oif ^mffm PROPEUTY IN THE ALASKAN SEAL HERD. 95 . Lcrov-Beaulieu. 2il oil,j Iv ExiiDUiuU'J. " Jiv J' '■•I • in the Uuiversity of t'uii 1 I aptiii'o seals at sea could bo pretemleJ, it would be iiecossaiy to pause and deliberate. It may indeed be said that there is no power in the United States to prevent sealing upon the high seas ; but this is a heg- jing of the question. If they have a property interest in the scalp, the power to protect it can not be wanting. But let this question go in lasting but distant benefits. * * * or in implements which will aid him in his work, * * * or, lastly, in tilings whicli lio can let out on hire or so invest as to derivo I a income from them. Man's niiture, however, beinf; impatient of delay, he will not, u a rule, select any of the three latter methods unless the total benefit whicli he expects lithe long run seems, after allowing for all risks, to sliow a surplus over its benefits to bo iltrircd by taking out the fruits of his labour in immediat* enjoyment. That surplus, ihether it take the form of interest on capital, or extra pleasure derived from the direct wince of permanent forms of wealth, is the reward of his postponing or waiting for the I fruits of his labour." From the Ethics of Usury and Interest. By W. Blissard, M.A,, Loudon, 1892, p. 26 "On the hypothesis that all have equal opportunities of social progress, the social Ifatrovers of its wealth deserve condemnation, while those who have served the cause 1 i pivgrcss by saving from personal consumption a part of tlio earth's produce and taing it to the improvement of national mechanism have a claim to a reward pro- Lrtioned to their service and to the efforts which they have made in rendering it. 1 tec arc the conditions of advance in civilization in the arts, and sciences, in literature, I mil religion. For the command over nature differentiates the civilized man from I lie savage. * • • It appears, hence, how accurate is the common phrase whic' I (ills thrift ' saving.' Economists favor such other words as ' abstinence,' deferred I 'rajOTment,' and the like ; but to ' save ' expresses the primary idea that something I in been saved from the destruction to which mere animal instinct would devote it. In !jch salvage lies the progress of the human species from savagery to godhead. By how much has been thus saved has the salvation, material, mental, and moral, of the race I Iwn achieved." From " Political Economy." By Francis A. Walker. New York, 18S3. Page 67, |w.78; " The Law of Capital. — It is not necessary to trace further the increase of capital. At I mrr step of its progress capital follows one law ; it arises solely out of saving ; it stands I ixm for self-denial and abstinence." (Page 232) : " Capital is, as we have seen, the result of saving. Interest, then, is I lie reward of abstinence. A part, a large part, of all produciid wealth must be at \m consumeu to meet the conditions of human existence; but the remaining portion lniTbe consumed or maybe accumulated, according to the will of the owner. The litffngth of the motive to accumulation will vary with the reward of abstinence. that be high the disposition to save will be strengthened, and capital will bo hpidly accumulated; if that be low, that disposition will be relatively weak, and al will increase slowly, if indeed the body of existing capital be not dissipated In the demands of appetite." From "Chapters on Practical Political Economy." Prof. Bonamy Price. 2d ed. ■«iidon, 1882. Pages 127, 128 : Spelling of Profit, he says : " What is the nature, the principle of this gain ? It is I' reword for two things, for the creation and employment of capital. Economists l^'e lightly explained the need and justification for such a reward for the creation I'' capital, that it is tf compensation for abstinence. The owner of the wealth t\ r;" 96 ARGUMENT OF THE UNITED STATES. 'n. it 31 for the present ; it will be elsewhere discussed. Let it bo ooni'ccied, for the sake of argument, that the United States liavo no power to \m. tect and punish, will it be asserted before this Tribunal, bound to declare and administer the law of nature and nations — a systom of morality — that this constitutes a right ? What is it precisely whicli might Luve devoted it to his own enjoyment ; lie preferred to save it or turn it into an inBtrument for creating fresh wealth. It was his own voluntary act, Iio jjavi' np some luxury, he ihids atonement in improved income from increusod wealtli. His aim was profit, but profit, though it enriehed him, was no selfish eonrse j hixuvi- ous expenditure would have been the i-eal selfishness. By going in for profit lir benefits society. His savings are an advantage to others as well as to hinisell'. « * • Profit is the last thing whicli should bo grudged, for profit is the creator of onpital, and capital is the life-blood of civilization and commercial jirogress." From "Manual of Political Economy." Henry Fawcett. London, 1S77. T?k. ii. eh. T, p. 157: " As cajiital is the result of saving, the owner of capital i^xei'ciscs forboiiraiico when he saves his wealth instead of spending it. Profits therefore arc the rewiiiil j of abstinence in the same manner that wages are the reward of pliyise of things in the most absolute manner, provided no use be made of them forbidden by the laws or by the reguliitions," interposed social interest by this restriction. 9B ARGUMENT OF THK UNITED STATES. I !M m 'If i i ' 1 t I ! ! * 1« private life and of tlmt of the family dooa not come under the ap})ll. cation of public law. It is necessary, therefore, that the abuse he public in order that the law may rench it. It belongs to the legisliitions regulating the various kinds of agricultural, industrial, and coranicrcial property, as well as to penal legislation, to determine the abuses whitli it is important to protect; and, in reality legislations as well as police laws, have always specitied a certain number of cases of abuses.' Be- sides, all abusive usage is hurtful to society, because it is for tl\e public interest that the object should give the owner the atlvantages m- tlw services it admits of." It is assumed throughout the Keport of the British Commis.sionerK that pelagic sealing is not necessarily destructive, and that, undei' regulation, the prosecution of it need not involve the extermination of the herds. This assumption and the evidence bearing upon it will be elsewhere particularly treated in what wo may have to say upon the subject of regulations. It will there be shown that it is not only destructive in its tendency, but tli: if permitted, it will complete tbe work of practical extermination in a very short period of time. But so far as it is asserted that a restricted and regulated pelagic sealing is consistent with the moral laws of nature and should be allowed, the argument has a bearing upon the claim of the United States of a pi-operty interest, and should be briefly considered here. Let it be clearly under- stood, then, just what pelagic sealing is, Jioioever restricted or regnhtai And we shall now describe it by those features of it which are not dis- puted or disputable. We pass by the shocking cruelty and inhumanity, with its sicicen- ing details of bleating and crying offspring falling upon the decks from the bellies of mothers, as they are ripped open, and of white milk flow- ing in streams mingled with blood. These enormities, which, if at- tempted within the territory of a civilized State, would speedily be ' On the occasion of the debate of Art. 544, which defined property, Napoleon expressed energetically tlie necessity of suppressing abuses. "The abuse of property, said he, " should be suppressed every time it becomes hurtful to society. Thus, it is iiof allowed to cut down unripe grain, to pull up famous grapevines. I would not suffer tlmt an individual should smite with sterility 20 leagues of ground in a grain-bearing depart- ment, in order to make for himself a park thereof. The right of abuse does not extend «> far as to deprive a people of its sustenance." * Roman law says in this sense, sec. 2, 1, De patr. pot. 1, 8 : " Expedit enim reipublica> ne sua re quis male utatur," Leibnitz further expands this principle of tlie Roman law by saying (De notionibus juris, etc.) : " Cum nos nostraque Deo debeamus. ut reipubliw, ita multo magis universi interest ne quis re sua male utatur." PROPERTY (N THE ALASKAN 8t!Af. HKRD. 99 made tho subjects of crir inal puniahnient, are not relevant, or are less relevant, in the discnssion of tho more question of property. It is not contended that in pelagic sealing (1) there can be any select- he killing; or (2), that a great excess of females over males is not slain ; or (3), that a great numbei- of victims perish from wounds, without being recovered ; or (4), that in most cases the females killed are not either heavy with young, or nursing mothers ; or ('•), that each and every of these incidents can not l)e avoided by the selective killing which is practiced on tho breeding islands. We do not stop to discuss the idle questions whether this form of slaughter will actually extermi- iia/e the herds, or how long it may take to complete the destruction. It is enough for the present purpose to say that it is s!»q)le |»Iy. Nnturo liorMcll' 1ms limited it all too rigidly. A large [irotit is derivable from every seal which prudence will permit to >io taken. The temptation is to take too largely. AiMinowe, and not ivanii', is the tine jtolicy. Indeed, the Report of the ('Omniissioners of (ireat Uritain makes it a principal charge iiijainst the manaijferaent of the lessees that they make drafts upon the hertls too large, instead of too small. Now, where the entire product of p. sonrce of supply is thrown upon tlio market, tho price will be governed liy the demand. The world will pay a certain amount for it and no more; aiifl the circumstance that there is a monopoly of the commodity is miiniportant.' Divers eliarges are made in the Report of the British Commissioners (!' iio:>nd that tlicy might ajiply a remedy. And what is true in respect of the United State* is true abo of their lessees. The latter can have no interest not in harinony with the intei-ests of all. This observation is subject to a tinalification limited to lessees whose lease is about to expira. An out- ,'^'oing tenant is, indeed, sometimes under a temptation to commit waste. Against this possible mischief the United States have endeavored to guard by the policy of making long leases. It is believ.id to have been entirely effectual. Brt all suggestions of the insufficiency of the guaranties furni.slied by f recognition of a property interest to carry out the dictates of science and natural law in respect to animals having a natui'e and habits such aa the fur-seal exhibits are absolutely silenced by a reference to Iho conclusive teachings of actual and long experience. Russia enjoyed during the whole period of her occupation of the islands the full benefit practically of a property interest. She maiiitained an exclu- sive dominion oi the heids upon tho land, and no attempt to interfere with them b" pelagic sealing was made. By her care, industry, and self-denial, tc npted and rewarded by the profits of the industry, the normal numbe of the herds were maintained, and at the same time lar^^e annual drafts were made. And when, as happened more than once from exceptional causes which could not be prevented, the num- bera were greatly reduced, a more rigid and self-enforced abstinence brought about a full restoration. At the beginning of the occupation of iiic United States, and before their authority and oversight were fully established, an irregular and excessive slaughter again greatly reduced the herds, and this damage was agtin fully repaired by an exercise of similar abstinence. The numbers were, perhaps, more tliau restored, and it becanie possible to make Irrger drafts than had ever been taken under the Russian manageraent without any discoverable diminution of the stock ; and there is no reason to suppose that such drafts might not have been continued indefinitely had not the destrnc- ■■^ipiili PROPERTY IN THE ALASKAN SEAL HERD. 103 tivc wni'fare by a constantly increasing fleet of Canadian scalci-s made it impossible. The experience at the Commander Islands has been the same. The exercise of art, industry, and self-denial produced by the operation of t!io same motive has been followed by the reward of still abundant lipnls. Nor is there any obstacle in the way of a recognition cf a pi-operty in- terest growing out of any difficulty in identifying the Alaskan herd upon the high seas. Suggestions u' a possible commingling with the herds belonging to the Russian islands on the western side of the Pa- cillc and Bering Sea are contained in tho Rc-port of the British Com- missioners ; but these are coupled with the admission that this com- mingling, if it exist at all, is confined to a few individuals. They are supported by no evidence. The Russian herds are separated by a broad tract, hnndi-eds of miles in width, and it seems entirely certain that all senls found on the eastern side of the Pacific and Bering Sea are mtnibers of the Alaskan herds. It may be urged, as an objection to the recognition of a property in- terest in the United States, that it would be inconsistent with the con- tinued pursuit of seals by the Indians on the Northwest coast for the purposes of food and clothing. This consideration deserves respectful attention. It is the only form of capturing seals upon the high noas which can assert for itself a moral foundation under the law of nature. .\ttention has more than once been called in this argument to the dif- fcreut degrees of the extension of the institution of property in barbaric iiiitl in civilized life. The necessities of society, eveiywhere and at all times the measure of the extension of the institution, do not In barbarirj life require a recognition of propci'ty in but comparatively few things. With a sca^iiy and sparse population, little is required by way of cul- tivating the earth or its animals; and both can be, and generally are, allowed to remain in a wild condition, open to indiscriminate use. A full supply of the wants of such society in respect to most animals can lie liiid by indiscriminate killing, without in the least degree cndan- [fciiiig the stock. That peril is one which civilization brings along with it; and, as we have seen, the safeguard comes also in the shape I'f the extension of the institution of property. Nothing better illuh- trntes this than the ca.se of the fur-seals. Before the occupation of its liaunts by civilized nations, the only draft made by man upon the pro- liieioiis iierds was limited to a number sufficient to supply the wants i ii... m ^ m 1 !■. ' I t -i mi ARGUMENT ()J<- llMtK UNITED STATES. ^1 . of a lew hundred people. Bat, aftt^r MUhih ocuapatiou, through tliu iii. Htruireutality of commerce, the whoU' .w-wld made its attack. This demand, of course, could not be §uppl»ed cumsistentlv »iith the presoi'. vatioii of the species without an imnaediate cliangie from hiirhari'; tu ' ivilized methods ; that i.-< to nay. from indi.scrimiaaf" capture, wliidi threatened the tftock. to a selective caijs*«re "rfimtined t® the increase But ihis conditio*" -i-oates no difficulty. The 'ieaaact thu.s inmlu is ci^mparatively insigjtifi«^*nt, and drcst of the woi-ld as nmch as for itself. The fundamental truth that thii useful race of aninmis is tliu property of mankind, is not changed by tho circumstance that the custody and defense of it have fallen to the lot of the United •"^tates. Their appearance as a litigant iu this foi'um may be said, in ii very juat sense, to be fortuitous. TJie ri'iil controversy is b'etwi'cn \ ' 'M 'I :' I! I it r-i ^1 M 1 1 ' 4 k ^ ':m y- . '^'4'. 106 ARGUMENT OF THE UNITED STATES. those, wherever they may dwell, who tvant the seals, and the Canadian pelagic sealers, who ai-e threatening the extermination of them. If that danger can be averted by the method which alono can be effective, the recognition of a property interest in tbo United States, the benefit will accrue equally to all. The seal-skins will ba furnished to the citizen* of Great Britain and of all other nations upon the same terms upon which they are obtainable by citizens of the United States. The larpe interests of Great Britain in the mauufactaro of the skins will be relioved from the peril which threatens them. None will be losei-s, save those whu are engaged in the cruel pursuit, forbidden by the law of nature, and by every sentiment of humanity, of destroying this useful race of animals. And the loss even to them would bo comparatively small, for the pursuit under present conditions can not continue for moi-e than a very short period. The United States may, indeed, derive a profit peculiar to ihemselves as the cultivators of the herd ; but this is the just reward of their iu- dustry, abstinence, and care, and no more than every other nation in respect to products peculiar to itself. Without these voluntary efforts the' herds would be speedily swept away. Their prescnc existence and numbers are absolutely due to these efforts. It is by such means alone that nature makes her gifts fully available to their desired extent to all nations. The advantages which, in the partition among nations, have fallen under the power of the United States, it is their duty, and their duty to mankind, to improve. The rights and interests of mankind are properly asserted m this international forum; but they can be asserted only through the United States. If the world has the right, as it cer- tainly has, to call upon that nation to make the benefits which nature has assigned to its custody available, it raust clothe it with the powers which are requisite to that end. If the United States have, as lias now been shown, a property interest in the Alaskan herd, the undersigned conceives it to be a certain eon- setiuenco that they have the right to pi'otect it anywhere upon the high seas against injui-y or invasion, by such reasonable exercise of force as may be necessary. Tliis jxoposition will be fully discussed in connec- tion with the eubjcct next to bo considered, of tho rights acquired bv the United States in tlie sealing industries carried on by thcni upon the Pribilof Islands. If the foregoing argument is successful in showing that the United States have a pi-operty in the Alaskan seal herd their right to |.rotcct IS. PROPBRTY IN i'HE ALASKAN SEAL HERD. 107 md the Canadian of them. If that n be effective, the 8, the benefit will jd to the citizcib same terms upon States. The large ins will be relieved ei-s, save those whu of nature, and by il race of animals. sly small, for the for moi-e than a aliar to themselves 3ward of their iu- :y other nation in ie voluntary efforts jscvic existence and ■ such means alone esired extent to all aong nations, have eir duty, and their is of mankind are ey can be asserted 10 right, as it ccr- iiefits which nature t with the powers property interest be a certain eon- ere uptm the hi^'li 'xerei.se of force as scu3sed in uonuec- .■ights acquired by by thcin upon the that pi'operty anywhere upon the seas where it and they have the right lo go is a proposition scarcely open to question. The rights of a nation of all descriptions upon the high seas are uniformly protected by the direct fxercise of the powers of the nation. There is no other way of protecting them. There is no general sovereign or tribunal over nations before which an alleged trespassing nation can be summoned for judgment. But the nature and extent of this self-protection will be fully discussed under the next head of this argument, devoted to that aspect of the property question particularly presented by the sealing industry maintaincfd by the United States upon the Pribilof Islands. If they have the right to protect that Industry against invasior by acts committed upon the high seas, they have, a fortiori, the same right to protect their property on that clement. ■ . - . , , , , , . .Tamks C. Cartkr. g that tin; United ir right to irrotect "3171 R 108 A Ri; I'M EXT OF THE UNITED STATES. APPENDIX TO PART THIRD, DIVISION ARGUMENT). I (MR. CARTER'S hi ) 1 *'i ,1 \' AUTHORITIES UPON THE SUBJECT OF PB0PEBT7 IN ANIMALS FEBiE NATUB^. LFvoiii Studies in Koiiian Law, In- Lord Miiekenzio (fitb Edition), Edinbiirgli and London, 1886, chnpter in, page 171.] Wild animals. — All wild iuiiinals, whether beasts, birds or fish, fall under this rnlo, si. that even when they are caught by a trespasser on iuiolher man's laud they belong to the taker, unless they are expressly (iechired to be forfeited !>y some penal law, (Inst., 2, 1, 12; Gaius, 'i, (iG-".'* Eleiiiciits of Roman Law, translated hy Edwavd I'oste (2(1 1'll), Oxford, 1875.J Skc. Cb. Tn those wild animals, however, which are habituated to go away and return, as pigeons, and bees, and deer, which habitually visit the forests and return, the rule has been handed down that only the cessation of the instinct of returning is the termination of ownership, and then the property in them is acquired by the next occupant; the instinct of returning is held to ho lost when the habit of returning is] disiDutinncd. i I'l'iim Von SiniirMV on I'o-isos.sion in !!»<• Civil Law, compiled by Kollolicr.j With respect to the possession of animals these rules are to be applied t lilts: l''irsi Tame animals are posses,sed like all other movables, /.(..the possession of thera ceases when they can not be found. Second, Wild auimuls are only po.ssess; d so long as some special disposition (custodia) I \isls wlii"li (Miables tis actually to get them into our power. It in n"tj every custodia, therefore, wliich is sufficient; whoever, for instance, keeps j wild animals in a park, or fish in a lake, has undoubtedly done some- tiling to secure them, Imfc it does not depend on his mere will, but onal variety of accidents whether he can actually catch them when liej wishes, consequently, possession is not here retained ; quite otherwisej with fish kept in a stew, or animals in a yard, because then they may hej caught at any moment (lib, -i, sees. 14, 15, de poss). Third. Wildbeasts,j APPENDIX TO PAKl" THIRD—DIVISION I. I 01) m. CARTER'S r IN ANIMALS ), Edinburgh niul :-A Posti- (2(1 0,1), :ame(l artificially, are likened to domesticated animals so long as they retain the habit of returning to the spot where their possessor keeps tlieni nhiiec (tnimnm, i. e., consui.'tudinrm, revertendi habent). [From Puffendorf, Law of Nature and Nations, lib. iii, ciiji. 1, si-e. 3.] Although I loss seems to refer properly to property, yet by us it -will be t'tiierallj' ac, pted as embracing all injury that relates to the bodj', fame . modesty of man. So it signifies every injury, coi-ruption, diminution I or removal of that which is ours, or interception of that, whicli in ])erfect justice wc ought to have; whether given by nature or conceded by an I antect'dent human act or law; or, finally, the omission or denial of a Iiiim which another may have upon us by actual obligation. To this I iinds the LSth Declamation of Quintilian, where he plai ily shows thai I one had inflicted a loss who poisoned the flowers of his own garden ivhereby his neighbor's bees perished. Yet the convincing reason con- I >ibts in this : Since all agree that bees are a wandering kind of animate iite, and because they can in no way be accustomed to take their food I from a given place; therefore, whenevei- there is a right of taking them. there also, it is understood, is laid a genoi'al injunction to be observed I by all neighbors, to permit bees to wander everywhere without hindrance from anyone. [From Bracton, lib. ii, cap. l.j The dominion over things liy natural right or by the right of nations s iiequired in various ways. In the first place, thi-ough the first taking I of those things which belong to no person, and which now belong to the King by civil right, and arc not common as of olden time, such, for instance, as wild beasts, birds, and tish, and all animals which are born on the earth, or in the sea, or in the sky. or iii the air; wherever they may be oaptnred and wherever tiiey shall have been capt ired, they begin to lie mine because they are coerced uiuler my keeping, md by the same Mson, if Vi\(^y escape from my keej)ing, and recover their natnral liberty tliey cease to be mine, and again belong to the first taker. But they wover their natural liberty, then, when they have either escaped from Uysiffht in the free air, and are no longer in my keeping, or when they are within my sight under such circumstances, that it is impossible for mo 1 to overtake them. Occupation al'^o comprises fishing, hunting, and captui-ing; pur.snit I alone does not make a thing mine, for iilthough I have wimnded a wild I iipast so that it may be (-aptured, ne\-ertheless it is not mine unless 1 capture it. On the contrary it will belong to him who first takes it, for many things usuiilly happen to jirovent the capturing it. Likewise. ' a wild boar falls into a net which I have spread for hunting, and I iiave carried it off, having with much exertion extracted it from th" let, it will be mine, if it shall have come into my power, unless custom T privilege rules to the contrarj-. Occupatiim also includes shiittiii!.'; |"p,as in the case of bees, which are wild by nature, foi' if they should tave settled on my tree they would not be any the more mine, until ! ''i>ve Hhnt them up in a hive, than birds which have made a nest in my I'w, and therefore if another person shall shut them up, he will havr 'he dominion over them. A swarm, also, which has flown away out ol' \v hive, is so long understood to be mine as long as it is in my sight, and the overtaking of it is not impossible, otherwise they belong to the Ufst taker ; but if a person shall capture them, he does not make them "^iowa if he shall know that they are another's, but he commits a theft [317] H 2 V • ■ n «!' , I 10 AUOUMENT OF I'llK UNfTKD STATES. Ml less lir lias tho intention to restore them. And these thinj^s iire tiue hiil< ss sdint'tinu's from custom in some parts the practice is otherwise. Wliiil lias 1)0(11 said above applies to animals which have remained at nil times wild; and if wild animals have been tamed, and they by hain't qo nut and iTtnrn, Hy away, and fly back, such as deer, swans, scafowls, and doves, and sueli like, another rule has been approved, that tliey are so Ioiilt cdiisitlered as onrs as long as they have the disposition to letnni; for if they have no disposition to return they cease to be ourB. ]}nt they seem to ciaso to have the disposition to return when they have abaiuloiu'd the habit of returning; and the same is said of fowls and geese which have become wild after being tamed. But a third rule has been approved in the ease of doinestio animals, that although tame geeso and fowls have escaped out of my sight, nevertheless, in whatever place they niiiy be, they are understood to be mine, and ho commits a theft who rctiiiiis tlicni with the intention of making gain with them. This kind of occupation also takes place in the case of those things which are captured from the enemy, as, for instance, if free men have been reduced into slavery and shall escape from our power they recover their former state. Likewise tho same species of occupation has a place in the case of those things Avhich are common, as in the case of tho sea and the seashore, in the case of stones and gems and other things found on the seashore. The same rule applies to islands which spring up in the sea and to things left derelict, unless there is a custom to the conti'ary in favor of the pubhc treasury. [From Bowyer, Modern Civil Law, page 72.J Wild animals, therefore, and birds, and fish, and all animals that are produced in the sea, the heavens, and the earth, become the property, by natural law, of whoever takes possession of them, The reason of this is, that whatever is the property of no man becomes, by natural reason, the j)i'OIicrty of whoever occupies it. It is the same whether the animals or birds be caught on the premises of the catcher or on those of another. But if any one enters the land of another to .sport or hunt, ho may be warned off by the owner of the land. AVhcn you have caught any of these animals it remains yours so long as it is under the restraint of your custody. But as soon as it has escaped from your keeping and has restored itself to natural liberty, it ceases to be yours, and again becomes the property of whoever occupies it. The animal is understood to recover its natural liberty when it has vanished fi'om your sight, or is before your eyes under such circumstances that ])ui'suit would be difficult. Here we ti iid the celebrated maxim of Gajus : Quod nullius est, id mtme vatinali occiiimnfi conccditur. It is founded on the following doctrine; Granting the institution of the rights of property among mankind, those things a I'o each man's property which no other man has a right to take from him. Xow, no one has a right to that which is res nullius; con- se(|uciitly, whoever possesses nnn ntdlins possesses that which no one has a riglit to take from him. It is therefore his property. But tlii.s general right of acquiring things by occupancy is subject to an iinp(jrtant qualification. Grotius justly argues that it is not an absolute right, for though it is indeed founded on natural law, it is matter of permissive law, and not one which requires that full liberty sliould be left to men to avail themselves of it, since such liberty is un- ncc(!ssnry in many cases for the welfare of mankind, and may even, as Blackstone observes, be prejudicial to the peace of society if it be nut APPENDIX TO PAIIT THIIIL) — DlVl.SlON I, 111 limited l>y positive law. Harbeyrnn iilso arf^aes lliat wliciv a couii'iy is takon posspsHioii of by a body of m(!ii, it b'jiH)iU(;.s tlio pvopoi'ty of tliat )ilyorof tho person who represents tliom, and that theniforo tlio rii,'hfc |of the individual members to take possession of portions of it or any of i!n' things therein eontainc 1, may bo restricted or taken away, aecoi'd- iiigas tiie welfare of tho community may demand. Tliesr; prin(M[)les aic applicable to tho whole jurisprudeneo of acquisition by oecupuney. The acquisition of thing's tangible naist bo made corpora et atiinio — libat is to say, by an outward act signifyinsf an intention to possess. Ilie necessity of an outward act to commence liolding a tiling in loininiou ii, founded on tho principle that a will or intention can not iiiive legal eJeet without an outward act declaring that intention, anil on the other liand no man can bo said to have tho dominion over a thing which he has I nil intention of possessing as his. Thus a mancan not deprive othei's of ii'ir right to take possession of vacant property by merely considering ii. i his, without actually appi'opriating it to himself ; and if he jiosscsses it I without any Avill of appropriating it to himself it can not bo held to have I cfiisi'cl to bo rvs nullins. The intention to possess is to bo presumed wherever the outwai'd act jliows such an intention, for that is to bo presumed which is most I probable. The outward act or possession need not, liowever, bo manual, foi- any I species of possession, or, as tho ancients expressed it, custodln, is a sufhcient appropriation. The general principle respecting tho acquisition of animals fcnii natunv, I is, that it is absurd to hold anything to be a man's property wliicli is entirely out of his power. But Grotius limits the applicatioii of that principle to the acquisition of things, and therefore justly dissents from I the doctrine of Gajus given above, that tho animal becomes again res ■ivlUiis immediately on recovering its liberty, if it be difficult for the Hr.st loccapant to retake it. He argues that when a thing has become tho property of any one, whether it be afterwards taken from him 1)y tlio act of man, or whether ho lose it from a natural cause, ho does not necessarily lose his right to it together with the po.ssession ; but that it is reasonable to presume that the proprietor of a wild animal must have renounced his right to it when tho animal is gone beyond the ho,^i> of recovery and where it could not be identified. He, therefore, argues liiat the right of ownership to a wild animal may be rendered lasting, not- withstanding its flight, by a mai'k oi- other artificial sign by Avhich tho creature may be recognized. With regard to fish, Voet argues that when they are included -within I Mtificial boundaries they are private property, but that when they aro in a lake or other largo piece of natural Avatcr, though the pro])riotor I'f the land may have a right of fi.shery there, yet tho fish are in their natural state of liberty, and consequently they can not bo Ids property until he has brought them Avithin his power by catching them. It was disputed among tho ancient Roman jmusconsulti whether a wild I finimal becomes immediately tho pi'operty of whoever wounds it so that " can be secured, or -whether it (becomes tho property of him only who actually secures it. And Justinian confirmed the latter opinion, because many circumstances might occur to prevent the wounded animal being I taken by him who -wounded it. Bees, also, are of a wild nature, and, therefore, they no more boconio tne property of the owner of tho soil b}' swarming in his trees than do tho I Ws which build in them ; and they are not his unless bo inclose them in ahivc. Consequently, whoever Iua'cs th(;m makes them bis own, And i in ■* I 'i ;> !l li . .:-'■> . 'E- I •? if «■■ 'f 112 ATi(JVAlKNT OF Till': rNITI-:!) STATES. wliilo wann which hath flown from your hivo is still reputed to (•(iiilinue yi):iii as long as it is in sight and may easily be pursued, but. in iiny ntbrr (•,i>e It will becorao the pro])erty of the oeciipant. Sei', 15. Dc Faroiiibiis, ft <'i)luiiif>is, <'t t'lrtiuix AiiiniiililiHH ^\/iiiiiU'- fic//».-- Peacocks and pigeons are also naturally wild; nor is it any nbjection that after every tlight, it is their cust'om to return : for bees that arc naturally wild do so too. Sonio have Inid (h'er so tame tiiiit iliey would go to the woods and return at regular periods; yet no one denies but that deer arc wild by nature. Hut with respect to animals, which go and return customarily, the rule is, that tlity arc eonsidercil yours, as long as they retain an inclination to return; Vmt, if this ceases. ihey cease to bo yours ; and will again become tlie propp- ty of those wli-i take them. [Tho Case of Swiui.t, (7 Coki', lo h.) | It was de(!ided that a prescription to have all wild swans \vbi(ii tire t'iU' iiatiirce, and not mai-ked, building their nests, breeding, frequent- ing within a particular creek, is not good. For "tho prescription was insufficient, for the effect of the prescription is to liave all wild swans, whicli are fene natura', within the said creek. And such prescription IW a warren would be insutticient, as for e.vaniple, to hiive all piirt- iriilges uidiJicmiteK glgnrnfes, and frequenting within his manor. Hut he ought to say to have free warren of them within his inanor ; he ciin not have them jure privilegi! but so long as they are witliiu the place. But it was resolved that if tlio defendants had alleged that within the said creek there had been time out of mind a game of wild swans not marked, building and breeding; and then liad prescribed, that such abbot and all his predecessors had used at all times to have and to take to their use some of tho said game of wild swans and their cignets within the said creek, it had been good; for all those swaus are royal towls, yet in such manner a miin may prescribe in them ; for that niuy have a lawful beginning by the King's grant. For in the 30th I'^dward III the King granted to C W. all wild swans unmarked between 0.\-- ford and London for seven years. A lik(> grant was made of wild swans unmarked in the County of Cambridge to IJereford, K. T. li.. by which il appears that the King may grant wild swans unmarked ; and by conse- quence a uiau may prescribe in them in a certain place because it may have a lawful beginning. And a man may prescribe to have a royal lisli within his manor as it is held in MfHh Kdward III, o"). for the reason aforesaid and yet without prescrijition they do belong to the King by bis prerogative." In the same case it was said that there are three manner of iUDprriy rights; property absolute, pro])erty qualified, property posscssei'y. Property qualified and possessory a man may have in those animals which are /eric natura', awA to such ])roperty a man may attain by two ways: by industry, or by ntfiain- im potent ui- ft laei. By industry as by taking them or by making tliem maiinnrta or doinesiica. Hut in those which are feroj natura ;uid by industry are made tame a man luith bm a qualified property in tl: m, namely, .so long as they remain tame, U>r if they do attain to h m ' atural liberty and have not miiiiius rrri-rlnnli, the property is lost. Hiti'ne imi^otentid'. et loci as if a man has young goshawks or the lik3 wlMcii arc Jene nattine and they buiM in my land. Iliave possessory property in them, for if" one takes them when t bey can not fly the owner of the soil shall have an action of trespass. But wlieii a man hatli savage beasts va/to/u- pruilefjii, Ui> by reason of a park, warren. !i! m. <^^ o .. ^.'^J^^ IMAGE EVALUATION TEST TARGET (MT-3) 4 ^ .^4^. \ 1.0 I.I 11.25 U;|28 |2^ 1^ yi2 u, 1)4 ■ 2.2 ■UUl. U ||I4 a^ <% V] /a 7 /A PhotDgpaphic Sciences Corporation 23 WIST MAIN STMIT WIBSTU.N.Y. 145M (716)t72-4S03 ^. 114 ARGUMENT OF THE UNITED STATES. J¥. i ilm ■i -if) ' il I li &c., he hath not any property in the deer, or conies, or pheasants, there- fore in his action he shall not say «wo«, for he hath no property in them and thoy do belong to him for his game and pleasai'e so long as they romnin in the privileged place. It was resolved that all white swans not marked, which have gained their natural liberty, and are swimming in an open and common river, might be siezed to the King's use by his prerogative, because Volatilia, (qnafnunt ferco natnrd)-) dlia aunt regalia, alia communia; * * * as a swan is a royal fowl ; and all those, the property whereof is not known, do belong to the King by his prerogative ; and so whales, and sturgeons, are royal fish, and belong to the King by bis prerogative. • • • But it was resolved also that the subject might have prop- erty in white swans not marked, as some may have swans not mai-kcd in his private waters, the property of which belongs to him and not tp the King; and if they escape out of his private waters into an open and common river, he may bring them back and take them again. And therewith agreeth Bracton (lib. 2, c. 1, fol. 9) : Si aiitvm aui. malia fera facta fuerint mansueta, et ex cotuiuet'ddine eunt et redeimt, volant et revolanl, («< nunt cerii, cigni, pavones, et columbw, et hujux- modi) eougque nostra intelligatitur quamdiu habuerinf anivium revertendi. But if they have gained their natm-al liberty, and are swimming in open and common rivers, the King's oflBcer may seize them in the open and common river for the King ; for one white swan without such pursuit as aforesaid can not be known from another ; and when the property of a swan can not be known, the same being of its nature a fowl royal, dotli belong to the King; and in this case the book of 7 H, 6, 27, b, was vouched, where Sir John Tiptoft brought an action of ti-espass for wrongful taking of his swans ; the defendant pleaded that he was seized of the lordship of S, within which lordship all those whose estate he hath in the said lordship had had time out of mind all estrays being within the same manor ; and we say, that the said swans were estraying at the time in the place where, &c., and we as landlords did seize and make proclamations in fairs and markets ; and so soon as we had notice that they were your swans, we delivered them to you at such a place. The plaintiff replied that ho was seized of the manor of B, joining to the lordship of S, and we say, that we and our ancestors, and all those, etc., have used time out of mind to have swans swimming through all the lordship of S, and we say, that long time before the taking we put them in there, and gave notice of them to the defendant that they were our swans, and prayed his damages. And the opinion of Strange there was well approved by the court, that the replication was good ; for when the plaintifE may lawfully put his swans there, they cannot bo estrays, no more than the cattle of any one can be estrays in such place where they ought to have common; becanse they are thei-e where the owner hath an interest to put them, and in which place they may bo without negligence or laches of the owner. Out or which case these points were observed concerning owans. 1. That every one who hath swans within his manor — that 'h to say, within his private waters — hath a property in them, for the writ of trespass was of wrongful taking his swans, sciL Quare ctgttos sues, etc. •2. That one may prescribe to have a game of swans within his manor, as well as a warren or park. 3. That he who hath such a game of swans may prescribe that his swans may swim within the manor of another. 4. That a swan may be an estray, and so can not any other fowl, as I have read in any book. m APPENDIX TO PART THIRD — DIVISION I. 115 ;, . 1. , in [Cliild »'. Groenhill (3 Crokc, 553).] . , ■ Trespass for entering and breaking plaintiff's close and fisliing and taking fish in bis several fishery. Contended for the defendant that he could not s..y " his " fishes, for ho hath not any property in the fish until he takes tliem and has them in his possession. Attorneys for plaintiff maintained that they were in his several fishery, and that he might say "his" fishes, for there was not any other that might take them, and ail the court was of that opinion. [Koeble r. Tliekuriugill, 11 EiistV, 574.J Action upon the case. Plaintiff declares that he was, November 8, In the second year of the Queen, lawfully possessed of a close of land called Minott's Meadow, et d)- 'juoilam vivario vocato, a decoy pond to which divers wild fowl used to resort and come ; and tho plain- tiff had, at bis own costs and charges, prepared and procured divers decoy ducks, nets, machines, and othei* engines for the decoying and taking of the wild fowl, and enjoyed the benefit in taking them ; tho defendant, knowing which, and intending to damnify the plaintiff in his vivary, and to tright and drive away the wild fowl used to resort thither, and deprive him of bis profit, did on the 8th of November, re- sort to the bead of tlie said pond and vivary, and did discharge six guns laden with gunpowder, and with the noise and stink of tho gun- powder did drive away the wild fowl then being in the pond ; and on the 11th and 12th days of November the defendant, with design to damnify ike plaintif and fright away the wild fowl, did place himself with a gun near the vivary, and there did discharge tho said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wild fowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and £20 damages. Holt, C. J. : I am of opinion that this action doth Ho. It seems to be new in its instance, but is not new in tho reason vr principle of it. For, first, this using or making a decoy is lawful ; secondly, this employ- ment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to bo taken is not prohibited either by the law of the land or the moral law ; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them to sell and dispose of for his profit, this is his trade ; and ho that hinders another in his trade or lirelihood is liable to an action for so hindering him. • « « « * * » And when wo do know that of long time in tho kingdom these arti- ficial contrivances of decoy ponds and decoy ducks have been used for inticing into these ponds wild fowl in order to be taken for the profit of the owner of the pond, who is at the expense of servants, engines, and other manazement, whereby the markets of the nation may bo fnrnished, there is great reason to give encouragement thereunto ; that the people who are so instrumental by their skill and industry so to fnrniHh the markets should reap the benefits and have their action. But, in short, that which is the true reason is that this action is not 11(5 ARGUMENT OF THE UNITED STATES. brouglit to recover damage for the loss of the fowl, but for the dis. turbauce. In the report of this same case in the 11th Modern, 75, Lord Chief Justice Holt says : " Suppose the defendant had shot in his own ground ■ if he had occasion to shn (leer therein, by the law of the land, were not personal property, but formed part of the inheritance. * * * For the plaintiffn it was Hubmitted that, although Eiidge Park might originally have been a park in the Htrict sense of the term, having all the incidents of a legal park — vert, venison, and inclosure — it had ceased to bear that character, by reason of the manner in which it had in modern times been dealt with, it being essential that the boundaries of an ancient park should be strictly preserved, and that, by the mode in which the deer in question had been treated, they had ceased to be fcrce naturoi, and had become mere personal ])roperty, like sheep or any other domestic animals. The learned judge, in his summing up, told the jury that the main question for them to consider was, whether the deer in dispute were to be looked upon as wild, or as tame and reclaimed ; and that it had heen laid down by the best authorities upon the subject that deer in a park, conies iu a warren, and doves in a dovecot, generally speaking, ifo with the inheritance to the heir, or, in a case like the present, where the estate does not go exactly in heirship, but under tho limitations of an act of parliament, to the person next entitled under the parliamen- taiy settlement ; but that the rule was subject to tliis exception -that, if the animals are no longer in their wild state, but are so reduced as to be considered tame and reclaimed, in that case they go to the exec- utors, and not to the heir. He then proceeded; in substance, as fol- lows : A large body of evidence has been laid before you, for the pur- pose of satisfying you that Bridge Park was an ancient park, having all the incidents and privileges of an ancient park, to which rights formerly appertained which are now comparatively valueless. But tho question will not turn upon whether Eridge was or was not an ancient park ; though, at the same time, it may be desirable if you are able to form an opinion upon it, that you should state it. Undoubtedly, one who has an ancient park, having the rights and incidents of a legal park, ought to preserve the boundaries within which he claims to exercise those rights ; and probably there can be no doubt that, if the boundaries are so effaced that they can not be distinctly ascertained, his franchise, as ogninst the Crown, would be lost. But that is a matter which does not, as it seems to me, very much coneern the question now before us, because, though some rights might be forfeited by the destruction of the ancient boundaries, still the nature of tho animals would remain unchanged. That deer, when caught and inclosed in a pen, would pass to the executors there can be no doubt, and probably if animals of this sort were inclosed in a small field, well fenced round and well kept, it could hai'dly be said that they were not so far reduced into immediate possession as to become personal property. It is quite admitted, upon the evidence on the one side and on the other, that there have been, from time to time, additions made to what formerly constituted Eridge Park, though there is some difference as to the quantity. And observing upon the documentary evidence put in on the part of the defendant, the learned judge said, with reference to the extract from Domesday Book and to the inquisition taken in the reign of Edward the Third upon the death of Hugh de Spencer, that at that period, when the forest laws were in full vigor, whenever a " park " was mentioned it must be understood to mean a legal park. And he I'oucluded by asking tho opinion of tho jury upon two questions which lie gave them in writing ; first, whether Eridge Park was an ancient park, with all the incidents of a legal park ; itecondly, whether the :k 122 AllOUMKNT OK TiiE ITNUED STATES. } \U III II h<>undari(>M could be asccrtHined by dintinct marks, telling them ihnt tho princi|)al qnention was whether they found for the plaiiitift'R or for the defendant, tho otherH being only incidental. Tho jnry retired, and after a pix)tracted absence returned into comt, the judge having loft ; when, upon the asBOciato asking them whether they found for the plaintiffs or the defendant, the foreman answered : " We find, fii-st, that it was onginally a legal park, but that ita boundaries have been altered and enlarged ; secondly, we find that the deer have been reclaimed fi-oni their natural wild state. What the effect of that opinim is wo are not lawyers enough to say." The associate declining to i-eceive their verdict in that fdrni, the jurv again retired, and after a short absence returned into court, the fore*. man (addressing the associate) saying: " You jmay take it in the first instance as a verdict for the plaintiffs." The associate then asked, " Do you find that there was an ancient park, Avith the incidents of a legal park ? " To which the foreman answered, " We find that it vras originally a legal park, but that its boundaries have been altered and enlarged." Associate : " Do you find that there was an ancient park, with the incidents of a legal park?" Foreman: "Yes." Associate: "Do yon find that there were distinct marks by which the bonndaiies could be ascertained ?'' Foreman: " Yes, there Avei-e." The verdict was accordingly entered for the plaintiffs. Talfonrd, Sergeant, in the following Easter term, obtained a rule nisi for a new trial, on the grounds, first, that there had been no complete finding by the jury, they not having distinctly answered the real ques- tion which was submitted to them, viz, whether the deer were wild or reclaimed ; secondly, that the learned judge misdirected the jury, in presenting the case to them as |if the existence or nonexistence of Eridgc Park, with all the legal incidents of a park, was a mere collateral question, whereas it was of the very essence of the inquiry (Co. Litt. 8 a. ; The ctse of Swans ; Davies v, Powell) ; thirdly, that there was no sufficient evidence to warrant the finding. Humphrey, Ghannell, Sergt., and Bovill, in Easter term, 1848, showed cause in support of the verdict, and Talfonrd and Byles, Terfts and Willes supported the rule to show cause. Maule, J., now delivered the judgment of the court. : This case was argued in Easter term, 1848, befoif Loi'd Chief Justice Wilde and my brothers Coltman and t/resswell and myself. In the absence of the Lord Chief Justice, I now proceed to pronounce the judgment, which has been prepared by him, and in substance assented to by us. This was an action of trover, brought to recover damages for the con- version of a number of deer. The declaration contained two counts. The first count stated that the testator, in his lifetime, was possessed of a certain number of bucks, does, and other descriptions of deer, being captured and reclaimed from their natural wild state and confined in the clo%e of the testator, and that the plaintiffs, after his death, weiv possessed as executors, and that the defendants afterwards converted the deer, etc. The second count stated that the plaintiffs, as executors, were possessed of the like quantity of deer, which the defendant had converted, to the damage of the plaintiffs. The defendant, except as to a certain number of bucks, does, and fawns, pleaded not guilty to tho whole declaration ; and, secondly, that the testator was not possessed, nor were the plaintiffs, as his ex- ecutors, possessed, of the deer as alleged ; thirdly, that except as to a certain number of bucks, does, and fawns, the deer alleged in the dec- APPKNf)|.\ To ''Ain" THIRD -DIVISION' i. 1 •_>.'{ .«!;' laratioti were not eaptnivfl, rcclnimed, and tiinu'd, or kopt contiiu'd in inclosed grounds, as alleged ; lastly, as to the excepted bucks, docs, and fawns, the defendant paid the Hum of dtH.I into court. Issue was joined on these pleas. The cause was tried before the late Mr. .Instico Coltman, at the sit- tings in Middlesex, after Hilary term, I, '47, when the jury found ii verdict for the plaintiffs upon the issues — testator possessed— plaintiffs possessed — and that the deer wore tame and reclaimed. A rule nisi was afterwards obtained by the defendant in the follow- ing Easter term to show cause why there should not be a new trial upon the ground of misdirection, that there had been no suflicient ver- dict found by the jury, and that, if a suflBcient verdict had been found, it was contrary to the evidence. Several questions arose upon tho trial — first, whether the land called Bridge Park, in tho county of Sussex, was an ancieat legal park; secondly, whether it continued to be a legal park, or whether it had become disparked by the addition of other lands to the original paik, and by the removal, decay, or dest.'uetion of the fences, so as to destroy the evidence of the boundaries of such ancient park ; and whether the deer kept in such park had been tamed and reclaimed. In support of tho defendant's case various ancient documents were given in evidence to establish that the place in question was an ancient legal park, and that from a very early period down to tho time of tho death of the testator there had always been a considemble herd of deer maintained in the park. And it was also proved that tho place in question, consisting of upwards of 7(X) acres of land, was, in many parts, of a very wild and rough description. It also appeared by the evidence that certain lands had been added to the original park ; and there ,wns some contrariety of evidence in regard to the state of the fences. It was also proved that a considerable quantity of deer bad the range of the park; and that some were tame, as it was called, and others wild. What in particular the Avitnesses meant by the dislinc- tious of tame and wild was not explained ; but it rather seemed thiit their meaning was that some were less shy and timid than others. It appeared that the deer very rarely escaped out of the boundaries ; that thej' were attended by keepers, and were fed in the winter with hay, beans, and other food ; that a few years back a quantity of deer had been brought from some other place and turned into Eridgo Park ; that the! does were watched, and the fawns, as they dropped, were constantly marked, so that their age at a future time might be ascer- tained ; that, at certain times, a number of deer were selected from the herd, caught with the assistance of dogs, and wei-o put into cer- tain parts of the park, which were then inclo-sed from tho rest, of suffi- cient extent to depasture and give exercise to the selected deer, whicli were fattened and killed, either for consumption, or for sale to venison dealers; that the deer were visually killed by being shot ; and that theru was a regular establishment of slaughterhouses for preparing and dressing them for use. Such being the general effect of the evidence, the learned judge stated to the jury, that, by the general law, deer in a park went to tin- heir-at-law of the owner of the park ; but that deer which were tame »nd reclaimed became personal property, and wont by law to the personal representatives of the owner of them, and not to the heir of the owner of the park in which they were kept. And the learned jiidge left it to the jury, whether the place in question was proved by the evidence to have been an aacieut park, with the legal rights of a park, and tnM [317] k . AUGirMKNC OK THR INTTED 8TATKN, iliciii f.liat, it' it had beuii (in iiiiuieut park, and tbu boundariuH could Hot now 1(0 Hscertaini'd, that the fmnchiso might be forfeited in refer- I'ncf to the cTown, hut that that wouhl not affect the quention between the parties relative to the doer, that question beinf; whether the deer were tamed and rechiimed ; which muHt bo determined with reference to the Klatc and eunditiou of the animalN, the nature of the place whore they wci-e kept and the mode in which they had been treated : and the learn(-d judj^e stated in writing the questionH to be auHwerod by the jury, which were, tirHt, whether they found for the plaiutiffH, the execii- toi'H, or for the defendant, Lt)rd Abergavenny ; Hccondly, whether they found the place to be an ancient park, with the incidents of a luf^al park ; ' marks lie pit lirtlly, park; thirtlly, whether the bonndaiiea could be ascertained by distinct The juiy anHvvered, that they found the place to be an ancient park, with all the incidents of a legal park; secondly, that the boundaries of the ancient park could he ascertained. And the jury ej^presscd a wish to abstain from findin^j for either plaintiffs or defendant ; but, upon beinp required to do so, they found a verdict for the plaintifFs, and stated that the animals had been originally wild, but nad been re- claimed. Tlu! rule eame on for .irgument in Easter term, 1848 ; and it appeared, upon tiic discussion, that the objection that no sufficient verdict had been foi;nd by the jury, had been urged upon a mi8a])prehension of what the jury had said. It was supposed that the jury had not found, in terms, for either plaintiffs or defendant, but merely had answered the quesiions put to them : but it appeared, upon inquiry, that the jury liad been re(|uired to Hnd a verdict for the plaintiffs or for the defen- dant, in addition to answering the questions ; and that they accordingly returned a verdict for the plaintiffs. The second objection was that the judge had misdirected the jury ; and it has been contended, in support of that objection, that the judge must bo held to have misdirected the jury in having omitted to im- press sufficiently ujxm them the importance of the fact of the deer being ke[)t in an ancient legal park. lint the judge did distinctly direct the attention of the jury to the fact of the deer being in a legal park, if such should be their opinion of the place, as an important ingredient in the consideration of the (|uestion whether the deer were reclaimed or not when he directed thorn that the question whether the deer liad been reclaimed must l>e de termined by a consideration, among the other matters pointed out, of the nature and dimensions of tlie park in which they were confined ; and wo do not perceive any objectionable omission in the judge's direc- tion in this respect, unless the jury ought to have been directed that such fact was conclusive to negative tho reclamation of the deer. It has not been, on the part of the defendant, contended, in terms, that deei- kept in a legal park can in no case bo deemed to have been tamed or reclaimed, although the argument seemed to bear that aspect; but the many cases to be found in the books in which tho question has been agitated, in whom the property was of deer -n a park, seem quite inconsistent with such a position ; because in all such cases the argu- ments proceeded upon the distinct fact that the deer were in a park, that is, a legal park ; and the question was whether deer continued to be wild animals, in which no property conld be aoqaired, and which, therefore, like other game and wild animals, being upon the lai'^' passed with the estate, or Avhether, by reason of their being tamed and reclaimed, a property could be acquired in the deer 'l-^fcinct from tli* API'EXniX TO PART TIUKD— DIVrsiON 1. 2o cittHU', ulthou^'li reniiiiniiig' iti thu park, and whicli would pasH in liko imiiintT aH otliiT perKonal properly. The f,'t'norHl poHitioji, tlu'ivforc. to be found in all tlic hoolcN. that dccf in a ))ark will ])aHH to the lieir imicss tamed and i-cclairnt'd, in wliicli (•ft.sc tlioy would paHH to the executor, Mceins to be inconsiNtent with the |)o.iition that deer can not, in any case, he considen'd as tanieil and iccluinied whilnt they continne in a lepil park. Many authorities are citod upon that Hubjoet, the names of which it is not nrocsxary ot iiJvprt to. The oi)8or\'ationH made in su])port of the rule, on the {.art of the (lefeiulant, were rather addressed to a complaint that the learned .judj,'e did not give so much weij^ht to the fact of this beinjjf a lepal parkas they thought belonged (o it, than to any exception to what the judyc really S'lid upon the siibjcct. There can be no doubt that the learned counsel on tho part of the defendant did not omit to impress up"" ♦^hc jury his view of the importance of the fact of the de(>r bciuff found im , n ancient and lefj;al piuk ; and nothing.; is stated to have fallen from tin judj,''e calculated to withdraw the attention of the jury from the obsf rv.itions of the counsel made in that respect, or to diminish the force . bich jjstly attnclu's to any iif them. It remains to be considered whether the arguments in support of the rule li .' s'lown that the verdict upon the issue, whciht i the door were tame and reclaimed, was wan-anted by the evidence. In showing cause, on the part of the plaintiff, against the rule, it was contended that the conclusion of the juiy that Bridge Park continued to pos.sess all the incidents of a ii'ffal park, was not warranted by the evidence; because it was said tlmt the franchise had been forfeited by the addition of other linma tu the ancient park, and the destruction of the means of asc* -hiining the ancient boundaries ; and numerous authorities were referred to, relating to the requisites for constituting an existing legal park, and of the lauses of the forfeiture of the franchise. IJnt the opinion which the coc.rt has formed iipon the other ])arts of the case, renders it unnecessary to enter into the consideration of that question, or into an examination of the iinthorities referred to. That it was proper to leave the ([uestion to the jury in the terms in which tiie issue is expressly joined can not be disputed, and the direction that that (|uestion must be determined by referring to the ])lace in which the deer were kejjt, to the nature and habits of the animals, and to the mode in which they wore treated, uppcar.s to the court to bi' a I'orrect direction; and it seems difficult to ascertain by what other means the question should be determined, whether the evidence' in this cast! Avas such as to wari'ant a conclusion that the deer were tamed and reclaimed. The court is, therefore, of opinion that the rule can not be sii|)ported on tlie ground of misdirection. It is not contended that there was no evidence Ht to bo submitted to the jury, and that, therefore, the plaintiff ought to have been non- saited ; but it is said that the weight of evidence was against the verdict. In considering whether the evidence warrautr ' the verdict upon the issne, whether the ceer were tamed and locHimed, the observations made by Lord Chief Justice Willes in the case of Davies v. Powell are Jeserving of attention. The difference in regard to the mode and object of keeping deer in modern times from that which anciently prevailed, M pointed out by Lord Chief .Tnstico Willes, can not be over- looked. It is truly stated that ornament and profit are the solo ob- [317] i2 'f\ ',wv; , I 126 AllGL'.ME>fT OF THE LfNfTKD STATES. jects for which deer are now ordinarily kept, whether in ancient legal parks or in modern enclosures so-called ; the instances beinj^ very rare in which deer in such places are kept and used for sport ; indeed, their whole management differing very little, if at all, from that of sheep or of any other animals kept for profit. And, in this case, the evidence before adverted to was that the deer were regularly fed in the winter ; the does with young were watched ; the fawns taken as soon as dropped, and marked ; selections from the herd made from time to time, fattened in places prepared for them, and afterwards sold or consumed, with no difference of circumstance than what attached, iis before stated, to animals kept foi' profit and food. As to some being wild, and some tame, as it is said, individual a.uiniiii.s, no doubt, differed, as individuals in almost every race of animals are found, under any circumstances to differ, in the degree of tameness that bdongs to them. Of deer kept in stalls, some would be found tame and gentle, and others quite irreclaimable, in the sense of temper and quietness. Upon a question whether deer are tamed and reclaimed, each case must depend upon the particular f cts of it ; and in this case, the court think that the facts wei'e such as m li o proper to be submitted to the jury ; and, as it was a question of fact for the jury, the court can not perceive any sufficient grounds to wan-ant it in saying that the jury have come to a wrong conclusion upon the evidence, and do not feel authorized to disturb the verdict ; and the rule for a new trial must, therefore, be discharged. Rule discharged. [John Davies v. Thomas Powell and six others. Willes's Eeports, 1737-1758.] The following opinion of the court was thus given by Willes, Lo)'d Chief Justice : Trespass for breaking and entering the close of the plaintiff, called Caversham Park, containing 600 acres of land, in the parish of Caversham, in the county of Oxford, for treading down the grass, and for chasing taking and carrying away diversan feras, videlicet, 100 bucks 100 docs and 60 fawns of the value of £600 of the said plaintiff, incluias et coarclatas in the said close of the said plaintiff. Damage £700. The defendants all join in the same plea; and as to the force '"J arms, etc., they plead not guilty, but as to the residue of the tre-pass they justify as servants of Charles Lord Cadogan, and oeb forth tliat the place whiTo, etc., at the time when, etc., was, and is a park inclosed and fenced with pales and rails, called and known by the name of Caver- sham Park, etc. ; and that the said Lord Cadogan was seized thereof and also of a messuage, etc., in his demesne as of fee, and being so seized on the 3d of August, 1730, by indentui-e demised the same to the plain- tiff by the name (inter alia) of all the said park called Caversham Park from Lady-day then last past for the term of 7 years, under tho rent of £124 2s. The deer are not particularly demised, but there is a covenant that tho plaintiff, his executors, and administrators should from time to time during the term keep the full number of 100 living deer in and upon the said demised premises, or in or upon some parts thereof. And Lord Cadogan covenants to allow the plaintiff in the winter yearly during the term twenty loadt) of boughs and lops of trees for browse for his deer to feed on, calling them there, as he does in other parts of the lease, the deer of the said John Davies ; and likewise covenants that if the plaintiff shall on the feaat of St. Michael next before the expiration thereof pay Lord Cadogan all the rent that APPENDIX TO PART THIRD — DIVISION I. 127 would be due at the expiration of the lease, then the plaintiff, his ex- ecutors, etc., might sell or dispose of any or all of the deer that he or they should have in the said park at any time in the last year of the said term, anything in the said indenture to the contrary in anywise notwith- standing. And the defendants justify taking the said deer as a distress for £186 rent due bt St. Thomas-day, 1731, and say that they did seize, chase, and drive away the said deer in the declaration mentioned then and there found, " being the property of and belonsring to the said John Davies," in the name of a distress for the said rent ; and then set forth that they complied with the several requisites directed by the act con- cerning distresses (and to which there is no objection taken) that the deer were appraised at £161 15s. 6fZ., and that thoy were afterwards sold for £86 19»., being the best price they could get for the same ; and that tlie said sum was paid to hovd Cadogan towai'ds satisfaction of the rent in arrear ; and that in taking such distress they did as little damage as they could. To this plea the plaintifE demurs generally, and the defendants join in demurrer. And the single question that was submitted to the judgment of the court is whether these deer under these circumstances, as they are set forth in the pleadings, were distroinable or not. It was insisted for the plaintifE that they were not ; (1) Because they were jWiv natntv, and no one can have absolute property in them. (2) Because they are not chattels, but are to be considered as heredita- ments and incident to the pai'k. (3) Because, if not hereditaments, they were at least part of the thing demised. (4) Their last argument was drawn ah inunlfato, because thei-e is no instance in which deer have been adjudged to be distrainable. First. To support the first objection, and which was principally relied oil by the counsel for the plaintiff, they cited Finch 176; Bro. Abr., tit. •Property," pi 20; Keilway, 30 b; Co. Lit. 47 a; 1 Rol. Abr. G6(]; and sovci-al other old books, wherein it is laid down as a rule that deer are not distrainable ; and the ease of Malloc^ke v. Eastley, 3 Lev. 227, where it was holden that trespass will not lie for deer, unlesw it appears that they lire tame and reclaimed. They likewise cited 3 Inst. 109, 110, and I Hawk. P. C. 94 to prove that it is not felony to take away deer, conies, etc., unless tame and reclaimed . 1 do admit that it is generally laid down as a rule in the old books that deer, conies, etc., are ferw, naturw, and that they arc not distrainable ; and iiraan fan only have a property in tliem rations loci. And therefore in the caso of swans, (7 Co. 15, 10, 17, 18) and in several other books there cited It is laid down as a rule that where a man brings an action for diasiDji.', and taking away deev, luires, rabbits, etc., he shall not say suony i)ecau8(3 he has them only for his game and pleasure ratione privilegii whils',; t!iey are in his park, warren, etc. But there are writs in the register (fol. 102), a book of the greatest authority, and se?eral other places in that book which show that this rule is not always adhered to. The writ in folio 102 is " quare dansiun ipsitcs A. freget et intravit, Sf cunicidos suos cepit." The reason given for this opinion in the books why they are not diitrainable is that a man can have no valuable property in them. But t!ie rule is plainly too general, for the rule in Co. Lit. is extended to dogs, yet it is clear now that a man may have a valuable property in a 'log. Trover has been several times brought for a dog, and great ;h: t 'M 128 AUGUMENT OF THK UNITED STATES. H ilnmncoa linve been recovered. Besides the nature of things is now very much altered, and the reason which is given for the rule fails. Deer wore formerly kept only in foi-estK (jr chases, or such parks us were parks either bv fjrant or prescription, and were considered rathtii' as thinfjs of pleasure than of profit; Isnt now thoy are frequently kept in inclosed grounds which ai'e not properly parks, add are kept princi- pally for the sake of protit, and therefore must bo considered as other cattle. And that this is the case of the deer which ai*e distrained in the present case is admitted in the pleadings. The plaintifE by bringing an action of trespass for them in some measure admits himself to have a property in them ; and they are laid to })c inclnsas of coarrtatan in his close, whiijii at least gave him a property rafintir loci; and they are laid to be taken and distrained there; but what follows makes it still stronger, for in tho demise set forth in the plea, and on which the question depends, they are several times called th- di'i-r of John Davies, the plaintiff, and he is at liberty to dispose of them as his own before the expiration of the teini on tho condition there mentioned. And it is expressly said that the defendants distrained the deer being the property of the said John Davies; it is also plain that he had a valuable property' in them, they having been sold for £86 19s., both which facts are admitted by the demurrer. Tho plaintiff therefore in this case is estopped to say cither that he had no property in them or that his property was of no value. Besides it is expressly said in Bro. Abr., tit. " Propertj'," pi. 44, and agreed in all the books, that if deer or any other things fera; natum become tame a man may have a property in them. And if a man steal such deer it is certainly felony, as is admitted in \\ Inst., 110, and Hawk P. C, in the place before cited. Upon a supposition, therefore, which f do not admit to be law ug\,, that a man can have no property in any but tame deer, these must be taken to be tame deer, because it is admitted that the plaintiff' had a property in them. Second. As to their not being chattels but hereditaments and inei. dent to the park and so not distrainable, several cases were cited: Co. Lit., 47 b. and 7 Co. 17 b.; where it is said that if the owner of a park die the deer shall go t> his heir and not to his executoi's; and the statute of Alarlbridge (52 Hen. IIT, c. 22), where it is said that no one .shall distrain his tenants de libero tenemento sito ncc dc aliquibm ad lihcnim. tfnemndum spectantihus. I do admit the rule that heredita- ments or things annexed to the freehold are not distrainable; and possibly in the case of a park, properly so called, which must be either by gi-ant or prescription, the deer may in some measure be said to be incident to the park ; but it does not appear that this is such a park, nay it must bo taken not to be so. In the declaration it is stilcd Ih- closr of the plaintiff, called Caversham Park. In the plea indeed it is stiled a park, called Caversham Park ; but it is not said that it is a park eithei- by grant or prescription ; and it can not be taken to bo so on thcFe pleadings, but must be taken to be a close where deer have been kept, and which therefore has obtained the name of a park, becausi; the deer, as I mentioned before, are called the dwr of John Davies, and because he is at libei-ty to sell them, and so to sever them from the park before the (>xpiration of the term. And in Halo's History of the Pleas of the Crown (1 vol. fol. 491), cited for the defendants, it is ex- pressly said that there may be a park in reputation, "as if n man inclose a piece of ground and pnt deer in it, but that makes it not a ! •! ?! ' '.I .'5 APPENDIX TO PART THIRD — ^DIVISION I. ]2() park, without a proscriptiun timo out of mind or tlu' Kinp^'s charter." (\'h\. Stat., 21 Kd. !, df uKih-fachnihiix in ixiicis thoir ret'cn-ed ti)). Third. As to tho third objection timt the dcei* arc part of the thiii<^ (ieiiiiscd, and conHequently not distraiuable, the only easu which was cited to prove this was tho case of tithes, which is nothing to tho purpose ; because where tithes only ai'e let a man can not reserve a rent, it being uuly a personal contract. Without denying the rule, which I believe is generally true, the fact here will not warrant it, for they are not ])art of the thing demised. They are not men':ioned in the description of the par- ticulars, and cau not be part of the thing demised for t'le reason before given, because they may 1x5 sold and disposed of by the plaintiff before the expiration of the demise. Fourth. The last ai-gument, drawn ah iunnifato, though generally a very good one, does not hold in the present case. When the nature of things changes, the rules of law must change too. When it was holden that deer were not distrainable, it was because they were kept princi- pally for pleasure and not for profit, and were not sold and turned into money as they are now. But now they ai'e become as much a sort vjf husbandry as horses, cows, sheep, or any other cattle. Whenever they are so and it is universally known, it would be ridiculous to say that when they are kept merely for profit they are not distrainable as other cattle, though it has been holden that they were not so when they were kept oidy for pleasure. Tho i-ules concerning personal estates, which were laid down when personal estates were but small in proportion to lands, are quite varied both in coui-ts of iaw and equitj% now that per- Nonal estates ai'e so much increased and become so considerable a part of the property of this kingdom. Therefore, without contradicting the rca.sons which are laid down concerning this matter in the ancient books, and without determining anything with respect to deer in forests and chases or parks properly so called, concerning which we do not think it necessary to determine anything at present, we ai-e all of opinion that we are well warranted by the pleadings to determine that these deer, under the circumstances in which they appear to have been kept at the time when this distress was taken, were properly and legally distrained for the rent that was in arrear. There must therefore be judgment for the defendants. ■ • sffji] 'l! ■ ' ' i^>>^,-.d:i 41 lioo': ■ ■-'•■ ■ ■' ' : «'■■■ '■'■ ■ " ■tUii itj (n6 ,i^.iri>Mi'i ■iif'-w >.'l' ^,!t>i' ..•.il- -li' i \iinijtif huA .bai^ivuni h> !-t'V! * ''.a b. . ';...•■'' 1 ) .",!'; fIV; ! : r. r.'- 130 ARGUMENT OF THE UNITED STATES. 11 II. — The Right op the United States to Protect their Sealing Interests anp iNDnsTRV. The principal question which the United States Government conceives to be presented for the decision of this High Tribunal, is thus stated in the Case of the United States (p. 299) : Whether individuals, not subjects of the United States, have a ri^ht as against that Government and to which it must submit, to engage in the devastation complained of, which it forbids to its own citizens, and which must result in the speedy destruction of the entire property, industry, and interests involved in the preservation of the seal herd. In reply on its part to this question, thi-ee propositions of law are set forth by the United States Government in its Case (p. 300) : First. T'lat in view of the facts and circumstances established by the evidence, it has such a property in the Alaskan seal herd, as the natural product of its soil, made chiefly available by its protection and expend- iture, highly valuable to its people, and a considerable source of puhlic revenue, as entitles it to preserve the herd from destruction in the manner complained of, by an employment of such reasonable force as may be necessary. Second. That, iri-espcctive of the distinct right of property in the seal herd, the United States Government has for itself and for its people, an interest, an indu ry, and a commerce derived from the legit- imate and proper use of the produce of the seal herd on it.^ territory, which it is entitled, upon all principles applicable to the case, to pi tect against wanton destruction by individuals, for the sake of the small and casual profits in that way to be gained; and that no part of the high sea is or ought to be open to individuals, for the purpose of accomplishing the destruction of national interests of such a character and importance. Third. That the United States, possessing as they alone possess, the power of preserving and cherishing this valuable interest, are in a most just sense the trustee thereof for the benefit of mankind, and should be permitted to discharge their trust without hindrance. ]''\w RIGHT TO PROTECT INTERESTS AND INDUSTRY. 131 [EIR SeALINO iment conceives iius stated in the , have a right as to engage in the izens, and which ty, industry, and s of law are set 0): sstablished by the d, as the natural tion and expend- source of })ublic ion in the manner brce as may be property in the self and for its d from the iegit- n its territory, the case, to pi the sake of the ,d that no part of or tlie purpose of such a character alone possess, the rest, are in a most nd, and should be In the division of the argument that has been made between connsel for convenience' sake, the first and third of these propositions, which are naturally connected, have been exhaustively discussed by Mr. Carter. Before proceeding to that consideration of the second proposition which is the principal purpose of this argument, the undersigned de- sires to add in respect to the first, some bi-ief suggestions, which are perhaps only a restatement in a different foi-m, of what has been already Rdvanced. Whatever else is in dispute, certain facts in relation to the seal herd, its qualities, and its necessities, are not denied. The seal is an amphibious animal, polygamous, altogether 8ui gpuerw, and very peculiar in its habits. A fixed home upon land during several months in the year is necessary to its reproduction, and to the perpetuation of its species. It has established this homo, from the earliest known period of its existence, on the Pribilof Islands, to which it returns annually with an unfailing animus reverteivli and an irresistible instinct, and where it remains during several months, and until the young which are born there have acquired sufficient gi'owth and strength to depart on their periodic and regular migration. While on land it submits readily to the control of man, and indeed com- mits itself to his protection. And it is testified by credible witnesses that everj' seal in the herd, were it desired, could be branded with the mark of the United States. Tin; Government has fostered and protected the seals, as did the Russian Government, its predecessor in the ov/nership of these islands, by careful legislation and by constant and salutaiy executive control, and has established out of the seal products an important and valuable industry. Without this prelection the animal would long since have been exter- rainated, as it has been almost everywhere else. When the female seals arrive on the islands, they are pregnant with the young which were begotten there during the previous season. After the young are bom, the mothers, while suckling them, are accustomed almost daily, and from necessity, to run out to sea beyond the limits of the territorial waters in pursuit of food, leaving the young on the islands iluring their absence. Upon these facts alone, it is insisted by the United States Government, tliat it lias such a property in the seal herd, the produce of its territory ind appurtenant thereto, as entitles that Government to protect it from estermination or other unau^jhorized and injurioiis interference. HBB' . Cresswell's Rep., P'^'U: Keeble r. HicheringiH, Holt's Rep., p. 17, and Carrington v. Taylor, 1 East's Bep., \>- 571, and Re)K»rter'8 not*, from which extraets are given in appendix to this portion ol the argument, p. 180. 'vt.'i :'ts{V}ii\v.i ii.- !ii<;iii< • hUo '10 i.'ait.;.'ii.T RIGHT TO PROi-ECT [NTERESTS AND INDUSTRY. 138 this ciiHO it is gravely to be doubted, whether if the TTnitort States CroVdrii- lueut should now repel thorn from the Pribilof iNlands, and prevent hence- forth their landing; there hs they are neonHtomed to do, there in any other land inthose Heas, affording the requisite qualitiesof soil, climate, atmosphere, approach, propinquity to the water, food, and freedom from disturbance, on whii'li they would be able to reestablish themselves, so as to continue their existence. Especially docs the rule of law above stated apply to animals, which in their temporary departure from their accustomed home, cntei- upon no other jurisdiction, and derive neither sustenance nor protection from any other proprietor, but only pass through the waters of the common highway of nations, whei'e all rights are relative. ^ (2) But upon the broader principles of international law appliciiblc to the case, the right of property in these seals in the United States Government becomes still clearer Where animals of any sort, wild in their original natui-e, are attached and become appurtenant to a maritime territory, are not inexhaustible in their product, lire made the basis of an impori>ant industry on such territory, and wonld be exterminated if thrown open to the general and unrestricted parenit of mankind, they become the just pi-operty of the nation to which they are .so attached, and from which they derive the protection without which they would cease to exist, even though in the habits or necessities of their life some of them pass from time to time into the adjacent sea, beyond those limits which by common consent and for the purposes of defense, are regarded as constituting a part of the national territory. In such a case as this, the herd and the industry arising out of it become indivisible; and constitute but one proprietorship. While the United States Government asserts and stands upon the fnll claim of property in the seals which we have attempted to establish, it is still to be homo in mind that a more qualified right wonld yet be sufficient for the actual requirements of the present case. T'ne question here is not what is the right of ownership in an individual seal, shoald it wander in some other period int'" some other and far distant sea ; that is an inquiry not essential to be gone into ; but what is the right of property in the herd as a whole, in the seas, and under the circumstances, in which it is thus availed of by the United States Government as the foundation of an important national concern, and iu ft liOjlTv'.i'lL- 134 ARGUMENT OF THE UNITED STATES. which it in assailed by the Canadians in the manner complained of ? When this point is determined, all the dispute that has arisen in thJR case is disposed of. The principle of law last stated is not only asserted, without contra- diction, by the authoritative writers upon international jurisprudence, but has been acted upon, with the assent of all nations, in every case that has arisen in civilized times, within the conditions above stated. And upon that tenure is held and controlled to-day, b}' nations whose borders are upon the sea, all similar property, of many descriptions, that under like circumstances is known to exist. • Says Puffendorf (Law of Nature and Nations, book 4, chap. 5, sec. 7) : As for fishing, though it hath much more abundant subject in the sea than in lakes or rivers, yet 'tis manifest that it may in part be ex- hausted, and that if all nations .should desire such right and liberty near the coast of any particular country, that country must be very much prejudiced in this respect; especially since 'tis very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case thera is no reason why the borderers should not rather challenge to themselves this happiness of a wealthy shore or sea than those who are seated at a distance from it. Says Vattel (Book I, chap. 23, sec. 287, p. 126) : The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, etc. ; now in all these respects its use is not inexhaustible. Wherefore, the nation to whom the coasts belong may appropriate to themselves, and convert to their own profit, au advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possess themselves of the dominion of the lanil they inhabit. Who can doubt that the pearl fisheries of Bahrem unci Ceylon may lawfully become property ? And though, where the catching of fish ip the only object, the fishery appears less liable to be exhausted, yet if a nation have on their coasts a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature as au appendage to the countiy they possess, and to reserve to themselves tliu great advantages which their commerce may thence derive, in case there be a sufficient abundance of fish to furnish the neighbouring nations? ♦ * • {Sec. 288.) A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts, as far as they ire able to protect their right. Another suggestion is pertinent to the question. The whole herd owes its existence, not merely to the care and protec- tion, but to the forbearance of the United States Govei-nment within its AIOltT Trt PftOTECT iNTEREiSTS AND INDUSTRY. i35 ibap. 6, sec. 7) : etc. ; now in all exclusive jurisdiction. While the seals are upon United States terri- tory during the 'season of reproduction and nurture, that Government might easily destroy the herd by killing them all, at a considomble immediate profit. From such a slaughter it is not bound to i-efi-ain, if the only object is to preserve the animals long enough to enable them to be exterminated by foreigners at sea. If that is to be the result, it would be for the interest of the Government and plainly within its right and powers, to avail itself at once of such present value as its property possesses, if the future product of it can not be preserved. Can there be more conclusive proof than this of such lawful possession and control as constitutes property, and alone produces and continues the existence of the subject of it ? The justice and propriety of these propositions, their necessity to the general interests of mankind, and the foundation upon which they rest in the original principles from which rights of ownership are derived, have been clearly and forcibly pointed out by Mr. Carter. In a later part of his argument (pp. 164-169) many instances, past and present, in respect to many descriptions of marine and submarine prop- erty, from many nations, and from Great Britain and its colonies espe- cially, are gathered together to show what the usage of mankind on this subject has been and is. It is that general usage which constitutes the law of this case. And on this point, if it can be shown that any different nsage has ever prevailed in the case of any nation able to assert its inde- pendence, touching any similar property on which it set value, let such evidence be produced by those who are able to find it, and whose claims it will subserve. If in this instance the United States Govern- ment has no right of property which it is entitled to protect, the case would present the singular anomaly of being the only one in which that right has not been maintained, in respect to any valuable marine product similarly situated, or appurtenant in like manner to the temtory of a maritime country. It is against this view of the case, too obvious to escape the attention of the distinguished counsel for Her Majesty's Government, that they have chiefly struggled throughout the British Counter Case, for which they have thought it right to reserve their contentions, both in propo- sitions and evidence, in respect to the principal questions involved. Bat they have struggled in vain. The broad facts upon which it rests are either admitted or are incontestable. No mere attempt to dispar- ^e or diminish them, no cavil over details, no conjectural suggestions 13H .i;ii ARGUMENT OF TllK INITEH fiTATEft. unsaNtninod by proof, can break tiicir i'orco or changti thoir effect. And the lefi^al cundnHionH to which thoy conduct, can not be regarded at. this tlay aH open to sorious (|nc8tion. The case of tliu United States has thus far proceeded upon ib» ground of a national property in the seal herd itself. Let it now W nssuracd, for the purposes of tho argument, that no such rigiit of pi-opcHv is to bo admitted, and tliat tho seala are to be regarded, outside of tt'i- ritorial waters, as ferw naturw in the full sense of that term. Let tlieni be likened, if that bo possible, to the fish whose birthplace and liomc are in the open sea, and which only approach the shores for tho purpoMP of food at certain seasons, in snc^h numbers as to render tho fishincr their pi'oduclive. The question then remains, whether upon that hypothesis, the indus- try established and maintained by the United States (vovernnieiit on the Pribilof Islands, in the taking of the seals and the commerce that is based upon it. are open to be destroyed at the pleasure of citizens nf Canada, by a method of pursuit outside the ordinary line of teri-itorial jurisdiction, which must result in the extermination of the animals. Ts there, even iu that view of the case, any principle of internationnl law whicb deprives the United States Government of the right to ik'- fend itself against this destruction of its unquestioned interests, planted and established on its own territory ? In other woi'ds, is the liglit of individual citizens of another country to the temporary pi-ofit to be derived out of such extermination, superior on the high sea to that of the United States GroveriTment to protect itself against flio eonso- quences. This, if the strict right of property can be successfully denied, i.s the precise question addressed to tho consideratifni of the Tribunal. Alxstrnct speculations can only be useful, so far as thev tend to conduct to a jnst determination of it. Before proceeding to a discussion of this question, the material facts and conditions upon which it arises should be clearly pei'ceived and understood. For it is upon these and not upon theoretical considerations that the argument reposes. (1) It is to be observed in the first place, that the interest in the business which it is sought to protect, is an important interest and resource of the Government itself. The seal industry on these islands was one of the principal indncc- ments to the pui-chase of Alaska by the United States from the Rns- I; RIGHT TO PHOTKCT INTERESTS AND INDT^STRY. 137 siau Govornniunt, for u large Hiim ol' momy. Ttit! cure iind pu)«uit of the sealH were immediately mode the Hubject uf legiHlation by Congress, under which the whole buHinoNS liaa been since regulated, protected, and carried on by the Government, as it had been before by Rnssia, in such manner as to preHerve the vxistenco and to increase tho numbers of the seal lierd, and to make its prod net valuable to those engaged in it, and a source of a considerable public revenue to the Government. (See U. S. Revised Statutes, sees. 1956-1975.) It pays to the Government, as the evidence shows, a direct revenue »i about $10 per skin, and a considerable indirect revenue upon the im- portation of the dressed furs; and to the company, which under lease from the Government and subject ^o its regulations canies on the bnsineHN, it affords a large annual retui-n, which enables them to make their payments to the Government. To the inhabitants of the islands and many others directly employed or indirectly concerned, it gives the means of subsistence. , , Xor are the United States alone the recipients of the profits, or in- tpre.stcd tr) preserve this industry. The principal manufacture of mor- clmntable furs from the raw skins is carried on in London, where largo huuscs are engaged in it, employing as the proof shows, between 2,000 and :^,(J00 persons. London is also the headquarters of the trade in the product, and of the commerce through which it is distributed. It is probable that the interest of Great Britain in the preservation of the m\ hei-d is almost as great as that of the United States. ' The civilized world outside of these two countries is likewise con> ciTiied in preserving from extinction the valaable pit .ct of these isliinds. It enters largely into human use ; there is no substitute for it. especially in view of the gi-eat decrease of fur-bearing animals ; and nowhere else on the globe is the seal fur produced in any con.siderable quantities. Almost everywhere this valuable animal has been exter- minated, by the same reckless and wasteful pursuit that is complained of hei-e. .1 ,;,„ ;,.,, .1 .^ uu . ■.. , ''■ It is pertinent to remember, in this connection, that if the nation that is contending for the pi'eservation of this product of its territory was but small and poor, and this resource for revenue and subsistence, instead of being one out of many, were the only one it possessed, so that its very existence depended upon the maintenance of it, the principles »f international law applicable to the subject would be precisely the ^»me as they are now. The case would be relatively of greater im- );:| *1 v » I s »'Wi !• l.'{8 AIUIUMKNT Oh THi; I'MTKi) .«y arc the foundation of many maritime rights, long recognized and establisheil; that they have received the sanction of courts of justice whenever they have been brought under judicial consideration, and of all writers upon the subject whose views are entitled to weight : that they are supported RIGHT TO PROTECT INTERESTS AND INDUSTRY 141 bv many histoiic precedents, the rij^litfulness of which has never been railed in question ; and that no precedent or authority can be produced, judicial, juridical, or historical, for such a right in the open sea ns is claimed by the Canadians in the present case. That the sea was at an early day regarded as subject to no law is probably true. It was the theatre of lawless violence and the home of piracj-. But this condition was soon found intolerable. The assumption of a dominion over it by adjacent maritime nations became a necessity in self-protection, and was therefore generally assented tf». The mare Uheruvi in all such waters gave way to mure clausum, not upon principle, but foi tiio sake of defense. Says Sir Henry Maine (Lectures upon International Law, pp. 7")-77) : The first branch of oui' inquiry brings ns to Avhat, at the birth of in- tiiiiatioual law, was one of the mo.st bitterly disputed of all questions, the (|m'sti()ii of inaro claitsniii iind mare liheriiin — sea under the dominion u'i a ]mrticiilar power, or sea open to all — names identified with the great reputations of Grotins and Selden. In all probability the question would not have arisen but for the dictum of the institutional Roman writers that the sea was by nature common property. And the moot point was whether there was anything in nature, wh.atever that word might have mtiiit, which either pointed to the community of sea or of rivers ; and also what did h'storj' show to have been the actual ]>ractice of mankind, and whethei' it pointed in any definite way to a general sense of mankind 11)1 the subject. We do not know exactly what was in the mind of a RdiiKiii lawyer when he sjioke of nature. Nor is it easy for us to form (veii a speculative opinion as to what can have been the actual condition of the sea in those primitive ages, somehow associated with the conception iif nature. The slender evidence before us seems to suggest that the si;^ at fivst was common, onl}- in the .sense of being universally open to depredation. * * * Whatever.' jurisdiction may have been asserted, probably did not spriug from anything which may be called nature, but was perhaps a sicui'ity against piracy. At all events, this is certain, that the earliest development of maritime law seems to have consisted in a movement from mare libcnnn, whatever that may have meant, to mare clansnm — - from navigation "n waters over which nobody claimed authoi'ity, to water's under the conti'ol of a separate sovereign. The closing of seas meant delivery from violent depredation at the cost or by the exertion of some power or powers stronger than tho rest. No doubt sovereignty over water began as a benefit to all navigators, and it ended in taking the form of protection.' ' Sir Heurj- Maine proceeds as follows : " Mr. W. E. Hall, in a verv interesting olmpter of his volume (Part ir, 2) has shown that international law in the modern tense of tlie words, began in a geneml system of mare rlaiixum. 'J'he Adristie, the Oiilf of Genoa, tho North Sea, and (lie Baltie were all elosed and were under authority, Mil linj^lund claimed to have preccdenee and to cxereiso jurisdietion of various kinds Iroui the North Sea and the parts of the Atlantic adjoining Scotland and Ireland, wutlnvards to the Bay of Biscay. In all these waters the omission to lower the flag to ii British ship would have been followed bv a cannon shot. Thenceforward the progress [317J ' K 2 r ifii 142 ARGUMENT OF THE UNITED STATES. m 5 1 When commerce became more extensive and better able to protect itself, the modern conception of the freedom of the sea, first formally Bet forth by Grotins, came gradually to be established. But the con- trary doctrine was contended for by the great judicial authorities in I'lngland. The views of Sir Matthew Hale and of Selden are well known. The powerful argument of the latter is a permanent monu- ment of the contention of his time in England. The opinion of Black. stone was to the same effect. As late as 1824 another eminent English writer, Mr. Chitty, in his Commercial Law, maintained the right of dominion by maritime nations over neighboring seas, founded upon the necessities of their bituation. The surrender by England and other maritime powers of their control over the seas, so long maintained, in reference to the growing sentiment of the world and the demands of free commerce, was slowly and reluctantly given. But that surrender was, as universally understood, for the purposes of just, innocent, and mutually profitable use by the nations whose borders touched the sea. It was not thrown open again to general lawlessness. The whole argu- ment in favor of the freedom of the sea was based upon the ground that its free use by mankind was inoffensive and harmless and con- ducivo to the general good; and, therefore, ought not to be arbitrarily restricted.' Says Mr. Justice Story : Every ship sails thei-e [in the open sea] with the unquestionable right of pursuing her own lawful business without interruption, but whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is »'/c ntere tm ut aliennm non. hvdas. (The Marianna Flora, 11 Wheaton's Kepts., U. S. Sup. Court, p. 41.) of E aritinie jurisdiction was reversed — from mare claiixum to mare Uherum ; aiid the sovereignty allowed by international law over a portion of the sea is in fact a decayed ami contracted remnant of the authority onro allowed to particular states over a great jinrt of the known sea and ocean " (p. 77). ' Qrotiua (Book ii, chap, ixi, sec. 12, p. 445) remarks : " It is certain that he who would take possession of the sea by occupation o^uld not prevent a peaceful and innoreitl navigation, since such a transit can not be interdicted even on land, though ordinarily it would be less neeco»ary and more dangerous." And Mr. Twiss (Int. Law, sees. 172, 185) says : " But this is not the case with the o|ien sea, upon which all persons may navigate without the least prejudice to any nation whatever, and without exposing any nation thereby to danger. It would thia seem that there is no natural warrant for any nation to seek to take possession of the oj)en sea, or even to restrict the innocent use of it by other nations. # * • The right of fishing in the open sea or ii'ain ocean is eoninion to all nations on the same principle which sanctions a commoi right of navigation, viz, that he who Jlshes in the open sea does no injury to any one, and the products of the sea are, in this respect, inexhaustible and sufficient for all." RIGHT TO PROTECT INTERESTS AND INDUSTRY. 143 Says Chancellor Kent (1 Commentaries, 27) : Every vessel in time of peace has a right to consult its own safety and convenience, and to pursue its own course and business without being disturbed, when it does not violate the rights of others. The freedom of the high seas for the inoffensive navigation of all nations is firmly established. (Amphlett, J., Queen v. Kehn, 2 Law Rep. Exch. Div., p. 119.) Nor was the right of self-dfifense on the sea ever yielded up or relin- quished by any nation. On the contrary, in every successive instance in the progress of civilization and the advance of commerce, in which restrictions upon the freedom of the sea were found necessary to the protection of any material interest or right, general or special, such restrictions were at once asserted, were recognized by general Jissent, and became incorporated into the growth of that system of rules {,nd usages known as international law. Some of them will be more particularly adverted to hereafter. The safety of states and the protection of their commercial interests were not sacrificed to the idea of the freedom uf the sea. That freedom was conceded for the purposes of such protection, and as affording its best security. There are no arbitrary restrictions imposed in modern times upon the freedom of the sea. Neither are there any arbitrary rights there. There, as elsewhere, liberty has two conditions; submission to just principles of law, and due regard for the rights of others. And these conditions aro enforced by the injured party, because they can be enforced in no other waj.i ' " Since, then, a nntion is obliged to preserve itself, it has a right to overytliing necessary for its preservation, for tlio law of nature gives us a right to everything without wliicli ffc Clin not fulfill our obligations. " A nation or state has a right to everything that can help to ward off imminent danger and to keep at a distance whatever is capable of causitig its ruin, and that from the very same reasons that establish its right to thing-i necessary to its preservation." (Vattel, sees. 18, 19.) "The right of self-defense is, necordingly, a primary right of nations, and it may be exercised, either by way of resistance to an immcdiiite assault or by way of precaution against threatened aggression. The indefeasible right of every nation to provide for its own defense is classed by Vattel among it^ perfect rights." (Twiss, Int. I.aw, iwrt I, see. 12.) "The right of self-preservation is the first law of nations, as it is of individuals." • * * " For international law considers the right of self-preservation us [irior ami )iaiiiinount to that of territorial inviolability." ^I'hillimore, Int. Law, chap. 10, sees. HI, IM,.) "In the last resort almost the whole of the duties of states are subordinated to the right of self-protection. Where law affords inadequate jirotection to the indi- Tidual, ho must bo permittnd, if his eidstenec is in cpiestion, to protect himself by whatever means may be necessary, • • * There are, howe^■er, circumstances falling short of occasions upon which evistencc is immediately in question, in which, If I h y»^ 144 AKGUMENT OF THE UNITED STATES. The right of self-defense by a nation upon the sea, and the right of municipal jurisdiction over a limited part of the sea adjacent to the coast. are not to be confounded, for the two are totally distinct. The littoral jurisdiction, indeed, is tmly a branch of the general right of self-defense, accorded by usage and common consent : first, because it is alwavs necessary for self-protection, and next, 'lecp.use it is usually sufficient for it. Upon no other ground was it ever attempted to be sustained. That jurisdiction must be limited by an ascertained or ascertainable line, is its necessary condition. That the right of self-defense is subject to iio territorial line, is equally plair. All rights of self-defense are the result of necessity. They are co-extensive with the necessity that gives rise to them, and can be resti-icted by no other boundary. As remarked bv Chief Justice Marshall, " All that is necessary to this object is lawful. all that transcends it is unlawful." Precisely what is the ,Hmit of jurisdiction upon the littoral sea, and precisely what are the nature and extent of the jurisdiction that can be asserted within it, whether it is absolute or qualified, territorial or extra- territorial, are questions that have been the subject of grave difference of opinion among jurists. Nor have they ever been entirely settled. They will be found to be discussed with a fullness of learning, a depth of research, and a masterly power of reasoning, to which nothiuff can bo added, in the opinions of the English judges in the important and leading case of The Queon v. Kehn (2 Law Rep. Exch. Div., 1870-77. pp. G3 to 239). These learned and eminent judges were not foitunate enough to agree upon all the questions involved, and every view tiiat can be taken of them, and every considei-'ation that is pertinent, are ex- haustively presented in their opinions. Upon these vexed questions it is not at all necessary to enter in tlic present case, for they have little to do with it. Whether the counlu- through a sort of exteusion of the idea of selC-preservation to include self-protection against serious hurts, states aro allowed to disregard certain of the ordinary I'uli^ of law, ill the same uianiier as if their existence were involved." (Hall, Int. Lii"'. chap. 7,. sec. 8.'1.) " If a nation is obliged to ^jrcscrvo itself, ifc is no less obliged carefully to pivscivo nil its members. The nation owes this to itjself, since the loss even of one of its members weakens it and is injurious to its preservation. It owes this also to thi' members in particular, in eonsequenco of the very act of association; for tlio.«e «lio compose a nation aro united for their defense and common advantage, and none ciin justly be deprived of this union and of the advantages he expects to derive froiii it, while he, on his side, fulfills tlio conditionB. The body of a nation can not, then, abandon a province, u town, or even a sing'ie individual who is a part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons founded on the public safety." (Vattol, sec. 17.) 'i!lM'-& RIGHT TO PROTECT INTERESTS AND INDUSTRY. 145 sions of one or the oHicr of these conflicting opinions are to be ac- cepted, is immaterial here. All authorities agree that the sole reason apon which a certain right of jurisdiction npon the sea, and within a limit that is variously stated, has been conceded to maritime nations, is found in the necessities of self-defense. This part of the dominion over the sea, whether it be greater or less, has never been surrendered. It is a remnant of the former move extended dominion, retained for the same reason for which that Avas asserted. Lord Chief Justice Cock- l)urn, in his opinion in the case just cited, reviews the history of this subject, quoting the language of every previous writer of repute, and referring to every judicial decision respecting it which then existed. He points out very clearly the different views that have prevailed and which then prevailed as to the nature of the jurisdiction, and as to the distance over which it could be extended. This limit has been variously asseited by writers of distinction and authority, at two days' sail, one hundred miles, sixty miles, the horizon line, as far as can be seen from the shore, as far as bottom can be found with the dead line, the i-ange iif a cannon shot, two leagues, cue league,, or so far as the Government might think necessary.' On the other point, the character of the jurisdiction, it may be assumed that by the controlling opinion of the present time, and by ' Tlio lord chief justice obserres : " From the review of these authorities we arrive at the following results: There can be no doubt that the suggestion of Byn- korslioek that the sea surrounding tlie coast to the extent of cannon range should be treated as bclongitig to the state owning the coast, has, ^. th but very few excep- tions, been accepted and adoi)ted by the publicists who have followed him during the last two centuries. But it is equally clear in the practical application of the rule in the respect of the particular of distance, as also in the still more essential particular of the diaractcr of sovereignty and dominion to be exercised, great differences of oi)inion have prevailed and still continue to exist. As regards dis^-'iice. while the majority of authors have adhered to the three-mile zone, otliers, Jike M. Ortolan and Mr. Halleck, applying ivith greater consistency the ]irinciplo on which the ivliole doctrine rests, insist on extending the distance to the modern range of cannon -in other words, doubling it. This difference of opinion may be of little practical im])orranee in the present circumstances, inasmuch as the place at which the offenw* occurred was within the lesser distance; but it is nevertheless not immaterial as showing how imsettled this doctrine still is. The question of sovereignty, on the other hand, is all important, and here we have every shade of ojnnion. • • • Looking at this we may properly auk those who contend for tiie application of the osisting law to the littoral sea, independently of legislation, to tell us the extent to which we are to go in applying it. Are wo to limit it to three miles, or to extend it to six ? Are we to treat the whole body of the criminal law as applicable to it. or only so much as relates to police and safety ? Or are we to limit it, as one of these authors proposes, to the protection of fisheries and customs, tlie exacting of harbor and I'ke dues, and the protection of our coasts in time of warP Which of these writers are we to follow ? " 111 ■'i'.'i' li'H l';fv ■fi lM '-ill Hi ■V. Pi! M rr,M M I if 143 ARGUMENT OF THE UNITED STATES. the usage of nations, it is not regarded as so far absolute tliat a nation may exclude altogether from within the range of cannon shot the ships of another country, innocently navigating, and violating no reasonable regulation of the municipal law. Bat the power which may be exertid within that limit is only coextensive with the just requirements of the self protection for which it exidts, although undoubtedly the nation exercising the jurisdiction must be allowed, so long as it acts in good faith, to be its own judge as to the regulations proper to be prescribed and the manner of their enforcement.' This somewhat indefinite area of a greater or less jurisdiction over the marginal sea, which has thus come to be recognized and conceded, though accorded for the purposes of national self-protection, is by no means its boundary. It illustrates the right of which it is an example, but does not exhaust it. It is but one application of the principle out of many. The necessity which gave rise to it justifies likewise the larger power, and further means of defence, which may from time to time be required. No nation, in whatever statute or treaty it may have assented to the three-mile or cannon-shot limit of municipal juris- diction, has ever agreed to surrender its right of self defense outside of that boundary, or to substitute for that right the contracted and qualified power which is only one of the results of it, and which must ' Says Sir Robert Phillimore, in his opinion in Queen v. Kelin : " The sound coiichisioiis which result from the investigation of tlie authorities which hare been refei-red to nppear to me to be these : The consensus of civilized independent states lias rccognizi'il a maritime extension of frontier to the distance of three miles from low water jiiiirk, because such a frontier or belt of water is necessary for the defence and security of tho adjacent state. " It is for the attainment of these particular objects that a dominion has been granted over these portions of the liigh seas. " This proposition is materially different from the proposition contended for, viz : that it is competent to a state to exercise withm these waters tlio same rights of jurisdiction and property which appertain to it in respect to its lands and its porti<. Tliero is one obvious test by which the two sovereignties may bo distinguished. " According to modern internationol law it is certainly a right incident to each ctiitc to refuse a passage to foreigners over its territory by land, whether in time of peace or war. But it does not appear to have the same right with respect to preventing the passage of foreign ships over this ])ortion of the high seas. " In the former case there is no Jus transitus ; in the latter ease there is. " Tlie reason of the thing is that the defence and security of the state does not require or warrant the exclusion of peaceable foreign vessels from passing over these waters, anil tho custom and usage of nations has not sanctioned it." Lord Cockburn, in Queen v. Kehn, speaking of the claim that a nation has the riglit of excluding foreign ships from innocent jxissage within tho three-mile limit, soys it i» n "doctrine too monstrous to be admitted." And again, "No nation has arrogated to itself the right of excluding foreign vessels from the use of the external littoral craters for the purposi of navigatioi.." RIGHT TO PROTECT INTERESTS AND INDUSIRY. 147 ute that a nation on shot the ships ig no rensonable ih may be cxertid requirements of ibtedly the nation 15 it acts in good r to be prescribed jurisdiction over ed and conceded, tection, is by no L it is an example, the principle out ifies likewise tlio lay from time to or treaty it may )f municipal juris- f defense outside 16 contracted and t, and which must inion has been granted often prove inadequate or inapplicable. On the contrary, as will be seen hereafter, many nations have been compelled to assert, and have successfully asseited, much wider and larger powers in the defence of their manifold interests. It is under the operation of the same principle on which jurisdiction is awarded to nations over the sea within the 3-mile or cannon-shot limit, that a similar jurisdiction is allowed to be exercised not only over navigable rivers, bays, and estuaries, which may be fairly re- garded as lying within territorial boundaries, but over those larger portions of the ocean comprised within lines drawn between distant promontories or headlands, and often extending much more than three miles from the nearest coast. Such waters were formerly known in English law as " the King's Chambers." ' Chancellor Kent remarks on this subject (I Com., pp. 30, 31) : Considering the great extent of the line of the American coasts, wo have a right to claim for fiscal and defensive regulations a liberal ex- tension of maritime jurisdiction ; and it would not be unreasonable, as I apprehend, to assume, for domestic purposes connected with our safety and welfare, the control of ^the waters on our coasts, though included within lines stretching from quite distant headlands, as for instance, from Capo Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south capo of Florida to the Mississippi. The principle on which this .exercise of maritime jurisdiction reposes is only that of self-defense. As Chancellor Kent further observes (1 Com., p. 26) : Navigable rivei's which flow through a territory, and the seacoast adjoin- ing it * * * belong to the sovei'cign of the adjoining territory, as being necessary to the safety of the nation and to the undisturbed use of the neighboring shores. That the right of self-defense is not limited by any physical boundary, but may be exerted wherever and whenever necessity requires it, upon the higli sea or even upon foreign territory, is not only the inevitable result of the application of just principles, but is established by the highest autho- rities in the law of nations. 'Sir Henry Maine says (Lectures on International Law, p. 80) t "Another survival of larger pretensions is tlie English claim to exclusive authority over what were called tlie King's Cliambers. These are portions of the sen cut off bv lines drawn from one promontory of our coast to another, as from Lands End to Milford Haven. The claim has been followed in America, and a jurisdiction of the like kind is asserted by the United States over Delaware Bay and other estuaries which enter into portions of their territory." m f^-i 148 AKGUMENT OF TIIR UNITED STATES. Vattcl says upon this subject (p. 128, sec. 289) : It is not cnsy to determine to what distance the nation may extend its rights over the sea by which it is surrounded. * * * Kach state iniiy on tills liead make wliat reguhition it pleases so far as respects tlie trans- actions of the citizens with eadi other, or their concerns witli tlio sov- ereign ; but, between nation and nation, all that can reasonably he said is that in general the dominion of the state over the neighboring spas extends as far as her safety renders it necessary, and her power is able to assert it. Chancellor Kent observes (1 Com., p. 29) : It is difficult to draw any precise or determinate conclusion amidst the variety of opinions as to the distance to which a state may lawfully extoiul its exclusive dominion over the sea adjoining its territories and beyond those portions of the sea which are embraced by harbors, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends. All tliat can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety and for some lawful end. And states may exercise a more qualified jurisdiction over the seas near their coast for more than the three (or five) mile limit for fiscal and defensive purposes. Both Great Britain and the United States have pro- hibited the transshipment within four leagues of their coast of foreign goods without payment of diities. ' (Kent Com. i, p. 31.) In the case of Church v. Hubbart (2 Cranch, Rep. 287), the Supreme Court of the United States unanimously held that " the right of a nation to seize vessels attempting an illicit trade is not confined to their harbors or to the range of their batteries." It appeared in that case that Portugal had prohibited trade with its colonies by foreigners. A ' Mr. Twiss snys (vol. i, pj). 241, 242, Int. Law) : " Further, if the free and ('(miniuii use of a tiling which i.s incapable of being appropriated were likely to be prejudieinl or dangerous to a nation, the care of its own safety would authorize it to reduce that fliiiiL' under its exclusive empire if possible, in order to restrict the use of it on the part "( others, by such precautions as j)rudeiice might dictate." Wildman, on the same point says (Int. Law. vol. I, p. 70) ; "The sea within gunsliot it the shore is occupied by the occupation of the coast. Beyond this limit maritime stiitc- liave claimed a right of visitation and inquiry within those parts of the ocean adjoinini; to their shores, which tlie common courtesy of nations had for their common eonvenieiici' allowed to be considered as parts of their dominions for various domestic purposes, airl jiarticularly for fiscal and defensive regulations more immediately affecting tlioir safety and welfare." Creasy (Int. Law, sec. 245) remarks : " States may exercise a qualified jurisdiction ever the seas near their coasts for more than the three (or five) miles limit, for fiscal aiul defensive purposes, that is, for the purpose of enforcement of their revenue laws, niul in order to prevent foreign armed vessels from hovering on their coasts in a menacing and annoying manner." And Halleek says (Int. Law, chap. 6, sec. 13) the three-mile belt is the subject of territorial jurisdiction. " Even beyond this limit states may exercise a qualified jurisdiction for Qscal and defeniivc purposes." RIGHT TO PROTECT INTERESTS AND INDTTSTRY. 149 foreign vessel found to have been intending such trade was seized on the; liigh seas, 'carried into a Portuguese port, and there condemned. And it was held that the seizure was legal, Chief Justice Mai-shall deliver- ing the opinion of the court. He points out with great cleai-ness the difference between the right of a nation to exercise jurisdiction, and its right of self-defense.' Lord Chief Justice Cockburn, in his opinion in the case of Queen v. Kehn, supra, cites this decision with approval, and quotes from the opinion. He says (2 Law Rep., 214) : Hitherto legislation, so fur as relates to foreigners in foreign ships in this part of the sea, has been confined to the maintenance of neutral rights and obligations, the prevention of breaches of the revenue and fishery laws, and, under particular circumstances, to cases of collision. In the two first, the legislation is altogether irrespective of the three- mile distance, being founded on a totally different principle, viz, the right of the state to take all necessary measures for the protection of its territory and rights, and the prevention of any breach of its revenue laws. This principle was well explained by Marshall, C. J., in the case of Church V. Hubbart.'- The opinion of Chief Justice Marshall and the language of Lord Cockburn, above cited, very clearly illustrate the distinction between a municipal statute and a defensive regulation. The one emanates from the legislative power, and has effect only within the territorial jurisdic- tion in which it is enacted, and npon those subject to that jurisdic- tion elsewhere. The other i^ the exertion of executive authority when necessary for the protection of the national interest, and may take place wherever that necessity exists. Statutes intended for such protection may, therefore, have effect as statutes within the jurisdiction, and as ilefensive regulations without it, if the Government clioose so to enforce them, provided only that such enforcement is "necessary for just defense, and that the regulations are reasonable for that purpose. (Infra, pp. 169-171.) •Such was the view of the United States Supreme Court in the Say- ward Case, in respect to the operation of the acts of Congress before referred to, for the protection of the seal in Bering Sea. In that case ' For full quotations from this opinion, see Appendix to this argument, infra, p. 181. '^ After quoting at large from Cliief Justice MarshaU's opinion, Lord Cockburn ))roceed8 to say : " To this class of enactments belong the acts imposing penalties for the violation of neutrality and the so-called ' hovering acts ' and acts relating to the customs. Thus, the foreign enlistment act (33 and 34 Vic. C. 90) which imposes penalties for various acts done in violation of neutral obligations, some of which are applicable to foreigners as well as to British subjects, is extended in S. 2 to all the dominions of Her Majesty, 'including the adjacent territorial water*.' " ll^U-^ .' . "■ i; ' :' 1^ ;h":f r! ^# s--tv, 1^^^ p-\..i H^^' i" ii\' m^ 150 ARGUMENT OF THE UNITED STATES. il III a Canadian vossol had been captured on the hij^h sea by a United States cruiser, and condemned by decree of tbc United States District court, for violation of the regulations prescribed in tlioso oots ; and it was claimed by tlio owners that the cn])ture was unjustifiable, as beinj^ nn attempt to give effect to a municipal statute outside the municipal juris- diction. The cnso was dismissed because it was not properly before tlii' court. But in the opinion it is intimated that if it bad been necessuiy ti) decide the question the capture would have been regarded as on executive act in defense of national interests, and not as the enforcement of a statute beyond the limits of its effect. (Case of the Saywanl, U. S. Sup. Ct. Kept., Vol. 143.) As such defensive regulations, if the United States Government tlilnks proper so to enforce them beyond the territorial line, the provisions of those acts of Congress fulfill the conditions of being both necessary and reason- able. They interfere in no respect with the freedom of the sea, except for the protection of the seal. And for the purposes of that protection they are not only such as the Government prescribes as against its own subjects, but are clearly shown by the evidence to bo necessary to be so enforced, in order to prevent the extermination of the seals and its consequences to the United States. The decision in Church v. Hubbart is cited as stating the law, by Chancellor Kent (1 Com., 31) ; and also by Mr. Wharton (Dig. Int. Law, p. 113) and by Wheaton (Int. Law, 6th ed., p. 235). It was followed in the same court by the case of Hudson v. Guestier (6 Cranch Rep., 281), in which it was held that the jurisdiction of the French court as to seizures is not confined to seizures made within two leagues of the coast. And that a seizure beyond the limits of the ten-itorial juris- diction for breach of a municipal regulation is warranted by the law of nations. This decision overruled a previous case (Rose v. Himely, 4 Cranch Rep., 287) made, though upon very different facts, by a divided court. The dissenting opinion of Johnson, J., in that case, which by the subse- quent decision became the law, ^s worthy of perusal.^ Mr. Dana, who published an edition of Wheaton, with notes whicli so far as they were his own did not add to its value, is of opinion tliat in the decision in Church v. Hubbart, Chief Justice Marshall and his eminent associates were mistaken. And this remark of his is cited in the British Case. Mr. Dana has no such repute as makes him an ' For opinion Bee Appendix, infra, p. 182. RIGHT TO PROTECT INTERESTB AND INDUSTRY. 151 nntliority, especially when lio nndortakes to ovorralo the greatest of American jiulges, and the repeated decisions of the Supremo Court of the United States. No other writer or judge, so far as we are aware, has over shared his opinion. And, as has been seen, the decision of Chief Justice Marshall lias received the approval of very great lawyers. In the comments in his note upon the.so cases, Mr. Dana does not correctly state them. The decision in Church v. Hubbart was upon tlio unanimous opinion of tho court, and has never been questioned except by him. Tho subsequent case of Rose v. Himoly decided that tlio seizure of a vessel without tho territorial domain of tho sovereign under cover of whoso authority it is made will not £'ive jurisdiction to condemn the vessel, if it is never brought within the dominions of that sovereign. It would seem from some of the language of Chief Justice Miirsliall that ho may have been of opinion that the seizure itsolf was unwarranted, in'espectivo of the fact thai the vessel never was brought in, though this is by no means clear. Judges Livingston, dishing, and Ciiase concurred in the decision, on tho sole ground that the ciptured ship was not brought into a port of the country to which tho capturing vessel belonged ; and declined to express an opinion as to the validity of the seizure upon the high sea, for breach of a ruunicipal regidation, provided the vessel had been so brought in. While Judge Johnson dissented altogether, holding in the opinion above referred to, that the seizure was valid, althougli never brought in. Mr. Dana mistakes the case of Rose v. Himely in saying that it was there decided that a seizure of a vessel outsiue of the territorial jurisdiction is unwarranted. And he mistakes the case of Hudson v. Guestier, ia which the contrary is distinctly held, Chief Justice Marsliall The cases of the Marianna Flora (11 Wheaton Rep. U. S. Sup. Court), above cited, in which the opinion was delivered by Mr. Justice Story, and tilt! case of the Schooner Betsey (Mason's Rep. 354), a decision of Judge Story, were to the same effect.' 'In tlio recent case (1890) of Manchester v. Massachusetts (139 U. 8. Supreme Court. Bop., 240), the law on this subject was thus stated by Mr. Clioate, of counsel : " Without these limits were the ' high seas,' the common property of all nations. Over these EngUmd, as one of the common sovereigns of the ocean, had certain rights of jurisdiction and dominion derived from and sanctioned by the agreement of nations expressed or implied. "Such jurisdiction and dominion she had for all purposes of self-defense, and for the regulation of coast fisheries. "The exercise of such rights over adjacent waters vrould not necessarily be limited h i\ it M 152 ARGUMENT OF THE UMTED STATES. l\ M » •!! Tho Continental publici.sts nro in fnll concurrenco on this point with Knfflisli and American nutlioritios.^ In respect to tho exerciso of tho right of self-dofcnse, not itieroly upon tho high sens but in the territory or territorial waters of a foreifrii nnd friendly stntf, authority is equally strong. Says Mr. Wharton (1 Diif. of Int. Law, p. .")n) : Intrusion on tlic territory or territorial waters of a foreign sliitu i> exonsnhle when necessaiy Jbi- self-protection in matters of vita! importiincc, nnd when no other mode of relief is attainable. And Cpp. 221, 222) : When there is no otlicr wny of warding off a perilous attaelc n|K)ii a countiy, tho sovereign of sunh (lountrv can intervene by force in tin territory from which the attack is threatened, in order to prevent .siicli attack. A belligerent nuiy, under extreme necessity, enter neutral territory ami do what is actually necessary for protection. And he cites the case of Amelia Island, in re.spcct to which he says : Amelia Island, at the mouth of St. Mary's River, and at that time in Spanish territory, was seized in 1817 by a band of buccaneers under the direction of an adventurer named McGregor, who, in the name of tho insurgent colonies of Buenos Ayres and Venezuela, preyed indis- criniinatelj' on the commerce ol' Spain and of the United .States. The Spanish Government not being able or willing to drive them off, and tho nuisance being one which required immediate action, Pri'sident to IV .'i-mile belt, but -vvoukl undoubtedly bo sanctioned an I'lir an reasonably neecssarv to (tccure the practical bencfit.i of their po.ssession. If solf-dcfenne or regulation of (i.ihcrii* should reasonably require assumption of control to a greater distance tlmn H iiiik'*. it would undoubtedly bo acquiesced in by other nations. ■' The marine leatjue distance has acquired prominence merely because of its adupMuii u> a boundary in certain niii-eements and treaties, and from its frequent mention in tost- books, but has never beci frUablished in law as a fixed boundary. " These rights r.^'lon^cil to England as a member of the family of nations, and did not constitute her the possi^tisor of a proprietary title in any part of tho high seas nor ndd niiv portion of these wafer"- u '.xor realm. In their nature they were rights of dominion and sovereignty i-nthcr than of jiroperty." Mr. Justice Blatchford, in delivering the opinion of the court, says : " We think it must be regarded as established that, as between nations, the mininnim limit of tho territorial jurisdiction of a nation over tide-waters is a marine leogue from its coast; tlmt bays wholly within its territory, not exceeding two marine leagues in width at the moiitli. are within this limit ; and that included in this territorial jurisdiction is the right of control OTcr fisheries, whether the fish bo migratory, freo-swimming fish, or free-niovinj fish, or fish nttaclied to or embedded in the soil. Tho open sea within this limit is, of course, subject to the common right of navigation, and all governments, for the purpose of self protection in time of war or for the prevention of frauds on its revenue, exercise an authority beyond this limit." ' For citations from Azuni, Plonque, La Tour, Cairo, Heffter, Bluntschli, and Carna^.za- Amari, see Appendix, t»/Va, pp. 183-X80. ,,,/>.. i.-Yci i '£ -v.iB 1-: sia/. •• ' UIOUT TO rUOTKCT INTKKKS4TS AND INDl'STUV. ir»3 I this point with tral territory and ntBcbli, anJ Carnazza- Moiiroo ealletl his Ciihinet Lo^^ctlu'r in Octobor, IH17, and (lii'cctcil tlmt 11 vt'sscl of war Hliould proci'i'd to tlic islanil and expel the marauders, destroying their works and vessels. In the case of the Cariline, in the year 183R, durinu; the Canadian rebellion, t llritiah armed forco pursued that vessel into an Anicrican IMirt on Luke Erie, cut her out and destroyed hor by fire, killing one or more of her erow, This otherwise gross violation of the territory of a fricnilly nation was justified by the Uritish (loverninent as a necessary measure of self-defense, since the Caroline had been enjjaged in carryini; >up|tlies to the iiisurrrcnts. In the eori'enpondeneo that ensued be ween the two j^overnnients, the British right to inti-ude as lluy did apou Aniorican territory was cone»;ded by Mr. Webster, tiie Amorienn Secretary of State, provided the necessities of self-defense re(|nired it, nnd the only question made was whether the necessity for its exorcise actually existed. In the end, that point seems to have been given up, and no reparatior cr apology was over made. Though it is certninly didicult to ,seo how any greater necessity was to be found in that ease thsin may always lie said to cxi.st for attacking an enemy's ship, the ease jiresents a very strong illustration of the application of an undoubted principle. A very interesting discussion of the question will be found in the correspondence.' Pliillimore says of the Caroline case (vol. I, p. 255, see. rcxvi) : The act v^as made the subject of complaint on the gronnd of violation of territory by the American Government, aud vindicated by Great IJritain oil the ground of self-preservation ; which, if her version of the facts were lorrect, was a sufficient answer and a complete vindication. Hall (Int. Law, p. 267, par. 34) expresses similar views. hi 1815, under orders of Mr. Monroe, measures were taken for the destruction of a fort held by outlaws of all kinds on the Appalachicola River, then within Spanish territory, from which parties had gone forth to pillage within the United States. The governor of Pensacola had been called upon to repress the evil and punish the marauders, but ho refused ; and on his refusal the Spanish territory was entered, and the fort attacked and destroyed, on the ground of necessity. A similar case was that of Groytown. It was a port on the Mosquito coast, in which some United States citizens resided. These citizens, and others interested with them in business, Averc subjected to gross indignities and injuries by the local authorities, who were British, bat ' For correspondence between Mr. Webster and Lord Ashburtoii, and renarks of Mr. Calhoun and Lord Campbell, see Appendix, infra, p. 18G. ki \ 154 ARGUMENT OF THE UNITED STATES. who professed to act from the authority of the king or chief of the Mosquito Islands. The parties then appealed to the commander of the United States sloop of war Cyane, then lying near the port, for protection. To punish the authorities for their action ho bombarded the town. For this act he was denounced by the British residents, who claimed that the British Government had a protectorate over that region. His action was sustained by the Government of the United States, the ground being the necessity of punishing in this way the wrong to citizens of the United States, and preventing its continuance. (1 Wharton's Dig., p. 229.) When the sovereign of a territory permits it to be made the base of hostilities by outlaws and savages against a country with which .such sovereign is at peace, the government of the latter country i.s entitled, as a matter of necessity, to pursue the assailants wherever they may be, and to take such measures as are necessary to put an end to their aggressions. (lb., p. 226.) An incursion into the territory of Mexico for the pui'po,je of dispersiujj; a band of Indian marauders, is, if necessary, not a violation of the law of nations, (lb., p. 233.)' In all these cases the discussion proceeded upon the question of tlie existence of the particular necessity. The right to enter upon neutral territory, if necessity really required it, was not controverted by any of tlie governments concerned. A still more striking illustration of the exercise of tho national right of eelf-defenso upon the high seas, at tho expense of innocent oommerco, and to the entire subordination of private I'ights, which, except for the consequences to national interests, would have been unquestionable, is found in the British Orders in Council in tho year 1809, prohibiting neutral commerce of every kind with ports which the Emperor of Franco had declared to bo closed against British trade. Tho effect of ' " Temporary invasion of the ti-rritory of an adjoining fonntry, wlicn nocossury to prevent and check crime, ' rests upon principles of tho law of nations oiitircly distinct from those on which war is justified — upon the immutable principles of self-defense— upon the princiiiles whicli justify decisive mer.sures of precautions to prevent irrepariibli' evil to our own or to a neighboring 2)eople.' " (Mr. Forsyth, Sec. of iStiiti', ! Wharton, p. 230.) "Tho first duty of a government is to protect life and propei-ty. This is a piininiount obligation. For this governuients are instituted, and governments neglectiiip; ov failing to perform it become worse tlian useless. * # * The United iStatci Government cannot allow mafauding bands to estublieh themselves upon its borders with liberty to invade and plunder United States territory with impunity, a,n(l then, when pursued, to take refuge across the Rio Grande under the protection of tho plea of the integrity of the soil of the Mexican Republic." (Mr. Evarts, Sec. of State, 1 Wharton, p. 23 ' ) JIIUHT TO PROTECT INTERESTS AND INDUSTRY. 155 ->■■ ill the question of tlio enter upon neutral lerted by any of the these orders was to arrest upon the sea the lawful trade of neutrals, not with blockaded ports, nor even belligerent ports not blockade;;!, but with iic'utral ports. Tet the validity of these orders upon the principles of international law, severe as their consequences were, wi.a apirmed by the ijroat judicial authority of Lord Stowell, then Sir William Scott, in several eases of capture that came before him in admiralty, upon the ground that they wei'e necessary measures of self-defense to which all private rights must give way. In the case of the Success (1 Dodson Rep., p. 133), he said : The blockade thus imposed is certainly of a new and extended kind, but has arisen necessarily out of the extraordinary decrees issued by the ruler of France against the commerce of this country, and subsists, therefore, in the apprehension of the court at least, in perfc^it justice. In tl e case of the Fox (1 Edwards Adm. Rep., •^14), he remarked in reference to the same orders : When the state, in consequence of gross outrages upon the laws of nations committed by its adversary, was compelled by a necessity which it laments, to resort to measures which it otherwise condemns, it pledged itself to the revocation of those measures as soon as the necessity ceases. Again, speaking of those retaliatory measures as neces&ary for the defense of commerce, he says in another case : In that character they have been justly, in my apprehension, deemed rc- I'oncilable witii those ruks of natural justice by which the interna.tional communication of independent states is usually governed. {The SnijH', Edw. Adm. Rep., 382.) Lorcl Stowell's judgments in these cases have never been oriticised or disapproved by any court of justice, nor by any writer of repute on inter- national law The nts'ossity relied upon might perhaps be questioned, but when that is established, it is not to bo doubted that it becomes the measure of the right. Another very forcible illustration of the principle contended for, is to l.o seen in the exclusive right asserted by Great Britain to the fisheries on the ^Newfoundland and Nova Scotia coasts, not only within what are called the territoi'ial seas, but as far from the coast as the fisheries extend. The full diplomatic discussion of this subject will be found in the ^^Docii- menfn rrJativg to the Iransacftons at th' iic.fotiation of Ghrnf, colh'ctrd '^nd pulilished by John Qiiincy Adams, our of the ('ommissioners of Ihr 'nited States." The occa.sion was the negotiation of the treaty of peace Ijetween the United States and Great Britain, at the conclusion of the wnr "n8i2. , ,,.,.. . , ■, . [3I7J ■"" '" ■■" ' L I ' • . I 156 ARC4UMENT OF THE UNITED STATES. i ■.; IS! . I m ■ One material questiou very much discussed and confiidered, was tlii' right to be accorded to the United States in these fisheries. By the treaty of 1788 between those countries, at the close of the Revolutionary War, certain rightu in them had been conceded by Great Britain to her colonies, whose independence was in that treaty admitted. When the treaty of 181.5 was made, it was claimed by Great Britain that the treaty of 1783 had been aln-ogated by the subsequent war, and that the i-ight of the Aniei'icans to ])artici|iato in tlio fisheries, granted by that treaty, had by its abrogation been lost. The relative contentions of the parties will be clearly seen by perusal of Mr. Adams's exhaustive resume of the history and merits of the question, nd from the citations he adduced. (Pp, 10(i- 109, 16MC9, 184-185, 187-190.) It was contended by Great Britain and conceded by tl.e TTrited States that all those fisheries, both within and without tl . iii' " iorritorial inrisdiction, were previous to the Revolutionary .r, .,,t exclusive property of Great Britain, as an pppnrtcn nt to its territory, On this point there was nn dispute, although the fisheries in question extended in the open sea almost five degrees of latitude from the coast, and along th" whole northern coast oi' New England, Nova Scotia, tlie Gulf of 8t, Lawrence, and Labrador.^ Upon this view, entertained bj* both nations and by all the cniiiient diplomatists and statesmen who participated in making or discussing these treaties, the contention turned upon the true construction of the grant of fishing rights contained in the treaty of 1783. It was claimed by the British C ^vernment that this was a pure gmnt of rights belonr;!;'"' exclusively to Great Britain, and to which the Ainericans coultl ;>> no claim, except so far as they wex-e conferi-ed by treaty. i -. ^ contended on the other side, that the Americans, being British ii'^,.. up to the time of the Revolutionary War, entitled and accustomotl as such to share in these fisheries, the acquisition of which from France had been largely due to their valour and exertions, their right to par- ticipate in them was not lost by the Revolution, nor by the change of government which it brought about, when consummated by the treaty of 1783. And that the provisions of that treaty on the subject were to be construe!, not as a grant of a new rijht, but as a recogn"' ■ n of the American title still to participate in a propc" > v :' at before tu; ■.,;)• was common to both countries. Which side of ...» contention ',«■ '■ .jii' it is quite foreign to the present puiposo to consirier. It is enough t.i ' For full qiiotauoiiH from M. AAr =, »!,..> ApiKiiiii, infra, pp. 187-189. RIGHT TO PROTECT INTERESTS AND INDU-STRY. 15; IHTceive that it never occuired to the United States Government or its emiuent representatives to claim, far less to the British Government to concede, nor to any diplomatist or writer, either in 1788 or 1815, to con- ceive, that these iisheries, extending; far beyond and outside of any limit of territorial jurisdiciion over the sea that ever was asserted there or elsewhere, were the general property of mankind, or that a partici- pation in them was a part of the liberty of the open sea. If that propo- sition could have been maintained, the right of the Americans wonld have been plain and clear. No treaty stipulations would liave been necessary at the end of either war. (Sec also Wharton's Dig. vol. 111, pp. 3i)-48.) '"■' ' ' ■■■ ■ • ■ V • • It will be perceived, aim, that in the case of these fisheries there was no pretense that an exclusion of the world from participating in ther.i outside the line of the littoral sea was necessary to their preservation, or that such participation would tend to their extinction ; though unquestion- ably it might lead to a diminution of the profits to be deriA^ed from them bv the inhabitants of the territory to Avhich they appertained. If the countries now contending Avere right, then in the views entei-- tained by both governments and by all who Avere concerned for iheni, in cabinets, diplomacy, Congress, and Parliament, and in the claims then made, conceded and acted upon ever since, the precedent thus established must be decisive between them in the pi-esent case. '^riieic can not be one international law for the Atlantic and another for tlie I'aeific. If the seals may be treated, like the fish, as only fercp natvra; and not property, if the maintenance of the herd in the Pribilof Islnnd.s is only a fishery, hoAV then can the case be distinguished hmn that of the fisheries of Nova Haotia and Newfoundland r Wliy would it not be, until conceded aAvay bv treaty or thvoAvn upen io the Avorld by consent, a proprietary right lielonging to the territory to which it appertains, and whicii the Government has ". riglit to ilefend ? Hut the case of the seal inilustry is far stronger than that of the Iisheries in favour cC .mch a right. The great facts of the nature of the animals, their attachment to the land, Avithout Avhich they could not exist, their constant animus retertendi, the protection there, in default of which (hey would perish, and the absolute necessity of excluding imtside interference Avith tiiem, in order to prevent their extinction, not nuly greatly etrcngthen the proprietary title, but annex to it the farther and unquestionable right of self-defense, in respect to those 18171 i'-^ .'' '4 11 m 158 ARGUMENT OF THE Ui^iTED STATES. ., I' rill interests on shore in which tlie propcrfy is not denied nor open to dispute. The jurisdiction accorded to nations over the littoral seas is hy no means the only instance in which rules of international law, now com- pletely establisiied and universally recognized, and under which tlip freedom of the sea has been largely abridged, have arisen out of the right and necessity of self-defense, and out of the general principle that to such necessity individual rights and the acquisition jf private emolu- ments upon the ocean must give way. Some of these rules relate to the interests of nations when enganfed in war, and others, like that which concedes the jurisdiction over territorial i hiefly to the interests of peace. ' rijrht of self-defense, as affecting nations, is no greater in war than in peace. Certain necessities are sometimes greater in one state than in the other. But in both the measure of the necessity is the measure of the right, and the justiGable means of self-protection are such as the case requires. It is the principle that controls the case, not the case that controls the principle. The state of war only exists between the belligerents, and is only material between them and neutrals, so far as it gives rise to a particular necessity on the part of a belligerent, that would not otherwise arise. The intei'national law of piracy is an infringement of the right which even a criminal has, to be tried in the jurisdiction where his crime was committed, and if upon the high sea, in the jurisdiction to which his vessel belongs. Such is the rule in respect to every other crime known to the law. But if an American in an American ship commits an act of pirac}'^ on the high seas on a British vessel, he may, by the rules of international law, be captured by a French cruiser, taken into a French port, and there tried and executed, if France thinks proper to extend the jurisdiction of her courts to such a case. The reason of this well- settled rule is not found in the character of the crime, which is but rob- bery and murder at worst, but in the necessity of general defenjo, in which all sea-going nations have a like interest and therefore a like right to intervene, without waiting for the tardy or uncertain action of others. The slave trade is an offense for which the sea is not free, though not yet regarded in international law as piracy, because there are still countries where slavery is legalized. But there is no question that a nation whose laws i)rohibit slavery may capture on the high sea any vessel laden with slaves intended to be landed on her coast, or any ves- RIGHT TO PROTECT INTERESTS AND INDUSTRY. I51> ied nor open to si'l sailinp; for the pni'pose of prosefuiiiif>; the slave trade on her sliorc.s. Xor is there any doubt that so soon as the abolition of slavery becomes universal, international law will sanction dealing with a slaver as with a pii-ate, and for tlie same reason of general self-defense. Nor is the sea free to any vessel whatever, not carrying the flag of some country, and shown by its papein to bo entitled to carry that flag ; and the armed vessel of any nation may capture a vessel not so protected. Sailing independently of any particulai- nationality is harmless in itself, and may be consistent with entire innocence of conduct. But if allowed, it might offer a convenient shelter for many wrongs, and it is therefore prohibited by the law of nations. Innocent trade may also be ])rohibited by any nation between other nations and its colonies, for reasons of policy. Such restrictions have been frequent, and their propriety has never been questioned. That a vessel engaged in such prohibited trade may be captured on the high seas and condemned, is shown by the case of ( 'hurch v. Hubbart, and other authorities above cited. These are instances of the exercise upon the sea of the general right of self-protection, for the common benefit of nations, irrespective of the particular necessity of any one country. In most cases, restrictions imposed upon the freedom of the sea arise out of some particular national necessity. Thus it is well settled, that any vessel guilty of an infraction of a revenue or other law within the territorial waters of a nation, may be pursued and captured on the high seas ; because, otherwise, such laws, devised for the protection of the national interests, might fail of being adequately enforced. Upon this principle also, was based the British act putting restrictions upon the passage of a vessel on the high sea, approaching Great Britain from a port where infectious disease was raging. Quarantine and health reofulations are usually enforced within the jurisdictional limit, and so confined, are in ordinary cases sutlicient for their purpose. But when in a ])articular case they are insuiiicient, and the necessity of protecting the country from incursion of dangerous disease requires it, no right of freedom of the sea stands in the way of putting proper restrictions on the approach of vessels, at any distance from the shore that may be found requisite. (6 Geo. IV, chap. 78.) The very grave, and oflen, to innoi^cnt individuals, ruinous restraints upon neutral trade for the interest of belligerents, the validity of which lias long been established in international law, afford a strong example of ^ I .f,,. ! 160 ARGUMENT OF THE UNITED STATES. tho application oi tlio samo pi-inciple. If a port is hlockadod, no noufval ship can entex* it for any purpose wlmtever, oven for the continuanct' ul a rosfulai- and legitimato coninierco established before tho war began. And snch ship is not only prevented from entering the port, on pain of capture and confiscation of vessel and cargo, but is liable to bo cap- tured anywhere upon tho high seas and condemned, if it can be shown cither that tho voyage is intended for a breach of the blockade, or that such breach has actually taken place. And, though such is not the general rule, it is shown by the decision of Lord Stowell, before cited, that if the necessities of a suecessful prosecution of tlie war rerjuiro it, a belligerent may even interdict neutral conimevco with ports not block. adod. Admitted by that gr*?at judge that such a measure is unusual, harsh, and distressing, and not to be resorted to without necessity, it is ncverlheless hold to bo justifiable when tho necessity does actually arise, though that necessity is only for tho more effectual prosecution of a war. ' The same rule applies to the conveyance by a neutral to a belligerent port, of freight which is contraband of war, though such freight may not bo designed to be in aid of the wai", but may be o'lly the contina- anco of a just and regular commerce, before establiahed. And a \osscl may be captured anywhere on the high seas if found to be engaged in that business. And so if a neutiul vessel is engaged in the conveyance of belligerent dispatches or of passengers belonging to the military or naval service of a belligerent, though the vessel so employed may be a regular passenger slii|) on its accustomed route as a common carrier, , Hostile freight on a neutral .ship has long been held liable to capture. Tf the rule that the ttng covei's tho cargo may now be said to be established, it is of comparatively recent origin. Upon the same principle has been maintained the right of visitation and search, as against every private vessel on the high seas, by tho armed ships of any other nationality. Though this vexatious and injurious claim has been much questioned, it is firmly established iu time of war, at least, as against all neutrals. Says Sir William Scott, in the case of Lc Louis (2 Dodson, 244) : ^ " ; - ' - ' • This riglit (of search), incommodious as its exercise may occasionally be, * * * has been fully csta>)lished in the legal practice of nations, having for its foundation tho necessities of .sclf-defonse.' ' Says Mr. Twiss (Rights nncl Duties of Nations in Time of War, ed. 1863, p. 176) : "The right of visiting and searching merchant ships on the high seas, obsems IlIGHT TO PROTKCT INTERESTS AND INDUHTRY. cc .r i oxiictly foi'uiulatod by courts of juotice, as well as by writers on tho subject, and havo passed by common consent and usage into the domain o^ stt- tied international law. But many instances have occurred in the history of nations, cxcoi). tional in their character and not provided for under any general rule, where a similar necessity to that which dictated those rules has rcquirpd an analogous act of self-defense by a nation in some particular case. And such protection has been extended, through both legislative and executive action, by tho governments affected. Some of these instances may bo usefully referred to, since they are in complete analogy to tlic present case, except that, both in respect to the necessity that proinpted them and the importance of tho injury sought to bo restrained, thev nil fall far short of tho exigency hero under consideration. In the valuable peai'l tisheries of Ceylon, tho British authm-ities hiive long excluded all other nations from participation in or iuterferenco with thorn, though these fisheries extend into tho open sea for a distance varying from 6 to 20 miles from the shore. A regulation was enacted by tho local British authorities, of March 9, 1811, authorizing the seizure and forfeiture of any vessel found hoveriof;' on tho pearl banks on the west coast of Ceylon, on -water of between 4 and 12 fathoms, the same being an area of the open sea extoudiiig 90 miles up and down the coast and of variable width, but distant about '20 inarine miles fi'om the co!\8t at the farthest point. This regulation is still in force. (Regulations No. ."5, of 1811, for the protection of Her Majesty's pearl banks of Ceylon.) An ordinance isstied in 1842 prohibited tho use of any dredge for tishing within the limits of the pearl banks, on pain of forfeitnre and imprisonment. The ordinance of November 80, 1848, prohibited the possession or use of nets, dredges, and other instruments such as might bo pi'ejudiciid to the Government pearl banks, within IC milen of any part of the shore lying between two designated points. The penalties annexed were forfeiture and imprisonment. Suspected persons might be searched. This regulation is still in force. (No. 18, 1843, an ordinance tn declare illegal the possession of certain nets and instruments within certain limits.) The ordinance of November 18, 1890, prohibited all persons from RIGHT TO X^ROTECT INTKRKSTH AND IXDTT.STRV. 165 all persons from tisliinj,' for clmnks, bLU'lit's-rle-mor, conils, or hIioUm. within iin nvea lying insido of 11 straight lino ilmvvu up and down the coast, tho ends boinj,' dis- tant 6 miles from slion; and tho most ronioto point huinfj distant over iO miles from shnre. Forfeitnro, tino, and imprisonniont weri! tlio penaltit^s prescribed. This regulation is still in force. (No. 18, 1800, an ordinance reliiting to chanks.) (For copies of these nets, see Case of tho United States, App., Vol. i, p. 401.) An act passed in 1888 by tho federal council of Australia extended (with respect to British vessels) tho looal regulations of Queensland on tho subject of the pearl fishei-ies to an area of open sea otl' tho coast of Australia, vnrying in width from 12 to 250 marine miles. ' Finos, seizures, and for- fpiturcH were the penalties pi-oscribed. (."d Vict., No. 1.) An act passed in 1889 by tho federal council of Australia extended (with ivspect to British vessels) the local i-egulations of western Australia on the subject of tho pearl fisheries to an area of open sea off the northwestern const of Australia lying within a parallelogi-am of which the northwestern corner is 500 marine mili's from the coast. (■)2 Vict., 4th Feb., 1889, Ca,sc of the Dnited States, App., Vol. i, p. 4G8.) Similar restrictions upon the peai'l fisheries in the opim sea have been likewise interposed by tho Government of Colombia. A decree by the governor of Panama in the United States of (!oloml)ia, in 1890, prohibited the use of diving machines for the collection of pearls within a section of the Gulf of Panama, which is between (jO and 70 marine miles in width, and of which tho most remote point is tiO marine miles fi'om the main land. (Guceta de Panama, Febi-uary U, 1890, Case of tho United States, App., Vol. I, p. 48.5.) ' •' Legislation of the same character has a'so taken place in France and Italy in reference to coral reefs in tho open sea and oiitsidc the jurisdic- tional limits. The French law of 1864 relating to the coral fisheries of Algeria and Tunis required all fishermen to takeout licenses to fish n i- vncre on tho coral banks, which extend into the Mediterranean 7 miles ivora shore. In addition to this license all foreign fishermen were required to take out patents from the Government, for which a considerable sum had to be paid ; and by the recent act of 1888, foreign fishermen are precluded entirely from fishing within 8 miles from shore, apparently leaving the former regulations in force with respect to such portions of the coral banks as lie outside of those limits. (Journal Officiel, March 2, 1888), (Case of the United States, App., Vol. T, p. 469.) ' t. I rl l(i(i ARUTMENT OF THK rXlTED STATES. By a law cnact«d in Italy in 1877, and a dooroo isHucd in I89:i, licenses aro required of all veBscls operating on the coral banks lying off the eoast of Sardinia, at distanceH which vary fmni .'{ to 15 miles from land. Under the regulations there ])reHcrihed, tlie discoverer of a new coral btd at any jioitit is entitled to take jiossehsiou of it, and to identify his (lis. covery by means of a buoy suitably marked, which confers upon him the privilege of working tiie bank as a private monopoly for two years. Off the southwestern coast of Sicily there are three coral reefs, situated, respectively, at a distance of l-t, 21, and li2 miles from shore. The Italian law of 1877 and decree of 1882 extend to these, subject to the inodiKcations inti-oduced by the three following decrees. (Otticial Pamphlets, No. H706, series 2 of March 4, 1877 ; No. 1090, series ;{, Novem- ber 13, 1882.) The decree of 1877 jtrohibited all fishing on the nearest of the throe banks, viz., that situated 14 miles from shore, and provided that the other two should bo divided into sections which should bo fished in rot.ation. The decree of 1888 prohibited all operations on all 'lanks until further notice, in order that the coral, which was then almost exhausted, might be given time to renew itself. The decree of 1892 provided that fishing might begin again under the original regulations after the close of the fishing season of 1893. (Case of the United States, App., Vol. I, p. 470.) Oyster beds in the open sea have been made the subject of similar legis- lation in Great Britain. A section of the British '* Sea Fisheries Act," 1868, conferred upon the Crown the right by orders in council to restrict and regulate di'edgir for oysters on any oyster bed within tiventy miles of a straight line drawn between two specified points on the coast of Ireland, " outside of tlio exclusive fishery limits of the British Isles." The act extends to all boatb specified in the order, whether British or foreign (31 and 32 Vict., ch. 45, sec. 67 ; Case of the United States, App., Vol. 1, p. 457). The same as to hei-ring fisheries : " The Herring Fishery (Scotland) Act, 1889," confeined authority upon the Fishery Board of Scotland, to prohibit certain modes of fishing known as beam trawling and other trawling, within an area of the open sea on the northeastern coast of Scotland over 2,000 square miles in extent, of which the most remote point is about 30 marine miles from land (52 and 53 Vict., ch. 23, sees. 6, 7; Case of the United States, App., Vol. 1, p. 458). n ftlOHT TO PROTKrr INTKKKStS AVD INDUSTRY. i»i: 3t of similar legis- Tlio tukiuf^ of seal, in wimlcver cruintry tlioy Imvo boon found, has been in an especial manner the subject of logislativo and governmental regulation and restriction in the open sea. And in such actions Great Britain and Cainula have been conH[)icHous. Hy an act of the JJritish Parliament passed iu lHtJ;{, tlio (•olony of New Zealand was made coextensive with the area of land and sea bounded by the following parallels of latitude and lo.vritude, viz., ;}3° S., 53" S. ; 162° E., ITr*" W. The southeastern cornei* of this parallelogram is situated in the Pacific Ocean over 700 miles from the coast of New Zealand (2(> and 27 Vict., eh. 23, sec. 2). In 1878 the legislature of New Zealand passed an act to protect the seal fJRheries of the colony, which provides: (1) For the establishment of an annual close season for seals, to last from October 1 to June 1. (2) That the governor of New Zealand might, by ordei's in council, extend or vary this close season as to the tvhole colony or any part thereof, for three years or less, and before the expira'On of such assigned period extend the close season for another three yeavK. (See Fish Protection Act, 1878, 42 Vict., No. 43.) Under the authority of this statute, a continuous close season was enforced hy successive orders in council, from November 1, 1881, until December 31, 1889. These extreme measures were deemed neeesssaiy in iii'dtir to prevent the complete extermination of the seals at an early date. (See Reports of Department of Marine of New Zealand for the y vSi'« 1 882. 185."), 1880-'87, 1887-'88, 1889 -'90. Also the Report of the U. S. Fish Commission.) Another act, passed in 1884, conferred additional authority upon the governor in council to make such special, limited, and temporary regula- tions concerning close seasons " as may bo suitable for the whole or any part "r parts of this colony," etc. All seals cr other tish taken in violation of such orders were to bo forfeited with the implements used in taking them. (The Fisheries Conservative Act. 1884, 47 Viet., No. 48.) A third act, even more stringent in its terms, was passed in 1887, which provided : (1) That the mere possession of a seal by any person during a close season should be proof, in the absence of satisfactory evidence to' the i-'ontrary, that it had been illegally taken. (2) That fM vessels taking or containing seals at such times should be forfeited to the Grow ■. • v . . i .f- I;-' tii 168 ARGC^MENT OF THE INITEU STATES. (3) That the commander of any jiublic vessel might seize, search, ami take any vessel so offending anywhere " within the jnrisdiotion of tlio government of t-!e colony of New Zealand." In other words, authority was conferred by these acts to seize vessels for illegally taking seals over an area of the open sea extending at the furtliesi point 700 niiJes from the coast; and the government of NeAV Zealand lins since kept a cruiser actively enij'ioyed in enfoi'cing these regulations. (The Fisheries Conservative Ac'., 1887. 51 Vict., No. 27; Rep. of U.S. Fish Com. ; Case of the United 'States, Ap])., Vol. i, p. 440.) An ordinance of the Falkland Islands, passed in 1881, established a dose season for the islands and tht snrrom^ding waters, from October to Apii! in each year. Two r* the islands lie 28 miles apart, and this regulation is enforced in tha open sea lying between them. (Rep. of U. S. Fish Com.; affidavit of ('apt. Btiddingtoa; Case of the United States, App., Vol. I. p. 435.) The Newfoundland Seal Fishery Act, 1892, passed in April of that y?.. l)y the legislature of that country, provides : (1) That no seals shall be killed in tie seal-fishing grounds lying off the island at any period of the year, except between March 14 and Apiil 20. inclusive, anJ ,hat no seal so caught shall be brought within the limit.s of the colony, under a penalty of .54,000 in either instance. (2) That no steamer shall leave any port of the colony foi- the sefil fiahoi'ies before six o'clock a.m. on March 12, under a penalty of $5,000. (;3) That no steamer shall proceed to the seal fisheries a second tim.- in any one year unless obliged to return to port by accident. This act extends and enlai-ges the scope Cl a previous act, dated February 22, 1879, which contained similar provisions, but witi jnialicv penalties, and also the provision which is still in force, that no seal shall lu' caught of less weight than 28 pounds. (55 Vict., Case of the UniU'd States, App., Vol. I, p. 442.) The seal fisheries of Greenland were the subject of conrurrent legislation in 1875. I87t), and 1877 by England, Norway, Sweden, Denmark, and Netherlands, which jirohibits all fishing for seals by the inhabitants of those countries befori' April 3 in any year, within nu area of the open scii bounded by the following parallels of latitude and longitude, viz., ()7° N., 75" -N., 5" E., 17° W. (British and Foreign State Papers, vol. i.xx. pp.307, 3(38, 513 ; vol. i.xxiir, pp. 28^, 283, 70S. "The Seal Fishery Act, 1875," 38 Vict, c.ip. 18.) • . >„ . :. Under 'the law of Uruguay the killing of seals on the Lobes nnil i HIGHT TO PROTECT JNTKRKSTf; AND INDT'STRV. 1(59 seize, search, and risdiction of tlio ) seize vessels for ig at the furthest New Zealand lias liesc regulations. 7 ; Bep. of U, S. I).) stablished a ulosc October to April this regulation is U. S. Fish Com,; tes, App., Vol. 1. Vpril of that yn: unds lying off the 14 and April 2(i. ithin the limits of )lony for the seal Filty of $5,000. a second titn.' in vious act, dated but witi .iniiillcr at no seal shall lif so of the Unit I'd urrent legislation n, Denmark, and he inhabitants of ■a of the open sea itude, viz., (i?° N., Papers, vol. i.xx. Seal Fishery Ad, n the Lobes ami other islands " in that part of the ocean adjacent to the departments of Maldonado and Rocha " is secured to contractors, who pay to the Government a license fee and duty. (Acts of July 23, 1857, and June 28, 1858, Caraira, vol. i, pp. 440 and 448, Digest of Laws. Appendix to the Case of th« United States, Vol. I, p. 448.) By the law of Russia, the whole business of the ])Ui'suit of seals in the White Sea and Caspian Sea. both as to time and manner, is regu- lated, iand all killing of the seals except in pursuance of such regula- tions is prohibited. (Code of Russian Laws (Covering Rural Industries, vol. Xli, part IT. Appendix to the Case of th,_' United States. Vol. f, p. 445.) The firm and resolute recent action of the Russian Government in prohibiting in the 'open sea, near the Commander Islands, the same depredations upon the seal herd that are complained of by the United States in the present case, and in capturing the Canadian vessels en- gaged in it, is well known and will bo universally approved. That Great Britain, strong and fearless to defend litr rights in every quarter i)f the globe, will send a floet into ihoso waters to mount guard over the extermination of the Russian seals by the slaughter of pregnant ,md nursing females, is not to be reasonably expected. The world will CO no war between Great Britain and Russia on that score. The " hovering acts " of the British Parliament and of the American Congress have already been mentioned. These hovering acts were enacted in England in 173(5 and in the United States in 1799, and prohibited tho triinshipmeut of goods at sea within -'t leagues or \2 mih's of the loast. Fine and forfeiture were tho presci'ibed penalties. The English act prohibited any foreign vessel having on board tea or spirits ■from " hovering" within 2 leagues or () miles of the coast. The American act authorized the otfirors of revenue cutters to board, search, examine, and remain on board of all incoming vessels, domestic nr foreign, when Avitl. in 4 Irngnes or 12 miles of the coast. (9 Geo. II, ch. 35; U. S. Rev. Stat., sees. 27(!0. 2H(':. 2HG8 ; Case of the United Stales, App., Vol. I, p. 493.) • • . The French legislation, which is in efl'cct similar to the English and American hovering acts, has also been before alluded to.' The British act in reference to vessels clearing from infected ports lias also been referred to, which required all vessels coming from plague- ' For the sub^tunee of the«e iict«, tv «tat«l bv Af. (.'resp. gee Aiipenilix, infra, page 189, i mh iro ARGUiMKNT OF THE UNITED STATES, stricken places to make signals ou meeting other shipe, 4 leagues from roast. (26 Geo. II, Oh. — .) Another act establishes 2 leagues from the coast as tlio distance within whi(!h ships are amenable to the British quarantine regulations, (6 Geo. IV, ch. 78.) Another act of tlie British Parliament a£Eoi"ds a conspicuous iustanto of a control cxcrei-etl over the high sea, for a long distance outside tin; utmost boundary o- a littoral sea, as a means of a defense against a special danger then thought to exist. It was passed and enforced for the purpose of preventing the escape of the Emperor Napoleon when confined on the island of St. Helena. This act authorized the seizure and condemnation of all vessels found hovering within 8 leagues or 24 miles of the coast of St, Helena during the captivity of Napoleon Bonaparte on the island, reserving to ships owned exclusively by foreigners the privilege of first being warned to depart before they could legally be seized and condemned. (50 Geo. Ill, Ich. 23 ; Case of the United States, App,, vol. I, p. 495 ) A still more extensive and very recent assumption of dominion ovci- the sea for defensive and fiscal purposes, it to be found in an act passed by the legislature of Queensland on Jun< 24, 1879, which annexed to that country all the islands lying ofE the i ortheastem coast of Australia, within a defined limit, which at its farthest point, extends 250 miles out to sea. The boundary thus adopted includes nearly the whole of Torres Strait, a body of water 60 miles in width, separating Australia from New Guinea, and forming the connecting link between the Pacific and Indian oceans. Under the authority of this Annexation Act, the Government of Queensland has exercised complete police jurisdiction over the Strait, has suppressed the traftic in liquor in tlie objectionable form in wliicli it formerly prevailed, and has derived from the traffic as since restricted, a large revenue through the medium of customs duties. (43 Vict., cli. 1. Rep. U. S. Fish Cora. See " Gold-Gems and Pearls in Ceylon and Southern India,'" by A, M. & I., 1888, p. 296.) (Case of the United States, App., Vol. I, p. 467.) An effort is made in the British counter case to diminish the force ol the various statutes, regulations and decrees above cited, by the sug- gestions that they only take effect within the municipal jurisdiction of the countries where they are promulgated, and upon the citizens of r BIGHT TO PROTECT INTERESTS AND INDUSTRY. 171 4 leagues from ,8 the distance ine regulations. licuous instance nee outside tlic :ense against u tid enforced for Napoleon when ill vessels found , Helena during 3rving to ships leing warned to . (5G Geo. Ill, : dominion ovoi' in an act passed hich annexed to ast of Australia, tends 250 uiile'^ diole of Torres Australia from the Pacific und Government of over the Strait, form in which since restricted, (43 Vict., ch. 1. in Ceylon and e of the United lisli the force of ed, by the sag- ipal jurisdiction I the citizens of those countries outside the territorial limits of such j i/ isdiction. In their strictly legal character as statutes, this is true. No authority need iiavo been produced on that point. But the distinction has already been pointed out, which attends the . operation of such enactments for such purposes. Within the territory where thay prevail, and upon its subjects, they are binding as statutes, whether reasonable and necessary or not. Without, they become defensive regulations, which if they are reasonable and necessary for the defense of a national interest or right, will 1)8 submitted to by other nations, and if not, may be enforced by the government at its discretion. Otherwise their effect would be to exclude the citizens of the country in which they are enacted from a uso of the marine products it is seeking to defend, which is left open to the inhabitants of all other countries, thus leaving those products to be destroyed, but excluding their own people from sharing in th3 profits to be made out of the destruction. Will it be contended that suah is the result that is either contemplated or allowed to take place by the governments which have found it necessary to adopt sach restrictions ? It would be much more to the purpose if it could be shown either that any nation had ever protested against or challenged the validity of any of these regulations outside the territorial liuc, or that any individual had ever been permitted to transgress there with impunity. In the case of any of the statutes of ' at Biitain and her colonies that have been referred to, if any enterpriaiiLj poacher, armed with an attorney and a battery of authorities on the subject f tho extent of statute jurisdiction, should attempt the extermination or even the injury of the protected products, in defiance of the regulations prescribed, he would speedily ascertain, without the assistance of an international arbi- tration, that he had made a mistake, and that to succeed in his undertaking lie would need to be backed up by a fleet too strong for Gi'eat Britain to resist. In the light of this accumulation of authority and precedent, (lr^^vl, from every source through which the sanction of international law run be derived or the general assent of mankind expressed, what more need be said in elucidation of the grounds upon which this branch of i the case of the United States reposes ? Have we not clearly established the proposition, that the dominion over the sea, once maintained by I maritime nations, has been surrendei-ed only so far as to permit such private use as is neither temporarily nor permanentlv injurious to the [317] ' * M i i '■ \' :i n 172 ARGUMENT OF THE UNITED STATES. important and jusfc interests of those nations, and that as against sucli injury, however occasioned, the right of defense has always been preserved. and has always beea asserted on the high sea, and even upon foreign territory. It will be seen, we vespectfuUy submit, that this case presents nothing new, except the particular circumstances of the application of an universal and necessai-y principle to an exigency that has not arisen in this precise form before. The steadfast advance which the law of nations has made, from tiie d&ys of its vudiments to the present time, and which still must con- tinue to be made through all time, has been and must always be bv the process of analogy, in the application of fundamental principles from which the rules of oil new cases as they successively and canstantlv arise must be deduced. Neither this nor any other system of human law- can stand still, for it must perish unless it keeps pace with the vicissitudes of society, and meets adequately all the new emergencies and requirements which they from time to time produce. Law has its roots in the past, but its efficacy must take place in the pr^- jcnt. Says Mr. Phillimore (Int. Law, vol. 1, sec. 39) : Analogy hns great influence in the decision of international as well as municipal tribunals ; that is to s.iy, the application of the principle of a rule which has been adopted in certiiin former cases, to govern others of a similar character as yet undetermined. Analogy is the instrument of the progress and development of the law. (Bowyer's Readings, p. 88.) If a precedent arising upon the same facts is not forthcoming, it is only because there is no precedent ior the conduct complained of. Tbo same right was never before invaded in the same way. That does not take the case out of the operation of the principle upon which all precedents in analogous incidents dopend, and it applies with the same force to every case that arises within its scope. The particular precedent is created when the necessity for it appears. The absence of it when the necessity has never arisen, proves nothing. The only inquiry is whether the case comes within the general rule. But wei'e it possible to regard the present case as in any respect out- side the scope of rules hitherto established, its detcrniiaation would then bo remitted to those broailcr considerations of i^ioral right and justice which constitute the foundation of international law. It is the application of those cardinal principles that must control every case of new impreslSion that can ari^-- between nations. The law of nations j tr -■''■' TW RIGHT TO PEOTKCT INTERESTS AND INDUSTRY. 173 pment of the law. has no otber sour jo than that, except in its conventionalities. Sir R. Phillimore, in Queen v. Kehn (siipm, p. 08), remarks in respect to such a case : , . , Too rudi mental an inquiry must bo avoided, but it must be remem- bered that the case is one of prinim impressiouis, of the greatest im- portance both to England and to other states, and the character of it in some J^ r-u] Li;{ ouiir It will be seen from the correspordence between the govei-nments of Great Britain and the United States, printed in the Appendix to the Case of the United States, that a convention between the two countries was virtually agreed upon as early as 1887, with the full concurrence of Russia, under which pelagic sealing in Behring Sea would have been prohibited between April 15 and October 1 or November 1 in each year, and that the consummation of this agreement was only prevented by the refusal of the Canadian Government to assent to it. The propriety and necessity of such a repression was not doubted, either by the United States, Great Britain, or Russia. This convention, if completed, would have fallen far short both of the just right and the necessity of the United States in respect of the protection of the seals, as is now made apparent in the light of the much larger knowledge of the subject which has since been obtained. Still, it would have been a step toward the de- sired end. ■' ' ■ .' ' • . ■' ■ " I'-,',-,'", - •('■.■it-" When it became apparent that Great Britain would be unable to consummate the proposed agreement, and that no restraint would bo put by Her Majesty's Government on the depredations of its colonists complained of, if the United States Government hod then taken the course which has since been pursued by the Government of Russia in respect to the seals on the Commander Islands, and refused to per- mit further slaughter of the seals in Bering Sea during the breeding time, what is it reasonable to believe would have been the judgment of the civilized world, as to the justice and propriety of the position thus assumed? Would not such action have been approved and acquiesced in by all nations, as it has been shown that similar action by many countries in all similar cases that have arisen have been approved and acquiesced in ? And if it can be supposed, as it certainly can not be If! ']' 178 akqument of the united states. 1 \ supposed without caHting an unwarrantable aspersion upon Her MajeHty's Government, that Great Britain would have undertaken to maintain by naval force the Canadian vessels in the conduct in question, how far is it to be believed that she won Id have been sustained by the general opinion of the world P More especially in view of the claim she has always successfully and justly asserted, of the right to protect all interests of her own against injury by individuals on the high sea for the aeike of gain. . , • And finally, if by the concurrent action of the United States, Great Britain, and Russia, a prohibition of pelagic sealing during the breeding time had been effected, as proposed, would those three powers combined have had a better right to exclude any casual poacher under the flag of some other government from the depredations prohibited, than the United States now has, standing alone P Or would they have been constrained, by the requirements of what is called international law, to occupy the humiliating position of standing idly by, while the interests they had found it necessary to unite in protecting, should be deliberately destroyed for the benefit of a few adventurers, whose methods defied law and disgraced humanity. What the United States Government would have been justified in doing in self-defense, by the exertion of such reasonable force as might be necessary, is precisely what she has a right to ask in the judgment of this Tribunal. There can not be one system of international law for the world and another for the closet, because the closet does not prescribe the law of nations; it derives it from those principles of right and justice which are adopted as a rule of action by the general assent and approval of mankind. Instead of taking its defence into its own hands, the Government of the United States has refrained from the exercise of that right, has submitted itself to the judgment of this Tribunal, and has agreed to abide the result. Its controversy is only nominally with Great Britain, whose sentiment and whose interest concur in this matter with those of the United States. It is really with a province of Great Britain, not amenable to her control, with which the United States Government has no diplomatic relations, and can not deal independently. Although the erroneous assumption that the United States claimed the right to make Bering Sea a mare clausmn, has undoubtedly drawn Her Majesty's Government into a position in this dispute that it might not otherwise have taken. - > ijt ' ' ' 'f\ RIGHT TO PROTECT INTERESTS AND INDUSTRY. 179 on Her MajeHty's ,keD to maintain in qaestion, how ed by the general be claim she has rotect all interests sea for the sake ited States, Great ring the breeding powers combined under the flag of I, than the United been constrained, aw, to occupy the interests they had iberately destroyed Is defied law and If by the jndgment of this high and distinguished Tribunal the Alaskan seal herd is sentenced to be exterminated, a result which the United States Government has been unable to nnticipate, it mast submit, because it has so agreed. But it will not the less regret having thus bartered away that plain right of self-defense against unwarranted injury, which no nation strong enough to assert itself has over §uiTtm- dcred before. E. J. Phelps. been justified in ble force as might I the judgment of ational law for tbe s not prescribe the right and justice 3sent and approval he Government of of that right, has and has agreed to irith Great Britain, matter with those of Great Britain, States Government [idently. Although aimed the right to awn Her Majesty's light not otherwise ' rf ',, .7»'*!4;:. / It.. ,!./<'- 180 ABGUMENT OF THE UNITED STATES, i i APPENDIX TO PART THIRD, DIVISION II (MR PHELPS'S ARGUMENT). AdDITIOXAI, AllIIORITlES ON THE QUESTrOX OF PROPElfTT. [note 1. PAGE 132. OPINION IX nANN-AM VS. MOCKETT. WELL, 0«.)] (2 BAHNWAIL AND CUES- Baolet, J. A man's rights are the rights of personal security, p"r. sonal liberty, and private property. Private property is either propi rty in possession, pi'operty in action, or property that au individual has a special right to acquire. The injury in this case does not affect any right of personal secux-ity or personal liberty, nor any property in posses- sion or in action, and the (jueation then ia whether thei'e is any injury to any property the plaintiff had a special right to acquire. A man in trade has a right in his fair chances of profit, and he gives up time and capital to acquire it. It is for the good of the public tlint he should. Kuc, iias it ever been held that n man has a right in the chance of obtaining animals fera' naturcc, where he is at no expense in enticing them to his premises, and where it may be at least quest iou able whether they v/ill be of any service to him, and whether, inii^"H they v/ill not be a nuisance to the neighborhood ? This is not a claim propter impotentiam because they are young, propti.'v solum because they arc on ihe plaintiff's land, or propter industriani because the plaintiff lins brought them to the place or reclaimed them, but propter usum ot con- suetudinem of the bii'ds. They, of their own choice, and without any expenditure or trouble on his part, have a predilection for his trees, and are disposed to resort to them. But, has he a legal right to insist that they shall be permitted to do so ? Allow the right as to these birds, and how can it be denied as to all others ? In considering a claim of this kind the nature and properties of the birds are not immaterial. The law makes a distinc- tion between animals fitted for food and those which are not ; between those which are destructive of private property and those which are not ; between those which have received protection by common law or by statute and those which have not. It is not alleged in this declaration that these rooks were fit for food ; and wo know in fact that they are not generally so used. So far from being protected by law, they have been looked upon by the legislature as destruc- tive in their nature, and as nuisances to the neighborhood where they are established. Keeble vs. Hickeringill (11 East, r)74) bears a stronger resemblance to the present than any other case, but it is distinguish- able. * # * But in the first place, it is observaole that wild fowl are protected by the statute 25 H. 8, c. 11 ; that they constitute a known article of food ; and that a person keeping up a decoy expends money and employs skill in taking that which is of use to the public. It is a profitable mode of employing his land, and was considered by Lord Holt as a description of trade. That case, therefore, stands on a Il,.l APPENDIX TO PART THIRD — DIVI8I0N II. 181 R PHELPS'S ji'EinT. tWALL AND CBK3- il security, ]i"r. either proptity idividiial has a not affect any iperty in posses- is any injury to t, and ho gives the public tlmt a right in tlie t no expense in , least quest ion - vhether, ini!^'"^ i is not a claiui )ecauso they arc le plaintiff has r usimi et con- e or tronblo on )sed to resort to 11 be permitted an it be denied the nature and nakes a distinc- ?e not ; between hose which are common law fit for food ; and far from being iture as destruc- where they are ears a stronger is distinguish- that wild fowl stitnte a known ends money and IS considered by ore, stands on a different foundation from this. All the other instnnccfl which were referred to in the argument on the part of the plaintiff are cases of nninials specially protected bv acts of Parliament, or which are clearly the subjects of property. Thus hawks, falcons, swans, partridges, pheasants, pigeons, wild ducks, mallards, teals, ^iugeons, wild geese, black game, red game, bustanls, and herons are all recognized by different statntes as entitled to protection, and consequently in the eye of the law are fit to bo preserved. [KKKBLE r.». niCKERINOUL. HILAUY TKUM 5 AUNK, lIOLT'ri REPOnXtl, p. 17.] Action by owner of a decoy pond, frequented by wild fowl, against one who shot off a gun near his pond to the plaintiff's loss, etc. During the course of the discussion by tlie judges, Holt, C. J., said : • * * " And the decoys spoil gentlemen's game, yet they are not unlawful, for they bring money into the country. Dove cotes are lawtul to keep pigeons." Powell : The declaration is not good, but this being a special action on the case, it is helped by the verdict. If you frighten pigeons from my dove cote, is not that actionable ? Montague : Yes, for they have animum revcrtendi, and therefore you have property. In Vol. It, East's Reports, p. .571, is the case of Carrington vs. Taylor, which is also a OaSi upon the subject of injury to the owner of a decoy pond. The reporter, in a note to this case, i-eports at length Keeble rs. Hickeringill, which he states " is taken from a copy of Lord C. J. Holt's own MSS. in my possession." In this report it is said : " Holt, C. J. I am of opinion that this action doth lie. It seems to be new in its instance, but it is not new in the reason or principle of it. * * • And wo do know that of long time in th" kingdom these artificial contrivances of decoy ponds and decoy ducks have been used for enticing into those ponds wild fowl, in order to be taken for the profit of the owner of the pond, wlio is at the expen.se of servants, engines, and other management, Avhereby the markets of the nation may be furnished ; there is great reason to give encouragement thereunto ; that the people who are so instrumental by their skill and industry so to furnish the markets should reap the benefit and have their action." 'XOTE 1, (PAGE 140). EXTRACT PnOM OPINION OF CHIEF JUSTICE MARSHATJ, IN ClIFRCK vx. HUUDART, 2 CR., 187] That the law of nations prohibits the exei'cise of any act of authority over a vessel in the situation of the Aurora, and that this seizure is, on that account, a mere maritime trespass not within 'he exception, cannot be admitted. To reason from the extent of the protection a nation "il! afford to foreigners, to the extent of the means it may use for it4 owa security, does not Bceni to be perfectly correct. It is opposeil by prinifiples which are universally acknowledged. The authonty of a nation with'u its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Upon this principle, the right of a belligerent to search a neutral vessel on the high seas for contraband of war is universally admitted, 182 ARGUlNi'KN'^ OF THE UNITED STATES. i"f because tlu belligerent has a right to prccnt the injury done to hipjsclf by the assistance intended for his enemy. So, too, a nation has a I'iglit to prohibit any commerce with its colonies. Any attempt to violate the laui made to protect this right is an injury to itself which it nun- prevent, and it has a right to use the means necessary for its prevention. These means do not appear to Lo limited within any certain marked boundaries, which remain the same at all times and in all situations. If they are such as unnecessarily to vex and harass foreign lawful commeice, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws frowi violation, they will be submitted to. t In different seas and on different coasts a wider or more contracted range in which to exercise the vigilance of the Government will he assented v '. Thus in the Channel, where a very great part of the commerce to and from all the north of Europe passes thi'ough a very narrow sea, the seizure of vessels on suspicion of attempting an illicit trade must necessarily be restricted to very narrow limits ; it on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, tlic vigilance of the Government may be extended somewhat further, and foreign nations submit to such regulations as are reasonable in themselves, and are really necessary to secure that monopoly of colonial commerce, which is claimed by ^.11 nations holding distant possessions. If this right be extended too far, the exe cise of it will be resisted. It has occasioned long ar.vl frequent contests which have sometimes ended in open war. The Engli.sh, it will be well recollected, complained of the right claimed by Spain to search their vessels on the high seas, which was carried so far that the Guarda Costas of that nation seized vessels not in the neighborh(jod of their coasts. This pmctioo was the subject of lontf and fruitle.ss negotiations, and at length of open war. The right of the Spaniards was supposed to be exercised unreasonably and vexatiously, but it never was contended that it could only be exeirised within the range of the cannon from their batteries. Indeed, the right given to our own revenue cutters to vi^'t vessels four leagues from our coasts is a declaration that in the opinion ot the American Goverament .lO .such principle as that contotided for has a real existence, Nothing, then, is to be dra.wii from the laws of the usages of nations, which gives to this part of the contract before the rourt the vtry limited construction which the plaii'tiff insists on, oi- which proves that Uio seizure of the Auroi-a by the Portuguese governor was an act of lawless violence. [nOTK 1. PAGE 150. OPINION OF JtOGK J0n>"3Ci-r 1%' HOSE VS. ItlMELT. 4 CU. 2tl." I am of opinion t!mt the evidence liefore as plainly makes out a case of belligerent capture, an'' though not .so, that the capture may be jus.ilied. although for the In-each '.. a municipal law. In support of my latter position, both principle and the practice of Great B-itain and our own Govoiument may be ajtpealed to. The ocean is the common jurisdiction of all sovereign powers ; from which it does not result that their powers upon the ocean exist in a state of suspension or equipoise, but that every power is at liberty upon the ocean to exercise its .sovereign right, provided it docs not act inconsistent with that geiiornl eqxiality of natifms which exists upon the ocean. The seizure of a ship upon the high seas, after she has committed nn act of forfeiture within a ten-itory is net inconsistent with the sovereign APPENDIX TO PART THJKD — DIVISION II. 183 rights of the nation to whicli she belongs, because it is the law of reason and the general understanding of nations that the offending individual forfeits his claim to protecition, and every nation is the h'gal avenger of its own wrongs. Within thoir jurisdictional limits the rights of sovereignty are exclusive; upon the ocean they are concnrront. What- ever the great principle of self-defense in its reasonable and necessary exercise will sanction in au individual in a state of nature, nations may lawfully perform upon the ocean. This principle, as well as most others, may be carried to an uni'easonable extent ; it may bo made the pretence instead of the real ground of aggression, and then it will become a just cause of war. I contend only for its reasonable exercise. The act of Great Britain of 24 Geo., 3. Chap. 4'', is predicated upon ♦ lieso principles. It subjects vessels to seizure which approach with (.ortaiu cargoes on board within the distance of four leagues of her coast, because it would be difticuU, if not impossible, to execute her trade laws if they were suffered to ai>proach nearei- in the prosecution of an illicit design ; but if they have been witliin that distance, they are afterwards "uibjeet to be seized on the high seas. They have then violated lier laws, aiid have forfeited the protection of their sovereign. The laws of the United States upon the subject of trade appear to have been framed in some measure after the model of the English statutes ; and the twenty- ninth section of the act of 1799 expressly authorizes the seizure of a vessel that has within the jurisdiction of the United States committed an act of forfeiture, wherever sbe may be met with by a revenue cutter, with- out limiting the distance from the coast. So also the act of 1S0(3, for prohibiting tiio importation of slaves, authorizes a seizure beyond our jurisdictional limits, if tlio vessel be found with slaves on board, hovering on the coast ; a latitude of expres- sion that can only be limited by circumstances, ami the discretion of a ciuirt, and in case of fresh pursuit would be actually without limitation. Indeed, after passing the jurisdictional limits of a State, a vessel is as much on the high seas as if in the middle of the ocean, and if France could authorize a seizure at the distance of 2 leagues, she could at the distance of 20. * * * Seizure on the high seas for a, broach of the right of blockade during the whole return voyage, is universally acquiesced in as reasonable e.xerciso of sovereign power. The principle of blockade has, indeed, in modern times, lieen pushed to such an extravagant extent as to become a very justifiable cause of war, but still it is admitted to be consistent with the law of nations when confined within the limits of reason and necessity. [note 1 (page 152). CITATIONS PRO".: CONTINKNTAt WBITBBS ON THB SUBJECT OV SKLF DLFKNSE.] Every nation may appropriate things, the use of which, if left free and common, would be greatly to its prejudice. This is another reason why maritime powers may extend their domain along the seacoast, as far as it is pos.sible, to defend their rights. * * * Tt is essential to their security and the welfare of their dominions. (Azuni, Part I, Chap. Ii, Art I, Sec. 4, page 185.) Plocquo (De la Mer et do la Navigation Maritime, ch. i, pp. 6-8), after discussing the limits of the territorial sea, and pointing out the great divt'.-gence of opinion that had existed on that point, remarks : 'iloreover, in custom-house matters, a nation can Sx at will the point where its territorial sea ends; the neighboring nations are sup- 184 ARGUMENT OF THE LTNITED STATES. posed to be actiaainted with these icgulatious, and are, consequently, obliged to conform thereto. Aa an example, we will content ourselves with quoting the law of Germinal 4th, year II, Art. 7, Tit. 2 : ' Captaius and officers and other functionaries directing the custona-house, or tliu commercial or naval service, may search all vessels of less than 100 ton.s burden when lying at anchoi" or tacking within four leagues from the coast of France, cases of vis iiuijor excepted. If such vessels have on board any goods whoso importation or exportation is prohibited in France, the vessels shall be confiscated as well as their cargoes, and the captains of the vessels shall bo required to pay a line of 500 livres.' " Says Pradier-Fodere (Traite de Droit Internationale, Vol. ii, sec. G3o) .- " Independently of treaties, the law of each state can determine of its own accord a certain distance on the sea, within which tho state can claim to exercise power and jurisdiction, and which constitutes the terri- torial sea, for it and for those who admit the limitation. This is especially for the surveillance and control of revenues." And in a note to this passage he says : "In effect, in the matter of revenue, a nation can tix its own limits. notwithstanding the termination of the territorial sea. Neighborin eases when the possibility of for the de- le, and for tlie to establish an active inspection on their coast and its vicinity, aud to adopt all noces- sai'y measures for shutting ofE access to their territory t • those whom they may refuse to receive, where they do not conform to established regula- tions. It is a natural consequence of the general principle, that whatever anyone shall liavo done in behalf of his self-defense he will be taken to have done rightly. " Everj nation is thufi free to establish an inspection aud a police over its coasts as it pleases, at least where it has not bound itself by treaties. It can, accoiding to the particular conditions of the coasts and waters, tix the distance correspondingly. A common usage has established a cannon shot as the distance which it is not permitted to ovei-leap, except in the exceptional case, a line which has not alone received the approval of Grotius, Bynkershok, Galiana, aud Kluber, but has been confirmed likewise by the laAvs and treaties of many of the nations. "' Nevertheless we can maintain further with Vattel that the domin- ion of the state over the neighboring sea extends as far as it is neces- sary to insure its safety, and as far as it can make its power respected. And we can further regard with Rayneval the distance of the horizon which can be fixed upon the coast as the extreme limit of the measure of surveillance. The line of the cannon shot, Avhich is generally regarded as of common right, presents no invariable base, and the line can be fixed by the laws of each state at least in a provisional wry." (Heffter, Int. Law, Sees. 74-75.) Bluntschli says (Int. LaAt, Book iv, sec. 322) : " The jurisdiction of the neighboring sea does not extend further than the limit judged necessary by the police and the military authorities." And section 342 : " Whenever the crew of a ship has committed a crime upon land or within water included in the territory of another state and is pursued by judicial authorities of such state, the pursuit of the vessel may be continued beyond the waters which are a part of the territory, and even into the open sea." And in a note ho says : '• This extension is necessary to insure the efficiency of penal justice. It ends with the pursuit," Carnazza-Amari (Int. Law, sec. 2, chap. 7, page 60), after citing from M. Calvo the passage quoted above says : '• Nevertheless states have a right to exact that their security should not bo jeopai'dized by an easy access of foreign vessels menacing their terri- tory ; they may see to the collection of duties indispensable to their existence, which arc levied upon the national and foreign produce, and which maritime contraband would doubtless lessen if it should not bo suppressed. From all these points of view it is necessary to grant to each nation the right of inspection over the sea which washes its coasts, within the limits required for its security, its tranquillity, and the pro- tection of its wealth. * * * States are obliged, in the interest of their defense and their existence, to subject to their authority the sea bordering the coast as far as they are able, or as fai' as there is need to maintain their doniiuiou by force of arms. * * * 186 ARGUMENT OF THE UNITED STATES. " It ig necessary to concede to every nation a right of surveillance over the bordering sea within the limits which its security, its tran- quillity, and its wealth demand. * * * Balde and other authorities place the line at 60 miles from the shore. Gryphiander and Pacninez, at 100. Locennius, at a point from which a ship can sail in two days. Bynkershock maintains that the territorial sea extends as far as the power of artillerj'. This limit is regarded as the correct one, not because it is founded on foi*ce, but because it is the limit necessary for the safety of the state." [note 1, PAOE 153. TUB CAHOLINE CASB.] Mr. Webster said, addressing the British Government : " Under those circumstances, and under those immediately connecte'^ with the ti'ansaction itself, it will be for Her Majesty's Government tc show upon what state of facts and what rules of international law thf destruction of the Caroline is to be defended. It will be for that Gove..' • ment to show a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation. " It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or exces- sive ; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was impraoticible, or would have been unavailing." (Webster's Works, Vol. vr, page 261.) Lord Ashburton in his reply says : " Every consideration, therefore, leads us to set as highly as your Govern- ment can possibly do this paramount obligation of reciprocal respect for the independent territory of each. But however strong his duty may be, it is admitted by all writers, by all jurists, by the occasional practice of all nations, not excepting your own, that a strong overpowering necessity may arise when this great principle may and must be suspended. It must be so, for the shortest possible period during the continuance of an admitted overruling necessity, and strictly confined within the narrowest limits inaposed by that necessity. Self-defen.se is the first law of our nature, and it must bo recognized by every code which professes to regu- late the condition and relations of man. Upon this modification, if I may so call it, of the great general principle, wo seem also to be agreed ; and on this part of the subject I have done little more than repeat the sentiments, though in less forcible language, admitted and maintained by you in the letter to which you refer me. " Agreeing, therefore, on the general principle, and on the possible ex- ception to which it is liable, the only question between us is whether this occurrence came within the limits fairly to be assigned to such ex- ceptions ; whether, to use your words, there was that necessity of self-defense, instant, overwhelming, leaving no choice of means, which preceded the destruction of the Caroline while moored to the shore of the United States. Give mo leave, sir, to say, with all possible admi- ration of your very ingenious discussion of the general principles which are supposed to govern the right and practice of interference by the people of one country in the wars and quarrels of others, that this part of your argument is little applicable to our immediate case. If Great Britain, America, or any other country, suffer their people to lit out ^"fifi 1 APPENDIX TO PART THIRD — DIVISION II. 187 expeditions to take part in distant quaiTcls, such conduct may, accordi' ing to the circumstances of each case, be justly matter of complaint, and perhaps these transactions have generally been in late times too much overlooked or connived at. " But the case we are considering is of a wholly different description, and may be best determined by answering the following question : Sap- posing a man standing on ground where you have no legal right to fol- low him, has a weapon long enough to reach you, and is striking you down and endangering your life, how long are you bound to wait for the assistance of the authority having the legal power to relieve you ? Or, to bring the facts more immediately home to the case, if cannoa are moviiig and setting up in a battery which can reach you, and are actually destroying life and property by their fire ; if you have remon- strated for some time without effect and see no prospect of relief, when, begins your right to defend yourself, should you have no other meana of doing so than by seizing your assailant on the verge of neutral ter- ritory ? " (British and Foreign Correspondence for 1841, 184'J, Vol. 30^ page 196.) Lord Campbell says of this case in his autobiography (Life, etc., edited. by Mrs. Hardcastle, 1881, Vol. 2, p. 118) : " The affair of the Caroline was much more difficult. Even Lord. Grey told me he thought we were quite wrong in what we had done;. but assuming the facts that the Caroline had been engaged and when, seized by us was still engaged in carrying supplies and military stores from the American side of the river to the rebels in Navj' Island, part of the British territory, that this was permitted or could not be pre- vented by the American authorities, 1 was clearly of opinion that- although she lay on the American side of the river when she was seized,, we had a clear right to seize and to destroy her, just as we might have taken a battery erected by the rebels on the American shore, the guns. of which were fircfl against the Queen's troops in Navy Island. I wrote a long justificatior of our Government, and this supplied tlie ai'guments nsed by our foi'ei'^n secretary, till the Ashburton treaty hushed up the dispute." Mr. Calhoun said of it in a speech in the Senate in which he insisted that the capturs of the Caroline in American waters was unjustifiable^ because unnecessary : " It is a fundaniontai principle in the law of nations that every state or nation has full and complete jui'isdiction over its own territory to the exclusion of all others, a principle essential to independence, and therefore held most sacred. It is accordingly laid down by all writers. on those laws who treat of the subject that nothing short of extreme nece.ssity can justify a belligerent in entering with an armed force ou the territory of a neutral power, and when entered, in doing any act which is not forced on him by the like necessity which justified the en- toring." [note 1 (page 156). NKOOTIATION BETWEEN rSITED STATES AND OBBAX BBITAIIT BBLATIVE TO THE ^EWEOUNDLA^•D FISHEBIE8.] Mr. Adams says (documents relating to the negotiations of Ghent^ page 184) : " That fishery, covering the bottom of the banks which surround the- island of Newfoundland, the coasts of Now England, Nova Scotia, the Gulfs of St. Lawrence and Labrador, furnishes the richest treasure and. [817] . • • N 4: i< '1 \K ' '' If 188 ARGUMENT OF THE UNITED STATES, the most beneficent tribute the ocean pays to earth on this terraqueous globe. By the pleasure of the Creator of earths and seas, it has been constitnted in its physical nature one fishery, extending in the open seas around that island to little less than five degrees of latitude from the coast, spi-eading along the whole northern coast of this continent, and insinvm.:* itself into "11 the hays, creeks, and harbors to tlio very bordei-s of the shores. For the full enjoyment of an equal shave in this fishery it Avas necessary to have a nearly general access to every part of it. * * * "By the law of nature this fishery belonged to the inhabitants oC the regions in the neighborhood of which it was situated. By tlie eou- ventional law of Europe it belonged to the European nations whieli liad formed settlements in those regions. France, as the first principal set- tler in them, had long claimed exclusive right to it. Great Britain, moved in no small degree by the value of tho fishery itself, had made the cctquest of all those regions from France (by force), and had lim- ited, by treaty, within a nairow compass the right of France to any share in the fishery. Spain, upon some claim of prior discovery, liaJ for some time enjoyed a share of the fishery on tlie banks, but at tho last treaty of peace prior to tho American Revolution had expressly renounced it. At the commencement of the American Revolution, therefore, this fishery belonged exclusively to the .BritiKh Nation, sub- ject to a certain limited participation in it reserved by treaty stipulations to France." He further cites (page 185) an act of the Bi-itish Parliament passed in March, 1775 : " In March, 1775, the British Parliament passed an act to restrain the trade and nommerce of tlie provinces of Massachusetts Bay and New Hampshire, anl colonies of Connecticut and Rhode Island, and Provi- dence Plantation in Noi'tli America, to Great Britain, Ireland, and the British Islands in the West Indies, and to prohibit such provinces and colonies from caiiying on any fishery on the banks of Newfoundland and other places therein mentioned, undei' certain conditions and limi- tations." And the remarks of Lord North in bringing in the bill : " In particular he said that the fishery on the banks of Newfound- land and the other banks and all the others in America was the un- doubted right of Great Britain; therefore ice might dispose of them as tee pleased." Mr. Adams again observes (page 187) : "The whole fishery (with the exception of the reserved and limited right of Franco) was the exclusive property of the British Empire. Tiie right to a full participation in that property belonged by the law of nature to the people of New England from their locality.'' And in support of the validity of this proprietary right, he quotes (page 107) the passage from Vattel heretofore cited. (Vattel, 1 Ch., '1'.^.) He cites also (page 169) from Valin (Vol. 2, page G9i{) in respect to these fisheries as follows : "As to the right of fishing upon the bank of Newfoundland, as that island which is as it were the seat of this fishei'y then belonged to France, it was so held by the French that other nations could naturally fish there only by virtue of the treaties. This has since changed by means of the cession of the island of Newfoundland made to tbe English by the treaty of Utrecht ; but Louis XIV, at the time of that cession, made an express reservation of the right of fishing upon the bank of Newfoundland, in favor of the French as before." APPENDIX TO PART THIRD — DIVISION II. 189 And Mr. Adams quotes (page 1G9) from Mr. Jeifertjon's Report on the Fisheries, of February 1, 1791, as follows: "Spain had formally relinquished her pretensions to a participation in these fisheries at the close of the preceding war, and at the end of this, the adjacent continent and islands being divided between the United States and the English and French, for the last retained two small islands merely for this object, the right of fishing was appropriated to them also." And he quotes also (pages 189, 190) the language of Lord North and Lord Loughborough in the debate in Parliament on the treaty of 1763, in which the concession to the Americans in that treaty of rights of fisliing ^as treated as an im^jrdvident and unnecessary concession. Parliament passeil [note 1, I'AGB 169. rnENCH LEOISIiATIOX FOE HKVEKUE PHOTECTION.] Law or decree of August 6, 1791, Title lu, Article r : "All goods pro- hibited admission which may be entered by sea or by land shall be confis- cated as well as the ships under fifty tons, etc." Article ir : "All prohibited goods shall be accounted for according to the terms of the above article, * * * which the revenue officers shall have found within the two leagues of the coasts on vessels under fifty tons." Title 13 of the police in general, article 6 : " The inspection of the vessels, tenders, or of the sloops, can take place at sea or on the rivers." Article VII : " The officers of inspections on the said tenders can visit the vessels under fifty tons Avhich may be found at sea at the distance of two leagues from the coast, and to receive the bills of lading concerning their cargo. If these vessels are loaded with prohibitive goods the seizure of the .same shall be made, and confiscation shall be pronounced against the master of the vessel with a penalty of five hundred pounds." Law or decree of the ^tli Germinal, year 2d, March 24, 1794, relating to maritime commerce and revenue : Title II, article 3 : " The captain arriving within the four miles of tlie coast will submit when required, a copy of the manifest to the custom-house official who will come on board, and will vise the original." Arficlo 7 : " The captain and the other officers on the revenue vessels may visit all ships under one hundred tons which are at anchor or luffing within the four leagues of the coasts of France, excepting they be of superior strength. If the ships have on board goods of which the import irtto and export from France is prohibited, they shall be confiscated, as well E5 the cargoes, together with a fine of five hundred pounds against the captains of the ships." Provisions confirmed by the following laws : Law of March 27, 1817, article 13 : " The same penalty shall bo applied iu the case provided by article 7 of law of the 4th Germinal, year 2, Title u, to ships under one hundi-ed tons overtaken, except they be of superior strength, within the two myriameters (four leagues) of the coasts, having on board forbidden merchandise." ■.,1 . ( -,1 ■1.; •»! m [317] n2 190 ARGUMENT OF THE UNITED STATES. FOURTH. OONOTJBBENT BEaULATIOKS. The five questions whicli, in the order adopted by the Ti-eaty, are first submitted to the Tribunal of Arbitration, may for practical pur- poses be reduced to two ; and these present for consideration the two general grounds upon which, in the contemplation of the Treaty, the United States might assert a light to prevent the pursuit and capturo of the Alaskan fur-seals on the high seas. The fird is the possession by the United States of a jurisdiction or right to exercise authority in Bering Sea sufficient to enable it to protect their sealing industries against injury from the prosecution of pelagic sealing by the vessels of any nation. The second is the property i-ight or interest in the seal herd, or in the industry of cherishing and cultivating that herd on the Pribilof Islands, and taking the annual increase for the purpose of supplying the world's demand. The treaty apparently assumes that a determination in favor of the United States of the question of juris- diction in Bering Sea might amount to a final disposition of the whole substance of the controveisy ; but it is cautious in this particular, and, having in view the extreme importance of preserving the seals from threatened extermination, contemplates that even in the event of such favorable decision the United States might not be able, by any exer- cise of the powers < ms conceded to them, to insure this preservation j but that regulations to be adopted by the concurrent action of both nations might be necessary ; and this contemplated possibility is not, iu the view of the Treaty, displaced by any determination Avhich may be reached upon the question of property. The seventh article, therefore, broadly provides that : If the determination of the foregoing questions as to the exclttsive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur-seal in or habitually resorting to the Behring Sea, the arbitrators shall then deter- mine wliat concurrent regulations outside the jurisdictional limits of the respective governments are necessary, and over what watei's such regula- tions should extend, etc., etc. 'i I CONCURRENT REGULATIONS. 191 the Treaty, are )r priictical pur- Jeration the two the Treaty, the ■suit and capture is the possession •cise authority in eahng industries ig by the vessels terest in the seal that herd on the p the purpose of itly assumes that question of juris- tion of the whole 8 particular, and, Ig the seals from the event of such iblc, by any exer- this preservation; at action of both ssibility is not, iu ion which may be 28 to the exchmve such position that establishment of i the fur-seal in ov s shall then deter- tional limits of the 'ators such regula- The reasons for leaving the consideration of concurrent regulations thns broadly open are manifest. In all judicial controvei'sies, except snch as plainly involve nothing more than the question of the right to a money payment, the particular relief which maybe best suited to the exigency of the case can never be accurately perceived until all the rights, both principal and incidental, are ascertained ; and, conse- quently, the character and extent of the relief are left to bo determined along with, or subsequent to, the determination of the merits of the case. This was especially true of the present controversy in the form which it assumed at the time of the Treaty. The questions at that time had received a diplomatic treatment only. This disclosed that several novel legal questions were involved concerning which the high contract- ing parties were not agreed. But they were agreed that, whatever might be the true solution of such questions, there was one object ex- tremely desirable to both, namely, that the fur-seals should be preserved from the peril of extermination. If it were determined that the Uiiited States had no property interest in the seals, and no exclusive jurisdiction in Bering Sea, concun^ent regulations would certainly be necessary. And if it were determined that they had no property interest, but had the exclusive jurisdiction, it might yet be that the inadequacy of a protection, however efficiently exerted, which would be limited to these waters, would still render concurrent regulations necessary to complete protec- tion. And, even if it were determined that they had both the requisite jurisdiction and the property intei'est, there might be a question con- cerning the action which they might talse to protect such interest in the Pacific Ocean, south of Bering Sea. Satisfactory conclusions upon all these questions could only be had by an attentive examination, aided by a full production of proofs, not only of the questions of right, but also of the whole subject of sealing, and of the practical measures which might be requisite to assure the protection which both parties agreed to be supremely desirable. The single event which appears to have been regarded as possibly rendering it unnecessary to consider the question of concurrent regulations was a determination that the United States possessed the exclusive jurisdiction in or over some part of Bering Sea. A protection enforced by the United States in the exer- cise of such an authority might be sufficiently effective for the agreed purpose of preservation, and render any concurrent action on the part of Great Britain unnecessary ; but this was uncertain. Hence the lan- gnage of the Treaty, carefully shaped so as not to attempt anticipations .1 it" ■i J t I 192 AKOUMENT OF THK UNITED STAI'ES. which might bo disappointed, mmle it the duty of the Tiibuiuil, *' if tlio determination of the foiegoing (fuestions as to the exclusive jiiiisihi'. tion of the United States shall leave the siihject in suck a posi/ioi that the conciirrenee of (Jtreat Britain is necessary to the establishment of reguhitions," etc., to proceed and " determine what concnrroiit regula- tions outside the jurisdictional limits of the respective Govevnineuts nre necessary," etc. The first question which arises here is, what is the scope uf the in(|uiry which the Tribunal is called upon to make ? Is it tn dcttr- mine what regulations ronsisfi'nf icifh the pursuit of peluf/ir mallini aic necessary i' Is it thus, or in any other way, limited in its iiuiiiiiy '< It may bo urged that we are iit liberty to look into the dipldmiitic communications which preceded the treaty and led to it, with the view of more clearly ascertaining what the precise intent in this and othtu- respects was, and that, when these are taken into view, it appears that all that the United States claimed was that the operations of the Canadian sealers should be placed undrr restrictions, such as those afforded by a close time and pi'ohibited areas. It is freely admitted that when suggestions were first madi- for the settlement of questions growing out of the depredations of the Cana- dian sealers and the seizures of vessels employed for that purpcsc, it was believed by the United States that the substantial enjoyment by tbem of the rights acquired by theii- acquisition of Alaska from Russia might be secured, and the herds of seals protected suflBciently for that purpose by some scheme of restriction in place or time, or both, of pelagic sealing. And it is believed that the Government of Great Britain at tlio same time supposed that such restrictions would suffice for the pieser- vat ion of the herd. But the whole subject was at that time novel and very imperfectly understood in either country. The cause, pelagic sealing with its re- sults, which gave rise to the cowplaints on eiich side was recent, and had not assumed the proportions which it subsequently exhibited, uor was the actual magnitude of it at that time known. Nor had the habits of the seals, their migrations, and the places at which they might from time to time be found, upon which the questions respecting riglit.s of propei-ty in them so nmch depend, been studied and fully ascertained. The United States had, from the first, a conviction that their indu.stiy, which came to them as a part of their acquisition from Russia, of cher- ishing and protecting their seals upon the Pribilof islands, to the end ^'^I^ CON'CCRUEN'T HEGITLATIONS. 193" tlmt tliey uu'/it iippiopiintc to tlienisdves tho annual incrcaso without impairing the stock, could not be destroyed by the indiscriminate and unrestricted ulaughter of the nnininl upon tho seas. What the precise tmtnre of their right was, and what its limits were, had not been sub- jected to thorough consideration. That they could ])roveut marauding upon the islands tlieniselvcs and in the watcj's immediately surround- ing them, and also any hovering in the neighbourhood of them for such purposes, seemed too pliiin for (juestion. And in view of tho circum- stance that this industry had been cherished by Russia for half a cen- tury, and that the claims to prohibitive jurisdiction over Bering Sea had been for a similar period asserted, and, as was believed by the Govern- ment of tho United Slates, for the mont part acquiesced in, it seemed to tlio Congress of the United States a reasonable exercise of natural rights to prohibit the capture of fur-bearing animals in the eastern half of Tiering Sea, and laws were enacted by that body designed to efTect such prohibition. These laws were not limited in their operation to citizens of the United States, but might be enforced against the citizens of other nations ; and while, by their terms, they assumed to bo operative only over the Territory of Alaska and "the Avatera thereof," their language was in- terpreted to include so much of Bering Sea as was embraced by the terms of the cession from Russia to the United States. At first there was little, if any, occasion for any attempt to enforce the prohibitions of this legislation agaitvst any persons engaging in pelagic sealing. It was not until the year 1886 that this mode of pursuit had been prose- cuted sufficiently to attiact the serious notice of the United States ; but in That year quite a large number of vessels were fitted out for this purpose i'roni Canadian ports on the northwest coast, and entered Ber- ing Sea. Some of tliem were captured by armed vessels of the United States, and demands f(u- the release of them were made by Her Majesty's Government. In tho discussions which followed those demands, the right of the- United States to make such captures was asserted by them and denied by Her Majesty's Government; but the destructive tendencies of the pnrenit thus sought to be prevented by the United States was subsftan- tially admitted and regarded on both sides as threatening practical exter- mination of the animals. This would have effected most disastrously the interests of both nations. Both would thereby lose, in common with the world at large, the berefits derived from the useful products of that i; 104 APQUMENT OF THE UNITED STATES. = animal. And wliilo tlio United States would bo Bubjectod to a pai-ticuiai- injury in beinj? deprived of tho profit coming from the Healing industricB •on the Pribilof iBlandH, Canada, one of tho dependencies of Great Britiiin, "would loBO the HuppcHod benefit of pelagic sealing; and England would bo •flnbjectod to tho far greater loss which would como from tho breaking up of her industry iii tho manufacture of the sealskins, in which some thou- sands of her people were engaged. These considerations naturally led to the suggestion that both nations 'possesHcd such a common interest in the pi-eservation of the herd ns to make it expedient for them to make an effort to reach some agreenioiit designed to bring about that result, which, if successful, would not only terminate the existing dispute, but subserve the permanent interests of *he parties. In tho abHonco of full and correct information by the diplomatic rep- resentatives of tho two governments of th& nature and habits of the animal and of the laws governing its reproduction and increase, the 'peculiar device for the preservation of wild animals by restricting their slanghter to a limited time was suggested, and apparently accepted on l)oth sides, almost immediately, as being likely to furnish a sufficient "^safeguard against the apprehended destruction. The time during "which such a restriction should bo enforced, the only point upon which 'difference of opinion might have been anticipated, was at onco agreed upon, and there can be little doubt that a formal agreement would have %een immediately framed and ratified, had not Canada, moved, presuni- =ably, by the remonstrances of her pelagic sealers, interposed and pressed an objection.' It is fortunate, in the view of the United States, that such an agreement was not consummated. It would have proved wholly iliusive. The foundation of this concurrence in the device of a close .icanon was the predominating necessity of preserving the animals from extinction; and there is no reason to suppose that, had it then appeared that ab- -solnte prohibition of pelagic sealing was requisite to that end, such pro- >hibition would have been acceded to in the absence of remonstrance from Canada, originating in the present interest of persons engaged in pelagic sealing, an interest which regarded with comparative indiffer- ence the eventual fate of the animal. It is not to be supposed that the enlightened statesmanship of Lord Salisbury, unembarrassed by any ' Diplomatic Correspondence, Case of the United States, Appendix, Vol. I, pp. 175 to 183, inclusive. ^m CONCURRENT REGUIATION8. 195 'difficulty growing out of the opposition of a great dependunoy of the ilritiih Empire, would have iusistod for a moment upon a continued in- dulgence of the pursuit of pelagic sealing, had it appeared that such a course would have involved, in the near future, the prnctical cxtennination of the fur-seals. Ho surely would not have sacrififcd the interests of the world and the very large special manufacturing interest of Great Britain, in order to save fur a few years a pursuit which was rapidly working the destruction, not only of the great interests above referred to, but also of itself. The failure of the negotiations referred to left the situation involved not only with the existing dispute, but aggravated by the certainty that fresh causes of irritation and contention would constantly arise ; and the proportions of the controversy continned to increase until the peaceful relations of the two governments became most sei'iously threatened. A renewal of negotiations ensued, which led to the ratification of the Treity under which the present Tribunal has been constituted. Whatever may have been the effect of the later negotiations in separating the parties more widely upon the main questions of right involved in the controversy, there is one point upon which, having been substantially agreed at first, they were brought more and more into unison, namely, the predominating necessity of preserving the seals. The Seventh Article of the Treaty calls upon the Tribunal to determine simply " what concurrent regula- tions outside the jurisdictional limits of the respective governments are necessari/ to the proper protection and preservation of the fur-seals." Fitness for the accomplishment of that end is the only description in the Treaty of the regulations which this Tribunal is to ascertain or devise. After the article had assumed its present form in the negotia- tions, some effort was made by Lord Salisbury to restrict its effect to confer upon the Tribunal the full discretion which its terms import ; but this was resisted on the part of the United States, and the attempt was abandoned.' The foregoing brief review of the negotiations will serve to show that the authority and discretion of the Arbiti-ators in respect of concurrent I'cgulations is wholly unrestricted, except by the single condition that they are to be operative only mttside of the municipal jurisdictions. There is not only no language importing that some form or degree of tliat pursuit is to be retained, but there is no implication even to that s, Vol. I, pp. 173 '" ' Diplomntic Correspondence, Case of the United States, Appendix, Vol. I, pp. 339 to *15, inclusive. iKH:\'\:m 106 ARGUMENT OF THK UNITED STATES. ' <§ ii I i m fl I ' M .i ii ' ">atedly or rather —what regtilatiou!^ and the uniform iss of regulations, Hut (Oil of priiatc pedient is possible 3ible and effectual ubject themselves [•iate the increase which can not be vise that class of dinary game laws Alaska are ani- as to enable tlie ir human use the jstion Avhat rcfjn- )rPservation is nt lion needed "out- nients,'' and that ion be absolutely society from the not likely to be lias the wisdom and ingenuity to devise other regulations which human society has q^vev as yet been able to conceive, which will effectually counteract the destructive tendency of pursuit by men excited and inflamed by the gx-eed for gain, that regulation must certainly be deemed necvssary. We might well dismiss the subject of regulations at this point, as needing no further elucidation, and should do so except for the circum- stance that it may possibly be considered that there is still a doubt con- cerning the extent and degree of the destructive tendency uf a method of indiscriminate slaughter such as pelagic sealing is. That it opei'ates directly to diminish the birth rate by sacrilicing females instead of males, that it sacritices large numbers v/hith are never recovered, and that thi& is uunecessai-y, because there is u mode of selective slaughtei which involves neither of these forms of waste, is undeniable; and, inasmuch us it is conceded by the Joint Report of the Commissioners of both Govern- ments that under this method of capture the seals are diminishing with cumulative rapidity, there seems to be wanting no element requisite to justify the conclusion that this absolute prohibition is necessary, Bu,t it may still be contended that this mode of slanghter may, without absolute prohibition, be so restricted as to be compatible with the presei'vation of the race. This position is aifxiiiiu-d in the Report of the Conmiissioners of Great Britain, but no proofs are adduced or reasons offered by them, to niako good their assumption. The hrst point, therefoic, which should engage our at+ent'jn is whether 'iii.>j allowance of pelagic sealing, however restricted in place or time, is compatible with the permanent existence of tiie seal herd. By the terms "any allowance," wc do not mean ihe least measure of formal permipsion, siicl), for instance, as would allow the pursuit to be carried on during the months of December and January only, when the seas are so rough, and the seals found with such difficulty that there is no temptation to engage ill the enterprise, but such jiermission as would afford some chance iif success, and tempt undertakings that would result in tbo capture of considerable numbers of seals. Any license move restricted than this woidd bo wholly unimportant as a license, and not worth discussion. It would iimoiint for all substantial purposes to absolute proliibition, and sliould be '^iewed as such. The question to which a clear answer should first be given is, " What f'ausfs a diminution of the herd t* " It might at first be hastily supposed that any killing of seals would work pro tauto a decrease of the nor- mal numbers; but a moment's reflection will show that this is not neces- I. t '.I M 198 ARGUMENT OF THE UNITED STATES. sarily truf. The animal being ptflysRiainoTis, and each male sufficing for fiom thirt}- to fifty or more females,*"* ibave only to apply common barn- yard knowledge in order to learn ^btM'VHv^ne.v normal conditions there must always be produced a large nombpr of supei-fluons males, wliich, if not taken away, would, of theriigelv*» by isheir tierce an'' desti-uctive contests for the pomnnsf^tm erf the females, not i»nly destroy themselves in large numbers, but gre*ri<«' interfere with aaad isH^tvu'-* th* work of reproduction. This superfluity o^ males, thHreforo, ma»f be takioi not only without injufj', but with i>orti*We benefit to the hew**, it is obvious that it is only bj' dimininhinf/ Cif birthrat>' that the non*ml ouaiiiers of the herd ca'W be injuriously affei-.**^ If the seals wert: no* ia<*rfered with by man the herd would increnae in number, nr, til by the operation of natural •conditions tending to restrict. Increase, nxnH which operate with accu- mulating force as the numbers become lai'ge, suoli as deficiency of food, waut of convenient room on the breeding places, the occupation of the males in destructive warfare among ^themselves, which must greatly interfere with the work of reproduction, the deaths bee ime equal to the births. The numbers of the herd will, other things being uiichai)'r'''I, then remain constant. This is so clearly explained i :i the Report c? ' ' Commissioners of the United States that it is unnecessary to further enlarge upon it here. ' Disregarding the causes, other than the inteifercnco pf man, which may operate to reduce the numbers of the herd, such as killer-whales or other enemies, or insufficiency of food, or disease, matters concerning which wc have little or no knowledge, it is manifest that the killing of a single breeding female must, iiro fanto, operate to diminish the number of births and thus tend towards the destruction of the animal. We need go no further. The conclusiitn from this single fact is certain and irresistible. Pelagic sealing means the killing, principally oi females &nd breeding females ; and if practiced to such an extent as to sacrifice! such females in corisidrrahle numhers, must, in proportion to the numbers sacrificed, work a destruction of the herd; and the question when the destruction will be so complete as to amount to a sweeping away of the seals as a subject of value in commerce is a question of time only. It is respectfully submitted to this Tribunal that right here is an end of legitimate debate. Any further discussion must relaii to a question how far man can tamper wit? the laws of nature without incurring an injurious penalty. The ans- jr of a tribunal bound to take notice of ' t'Bse o" .he United Statcs,pp. 3iG 350. CONCURRENT REGULATIONS. 199' and administer the law of nature should be instant and decisive that he can not tamper with them at all. His sole business is to ascertain and obey them, well knowing, as he does, that any violation of them entails,, with the certainty of fate, its corresponding punishment. But, notwithstanding, let the inquiry hojc soon the destruction would be complete be pursued. And, for this purpose, let it be assumed that the present magnitude of the pelagic catch, and the consequent destruction of females, be continued. That catch amounted in 1891 to 68,000, according to the Report of the British Commissioners,' and the number of victims dying from wounds pnd not recovered is no', included. If we knew what the number of breeding females in the herds was at the same time, some ground for conjecture would be furnished. But of this we are wholly ignorant. We do not know the numbers even of the whole herd at that or any other time, still less the number of breeding females, nil conjectures upon these points a'-e wild and untrustworthy. But there are some facts within our knowledge which throw a certain measure of light upon the infj'iiry. We l.now something concerning the average drafts made by the riussinns during their occupation of the islands, and which wera confined to nonhfcr.ding mah's. According to the Report of the British Commissioners the average annual draft for <^he eighty-one years of Russian occupation was 34,000.* But inasmucli m- tliis includes long periods of abstinence made neces- sary by the dcplel'in of the herd, from exceptional or unknown causes, it would probably be nearer to the truth to place the usual draft un- der the Russian occupancy at from HO, 000 to 75,000. And during this period the draft was often made 3nr.iller than it might safely have been, by reason of a diminished demand in the market. The smaller num- ber, however, would, obviously, bo less favorable to any indulgence of pelagic sealing. We also know that under the more careful manage- ment of the United States an annual draft of 100,000 was made with- out any observed serious diminution of the herd until after pelagic seal- ing had nHHiiinod largo proportions. It may, therefore, probably be assumed as reasonably certain that undci' normal conditions, the herd contaixia such a nnvilrr of hrri'dliirf females aa will allow an annual taking of 100,000 nonbreeding males, provided iwlagic sealing is prohibited, and that this draft of 100,000 is the limit of nondestructive capture. Taking the pelagic catoh of IHOI, which was 68,000, there must be added to it the number killed and not recovered ; which, as we wish to keep renf ' Pago 207. I Puge 8. •20O ARGUMENT OF THE UNITED STATES. far -within the truth, may be taken as one in every four. The numhur ■66,000 I'eprcsents, tlierefore, three-fonrths only of the total killed, wlii.'li •would thus amount to 68,000 plus 22,666, or 90,0()(i. Of this number, v,h. serving the same caution in statement, at least three-fourths are feuuilc-;, which "Would thus number 68,000, or tho number actually recjveroil. How many of these may be barren females, there is no means of as- certaining. Wo have no reason to suppose that the number is con- siderable. The question whether it would take a long or short period to sweep away the herd if 68,000 females were actually taken fi-om them eaeh ycfiT furnishes its own answer. The same annual subtraction from a constantly diminishing sum would be an accelerating progress of de- struction wliirli would soon complete its work, >vcu if all faking of seaUmi the land loere proh-ibited. The only cause tending to moderate the rapidity of the destruction would be the increasing difficulty of securing the annual ^8,000 with the diminishing number of females; but as this nviml/ei- ili. minished, the draft wonld be proportionately larger ; and even this olioek upon the destruction would be done away with by the increasing foicj employed in the pelagic slaughter, so long as the pursuit held out a chance of profit; and the constantly increasing price of skins — the sure result of •diminution of tlic supply in the mai'ket — would help to stimulate the pvo- .secution of the work. It is no longer matter of wonder that the much smaller pelagic ciitcli. amounting in 1882 to 12,000, and annually increasing until ii amounted! in 1887 to ;}7,r)00,' had produced an effect which became distinctly manifest at the breeding places in 1889 and 1890, by tho difficulty of finding the regular number 'f 100,000 young males for the purpose of slaughter, which led to an order to arrest the further killing. It would be there tlnit the invasion upon the numbers of thr herd would be first observable. No •one could teli from any survej- of the whole herd, stretched out over in tlio aggregate some lO miles in extent, and presenting differing appearances from time to time, that the numbers had diminished until tho diminutiin had I'eachod an advanced stage ; but any considerable deci'ease in the nuin- bor of breeding females, involving, as it would, a decrease of births, would soon become manifest in the crucial practical test of selecting the quotii of killablo young males.- But connsel for (Ireat Britain may protest that it is noi to the pui- ' Ri-jiort of Hrit. Com., ]i. 207. = Rritort of Am. Com., Ciise of tlie United .Stiitos, ]ip. 311-315. ^m^^^m CONCURliENT REGU LATIONS. 201 no: to the puv- pcse to (lisousB tbe effects of jtrcsoi^ \w]a,^\c slaughter, because everyono concedes thsih it is destructive nnd should ho ics'^ricted. It is true that this is admitted even by the Comniissionera of Great Hritain, although they assert that the destruction is in part impiitablo to excessive killing of males upon the islands ; but it is none the less proper that, in the inquiry we are now upon, how soon a destructive method of cajjture will result in complete destruction, we should ^^cgln with a degree oi it admitted to be speedily fatal. It tends to simplify the inquiry by diawing attention to the point how far any suggested methods of destruction will arrest tliis fatal destruction of females. The problem, of courFe, is to devise some method of pelagic sealing which will prevent this measure of destruction, or a lything approaching it. y, e must here tarn our attention to the methods suggeKoed by the British Commissioners. They have exercised their ingenuity to the utmost apcn this point, and if tlie measures pi-oposed by them are inadequate, wo may reasonably infer that no sufhciently effective ones can be devised. The final result of their efforts is embodied in what is termed by them " Specific scheme of Regulations recommended." This is contained in the following paragi-aphs of their Report : 155. In view of the actual condition of seal life as it i)rcsents itself to us at the present time we believe that the requisite degree of protection would be afforded by the application of the following specific limitations at shoro and at sea : {a) The maximum number of seals to be taken on the Pribilof Islands to be fixed at 50,000. (/') A zone of protected waters to be established, extending to a distance of 'JO nautical miles from the islands. (c) A close season to be provided, extending from the ] 5th September to the 1st May in each year, daring which all killing of seals shall be pro- liib'.ted, with the additional pi-ovision that no sealing vc.iscl shall enter Behring Sea before the 1st July in each year. 156. Respecting the eomjjenaatory feature of such specific i-egulations, it is believed that a just scale of eijuivaleney as betwoon shore and sea sealing would be found, and a complete check established against any ui:duo diminution of seals, by adopting the following as a unit of compensatory regulation : For each decrease of 10,000 in the number fixed for killing on the island.^, an increase of 10 nautical miles to be given to the width of ])r<)tectcd wateirj about the islands. The minimum number to be fixed for killing on tL(3 islands to be 10,000, corresponding to a maximum width of protected waters of 'iO nautical miles. 157. The above regulations represent measures at sea and ashore .suffi- ciently equivalent for all practical purposes, and probably embody or pi-o- vide for regulations as applied to sealing on the high seas as stiingent aa would be admitted by any maritime po'v r, whether directly or only potentially interested.^ ' Eejioi't of Br. C'uni.. p. 25. 202 ARGUMENT OF THE UNITED STATES. The first observation in relation to this suggested scheme which we have to make, is that it begins with a restriction, not upon pelagic seal- ing, but upon the taking of seals upon the Prtbilof Islands, proposing a restriction of that to 50,000 annually. This is wholly inadmissible. Whatever the distinguished Commissioners may think proper or desir- able in the way of restriction upon the action of the Unites! States upon its own soil, it never occun-ed to the Government of Great Britain to ask that that iiation should submit the exercise of its sovereign power to the authority of any tribunal ; nor have we any reason to suppose that the diplomatic representatives of Great Britain, at any time in the course of the negotiations which resulted in the Treaty, imagined that any admissible scheme of regulations could embrace a limitation upon the killing of superfluous males upon the land, to the end that females might be killed upon the sea. It is enough to say that the Treaty strictly confines the i-egulation'-: which the Tribunal may consider to such as are " outside the jurisdictional limits of the respective govern- ments." But let this pass in the present discussion, for we desire to consider the suflBciency of the proposed regulations upon the face of them. In substance, the scheme purports to be, so far as pelagic sealing is con- cerned, a mere intei position of additional difficulties in the prosecution of it by restricting it in place and time. It establishes a prohibited zone, with a radius of 20 miles from the islands, co.ifines all pelagic sealing to the period between the 1st of May and the 15th of September in each year, and forbids entrance into Bering Sea before the 1st of July in any year. There are several observations immediately suggested by thi.s scheme, Avhich is declared by the contrivers of it to afford " the requisite degree of protection." (1) In the first place it does not pui-port to restrict the number of seals so killed at sea to less than 68,000, unless the killing of that number is practically impossible under the conditions imposed. What guaranty or assurance is there that (58,000 females will not still be slaughtered under the limited conditions ? All that is requisite to this end is the employment of an additional force of vessels and men, and this is easily possible, and will certainly be supplied if the price of sMns will justify it. We know this would be tho case, for it must be taken as certain that the force of pelagic sealers would be largely increased at the price CONCURRENT REGULATIONS. 203 which skins coniraanded in 1891, when 68,000 wore taken at sea. The force had been steadily increasing for years, and there is no reason for a belief that the progress would liave ceased. Men will eagerly engage in such pursuits long after the certainty of a profit disappears. It still has great prizes, and it is these which tempt enterprise and risk. More .an this, the scheme scarcely interposes any additional difficulties. It I'uts off very little of the time during which pelagic sealing is now or can be prosecuted with advantage. A very small additional force would suffice to raise the capture to the amount obtainable by the present force opera- ting without restriction. But, finally, and decisively, the scheme itself furnishes a cause certain to bring to the work of destruction a force which would carry the slaughter far beyond the limit even of 68,000 femalea per annum. It cuts off from the market the supply from the breeding islands of 50,000 skins, leaving that enormous deficiency to bo supplied by the pelagic sealers ! What greater boon conld they ask ? If these Commissioners had deliberately set about to contrive a project for the stimulation of pelagic sealing, and for the delight of tliose engaged in it, they could have devised nothing so well calculated for that end as to take out of the market 50,000 skins of the supply from the Pribilof Islands, when the price stands at 125 shillings per skin,^ i nd give the pehigic sealers a chance to make up the deficiency between the 1st of May and the 1st of September, with the privilege of entering Bering Sea on the 1st of July, and of approaching the Pribilof Islands to a distance of 20 miles therefrom. Indeed, with such temptations, they would greatly increase the catch over present limits, even if they were excluded from Bering Sea altogether. Their catch in the North Pacific during the present year has, it is believed, amounted to nearly that. But we must not do the Commissioners the injustice of confining criticism to a part of their scheme. It includes another feature of restriction, which is indicated as furnishing " a just scale of equivalency as between shore and sea sealing," and " a complete check against undue diminution of seals." This is that the United States may procure an addition of ten nautical miles to the radius of the zone of protection around the islands for each reduction of 10,000 below the maximum of 60,000 to be allowed to be killed upon the islands, so that a protected zone of a radius of 60 miles might be obtained by a voluntary [317] ' Case of the United States, Appendix, Vol. II, p. 561. 204 ARGUMENT OF THE UNITED STATES. reduction of the iiunibor to bo taken on the islands to 10,000. Of couisi', with a fnrther withdrawal from the market of tho supply furnished by the islands, to tho amount of 40,000 skins annually, that is to say, bv leaving practically the tnholc market to bo supplied by tho pelagic sealers, a force in tho shape of vessels and men would speedily show itself sufficient to slaughter, not 60,000 females a season, but 100,000, and oven more, between the first of May and the 15th of September. But we fail to perceive the use, or the consistency, of imposing a limit to Avhioh such voluntary reductions of slaughter on the breeding islands should be carried by making tho minimum 10,000. Why should the United States not be permitted, if they desired, to purchase a protected zone of 60 miles radius by giving up the right to slaughter a single seal ? The scheme had as its sole merit some poor pretension in the way of comicality. Why should this be thrown away ? (2) Wo may bo told that we are really, if not avowedly, imputing to these Commissioners an intention to protect and promote tho interests of the Canadian sealers, and that this is unfair ; that if they are labor- ing in behalf of pelagic sealing, they are working as much for the inter- est of citizens of the United States as for Canadians, inasmuch as pelagic sealing is as open to the former as it is to tho latter. We do not forget the suggestion of the Commissioners to this effect,^ and wo remember at the same time, what was well known to them, that this occupation is not unreservedly open to citizens of tho United States. That nation deems itself bound by the spirit and principles of the law of nature, holds itself under an obligation to use tho natural advantages which have fa'len to its lot, by cultivating thi.s useful race of animals to tlic end that it may furnish its entire increase to tho-se for whom nature in- tended it, wherever they dwell, and without danger to tho stock. It holds, as the law of nature holds, that the destruction of the species by barbarous and indiscriminate slaughter is a crime, and punishes it with severe penalties. Its enactments adopted when it was supposed that the only danger of illegitimate slaughter was confined to Bering Sea were supposed to be adequate to prevent all such slaughter. Are the United States to be deprived of the benefit of tho seals unless they choose to abandon and repudiate the plain obligations of morality and natural law ? ' Eeport of Br. Com., p. 20. ^"^»wppp CONCURRENT REGULATIONS. •_>or> Q^) Hut what would be tho cost of this schoine ? Some, not iudet'd very large, additional diftioulties would be interposed in obtaiuing tlie present pela<,'ie catch of 08,000. It would require a somewhat larger investment of capital in vessels and appliauees, and a soiuewluit greater expenditure in wages. This, as has been shown, would be fully reim- bursed to the sealers, with a large additional profit, hv means of tin- subtraction from the market of oO,000 skins now furnished from the Prihilof Iflauds, and tho consequent increase of price. This increase of price must of course be paid by tho consumer. We can not well con- jecture the amount of it. It could hardly be less, if Ave may rely upon tho teachings of the table of prices,' than 810 per skin, and might amount to much more. This additional cost, increased at every stage in the process of manufacture and exchange, might easily add $'M) to the price of tho skin when it comes to the consumer, and thus the world would be burdened by an additional charge for 100,000 skins to the aulount of the easily possible sum of $3,000,000. And what would it cost to maintain tho nacal police required to enforce this scheme ? How many armed steamers would be needed to guard eiTectually against tho entrance of a trespasser within a prohibited zone, the cir- cumference of which is upwards of 140 miles, in a region of thick and almost perpetual fogs ? A million of dollars annually would be a mode- rate estimate of the expenditure required, and this must be paid by some- body, the Commissioners do not tell us by whom. And for whom and for loliat is thif-, prodigious tax to be imposed ? For the Canadian sealers alone, and in order to enable them to make a profit, for a few short years, by the to ^al destruction of a race o& use- ful animals ! If the assumption of such a burden were necessary, in order to preserve the seals, the propriety of making it would bo worthy of consideration ; but it is absolutely no misrepresentation or exaggera- tion to say that it would be a price paid, not for their preservation, but for their more speedy extermination. Not a dollar of this enormous e.xpenditure is needed for any xxseful purpose. The entire increase of all the herd may be made available at the lowest possible price, without endangering the stock and without imposing any additional burden upon tho Avorld, by simply contining the capture of tho seals to tho methods allowed by natural law. Nor is the expenditure needed even for the mischievous purpose of killing off the seals. It is indeed a con- trivance by which that result would be hastened, but if nothing were [317] ' Case of the United States, Appendix, Vol. II, p. 561. 02 20G ARGUMENT OF THK UNITED STATES. mii done, and pelagic scaling wcro peiniitted to bo prosecuted without let m liindrancc, the end would be reached nearly bh soon. I a (4) The severity amounting to injustice, in the operation of siicl fcclieme would be worth comuientiiig upon, were it on other grouud,> a(lmiHsii)le. How would the sealei- know, in that region of fog, whethci he was inside or outside of the prohibited line i" The opportunities for taking observations are rare. It may be said that he should take good i-are and give the lino a wide inside berth. But laws should take notice of the weakness of men in the face of temptation. This scheme wouM be a lure to which many would yield, and tiud theraselves caught, even when they intended not to transgress. Kli.fi (•>) The Commissioners of Great liritain have in their report studious! v avoided the real problem, which it was their business to solve. Tiiitt problem, according to their own view, was to devise some scheme of pelagic sealing which would preserve that pursuit, and at the same time not be fatally destructive tu the herd of seals. True, this is impossiijle ; but it was not so in their view, if we may credit their confident state- ments. They should, therefore, have first fixed upon some definite numlm- of females which might be taking annually without initiating a gmdual, but sure, destruction, and then devise a method which should restrict the capture to this number. This is the method pursued upon the Pribilof Islands. An estimate is made of the number of superfluous males that nmy be safely taken, and the annual draft is rigidly limited to that number. Had the Commissioners attempted this task, the utter impo.ssii- bility of it would have stood self-exposed. They would have been immediately confronted with two refutations. In the first place, had they named 50,000, or 40,000, or 20,000, or even 10,000, females as ii number which might be annually sacrificed without involving a mnv destruction, the sure teachings of the natural laws governing the increase of such animals would at once have rejected the proposal. Those laws tell us that no females must be taken. It is not from that quarter that man may make his drafts in any degree. The condi- tions are far more rigidly exacting than in the case of domestic cattle There the opportunity for cultivation is unlimited. It may be prose- cuted throughout the whole world, and an undue abundance be speedily produced. It is often necessaiy there to keep dotvn the stock instead of increasing it, and therefore females must necessarily be taken to witbout kl CONCT^RENT RliOrLATrON'S. 207 Mirnr extent ; lint with the sciils the case is far otherwise. There aro \nii fovr joossible places in whicli the animal may be fultivated, and the march of destruction has f^reatly roduccd these. Thoy are wholly in- siiiru'iont to supply the demand even under the most careful and pni- ilont husbandry, and any takin^^ whatever from l)recdinir females is plainly inadmissible. This is of itself an end of the question, for to say tliat pelagic sealing must be limited to a catch of 10.000 (and, as we have seen, in pelagic .sealing the number of fom.iles killed equals the whole number of both sexes actually recovered) is to prohibit it. The game would no longer be worth the candle. It would not be pursued under such conditions. In the next j)lace, had the Commissioners fixed upon any definite number, it would bo absolutely impossible to frame any scheme by which the slaughter could be limited to it. Their own wretched device of a limitation of the pursuit in time and place, much better calculated to increase than to restrict the slaughter, is, of course, beneath attention. We do not refer to the inefficiency of their partic- ular suggestions. There is an inherent in?possibility which no inge- nuity, combined with a supreme desire to accomplish the purpose, can surmount. ^T1 :: J! \u (6) The fundamental error of the Commissioners of Great Britain, as if all who either deceive themselves, or attempt to deceive others, with the illusion that it is possible to permit in any degree the indiscriminate pursuit of a species of animals like the seals, so eagerly sought, so slow ill increase and so defenseless against attack, and at the same time to preserve the race, consists in assuming that the teachings of nature can be replaced by the cheap devices of man. The first and only busi- ness of those who, like the Commissioners, were charged with the duty of ascertaining and declaring what measures were ncccs-mry for the preservation of this animal was to calmly inquire what the laws of nature were, and conform to them unhesitatingly. It would then have been .seen by them that no capture whatever of such animals should bo allowed except capture regulated in conformity with natural lanS ; and that all V !, , "mdated capture was necessarily destructive, and a crime: that ther ' coui'' be regulated capture upon the land, and upon the land alone, ana that ,iU attempts to regulate captitre on the sea must neces- sarily be abortive ; that, consequently, the only regulation to be made in respect to pelagic sealing was to prohibit it altogether, which is tan- tamount to the award of property to the proprietors of the breeding :m r« I ; ,,: ■f ■■ '■*. ' . t; ' ^1-; i. i ; U \f. ■:' 1 . ; \''. f . ; 'i'i 1 . ll i'' ■ m\..' A. ^^<^> IMAGE EVALUATION TEST TARGET (MT-3) ^- 1.0 I.I 11.25 1^128 |25 ■^ 1^ 12.2 2.0 V] /] y ^;. 4W ^ y >«^ Hiotographir Sciences Corporation 23 WIST MAIN STRUT WIBSTIR.N.Y. MSM (716) •72-4S03 iV i V € m <> c> 208 ARGUMENT OF THE UNITED STATES. grounds. The attempt to apply regulations in the nature of game laws to the pursuit of such animals is a misdirected effort, founded upon a disregard of their nature and habits. They are not like wild ducks, ov herring, or mackerel, animals over which man has no control, and wliicli reproduce themselves in prodigious numbers, and have abundant means of eluding pursuit, and which can not be cultivated by art and industry; but a species exhibiting all the conditions requisite to property, and which must be treated accordingly. (7) This error is not imputable to ignorance on the part of the Conimis- sionei's. It does not arise from any failure to take notice of the nature and habits of the animal. There is, indeed, in their report an avoidance. which appears to be industrious, of any special inquiry into the nature and habits of seals, with the view of ascertaining and reporting for the information of this Tribunal whether they really belong to that class of animals which are the lit subjects of property, or that of which ownership CMx not be predicated, and which can, consequently, be protected against excessive sacrifice, only by the rough and ineffective expedient of game laws ; but, nevertheless, they fully admit that perfectly effective regula- tion of capture is easily pos.sible at the breeding places and there alone. They say : 110. It is, moreover, equally clear from the known facts that efficient protection is much more easily afforded on the breeding islands than at sea. The control of the number of seals killed on shore might easibj he made absolute, and 'as the area of the breeding islands is small, it should not be difficult to completely safeguard these from raiding by outsiders. and from other illegal acts.' What is the avowed ground, aside from the assumed right of iudivid- uals to carry on pelagic sealing, upon which these Commissioners felt themselves not warranted in yielding to the decisive facts thus stated by them, and declaring that a perfect protection would be given to the seals by simply prohibiting capture at sea? It is, to shortly sum it up, that the power thus possessed by the occupants of the breeding places has been abused in the past, and pi-obably will be in the futare. by an excessive slaughter of young males. It is that the United States put the property into the hands of lessees, and that, although tlu' leases ai-e long ones, yet the lessees are so far barbarians, or cliil- di-eu, that they are incapable of comprehending their own interests, ' Beport of Br. Com., p. 19. CONCURRENT REGULATIONS. 209 rt of tVie Commis- iice of the nature ort an avoidance. y into the nature repoi'ting for the g to that class of f which ownership protected against expedient of game y effective regula- s and there alone. facts that efficient ng islands than at shore might easihj 1 is small, it should ding by outsiders. I i^nd incapable of restraining their desire for present enjoyment, in order to secure their permanent welfare ; and that the United States Gov- ernment, which has a supervising control, either from the same or some other unexplained reason, is equally incapable of protecting its own in- terests and discharging its duty to mankind by preserving those boun- ties of nature which have been intrusted to its keeping. In short, their argument ^ D.^MAQES CLAIMED BY THE UNITED STATES. 215 FIFTH. CLAIMS FOR COMPENSATION. I. — Damages Cr.AiMEu by the United States. It is provided in article vrii of the Treaty that either party may submit to the Arbitrators any question of fact involved in any claim it may have against tbo other; and ask for a finding thereon, " //ii> question of the liability of either government upon the facts found to be the subject of further negotiation." As the undersigned construes this paragraph, it limits the range of inquiry by the Tribunal to facts which bear only upon the amount of the claims submitted, as the question of liability is left open to be settled by negotiation. And in the fifth article of the Modus Vivendi of May 9, 1892,' it is pro- vided that — If the result of the Arbitration be to affirm the right of British sealers to take seals in the Bering Sea, within the bounds claimed by the United States under its purchase from Russia, then compensation shall be made by the United States to Great Britain (for the use of her subjects) for abstaining from the exercise of that right during the pendency of the Arbitration, upon the basis of such a regulated and limited catch or catches as in the opinion of the Arbitrators might have been taken without an undue diminution of the seal herds ; and, on the other hand, if the result of tho Arbitration shall be to deny the right of British sealers to take seals within said waters, then compensation shall be made by Great Britain to the United States (for its citizens and lessees) for this agree- ment to limit the island catch to 7,500 a season, upon the basis of the difference between this number and such larger catch as, in the opinion of the Arbitrators, may have been taken without an undue diminution of the seal herds. This leaves the number of seals which might have been taken in the Bering Sea by the British sealers, and upon the Pribilof Islands by the lessees of the United States, without danger of reducing the seal herd, wholly to the judgment of the Tribunal under the proofs sub- mitted. * Case of the United States, Appendix, Vol. I, p. 7. r':r: !* !*■•' 216 ARGUMENT OF THE TNITEP STATER. In the printed Caso nabmittod on behalf of the United StatoH, ii c-ltiim is presented under the clnuse last quoted, for compenNation to the United States for the increased amount of rcnt Case of the United States, pp. 286-289. ^Ibid., pp. 289-291. ,7 .i{ ,1 ioY ,y.^ -w.fh. ,m;>oi>l f>^ia J *V' \}"-s^ - PAMAUKS CLAIMED BY GREAT BRITAIN. 217 II. — Damages Claimko hy Grkat Uritaix. :' • The claims submitted on tlio part of Great Britain ai'o for damages 8iistaiued by certain of its subjects by reason of the seizure by the United States of certain vessels alleged to belong to such subjects, and warning certain British vessels engaged in sealing not to enter Bering Sea, and notifying certain other British vessels engaged in the captnro of seals in Bering Sea to leave said sea, whereby it is insisted that the ownerg of such vessels sustained losses and damages, as set forth in the respective claims, these claims being stated in detail in the " Schedule of particulars" of said claims appended to the British Case. The right and authority of the United States to protect the seal herd, which has its home in the Pribilof Islands, and in the exercise of such right to make repnsal of seal-skins wrongfully taken, and to seize, and, if necessary, forfeit thu vessels and other property employed in such unlawful and destructive pursuit, is a necessary incident to the right asserted by the United States to an exclusive property interest in said seals and the industry established at the sealeries. We, however, preface what we have to submit on this feature of the case by saying that, if it shall be held by this tribunal that these seizures luid interferences with British vessels were wrong and unjustifiable under the laws and principles applicable thereto, then it would not be becoming in our nation to contest those claims, so far as they are just and within the fair amount of the damages actually sustained by Bi'itish subjects. And, oven if it shall be decided by this Tribunal that the United States were not justifiable, under the circumstances and the law, in making such seizures and interfering with British subjects in the pursuit and capture of fur-seals in the Boring Sea, still that decision would furnish no ground for claims based on wholly illegal and untenable grounds, nor for extor- Uon&te demands. The actual damages sustained by these British subjects, in behalf of whom these claims are presented by the British Government, must, un- doubtedly, be finally settled, according to the terms of the Treaty, by ne- gotiations hereafter to be had ; but, as findings of fact in regard to these claims are asked for, our purpose in this part of the argument is to call attention to some of the elements which go to make up these claims, and show, as we think, ccnclasively, that such elements can 218 ARUUMKNT OF THE UNITED HTATEH. not enU'v into itlaims for compciiautioa against the United States undur the Treaty. And we contend — First. That only claims properly duo to auhjeds of Great Bvitaiu shonld bo submittod on tho part of that nation and tiudings of fuctn nnked in rclutioii thereto; and in tho application of this principle wo inHist that it is shown by tho Counter Case of tho Unit«d States and the Appendix thereto that tho schooner W. P. Sayicard and the steam BchooncrH Thornton, Anna Peck, Grace, and Dolphin, with all their Hup- plies and outfits, wore in fact owned by one Joseph Boscowitz, a citizen of the United States at the time those vcHsels were respectively .seized by the United States officers ;' that for somo time prior to the fall of 1885 said schooner and ste.im schooners had been enga(;cd in the sciil. ing bnsiness in the joint interest of said Boscowitz and one Jamcii Douglas Warren ; that Wai'ren had no capital, and although nominally interested in said vessels ai.d their catch as half owner, yet in fact the money representing his share in the vessels was loaned to him by Boscowitz, and secured by mortgages to Boscowitz on tho vcsseln ; that in the fall of 1885 Warren became insolvent and made an a.ssign- ment for the benefit of his creditors, and in order to transfer the title to these vessels a sale of them was made under the Boscowitz mort- gages, and one Thomas H. Cooper bid the vessels off at sach sale for the sum of $1, Cooper being a brother-in-law of Warren and a British subject, residing in San Francisco, Cal. ; that on becoming such pur- chaser Cooper executed mortgages to Boscowitz on the vessels for their full value, which mortgages Boscowitz held at the time of the seizures, the whole transaction being had solely for the purpose ot securing a British registration for said vessels, and thereby enabling Boscowitz and Warren to carry on the sealing business under the British Hag.« The testimony showing Boscowitz was a citizen of t\e United States is found in the affidavits of T. T. Williams^ and a report of Levi W. Myers, United States consul at "Victoria, B. C, dated November 10, 1892.* While the proof as to the relations between Boscowitz and Cooper is found in the deposition of Thomas H. Cooper, the alleged ' Counter Case of the United States, p. 30 ; App., pp. 256, 351. - Counter Case of the United States, App., pp. 321-326. »/Wrf., p. 361. <74»rf., p.255. States undur DAMACJES (LAIMRI) BV GRKAT BHITAIN. 219 owner of the said vesgolx;' and the relations between Boscuwita and Warren are Hhown in the testimony of Boscowitz and Wan-on, and the pleadingH and decrees in the ciiso of Warren r#. Boscowitz and the cross case of Boscowitz vn. Warren, in the courts of British Columbia.' The pi-oof also shows that tlie schooners Carolina and Pathftuier, mth their supplies and outfits, were, in fact, owned nt the time they wore seized by one A. J. Bochtel, a citizen of the Unitotl States (sec deposition of VV. H. WiJlinniH,^ and a report of Levi W. Myers, United States consul at Victoria, B. C), although said vessels were registered in the names of British subjects.* ^ And that the schoonei-s Alfred Adams, lilach 1)! nd, and Lily, were in fact owned, at the time they were respectively Heizt'l by one A. Frank, a citizen of the United States (see deposition of T. 'l\ Williams)," although i-egistered in the names of British Hubject.s.' It will be seen by looking over tho list of vessels alleged to have been Keiit\l, iir interfered with, that the list contains tweritj vessels, but that two of the vessels named in that list, the Triumj'h and the Pathjinder, were seized or interfered with twice ; •* so that, in fact, the schedule con- tains the names of only eighteen separate vessels in regard to which claims ore made, and of these eighteen, ten of them were owned by ci^''',en8 of the United States. It is assumed on the part of tho United States that if tho i)roof sub- niitted shows that these ten vessels wei-e really the property of citi- zens of the United States, although they had a nominal registry in tho names of British subjects, such demonstration 'will bo sufficient to justify a finding by the Tribunal that no citizen of Great Britain has sustained damage by tho seizure of the Sayward, Anna Beck, Thornton, Grace, LoJphin, Carolina, Pathfudir, Alfred Adama, lilach Diamond, and Lily. We therefora confidently ask and expect the decision and finding of the Tribunal that these claims do not belong to British subjects, and I ' Ibid., pp. 320-325. = Ibid., pp. 301-320. i - ^ Counter Casp of United fStuieti, Appemlix, p. 351. . . * Ibid., 261. * Caws of Her Majesty's Government, ScLcdule of Cisin*, pp. 1, 40; Counter Case of United States, Appendix, p. 256. " Counter Case of United States, Appendix, p. 352. ' Case of Her Majesty's Government, Schedule of Claims, pp. 32, 48, 50. " Ibid., p. 1. [317] •, f V - ,. Ii "■■.lia.l 220 ARGUMENT OF THE UNITED STATES. for ihat reason the Tribunal can not be called upon to find any facts respecting them •.• i ...... • To justify a finding upon a claim, it must be made to appear affirma- tively, by a clear preponderance of proof, that the claim is owned by ono of the Governments, parties to this Arbitration, or to a citizen or subject of such Government.* Wo insist that wo may, with propriety, go farther and say ihat, if there is even doubt that a claimant is a citizen of the nation that presents a claim in his behalf, that doubt should of itself be enough to preclude any finding of facts involved in such claim. The powers and jurisdiction of this Tribunal are delegated to it by the Treaty which is in itself but a contract or agreement and its terms can not be enlarged or amplified by construction. In taking this ground wo do not intend to cast any aspersion upon the good faith of the British Government, or its Agent, for having pre- sented these claims, as we admit that on the face of the claims as pre- sented they appear to be in favor of British subjects. But we do insist that it is right for this Tribunal to go behind the face of the papers and ascertain from proofs furnished, whether or not the persons to be benefited by the allowance or payment of these claims ai-e in fact British subjects, and that no facts should be found involved in any claim where there is even good ground for doubt that such claim belongs to a British subject. Second. All these claims but two (the Triumph, No. 11,^ and the Pathfinder, No. 20,'' of schedule) contain an item for " loss of prohahh- catch," "leas of estimated catch," ^^ balance of probable catch," "probable catch," etc.* All of which will more fully appear by the following tabulated statement : Nu. 1. Carolina, estimated catch No. 2. Thornton, estimated catch No. 3. Onward, estimated catch No. 4. Favorite, estimated loss of catch No. 5. Sayward, probable catch of 1887 No. 6. Orave, probable catch No. 7. Anna Beck, probable cntca No. 8. Dolphin, probable catch $16,667 10,667 16,607 7,000 19,250 23,1(10 17,323 2t,7.')0 ' Article vili of Treaty of Arbitration. - Case of Her Majesty's Government, Schedule of Claims, p. 8C. =' /A.W., p. 57. , . ,j.,,, ^ Ibid., p^.. 1 58. . '>)!!»!•' I •'! .,»♦' DAMAGES CLAIMED BY GREAT BRITAIN. 221 ii'ti d any facts sear affirma- wned by ono m or subject say that, if ;bat presents preclude any I to it by the erms can not persion upon • having pie- ainos as prc- we do insist le papers and ) be benefited tish subjects, where there to a British .1,2 and the s nj prolahlc i," " prohahlc ng tabulated §16,667 16,667 16,667 7,000 19,250 23,100 17,323 21,750 30. No. 9. Alfred Adanm, probablo catch No. 10. Ada, probable ciifch No. 12. Juniata, cstiniatod catch No. 13. Pathfinder, estimated catch .... No. 14. Iriumph, cstiinat«d cat-h No. 15. Black Diamond, estimated catch No. 16. Lily, balance of catch No. 17. Ariel, balance of estimated catch No. 18. Kate, balance of catch No. 19. Minnie, balance of catch $19,250 15,818 9,424 15,363 19,424 16,192 14,136 9,248 10,960 16,112 357,353 \l\ All these items aro subject to the objection that they are prospective profits, uncei'tain and contingent in their nature, and can not be made the basis of a claim for compensation to the owners of these vessels. In Sedgwick, on the " Measure of Damages," p. t)9, sixth American edition, it is said : • . , .... . , ,. ,».i The early cases in both the English aud American courts, generally concurred in denying profits as any part of the damage to be compensated, whether in cases of contract or tort. In a ease for illegal capture, where one of the items of the claim for damages was the profits on the voyage bi-oken up by the capture, tho ^- ... ^"^^ court said : . Independent, however, of all authority, I am satisfied upon principle that an allowance of damages upon the basis of a calculation of profits is inadmissible. The rule would be in the highest degree unfavorable to the interests of the community. The subject would be involved in utter uncertainty. The calculation would proceed upon contingencies and would require a knowledge of foreign markets to an exactness in point of time and value, which would sometimes present embarrassing obstacles. Much would depend upon the length of the voyage and the season of the arrival ; much upon the vigilance and activity of the master, and much upon the momentary demand. After all, it would be a calculation upon conjecture and not upon facts. ' In the case of tho Amiable Nunc)/, Mr. Justice Story, speaking for the United States Supreme Court, said : Another item is §3,500, for the loss of tho supposed profits of the voyage on which the Amiable Nancy was originally bound. In the opinio*! of the court, this item also was properly rejected. The prob- able or possible benefits of a voyage, as yet in fieri, can never afford a safe ' alo by which to estimate damages in cases of a marine trespass. There is so much uncertainty in the rule itself, so many contingencies which may vary or extinguish its application, and so many difficul- ties in sustaining its legal correctness, that the court can not believe it pro;)er to entertain it. In several eases in this courts the claim for [317J The schooner Lively^ 1 GalHson, 314. ir>r«T7>*<)Kiift |.i:r*«> ^n-ya,t\ v2 222 ARGUMENT OF THE UNITED STATES. profits has been expressly overruled ; and in Del Col v. Ai*noU (3 Dall., 333) and The Anna Mana (2 Wheat., 327), it was, after ctrict considera- tion, held that the prime cost, or value of the property lost, at the time of the loss, and in case of injnry, the diminution in value by reason of the injury, with interest upon such valuation, afforded the true measure for assessing damages. This rule may not secure a complete indemnity for all possible injuries ; but it has certainty and general applicability, to recommend it, and, in almost all cases, will give a fair and just recompense. ' ' And in Wood's Mayne on Damages, 3 the author, speaking of damages in cases of tort, says : In general, however, injuries to pi-operty, where unaccompanied by malice, and especially where they take place under a fancied right, are only visited with damages proportionate to the actual pecuniary loss sustained. While it is conceded that there has been some relaxation of the rigid rule of the early cases in England and the United States, in regard to the allowance of profits as an element for the award of damages or compensation, it is undoubtedly still the rale in b<)th countries that profits can only be allowed as damages where tbey are in the contemplation of parties, in cases arising on contract, and where they are the necessary and proximate result of the injury in cases of tort, and in those latter cases only where they can bo proven or entablisbed with substantial certainty. •' These vessels were all engaged in a hazardous voyage upon the boisterous waters of the North Pacific Ocean and Bering Sea, subject to all the perils of the sea, and the mind can hardly conceive any event mora uncertain and contingent than the number of seals they would have captured if they porsued their voyages nnmolestt-d. Shipwreck and every other element of uncertainty, including the proverbial uncertainty which is always an element in fishing and hunting expeditions, would seem to attend all such ventures, and the cogent reasoning of Mr. Justice Story in the cases just cited seems unqualifiedly applicable to the items of " probable catch," etc., presented in this schedule of claims. ., ,. • The Tribunal will bear in mind that the United States do not occupy the position of a tort-feasor, subject to exemplary or vindic- tive damages. " The King (Sovereign) can do no wrong." The actt, ii' respect to which compensation is asked on behalf of these] British > 8 Whcaton'u U. S. B*pts., 646 ; see olso S-aith vn. Coudry, 1 How. U. «. Rep(g.,88-3 1. ^ First American edition, from third English Edition, p. 56. ' Htdley r*. Baxendale, 9 Exch. 341 ; Meoterton vs. Md.vor of Brooklyn, 7 Hill, 62. DAMAGES CLAIMED BY GREAT BRITAIN. 223 subjects, were performed by the United States in the exercise of its sovereignty, and the execntion of its statutory laws, and nc malice or other unjust motive can be imputed to those acts. Among the claims presented by the United States in behalf of its citizens to the Tribunal of Arbitration upon the Alabama claims, which met at Geneva in 1872, under the treaty between Great Britain and the United States, were a large number of claims like those now under consideration, for the prospective earnings of ships destroyed by the rebel cruisers in the late civil war of the United States, and that tribunal, by the unanimous vote of its members, said in regard to such claims : And whereas prospective earnings can not properly be made the subject of compensation inasmuch as they depend in their nature upon future aud uncertain contingencies, the tribunal is unanimously of opinion that there is no ground for awarding to the United States any sum by way of indemnity under this head. ' t /? It is therefore respectfully submitted that the rule of decision adopted in the case of the Alabama clai'ns is well established in the jurisprudence of the two nations now at the bar of this High Tribunal ; and in the light of the authorities cited the undersigned respectfully insists that the items in these claims for " probable catch," " estimated catch," etc., which amount in the aggregate to over two- thirds of the grand total of the claims presented, must be considei-ed as wholly npeculative and so uncertain that Groat Britain is not entitled to any finding as to any fact involved therein, except the fact of their uncertainty, which appears on the face of the claims themselves. '• In the claims growing out of the seizures of the Carolina, Thornton, Onward, Saywrd, Grace, Anna Beck, Dolphin, and Ada there are also items for the future earnings of those vessels,* namely : Xo. 1, Carolina, seized 1886 : Claims for earnings in 1887 Claims for earnings in 1888 Xo. 2, Thornton, seized in 1886 : Claims for estimated loss to owner by detention in 1887.... Claims for estimated loss to owner by detention in 1888.... No. 3, Omcard, seized in 1886 ; Claims reasonable profit for season of 1887 Claims reasonable profit for season of 1888 $S,000 6,000 B.OOO 6,000 6,000 6,000 ' Qenera Arbitration, Congressional publication, vol. ir, p. 63; tee also Wheeton'* International Law (Boyd's 8d English edition), sec. 639, t, p. 692. ^ Case of Her Majesty's Government, Schedule of Claims, pp. 6, 9, 14, 19, 23, 27, 31, 36. m\- m 224 ARGUMENT OF THE UNITED STATES. JIo. &, Saytpard, seized in 1887 : Claims for earnings in equating trade in fall i>f 1887 Earnings for 84!a8on of 1888 , No. C, Orace, seizpd in 188 7 : Claims for probable earnings in foil of 1887 Claims for probable earnings in season of 1888 No. 7, Anna Beck, seized in 1887 : Claims for probable earnings in coasting trade in fall of 1887 For probable net earnings in season of 1888 No. 8, Dolphin, seized in 1887 : Claims for probable earnings in fall of 1887 .' Claims for probable net earnings in season of 188H No. 10, J da, seized in 1887 : Probable earnings in fall of 1887 Probable earnings for season of 1888 •■' Total $1,200 fi,noo 2,000 7,000 2,000 G,000 2,000 7,000 2,000 0,000 71,200 ,' These items it will be noticed are in addition to the items of " probable catch," or "estimated catch "for the seasons in which the respective vessels were seized. Nothing can more fully illustrate the wholly speculative character of this class of claims than a consideration of these items in the light of the indisputable facts The Carolina, Thornton, Onward, Grace, Anna Beck, Dolphin, and Ada were seized and decrees of forfoitaro rendered against them by the United States district court for the district of Alaska, and the Caro- lina, Omcard, and Thornton were left to go to pieces in the harbor of Onalaska ; ' and the Dolphin, Grace, Anna Beck, and Ada were sold under decrees of that court, while the Sayward was released on a bond given by her owners a year or more after the decree of forfeiture v/m entered. These seizures were in effect a conversion of these vessels at the time of the seizure, and, with the ex jption of the Sayward, their capacity to earn anything for their owners ended with the seizure. The meas'-U'e of compensation to the owners was therefore the value of the property taken at the time it was taken, perhaps with interest from the time of taking. The owners were dispossessed by the seizure, and their interest in the property merged in their claim for compensation, if they have any such claim ; and no claim can therefore accrue to them for the possible future earnings of the vessels. ' • Deelarations of James Douglas Warner, Case of Her Majesty's Government, ScUedule of Claims, pp. 8, 6, 12. ^ Sedgnick on Measure of Damages, 6th ed. 583 ) Conrad e. Pacific Insurance Company, 6 Peters U. S. 262-282) The Ann CaroUne, 2 Wall., 22 U. S. 688; Smith «t. al. «. Coudry, 1 How. U. S., 28-34 ; Wood's Mayne on Damages, 3 Eng. and Ist Am. ed., p. 486. Il DAMAGES CLAIMED BY GREAT BRITAIN. •225 I ii f! .... $1,200 .... 0,000 .... 2,000 .... 7,000 .... 2,000 .... 6,000 .... 2,000 .... 7,000 ' ' .... 2,000 , 0,000 It 71,200 f "probable ctive vessels •acter of this light of the lin, and Ada icm by the 1 the Cam- lio harbor of I were sold d on a bond rfeiture wna at the time leir capacity The measm-e the property )m the time ■e, and their ation, if they to them for iment, Scbeclule icific Insurance . S. 588 ; Smith 3 Eng. and 1st In Sutherland on Damageei, vol. i, p. 173 (now a standard awthorily in the courts of the United States), the rule is stated as follows : The value of the pr()perty constitutes the measure or an element of damages in a great variety of cases both of tort and contract ; and where there are no such aggravations us call for or justify exemplary damages, in actions in which such damages are recoverable, the value is asctrtaiued and adopted as the measure of compensation for being deprived of the property, the same in actions of tort as in actions upon contract. In both cases the value is the legal and fixed measure of damages and not dis- cretionary with the jury. ♦ * • And, moreover, the value is fixed in each instance on similar considerations at the time when by the defendant's fault the loss culminates. (Grand Tower Co. vs. Phillips, 23 Wall., 471. Owen vs. Routli, 14 C. B., 327.) To recapitulate : None of the items of these several claims for " esti- mated catch," or "probable catch," for the season or voyage in which the seizures took place can be considered, because they are in the nature of prospective profits, and fall within the rule adopted by the tribunal in the Alabama Claims, and the other authorities cited ; and all the items for the probable earnings of these an-ested vessels, subsequent to the seizure, fall within the same objection of uncertainty and contingency, and the further objection that the conversion of the property was completed by the seizure, and the owners' only remedy was for the value of the properly so seized at the time of the seizure. But, if the Tribunal for any reasons shall deem itself required to pass upon these items or find any facts involved therein, except that of their invalidity, we then briefly submit that the " estimated " and " prob- able catches " are altogether overstated and extravagant. In the declaration of James Douglas Warren, in support of the claims in behalf of the alleged owner of the Sayward, Anna BecJc, Grace, and Dolphin, he states that the estimate is made on the basis of three hundred and fifty skins taken by each boat and canoe for the fall season.' ". ' " • In the report of the British Commissioners, forming part of the British case,^ it is shown that the average catch per canoe or boat for the British sealers for the same yeai* was 164 seals, or less than one-half of Capt. WaiTen's average ; and in the same paragi-aph, the British Commissioners say: The actual success of individual sealing vessels of course depends so largely upon the good fortune or good judgment which may enable them to fall in with and follow considerable bodies of seals, as well as ' Case of Her Majesty's Goremment, Schedule of Claims, pp. 18, 22, 25, 29. , ' B«liort of Br. Com., sec. M}7, p. 74. 22G AKQUMENT OF THE UNITED STATES. on the weather experienced, that the figures representing the catch co>>i- pared to the boats or whole number of men employed constitute a more trnt ' . worthy criterion than any general statements.* » We may, therefore, safely say that if conjecture, based upon any rule of averages, is to be resorted to for the purpose of attempting to ap« proximate the probable catches of these vessels, the British Com- missioners have given far more reliable data than that furnished by these claimants. The fallacy of these "estimates" is also shown in another way. We open the schedule of the British claims at random and take the claim growing out of the seizure of the Minnie, No. 19.- It seems, from the declaration accompanying the claim, that she left Victoria the fore part of May on a sealing voyage in the North Pacific Ocean and Bering Sea. She entered Bering Sea on the 27th of Jnne, at which time she had caught 150 seals. She hunted seals in the Bering Sea until .Tuly 15, during which time she had taken 270 skins, which was at the rate of 15 skins per day. She was seized on the 15th of July ; leaving her 16 days of July and 16 in August, making 32 days in all of her sealing season, during which time she would have caught, at the rate of 15 per day, 480 seals ; to which adding the 420 she had tak<)n previously, makes a total catch for the sealing season of 900 ; while her " estimated catch " is 2,500 seals for the season. Take also the claim of the Ada, No. 10.' She entered Bering Sea, as is shown by the declaration accompanying the claim, about the 16th day of July, 1887, and continued sealing in the said sea until the 25th day of August, which was beyond the time when skins taken are considered merchantable,^ and within two weeks of the time when, as the British Commissioners admit,'^ the sealing season closes, and yet her entire catch up to that time was only 1,876 skins, while the "estimated" or " probable catch" is put at 2,876. The value and tonnage of these vessels is also largely overstated, as is shown by the tables submitted with the Counter Case of the United States," and the value of several of the vessels seized was ascertained by sworn appraisers of the District Court of Alaska and shown to be much lower than the value stated in this ochedule of claims.^ That these , > Report of Br. Com., p. 78, sec. 407. * Case of Her Majesty's GoTemment, Schedule of Claims, p. 56. »/Wd., p. 34. ■• Counter Case of the United States, Appendix, pp. 357, 376, 384. * Report of Br. Com., sec. 212. * Counter Case of the United States, Appendix, pp. 389, et teq. ? /Wrf., pp. 829-38. Ifl way. We i the claim !, from the e fore part rid Boring 1 time she until July the rate of eaving her her sealing e of lo per ily, makes a I catch" is DAMAGES CLAIMED BY GREAT BRITAIN. 227 appraisald were fair and showed the sabstantial and fair value of the property is evidenced by the fact that, although the owners of the vessels had the privilej^e of releasing them upon bonds, none of them, except the Saywanl, were so released, although application was made to have their valuation reduced in order that the owners might give bonds.' We might follow the analysis of different items of these claims and nnccfissfully show that they are all very much exaggerated, but do not deem it necessary to do so, because we feel sure the members of this Tribunal will take notice of the fact that individuals in making claims against a government, whether it be their own or a foreign government, invariably expand these claims to the largest amount their consciences will possibly tolerate. H. W. Blodoett. ' .Senate Doc. HXJ, 50th Cong., Second Sess., pp. 28, 7i. I* ' ! • f 1 . 1 •. f ■ 1 ' 1 ! • :?J "III •U.:i i; _)i..i;'' '.',') ,' • '<• V. --o' H>- • '■ ;.•-.■ iviivuii 228 * ARGUMENT OF THE UNITED STATES. .1 .1 < SIXTH. SUMHASY OF THE BVIEENCB. To tbe end tliat the High Contracting Parties should become fully informed of all the facts bearing upon the differences between them, and ns a right method of securing evidence as to those points touching which n disput/O might exist, it was stipulated by Article IX of the Treaty that two Commissioners on the part of each Government should be appointed to make a joint investigation and to report, in order that such reports nnd recommendations might in due form be submitted to the Arbitrators, should the contingency therefor arise. The Commissioners were duly appointed in compliance with this pro- vision of the Treaty, and so far as they were able to agree, they made a joint report, which is to be found at page .307 of the Cast of the United States. It will be seen from this joint repoi-t that the C/ommissioners were in thorough agreement that, for industrial as well ns for other obvious reasons, it was inciimbent iipon all nations, and particularly upon thosi- having direct commercial interests in fur-seals, to provide for their proper p^'otection and preservation. They were also in accord as to the fact that since the Alaska purchase a marked diminution of the number of seals on and habitually resorting to the Pribilof Islands had taken place ; that this diminution was cumulative in effect and was the result of excessive killing by man. Beyond this the Commissioners were unable, by reason of considerable diffei'ence of opinion on certain fundamental propositions, to join in a report, and they therefore agreed that their respective conclusions should be stated in several reports wbicli, under the terms of the Treaty, might bo submitted to their respective Governments. The United States have submitted, with the report of their Comniis- sioners, a voluminous mass of testimony which appears to hp.ve been elicited from all classes of persons who, by their education, residence. training, etc., might be enabled to give information of practical value ftnd of a reliable character to the contracting governments. It lias SUMMARY OF THE EVIDKNCK. •a A 229 l)een tho intention, in procuring evidence, to follow, as closely as Mie circumstances pcrmitteil, tho principles and methods obtainiii;; in Imtli countries in litigation between private parties, and although it w.as not possible to produce each witness before n magistrate and tender him for cross-examination, in every instance the name, the residence, and tho professsion or business of the witness has been given, and in every instance the witness has sworn to the truth of his deposition. This method may bo favorably contrasted wilh the course which the Commissioners of Great Britain thought it incumbent upon or permissible for them to pursue. In very few iastances have they seen fit to give the name of their informant or to place it in the power of the United States to test the reliability of the Honrce from which they had derived their knowledge, real or supposed. But they have presented a great mass of statements of their own, evidently based in a great measure upon conjecture, much of it directly traceable to manifest partiality, and marked, to a singular degree, by the exhibition of prejudice against tho one pai*ty and bias in favor of the other. The extent to which this has been carried must, in the eyes of all impartial persons, depi'ive it of all value as evidence. * ** '"'■'"'' How far connsel for the United States are justified in making this sweeping criticism upon the work of the British Commissioners will appear hereafter, when detailed attention is given to the result of their labors. The adoption of such a course is the more to be regretted ns it was evidently the purpose and object of the British Government that an entirely different investigation should be carried out by its agents; nor had that Government hesitated to express its earnest desira that the ttdual facts should be given and that tho investigation should be carried on with a strict impartiality. It is certain that the Commissioner.^) were warned in clear language that " great care should bo taken to sift the evidence that was brought before them." (See instructions to the British Commissioners, page I of their Report.) ' In attempting to lay before this distinguished Tribunal the facts thLit may enlighten its judgment, the counsel for the United States propose to show what facts are established, substantially without controversy, and wherein their contention in case of difference is sustained by unmistakable preponderance of proof. For the purpose of facilitating the labors of this body, they propose to treat every topic of special importance sepa- rately and to produce the evidence which has a bearing upon the dis- cussion of its merits. cm 'I MIj^ 230 ARGUMEJJt OF tftE UNITED STATES. I. — TlIK OkNKKAI, NaTIIUK ANIi ChAUACIKUISTICH ok the B'l'K-SRAr.. It iH unfortunate that even upon so familiar a subject and one so nfton treated as the seal, its nature, and habitn, there nhonld be a wide diver- gence between the American and British Commissioners. In fact, it would Huem that the animal observed by the Cummissioners from Great Britain was an entirely different animal from that considered and studied by the Commissioners appointed by the United States. This is the more remarkable because for nioro than a century a multitude of observers,, scientists, government agents, and overseers have been giving their attention to the nature, habits, and life of the fur-bearing seal, the best method of protecting the animal from destniction, and the wisest course to secure an annual increase for the purposes of com- merce ; the reason for which the supply of these valuable creatures ban diminished ; the number of animals yearly killed, etc. They certainly by this time ought to have become fairly ascertained and known and to be placed beyond the reach of discussion or dispute, and so, in fact, they seem to be. There has been n general concurrence among the observers referred to, aa complete as may be found among the same class of persons in relation to the nature and habits of ordinary domestic animals. . But it has become apparent that the British Commissioners have in their separate report thought fit to make an elaborate defense of the practice of pelagic sealing and to have imparted to their investigationn and the formulation of their conclusions so strong a desire to protect the supposed interests of their people as to lead them to most extraor' dinary conclusions ; indeed, this unfortunate result seemed almost inevitable, the premises upon which they started being conceded. To defend pelagic sealing, the main feature of which consists of slaughter- ing gravid females or nursing mothers, it was almost inevitable that some fundamental mistakes should be made as to the nature and habits of the animals and thai statements should be adopted and theories advanced which, upon their face, aro utterly unworthy of countenance or respect. The animal discovered by the British Commissioners might be defined to be a mammal essentially pelagic in its natural condition and which might be entirely so if it chose to be ; an animal, too, which is gradually assuming that exclusive character. Coition takes place very frequently and more naturally in the water. It is a polygamous animal and when on land exhibits extreme jealousy to guard its harem, il one so often a wide diver- fact, it would Gi-eat Britain and studied TliJH is the multitude of ra have been he fur-bearing iction, and th«' poses of com- I creatures has They certainly id known and md so, in fact, nee among the nong the same 18 of ordinary lioners have in defense of the investigations Bsire to protect 3 most extraor- seemed almost conceded. To ,a of slaughter' inevitable that iure and habits d and theories of countenance issioners might itural condition imal, too, which on takes place a polygamous lard its harem, SUMMARY OF THE KVIDENCE. 231 but whether this disposition is preserved and exhibited in the water, and how or whether this is a disappearing trait, does not appear. Two pops are not infrequently dropped at a birth, and tlio mothers, with a generous disregard for the ordinary rules of maternity in nature, suckle their own when it is convenient, bnt take up other pnps indifferently, pro* vided the sti-ange offspring does not betray the odor of fresh milk, liy this indiscriminate display of maternal instinct the generality of pups nro supported until they are able to procure their own food. The loss of an individual mother becomes in consequence of this a matter of small moment, and, to make the peculiarity of the animal especially . remarkable, it is said to abstain, during several weeks of the nursing period, from seeking food for itself and for the young offspring that would j^nerally be supposed to drain its vitality. Such is the seal and such are the habits, especially of the females, as seen and described by the British Commissioners. The expression of an opinion so directly in conflict with those generally received would seem to requii-e the most cogent proofs. Reliabb author!* ties should be cited and their names given. Hazardous conjectures should be wisely laid aside; ignorant, hasty, and prejudiced gossip should be li'tated as it deserves, and some effort made to i-econcile individual obaer* vation with generally accepted and accredited facts. . j. The coun.sel for the United States have no hesitation in saying that if the question to be decided were ono in which the common-law rules of evidence prevalent in both parties to the Treaty wei*e applied, they wunld respectfully insist, with much confidence, that thei'e is no duipute really as to the main facts in this case. A controversy ai » facts iu the jtiridical sense implies an assertion on the one side and a contra- diction on the other; but contradictions can not be predicated on state- ments nnanthenticated by pi-oof and unsupported by general experience. It would suffice to show that the Report of the Commissioners from Great Britain simply presents the assertions and conjectures of gentle- men who, however respectable their character may be, were not called apon to express, and are not justified in laying down conclusions, except in so far as they have reached them by an examination into actual facts, the sources of which both Governments would bo entitled to consider. Justice to the disputants, as well as a proper respect for the Tribunal, would seem to dictate this necessity of avoiding the rash expression of conjectures generally unsupported, but occasionally founded on other I:- m 232 AROUMENT OP THE UNITED 8TATES. like oonjcctnreH emanating from ignorance andliaHty obRervers whoso naincji arc not infrequently withheld. It may, however, facilitate tlie learned Arbitrators in inqnirieR into tho facts referred to, to indicate tho nature of tho evidence bearing upon tho different points respectively and tho plncos whore it may be found. It is believed that nothing more is requisite. Of matters not in any manner drawn in question, little or no notice will bo taken. 11 II. — The Dm'KBENCK bktwi;k.\ thk Alaska-n and thk Russian Fuk-Sbalh. The marked difPerenoos betweon tho Alaskan and the Russian gealn are 'oich as to be plainly and readily discernible to persons familiar with the two herds and thoir characteristics. This onco established would naturally prove that there is no commingling of tho respective herds. But wo are not left to inference upon this point, and may confidently claim that tho proposition is affirmatively established by testimony I'espectablo and creditable in itself, while it is wholly uncontradicted by proof. This is the statement in the Case of the United States : The two gi'eat herds of fur-seals which frequent the Boring Sea and North Pacific Ocean and make their homes on the Pribilof Islands and Commander (Komandorski) Islands, respectively, are entirely distiutifc from each other. The difference between tho two herds is so marked that an expert in handling and sorting seal skins can invariably dis- tinguish an Alaskan skin from a Commander skin. In support of this we have abundant and moat respectable testimony. Mr. Walter K. Martin, head of the London firm of C. W. Martin & Co., which has been for many years engaged in dressing and dyeing seal skins, desci'ibes the difference as follows : " The Copper Island (one of the Commander Islands) skins show that the animal is narrower in the neck and at the tail than the Alaska seal and the fur is shoi-ter, particularly under the flippers, and the hair has a yellower tinge than the hairs of tho Alaska seals." In this statement he is borne out by Snigeroff, a native chief on the Commander Islands and once resident on the Pribilof Islands. C. W. Price, for twenty years a dresser and examiner of raw seal- skins, describes the difference in tho fur as being a little darker in the Commander skin. The latter skin is not so porous as the Alaskan skin, and is more difficult to unhair. Tho difference between tho two classes of skins has been further recognized by those engaged in the seal-skin industry in their different market value, the Alaska skins always being held from 20 to 30 per cent more than the " Coppers " or Commander skins. This difference in value has also been recognized by the Russian Government. SUMMARY OP THE EVIDRNf'K. 288 whoso imiuc.'i (A) IKK IIBItUS ARi: hlKKKIlKNl'. Mr. (Jcoi'po Bantlo (p. r»OH, Appendix to Caso o' tlio United StateH, Vol. II), one of the witncBses upon this point, is a pucker and sorter of raw far-skins. Ho had been in that business, at the time of testifying, twenty years, and liad Imndlod many thousands of skins. Uo says : I can fell h\j examining a skin wlu'thrr it was eaught in seiwon oi- out of Kcason, owi wht'thi-r it was caught on the linsxian niih- iir on the American nitle, A Russian skin is generally coarser, and the under wool is generally darker and coarser, than the skins of seals caught on the American side. A Russian skin does not make as fine a skin as the skins of the seals caught on the American side, and are not worth us much in the market. I can easily distinguish one from the other. , , Mr. H, S. Bevington, M. A. ((7;i(/., p. 551), a subject of Her Britannic Majesty, forty ycai's of age, the head of the firm of Bevington and Morris, 2b Common street, in the city of London, was sworn and testified niwn the subject. His testimony is interesting, and m< be found at page 550, Volume II, of the Appendix to United States Case. Upon the subject df the variations observable, he says : , . , - That the diffoi-ences between the three several sorts of skins last mentioned are so marked as to enable any person skilled in the busi- ness or accustomed to handle the same to readily distinguish the skins of one catch from those of another, especially in bulk, and it is the fact that when they reach the market the skins of each class come separ- ately and are not found mingled with those belonging to the other classes. The skins of the Copper Island catch are distinguished from the skins of the Alaska and Northwest catch, which two last- mentioned classes of skins appear to be nearly allied to each other and are of the same general character, by reason of the fact that in their raw state the Copper skins are lighter in color than either of the other two, and in the dyed state there is a marked difference in the uppeai-ance of the fur of the Copper and the other two classes of skins. This difference is difficult to describe to a pei-son unaccustomed to handle skins, but it is nevertheless clear and distinct to an expert, and may bo generally de- scribed by saying that the Copper skins are of a close, short and shiny fur, particularly down by the flank, to a greater extent than the Alaska and Northwest skins. irr. ,^-f.:,,: • ■ ■• .Tosoph Stanley-Brown (ibid., p. 12) a geologist of distinction, reside iiig at Mentor, Ohio, -wis commissioned by the Secretary of the Trea- sury to visit the Pribilof Islands for the purpose of studying the seal life found thereon; he . ent one hundred and thirty days in actual inves- tigation and study of ^ .e subject. While he does not claim to have become an expert in that time as to the various and distinguishing 234 ARGUMENT OF THE UNITED STATES. charactoristics of the animals, he stated the result of his efforts to ascertain the truth in this respect : I learned that fur-seals of the species Callorhinus tirsinus do breed and haul out at the Commander Islands and " Robben Reef," but the statements made to me were unanimous that they are a separate herd, the pelt of which is readily distinguished fi-om that of the Pribilof herd, and that the two herds do not intermingle. Isaac Liebes, a fur merchant of twenty-three years standing, residing at San Francisco, claims to have handled more raw fur-seal skins than any other individual in the United States or Canada and more than any firm or coi*poration except the lessees of the sealeries of the Pribilof and Com- mander Islands. His whole deposition, based as it is upon long pi-aeticu and experience, may be read with profit. On the subject of the difFerenci's between the skins of animals belonging to the respective herds, ho says {ibid,, p. 445.) The seals to which I have reference are known to my.self and to the trade as the Northwest Coast seals, sometimes called " Victorias." This herd belongs solely to the Pribilof Islands, and i.s easily distinguishable by the fur from the fur-seals of the other northern rookeries, and still easier from those of the south. All e.rpcrt sealskin assorters are able to tell one from the other of either of these different herds. Each has its own characterise tics and values. To the same effect is the deposition of Sidney Liebes, a fur dealer of San Francisco. He had been engaged in the fur business for the last six years at the time of testifying. He testified in substance, as did the other wit- nesses, as follows (ibid., p. 516) : My age is 22. I reside in San Fx'ancisco, and am by occupation a farrier, having been engaged in that business for the last six years. I have made it my business to examine raw seal-skins brought to this city for tale, and am familiar with the different kinds of seal-skins iu the market. I can tell from an examination of a skin whether it has been caught on the Russian or American side. I have found that the Russian skins were flat and smaller, and somewhat different in color in the under wool, than those caught on the American side. In my opinion they are of an inferior quality. The Alaska skins are larger and the hair is much finer. The color of the under wool is also different. I have no difiiculty in dibtingnishing one skin from the other. I am of opinion that they belong to nn entirely separate aiid distinct herd. In my examination of skins offered for sale by sealing schoonei'S 1 found that over 90 per cent were skins taken from females. The sides of the female skins are swollen, and are wider on the belly than those of males. The teats are very discernible on the females, and it can be plainly seen where the young have been suckling. The head of the female is also much narrower. SUMMARY OF THE EVIDENCE. 235 bs to ascertain Mr. Thomas F. Morgan was the agent, in 1891, of the Russian Sealskin Company of Petersburg. Prior to that time he had been engaged in seal fishing ; he resided seveitil years, as agent of the Alaska Commercial Comijany, on the Pribilof Islands. His long and varied experience fitted him in an especial manner to testify intelligently on the subject. He says, (ibid., p. 61) : The Alaska fur-seal breeds, I avi thoroughly convinced, only upon fhe- Frihilof Islands; that I have been on the Alaska coast and also along- the Aleutian Islands ; that at no points have I ever observed seals haul out on land except at the Pribilof Islands, nor have I been able to. obtain any authentic information which causes mo to believe such is the case. The Alaska fnr-seal ie migi-atory, leaving the Pribilof Islands in the early winter, going southward into the Pacific and returning again in May, June, and July to said islands. I have observed certain bull seals, return year af(er year to the same place on the rookeries, and I have been informed by natives that have lived on the islands that this is a well-knor.u fact and has been observed by them so often that they stated it as an abso- lute fact. It is also interesting to note, from his sapplemental sworn statement,, that the British Commissioners had some testimony to show that there wa». no identity between the herds (ibid., p. 201) : • • • . I was on the Bering Island at the same time that Sir George Baden-. Powell and Dr. George M. Dawson, the British i-epresentatives of the Bering Sea Joint Commission, were upon said island investigating the Russian sealeries upon the Komandorski Islands ; that I was preseut at an examination, which said Commissioners held, of SniegerofF, the chief of the natives on the Bering Island, who, prior to the cession of th ; Pi-ibilof Islands by Russia to the United States, had resided on St^ Paul, one of the said Pribilof Islands, and that since that time had been a resident on said Bering Island, and during the latter part of said residence had occupied the potition of native chief, and as such, superintended the taking and killing of fur-seals on said Bering- Island ; that during saUl examination the Commissioners, through aa interpreter, asked said Sniegeroff if there was any difference between the seals found on the Pribilof Islands and the seals found on the- Komandorski Islands ; that said Sniegeroff at once replied that there was a difference, and on further qnebtioning stated that such difference consisted in the fact that the Komandorski Island seals were a slimmer animal in the neck and fiank than the Pribilof Island seals; and fur- ther, that both hair and fur of the Komandoi'ski Island seal were longer than the Pribilof Island seal ; said Commissioners asked said Sniegeroff the further question whether he believed that the Pribilof herd and Komandorski herd ever mingled, and he replied that he did not. ' Mr. John N". Lofstad (ibid., p. 516), a fnr merchant of San Francisccv testifies that he can easily distinguish the Copper Island seal in ita [317] Q 236 ARGUMENT OF THE UNITED STATES, undressed state from that of the Alaskan and Northwest Coast skins. They are of an entirely distinct and separate herd, while those of tho Northwest Coast and Pribilof Inlands are of the same variety. He says : I have been in the business for twenty-eight years during which time I liave bought large numbers of dressed and undressed fur skins, and I am thoi'oughly familiar with the business. I can easily distinguish the Copper Island fur-seal.skin in its undressed state from that of the Alaskan and Northwest Coast skins. They are of an entirely distinct and separate iherd, while those of the Northwest Coast and Pribilof Islands are of the same variety. To the same effect Mr. Gustave Niebaum (ibid., p. 78), Mr. Niebaum's •experip ice was such as to entitle him to speak as an expert. His opportunities to inform himself thoroughly on all matters connected with sealeries were of the best, and at the same time he had no interest "whatever in the sealeries or the seal-skin trade. He is a native of Fin- land and became an American citizen by the transfer of Alaska to the United States. He was vice-consul of Russia at San Francisco from 1880 to 1891. He says: I was formerly, as I have stated, interested in the Commander seal islands, as well as those of Alp-'ka. The two herds ai-e separate and distinct, the fur being of diffe. .nt (juality and appearance. The two classes of wkins have always been held at different values in the London market, the Alaskan bringing invariably a higher price than the Siberian of the same weight and size of skins. I think each lierd keeps upon its own feeding grounds along the i-e.spective coasts they -inhabit. It may be unnecessary — as it would certainly be monotonous — to mul- tiply citations. Other witnesses, however, testify to the same effect. The American Commissioners have given their names and addresses, as well as their sworn statements. The Arbitrators will, therefore, be enabled to determine whether or not the evidence is, as we claim that it is, absolutoly • conclusive. In a court of law, such a com ensus of opinion and statement made under the sanction of an cath and uncontradicted, save by more or less ingenious but unsustained conjecture, would satisfy the judgment of the most exacting judge. Other depositions equally important may be quoted in addition to the above. Mr. Walter E. Martin (ibid., p. 5G9), was, at the time of giving his ■ testimony, a subject of Her Majesty, residing at the city of St. Albans. He had been engaged, on a very large scale, in the business of dress- SUMMARY OF THE EVIDENCE. 2;}7 ing and dyeing soalski OK. He says that if one thousiiud Copper Island skins were mingled among ninety-nine thousand Alaska skins, it would be possible for any one skilled in the business to extract nine hundred and fifty of the Copper Island skins and to separate them from the ninety- nine thousand and fifty of the Alaska catch, and vice versa. Mr. N. B. Miller (ibid., p. 199). Mr. Miller was at the time of testi- fying an assistant in the scien^ific department of the United States Fish Commission steamer Albatfoan. He had made five cruises in Alaskan watei'S ; ho says : The seals of the Commander Islands are years of age at the time of giving his deposition, and .since the age of eleven had been in the fur business. His practical and active experience was very lai-ge during those twenty-three years. He had noticed the difference in the seals, both in their raw state and during the processes of dressing. He explained minutely the point of difference. Mr. Henry Poland (ibid., p. 570) was a subject of Her Majesty and the head of the firm of P. R. Poland & Son, doing business at 110 Queen Victoria street, in the city of London. The firm of which he was a member had been engaged in the business of furs and skins for upwards of one hundred years, having been founded by his great-grandfather in the year 1785. His judgment, evidently, is entitled to great respect. He corroborates the other witnesses, and says that the three classes of skins are easily distinguishable from each other by any person skilled in the business. He had personally handled the samples of the skins dealt in by his firm, and would have no difliculty in distinguishing them. In fact, tlio skins of each of the three classes have different values and command different prices in the market. Ml'. Charles W. Price (ibid., p. 521) is a very expert examiner of raw fur-skins, of San Francisco. He had been engaged in the business twenty years when he was examined by the Commissioners of the United States ; he had had a large practical experience. He gives the points of difference between the Bussian and American skin.j, and states, as did Mr. Poland and other witnesses, that the seals on the Bussiau [317] Q 2 !|i- i 3 "r " ■■ '"-\ mi ! ■:iy: '■V- VT' 1 238 ARGUMENT OF THE UNITED STATES. side ni-e a distinct and different herd from those on the American side, and are not as valuable. Mr. George Rice (ibid., p. 572) is another witness whose testimony should command respect. He was fifty years of age and a subject of Her Majesty. He had been engaged actively in the business handling fur-seal skins for twenty-seven y^Rir, and had acquired a general and detailed knowledge of the different kinds of fui*-seal skins and of the differences which distinguish them, as well as the history, character, and manner of conducting the fur-seal sealskin business in the city of London. He says that the differences between the several classes of skins are vei-y marked, which enable anybody who is skilled in the business to distinguish the skins of one class from the skins which belong to either of the other classes. He also stated, as did the other experts, that these diffeiences are evidenced by the fact that the skins obtain different prices in the market. The testimony of this gen- tleman deserves special attention ; it is intelligently given and is very instructive. Mr. Leon Sloss (ibid., p. 90) is a native of California and a resi- dent of San Francisco. He was for several years a director of the Alaska Commercial Company, and a member of the partnership of Louis Sloss & Co., and had been engaged for fifteen years in dealing in wools, hides, and fur-skins. At the time of testifying he had no interest in seals or sealeries. He had been superintendent of the Alaska sealeries pro tempore from 1882 to 1885, inclusive, and spent the sealing season of those thi-ee years on the Pribilof Islands in the personal management of the business. He became acquainted, as he testifies, with every aspect of the business. All advices from the Lon- don agents and information in regard to the sealskin market, from all sources, passed through his hands, nnd instructions to ag ats of the company in regard to the classes of skins desirad emanated from time to time from him. He was emphatic in his statement that the difference between the Northern and Southern skins that came to the port of San Francisco could be detected at once. While it was not as easy to dis- tinguish the Alaskan from the Asiatic skins, experts in handling them do it -with unerring accuracy. '' ' '*'' .< .ti .« .; *ia -. L. . Mr. William C. B. Stamp (ibid., p. 674) was 61 years of age at the time of testifying, and a subject of Her Majesty. He was engaged in the business at 38 Knightrider street, London, E. C, as a fur-skin merchant. Ho had been engaged in that business for over thirty •* Is SUMMARY OP THE EVIDENCE. 239 yeara and had persooallj handled many thousand of fur-seal skins, besides inspecting samples at practically every sale of fur skins made in London during the whole of the time he had been in business. He had thus acquired a general and detailed knowledge of the history of the business and of the character and differences which distinguish the several kinds of skins on the market. He staled it as his judgment that the skins of the several catches are readily distinguishable from each other, and the skins of the different sexes may be as readily dis- tinguished as the skins of the different sexes of any other animal. He added that the difference between the skins of the three catches are so mai'ked that they have always been expressed in the different prices obtained for the skins. He instances the sales on the list, which were as follows : For the Alaska skins, 125 shillings per skin ; for the Copper skins, 68 shillings per skin ; and for the Northwest, US shillings per skin. Emil Teichmann (ifttd., p. 576), was by birth a subject of the King- dom of Wurtcmburg, and had become a naturalized citizen of Her Majesty from the time of reaching his manhood. He was 46 years of age at the time of testifying. He had been engaged in the far business since 1868, and had resided in England and done business in Loudon. From 1873 to 1880 he had been a member of the tirm of Martin & Teichmann, who were then, as its successors, C. W. Martin & Son still are, the largest dressers and dryers of sealskins in the world. He had peraonalhj handled many hundreds of thousands of fur-seal skins and claimed to be, as well he might, an expert on -he subject of the various kinds of such skins. His testimony is minute and gives details as to the peculiarities which distinguish the skins. He states that all those differences are so marked as to enable any expert readily to distinguish Copper from Alaska skins, or vice versa, although he adds that in the case of very young animals the differences are much less marked than in the case of adults. George H. Treadwell (ibid., p. 523), at the time of testifying, was 65 years of age. He was a citizen of the United States and a resident of Albany County, in the State of New York. His fatliei", George C. Treadwell, in 1832, started a wholesale fur business of a general charactei', and his son, the witness, became associated with him in 1858, and upon his death, which occurred in 1885, he succeeded to the business. That business is now conducted under the name of The George C. Treadwell Company, a corporation formed unde" the m 240 ARGUMENT OP THE UNITED STATES. laws of the State of New Jersey, of which corporation the deponent is president. Ho entirely agrees with what Mr. Phelan says concerning his experience in the handling and dressing of skins, and from what he knows of his character and ability he believes that everything stated by him in his aflSdavit is correct. Henry Tread well {ibid., p. 524), at the tima of testifying, was 70 years of age, and resided in the city of Brooklyn, in the State of New York. He was a member of the firm of Treadwell & Company, which had been dealing in furs since 1832 ; they bought, dressed and dyed annually from ijOOO to 8,000 skins. Mr. Treadwell was very emphatic in his statement that the skins of the three catches are readily distinguishable. Eo stated tiiat he would be able, himself, on an examination of the skins as they are taken from the barrels, to detect at once in a barrel of Alaska skins the skins of either the Copper or the northwestern catch. William H. Williams (ihiJ., p. 93) is a citizen of the United States, residing at Wellington, Ohio, and was at the time of testifying the United States Treasury Agent in the charge of the seal i.slands in Bering Sea. As such and in pui'suance of Department instructions. he made a careful examination of the habits and conditions of tin seals and .seal I'ookei-ies, with a view of repo?'ting to the Depai-tmont his observations. Ho says, agreeing in this vith the numerous other witnesses whose testimony is above given, that the skins of the three catches are readily distinguishable from each other. He also states that the differences are clearly evinced in the prices which have always been obtained for the sealskins of +he three catches. For instance, the skins of the Alaska catch were then commanding 20 or 30 per cent better prices than the skins of the Copper catch. This difFerencf is also recognized by the Russian Government, who leased the privilege of catching upon the Commander Lslancls upon terms 25 per cent lees than the terms of the United States foi- the leased catch upon the Pribilof Islands. Mr. Maui>e Windmiller (ibid., p. .550) was a furrier doing business in San Francisco, in which business he had been engaged all his life, his father having been a furrier before him. He was 46 years of age and claimed to be an expert in dressed and undressed, raw and made-up furs, and a manufacturer and dealer in the same. He was also of opinion that the Russian seal belonged to an entii-ely different herd from those of the American side, and testified that their skins had such peculiar characteristics that it was not difficult to separate them. 8UMMABV OF THE EVIDENCE. 241. \ I (B) Tin; AfiASKAX DOKS XOT MINGLK WITH THE Bl'SSIAX HIiKD. "■ '-' The stateiueut in the Case (p. 96) is in the following words : The Commander Islands herd is evidently distinct and separate from the Pribilof Islands herd. [Its home is the Commander pi-oup of islands on the western side of Bering Sea, and its line of migration is westward and southward along the Asiatic coast.] To suppose tliat tlie two herds mingle and that the same animal may at one time be a member of one herd and at another time of the other is contrary to what is known of the habit of migrating animals in general. This statement is based on the report of tlie American Commissionera (page 323 of the Case of the United States), which report states the con- clusion reached by them in the following language : The fur-seals of the Pribilof Islands do not mix with those of the Commander and Kurile Islands at any time of the year. In summer, the two herds remain entirely distinct, separated by a water interval of sevei'al hundred miles, and in their winter migrations those from the Pribilof Islands folloW the American coast in a southoasterly direction, while these from tiie Commander and Kurile Islands follow the Siberian and Japan coasts in a southwt'sterly direction, the two herds l)eing separated in winter bj- a water interval of several thousand miles. This regularity in the different herds is in obedience to the well-known law that mujiatoi'i/ auimais follow definite routes in migration and return jiear aftrr year to the suim- planc.< to breed. Were it not for this law, there would be no such thing as stability of species, for interbreeding and existence under diverse physiographic conditions would destroy all specific characters. The testimony in support of tliis proposition seems to be conclusive and certainly must stand until the leai'ned counsel for the Government of Her Majesty succeed in producing the evidence of witnesses who are able and willing to express a different view. It can not be expected that the witnesses shall speak in the same positive and unqualified manner upon this mattei", which, to some]|extent, must be predicated upon conclusions drawn from facts, as they would and do upon the actual and observable differences between the two families of seals. But it will be found that the testimony is the best obtainable under the circumstances and can leave no reasonable doubt in the minds of impartial persons that the two herds are distinct, that they follow definite routes in migration, and that tliey return year after year to the same place to breed and never intermingle. • ■ - "' • Mr. John G. Blair (Appendix to Case of tho United States, Vol. II, p. 193) was at the time of deposing an American citizen, 57 years of age, and had been for fourteen years previous and until recently master 'i ( 242 ARGUMENT OF THE UNITED STATES. of the Bclioonor Jjnon, then employed by the Raasian Sealskin Com- pany. He liad been conatautly engaged in the. fur-sealing industry and was familiar with the habits of these animals, both on the land and in the water. He was in charge of and attended to the killing of seals on Robben Island for the loissees frou* 1878 to 1885, taking from 1,000 to 4,000 seals per annum. With the exception of two years, when he was sealing on the Commander Islands, he had visited Robben Island every year from 1878 to 1885. His testimony upon this point is as follows : I am told and believe that the Robben Island seals can be distinguished by experts from those on the Commander Islands, and am satisfied that they do not mingle with them and are a separate and distinct herd. They remain on and about the islands in large numbers until late in the fall. I have been accustomed to leave in October or early November, and seals were always plentiful at that time. I am of opinion that they do not migrate to any great distance from the island during the winter. A few hundred young .pups are caught every winter by the Japanese in nets off the north end of Yesso Island. I have made thirty-two voyages between the Aleutian Archipelago and the Commander Islands, but have never seen seals between about longitude 170 west and 166 east. I am satisfied that Alaska seals do not mix with those of Siberia. 1 have seen seals in winter and known of their being caught upon the Asiatic side as far south as 36 north latitude. William H. Brcnnan (ibid., p. .358) : Mr. Brennan, at the time of testify- ing, resided at Seattle, in the State of Washington. Ho was an English subject by birth and had spent the best part of his life in the close study of the inhabitants of the sea, including seals and the modes of capturing them. He had passed his examination as second mate in London in 1874, and had been to Australia, China, and Japan. In the last country he had remained several years. Since that time he ^Jas followed the sea as sailing «aptain, pilot, and quartermaster on vessels sailing out of VictorIa,>British Columbia. He testified as follows : In my opinion, fur-seals born on the Copper, Bering, or Robben islands will naturally return to the rookery at which they were born. The same thing is true of those born on the St. Paul or St. George islands. No vessel, to my knowledge, has ever met a band of seals in midocean in the North Pacific. I have crossed said water on three difierent occasions, and each time ).;ept a close lookout for them. The greater part of the seals that we find in the North Pacific Ocea.n are born on the islands in Bering Sea. Most of them leave there in October and November. C. H. Anderson {ibid., p. 205) : Mr. Anderion was a master mariner by occupation, residing in San Francis "o, and had been sailing in Al'iskan ^vaters since 1880. He says : SUMMARY OF THE EVIDENCE. ^> 243 I think the Commander islands seals are a different body of seals altogctlier from those of the Pribilofs, and that tlie two herds never mingle. I think tlie Commander islands herd goes to the southward and westward toward tlie Japanese coast. I never know of fur-seals hauling ont to rest or breed at any place in the Aleutian cliain, or anywhere, in fact, except the welUknowii rookeries of the several seal islands of Ucring < • Charles J. if ague (IhUh, p. 207) : Capt. Hague is a citizen of tho United States and a master mariner by occupation. He had cruised steadily in Alaskan waters since the year 1878. Ho had sailed principally about the various parts of the Aleutian Lslands, as far west as Attn, to which island he had made al)out twenty trips from Unalaska, priicipally in the spring and fall of the year. This is his testimony upon tic point now under consideration : Tho main body of the fur-scal herd bound to and from tho Pribilof Islands move through tho passes of the Fox Islands, Uiiimak on tho cast and the West Pass of I'nmak on the west, being the limits between which they enter Beliring Sea in any number. I do not know through what passes tho diHerent categories move or the times of their move- ments. Rarely s(^e fui'-seals in tho Pacific between San Francisco and the immediate vicinity of the passes. I think tho fni'-seal herds of the (,'ommander and I'ribilof Islands are separate bodies of tho fur-seal species, whose numbers do not mingle with each other. In the latter part of September, 1807, in the brig Kentncliij, making passage between I'etropaulow.ski and Kodiak, I observed tho Comnuuider Islands seal herd on its way from the rookeries. They moved in a compact mass or school, after the manner of herring, aiul were making a westerly course towards the Kurilc Islands. The seals which 1 have observed on their way to the Pribilof Islands do not move in largo schools; they struggle along a few at a time in a sort of a stream and are often seen sleeping in the water and playing. There ai'e no fur-seal rookeries in the Aleutian Islands that I know of ; in fact, I have never heard of any in tho i-egion besides those on the several well - known Seal Islands of Bering Sea. H. Harmsen (/'hid., -p. 442): Capt. Harmsen had been the master of a ship since It'SO and engnged in the business of hunting seals in tho Pacific and Bering Sea since 1877. Tho following is an abstract from his testimony : (,). In your opinion, do the seals on the Russian side intei'iningle with those on the Pacific side or are they a sei)arato herd? — A. No, sir; they do not come over this way. They are not a different breed, but they keep over by themselves ; at least I don't think so. They follow their own stream along there. There is so much water there where there are seals, and so much where there are not. They are by them- selves. Samuel Kahoorof (ibul, p. 214) : Kahoorof is a native of Attn Island, 62 years of ago, and a hunter of the sea otter and blue fox. He had lived. lis!;* 246 AROUMKNT OF THE UNITKD STATE3. in the Haoao place all his life. Wo extract that part of his tesHinony whicii Ijuai-N upon the qucKlion now under immediate consideration : Have seen only three fur-Hoaln in this i-oj^ion in twenty years. Saw them in May, 1H!)0, traveling along the north side of Attn iNlant], ahout 5 miles oU shore, and making a northwesterly coiuso. They were young males, 1 think. Fur-suals do not regularly visit these islands now, but aliout twenty-five or thirty years ago I used to see small squads of largo seals during the month of June foecling and sleeping about the kelp patches oil the eastern shores of Attn and Agattu Islands. They came from the southward and traveled in a northwesterly direction. Never saw any fur-seals oast of the Semichi Islands and do not think that those of the Commander Islands herd go farther to the eastward than that. They decreased in numbers gradually, and during tin last twc^uty years I have only seen the three above mentioned. Have never seen a nursing or mother cow or black o>* gray pup in this region, and do not think they ever visit it. John Malowansky (ibid., p. 198) : Mr. Malowansky is a resident of San Francisco, an American citizen, but a Russian by birth. Ho was, at the time of testifying, a merchant by profession and an agent for the Russian Sealskin Company. He resided on the Commander Islands in 18(39, 1870, and 1871, and was then engaged in the scaling business. Ho was there again in 1887, as agent of the company. He formerly lived in Kamtchatka and frequently visited the Commander Islands between 1871 and 1887. He was an expert in all matters relating to the fur-seal trade, especially on the Russian side of the Bering Sea. The following is an extract from his testimony : The seals of the Commander Islands are of a different variety from those of the Pribilofs. The fur is not so thick and bright and is of a somewhat inferior quality. They form a distinct herd from that of St. Paul and St. George, and in my opinion the two do not intermingle. I was present as interpreter when the English Commissioners were taking testimony on Bering Island. They examined among others, when I was present, Jefim SuigeijiV, Chief of Bering Island, he being the person selected by them therp fvoiw which to procure the testimony relating to the habits and killing of seals. This Snigeroff testified that lie had lived on the Pribilof Islands for •.i!;i y years and knew the distinctive characteristics of both herds (Cominaiiaer and Pribilof) and tlieir habits and that he removed from thence to Bering Island. He pointed out that the two herds have several ditferent characteristics and stated that in his belief they do not intermingle. Filaret Prokopief (ibid., p. 21G) : ProkopieC is a native of Attn Island, 123 years of age, and the agent and storekeeper at that place of the Alaska Commercial Company. His occupation was that of hunter for sea-otter and fox, but never for fur-seal. This occupation he pur^usd until the time when he was made agent. His hunting groun 1 was Attn, Agattu, and the Semic'ii Islands. This is his testimony : _, .. •' T\ Sl'MMAKY OF THK KVIDENCE. 247 I never Haw but one fui-seul in tlio wiitor. It wnn a young male which was killed in thin bay in Suptoniber, 1884. I do not know of any fur-aeal rookery or other places where fur-seals haul out on the land to breed or roai in the Aleutian IdlandH, nor whei-e the old bull fur-Roalt Hpend tlie winter. I do not know at what time or by what routes the seal herds move to and from the Berin|L( Sea ; have heard old hunters say the Commander Islands herd used to pass close to the western shores of these islands on their way north. Kliah Prokopief (thid., p. 21'>) is a native of Amchitka Island of tlie Aleutian chain ; o2 years of age ; bad been a hunter all his life, but had never hunted or killed a fur-seal. Uis hunting ground was about Attu, A'^attu, and the 8cmichi Islands. His testimony is as follows : Fur-seals do not regularly frequent these regions, and I have seen none but a few scattering ones in twenty years. Thirty years ago, when the Russians controlled tliese islands, I used to see a few medium- sized fur-seals, one or two at a time, in the summer, generally in June, tmveling to the northwest, and bound, I think, for the Commander Islands. Thf< farthest east I have ever seen them was about 30 miles east of the ^emichi Islands ; do not think those going to the Commander Islands ever go farther east than that. Those most seen in former times were generally feeding and sleeping about the kelp patches be- tween Attu and Agattu, and the Semiuhi Islands, where the mackerel abounds. They decreased in numbers conetantly, and now are only seen on very rare occasions. Have seen but half a dozen in the last twenty years ; they were large seals — bulls, I judged from their size — traveling to the northwest, about 30 miles east of the Semichi Islands. This was in May, 1888. Have never seen any pups, black or gray, or nursing female seals in this region, and do not think they ever visit it. Do not know of any rookeries in the Aleutian Islands, nor any places where fur-seals haul out regularly on the Innd or kelp to bi-eed or rest except the Russian and American seal islands of Bering Sea. Do not know where the old bull fur-seals spend the winter, nor what route the fur-seal herds take to and from the Commander and Pribilof Islands, nor at what times the herds pass to and from. Am quite sure the herds do not come near enough together to mingle in these regions. Have never known of fur-seals being seen between Amchitka and a point 30 miles east of the Semichi Islands. Do not think there are now us many far-seals as there wore thirty yeai-s ago, but do not know the cause « the decrease. Sealing schoonei's do not regularly visit these islands. Last August (1891) three of them came in here to get water, but only stayed a few hours each ; they had been to the Commander Islands and were going south. Gustave Niebanm (ilUh, p. 202) : The testimony of Mr. Niebaum has been cited above and his qualitications given. Upon the subject of the alleged or possible commingling of the different herds, he says (ibid.,. p. 204) : I am satisfied that the seal herds respectively upon the Pribilof group, the Commander Islands and Robben Bank, have each their 1 'i<'\ 248 ARGUMENT OF THE ITNITEl' STATES. own distinctive feeding grounds and peoiliar grounds of migration. No doubt they are of the same species, but there is a ninrked differ- ence in the fur of tlie skins from the respective places, which can l)e distinguished by experts. C. A. Williams (i6«?., p. 535) : Mr. Williams is a citizen of the Unitcu States, a resident of the city of New London, in the State of Connec- ticut, and was at the time of testifying 63 years of ago. He had been largely engaged for a period of upwards of forty years in the whaliii vessels. He says that there is no intermingling of the herds. Tho testimony of Alexander McLean (ibid., p. 436) is to the same effect. Mr. McLean is a master mariner and had been engaged for ten years, at the time of making his deposition, in the business of hunting seals in the Pacific or Bering Sea. To the like effect is the testimony of Daniel McLean (i'/^/J., p. 44->). He, too, is a master mariner, and is of opinion that tho Russian anil Alaskan herds are different herds of seals altogether. His testimony is as follows : . . Q, In ycur opinion, do the seals on *he Russian side intermingle with those on the Pacific side? A. No, sir; I do not think so. They are different seals in my opinion. It is only just to add that the British Commissioners virtually make the admission that these herds are separate and distinct, although the inference may be drawn, from some of their statements, leading to a contrary conclusion, when the practical question arises in connection witli an appreciable difference in the value of skins. Thufi, for instance, the suggestion is made of a prohahUlty in the future, in a coui-se of years, that a continued " harassing " of one grouji might result in a corresponding gradual act-ession to the other, by which it is no doubt intended to convey the idea that unless the killing on the Pribilof Islands is discontinued the seals will migrate and adopt a Russian domicile (Sec. 453). . » . . , . . , But the same paragraph admits that " the fur-seals of the two sides of tho North Pacific belong in the main to pi-actically distinct migi'a- tion tracts." They add that it is not believed that any voluntary of systematic movement of fur-seals takes place from one group of breed- ing islands to the other (Sec. 453). See also section 198 of British Com- missioners' roport, that " while there is evry reason to hclirvc that the seals become mora or less commingled in Behring Sea daring the sum* T"ji!r f5TTMMARy OF THE EVIDENCE. 24§ ' migration, rked ditt'cr- licli can be E the United ( of Connec- le had been the ■whalin'T f t-wenty-fivo e same effect,. ten years, at 5 seals in the ilnd., p. 44:^»)- Russian anil lis testimony 3 intermingle nk so. They Irtnally make although the , leading to a innection witli ahillly in the ' of one group ther, by which killing on the and adopt n the two sides listinct migva- y voluntary or roup of breed- ,£ British Coni- lirvc that the uring the sum- mer [a purely gratuitous assumption], the migration routes of the two sides of the North Pacific are essentially distinct." (Sec also Scs. 170, 198, 216, 220.) Without any evidence, then, on the side of the United States, it might be asserted, on the Report of the British Commissioners alone, that any inter- mingling of the two herds is abnormal and exceptional, although these gentlemen are inclined to think that in the remote future this separation may disappear. . ' (c) J'HIO ALASKAN FL'R-8KALS HAVK ULf ONK HOMK, NAMELY, IIIK I'UIBILOK ISLANDS. THEY NKVER LEAVIO THIS HOMK WITHOUT THK ANIMUM KEVKRTKNDI, ANIi AKG NKVKR SEEN ASHOEK EXCEPT OX ISLANDS. ' . ' ■ ' ' THOSE The testimony as to this fact is unconti'adicted except by the curious and utterly unsupported statement of the British Commissioners that the animals actually enjoy and occupy two homes ; that is, they have a winter domicile, which is not given except by a vague and general designation (Bnti.sh Commissioners' Report, Sec. 27), and a summer place of resort, which is the Pribilof Islands. Thorv is no pretense that tJwy ever land clsewluTo. The foi'ce of this original suggestion of a double lesidence would be much increased if the slightest indication were given to enable iis to test the accni-acy and to aid the Commissioners in satisfying the world of scientists that a grave error has heretofore been committed and continuously accepted. But as we are endeavoring to ti-eat the assertion as seriously and respectfully as possible, wo submit that in the face of absolute and uncontradicted proof, corroborated by general scientific experience, we are not bound to devote any considerabl space to tho demonstration that tlie fact must be taken to be as we have stated it. In fairness to the Commissioners for Great Britain, it may bo proper to call attention to their own language, noting, however, the singular process by which they make the migration of the seals commence at an uncertain point in the Facijic to reach their well-established home and place of nativity in the north. The absurdity chargeable upon the British Commissioners of thus beginning at an unceitain point to reach a i-ertain one is shown by Capt. Scammon, who has been an officer in the United States Revenue- Marine Service since IS&i. ^Ir. Soammon is also the author of the work entitled " The Marino Mammals of the Northwestern Coast 250 ARGUMENT OF THE UNITED STATES. of North America," published by J. H. Cai*many & Co., San Francisco, 1874. Hesays: .-,.,., ^ ■•.; .,|-k,,; ,■■,';-.,...,. ..-li- ,;-l . ^. .--. ,, The certainty that the seals caught in the North Pacific are in fact a portion of the Pribilof herd, and that all are bom, and reared for the first few months, upon the islands of that group, naturally leads the observer to regard them as quite domesticated, and belonging upon their island home. The more orderly way to describe them, therefore, would be to commence tvith their birfh upon the island and the beginning of their migrations, i*ather than at the end of some one of their annual rounds away from home. -• ' We now quote the language of the Report of the British Commis- sioners : The fur-?eal of the North Pacific Ocean is an animal in its nature easentially pelagic, which, during the greater pari of each year, lias no occasion to seek the land and very rarely does so. For wH?e fi 'fj.n of the year, however, it naturally resorts to certain littoral bjcfJ'nn' .19, where the young are brought forth and suckled on land. It if . ; ■ js in habit, and, though seldom found in defined schools ov crrupact bodies at sea, congregates in large numbers at he breeding places. (Sec. 26.) ,•-. • - . f r ';:m , ..\ . ■ • :. ■ -i Then they describe the migrations and continue : The fur-seal of the North Pacific may thus be said, in each case, to have two habitats or homes between which it migrates, both equally necessary to its existence, under present circumstances, the one frequented in summer, the other during the winter. Unless the vast expanse of sea between the Aleutian Islands and Califor- nia may be con; "Jered a winter habitat, it is difficult to see upon what foundation these gentlemen have felt justified in making the statement of a double home. The object of such an argumentative assertion is too pisi . to require consideration, at least in connection with this point. The truth upon this question of habitat or home is as stated by the American Commissioners in their report. They use the following language : The Pribilof Islands are the home of the Alaskan fur-seal (Callorhinus ursinus). Thev are peculiarly adapted, by reason of their isolation and climate, for seal life, and because of this peculiar adaptability were undoubtedly chosen by the seals for Iheir huLila^'on. The climatic con- ditions are especib.lly favorable. The seal, whilu on land, needs a < "'l, moist, and cloudy climate, sunshine and warmth p'.oduc'^rir a very inJM .r , effect upon the animals. These requisite pheoome. < n^ found v.l Pribilof Islands, and nowhere else in Bering Sea or t' ^.urtb Pacific kr- . at the Commander (Komandorski) Islands. (Case of the (jDited States,. p. 89.) 4 3 ;.r'f' SUMMARY OF THE EVIDENCE. 251 F'.-ancisco, 3 in fact a jr the first e observer leir island iild be to g of their unds away li Commis- its nature Hir. has no e fC'Hjn of V.n'T ' '">8, ,!;••? - ■■■ as 01 compact ling places. case, to have ly necessary in summer. and Califor^ } upon what ;atement of a n is too pia' stated by the he following (Callorhinus isolation and (tabilit^ were climatic con- needs a u the Pribilof Islands in summer, it becomes important to know what their movements may be after the birth of ohe youug. Then is no very material difference between tie statemen's of the Commissioners of tho lespcctive governments on this pent. The breeding ma'es begiu to arrive on the Pribilof Islands at varying dates in May and remain continuously ashore for about three months, after which they are freed from all duties on the breeding rookeries and only occasionally retarn to the shores. The breeding females arrive, for the most part, nearly a month later, bearing their yoang immediately en landing, and I'emain aehore, jealously guarded by the males, for several weeks, after which they take every opportnnity to play in the water close along the beaches, and about a month later they also begin [317] » i bim 252 ARGUMENT OF THE UNITED STATES. to leave tho islands in search of food and migrate to their winter habitat. The young males and the young females come ashore later than tho breeding seals, and at more irregular dates, and haul out by themselves. Lastly, the pups of the year bom in June and July commence to pod, or herd together, away from their mothers, towards the middle or end of August, and after that frequent the beaches in great numbers and bathe and swim in the surf. They remain on the islands until October, and even November, being among th^ last to leave. (Report of tho British Commissioners, Sec. 30.) The United States Commissioners make the following statement, wliioli is cori'oborated by abundant evidence. The bulls are the male seals from five or six to twenty years of age, and weigh from jour hundred to seven hundred pounds. They arrive on the breeding ground in the latter part of Apr., c ' I'f fii'st few days of May, but the time is, to a certain extent, depenJi- on the going out of the ice abont the island. (Case of tho United Stuvi;8, p. 108.) Toward the latter part of May or first of June, the cows begin to appear in the waters adjacent to the island and imme- diately land upon the breeding gi-ound. The great majority, however, do not haul up until the latter part of June, and the arrivals continue until the middle of July. Some of the bulls at this time (about the first of August) begin to leave the islands, and continue going until the early part of October. [Case of United States, p. 112, citing witnesses as to this point.] The bachelor seals, or non-breeding males, ranging in age from 1 to 5 or 6 years, begin to arrive in the vicinity of the islands soon after the bulls have taken up their positions upon the rookeries, but the gi-eatei- number appear toward the latter part of May. They endeavour to land upon the bi-eeding gi'ounds, but are driven off by the bulls and compelled to seek the hauling grounds. As to the departui-e of the seals from their home on the Pribilof Islamls, there does not soem to be any question that tho statement in tho United States Commissioners' Report is correct. The length of time that a pup is dependent upon its mother, as hereto- fore stated, compels her to remain upon the island until the middle of November, when the cold and stormy weather induces her to start, her pup being then able to support itself (pp. 119, 120). The bachelor seals generally leave at the same time as the cows and pups leave the island, though a few bachelors always are found after that period (p. 122 of the case of United States), i <.i ,. -tai^ ^ » • The Alaskan herd has had but one breeding place, which is the Pribilof Islands. While thei'e is no express contradiction as to this in the Report of ::|i SUMMARY OF THE EVIDENCE. 253 the British Commissioners, it may be interesting to oito some of the proof in support of this assertion. (a) The islands are in every particular adapted by c'limate and con- ditions to the purpose. While it is suggested, as we have seen above, by the British Commissioners, that the seals would find no difficulty in pro- curing another suitable place for breeding and for passing the summer months, this is manifestly a conjectnra and need not be dwelt upon. (b) There is no evidence that the animal has over resorted to other places, but all the evidence betbro this High Tribunal of Arbitration loads to the inference above stated. The language of the Case on the part of the United States is as follows (p.89): • • ^ The climatic conditions are especially favorable. The seal, while on land, needs a cool, moist, and cloudy climate, sunshine and warmth producing a very injurious effect upon the animals. These requisite phenomena are found at the Pribilof Islands and nowhere else in Bering Sea or the North Pacific, save at the Commander (Komandorski) Islands. This is abundantly sustained by the proof. See upon this point the testimony of Charles Bryant (Appendix to Case of the United States, Vol. II, p. 4), Capt. Bryant having been long engaged in whaling and having acted as Special Treasury Agent at the Pribilof Islands. Also Samuel Falconer (ibid., p. 164). Mr. Falconer had had long experience as Treasury Agent on the islands, and otherwise, and is a fully competent witness upon this point. He assigns the reason for the Koleotion of this breeding locality by the seals in the following lan- guage: The reason the seals have chosen these islands for their home is be. cause the Pribilof group lies in a belt of fog, occasioned by the waters of the Arctic Ocean coming down from the north and the warmer waters of the Pacific flowing north and meeting at about this point in Bering Sea. It is necessary that the seals should have a misty or foggy atmosphere of this kind while on land, as sunshine has a very injurious effect upon them. Then, too, the islands are so isolated that the seal, which is u very timid animal, remains here undisturbed, as every precaution is taken not to disturb the animals while they are on the rookeries. The mean tem- perature of the inlands is during the winter about 26° F., and in summer about 43°. I know of no other locality which possesses these pecu- liarities of moisture and temperature. The grounds occupied by the seals for breeding purposes are along the coast, extending from high-water mark back to the cliffs, which abound on Saint Geoi'ge Island. The young males or bachelors, not being allowed to land on these breeding places, lie back of and around these breeding grounds on areas designated hauling i^rounds. _ ....... .... ,. [317] K ii 254 ARGUMENT OF THE UNITED STATES. Captain Moj-gan says (ibid., p. 61) : -> vw i n '■A.,U I believe that the cause the seals choose these islands for their home is because of the isolation of these Pnbilof Islands and because the climatic rendition of these Pribilof Islands is peculiarly favorably to seal life. IJnring the time the seals are upon land the weather is damp and cool, the islands being almost continually enveloped in fogs, the average temperature being about 41° F. during the summer. Sec, too, Daniel Webster, local agent for the North American Com. mei'cial Company, ond stationed on St. George Island, who uses tha follow • ing language (ibiJ., p. 180) : ' * These islands are isolated and seem to possess the necessary climatic conditions to make them the favorite breeding grounds of the Alaskan far- seals, and it is here they congregate during the summer months of each year to bring forth and i-ear their young. Mr. Bcdpath, a resident of St. Paul Island, Alaska. He had resided on the seal islands of St. Paul and St. George since 1875, that i.s to say, at the time of giving his deposition, some seventeen years. He testified as follows upon this point {ibid., p. 148) : The Alaskan fur-seal is a native of the Pribilof Islands, j'.nd, unless prevented, will return to those islands every year with the regularity of the seasons. All the peculiarities of nature that surround the Pribilof group of islands, such as low and even temperature, fog, mist, ami perpetual clouded sky, seem to indicate their fitness and adaptability as a hoi i for the Alaskan fur-seal ; and with an instinct bordering on reason, they have selected these lonely and barren islands as the choicest spots of earth upon which to assemble and dwell together during their six months stay on land ; and annually they journey across thousands of miles of ocean, and pass hundreds of islands, without pause or rest, until they come to the place of their birth. And it is a well-established fact that upon no other land in the world do the Alaskan fur seal haul out of water. IV.— TuE Entire Offiok of Rephodcctiox and Rearixo ok Youxti is , , AND MUST BE PeEFOKMED ON L.VND. , . - , ■ " The act of coition takes place upon land " (Case of the United States, p. 110). The correctness of this assertion is settled beyond controversy by the overwhelming proof furnished by the United States Commissioners. But had they produced no evidence whatever, it is clear that the data fur- nished by the British Commissioners themselves are insufficient to cast reasonable doubt upon the proposition. (a) The British Commissioners, in their report, begin with the broad and incorrect) statement that the far-seal is an animal in its nature SUMMARY OF THE EVIDENCE. 2.55 [i OF YOCXCi IS " essentially pelagic," which " for some portion of the year, howuver, naturally resorts to certain littoral breeding places, where the joung are brought forth and suckled on land " (Sec. 261). Why it is and how it happens that an " essentially pelagic " animal should naturally resort to land for the most important function of its life does not appear, and yet the exceptional singularity of the circumstance miglit have made ex- planation reasonable. It is enough for the present purpose to give, in a word, the explanation of this practice of resorting to land. It mny be found in the universally conceded fact, that when the young happen to he horn at sea they perish. Ability to swim does not come spontaneously or naturally to this " essentially pelagic " animal. It is part of its educa- tion, and is not always acquired without difficulty. The race would be at once extinguished, by failure of living offspring, if it were confined to its own element. • =■ v ' " , * •• • ' •'. Passing this anomaly for the present and again seeking information from the British Commissioners' Report, we learn that the breeding males begin to arrive on the Pribilof Islands at varying dates in May and remain continuously on shore for about three months, after ivhich they are freed from all duties on the breeding rookeries. * * * The breeding females arrive for the most part nearly a month later, bearing their young immediately on landing and remaining ashore, jealously guarded hy the males for several weefcs (Report of British Commissioners, Sec. 30). •• • " '••--» It is plain that the impregnation of the female takes place during these months or weeks. The "jealous " care of the breeding males, their sojourn on the land " until they are freed from all duties on the shore," their patient waiting for the females ; all these facts show that there is a regular season of coition, which extends as they admit from May until July or Augnst (see Report of British Commissioners, Sec. 306), and that the act takes place on the land. f.-. •', •' ' '• ■ ^" •• " ':' •':•' • If this assertion needs farther demonstration, it may bo readily furnished, n. ;• ,. •. ■■,.'■., Assuming, as we must, and as the British Commissioners themselves declare, that it is natural for the seal to resort to land for the purpose of bringing forth and suckling its young, it being, moreover, uncon- tradicted that there is but one breeding place for this herd of se".'8, viz., the Pribilof Islands, it is indisputable that the period of coition and impregnation must so correspond with the period of return to the islands as to enable the mother to time the period of delivery with that of reaching land. Nature is a wise and careful monitor in her dealing 256 ARGUMENT OF THE UNITED STATES. with these and other animals and they heed her teaohings. Notliing is left to chance in the all-important matter of perpetuating the species. Coition and impregnation at sea and at irregular times would simply mean irregularity of birth and consequent destruction. If the females were impregnated at any other season their young would be bom at sea, and, notwithstanding their " essentially pelagic nature," would inevitably perish. . . .; " ^ This is further demonstrated by inexorable figares. The breeding females, say the British Commissioners, arrive at the islands nearly a month later than the males — that is to say, in June — and " immediately " drop their young. Given the date of birth (some time in June or July) and the period of gestation (about fifty weeks) (Case of the United States, p. 113), it is not difficult to fix the season of fertilization, but it is impos- aible to fix it at any other time than the period of the breeding mothers^ day at the islands. Such evidence as this outweighs the most ingenious and finely drawn conjecture. Even were it possible to show occasional acts of coition in the water after the females have been " released by their jealous male companions" on land, the fact would only be interesting from a scientific standpoint. It would not practically affect the question nor alter the fact that the coition whith results in fertilizing the female is per- formed on land, as a result of natural laws, the violation of which to any considei'able extent must eventually endanger the existence of, if not promptly end absolutely destro^y, the race. = .• ' > • '•• ' '' "' < ■ The British Commissioners, undeterred by these very obvious objections and misled, no doubt, by inaccurate and undisclosed information, assert that there is a certain class of '^' immature males," known as " half bulls " or "reserves," that poach upon the preserves of the .seniors and cover many of the females which escape the attention of the older males upon the rookery grounds and in such cases the act of coition is usually accom- plished at sea ! (Sec. 287.) • ■ ■ -.•■-•' -^i; .: '!.i It is unfortunate that an assertion inconsistent with scientific investiga- tion and completely refuted by abundant proof should have been thus lightly made and suffered to rest upon mere affirmation. The statement is certainly not correct ; but, even if it were, it merely states, and this most vaguely, that an irregular practice is sometimes followed in excep- tional cases. But the important point that the " breeding females " are only served by the *' breeding males " on land is shown by the report of the British Commissioners themselves : "''^ '^^*-^ & tavw-ii.'i*. ./Mi,!. >iijj.i>i., . SUMMARY OF THE EVIDENCE. 257 Tho remaining — and, at tho time in question, most important — class is that of the breeding females. These, sometimo after the birth of the young and the subsequent copulatinn with tho male, begin to leave the rookery- ground and seek tho water. This they are able to do because of tho lessened interest of tho beach-masters in them, and more particularly after many of the beach-masters themselves begin to leave their stands. (Sec. 806.) In section 309 Bryant is quoted thus : .V 'I'M r t Bryant, after describing the relaxation in watchfulness of the male after impregnation has been accomplished, says of the female : " From that time she lies either sleeping near her young or spends her time either .floating or playing in the water near the shore, returning occasionally to suckle her pup." This opinion is especially important, as the same person is relied upon in another place as authority to show that the habit of coition on land has been somewhat modified since 1874. It certainly seems strange that if coition on land was the rule and the [exceptions rare prior to 1874, "coition on land seems not to he the natural method." (Sec. 296.) There is evidently an error, either in the transcription or in the original state- ment. Mr. Bryant adds that " only rarely — perhaps in three cases out of ten — is the attempt to copulate under such circumstances effectual." This is in direct contradiction to the conceded and established fact that the breeding females are fertilized on land. It is difficult to suppose that Nature did not teach these animals from the earliest date the most "natural " way of satisfying their instinct and perpetuating their species. Perhaps the British Commissioners would not have been driven to the extremity of quoting such statements were it not for the necessity of sup- porting their theoiy, viz., the mischievous diminution of the males by slaughter on the islands. ^ ' - ..;;.. Taking these statements altogether, they clearly prove the habits of the breeding animal to be as we have contended, subject possibly to alleged exceptions which, even if firmly established, would not impair the sub- stance of the contention. It might, perhaps, be safe to rest this branch of the case at this point and to submit to this learned Tribunal that the inconsistencies and self-repugnances of the Report are such as to deprive it of all value as a guide upon this branch, at least, of the discussion. We shall, however, even at the risk of importunity, pursue the subject still further. ' ' 'V The statement in the Case of the United States as to the habits of tho seals in the act of reproduction is as follows (p. 110) : .>^j.^,^^ P I, 258 ARGUMENT OF THE UNITED STATES. The act of coition takes place upon land, which by reason of the for- mation of the genital organs is similar to that of other mammals. It is violent in character and consumes from five to eight minutes. This statement is not a mere affirmation nnsnpported by anthority. It is based in part upon the evidence of which we hero give abstracts : Mr. Joseph Stanley-Brown (Appendix to Case of the United States, Vol, II, p. 14), a geologist by profession, and as such employed in the United States Geological Snrvoy, says : Pelagic coition I believe to be impossible. The process npon land by reason of the formation of the genital organs is that of a mammal, is violent in character, and consumes from five to eight minutes. The relative sizes of the male and female are so disproportionate that coition in water would inevitably submerge the female and require that she remain under water longer than would be possible to such an am- phibian. I have sat npon the cliffs for hour^ and watched seals beneath me at play in the clear water. It is true that many of their antics might be mistaken for copulation by a careless observer, and this may have given rise to the theory of pelagic coition. I have never seen a case of the many observed which upon the facts could properly be so con- strued. Mr. John M. Morton, United States shipping commissioner at San Francisco, Avent to Alaska in 1870, arriving at St. Paul Island in October. He remained until the close of the season in the following year. In 1872 he visited all the trading posts of the Alaska Commercial Company. The summer of 1873 he spent on the Island of St. George. In 1875 and 1876 he again visited and spent both summers un St. Paul Island. He was at all times greatly interested in obspi'ving the movements and habits of these animals, and scarcely a day passed that he did not visit one or more of the rookeries. During the seasons of 1877 and 1878, while serving in the capacity of special Treasury Agent, he devoted his best attention and study to this subject. This is his language in his sworn deposition which appears at page 67, Volume II, of the Appendix to the Case of the United States : I desire also to express my belief concerning the seal life that the act of copulation can not he successfully performed, in the water. Those who have witnessed its accomplishment on the rookeries must coincide with such opinion. A firm foundation for the support of the animals, which the ground supplies and the water does not, is indispensable to oppose the pushing motion and forceful action of the posterior parts of the male which he exerts during the coition. The closest observation which I have been able to give to the movements and habits of the seals in the water has furnished no evidence to controvert the above opiaion. ffp] 'III I SUMMARY UF THE EVIDENCE. 259 S. B. Xettleton, a resident of Seattle, Wash., was appointed Special Agent of the Treasury Department in the autamn of 1889, at which time he went to the island of St. Paul in the performance of his duties. He returned to the States in 1890, and in 1891 returned to St. Paul Island, and remained there through June and July, and was then transferred to the island of St. George, where he remained until June, 1892. In the discharge of his duties as Treasury agent, he made such observations an could be taken from the breeding rookeries and the waters immediately adjacent thereto. His statement of facts is based upon personal observa- tion as well as the information received from the natives of snch islands and the white men resident thereon. This is his language (Appendix to Cose of the United States, Vol. If, 1>. 75) : Referriug to the question as to whether pelagic coition is possible, I have to Fay that 1 have never seen it attempted, but from my observa- tions 1 have come to the conclusion that pelagic coition is a physical impossibility. Dr. H. H. Mclntyre, superintendent for the lessees of the Pribilof Islands, during the entire term of their lease, visited the islands twice in the summer of 1870, and there he remained constantly from April, 1871, until September, 1872, and thereafter went to the islands every summer from 1873 nntil 1889, inclusive, excepting 1883, 1884, and 1885. His opportunities for observation wei-e excellent, for he remained on the islands four months, from May until Aiigust, in each season, supervising the annual seal catch, examining the condition of seal-life, studying the habits of seals, and, in brief, doing such work as the interests of the lessees seemed to demand. He says (Appendix to Case of the United Statee*, Vol. II, p. 42) : * It has been said that copulation also takes place in the water between these young females and the so-called " nonbreeding males," but with the closest scrutiny of the animals when both sexes were r-vimraing and playing together under conditions the most favorable in "'ii:'li they are ever found for observation, I have been unable to vtrify liio truth of this assertion. After coitus on shore, the young female goes off to the feeding grounds or remains on or about the beaches, disporting on the land or in the water as her inclination may lead htr. The male of the same age goes upon the " hauling grounds" back of or beside the rookeries, where he remains the greater part of the time, if unmolested, until nearly the date of his next migration. •, r , Mr. Arthur Newman had lived, at the time of his deposition, over twenty years on the Aleutian Islands. For eight years he had been 260 AUOUMKNT OF THE UNITED 8TATES. agent for the Alaska Commercial Company, at Chernofsky, and for ton years ho had acted in tho same capacity at Umnak. He had every opportunity, bh will appear from his deposition on page 210, Vol. II, of the Appendix to tho Case of tho United States, to observe tho habits of tho seals. This is his language : I have seen seals sleeping on kelp and feeding about it, bnt have novor seon thom copnlato anywlioro except on a rookery. I do not believe that pups born on kelp could be pi-opcriy nui-Hod and brought up. I do believe that it is necessary to thoir successful existence that they be born on land, since they can not swim at birth. Norman Hodgson (ibid., p. ;}07), a resident of Port Townsend, in the State of Washington, and a fur-seal hunter by occupation, gives many in- teresting details as to the habits of the seal. On the point now under con- nideration, he says : I do not believe it possible for fur-seals to breed or copulate in the water at sea, and never saw or heard of the action taking place on a patch of floating kelp. I have iiover seen a young fur-seal pi"> of the same season's birth in tho water at sea on a patch of floating i, and, in tv.ct, never knew of their being born anywhere save on a y. 1 have, however, cut open a gravid cow and taken the young o^ ...otn its mother's womb alive and ^rying. I do not believe it possible for a young fnr-seal pup to bo successfully raised unless born and nursed on a rookery. I have seen fur-seals resting on patches of floating kelp at sea, but do not believe they ever haul up for breeding purposes anywhere except on the rookeries. Charles Bryant, who had spent considerable time on the Islands and had acted during a pei'iod of nine years as special agent of tho Treasury Department, says (ibid., p. 6) : In watching the seals while swimming about the islands, I have seen cases where they appeared to be copulating in the Avater, but I am certain, even if this were the case, that the propagation of the species is not as a rule effected in this way, the natural and usual manner of coition being upon land. Capt. James W. Budington, who testified to his experience, which was considerable, in seal hunting at Cape Horn and in the Southern Atlantic Ocean, says (ibid., p. 595) : I am also convinced that copulation takes place on land before they migrate, the period of gestation being about eleven months. Samuel Falconer, a witness whose experience and qualifications have been mentioned heretofore, aays (ibid., p. 165) : MTIMMARV OF THK KVIDENrE. 261 Ah a f^onoml nilc, the impregnation is by tlio bull to whoHo hnronn hHo belongs, and not by the young maloB, ns has sometimoH been stated. These young males also |)ursue a female when she is allowed to leave the harom and go in the water, but she refuses them. I am poHitive from my ob> Hevvations that copulation in the water could not be effectual, and would be a moat unnatural occvrrence. John Armntrong, for a long time an employ<> in the Alaskan servico in connection with the sealeries testified vi'it^ much caution, and is the only one of the witnesses who does not speak with absolute confidence. His testimony is as follows (t'&tV^, p. 2) : I am anked whether the seals copulate in the water. It is a question that is often discussed at the islunds, and neither the scientific observers nor the unscientific are able to agree about it. I have seen seals in position when it seemed to be attempted, but doubt whether it is effectually accom- plished. If it were, I think wo should see pups sometimes bom late and out of season, but such is not the case. V. — Thk Pop is Entirely Dependent upon its MorirER for Nourish- ment FOR SEVERAI, MoNTHS AFTER ITS BiRTll. The Cows will suckle their own Pups only and thk Sucklino is DONE only on Land. , ■ . •. . -. , . As in the case of nil mammalia, the young must be dependent for nourishment during a certain period upon the milk furnished by the mother. The proof, moreover, is uncontradicted, and the British Commis. sioners admit that the stickling is done only on land. There is a question raised, however, which it may be useful to discuss, namely ; Are the pups suckled only by their mothers or do these act indiscriminately and give nourishment to such young as they may happen to find conveniently at hand P It is asserted in the Case of the United States that these animals constitute no exception to the general rule by which the mother I'ecognizes her own offspring and nourishes it alone. This is the language of the Case (page 114) : i ... ..,' A cow, as soon as a pup is brought forth, begins tu give it nourish, ment, the act of nursing taking place on land and never in water, and she will only suckle her own offspring. This fact is verified by all those who have ever studied seal life or had experience upon the islands. William Brennan (Appendix to Case of the United States, Vol. II, p. 359). The testimony of Mr. Brennan, a native of Great Britain and a resident, at the time of making his deposition in 1892, of Seattle, in the State of Washington, is interesting and enters into minute details, which I I,- 2f)2 ARGUMENT OF THE UNITED STATES. conld only be furnished by a person who hail practically studied the sub- ject. He Siiys : ' - In May the bulls comn:once to haul up on the rookeries, and the cows come throe or four weeks later. The bulls choose such ground as they mean to hold throuo;h the summer, fight savagely, and the strongest wins. Each has his own family, and should a stranger ap- proach, there is war. On the rookeries ono may see all classes of seals, apart from each other, the bulls and bredding cows in one place and the young in anothev. The pups are bom on the rookeries, and remain with their mothers, living v,''.oUy upon their mother's milk until they can go into the sea and care for themselves. There is nothing on the beach for the old ones to eat, and they go several miles from the rockeries out to sea to obtaic food. When the pups are born they can not swim, and the mothers take them to the water's edge, where one can see thousands paddling and struggling in the surf. The noise made by the mothers "'•ying for their pups, and the bleating of the pups in answer, make a consi»nt roar. The cow is three years old before she bears young. The pups r^re about forty- five days old before they can go into the water, but they nurse the mother as long as they stay on the island. This testimony, if reliable, p/nd there is no reason to dispute its accuracy, establishes the dependency of the pup upon its mother not only for food, but for care and instruction in swimming. Joseph Stanley-Rrowa, whose contributions to the subject of fur-seal life and their habit» f*r j extremely valuable and are frequently referred to in the Case of the Tfnited States, is very emphatic and satisfactory upon this Bubject. His qualifications have already been stated in connection with otlier piopoaitions. He says (ibid., pp, 15-16) : For the first few days, and possibly for a week, or even ten days, the female is able to nourish her young or offspring, but she is soon compelled to seek the sea for food, that her voracious young feeder may be properly nourished, and this seems to be permitted on the part or the male, ever though under protestation. The whole physical economy of the seal seem to be arranged for alternate feasting and fasting, and it is probable that in the early days of its life, the young seal might be amply nourished * * * without herself resorting to the sea for food. The female gives birth to but a single pup. The labor is of short dura- tion, and seems not to produce great pain. In the first weeks of its life, the pup does not seem to recognize its mother, but the latter will recognize and select her offspi'ing among hundreds. The young, upon being born, have all the appearance of pups of a New- foundland dog with flippers. On emerging from their warm resting place into the chill air, they utter a plaintive bleat not unlike that of a young lamb. The mother fondles them with many demonstrations of affection, and they begin nursing soon after their birth. * * * . The j^ ng seals require the nourishing care of their mother for at least four months, and pups have been killed on the island late in November the stomachs of which were filled with milk * » * The pups are afraid of the water ; they Lave to learn to swim by re- peated efforts, and even when nble to maintain themselves in the quiet SUMMARY OF THE EVIDENCE. 2(;3 the 8ttb- tlie cows ;round as and the anger ap- 1 of seals, place and erics, and ler's milk There is eral miles i are horn ter's edge, surf. The )leating of I years old old before s they stay 9 accuracy, ily for food, of fur-seal ' referred to actory upon connection n days, the compelled be properly male, ever e seal seem able that in « ♦ • short dnra- of its life, ■ill recognize )3 of a New- ■estiug place t of a young of affection, for at least ovember the swim by re- in the quiet waters v,'>" rush :n frantic and ludicrous haste away from an approaching wave. I have taken pups 2 or 3 weeks old and carried them out into still water and they awkwardly, but in terror, floundered toward the shoi'e, although they could have escap( d me by going in the other direction. In three tiials, paddling in all about 60 feet, the pups became so exhausted that they would have been Jrowned had I not rescued them. If the pups, when collected in groups or pods near the shore, were to be overtaken by even a moderate surf, they would be drowned, and such accidents to tbem do occur on the island before they have entirely mastered the art of swimming. Charles Bryant has been quoted in connec Jon with other propositions contained in the Case of the United States. He testifies upon this point as follows (ibid., p. 5) : The pup is nursed by its mother fi-om its birth so long as it remains on the islands, the mother leaving Ihe islands at different intervals of time after the pup is 3 or 4 days old. I have seen pups, which I had previously ma ked with a ribbon, laft for throe or four days consecutively, the mothers going into the water to feed or bathe. A mother seal will instantly recognize her offspring from a large group of pups on the i-ookery, distinguishing it by its cry and smell ; but I do n(»t think a pup can t«ll its own mother, as it will no.«e about any cow which comes near it. A female seal does not fuckle any pup save her own, and will drive away any other pups which approach her. I am positive that if a mother seal was killed her pup must inevitably perish by starvation. As evidence of this fact, I will state that I have taken stray, motherless pups found on the sand beaches and placed them upon the bi-dediug rookeries beside milking females, and in all instances these pups have finally died of starvation. Testimony such as this must be conclusive, except on the theoiy of absolute and intentional perjury. It is a satisfaction to tho counsel for tliO United States to be able to state that no witness has been willing, so far as they know and so far as appears from the British Commissioners' Report, to nut himself upon record, with or without oath, as directly con- tradictiag these emphatic statements. John Fratis, a native of Ladrone Islands, went to St. Paul Island in 1869, married a native woman of that place, and became one of the people. Was mad3 a native sealer and resid J on the island from that time ou. His experience, therefore, is valu'iule. He says (ibid., p. 108) : The pups are born soon after the arrival of the cows, and they are help- less and can not swim and they would drown if put iuto water. Tiie pups have no sustenance except what the cows furnish and no cow suckles any pup but her wn. The pups would suck any cow if the cow would let them. After the pup is a few days old the cow goes into the sea to feed, and at first she will only stay away for a few hours, but as the pup grows stronger she will stay away more and more until she will sometimes be away for a week. ■■■it I 264 ARGUMENT OF THE UNITED STATES. Nnmerons other witnesses were called who agreed that the only meanH of sustenance for the pop while it remained on the island, that is, for three or four months after its birth, is its mother's milk, and that it would perish if deprived of the same. Upon this point the following tcsti- mony may be read : "William Healey Dall (ibid., p. 23) ; Samuel Falconer (ibid., p. 165) ; William S. Hereford (ibid., p. 35) ; Nicoli Krukoff (ibid., p. 135). H. W. Mclntyre says (ibid., p. 136) : Within a few days after landing (it may be but a few hours or even minutes, as I have seen) the female gives birth to her young, but one being brought forth each year. The reported occasional birth of twins is not verified. These little ones (pups as they are called) are comparatively helpless, particularly awkward in movement, and, unlike the hair-seal, are unable to swim. They are nux'sed by the mother, who, after copulation has taken place, is permitted by the old male to go at will in quest of food. At about six weeks old, the young gather in groups and shortly after learn to sAvim, but depend for a long period upon the mother for sustenance ; hence her destruction must result in the death of th^^ young through starvation. So, also, J. H. Moulton (ibid., p. 72). Mr. Noyes says (ibid., p. 82) : The pup is entirely dependent upon its dam fcr sustenance, and when it is a few days old she goes into the sea to feed, returning at intervals of a few hours at first, and gradually lengthening the time as the pups grow older and stronger, until she will be, sometimes, away for a whole week. During these journeys, it is my opinion, she goes a distance of li'om 40 to 200 miles from the islands to feed ; and it is at this time she falls a prey to the pelagic hunter. Returned to the rookery, the cow goes straight to where she loft her pup, and it seems she instandy recognizes the spot by smelling, and it is equally certain that the pup can not recognize its dam. I have often seen pups attempt to suckle cows promiscuously, yet no cow will suckle any pap bnt her own. J. C. Redpath (ibid., pp. 14S, 149) : No cow will nurse any pup but her own, and I have often watched the ^ups attempt to suck cows, but they were always driven off ; and tliis fact convinces mo that the cow I'ecognizes bor own pup and that the ])up dots not know its dam. At birth and for sevornl weeks after, the pup is utterly helpless and entirely dependent upon its dam for susten- ance ; and should anytlung prevent lier return during this period it dies on the rookery. This has been demonstrated beyond a doubt since tlie sealing vessels have operated largely in the Behring Sea during the months of July, August, and September, and which, killing the cows at the feeding grounds, left the paps to die on the islands. At about 5 weeks old the pups begin to run about and congregate in bunches or "pods," and at ti to 8 weeks old they go into the shallow. ■f.' !fF SUMMARY OF THE EVIDENCE. 265 water and gradually learn to swim. They are not amphibions when born nor can they swim for several weeks thereafter, and were they put into the water would perish beyond a doubt, as has been woll established by the drowning of pups caught by the surf in stormy weather. After learning to swim, the pups still draw sustenance from the cows, and I have noticed at the annual killing of pups for food, in Novem- ber, that their stomachs were always full of milk and nothing olso although the cows had left the islands some days befoi-e. I have no knowledge of the pups obtaining sustenance of any kind except that furnished by the cows ; nor have I ever seen anything but milk in a dead pnp's stomach. Daniel Webster asserts positively that the death of every mother caugm the death of her pup, ichich is entirely dependent upon her for its susteiiancr. Mr. Webster's testimony is valuable not only for its intrinsic value, bux. because its reliability is vouched for by the British Comnii.ssioners them- selves (Sec. 677). > ,, It will be observed that all the witnesses cited above are men spe- cially capable, of long experience and a knowledge or the subject sutti- cient to enlighton any court whose function it may be to ascertain the facts connected with seal life. Such testimony can not fail to bo con- clusive in the judgment of this Court, unless it should be rejected as willfully and intentionally false. No ground for such a wholesale impu- tation upon the character of apparently intelligent and reputable men can be suggested. The functions of every court of justice become im- possible, and decisions on questions of fact must bo left to the caprice of judges, if such testimony may be arl rily disregarded. Sui-cly the conjectures and conclusions of an adversiirs .supporteii hy the sliglitest pretense of proof, in a legal sense, can not be deemed i sutiicient ground for such a charge. However high may be the chaiactei of the Br-'ish Commissioners for intelligence and integrity, their bald assertions can not take the place of those aids to judicial investigation which the e.\. perience of all civilized nations has shown to be indispensable. It would, indeed, be a difficult task for the Arbitrators to reach any conclu.sion as to the matei'ial questions of fact in this case if the example of the British Commissioners had been followed by the Commissioners of the Unif' ' States and both sides had confined themselves to conjectural a- ii.-? and partial and unsatisfactory deductions from uncertain premises. A manifest disposition to perform the part of an advocate rather than the duty of an aid to the court in the ascertainment of the truth, must detract largely irom the value of the work performed by the Commissioners foi- Great Britain. , , , , », ,„, • .^ ir -!:«•: 266 AEGITMENT OP THE UNITED STATES. VI. — The Cows, whilk Suckling, go to tbe Ska for Food and Some- times TO DiSTAN'CES AS GbEAT AS OnE HuNDKED AND TwO HuNDSi;i> Miles, and are nuRiNa such Excursions Exposed to Capture by Pelagic Sealers. Tbe statement in the Case of the United States is as follows (p. 115) : Necessarily, after a few days of nursinj? Iter pup, tlie cow is compt-lled to seek food in order to provide s*' iicient nourishment for her offspi-ing. Soon after coition she leaves the pup on the rookery and goes into the sea, and as the pup gets older and stronger, these excusions lengthen accordingly until she is sometimes absent from the rookeiies for a week at a time. The absolute correctness of this statement is demonstrated in the evi- dence. A cow nurses only her own i^up. The importance of deciding this question correctly makes it necessary that wo should give special at- tention to the evidence upon the subject. The British Commissioners have taken a different view and are Avithout support in the general understanding of men as to the practice and probabilities in such cases. It is easy to demonstrate that the assertion on page 115 of the Case of the United States, to the effect above stated is borne out by overwhelming proof. Kerrick Artomanoff (Appendix to Car.« of the United States, Vol. 11, p. 100) says : The mother seals know their own pups by smelling them and no seal will allow any but her own pup to suck her. Thomas F. Morgan (ibid., p. 02) says : After birth a pup at once begins to suckle its mother, who leaves its offspring only to go into the water for food, which I believe from iT>y observation consists mainly of fish, squids and crustaceans. In her search for food the female, in my opinion, goes 40 miles or even further from the islands. The pup does not appear to recognize its mother, attempting to draw milk from any uow i( comes in contact with ; but a mother will at once recognize her own pup ind will allow no other to nurse her. This I know from often observing a cow tight off other pups who approached her, and search out her own pup from among them, which I think she recog- nizes by its smell and cry. Mr. Morgan's testimony is very explicit and is based upon long experi- ence and continued observation. Samuel Falconer, at one time deputy collector of customs, and vvUosc testimony has been quoted on other points, gives the resulls of his actual observations. He says (ibid., p. 164) : The place of birth is on the breeding grounds, which takes place aft(Br ^ho feinale la^ds, generally within two days. When first born SfT.MMAFY OF TTTE nvrPEVC R. 2(u Ni) SOME- PTUBF. BY ^115): corapt'lletl offspring. ;8 into the i lengthen f a week at in the evU ciding this special at- mmissioners the general sucU cases. , Case of the fcrerwlielming ates, Vol. 11, and no seal ho leaves ils .e from n^y n her seai'ch ler from the attempting to nother will at her. This I >roached hev, ak she recog- u long oxperi- is, aud tvuose of liis actual takes place en first born 11 the pup can not swim, and does not lenrn so to do until it is six or eight weeks of age. Jc is therefore utterly impossible for a pup to bo born in the water and live. I have noticed that when a pup of this age is put in the water it seemed to have no idea of the use of its flipnci's, and was very much terrified. A pup is certainly for the first six or eight weeks of its life a land animal, and is in no sense amphibious. Dnrin.(if this period also a pup moves very much like a young kitten, using its hind flippers as feet. A mother seal will at once recognise hev pup by its cry, hobbling over a thousand bleating pups to reach her own, and every other approaching her, save this one little animal, she will drive away. • * * A pup, however, seems not to distinguish its mother from the other females about it. , , William Healey Uall, a scientist whose studies were completed under Prof. Louis Agassiz, at Cambridge, in the year 1863, and who has been since that time engaged in scientific work, gave the result of his personal examination made during the several years that he visited St. George Island and the Aleutian Islands. His opportunities to familiarise him- ,«ielf with aquatic seal life were excellent and are fully detailed in his deposition on pages 23 and 24 of the Appendix to the Case of the United States. He says : From my knowledge of natural history and from my observations of seal I'fe, I am of the opinion that it would be impossible for the young seals to be brought forth and kept alive in the water. When it is the habit of an animal to give birth to its young upon the land, it is contrary to biologic teaching and common sense to suppose they could successfully bring them forth in the water. It does not seem to me at all likely that a mother would suckle any pup other than her own, for I have repeatedly seen a female select one pup from a large group and pay no attention to the solicitations of others. Pups require the nourishment from their mothers for at least three or four months after their birth, and would perish if deprived of the same. I have had ample opportunity to form an opinion in regard to the effect upon the lierd of killing female seals. The female brings forth a single offspring annually, and hence the repair of the loss by death is not rapid. It is evident that the injury to the herd from the killing of !i, single female, that is, the producer, is far greater than from the death of the male, as the seal is polygamous in habit. The danger of the herd, therefore, is just in proportion to the destruction of female life. Killing in the open waters is peculiarly de.structivc to this animal. No discrimination of sex in the water is possible, the secui-ing of the prey when killed is under the best of circumstances unccrtuin, aud as the period of gestation is at least eleven months and of nursing three or four months, the death of the fe».iale at any timo means the destruction of two, herself and the foetus ; or when nursing, three — herself, the nursing pup, and the foetus. All killing of females is a menace to the lierd, and as soon as such killing reaches the point — as it inevitably must if permitted to continue — where the annual increase will not make good the yearly loss, then the destruction of the herd will be equally rapid and certain, regarded from a commercial standpoint, though a few individuals might survive. Karp Buteriu, a native of St. Paul Island, ou which island he had lived [317] . .§ m !!' L'(;s AlUiUMEiNT OK THE UNITED STATES. lip to tilt! time of making bis depositiuii, when he was 39 yeurH uf age, liad been engaged in driving Heals, clubbing and skinning them ever since he was able to work; he says (Appendix to Case of the United States, Vol. II, p. 103) : Schooners kill cows, pups die, and seals are gone. Some men tell me last year, " Karp, seals are sick." I know seals are not sick ; I never seen a sick seal, and I eat seal meat every day of my life. * ♦ * No big seals d'-" unless we club them ; only pups die when starved, after the cows are shot iit sea. When we used to kill pups for food in November they were always full of milk ; the pups that die on the rookeries have no milk. The cows go into the sea to feed after the pups are bom, and the schooner men shoot them all the time. ... riv \.,;.t ;;.;•. , i '.i j-.vw • •. i> The same rule as to exclusive nursing of her own pups by the cow is proven to exist in the Antarctic regions by Mr. Comer. ' George Comer (tttd., p. 598) says : iwi^ »..in ,„u,.... I have never seen a " clap-match " suckling more than one pup, and it is my impression that a " clap-match " would not nurse any pup except her own, for I have seen her throw other pupa aside and pick out one parti- cular one from the whole number on the rookery, Anton MelovedofE, a iiative of Alaska, testiGes as follows (ibid., p. 144) : When the pup is born it is utterly helpless and would drown if put into water. Those born nearest the water are often drowned in the surf when the sea is rough in stormy weather. When the pup is a few days old the cow goes into the sea to feed and as the pup grows older the cow will stay longer and longer until sometimes she will be away for a week. When the cows return they go to their own pups, nor will a cow suckle any pup but her own. The pups would suck any cow that would let them, for they do not seem to know one cow from another. H. H. McTntyre, to whose valuable deposition attention has been hereto- fore called, uses this language (liicZ., p. 41) : ,. . -. ,;iVihn ■..) 'ifHj ,m&i»«i [317] H 2 Kil: m 270 ARGtTMENT OF THK tTNlTED STATES. ■ So many witnesses have testified upon this point, and it is so doubtful whether any testimony at all is needed if it be established that the pup depends wholly upon its mother, that we shall confine ourselves to brief abstracts. George Ball (Appendix to Case of the United States, Vol. II, p. 481), a shipmaster and a sealer, does not hesitate to say that the pups perish with the cows that he and his companions kill. William Brennan sums up the situation with the conclusive ai'gu* ment that " it stands to reason that if the mothers are killed while away from the island and the pups are left there alone they will surely die, and it is a fact tb.at many mothers are killed in Bering Sea " (ibid., p. 363). Henry Brown, seaman, engaged in pelagic sealing and residing at Victoria, British Columbia, gives his experience in the slaughter of gravid females as well as the females taken in the Bering Sea which arc not gravid, he says : These were cows in milk. Every seal captured causes the death of either an unborn pup or the death of a young pup by starva- tion on the islands. He says (ibid., p. 318) : If pelagic sealing is continued, especially with guns, in a few years the seal herd will become commercially destroyed. Luther T, Franklin, a seal-catcher, being asked, "Do the pups perish with the cows that you kill ^ " answered, " naturally they must." (Ap- pendix to Case of the United States, Vol. II, p. 426.) Charles Lutjens teptities, with probably unconscious force, as to the brutality of the occupation in which he is engaged (ibid., p. 459) : Q. Do the pups perish with the cows that you kill ? — A. Certainly Not alone that, but they generally leave, while they go into the Bering Sea, a pup on shore, which also dies from not being able to get any sustenance. The seal which is killed in the Bering Sea may be with pup aipd also has a pup on shore, which made the killing three seals to one. Alexander McLean says that if you kill a female seal you kill the pup with her (ibid., p. 437). , . For other testimony upon this point, see Daniel Claussen (ibid., p. 412), Luther T. Franklin (ibid., p. 425), Louis Kimel (ibid., p. 174), and many others testifying to the same fact. Multiplication of extracts could not add to the force of testimony so raasonable and conclusive upon its face. Indeed, the evidence is so complete that the victims of pelagic SUMMARY OF THE EVIDENCE. .;.j 4 " *w 271 slaughter are mainly, if not wholly, females, as to forbid contmrliction. We accordingly find that the British Commisaioners make this admib< sion: " It is undoubtedly true that a considerable proportion of the seals taken at ^sea are females, as all seals of killable size are killed without discrimination of sex " (Sec. 78). It is true that they hasten to add that this disproportion is due in part to the persistent killing of young males on land. Possibly this may be true. Undoubtedly if the poachers found killable males as well as gi'avid females, they would slaughter both and the disproportion would be less marked. But the Commissioners do not pretend that the absolute number of females killed would be any smaller. The pelagic hunter would kill them all with indiscriminate impartiality. How the situation would be helped by this is not stated, although it may show how the scope of the business might be enlarged. This curiosity is stimulated, but not satisfied, by the admission that their disproportion is in part explained as stated ; it might have been just to the Tribunal to state what else might be said to thi-ow light upon the subject. , , > . . The cows, while suckling, go to sea for food and sometimes to distances as great as 100 to 200 miles, and are during such excursions exposed to capture by pelagic sealers (see Case of the United States, p. 115). The ctatement in the Case to this effect is borne out by the testimony and by fully substantiated facts. The vagueness of the statement made by the British Commissioners fails to conceal the evident intent to create the impression that the females, like the males, may live and nurse their young for a long time without food. In section 307 of their Report this language is used : - . ou kill the pup It is very generally assumed that the female, on thus beginning to leave the rookery ground, at once resumes her habit of engaging in the active quest for food, and though this would appear to be only natural, particularly in view of the extra drain produced by the demands of the yoang, it must be remembered that, with scarcely any exception, the stomachs of even the bachelor seals killed upon the islands are found void of food, and that all seals resorting to the islands seem, in a great degree, to share in a common abstinence. The concession of an extra drain upon a nursing female is generously followed up by the statement " that it may be considered certain that after a certain period the females begin to seek such food as can bo obtained." It is then stated that " there is a very general belief among the natives, both of the Pribilof and Commander islands, to the effect that the females do not leave tlie land to feed while engaged in suckling !^;i; 272 ARGUMENT OF THE UNJTED STATES. their young." That there is any snch general boliof ih most stroiinoiiHly denied on tho part of the United States, is disprovon by the few witnesses cited by tho British Coramissionors .themselves, and is negatived over- whelmingly by the testimony on tho part of the United States. Tho painful attempt to justify pelagic sealing by distortion of commonly accepted facts is nowhere more apparent than it. section 308 : It appears to us to bo quite probable, however, that toward tho close of the season of suckling, the female seals may actually begin to spend a considerable portion of their time at sea in search of food. It is unlikely that this occurs to any notable extent until after tho middle of September, before ivhich the seaton of pelagic sealing in Bering Sea prac- tically closes. Comment would be absurd on this. ' ' ' *' " Bryant," says the Bi'itish Commissioner, " after describing the i-elaxa- tion in watchfulness of tho male after impregnation has been accomplished, says of the female : ' From that time she lies either sleeping near her young or spends her time floating or playing in the water near the shore, i-eturning occasionally to suckle her pup.' " •-'■• •<■ <■ ; .. That she should go to the water to play and float and neglect the opportunities of replenishing her energies, wasted as they are by nursing, seems utterly incredible. It is well to note the admission, however, that during this period tho suckling is on land whither she returns to accomplish it. Elliott is quoted in the same section as stating that " tho mother nurses her pup every two or three days," but adds, " in this I am very likely mistaken." Again, Elliott says of the mother, coming up from the sea, that " she has been there to wash and perhaps to feed for tho last day or two." In /another reference given by the British Commissioners from tho same authority, he is made to say : . ., : i^, Soon after the birth of their young, they leave it on the ground and go to the sea for food, returning perhaps to-morrow, perhaps later, even not for several days, in fact, to again suckle and nourish it, having in the meantime sped far off to distant feeding banks. (Sec. 309). , ., , ; It will be observed that this agrees entirely with the testimony produced by the United States. Tho rejiort then goes on to cite authorities showinj,' how far the cows go out for food. Taylor is quoted as saying that they go out every day a distance of 10 or 15 miles, or even farther. T. F. Ryan says that tho main feeding grounds of the seal during the summer stay upon the islands, and to which the cows are continually going and coming, are to be found 40 to 70 miles south of St. George Island. ,11 ••:••:•■ ,•) -r -j-vr. k .-if! R'Hiji.j d -.-I'i J . SCMMABY OF THK KVIDKMK. '^' !73 G. R. Tingle, in the same report cited, says the sou!-: pi-ob-vbly go *20 mileH oat, in some oases, in searnh of fond. The British Commissioners, in this exceptional iiistancK, ai-j to bo cred- ited not only with having been diligent, but with disolosing the names of the persons fi'om whom information was obtained. It might have been desirable that these statements should be mado in tho language of the persons themselves. However, we quote it as it is givon us. Tingle, in section 312, extends the feeding area from 20 milos, which ho has named above, to 80 or rvon 40 miles from tlio laud. Ucdpath did not know of the feeding grounds, but believed that the females go from 10 to 16 miles from the islands for tho purpose of feeding. Daniel Webster (whom they graciously indorse as a truthful witness) concurred with Ryan, and expressed the opinion that when feeding in the autumn the seals ivent 60 iniles to the southward of St. (tconje Island. Ho be- lieved that there was a favorite feediiK/ ground in that vicinity, and stated tho reasons of this belief. Mr, Webster is a reliable and intel- ligent witness, who has frequently been quoted by the American Com- missioners. While he does not state tho di.stance as being more than (jG miles, he certainly places it, with other reliable witnesses, suilicieutly far out to sea to enable the poachers to destroy this class of seals. It may not bo material whether tho distance be 60 or 100 miles : when the men bent upon slaughtering seals, irrespective of condition and sex, have discovered the feeding grounds of the mothers, all that they will ask is that the distance be sufficiently great to secure to them immunity in their destructive work, Mr. Fowler stated to the Commissioners (Sec. 312) that ho believed that there was a favorite feeding ground of tho seal about 30 miles off the north-east point of St. Paul's Island, This was not from personal knowledge, but dependent upon statements that seals had been seen in abundance there. That the seals caught on the feeding grounds must be females is the conclusive inference from the statements and ai-gument of the British Commissionei'S themselves. They state that all seals resorting to the islands seem in a great degree to share in a common abstinence, and tissert that the stomachs of even the bachelor seals killed upon the islands are found void of food. As all tlio authorities cited by them confine themselves to the females, it is worse than idle to argue that those which resort to the feeding grounds are either old males or young ones. The statement is attributed to natives of St. Paul that tho females from 11 'i^l' y.\ 'U 'hi;i 274 AROUMLNT OF THK UNITED HTATES. tho rookorios went only Hor 4 miles to soa, and alwayH rcturnod to thoir young on Hhore tho same day (Soc. .S12). A stiitumcnt so vagae as to names and qualitications hardly deserves notice. It may be important, however, an whowing that the nacives have observed tjiat femalcH do return to their young for the purpose of nursing them. Air. Grebnitsky did not agree witii most of tho natives, who thougiit, "that the females did not fm-d during this period," but stated as tho result of his own personal observation and long experience that they went out to seu while suckling the young, but not further than half a mile or a mile from the shore. If food is to be procured so near the land by the mother, it may be that when she was seen floating or playing in the water near tho shore by Mr. Rryant, and then returning occasionally to suckle her pup, sho had also been employed upon the more proBtable mission of securing,' milk-producing nuvterial. iSnegiloff thought that the females leave their young for several days to go as far as 10 miles from land to feed, while Klugo, the agent of the Russian Government in charge of the Copper Islands, thought that the females went us far as 2, 3, or 4 miles, but returned to the rookery every night. To this undigested mass of information, thus unsatisfactorily reportoti, the magnanimous admission is added that " it is certain from statement., obtained that females with milk are occasionally killed at sea by the pvlayic sealers." (Sec. 314). We may conclude from all this testimony on tho pa of tho Britisii Commissioners that the seals which leave the rookeries are almost ex- clusively, if not wholly, female seals, nursing their young and seeking food, and that thej- proceed to gi-eat distances in some cases, and are found in feeding grounds which may be from 40 to 60 miles distant from the land. It now remains to be seen what testimony is offered on tho part of the United States to satisfy the judgment and conscience of the Court which is to determine this, one of the most important elements ia the controversy. . . .... . Assuming all the parties, who have given the information to the Commissioners of Great Britain and to the United States, for the I'e- spective countries to testify fairly and honestly, it is elementary that, where positive evidence of a fact is presented and negi.tive evidence on the other side, the positive evidence shall b? credited ; otherwise the effect would be to stamp one party with perjury because what he is stated to have seen or said or heard or done was unnoticed or unobserved SUMMARY OF THK EVIDENCE, ia 27"). by the witness testifying in the negative. If, tliorofore, tlio sworn testi- ntony of reputable persons is produced extending tliu area in whicli thu female seals have boon ubservod in quoMfc of food, preference must be given to tlioni rather than to those wtiu'ssos whose opportunities may not have been the sanio or whoso ])owors of observation may not have been equal. Where witnesses testify ponitlveli/ that they have seen and killed seah ovc. 100 miles from land, can they be truly said to be contradicted as to tho fact by men who say that they have never soon them more than 60 miles from tho shore Y Peter Anderson (Appendix to Case of tho United States, Vol. II, p. 312), a seal-hunter, agrees with Mr. Webster, who is quoted by the British Corn* raissioners. He says : A large majority of the seal taken on the coast and in Bering Sea are cows with pup in the Pacific Ocean and with milk in Bering Sea. A few young male seal are taken in the North Pacific Ocean, from two to three years old. Have never taken an old bull in the North Pacific Ocean in my life. A few yearlings have been taken by me, but not many. Used no d'scrimination, but killed all seals that come near the boats. The best/ ,vay to shoot seal to secure them is to shoot them ii; tho back of the head when they are asleep with their noses under water. Have never known any seal pups to be born in the water nor anywhere else in Alaska outside of the Pribilof Islands, nor have 1 ever known fur-seal to haul up anywhere on the land except on the Pribilof Islands. Have taken females that were full of milk 60 miles from the Pribilof Islands. _ ■ , . . . ,!> j ;., , John Armstrong (Appendix to Case of the United States, Vol. II, p. 1), who had been during many years agent of the Alaska Commercial Com- pany and lived for tho whole of ten years upon St. Paul Island, observed that very few seals go out to sea to feed during June, July, and August, except females and some of the younger seals. He adds : 1 am asked whether the seals copulate in the water. It is a question that is often discussed at the island, and neither the scientific observers nor the uuscientitic are able to agree about it. 1 have seen seals in posi- tion when it seemed to be atti'nipted, but doubt whether it is effectually accomplished. If it were, I think we should see pups sometimes bom late and out of season, but such is not the case. ii..) . -t i ■. > Kerrick Ai-tomanoff (ibid., p. 99) worked on the sealing grounds for the last fifty years. His deposition is well worth reading. It may !»e found at page 99. He accounts for the decrease in the number of seals sii.co 1874 by the destruction of the femaler.. He states that in 1887 and 1891 the rookeries were covered with dead pups. In his sixty-neven years' residence on the island he never saw anything like it bi^fore. No .sickness was ever known among the pups or seals, and he had never seen any dead 'ill if 276 ARGUMENT Or THE UNITED STATES. pupg on the- rookgries, except the few killed by the old balls when fighting or by drowning when the surf washed them off (ibid., p. 100) . He states that four or five days after the birth of the pup the mother seal leaves her offspring and goea away in the sea to feed, and when the pup is two or three weeks old the mother often stays away five or six days at, a time. William C. Bennett (ibid., p. 356) had been a seal hunter all his life ; he was 32 years old at the tirie of deposing. He had hunted the seal with spear and sometimes with a shotgun. Most of the seals taken by him were cows. He thought that the cows slept more and are more easily approached. The sex of the seal not being ascertainable in the water, he shot everything that came near his boat, and when the seal is shot dead it sinks very quick and is hard to secure under those conditions. He also agreed with the other witnesses that seals were decreasing in number very fast, and he attributed this to the indiscrimiuato killing iii the water. Joseph Stanley-Brown, a geologist, whoso testimony on other points has heretofore been givpn attent'on, says : . . For the first few days, and possibly for a week or even ten days, the female is able to nourish her young or offspring, but she is soon compelled to seek the sea for food, that her voracious young feeder may be proporly nourished, and this seems to be pe-mitted on the pPirt of the male though under protestation. The whole physical economy of the seal seems to be arranged for alternate feasting and fasting, and it is probable that in the early days of its life the young seal might be amply nourished by such mil!, as tho mother might herself afford without resorting heraelf to the sea for food. John C, Cantwell (ibid., p. 408), second lieutenant in the United States Revenue Marine, had been on duty in Behring Sea during the years 1884, 1885, 1886, and 1891. He had paid particular attention to the seals, and whenever opportunity offsred had visited the rookeries for the purpose of photographing and sketching the animal, etc. He had boarfied a lax'ge number of vessels fitted oa> ap sealers and engaged in sealing, and had conversed with the masters and crews on tho subject of pelagic sealing. TIu'h is his testimony : From information gathered from these and other sourcea, and by com- parison of testimony given by the seal hunters, would say that at least 60 per cent, of seals killed or wounded escape and are never recovered, ancl that 75 per cent, of seals shot in the North Pacific Ocean are females heavy with young, and that 80 per cent, of spaIh shot in Behring Sea from July 1 to September 15 are females, most of which have givcij birth to their young, and are mostly caught while feeding at various distances from land. SUMMARY OF THE EVIDENCE. OT:: Is when p. 100). )ther seal he pup is I days at. his life; . the seal taken by are more )le in the the seal is jonditiuns. [•easing in killing ill points luiH 1 days, fcho compelled )e propoi'ly lale though seems to be that in the led by such rself to th'J lited States years 1884, e seals, and 3 purpose of fied a largo ag, and had igic sealing. md by com- bat at least f recovei-eil, L are females ng Sea from Veil birth to stances from Capt. Carthcut (ibid,, p. 404), a master mariner, engaged in hunting the fur-seals for 10 yearn, extending from 1877 to 1887, during the latter part of the time in Bering Sea, speaks on his personal knowledge, and makes a valuable contribution to the knowledge which we have upon the subject. One of the reasons which he assigns for the great slaughter of female seals is that maturity makes tbem tame and easily approachable, He says : About 80 j)er cent, of the seals I caught in the Behring Sea were mothers in milk, and wore feeding around the fishi"g banks just north of the Aleutian Islands, and I got most of my seals from 50 to 250 miles from the seal islands. I don't think I ever sealed within 25 miles of the Pribilof Islands. They are very tame after gi\4ng birth to their yonng, and are easily approaciied by the hunters. When the females leave the islands to feed, thiy go very fast to the fishing banks, and after they get their food they will go asleep on the waters. That is the Hunter's great chance. I think we secured more in propoi'- tion to the number killed than we did in the North Pacific. I hunted with shotgun and rifle, but mostly with shotgun. Seals were not nearly as numerous in 1887 as they were in 1877, and it is my belief that the decrease in numbers is due to the hunting and killing of female seals in the water. I do not think it possible for seals to exist for any length of time if the present slaughter continues. The killiag of the female means death to h 3r born or unborn pup, and it is not reasonable to expect that this immenae drain on the herds can )e continued without a very rapid decrease in their numbers, and which practically means extermination within a very few years. - ..i. Christ Clausen {ibid., p. 319), a master mariner, was engaged in seal hunting as mate of the .British schooner C. H. Tupper, in 1889, He resides at "Victoria, British Columbia, and also was navigator in the British schooner Minnie. His testimony is worth reproducing some- what extensively. Unless willful perjury be attributed to him, his testimony, based on actual observation and experience in the business of slaughtering seals, should be accepted as conclusive on several of the points under consideration : / '• The Indian hunters, when they use speais, saved nearly every one they struck. It is my observaHon and experience that an Indian, or a white hunter, unless very expert, will kill and destroy many times more than he will save if he uses firearms. It is our object to take them when asleep on th(i water, and any attempt to capture a breach- ing seal generally ends in failure. The seals we catch along the coast ai'i^ nearly all pregnant females. It is seldom wo capture an old bull, and what males we get are usually young ones, I have frequently seen cow seals cut open and tlie iinboi'u pups cut out of them and they would live for several days. This is a frequent occurrence. It is my experience that fully 85 per cent, of the seals I took in Behring Sea were f on. ales and had given birth to their pups and their teats would be ■I: 278 ARGUMENT OF THE UNITED STATES. full of milk. I have caught seals cf this kind 100 to 150 miles from Pribilof Islands. It is my opinion that speare should be used in hunting seals, and if they ai-e to be kept from extermination the shotgun should be discarded. Peter Collins, also engaged in sealing as a sailor, testified as to the manner of shooting the seals (I'ttc?. , p. 413). Fully three-fourths of the seals shot in the North Pacific, ho says, were females with young. He swears that he has seen mothers with iheir breasts full of milk killed 100 miles or more from the seal islands. He knows that they go great dis- tances for food. His testimony is that of a practical man who evidently entertained no prejudice on the subject of killing the mothers with bi-easts full of milk. He was apprehensive, however, that his business would be destroyed. He says : There were not nearly as many seals to be found in 1889 as there were in 1888. J think the decrease was caused by the great destruction of females killed in the sea by the hunters, and if something is not done to protect them from slaughter in the North Pacific and Behring Sea, they will all be gone in a few years. Capt, Coulson {^ihid., pp. 414-416), of the United States Revenue Marine, makes a very interesting deposition. His experience was practical and extensive. Ho says : In company with Special Agent Murray, Capt. Hooper, and Engineer Brerton, of the Corwm, I visited the reef aud Gobatch rookeries, St. Paul Island, in August, 1891, and saw one of the most pitiable sights that I have ever witnessed. Thousands of dead and dying pups were scattered over the rookeries, while the shores were lined with emaciated, hungry little fellows, with their eyes turned toward the sea, uttering plaintive cries for their mothers, which were destined never to return. Numbers of them were opened, their stomachs examined, and the fact revealed that starvation was the cause of death, no organic disease being apparent. The great number of seals taken by hunters in 1891 was ti) the west- ward and north-westward of St. Paul Island, and the largest number of dead found that year in rookeries situated on the west side of the island. Tliis fact alone goes a great way, in my opinion, to confirm the theory that the loss of the mothers was the cause of mortality among the young. After the mother seals have given birth fo the?r young on the islands, they go to tlie water to feed and bathe, and 1 have observed them, not only around the island, but from 80 to 100 miles out at sea. In difterent years the feeding grounds or the location where the greater number of seals are taken by poachers seem to differ ; in other words, the seals frequently change feeding grounds. For instance, in 1887, the greatest number of seals were taken by poachers between Unamak, Akatan Passes and the seal islands, and to the south-west- ward of St. Georgu Island. In 1880, the catching was largely done to the southward and eastward, in many cases from 50 to 150 miles dis- tant from the seal islands. In the season of 1890, to the southward StfMMAK'V OF THE EVIDENTE. 270 where tho ip; ill othei" and westward, also to northwest and northeast of the islands, showing that the seals have been scattered. The season of 1891, the greatest number were taken to northward and westward of St. Paul, ar. d at various dis- tances from 25 to 150 miles away. Tlie testimony of such a witness, speaking of his knowledge, declaring upon his o,.ih that he had seen females feeding 80 to 100 miles from the Pribilof Islands, ought to outweigh the negative and loose statements of any conceivable number of natives or other informants upon whom the British Commissioners have relied. Charles Challall (ibid., p. 410), a sealer who had been sealing up the coast and in Bering Sea three seasons, testified as follows : Most of the seals we killed up the coast were females heavy with pup. I think nine out of every ten wei'c females. At least seven out of every eight seals caught in the Bering Sea wore mothers in milk. The vessels I went out in had from four to six boats each. Each boat had three men, a hunter and two pullers. The average hunter Avould get one out of every three that he shot ; a poor hunter not nearly so many. There are twenty-one buckshots to a shell. T think a great many seals are wounded by hunters that are rot taken. The gunshot wounds more seals than the rifle. I think the aim of the hanter is to kill the seal rather than to wound it. When they ai-e in schools sleeping we get a good many. We did not get as many we shot at in the Bering Sea as we did on the coast. If we got one out of every three that we wounded in the Bering Sea we were doing pretty well. I do not know of any place whei-e the seals haul up on this coast except on the seal islands. Mr. W. H, Dall (upon whose manuscript note, said to have been supplied to Prof. Allen, the British Commissioners rely to show coition in the water). He testifies to having seen seals in the water of Bering Sea 100 miles or more from the Islands. His testimony, too, seems conclusive, if he is a reliable witness. This is his language : The Pribilof Islands are the chosen home of the fur-seal (Callorhinns ursinus). Upon these islands they are born ; there they first learn to swim, and more than half their life is spent upon them and in the water adjacent thereto. Here they ijice birth to their yoimf/, breed, nurse their pups, and go to and from their feeding grounds, vdiich inag he miles distant from the islands. I have seen seals in the waters of Bering Sea distant 100 miles or more from the islands at various ^^^imes between the 1st of July and October. These seals tueni donhtless in search of food, which coiisists, according to my observatiou, of fish, squid, crustaceans, and even mollusks. Upon the approach of winter the seals leave their homes, influenced doubtless by the severity of the climate and decrease in the food supply (Appendix to ('ase of the United States, Vol. II, p. 23). James Henry Douglas (ibid., p. 419), was by occupation a master and pilot of vessels, and had had long experioaoe sailing iu the North Pacific M 280 ARfilMENT OF THE I'xMTED STATES. and Bering: Sea; hud gone to tbo seal islands in the latter sea over twenty years ago, and been there many times subsequently while in the employ of the Government. He testifies that his observation and information agreed with that of many other witnesses. He says : My information and observation is that a very large proportion of those killed along the coast and at sea from Oregon to the Aleutian Islands are female seals with pnps ; I think not less than 95 per cent. The proportion of female seals killed in the Bering Sea is equally large, but the destruction to seal life is much greater owing to the fact that when a mother seal is killed her suckling pup left at the rookery also perishes. Impregnation having also taken place before she left the rookery in search of food, the foetus of the next year's birth is likewise deslroyed. I also found that females after giving birth to their young at the rookeries seelc the codfish hanks at various points at a distance of from 40 to 125 miles from the islands for food, and are frequently absent one or moi-e days at a time, when they return to find their young. I have noticed that the females when at sea are less wild and distrustful than the bachelor seals, and dive less quickly in the presence of the hunter. After feeding plentifully or when resting after lieavy weather they appear to fall asleep upon the surface of the water. It is then they become an easy target for the hunters. ,r'. ■, ,: t, . George Di.show, of Victoria, British Columbia, was by occupation a seal hunter and pursued that business six years {ibid., p. 823). ■ I use a shotgun exclusively for talcing seal. Old hunters lose but very feir Heals, but beginners lose a great many. I use the Parker shotgun. A largi' proportion of all seals taken are females with pup. A very few yearlings are taken. I never examined them as to sex. But very few old bulls are taken, but five being taken out of a total of 900 seals taken by my sc?»ooner. Use no discrimination in killing seal, but shoot everything that comes near the boat in the shape of a seal. Hunters shoot seal in the most exposed part of the body. Have never known any pups to bo born in the water, nor on the land on the coast of Alaska anj'where outside of the Pribilof Islands. Have never known fur-seal to liaul up on the land anywhere on the coast except on the Pribilof Islands. Most of the seals taken in Bering Sea are females. Have taken them 70 miles from the islands that luere full of milk. I think a closed season should be established for breeding seal from January 1st to August 15th in the North Pacific Ocean and Bering Sea. George Fairchild (ibid., p. 428), made a sealing voyage to the North Pacific Sea as sailor on the Sadie Cljde, sailing from Victoria on the 10th of April, 1888. They went noi'th to the Bering Sea, sealing all the way n]), and got 110 seals before entering the sea : "3fofi/ (if them," he says, ^^ were coivs, nearly all of which had pups in them. We took some of the pups alive out of the bodies of the females. We entered the Bering Sea May 25, and we got 704 seals in there, the greater quantity of which were females with their breasts full nf milk, n fact which I knoiv by reason of having seen the itiilk flow on the deck when SUM MA It V OF THK KVir)KN(K. 1:8 I tJiey wet-e heimj skinned. We had 5 boata on buard, ouch bout huviu^ a liunter, boat puller and steerer. We used shotguns and rifles. We got one oat of every 5 or 6 that we killed or wounded. We wounded a great many that we did not get. We caught them from 10 to 50 miles off the seal islands." : This is the sportsmanlike method of hunting seali? of which the British Commissioners speak in terms of undisguised admiration ! • ' i" ' • ^liH't Samuel Falconer (ibid., p. 165), deputy collector of customs in 1868 and 1869, then puinser on board the steamer Constantine, was also in charge of St. Paul Island several years. It was a part of his duty to make a very careful and full study of seal life. It was his opinion that if a pup lost its mother by any accident it tcould certainly die by starvation. When the young seal are 6 or 8 weeks of age their mothers force them into the water and teach them to swim. After repeated trials the pup learns to swim, and from that time on spends a great deal of time in the water, but still the greater portion of these first months of its life are spent on land sleeping and nursing. , , ,; ■ . < , '-, . •; - . !.>$, jp The cow, after bringing forth her young, remains on the rookery until again fertilized by th« bull, which is, I believe, within two weeks. After the fertilization she is allowed to go to and from the water at will in search of food, which she must obtain so she can nurse her pup. She goes on these feeding excursions sometimes, I believe, 40 or more miles from the island, and as she swims with great rapidity, covers the distance in a short time. She may go much farther, for I have known a cow to be absent from her pup for two days, leaving it without nourishment for this period. This shows how tenacious of life a young seal is, and how long it can live without sustenance of any sort. The 3-year-old male has meanwhile landed on the hauling ground and is now the most available age to kill for his pelt. John Fratis (ibid., p. 108) was of opinion that the cows were killed by the hunters wLen they go out in the sea to feed, nnd the pups ai-e left to die and do die on the islands. He saj's : The pups are born soon after the arrival of the cows, and they are helpless and can not swim, and they would drown if put into the water. The pups heve no sustenance except what the cows furnish, and no cow suckles any pup but her own. The pups would suck any cow if the cow would let them. After the pup is afeiv days old the cow goes into the sea to feed, and at first she will only stay away for a few houi-s, but as the pup grows stronger she will stay away more and more until she will sometimes be away for a week. r .. __v ...r...t. ...•-. ..:t.....„^ , .,. (. . . > .; .,. , „,v '.li ■ ti^- t.-vr William Frazer gives his experience as a sealer. The hunters use shot* guns, he says (ibid., p. 427), and got about one out of every six they shot at or killed, and sometimes they got none. The g^eat majority of / ! ■», H '^ ' T 1 '^> ' k 2R-» AROTTMFNT AF TIIK TTXITED flTATFA them were females. Most of the females killed have unborn pups or were cows in the milk. They did not kill any on the Island because they never went in close enough. He testiBes positively that " we," meaning his companions and him.oplf on the Charles Wilnon, "killed females giving milk more than lOo .niles from the seal islands. Most of the seals sunk or dove out of sight when killed or wounded, and a great many of them we could not get." On one occasion he got 600 seals. He does not know whcilier it was on the American side or not. They -were almost all females. He noticed when he skinned them that they were females in milk, as the milk would run from their breasts on to the decks. He concurs with the other witnesses as to the diminution in the number of seals. ,! •«•'. 1 -.i' -'K " ■ ■< ',-',. Norman Hodgson (ibid., p. 366) observed nursing cows from 60 to 80 miles Jrom the Pribilof Islands, where they were ranging to feed. I do not think it possible for fur-seals to breed or copulate in water at sea and never saw nor heard of the action taking place on a patch of iloating kelp. I have never seen a young fur-seal pup of the same season's birth in the water at sea nor on a patch of floating kelp and in fact never knew of their being born anywhere save on a rookery. I have, however, cut open a gravid cotv and taken the young one from its 'mother's loomb alive and crying. I do not believe it possible for a fur-seal to be successfully raised unless born and nursed on a rookery. I have seen fur-seals resting on patches of floating kelp at sea, but do not believe they ever haul up for breeding purposes anywhere except on rookeries. Chad George {ibid., p. 365) 27 years old and a seal hunter since he was a mere boy, has been engaged in the killing of seals and speared everything that came near his boat, regardless of sex. Se had killed seals 200 miles from the Pribilof Islands that were full of milk. H. A. Gliddon (ibid., p. 210), stated that the females during the entire sealing season are going and coming to and from the water for the purpose of feeding, and in his opinion while the females are thus going to and from the feeding ground and through the Aleutian pas.ses they are intercepted and shot by open-sea sealers. Capt. E. M. Greenleaf, a resident of Victoria, British Columbia, a sea- faring man, holding a commission as master mariner, captured at one time sixty-three seals, all of lohich were females and all were pregnant (ibid., p. 324). He was informed by conversation with Bering Sea seal hunters ihat they killed seal cows 20 to 200 miles from the breeding grounds, and that these cows had evidently given birth at a recent time to young. As to the proportions of seals fired at aud killed or wounded, it is bis ( .SUMMARY OF THE EVIDENCK. 283 judgment that, taking the run of hunters, good und bad, the beat get about 50 per cent, of those shot at, and the poorest not more than one out of fifteen. Cumulative testimony to this effect might be cited to the extent of wearisome repetition, but if the learned Arbitrators should desire to pursue the subject as far as the evidence will permit, we give below references to the testimony ro bo foand in the Appendix and not specially quoted. We submit that it is absolutely conclusive unless, as we have suggested befoi-e, for some un :nown reason it should be rejected as intentionally and criminally false. Arthur Griflfin {ibid., p. 325) captured females from 20 to 200 miles from the rookeries. ' , -.=: : James Griffin (ibid., p. 433) killed female seals full of milk 90 miles from the islands. Martin Hanuoa {ibid., p. 445) killed them full of milk 100 miles from the seal islands. James Harrison (ibid., p. 326) caught 200 seals in the Behring Sea about the ]st of June, mostly mothers. James Hayward (ibid., p. 327) caught them 150 miles from, the shore and skinned them xvhen their breasts were full of milk. He says that they travel very fast and go a long way to feed. ;. < ' .[i'A J. Johnson (ibid., p. 331) killed female seals full of milk 75 miles from the island ; used a shotgun and killed everything. Louis Kimmel (ibid., p. 173) had observed them at least 2^ miles from the islands. Andrew Laiug (ibid., p. 334) had caught them 75 to 100 miles from the island, and in skinning them the milk would run out of the teats of the females, they having given birth recently to young on the islands. -Jr^ William H. Long (ibid., p. 457) killed mothers in milk all the way from 10 io 200 miles of shore. Thomas Lowe (ibid., p. 371) in 1889 hunted in the Bering Sea from 80 tn 100 miles off the Pribilof Islands. Two-thirds of his catch were cows in milk. Thomas Lyons (ibid., p. 4G0) about the 26th or 28th of June went into the Bering Sea and caught 389 seals, nearly all of which were mothers in milk. He knows it as he saw the milk flow on the deck while skinning them. ' William M. McLaughlin (ibid ., p. 461) killed them 50 to 60 miles off shore, most of th em with milk, [317] T 1 1 ill 'J 84 AHOITMENT OP THE rNFTKn STATES. »■ Alexander McLean (Ibid., p. 436) killed them as far off as 150 viilog oft the land. They were mothers with young, Daniel McLean (ibid., p. 444) killed mothers all the way from 20 to 65 miles off St. George and St. Panl. Robert H. McManus (ibid., p. 335), a resident of Victoria ; by profession a newspaper correspondent ; went for his health on a sealing expedition. His deposition is exceptionally minute and interesting. The men on his ship (Schooner Otto) killed them at a distance of 200 miles from the vookerie.?. Over tlu-ee-fourths of his catch were cows in milk. Judged from the number of shots tired that it took about one hundred to secure one .seal ; one day there was a total catch of seventeen seals ; great proportion were in milk ; horrid sight ; conld not stay the ordeal out till all were flayed. Thomas Madden (ibid., p. 463) has spent or had been going to the Bering Sea over 12 years, which he entered about June. Most of the seals killed were cows, and he saw the milk run out of their breasts on the deck as they were being skinned. G. E. Miner (ibid., p. 466) killed seals with milk 250 miles from the Pribilof Islands. Thomas F. Morgan (ibid., p. 60) says that the female goes 40 miles or even farther from the island. Niles Nelson (ibid., p. 469) swears that he has killed mothers in milk 100 '/)??7es or fliore from the island. . Dr. Noyes (ibid., p. 82), resident physician and sometimes schoolmaster on the islands, says that the female mother goes a distance of from 40 to 20() miles from the island to feed. His deposition is very full and interest- ing. It is valuable as shedding light on most, if not all, of the questions here involved. John Olsen (ibid., p. 471; swears that he shot twenty-eight himself from 60 to 150 miles off the seal islands. They were mothers full of milk. Other witne8.ses estimate the distance at 60 miles, 100 miles, etc. See T. F. Ryan (ibid., p. 175), C. M. Scammon (ibid., p. 473), Adolphus Sayres (ibid., p. 473), L. G. Shepard (ibid., p. 187), William H. Smith (ibid., p. 478), Z. L. Tanner (ibid., p. 374). Capt. Tanner, lieutenant-commander in the United States Navy, makes a deposition which is entitled to particular consideration. The following is a short extract ; Seals killed in Bering Sea after the birth of pups are largely mother seals, and the farther they are found from the islands the greater tlie per- n SHMMAUY OK TIIK KVIDKNCK. liHit centayc. will he. The renHon for this Hocmiiif^ paradox is very simple. The young males, Iiaving no family responsibilities, ean afford to liunt nearer home, where food can he found if sntlicicnt time is devoted to th(( searoh. The mother docs not leave her young except wlicn necessity compels her to seeks food for its sustenance. She cannot affoi'd to waste time on feeding grounds already occupied by younger and more active feeders ; hence she makes the best of her way to richer fields farther away, gorges herself with food, then seeks rest and a quiet nap on the surface. Under these circumstance she sleeps soundly, and becomes an ea.sy victim to the watchful hunter. A double waste occurs when the mother seal is killed, as the pups will sui-ely starve to death. A mother seal will give sustenance to no pup but her own. I saw sad evidences of this waste on St. Paul last season, where largo numbers of pups were lying about the rookeries, whei-e they had died of starvation. Adolph W. Thomp.son (ibid., p. 486) killed females in milk, although he never went nearer to the island than 25 or 30 miles. Michael White (ibid., p. 489) killed seals in milk not less than 100 io 200 viiles from the island. William H. Williams (ibid., p. 98), United States Treasury agent in charge of the seal islands in Bering Sea, states that it is a well-known fact substantiated by the statements of reputable persons who have been on sealing vessels and seen them killed 200 miles or mure from the islands, and who say that they have seen the decks of the vessels slippery of milk flowing from the carcasses of the dead females. He alludes to the thousands of dead pups left on the rookeries starved to death by the destruction of their mothers as conclusive evidence of the destruction and havoc wrought by the pelagic seal hunters. If this cumulative and unimpeachable evidence does not establish the fact Avhich we have undertaken to prove, we must despair of satisfying this High Tribunal or any other tribunal of the correctness of our state- ments. We submit, however, that it is more than made out — that it must be taken as a fact in the discussion of this case — that the cows, while suckling, go to sea for food ; for they travel long distances, sometimes as great as 200 miles ; and that during such excursions they are ruthlessly slaughtered by pelagic sealers, in many cases without profit, as they sink and are irretrievably lost. The sickening details, abundantly furnished by the witnesses, sufficiently characterize the business, and justify the harshest expressions of condemnation. The slaughter tlms described constitutes a crime, for it violates the most common instincts of our nature and would be punished by the laws of every civilized nation, if jurisdiction could only be acquired over the Avrong doers. And yet the Commissioners for Great Britain undertake to justify this practice for its [317] X 2 280 ARQUMEVT OF THE UNITED STATES. Bporfcsmanliko qualities, and to oulo^lzo it bottauso it gives the seals a fair Bporting chance for their life (Sec. 625). It is really, they say, huntiny as distinguished from slaughter (ibid.). It is not easy to diacDss these pro- positions with that patient and respcutful consideration which is duo to the importance of the questions involved. VIII. — The Fl'r-Skal is a Polyoa.mou,s Animal, and the Male is at LKAST Four Timks as Lakuk as the Fejiale. As a Rule, each Male serves about Fifieen oh Twenty Females, but in some Cases as Many as Fuxy ob More (Case ok the United States, p. 327). A great diminution in the number of females making up a harem has been noticeable iu late years. Formerly there would be on an average 30 cows to a bull ; now they will not avemge 15 (Case of the United States, p. 344). The British Commissioners are in substantial accord with the statements above quoted as to the service of the female by the male. They cite from Bryant to show that the proportion is t male to 9 to 12 females ; from Elliott, thai the mean number is 5 to 20, and from Mr. Grebnitzky, that the ratio should not exceed 1 to 20 (Sec. 54). This is sufficient for our present purposes, especially as they add that it is no uncommon event, during the last few years, to find a single male seal with a harem numbering from 40 to 50, and even as many as 60 to 80, females (Sec. 55). With their deductions from these facts we are not at this moment concerned. It is apparent, on the face of the report, that the Commissioners had a theory to support and that the facts were read by them in the light of that theory. An amusing illustration, among many, is found in the statements on this very point. Bearing in mind the severe criticism of earliei- sections (54, 55, and j^i) upon the system of sacrificing males so that the bulls are forced to supply the necessities of 40 to 60 a)ul even 60 to 80 fonales, read section 483, describing the condition of seal life as far back as 1842 : . In the well-known Penny Cyclopedia, published so lately as 1842 [half a century ago], the seal is described as follows: * * * "When these migratory seals appear off Kamtchatka and Kuriles early in the spring, they ai'e in high condition and the females are pregnant. They remain on and about the shore for two months, during which the females bring forth. They are polygamous and live in families, eve)-y male being sur- rounded by a crowd of females (from 50 to 80), whom he guards with the greatest jealousy." (Sec. 483.) It would seem from this extract that the polygamous practices and habits of the seal have not changed since 1842 and that the sei'vice by SUMMARY OF THE EVIDENCE. 2R7 one nmlo c' a Inrge number of ft-males is nnf now nnd iw iiol flic rosnlt of excoBNive slaughter on the land. We are not left, however, <<• the Ntateiuotits, inconsistencioH, and cita- tions of the British ConimisfiionerH' report. The testimony of many witnesses bears out the propositions stated in the Case of the United States and disposes at the same time of the pretense that the bulls are now compelled to pei-forra increased and exhaustive duty by reason of a reduction in the number of younpf bulls. The fact seems to be Avell established that the bull is possessed of extraordinary powers. He is able to subsist several months without tasting food and to fertilize at the same time an almost indefinite num- ber of cows. The limitation in the number of his harem depends gen- erally upon his ability to secure a larger or smaller proportion of females. He gathers about him as many cows as he can. Joseph Stanley-Brown speaks on this subject from actual observation. Ho describes the breeding bull as possessing " a vitality unsurpassed by any other mem- ber of the animal kingdom." He testifies that the very large harems were unfrequont and that the average number in the season immedi- ately preceding was about 20 to 25. (Appendix to Case of the United States, Vol. II, p. 13.) Charles Bryant places tlu> average at 15 to 20 cows for each bull. {Ibid,, p. 6.) Samuel Falconer testifies to having seen 20 cows or moi'e to a bull, bnt of course, he added, the exact num- ber in a harem is a matter of conjecture, as many cows are absent in the water after the season has fairly commenced. (Ibid., p. 166.) T. F. Morgan testifies that the bull returns to the island about the 1st of May and hauls up to the breeding rookeries, provided he is able to maintain himself there, which takes many bloody conflicts. There he gathers about him as many females as he is able. (Ibid., p. 3.) Capt. Olsen is quoted by Theodore T. Williams as placing the number of females served by one bull at 20 or 25 (ibid.,Tp. 505). The respective weights of the animals is placed in the Case of the United States at, 400 to 700 pounds ; that of the cows at 100 (pp. 107, 113). This great disparity in bulk should be borne in mind when we consider the probability of pelagic copulation. .-., The Encyclopedia Britannica states the weight of the animals sub- stantially as it is stated in the testimony and case. The male seal is said to weigh 500 to 700 pounds, the females 80 to 100. There seems to be 288 AKdUMEXT OF THE TNITRD STATES. no dispnto oh (>. Ilti ot'toii killn thi'oo with ono (liHuhai-ge of Iuh lilli-. viz, : thu motliur, tho unborn young, and thu pup at homo; but hu ilocs it in a " sportsnianliko " manner, anil ho givi'.s tho sleeping animal a "fair sporting chanco for its life." (Soc. r>10.) In many cases ho either misNos his object or wounds it and loses it. So that there is by this manly process an utterly useless waste of life, in many cases a waste more or less appalling as tho " sports- man" is more or less skilful. How destructive in reality this process ix proven tt» bo may bo seen from the British Connuissioners' report luuler the head of " Proportion of Seals Lost" (p. 10-4, Sec. (iOH). It, nmst bo ii consolation to those disposed to extol this kiml of sport that while nearly " all the pelagic .sealers concur in tho opinion that tho fur-seal is anuuully Injcoining more shy and wary at sea," it is certain that " thu lUwti ri/ij "/ tln' hiiutrrn has invreascd pari pitnan' with the loariue^g of the gualti" (Hritish Commi,ssioners' Report, Sec. 401.) » That tho number of tho seals has been diminisheil in recent years and at a cumulative rate, and that such diminution is the consequence of destruction by man, is certified by the Joint Report of all the Commis- sioners. That this hiiraan ageucy is pelagic sealing exclusively, and not tlie mode, manner, or extent of capture upon the breeding islands, is abundantly clear. This follows necessarily from admitted facts. Thf fur-seals being 2wli/gamous, and each male sufficient for from 80 to 50 females, and being able to secure to himself that number, it follows that there must bo at all times a larger number of superfluous males, and tho killing of the.sj produces no permanent diminution of the number of the herd. On the other hand, the killing of a single breeding female necessarily rednces pro tnnto the normal numbers. An excessive killing of males might indeed tend toward a decrease if carried to such an extent as not to leave enough for the purpose of effectual impi-egnation of all the breeding females. The taking from these herds of 100,000 males would not, if that were the only draft allowed, be excessive. This is evident from many considerations. (a) Those who, like the British Commissioners, px'opose to allow pelagic; sealing to such an extent as would involve the annual slaughter of at least 50,000 females in addiiinn to a slauijlitirr if 50,000 yoiiiiy males on the breeding islands, can not certainly with the least ccmsistency assert that the capture limited to 100,000 males would be excessive. Nor could they 290 ARGl'MENT OF THE UNITED 8TATE^. consistently nssert this even though the pelagic slaughter should be restricted (by Kome means which no one has yet suggested) to 10,000 fetnnlcs. It requires no argument to show tliat the destruction of even that number would be rapidly disastrous to the herds. (h) And when we turn to the proofs, they are conclusive that prior to the pi-nctice upon any considerable scale of pelagic sealing, the annual draft of 100,000 young males did not tend to a diminution of numbers. (c) Of course it is easily possible that the indisci-iminato slaughter cfPected by pelagic senling may soon so far reduce the birth rate as to make it difficult to obtain the annual draft of 100,000 young males. This draft, under such (tircumstances, would not necessarily at once diminish the birth rate, for, the number of females being less, a less number of males would be required. The number of the whole herd might be rapidly diminished by the slaughter of females nncl the consequent diminution of the birth rate, and still 100,000 malts continue to be taken for a time 'vithoufc damage. How soon a point would be reached at which so large a ili'aft of males from a constantly diminishing number of births would operate to produce an insuflficiency of males, is a problem which from want of precise knowledge of the relative numbers of the sexes, it would be difficult to solve. The British Commissioners' Report upon this subject is as follows : The systematic a.id persistent hunting and slaughter of the fur-seal of the North Pacific, both or' shore and at sea, has naturally and inevitably given rise to certain changes in the habits and mode of life of that a n'mal, which are of importance not only in themselves, but as indicatini. the effects of such pursuit, and in showing in what particular this is 111] "ions to seal life as a whole. 8ueli changes doubtless began more than a century ago, and some of them may be traced in the historical precis, elsewhere given (Sec, 782 et seq.). Ic is unfortunately true, boweve", that the disturbance to the normal course of seal life has become even nioru serious in recent years, and that there is therefore no lack of material from which to study its character and effect even at the pi'e.sent time. . ' In the zeal of their advocacy on behalf of pelagio sealing and their denunciation of the methods in use on the Islands, the Commissioners have experienced much and evident difficulty in framing their 'hoory. If they admitted, in unqualified terms, a decrease in number, the obvious deduction from tlie concession would bo that the unlimited slaughtei- of fomales must bear the blame and burden of such a result. To that extent pelagic sealing must be condemneo. If, on the other hand, they should assert that the number actually increased, this SUMMARY OF THE EVIDENCE. 201 Wv->ulrl only be consistent with an approval of the methorls in use on the land. Tlctween this Scy'la and this Charybdis a way of escape must be found and it Avas found. The ingenuity here displayed deserves full notice and acknowledgment. The Joint Report contains this state- ment : We find that since the Alaska purchase a mai-ked diminution in the number of seals on and habitually i-esorting to the Pribilof Islands has taken place, that it has been cumulative in effect and that it is the result of excessive killing by rnan. Bearing in mind thai the I'lr-seals forming the object of this controversy have no other home or land thar the Pribilof Islands, and that the British Commissioners themselves conceut that they, for the most part, breed on those islands ; bearing in mind, too, that these gentlemen have not yet dis- covered any other shimmer habitat for the seals, it would seem that this declaration is equivalent, in its fair sense and meaning, to a statement that the fiir-.^eals that frequent the American coast and the Bering Sea have suffered a marked decrease. Perhaps it was so intended by the British as it was by the United States Comm'ssioners ; but if so, the former gentlemen have lost sight of their original intention and have been led to nice distinctions, which we shall now examine. That the seal, although " essentially pelagic " (Sec. 26), has not yet learned to breed at sea is not denied, although to the vision of the Com- missioners the prospect of such a transformation or evolution is evidently not very remote. We must, in justice to them, quote one single passage which admirably illustrates the complacency and self-eonridenco with which they wrest to their own purposes, with unhesitating violence, the laws of nature and the masteries of ulterior evolution. If this quotation does not give a just idea of the imnginative powers of these officials nothing but a perusal of the whole of theii' work will do them justice : The changes 'n the habits and mode of life of the seals naturally divide themselves into two cla.sses, which may be considered separately. The first and most direct and pal|)ablo of the.se is that shown in the increased ■thyness and wariness of the animal, which, though ahcaiis j)fhiiw ca'ti th^^y h ahvays pelagic if they are obli|^ to seek f'he lani!! or jj«riel' aaad -vrfay is it reason- able to talk of th* ^obftbility of th«ir (.^noiii -'egnant or nursing, and frequently both, This follows from the undisputed facts (1) that the period of gestation is over eleven months ; (2) that they reach the islands when on the point of delivery ; (3) that they romain there until fertilized, and (4) that during the period of their stay they nurse the young, which depend wholly upon their milk for sustenance. (ft) The British Commissioners' suggestion as a remedy for the slaughter of the mothers and nurses, contained in section 155, subdivision c, does not seem to be one which can have been very seriously entertained by themselves. They suggest a provision that a close season be provided eniending from the \hth of September to the \st of May in each year, during which all killing of seals shall be prohibited, with the additional provision that no sealing vessels shall enter Bering Sea before the \st of July in each year. They state as a fact in section 649 that " Bering Sea is noin usually entered by the pelagic sealers between the 20th of June and the \s1, of July and in Bering Sea the same conditions hold" that are described in section ($48, namely, that a cousiderable portion of gravid females are found among the seals taken in the early part of each sealing season. They also say that the pregnant females begin to "bunch up" and to travel fast toward Bering Sea, at the latest, the 1st of Jane. In other wox'ds, the best season for killing nursing and pregiidnt females in the Bering Sea is precisely the season recommended by the commissioni'is as the proper one for allou-ing the slaughter. Surely the pelagic sealers could ask no better protection for their "industiy" in Bering Sea than this, nor could any better method of (continuing the abuse and hastening tho destruction be devised than opening the catch to the pelagic sealers at their favorite season. ;i t. . u ' . .', t 1 1 ' iit. > ; 2 'J 8 ARGUMENT OF THE UJSlTED STATE.*. p m pi 1 11] i 1 To understand this extraordinary recommendation fully, sections 648 and 649 of the British Commissioners' Report should be read together. It may be taken for granted that the pelagic sealers need not be told when the hunting season in Bering Sea is at its best. Experience has taught them, and they have profited by the instruction, that their operations in Bering Sea could be most profitably conducted during the months of July and August. Hence it has been their usage to enter Bering Sea between June 2) and July 1 (Sec. 649). They would probably not rebel against a possible and occasional delay in opening the season, by ten days. The nursing mothers would be still especially open to capture, and would still constitute the staple article of their "industry." In their search for food and in the instinctive confidence which the mothers of dependent oifspring almost universally exhibit the seals would be less "wary" than at other seasons, and good shots might stiir carry on their mission of destruction with the superadded comfort that their business was made reputable by law. As if to make even this small restriction upon the liberty of the pelagic sealer less objectionable, he is reminded that " after about the 20th of May or at the latest the Ist of June, very few females with young are taken." (Sec. 648.) His loss would thus bo trifling so far as Bering Sea as a field of profitable operation is con- cerned. It seems that in fine sealing weather the schooners can not keep up with the females. Hence they are not all slaughtered. At this time, after May 20, or June 1, the pregnant females begin to " bunch up " and the catch consists chiefly of young males and barren females (Sec. 648). Why, then, even this restriction ? When are the breeding females captured ? Is it really intended to assert that the only injui-y (lone is that " at a later dato in the summer a few females in milk, and therefore presumably from the breeding places on the islands, are occasion- ally killed, but no large numbers " ? So exti-aordinary a statement made in the face of overwhelming proofs requires no discussion. The British Commissioners should have vouchsafed information as to the thousands of nursing mothers killed during the season from July to September and should have told us whence they came and where was their " summer habitat." It is vory likely, as they assert, that very few females with young are taken after Juno 1. The obvious reason is that they have become nursing mothers by the 1st of July, those that escaped the shot- gun, the rifle, the spear, and the gafE having found temporary shelter and protection on the islands. (f) Although we have laid much stress upon this in other parts of SUMMARY OF THE EVIDENCE. 299 ions 648 ;ogether. I be told ence has iiat their uring the \er Berimj bably not Dn, by ten 3 capture, stry." In le mothers lid be less y on their ir business restriction J reminded June, very lid thus bo iion is con- srs can not a. At this to "bunch [•en females le breeding only injury n milk, and re oocasion- (ment made The British housands oC tember and ir " summer 'emales with b they hav(> ;d the shot- shelter and ler parts of this argument, the subject is go important that we again recur to it and call attention once more to the admissions and inconsistencies in the British Commissioners* Report. The Commissioners in section 612 exhibit much indignation at the free use that has been made of the appellation *' poachers " as applied to the pelagic sealers in general and to Canadian sealers in particular. This, they say, has been done with the obvious purpose of prejudicing public opinion. They then proceed to claim that " adventurers " from the United States are mainly responsible for the reduction of seals brought about in the southern seas. The killing of seals, they say, has always and everywhere been carried out in the indis- criminate, ruthless, and wasteful manner described in detail in several of the works cited in their Report, and in most cases a greater part of the catch has consisted of females. (Sec. 612.) It is certainly no part of the purpose of counsel for the United States to defend " adventurers " guilty of these barbarous practices, whatever the nation fo which they belong. It is rather a question of humanity than of nationality, and the United States would not hesitate to undertake and to assure the repres- sion of practices which cannot be described in overharsh terms if their own citizens alone were engaged in the business. It is only to prevent " the indiscriminate, ruthless, and wasteful slaughter " by persons who claim the protection of a foreign flag that these methods of arbitration are resorted to. But the waste of the seals lost, in addition to the destruction of the fetus or of the pup, as the case may be, is shown to some extent by the Report of the Commissioners for Great Britain. We refer especially to sections 613, 614, 615, 617, 618, 619, 620, 621. The discrepancy between the two classes of statements given by them- selves is very marked. The agents of the United States, captains in the United States Navy, the superintendents, and others testify that 40 to 60 per cent, of the seals are lost. It would seem, however, from the testimony in defence of pelagic slaughter that old hunters are much more successful than the young ones. Green hands, says the captain of the Eliza Edwards, might lose as much as 25 per cent, of the seals shot, but experienced hunters would bag their game to the extent of 95 per cent. ; that is to say, they would lose but 5 per cent, of the females shot. (Section 625.) The number of green hands on board the schooner Otto, on which Robert H. McManus, a journalist, was a pas- senger, sailing for hia health, must have been very great in proportion to the whole crew. It seemed to him that they did not get over one [317] IT' ■i .- IV. 300 AIKRTMKNT OF TIIH TNiTKI) STATIN. fi'f seal to every hundi-od shot at. (Vol. II, p. 335, o£ tho Appeudix to tlu' Case of the United States.) We shall uow lay before this High Tribunal additional testimony us to tho naturo and extent and effect of polaj^io sealing. Tho extracts and references about to bo given may soom monotonously cumnlativc, but it is important to show, otherwise than by mere aflirmiition, how far the existence of the herd is menaced and how soon exteniiinatiou may bo expected unless prompt and efficient measures of redress bo adopted. The evidence of credible witnesses, dealing neither in generalities nor in speculation, leaves no doubt as to the appalling extent of the massacre. It is impossible to assume that the Avitnossos prodneed for tho Unitctl States deliberately perjured themselves as to numbers, dates, and distances. Even if any reason were given for throwing a suspicion upon their character, the reticence of many of tho witnesses examined by tho British Commissioners as to the sex of the animals killed is significant. It is to the credit of these persons that while they did not hesitate to state that they had slain large numbers of seals in Bering Sea without discrimi- nation, they refrained from giving any precise data as to the sex of the animals that they captured. If, however, it is desired to know how far this ruthless and exter- minating process is carried, tho desii'o for information may readily bo gratified . The sealing schooner Favorite, McLean, master, accoi'ding to Osly, a native sealer who went to the Bering Sea on her as a hunter, captured 4,700 seals, most all of which wore cow seals giving milk. They were captured at a distance of about 100 miles from the Pribilof Islands. In 1888 the same hunter was ou board tho Challenger, Captain Williams, master. They were less successful and caught only about 2,000 seals, most of which were cows in milk. In 1889, he again went to sea on the schooner James G. Swan, but the seals were not so abundant ; they were rapidly decreasing. (Appendix to the Case of the United States, Vol. II, pp. 320, 391.) Niels Bonde (ibid., p. 315), of Victoria. British Columbia, was a -.ea- man on board the schooner Kate. Ke went to tho Bering Sea, arriving there in July, and left in the latter part of August. They had caught about 1,700 seals in that time between the Pribilof Islands and Un- alaska. These were caught from 10 to 100 or more miles off St. George Island. The seals caught in Bering Sea were females that had given SrMMARV OF THI-: KVIDKN'CK. 301 birth to tlu'ir young. H«' ofti-ti noticed milic flowing out of tlu-ii- breasts. Ho had soon livo pups rut out of their mothers and livo around on the decks for a week. ' ' ■ • M ■ . ■ ., > , i.;-^ , Peter Urown {ibid., p. M77), a native, part owner iif a rtchoomr fm- altou seven years and owner of the Jamm (I. Swan i'or about three years ; iuintod in Berini? Sea in 188b; the cateh was nearly all cows that had pivcu birth to tiieir young and had milk in theii- teats. His people hunted with the spear and tlierefore did not lose many that they hit. Thomas ]3rown, No. 2 (ibid., p. iOb), made a sealing voyage to tin- North Pacific and Bering Sea on the Alcvander, They caught 25(» seals before entering the se.i, the hirgest percentage of which were females, most of them having young pups iu them. He saw some of tiie young pups taken out of them. They entered the sea about the Ist of May and caught between 000 and 701) seals, from 30 to 160 miles off the seal islands. Four out of five were females in milk. Ho saw the milk running on the deck when he skinned thom. They used mostly shotguns, and got on the average 3 or 5 out of every 12 killed and wounded. Evidently these were what has been termed " green hands." 1 ■ , . , < i .; ' , Charles Challall, who has been heretofore quoted, a sailor in 1888 on the Vanderbilt, in 1889 on the White, and in 1890 on the Hamilton, gives his experience, which may be found at pages 410 and 411. They cap- tured a great many seals on the fishing banks just north of and close by the Aleutian Archipelago. Most of the seals tJiey killed going up the coast were females heavy with pup. He thinks nine out of every ten were females. At least 7 out of 8 seals caught in the Bering Sea wore mothero with milk. . ; . . i . . : > ,,..■ ?•• f; i-' •^1. .;; t :', • •_ Circus Jim (ibid., p. 380), a native Makah Indian, captured a great many cow seals that were giving milk. Most of the seals he caught in the sea were giving milk. His theory as to the decrease of the animal, which he states as an undoubted fact, is that the white hunters had been hunting them so much wiih guns. " If so much shooting at seals is not stopped they will soon bo all gone." ~ ^ ' •■ > '• ' ' • James Claplanhoo (ibid., p. 381), a native Makah Indian, evidently found th'i business profitable, for he was the owner of the schooner Lottie, of J 8 tou ■ burden. Formerly he used nothing but spears in hunting seals, i/ut he had since that resorted occasionally to the use of a gun. He cuyL' that about one-half of all the seals that he had captured in the Sea or on the coast were full grown cows with pups in them. In 1887, about the first of June, he went into Bering Sea in his own [317] u 2 m fl: ■ ^, IMAGE EVALUATION TEST TARGET (MT-3) ^t^ 4^ 1.0 I.I 1.25 ■so ■^" 1^ 125 12.2 us I 2.0 1.8 U IIIIII.6 * ^ ^J»*' Photograpiiic Sciences CQrporalion 23 WIST MAIN STRiET WEBSTER, N.Y. MSM (716) •72-4503 k 302 ARGUMENT OF THE UNITED STATES. schooner, the Lottie, and hunted aboat sixty miles off the Islands, and seonrod about 700 seals himself, all of which were cows in milk. These cows had milk in their breasts but had no pups in them. He returned to Bering Sea in his own boat, the Lottie, in 1889, and also in 1891, and sealed all the way from 100 to 180 miles from the St. George and St. Paul Islands. The catch of those two years was about the same as those oanght in 1887, that is, mostly females that had given birth to their young and were in milk. Louis Culler (ibid,, p. 321). Accoi-ding to him the white hunters in 1888 most have been nearly all " green hands," for they did not secure more than two or three out of every 100 shot. He was aboard the Otto in 1891, on board of which were two newspaper correspondents, King- Hall, representing the New York Herald, and Mr. McManns, of Victoria. They entered the sea through the Unamak Pass and captured therein about 40 seals, most all of which bad milk in their breasts. After takirg these seal? they returned to Victoria, British Columbia, about the 25th of September. . . . . , John Dalton was a sailor and made a sailing voyage to the North Pacific and Bering Sea in 1885 on fhe schooner Alexander, of which Captain McLean was master. They left Victoria in January and went south to Cape Flattery and Cape Blanco, sealing around there about two months, when they went north, sealing all the way up to the Bering Sea. They had betweeii 100 and 300 seals before entering the sea. Most all of them were females with pups in them. They entered the sea about June and caught about 900 seals in there, two-thirds of which were mother seals, with their breasts full of milk. He saw the milk flowing on the decks when they skinned them. Alfred Dardean (ibid., p. 322), a resident of Victoria, British Columbia, and during the two years preceding the making of his deposition, which was in April, 1892, he had been a seaman on the schooner MoUir Adatns. They left Victoria, British Columbia, on the 27th of May, 1890, and commenced sealing up the coast, toward Bering Sea. They entered Bering Sea through the Unamak Pass about July 7, and sealed around the eastern part' of Bering Sea until late in the fall. They caught over 900 seals before cnt«rinp^ the sea, and the whole catch dur- ing thnt year was 2,159 skins. Of the seals that were caught off the coast fully ninety out of every one hundred had young pups in them. The boats would bring the seals killed on board the vessel, and they would take the young pups oat and skin them. If the pap wai a good SUMMARY OF THE EVIDENCE. 303 one they would skin and keep ,it for themoelves. He hod eight such skins himself. Four out of five, if caught in May or June, would be alive when they cut them out of the mothers. They kept one of them nbArly three weeks alive on deck by feeding it on condensed milk. One of the men finally killed it because it cried so pitifully. They got only three seals with pups in them in the Bering Sea. Most all of them were females that had given birth to their young on the island, and the milk would run out of the teats on the deck when they were skinned. They caught female seals in milk more than 100 miles off the Pribilof Islands. • i . , The same witness states that they lost a good many seals, but he does not know the proportion that was lost to the number killed. Some of the hunters would lose four out of every six killed. They tried to shoot them while asleep, but shot all that came in their way. If they killed them " too dead " a great many would sink before they could get them, and these were lost. Sometimes they could get some of them that had sunk by the gaff hook, but they could not get many that way. A good many were wounded and escaped only to die afterward. Frank Davis (ibid., p. 383), a native Indian of the Makah tribe, was sealing in the Bering Sea in 1889. He says, agreeing in this with all the other witnesses, that nearly all of the full-grown cows along the coast have pups in them, but the seals that he caught in Bering Sea were most all cows in milk. Jeff Davis (ibid., p. 384), and also a native Makah Indian, says that most of the seals that were captured there that season — that is, in 1889 — were cows giving milk. "■ > Capt. Douglass (ibid., p. 420) : His testimony is that a very large pro- portion of the seals killed along the coast and at sea, from Oregon to the Aleutian Islands, are female seals with pups; in his judgment not less than 95 per cent., as has been quoted heretofore. He also says that the proportion of female seals killed in Bering Sea is equally large. Peter Duffy (ibid., p. 421). By occupation a seaman on board the Sea Otter, Captain Williams, master. They left San Francisco aud fished up the coast until they entered Bering Sea in July, and sealed about the sea until they were driven off by the revenue cutter Corwin. From thei*e they went to the Copper Islands. The whole catch amounted to nine hundred skins, and most of them were killed with rifles. They only got one out of about eight that they shot at, and they were most all females giving milk or in pup. When they cut th*} 304 ARGUMENT OF THE UNITED STATES. ludo off you could Heo the milk running from the breasts of the seals. Tho second year they were more fortunate and got over 1,300 skins; some of them were cows with pups in them, and almost all of the rest were cows giving milk, and some of the latter were killed as far from the rookeries as Unimak Pass. William Fraser (page 426), of San Francisco, had made three trips to tho North Pacitic and Bering Sea within the last six years. His busi- ness was that of a laborer; he acted as a boat-puller. They used shot- guns and killed about 300 seals in the North Pacific. Most of the females killed had unborn pups or were cows giving milk. The next trip that he made was on the Vanderbilt. They did not enter the Bering Sea on that trip either. They got about 350 seals, almost all females. Finally hu made a trip on the C. G. White, but does not know i£ he was on the American side or not. They killed about 600 seals on that trip, nearly all females. He noticed when they skinned them that they were females in milk, as the milk would run from their breasts on to the deck. ' John Fyfe (ibid., p. 429), of San Francisco, a sealer and boat-puller on the schooner Alexander, McLean, master. They entered Bering Sea about April and got 795 in there, the largest part of which were mother seals in milk. When they were skinning them the milk would run on the deck. . Some were killed 50 to 100 miles off the seal islands. When they shot the seals dead they would sink and they could not get them. Thomas Gibson (ibid., p. 431) had been engaged in sealing for ten years. He gives his experience in detail and the number of seals that he killed in eac^ season. He says : = i .] ; • - < • ..■ - ;- . I did not pay much attention to the sex of seals we killed in the North Pacific, but know that a great many of them *ere cows that had pups in tl.era, and we killed most of them while they were asleep on the water. 1 know that fully 75 per cent, of those we caught in the Bering Sea were cows in milk. We u.sed rifles and shot-guns and shot them when feeding or aslet'p on the water. An e.vperienced hunter, like my.self, will get two oat of three that he kill?, but an ordinarj' hunter would not get more than one out of every three or four that he kills. Arthur Griffin (ibid., p. 325), a seafaring man who i-esidcs at Victoria, British Columbia, sailed from that place on February 11, 1889, as a boat-puUer on the sealing schooner Arivi, Buokman, master. She carried six hunting boats and one stem boat and had a white crew who used shot-guns or rifles in hunting seals. They began sealing off tlie northern coast of California and followed the sealing herd north- ward, capturing about 700 seals in the North Pacific Ocean, two-thirds SUMMARY OF THE EVIDENv^E. 305 of which wore females with |iup ; tho balniicc were young seals, both male and female. They entered Berinj? Sea on the llHh of July, through the Unimak Pass and cai)tured between 900 and 1,000 seals therein, most of which were females in milk. They returned to ^'ictoria on the 3lst of August, 1889. It will be observed here that Arthur Griffin's experience and saccesi* would not lead him prabably to object to the modus operandi suggested by the British Commissioners. His operations by which 900 or a 1,000 seals, mostly females in milk, were secured in the brief space of six weeks, could be carried on not only with equal propriety, but with the additional advantage of being lawful. His experience in 1889 was not exceptional. He went out again in 1890 in the E. B. Marvin, McKiel, master. They again captured between 900 and 1,000 seals on the coast, most of which were females with pups. They entered the sea on t. uly 1*2 through Unimak Pass and captured about 800 seals in those waters, about 90 per cent, of which were females in milk. His experience was that a good hunter will often lose one- third of the seals he kills. A poor hunter will lose two-thirds of those he shoots. On an average hunters will lose two seals out of three of those they shoot. M. A. Healey (ibid., p. 27). Capt. Healey, an officer in the United States Revenue Marine service, on duty for nearly the whole of twenty- five years in the waters of the Nortl- Pacific, Bering, and Arctic seas. He speaks from experience and says : • , ! I • ^ly own observation and the information obtained from seal hunters convince me that fully 90 per cent, of the seals found swimming in the Bering Sea during tile breeding season are females in search of food, and the slaughter results in the destruction of her young by starvation. 1 fii'mly believe that the fur-seal industry at the Pribilof Islands can be saved from destruction only by a total prohibition against killing seals, not only in the waters of Bei'ing Sea, but also during their annual immigration northward in the Pacific Ocean. This conclusion is based upon the well-known fact that the mother seals are slaughtered by the thousands in the North Pacific while on their way to the islands to give birth to their young, and extinction must nejessarily come to any species of animal where the female is continually hunted an«i killed during the period required for gestation and rearing of her young; as now practiced there is no respite to the female seal from the relentless pursuit of the s«al-hunters, for the schooners close their season with the depai-ture of the seals from the northern sea and then retui'n home, refit immediately, and start out upon a new voyage in February or March, commencing upon the coast of California, Oregon, and Washington, following the seals northward as the season advances into the Bering Sea. 306 ARGUMENT OP THE UNITED STATES. James Kean (ibid., p. 448), a resident of Victuria, British Columbia, and seaman and seal hant«r, gives his experience. He went seaUhnnt- ing in 1889 on the schooner Oacar and Hatlie. He left Victoria in the latter part of Febraary and -went off soath to the Colambia River, and commenced sealing off there and followed the uerd along the coast up to Bering Sea, arriving there some time in Jane. They captured somewhere about 500 seals before entering the sea. There were a good many females among them. The old females 'lad yonng paps in them. He saw them taken out and a good many of them skinned. They entered the sea and caaght aboat 1,000 in there. Sometimes they were over 150 miles off the seal islands ; sometimes they were neai'er. He paid no attention to the proportion of females, bat he knows that they skinned a great many that were giving milk, because the milk would run from their breasts onto the deck while they were being skinned. They killed mother seals in milk over 100 miles from the seal islands. They generally got them when they were asleep on the water. He went out again in the Walter Rich in 1890, with very much the same experience. He thinks that he got half of what he killed and wounded, but he did not believe that the green hunters get more than one out of every foar or five that they kill. F^or detailed and circumstantial evidence that the proportion of females taken to males was enormous, and that nearly all of these when taken in Bering Sea were nursing sows, see : William Hermann, page 445 ; Xorman Hodgson, page 366 ; O. Holm, page 366 ; Alfred Irvii-g, page 356 ; Victor Jacobson, page 328. James Jamieson (ibid., p. 329): This witness, Jamieson, had been fail- ing-master of several schooners and had spent six years of his life sealing. He testified that he always used a shot-gun for taking seals ; that over half were lost of those killed and wounded. A large majority of the senls taken on the coast were cows with pups. Once in a while an old bull is taken in the North Pacific Ocean. No discrimination was used in killing seals, but everything was shot that came near the boat in the shape of a seal. The majority of seals killed in Bering Sea are females. He had killed female seals himself 75 miles from the islands, and they were fnll of milk. To the same effect as to the large proportion of femi^cs nursing their young, see James Kennedy (ibid., p. 449). James Kiernan, who had been engaged in sealing since 1843 : My experience, [he says,] has been that the sex of the seals usaally killed by hunters employed on vessels nnder my command, both in the SUMMARY OF THE EVIDENCE. 307 olumbia. eaUhnot- ia in the a River, ;,he coast captured •e a good in them. )d. They i,hey were ai'er. He that they ilk would r skinned. 3^1 islands. He went experience, he did not bar or five of females n taken in 5; Norman 56 ; Victor been tail* fe sealing. that over of the senls old bull is d in killing shape of a had killed dU of milk. irsing their eals usually both in the North Pacific Ocean and Bering Sea, were cows. 1 should say not less than 80 per cent, of those caught each year were of that sex. I have observed that those killed in the North Pacific were mostly females carrying their young, and were generally caught while asleep on the water, whi)e those taken in the Bering Sea were nearly all mother seals in milk, that had left their young and were in search of food. My experience con- vinces me that a large percsntage of the Heals now killed hy shooting with rifles and shotguns are lost. My estimate would be that two out of every three killed are lost. See the testimony of Francis R. King-Hal), the journalist. Edward Nighl Lawson, a resident of St. Paul's, Kadiak Island, Alaska (ibid., p. 221), killed females in milk in Unimak Pass, and even out in the Pacific Ocean 200 miles from land. They can not distinguish between the sex of fur-seals in the water ; on the contrary, everything in sight is taken, if possible, except large bulls, whose skins are useless. He recommends, in order to prevent the extermination of the fur-seal species, that a close season in the North Pacific Ocean and in Bering Sea should be established and enforced fi-om April 1 to November 1 in each year. Abial P. Lond (ibid., p. 37), a resident of Hampden, Me., special assistant treasury agent for the seal islands in 1885, 1886, 1888, and 1889. William Mclsaacs (ibid., p. 450). Capt. James E. Lennan (ibid., p. 369), master mariner of eight years' experience. William McLaughlin (ibid., p. 451), boat-puller onboard the Triumph. Robert H. McManus (ibid., p. 335), a journalist, whose qualifications have been spoken of heretofore, gives, on pp. 337 and 338, extracts from his diary. This deposition should be read in whole. Patrick Maroney (ibid., p. 464), of San Francisco, a seaman. • Henry Mason (t6td., p. 465), of Victoria, British Columbia. Moses (ibid., p. 309), a native Nitnat Indian, gives liis experience in 1887 on the schooner Ada. They sealed around Unalaska, but did not go to the Pribilof Islands. They caught 1,900 seals. Most all of them were cows in milk, but when they fii*st entered the sea they killed a few cows that had pups in them. The next year they secured only 800, and the year following eight or nine hundred. The seals caught were mostly cows with milk. John O'Brien (ibid., p. 470), of San Francisco, a longshoreman, made a sealing voyage to the North Pacific and Bering Sea on the Schooner Alexander, which sailed from Victoria in January, 1885. He was a boat- puller. They headed north into the Bering Sea which they entered at 308 ARGUMEKT OP THE UNITED STATES. the latter end of May. Up to thut time? they had caught *250 or 300 seals of which 80 per cent, were females. After they entered the Bering Sea they caught about 700 seals, most all of them being females in milk. Ho also shows that there is a very considerable waste of life from killing or wounding and losing animals. John Olsen (ihtd., p. 471) of Seattle, Wash., a ship-carpenter, entered the Bering Sea about the 5th of June, 1891, on board the Labrador, Capt. Whiteleigh, commander. They wei-e ordered out of the sea on the 9th of June. In going up the coast to Unimak Pass they caught about 400 seals, mostly females with young, and put their skins on board the Danube, an English steamboat at Allatack Bay, and after they got into the Bering Sea caught about 220. After entering the seu they got one female with a very large pup, which he took out alive and which he kept for three or four days when it died as it would not eat anything. All the others had given birth to their young and their breasts were full of milk. He also states how large a loss is made by failure to recover the animals that are killed. Osly {ibid., p. 391), a native Makah Indian, went to the Bering Sea in 1886 on board the Favorite, McLean, master. They captured about 4,700 seals, almost all of which were cows giving milk. Four years before that he had gone to Bering Sea as a hunter in the sealing schooner Challenger, Williams, master. There were 3 white men in each boat and 2 Indians in a canoe. We caught about 3,000 sea's, most of which were cows in milk. * , ♦' i,,-.. .. William Short {ibid., p. 348), of Victoria, British Columbia, is by occupation a painter. On January 14, 1890, he sailed as a boat-puller from Victoria on the British sealing schooner Maggie Mac, Dodd, master. She carried six sealing boats that were manned by three white men each, who used bi*eech-loading shotguns and rifles. On the 12th of July they entered the sea through the Unimak Pass. Before this they had captured 1,120 seals on the coast. They lowered their boats on the 13th and captured about 2,093 seals in those waters and then returned to Victoria on the 19th of September. In July, 1891, he sailed out of the port of Victoria as a hunter on the British sealing schooner Otto, O'Reily, master. Failing to procure the Indian crew of sealers that they had expected, they returned to Victoria, after proceeding up the coast, on the 1st of August. While cruising along the coast their principal catch was females with pups. Fully 90 per cent, of all seals secured by them while iu the Bering Sea were cows with milk ; that is to say, out of 2,093 all bat about 300 were nursing mothers. SUMMARY OF THE EVIDENCE. 300 Profitable as tlie business appears to have been to Mr. Shor^ he is candid enough to say that in his opinion — . It is a shame to kill the female seal before she has g^iven birth to her young. Pelagic sealing in the North Pacific Ocean before the middle of June is very destructive and wasteful and should be stopped. • • • Sealing in the sea should be prohibited until such a time as the pup may have grown to the age at which it may be able to live without nurse from its mother. James Sloan (ibid., p. 477), of San Francisco, by occupation a seaman, made three voyages to Bering Sea, in 1871, in 1884, and in 1889. A great many of the females that they killed had their breasts full of milk, which would run out on the deck when they skinned them. In 1889 they went to the Okhotsk Sea and sealed there about two months. They got about 500 seals, of which more than one>half were females, and the most of them had pups in them. They entered Bering Sea about the 1 7th of May and caught about 900 seals. Most of them were mother seals. ..,,,,..-. Mr. Sloan predicts an early extermination of the seals unless the destructive processes are stopped. As he says, the hunters kill them indiscriminately and all the hunters care about is to get a skin. See, also, the testimony of Fred Smith (ibid., p. 349), of Victoria, a seal hunter. Of Joshua Stickland (ibid., p. 349), also of Victoria, a seal hunter who declares that out of 111 seals killed by him in the last year he killed but three bulls. . v» ••. ^ ." r • , John A. Swain (ibid., p. 350), of Victoria, a seaman, gives his experi- ence in 1891. He was on board the steamer Thistle, Nicherson, master. They caught about 100 seals. They were all females that had given birth to their young. In 1892 they caught 270, most of them pregnant females which were caught along the coast. Theodore T. Williams (ibid., p. 491), an intelligent gentleman, by pro- fession a journalist, employed as city editor on the San Francisco £xaminer, makes a very interesting deposition. In pursuit of his pro- fession he had not only had occasion to make extended inquiries into the fur-sealing industry of the Aleutian Islands and the Xorth Pacific, but had gone to the North and had made a complete and exhaustive examina- tion of the open-sea sealing, its extent, probable injury, etc. The perusal of the whole of this very interesting document is recommended. As the result of his investigation in the Bering Sea and North Pacific he asserts the following facts : 310 ARGUMENT OF THE UNITED STATES. Firat. Thnt 95 per cent, of all the Reals killed in the Bcrinfi^ Sen are females. Second. That for every three sleeping Noals killed or wounded in tlic water onlj one is recovered. Third. For every six travelling seals killed or wounded in the water only one is recovered. Fonrth. That 95 per cent, at least of all the female seals killed uro either in pup or have left their newly-born pup on the islands, while they have gone out into the sea in search of food. The result is the same in either case. If the mother is killed the pup on shore will linger for a few days, some say as long as two or three weeks, but will inevitably die before winter. All of the schooners prefej- to hunt around the banks where the female seals are feeding, to attempt to inter- cept the male seal on their way to and from the hauling grounds. This overwhelming and practically uncontradicted evidence certainly justifies the statement of the -British Commissioners as to the "remark- able agreement " upon this subject. How the facts could be disputed without impeaching witnesses taken from every class of society where knowledge could be found, it is impossible for us to conjecture. Officers from the Navy of the United States; British sea captains as wbU os American seamen, journalists, natives, all concur as to the fearful destruc- tion which is going on. It is not possible to read the testimony, even making far more allowance for exaggeration than the nature of the case will justify, without reaching the conclusion that pelagic sealing must be stopped or all hope of preserving the herd abandoned. Palliation, com- promise, and mitigating processes are out of the question. The outrage must be cut at the root and its continuance made impossible. Females that are pregnant eleven months of the year, and nursing mothers three or four months, must be left undisturbed, and if, as all agree, it is impossible to discriminate in pelagic sealing between the mothers and the males, then the other alternative is inexorably before us, and that is absolnte interdiction. (g) The principal fact that a decrease, alarming and continuous, has been noted, is by the proofs and admissions made evident. It required no proofs, as it is conceded by the Commissioners on both sides to exist, and it is for the pni-pose of remedying the evil that this Arbitration has been entered into. It is claimed on the part of the United States that the diminution which threatens extermination ia wholly dno to pelagic eealing, a practice which does not permit the hunter to spare the gravid or nnrsing females: while at the same time, and cooperating with this principal source of undue destruction, the methods used by the hunters frequently resnlt in the death and simultaneoas loss of the animal. It need hardly be said, that prima facie, to such a system SUMMARY OF THE KVIDh.^CE. 311 must be attribalublo the undue deatruotion which it is deaired to prevent. Those who undertake the defonae of such methods and of such a Bjatom can not complain if the burden of proof is placed upon them of justifying a course which has received the condemnation of mankind. It is difficult to perooivu any good roaflon why the ordinary and usual rules that have always been followed as essen. tial to the preservation of a species should be dispensed with in the case of the fur-seals. It matters little whether it is an absurdity or scien- tifically correct to designate them as essentially or naturally or wholly pelagic. Important controversies between enlightened nations will not turn upon nice questiors of scientific nomenclature. The animal whose existence is at stake is useful to man, and it is therefore the interest and policy, as it will be to the honor of both nations, to preserve it. The time has long since gone oy when the selfishness of nations may have been the controlling factor in such debates. But were it otherwise, Great Britain will suffer as seriously as the United States from the ex> termination of a herd of seals which the United States alone can pre> serve, which the United States alone can foster, guard, and protect, be< cause it happens that the vital functions of procreation and delivery are performed on its soil. The United States may and will discharge this duty, to its own people and to the world, provided its efforts are not bafiled and its beneficent action neutralized by the indiscriminate slaughter of which it complains. That the Government of the United States has power, both in law and in fact, within the limits of its own jurisdiction no one disputes, but the suggestion is made that the methods adopted on the islands which constitute the only land resort of the seals are imperfect in practice while perfect in theory. Certain objections are made to show that while care is taken to preserve the fomele from destruction, so many young males have been slaughtered that the necessary vitality is lacking in the service of the females. Thus it is claimed that the two sources combine to endanger the permanency of the seal family, admitted and undue destruction at sea and unwise or excessive killing on t)he islands. Conceding for the sake of argument, and only for the argument, that this is true, it must be apparent that the necessity of preventing pelagic sealing is only the more pressing, in the interest of the industry which it is desired to conserve. The methods of the United States may be faulty, but it should not be forgotten that the Government is especially interested in maintaining an indnatry 312 AROUUENT OF THK UNITED HTATE8. which belou^H to itself. Tho faalti iinpatud arc. utter all ix Miiid, fanltii i>f detail and execution, which do not in any manner iiiTect tho principle adopted. They are nuHcoptible of remedy, and it is idle and abHord to suppoNo that a valuable commerce, susceptible of expansion by judicious methods, will bo wantonly suffered to go to ruin. Self- interest, if no higher motive, may bo trusted to improve the means now in use, in so far as they may require improvement ; experience will constantly throw its li^lit upon the bent moans of performing the duty, while tho ivppreheuHion of Ionh will Htimulato the efforts of those most nearly concerned in the tinancial hucccsh of the business now carried on at the Islands. But it is not, in fact, admitted that any such objections exist. The number of males killed did turn out to be excessive and was therefore roduced. This, however, only became manifest after the ruthless de- struction at sea had begun to be felt on the Islands. That ilcstrnction is only limited by the capa^^ity of tho destroyers. They profess no scruples and they show no mercy. Their " legitimate business " requires courage and skill, it is said, but it is incompatible with the ordinary feelings rf humanity. Present gain is tho only object in view. The poachers' horizon is limited by the season's catob. Is it not an insult to common sense to deny that tho pursuit of pregnant females and tho slanghter of nursing mothers on their feeding grounds are wholly, abso« Intely, brutally inconsistent with any system that requires moderation, self-denial and humanity ? Leaving out all other questions as irrelevant, is it not enough fbr the United States to say, " We can preserve for tho benefit of the world the animal which your poachers are destroy- ing ; you can only do it by a prohibition of methods which you would not for B,n instant tolerate in analogous cases within your jurisdiction. Of what avail are small criticisms upon our system of protection when we are so largely concerned in carrying them to the point of the highest perfection?" ' *' ' '^u-'-i ... j-j.j- .:{ -.:.■ •.., .u.; . i ^- \-~. When suggestions are asked ua to any other way of repressing or oircumscribing this destructive slaughter, the British Commissioners propose as a remedy that Bering Sea be closed when sealing is nn- profitable, and opened daring the season when the horrors and tho profits of the business both reach their climax. The language of the Counter Case of the United States, commenting upon this extraordinary snggestion, is coached in singalarly moderate terms : fff Sr>fMARY OF THE EVrDKNCK. .T13 Tlio riH'ommoiulntiou Uy tho C'oiumiHKionoi-H of u hovwh ..f if^Milritiotm Buch m tli.wo Jibov*' fonsidcml, is ck-arly imlicativo of tlu» hias and '/"""Vni"! "'"*■'' ^^^'^'•' "Pi'*''"' •" "*^^»»''^' «^i'>'y ■"■lion (.f tlu-ir Hopoit (p. 128). TluH subject is treated nt length in tho Counter Case (p. I2ri) and also in another part of thin argument (unh; pp. 1{>0-2U) ; it need not be dwelt upon here. [n conehision it h submitted, an the facts show that pelagic scaling bv itH very nature leads to and nocesHarily depends for suece.ss upon indis- criminatr slaughter, that tho females killetl aro with mre exceptions, either giavid or nursing luothera and form a large proportion of the pelagic (Mtch ; that tho slaughter of a breeding' female of necessity involves tho destruction of the nursing pup nt homo as \ II as of tho unborn fetus, thus destroying three animals at one blow; tliafc the only practical and in. toUigent method of preserving tho ru o is t.. stop pelagic staling, leaving tho United States to continue and to improve, if pcssible, those mea- surcs best calculated to secure an en J ^\hich it is to tho interest of both parties to reach. In other words, tlie experience of men has taught that tho preservation of tho breeding female was and is the only means of preserving and perpetuating the race. TJutil it has been shown that tho animal does not share tho conditions of other animals born and suckled on land, tho usual means 6f preserving them must bo adopted. , . ^.^ ^ , , Unless these propositions are conceded, the hope of preserving tho fur- seals of tho Pribilof Islands must be abandoned. Present greed is not controlled by possibilities of remote loss. The South Sea seals and their fate have taught the world a lesson which tho United States aro seeking to improve in the common interest of mankind. They will succeed if this High Tribunal by its decision shall prevent practices repugnant to tho growing humanity of tho age. ;-si,,j-.. The foregoing statement of facts has been prepared in part with the aid of a collated edition of the testimony presented with tho Case of the United States, and which is herewith submitted to the Tribunal of Arbitration as an Appendix to the printed argument of counsel. F. R. COODERT. i\ 314 ARGUMENT OP THE UNITED STATES. SEVENTH. POIKTS IN BEPLT TO THE BBITISH OOnNTEB CASE. Since the preparation of the Argument on the part of the United States, on the fauts as bo far appearing, the British Coanter Case has been delivered. It contains a large quantity of matter concerning the nature and habits of the fur-seals, the methods and characteristics of pelagic seal- ing, and the methods of dealing with the seals at the breeding places, which matter, so far as it is relevant at all, is relevant to the question of the alleged property interest and rights of defense of the United States, and to the regulations which may be necessary in order to prevent the exter- mination of the animal. This matter is accompanied with a protest (page 3), that, so far as matter relevant only to the question of regulations is concerned, its intro- duction before the Arbitrators is at present improper, and that it has been incorporated into the Counter Case without prejudice to the contention on the part of Great Britain, that the Arbitrators can not consider the ques- tion of regulations until they have adjudicated upon the five questions enumerated in Article VI of the treaty. The counsel for the United States conceive that there is no ground upon which such an interpretation of the treaty can be supported. That inter- pretation assumes that there are to be two separate and distinct hearings and two separate and distinct submissions of proofs. There is absolutely nothing in the treaty to wari'ant such a view, and the distinct provision respecting the Cases and Counter Cases, their contents, the times when they are to be submitted, the preparation of the arguments, the times when they are to be submitted, when the hearing is to begin, and when the matter is flnaliy to be decided, all point to the conclusion that there is to be but one hearing, one submission of evidence, one argument, and one determination. It is indeed contemplated by the treaty that in a certain contingency it may not be necessary for the Tribunal to consider the question of concurrent regulations. This, however, simply involves a condition exceedingly common in judicial controversies, that several questions POINTS IX REPLY TO THE BRITISH COUNTER CASE. 315 IE. ited States, e has been ; the nature jolagic seal- laces, which jtion of the States, and it the exter- t, so far as 3d, its intro- t it has been intention on ler the ques- ve questions jround upon That inter- net hearings absolutely ict provision iines when times when when the there is to nt, and one contingency question of a condition ,1 questions may be made the subject of trial at the same time, and yet the nature of the decision be such as to dispense with the necessity of determining all of them. Assuming that the interpretation of the treaty insisted upon by the nonnsel of the United States is the correct one, the procedure adopted on the part of the British Government is wholly irregular and unauthorized, and the matter thus irregularly sought to be introduced before the Tribunal should be excluded from its view. Otherwise the Government of tho United States would be placed under a disadvantage to wliich it should certainly not bo subjected. In the first place, all the testimony and proofs, wliich bear alone upon the question of regulations, would come before the Tribunal without any opportunity on the part of the United States for making an answer to it. No such possibility is contemplated by the treaty, nor should it bo allowed. No proceeding is entitled to tho name of a judicial one which allows one party to introduce proofs without giving to the other an op- portunity to meet and contradict them. There is another disadvantage scarcely less onerous : Th? govern- ment of Great Britain in thus waiting until the proofs of the United States had been offered secured to itself the very great and unjust adr vantage of obtaining a knowledge of its adversary's Case before com- mitting itself to its own view. It was thus enabled to withhold evi- dence which it would otherwise have introduded, and to give evidence which it would otherwise have withheld. Such advantages at once de- .stroy that equality between contesting parties which is a prime requisite of every judicial proceeding. But matter bearing upon the question of properly was, even in the view of the Government of Great Britain, relevant in the original Case, and any evidence or proofs which the Government of Great Britain de- sired to submit upon that point ought to have been embraced in their original Case. Manifestly, everything relating to the nature and habits of the seals is of this character. It is upon these that the question of property depends. All matter of this description, except such as plainly tends to impeach and was designed to impeach the evidence offered by the United States, should have been exhibited in the original Case, and should not be allowed to be introduced under cover of the Counter Case. Surely it cannot be the privilege of Her Majesty's Government to so introduce its proofs as to deprive the United States of all opporhmity either to answer or impeach them. [S17] , 1 : ! ; :n6 ARGUMENT OF THE UNITED STATES. ■t'' And the Kame circumstance which deprives the United States of its just right of answering by counteracting proofs the new matter contained in this Connter Case also deprives tliem of the ability to fully treat of such matter in argument. Entirely occupied as they are, and must necessarily be, in the final work of translating and carrying through the press the argument already prepared by them upon the original Cases, they have no time at their disposal in the short period between the delivei'y of the Counter Case and the time appointed for the submission of the arguments within which to carefully review and comment upon this new matter. Even the evidence in respect of the clain). for damages made by Great Britain is chiefly comprehended in the Counter Case, so that the United States Government has no opportunity to introduce counter proof, nor oven to analyze in written argument the evidence so submitted. The United States Government therefore protests against the considera- tion by the Arbitrators of any evidence or proofs which in their judgment should, under the true interpretation of the treaty, have been embraced in the original Case of Her Majesty's Government. The only qualification of the unusual advantage which Her Majesty's Government would gain from the permission to lay before the Arbitrators allegations and proofs which the United States have had no opportunity to answer, comes from the circumstance that most of the new matter referred to is of so little materiality or of such small probative force, that the privilege of answering is of '.ess importance than it would otherwise be. There is a failure everywhei-e in this last document, as there was in the principal Case of Great Brita n (including as part of it the separate report cf the British Commissioners), either squarely to assert any proposition vital to the merits of the controvetay, or to attempt directly to maintain it by evidence or argument. There are, aside from the matters relating to sovereignty and jurisdiction, several material questions in this controversy, substantially stated in the Case of the United States. , ,, i • in , ': " • ^i - ",<• M B'ii-st. Do the Alaskan fui'-seals, under the necessary physical conditions of their life, habitually so return to the Pribilof Islands and so submit themselves there to the control of the proprletoi-s of those places as to enable the latter to make thetti the subjects of an important economical husbandry in substantially the same way and with the same benefits as in the case of domestic animals F Second. Has the Govemm%tnt of the Uaited States, the occupant POINTS IN REPLY TO THE BRITISH COl'NTER TASK. 3T OS of its jontained • treat of ,nd must i-ougli tho lal Cases, iween the ubmission npon this 3 by Great the United proof, nor considera- f judgment mbraced in r Majesty's Arbitrators portunity to ter referred e, that the therwise be. was in the larate report proposition maintain it jurisdiction, itated in tho al conditions d so submit places as to it economical jenefits as in the occupant and propi'ietor of those islands, availed itself of this opportunity, and by wit, industry and self denial made these animals the subjects of such hnsbandry, and thereby furnished to commerce and tho world the benefits of the product, at the same time preserving the stock h Third. Do not these facts, under the circumstances proved, give to the United States Government, npon the just principles applicable to the case, and in accordance with the general usage of nations in similar instances, such a right of property in the seal herd and the husbandry thus based upon it as entitles that Government to protect it from destruction, at tiic times and in the manner complained of ? Fourth. Even if it wore possible to conceive that this right of pro- perty, unquestioned so long as the seal herd remains within the terri- torial waters of the United States, is suspended as to each and any individual seal as soon and so long as it can be found outside the terri- torial line, however temporarily, and with whatever intention of return- ing, are individuals of another nation then entitled to destroy such animals for the sake of private gain, if it is made cler,rly to appeal- that such destruction is fc*cal or even largely injurious to tbu important material interest of che United States Government so establiFhed and maintained upon its territory, for the benefit of itself, its people, and man- kind r* More esnecially if the manner of such destruction is in itself so barbarous and inhuman that it is prohibited in all places where civilized municippl law prevails f Is such conduct a part of the just freedom of the sea? "r* « v-?;j:Kt';=f» ■••r''U<^<-~*i_ n-.K-\t ■=iU.i:vr -> ^,.- .'.:.:d^--i • ■■■ "i ".'- • Fifth. Ts any practicable hnsbandry possible in pelagic sealing, or is not that pursuit essentially and necessarily destructive to that interest, and certain, if engaged in to any considerable extent, to result in the loss, commercially speaking, of the animal to the world ? Who will say that Her Majesty's Government, in its principal Cnsc, or in its Counter Case, takes a square attitude upon either of these questions V Who will say that it squarely negatives either of the two first or afhrms the last of these questions, as matters of fact, or meets with any satis- factory answer, either npon principle or- authority, the pro])08itions of the other two r* What, then, is the character of this Counter Case, so far as respects the matter refeiTed to i' It seems to consist in great part of desultory obser- vations, suggestions, and conjectures, probable or improbable, upon imma- terial points ; or, where the points are material, the matter is vague and .indefinite, and the proofs slight, often inconsistent, and every whei-eunsatis- L317] ' X 2 318 ARGTTMENT OF THE IN TIED STATES. fdctorj. Observations .nade in one place are qualified in another, con- tradicted in anothe' , and perhaps reasserted in another. To follow such a line of discussion with minute criticism would be an endless task, and when it was concluded it would be found to be nearly use- less. The best method of dealing with such a sort of contention will be fo briefly state the points to which it seems to be directed, and to offer such observations upon these and the matters relating to them as seem most pertinent. • ' ' ' ' •• , ■ ' First. Considerable importance seems to bo assigned to the point whether seals are moi'c aquatic than terrestrial in their natui'e, and surprise is expressed that they should be viewed, in the case of the United States, as being very largely land animals. But whether they are principally aquatic or terrestrial is of little import- ance. It is certain that they are amphibious, and that they live sometimes upon the land aud sometimes in the sea. The only important question is whether they have those qualities, which, under the principles upon which the law of property rests, make them property, or render it expedient that an industry established by the United States in respect to them should 1 ■ protected by a prohibition of slaughter upon the high seas. Second. Much stress ii also ]'*id upon the question whether coition may be had in the water. Of what consequence is this ? We know it is a fact that it is had principally, if not exclusively, on the land, to an extent which in its circumstances forms the most prominent distinctive and con- trolling feature in the habits and movements of the fur-seal. The births certainly take place upon the land, and it is there that the young arc nonrisbed and brought up. Third. A good deal in the Wi y of conjecture is stated and sought to be supported, to the effect that the seals may have had, in times o! yvLich we know nothiiig, other bj-eeding places, of which wo know nothing ; and may again be driven to other haunts. It is not perceived that these conjecturea are in any manner relevant. They are purely conjectures, and were they determined one way or another, it would not matter. What we arc dealing Avith is an animal which has had uniform habits ever since anything has been known about it ; and the only reasonable conjecture which we can make is, if it were of importance to make any, that it will continue to have, in tho future, the same habits, as under the same circumstances it has had in the past. Feuvth. In the report of the British Commissionem, submitted with- her, con- low such less task, xr\j use- D will be 1 to offer I as seem the poiiit d surprise ;e(l States, ,le import- sometimes [uestion is pies upon render it respect to n the high loition may lOW it is a an extent ?e and con- The births young are 9Ught to be wliich we g ; and may conjecturea and were ^hat we are ce anything lich we can lue to have, 8 it has had mitted with- « I'OINTti IN HEPLY TO THE BRITISH COUNTER .CASK. 319 tho original Case, it was in substance admitted that tho Alaskan herd was entirely separat'C and distinct from the herd on the opposite side of the Pacific Ocean. A good deal of matter is set forth in the Counter Case tending to support the opposite notion, that the members of these different herds commingle. It is enough to say in answer to all this, that the utmost which is asserted is mere conjecture, and as such should be dismissed aa wholly unworthy of consideration. Surely this Tribunal will find other grounds than conjecture upon which to base its decision. And besides, the absence of any commingling between the herds worthy of consideration is fully proved by the evidence. It is suggested in the Counter Case that tho distinctive features which the Alaskan herd exhibits are probably those only which nre due to a long residence under peculiar geographical conditions. Let this be con- ceded. How otherwise could they be denied ? Upon tho speculative question whether these different herds of seal are of different species or not, or whether they were onco derived from a common stock, we arc at liberty to amuse ourselves with such conjectures as may please us. It is of no importance how the Alaskan herd acquii-es its distiactive physical peculiarities, if they have actually been acquired so that they tan be distingnifhed from others, and of this the testimony of the fun-iers, to go no further, is conclusive. But what if it were proved even that .he herds did commingle ? It is not perceived that this would be of any material consequence. Would it be for this raason any the less a crime against the law of nature to destroy them ? Would it be any tho less important that tho seals shoald be regarded generally as property or any the less important that such regulations .should be adopted as would prevent their exter> mi nation ? Fifth. It is again insisted, as it was in the report of the British Com- missioners, that it is not proved that the females go long distances frcm the breeding places into the sea to seek for food while they are nourishing their young. But in tlie face of the evidence that tlie females actually do go into the water universally, that they are destroyed there in large numbers, and that they have in numerous instances been found and killed by pelagic sealers at long distances from the shore with their breasts filled with milk, how can it be sug- gested, with any expectation of belief, that the fact is not proved ? For what purpose t^o the females resort to the water? What id the 320 ARGUMENT OF THE UNITED STATES, object of their distant 'txcai*sions into Boring 8ea, whoro they htivo been known to be 'r' Is ij not reanonHble to Ruppose that nursing mothers require nourishment r* Anci how else are the young sup- ported ? But here, again, supposo it were true tliat tliose excursions were not made for tlio purpose of food. Tboy are yet made, and the danger of their being slangiitered by pelagic sealers is as great as if the object of their excursions were food. Sixth. Much space is devoted in this Counter Case to the subject of the frequent finding of numerous dead pups; and here also conjecture is abundantly resorted to. It is suggested that they may have been killed by disea.se, or by the rush of other seals over them, or by the w.'ives of the sea, or by their mothers having been killed by being driven to the hauling grounds and thus injured and prevented from finding their way back to their young. But to what purpose is it to suggest that a gi-eat variety of things may have happened, of no one of which any proof is given ? Doubtless it is true that some of the young die from a variety of causes of which we know nothing, as is the case with all animals. The question is, whether the slaughter of their mothers by pelagic sealing is not a cause, and the principal cause of this mortality. When we know that the mothers do habitually resort t( the sea, where they are killed in great numbers, when we know that they have often been killed at long distances from the shore with their breasts distended with milk, when we know that suckling is the natural and only mode of nourishment to the young, and when we know that a number of the pups dead upon the islands are extremely emaciated, and exhibit all the appearances of having died in consequence of the loss of nourishment, the conclusion seems plain enough that their mothers have been killed at sea and they starved in consequence, and no amount of con- jecture can displace it. I ,( )!....,;. . a:-!' Seventh. It is said by way of argument against the allegation of a property interest that the seals, although they return to the same f^eneral breeding place, do not always return to the same island, or to the same place upon the same island. This may or may not be tx-ue ; but of what importance is it, when it appears that all the islands ever have been, now are, and are likely to continue to be the property of one proprietor, the United States Government ? And if it were otherwise, if there were movy different proprietors of the different islands and of different places on the same islands, of what consequence would it be '1 POINTS IN REPLY TO THE BRITISH COUNTER CASE, 321 liey hfcvo nursiDg ing sup- were not langor of object of 4abiect of jonjecturo lave been or by the by being ited from « is it to jf no one me of the r, as is tbo V of their [ ctiuso of illy resort know that with their ic natural low that a iated, and le loss of lers have ut of cou- itioii of a the same and, or to be true ; ands ever rty of one otherwise, ds and of uld it be upon the gonoral qnestiona of property intorost or what regolivtiooH were necessary in order to proservo the herd ? All tho points above onnmorsted, made ^by the British Counter Case, are, it is oonoeived, essentially immaterial. They might bo decided the one way or the other without tonobing the merits of tho real question of the controversy. In saying this, however, wo by no means intend to intimate that anything is contained in this Counter Case, by way of evidence, which in any way modifies or weakens the proofs which the United States have in their principal Case adduced to support tho posi* tions taken by them. • - - There are, however, some points which the Counter Case deals with which are of greater importance; but in respect to these, although the points themselves are material, the new evidence which is brought for- ward or the new views which are suggested are not perceived to be material. Some brief observations should be bestowed upon them. First. Pelagic sealing is again defended, but how is it defended P Is it denied that it is in its natm*e destructive as involving tho killing of females to a much greater extent than males? Is it denied that the greater part of these females are either . pregnant or nursing, and sometimes both ? Is it denied that a great many victims are killed and wounded which are never recovered ? Is it denied that many young perish on account of the death of the mothers ? There is no denial upoa either of these points. What then is asserted or suggested in the Counter Case ? Simply that the statements upon this subject are exag- gerated. ' -IJi-rj :-!■;« VM ^io,.:v.v:.v-;i r;7Mt : .^vi- i It would enable counsel for the United States to better answer any position taken on the part of the Government of Gi-eat Britain upon these points if the counsel for the latter would commit themselves to some definite proposition or assertion, but this is carefully avoided by them. They say, indeed, that the statements upon this head are ex- aggerated ; but whose statements are exaggerated ? And hotc much ave they exaggerated ? The evidence given in the Case of tho United States in great abundance shows that from 75 to 00 per cent, of the entire pelagic catch is composed of females. If it be this which it is insisted on the part of Great Britain is an exaggerated statement, then how much is it exaggerated ? Is it exaggerated 6, or 10, or 20, or 40, or 50 per cent. ? What, according to the best informs bion obtainable by the counsel for Great Britain, is the most reasonable Statement of the proportion of females in the pelagic catch ? They giva us no infor- 322 ARGTTMENT OF THE UNITED STATiJJ-. niation upon these points. They offer no estimate ; and if wc I'ocur to the proufs contained in the depositions which are given, wo are still worse off. These vary from 5 to 80 per cent. Most of them, those that place the amount at less than half, every one can see must be false. For what purposes are such proofs presented i' Is it expected that they will be believed to be true ? It will perhaps be suggested that the trnth may be found by taking an average of these inconsistent istatcments. Such a tourso has been pursued on the part of the Oov* evnment of Great Britain upon the point of how many seals are killed or wounded that are never recovered ; but the method of endeavoring to obtain the truth by taking an average of lies seems to be open to question. • Upon this whole matter the counsel for the United States will content themselves by offering the following summaiy of considerations : I. The assertion in the Case of the United States is, that the propor- tion of females in the pelagic catch is at least 75 per cent. The reason- u\)lcric?s of this is supported in multiform ways. (1) It is nowhere denied in the report of the Commissioners on the part of Great Britain, nor even in the British Counter Case. (2) Upon any fair construction of the answer of one party to the allegation of another, it must be taken as admitted. The admis- .s!on is reluctantly made in the British Commissioners' Report and in the British Counter Case also that a " considerable proportion " of the pelagic catch consists of females. What does a " considera- ble pi'oportion " mean ? Five per cent., or 10 per cent., or 20, or 60, ui> 75, or 80? The language is sufficiently broad and indefinite to cover either of the pi-oportions named, and, as the assertion made on the part of the United States is not denied, the admission in (piestion must be taken to bo nn admission of the facts substantially .. iis asserted on the part of the United States. .;. ,; ,,, ..; ; • (3) The proofs adduced by the United States from persons en- ,. gaged in pelagic sealing or with definite knowledge of it, over- whelmingly support the assertion. ^ (4) The proofs contained in the British Counter Case also support it. They are the statements of the pelagic sealers themselves, a class of witnesses in the highest degree interested and not very much to be depended upon. They must be taken most strongly against the parties making them. And excluding those that are manifestly false, we find enough remaining to fully support the con- POINTS IN REPLY TO THE BRITMH COUNTER CASE. 323 o r^cur to I) are Htill leiD, those e must bo it expected suggested nconsistent f the Gov- , are killed indeavoring be open to vill content the proper, rhe reason- issioners on Case. jarty to the ?he admis* Report and )roportion " " considera- •r 20, or 50, ndefinite to srtion made Imission in ubstantially lersons en« it, over- so support imselves, a not very t strongly se that are rt the con- tention of the United States. Among those witnesses there are a large number who place the proportion of females in the catches made by :•< . them, respectively, higher than 60 per cent. (5) But the proof furnished by the furriers is absolntcly decisive, and this makes the proportion fully equal to the assertion by the I United States. (6) If wo look nt the. probabilities of the case, no assertion in opposition to the contention of the United States can be enter- tained for a moment. When we consider that the female at sea is .i as a general rule, more easily approached, and therefore more easily secured, than the male, and that the number of breeding females is, as compared with the breeding males probably twenty to one, how is it possible that the slaughter of the females should not embrace anywhere from three-fourths to four-fifths of the entire catch ? If indeed, we could credit the assertion continually put forward in the report of the British Commissioners and in the Brit* . ish Counter Case, that there has been for years on the Fribilof Islands an excessive slaughter of young males, and that thus the number of breeding males has been very much reduced, so as to make the harems three and four times as large as they foi^merly were, the excess of females over males would, be vastly multiplied, and the wonder would almost be how anj breeding male should ever be killed. • • II. Considerable attention is given to an attempt to controvert the position of the United States, that a large number of seals struck by pelagic sealers arc lost without being recovered. Of course the United States have had no opportunity to conti'overt the proofs presented upon this point in the British Counter Case. They contain no evidence except that of pelagic scalers, and this must be taken most strongly against them. Upon this point the reasonable and probable inferences from incontestiblo facts are of greater weight than the loose and suspicious statements ot the witnesses i-eferred to. We know that when a seal is killed he sinks at unce, because his specific gravity is greater than that of the water, although he may sink more quickly in some in- stances than others. We also know that wheu a seal is wounded, but not killed, he has great capacity to escape the pursuer. We know that skill in shooting and skill in recoveiy must vary very much among dif- ferent men. Under these circumstances, it is not reasonable to believe that half the seals fatally wounded are scoured . 324 AROrMENT OF THE UNITED STATES. Ill, Furfchor attention is p^ivoa to alloged mismanagement of the hohI lierd upon the Pribilof Islands. Little or nothing now in the way of evidence is offei'ed upon the subjeofc, but the assertions contained in the British Commissioners' report are repeated and enlarged. The points on which particulars of this alleged mismanagement are stated are : (1) the excessive killing of young males ; (2) injuries committed by what is called "overdriving"; (3) raids upon the islands. •' •'• i m-- (1) Concerning the excessive slaughter of the young males, there is no trustworthy evidence than an annual draft of 100,000 was, before any injury effected by pelagic sealing, excessivo. It is undoubtedly true that such a draft upon the islands, coupled with any considerable amount of captures at sea, would be excessive, and consequently we find that after pelagic sealing had reached considerable proportions it became increasingly difficult to make the annual draft of the 100,000 upon the islands, which difficulty increased to such an extent that in 1890 it was arrested by the action of the agent of the United States Government. If at that time, ur prior to that time, the extent of pelagic sealing had been known and its effects upon the herd ascertainable, action would have sooner taken place to restrict the killing upon the islands. In this suggestion the damages oocasionod by pelagic sealing arc insisted on as its defense. ' ' ' - ': ' "^♦' '■ *h . i-...' (2) In respect to over-driving, no proofs are submitted which furnish any considerable support to the assertion. It is un- doubtedly true that from the very nature of the case there may be more or less seals included in the drives unfit, by reason of being females or otherwise, for slaughter. These are allowed to drop out to regain the herd. The business of driving may be, if negli- gently conducted, ti-ying and injurious to the subjects of it, but it is not necessarily so in any considerable degree. There is no pi-oof worthy of attention that it is so negligent. The interest of those engaged in it is largely the other way. And the evidence that it is well conducted is ample. (3) Upon the Islands it is to be said that undoubtedly there have been in the past, and may be in the future, attempts, some times successful on the part of marauders, to take seals by night. But of what consequence is this to the argument ? Does it show anything more than that there ought to be kept an adequate guard ? And certainly we know that it is in the interest uf the proprietors POINTS IN REPLY TO THE BRITISH COUNTER CASE. 333 ! the Houl 10 way of od in the points on : (1) the ht is called Qg males, of 100,000 eHHivo. It npled with excessivu, id reached t to make 1 difficulty ited by the If at that g had been Btion wonld the islands, sealing aro litted which It is Tin- lere may be on of being ed to drop be, if negli- jf it, but it Inhere is no interest of le evidence Itedly there pmpts, some Is by night, loes it show |iate guard? proprietors lo keep one. What self-interest will not move men to do, thoy will not do from any other motive. But whence do these raids conio? From the very Healing vesNels engaged in pelagic sealing. That is ouu of the mischiefs of timt pursuit. (4) Touching the allegations of mismangemunt upon the islands, embracing the three forms of ])ossible injury to the seals whioh have been menti(niod, there is this to be said : they may possibly occur in consequence of carelessness ur neglect; but every motive and every interest Htimulatos the United States as well as their lessees, to make the evils as small us possible. And cDuccrning the extent to which these evils exist, the conclusion must be formed upon t)ie statements of actual witnesses, and not uppn lectures or articles in newspapers baaed by the writers wo do not know upon what evidence or whether upon any evidence at all. ' (5) But what is tlie point supposed to be established or sup< ported by this matter concerning mismanagement upon the islands 'i What is the object for which it was intix^duced h What conclusion would it justify if the assertions were proved to their fullest extent ? Do they show that pelagic sealing is any less mischievous ? Do they show that in that form of sealing males are taken nnd not females? Do they show that in that form of sealing a great many are not wounded and crippled that are never recovered r* Do they show that in administering a herd of such animals on the land females should be slaughtered and not males? Do they show, or aro they intended to show, that the United ''" tes has not adopted methods grounded upon the right principles? Do they show '.v are they intended to show that a different set of pi-oprietors tium the United States wf tho OoVorn- mcnt of Grent I) I'ain to Hupport tliat view ? If so, Nomo intima- tion to that effect would have bpcn extremely pertinent in thisConntcr Case. And when tliot view comcH to be Bapported, if at all, it is to Uo « hoped that those who advocate it will take into consideration and give HiitiHfactoiy explanations upon tho following points : *'. (fi) What tnnn of science, familiar with the races of animals and - • the causes which tend to their destruction or their preservation, entertains a like view? What man acquainted with the business of practical husbandry and dealing for profit with a race of animals polygamous in its nature, thinks it wise to slaughter males and females indiscriminately for the market, or rather, to make their seloctions for slaughter consist in the proportion of 75 per cent, of females. * H (6) Is it likely that oiiy better provision for the preservation of the race of fur seals can be suggested than that which assigns tho rewnrds of preservation to those who alone have the ohility and tho disposition to exercise tho best methods of preservation ? 1 ' Is the method which has preserved in undiminished numliers for i one hundred years and upwards the herd of swils resorting to tho . -. Commander Islands, a mistake, and is the same method which has • ! been pursued for nearly the same period on tho Pribilof Islands, • and with tho same etfect until tho ravages made by pelagic sealing ■wei'O committed, also a mistake ? And wherein is there any essential difference between the methods pursued on the two groups '. > of islands ? And, finally, were it even admitted that the United States Gov- • ornment mismanages its own business to the detriment of its own interests, would that destroy its right of property in tho business ? Or deprive it of the right of self-defense ? Or justify a slaughter by the poachers which would otherwise be unjustifiable ? Or even render it probable that such mismanagement would not be corrected by experience ? It is worthy of remark, in conclusion, upon the subject of regulations, so largely dealt with in tho British Counter Case — 1. That while it is now professed on the part of Great Britain that Her Majesty's Government is willing that just regulations for the pi'eserva- tion of the fur-seal should be adopted, it is solely owing to the refusal iho OoVorn- jmo intiniH- this Counter , it is to Uo ion and give animalB and preservation, the business je of animals • males and ) make their > per cent, of reservation of ih assigns tho he ability and preservation ? numbers for sorting to the lod which has ibilof Islands, pelagio sealing is there any he two groups led States Gov- lent of its own tho business V ify a slaughter Ible? Or even »t be corrected of regulations, i-itain that Her the prcserva- to the refusal POINTS IN IIKI'LV TO TUK lUIITISll (OlNTKIl ( .\>K. i'J? of tlint government to consent to imy iuch regulutioiiH, on account of the objuL'tions of Caiinda, tlnit this controversy lias urinen and this arbitration has boon rondori'd necessary. The attitude of Canada on tliis subject plainly shows that it quite well understands that any regu- lations adopted for the preservation of tho weal which wouhl be at all adequate for that purpose most substantially, if not untirely, put an end to pelagic sealing. The object of tho ad\onturerB, which that Province thinks it right to protect, is simply to make what profit is to bo derived out of the destruction of tho fur-seals in tho few year.- icquircd for it.s completion. 2. In the British Counter Case, every objection possible to be brought forward to the making or enforcing of any regulations, is insisted on. The real position assumed is that of opposition to any regulations that would bo of Hutticicnt value to be worth adoptii.g. Those proposed by tho Dntisli Commissioners are for the benefit of pelagic scaling and an en- hancement of its profits, and its consequent destruction by restricting the unquestioned right of the United Stat' to take the seals on its own terri- tory. In answer to the proved charge that pelagic sealing conduces to tho inevitable extermination which it has produced everywhere else, and that the methods employed by the United States (iovernment tend to the preservation of the animal while making its |»roduct available to tho world, it is gravely proposed by the British Commissioners to adopt regu- lations which would diminish that use which is consistent with the protec- tion of the seal, and which is not called in question by the treaty, so as to increase the use which is destructive ; and to add to the losses already suffered by the United States in its territorial interest, by increasing tho profits of those who are engaged in destroying it. Tt is difficult to deal seriously with such proposals. E. J. PUEM'S. James (.'. Cakteh. H. W. Bloduett. F. R. Col'ltEIlT.