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Opinions of Senator Morgan at the conference in Paris of the Bering Sea Tribunal of Arbitration, constituted… Morgan, John Tyler, 1824-1907 1893

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Array         BERING SEA TRIBUNAL OF ARBITRATION.
OPINIONS
OF
SENATOR  MORGAN
AT THE
CONFERENCE IN PARIS
OF THE
BERING SEA TRIBUNAL OF ARBITRATION, CONSTITUTED BY THE
TREATY OF FEBRUARY 29, 1892, BETWEEN HER BRITANNIC
MAJESTY AND THE UNITED STATES OF AMERICA, AND
COMPOSED  OF  THE   FOLLOWING  MEMBERS:
BARON DE COURCEL,
Senator and Ambassador of France, President of the Tribunals
THE RIGHT HONORABLE LORD HANNEN,
Of Great Britain;
THE   HONORABLE   SIR  JOHN   THOMPSON,
Minister of Justice and Attorney-General of Canada;
MR. JUSTICE HARLAN,
A Justice of the Supreme Court of the United States;
SENATOR MORGAN,
A Senator of the United States;
MARQUIS EMILIO-VISCONTI VENOSTA,
Former Minister of Foreign Affairs, and Senator of the Kingdom of Italy
And HIS EXCELLENCY GREGERS GRAM,
Minister of State of Norway.
WASHINGTON", D. 0.:
GOVERNMENT PRINTING OFFICE.
1893.  THE TRIBUNAL HAVING UNDER CONSIDERATION THE MOTION OF
MR. JUSTICE HARLAN, SET FORTH IN THIS PAPER, SENATOR
MORGAN SUBMITTED THE FOLLOWING STATEMENTS AND REMARKS.
From the time when the controversy, which is the subject of this arbitration, assumed the form of treaty engagements between the United
States and Great Britain, it became a matter that invoked the sovereign
powers of both Governments, and the rights of the United States and
of the subjects of Great Britain were merged in those of each sovereign,
as they are fixed by that treaty.
Each Government, in its own way, and according to its own will,
without legal responsibility to its citizens or subjects, undertook to
control the entire subject in its capacity as a sovereign. These powers
were exerted in their broadest form in the modus vivendi of 1891, .
which was fully executed, and in that of 1892, which is made a part of
the Treaty of February 29,1892. In the creation of this Tribunal of
Arbitration, and in the definition and limitation of its powers, this
arrangement was continued in force. It results from this attitude of
the two Governments toward the fur-seals referred to in the treaty
that any dealing with them on the high seas by any person lawfully
bearing the flag of either Government is an act for which that Government must be responsible to the other Government if any question
of responsibility arises.
It was quite as competent for the two Governments to prohibit the
taking of fur-seals as far to the south as the equator as it was to prohibit it in Bering Sea, so far as their citizens or subjects are concerned;
and it was as competent for them to make the prohibition perpetual
as it was to confine it to two or more fishing seasons. The two Governments forebore to prohibit pelagic sealing in the North Pacific
Ocean pending this arbitration, in the evident hope and belief that the
award in this case would be made in time to prevent any seriously
mischievous effects of that pursuit, by a decision that would settle the
3 question whether the right and duty ot protecting seal life would rest
exclusively with the United States, or would require to be accomplished through the concurrent action of both Governments.
No power was conferred on this tribunal to protect the seal herd,
the preservation of which is the great leading purpose of the arbitration, while the proceedings are in progress. The result is that unrestrained pelagic fur-sealing is now being carried on in the North
Pacific Ocean, and if the experiences of the years 1891 and 1892 are
repeated in 1893, the destruction of the species is now progressing
with fatal rapidity.
In view of these facts, it is of vital importance that the humane and
wise purpose of both Governments to preserve and protect these fur-
seals should not be defeated by any objection to the jurisdiction of this
tribunal that is based on technical grounds, and is held back by the
objector to meet the views of counsel, or others, upon a question of the
order of our proceedings. Especially is this true when one of the
Governments is solemnly denying to this tribunal the right to consider
a vital feature of the subject submitted to the tribunal, which the
other government, with equal force and firmness, asserts to be clearly
within their competency. Under such conditions no one can foretell
with certainty whether the award that this tribunal shall make will
result in protecting and preserving seal life, or will only invite, hereafter, a wider and more determined controversy between the two Governments.
For my part. I regard the present situation as being dangerous and
deplorable, and I most earnestly desire that this tribunal shall, in the
outset, determine its responsibilities and meet them in whatever way
it may think its duties Require.
To relieve this embarrassing situation Mr. Justice Harlan has offered
the following motion:
Mr. Justice Harlan moved that the tribunal, before entering upon the
matters submitted by the treaty, determine its competency so far as it
may be involved in the following questions:
1. Is it competent, under the treaty, for this tribunal to prescribe
regulations applicable to such parts of the North Pacific Ocean, outside the jurisdictional limits of the two Governments, as are traversed
by the seals frequenting the Pribilof Islands, if, upon the facts, regulations of that character are necessary " for the proper protection and
preservation of the fur-seal in, or habitually resorting to, Behring
Sea."
2. Is it competent, under the treaty, for the tribunal to prescribe
regulations for a " closed season " covering such waters of both Behring
Sea and the North Pacific Ocean, outside the jurisdictional limits of I
the two countries, as are habitually traversed by these fur-seal, and
embracing the months during which fur-seal may be taken in the open
seas,, and during which " closed season" all hunting of seals in such
waters shall be forbidden, provided the facts show that regulations of
that character are necessary " for the proper protection and preservation of the fur-seal in, or habitually resorting to, Behring Sea."
| The motion of Mr. Justice Harlan that I have just read was submitted to the Tribunal of Arbitration on Saturday, July 15, at the first
meeting of the Arbitrators for consultation, after the close of the oral
arguments of counsel.
This motion relates to two disputed questions as to the powers of
the tribunal, which were raised and formally presented by the Government of Great Britain, in its counter case, on February 3,1893, as
follows (page 162):
The position here taken on the part of Great Britain is that already
taken in the original case.   It is there stated:
"Finally, that while Great Britain has from the first strenuously and
consistently opposed all the foregoing exceptional pretensions and
claims, she has throughout been favorably disposed to the adoption of
general measures of control of the fur-seal fishery should these be
found to be necessary or desirable with a view to the protection of the
fur-seals, provided that such measures .'be equitable and framed on
just grounds of common interest, and that the adhesion of other powers
he secured as a guaranty of their continued and impartial execution."
For the correspondence on this point the Arbitrators are respectfully referred to the appendix to the United States Case.
A claim is made in the concluding words of the United States Case
that such regulations be "prescribed by this high tribunal as will
effectually prohibit and prevent the capture anywhere upon the high
, seas of any seals belonging to the said herd."
*Her Majesty's Government respectfully protests that no power to
impose on the contracting parties a total prohibition of pelagic sealing
is conferred on the tribunal by the arbitration treaty, whether the
assent of other nations be or be not made a condition of such prohibition.
Article vii empowers the Arbitrators to "determine what concurrent regulations outside the jurisdictional limits of the respective governments are necessary, and over what waters such regulations should
extend."
The power thus conferred relates to the only area in dispute, viz,
the waters of Behring Sea eastward of the line of demarcation specified in the Treaty of Cession of 1867, and excludes the supposition
that prohibition could have been intended.
I have copied the full statement of the British Government as to its
position on this subject, both in the Case and Counter Case, that we
may have the whole subject before us in the connected form in which
it is thus presented in the British Counter Case.
It will be seen that Great Britain in stating its objections and pro-
ii*]aa| test against the existence of these powers under the treaty of February
29,1892, and their exercise by the Tribunal of Arbitration, makes no
reference to anything except the text of the.treaty. No ambiguity in
any part of the treaty is suggested and, consequently, Great Britain
had no occasion to go outside of the text of the treaty in order to present distinctly the grounds of objection to the power of this tribunal
to make such regulations as are stated in the foregoing extracts from
the British counter case. This tribunal must for that reason, and for
every reason that could exist in respect to its warrant of authority to
take any valid action in this-proceeding, look to the text of the treaty
alone for its powers.
There is, then, no occasion for delay in responding to the objection
and protest of Great Britian as above stated, for it is not possible that
any further facts can be presented that would throw any light upon
the subject.
This challenge of the powers and authority of the Tribunal of Arbitration, and this protest against their action in determining any regulations to restrain, or prohibit, pelagic fur-sealing outside the waters of
Bering Sea, was not presented as a diplomatic question to the Government of the United States, but is now for the first time presented
as a protest to the tribunal, to warn it against the usurpation of unwarranted powers, and a statement that the powers mentioned in the
protest are not conferred upon the tribunal.
Under no circumstances is it to be assumed that these objections to
the powers of the tribunal are lightly suggested to excite inquiry or to
awaken the attention of the tribunal, coming as they do from a most
enlightened and powerful Government, or that their effect will not be
felt in subsequent inquiries by Great Britain into the question whether,
the tribunal has acted ultra vires, if its award should injuriously affect
the interests of the subjects of Great Britain.    Moreover, these objec- -
tions and protests were repeated in the most earnest way by the
attorney-general of Great Britain, and by each of the able counsel who"
assisted him, in the written and oral arguments made before the tribunal.
It is not necessary to call attention, in detail, to these arguments, I
for the record of them is preserved, and their ability and learning is so
conspicuous that their influence can not be ignored.
These objections to the powers of the Tribunal, as to the regulation of
pelagic sealing, were first taken in the British Counter Case.
In the original Case, on page 160, in paragraph 19 of the "Becapitu- lation of Argument," the following is the position taken by the British
Government:
19.—No regulations affecting British subjects can be established for
the protection and preservation of fur-seals in the nonterritorial waters
of Bering Sea without the concurrence of Great Britain.
That statement is quite in line with the power of this Tribunal to
declare either that it accorded with the legal rights of British subjects,
or that it did not. That was not an assault on the powers of the
Tribunal, but a strong appeal to its judgment on an alleged right of
British subjects.
The other statement on this subject, found in the British Case, I
have already quoted, but will repeat. It is taken from an outline of
argument on page 9, and is as follows:
Finally, that while Great Britain has from the first strenuously and
consistently opposed all the foregoing exceptional pretensions and
claims, she has throughout been favorably disposed to the adoption of
general measures of control of the fur-seal fishery, should these be
found to be necessary or desirable with a view to the protection of the
fur-seals, provided that such measures be equitable and framed on just
grounds of common interest, and that the adhesion of other powers be
secured as a guarantee of their continued and impartial execution.
The objections raised in the British counter case (above cited) to the
jurisdiction of the Tribunal of Arbitration are far more urgent in their
demand for diplomatic settlement than the question, that was settled
in that way, relating to the matter of the determination of Great
Britain to abide by and perform the award of the tribunal.
- If, however, the Tribunal of Arbitration shall determine to proceed to
a final award without referring this vital question, as to their powers,
to the two Governments for their further consideration they must iiyjur
the risk of having their award repudiated by the one Government or
the other. •
The case of the United States is based in a large part, if not most
largely, upon the fact that the Tribunal of Arbitration has the powers
that are indicated in the two propositions stated in the motion of Mr.
Justice Harlan. Much more than half of the testimony offered and
cited by the counsel for the respective Governments was adduced in
elucidation of the subject of the regulations that are proper for the
protection and preservation of fur-seals in the North Pacific Ocean.
It is, taken together, an immense mass of facts and expert opinions.
The argument of counsels on the part of the United States were
addressed^at great length and with untiring industry and the highest 1
i
8
ability to point out the powers of this tribunal to regulate pelagic fur-
sealing in the North Pacific Ocean and in Bering Sea. No motion
was made or intimated on the hearing that this tribunal should refuse to
admit such evidence on the ground that it had no jurisdiction to make
regulations to protect and preserve the fur-seals in the North Pacific
Ocean.
After all this, is it a reasonable expectation that the United States
will accept an award that ignores the greater part of its case? Can
we assume that the United States has consented to a treaty, and made
this earnest effort to present its rights in accordance with it, and
will be content that this tribunal shall find that it has no power even
to consider those rights?
Moreover, we are called upon to decide that the powers of the tribunal to regulate pelagic sealing are confined to the area of Bering
Sea; and to base that finding on the alleged fact that this is " the only
area in dispute." To find this alleged fact we are invited to quit the
text of the Treaty and to go into the diplomatic correspondence that
led to its adoption for our authority so to construe that instrument.
That process of construction might be adopted by this tribunal as a
means of clearing up an ambiguous expression in the Treaty, under
which a right is claimed in favor of either party, but no such proceeding can be resorted to in order to limit or enlarge our powers as a
Tribunal of Arbitration. That would be to make a treaty by construction, and then to proceed to administer rights under it.
Much less can this tribunal create its powers by merely declaring
them.   Our powers are to be found in the clear meaning of the text of;
th» treaty, or they do not exist.  If we find them in the treaty we can
not refuse to exercise them.
I will not now present an argument in support of the existence of
the powers stated in the motion of Mr. Justice Harlan further than to
make some quotations from the text of the treaty, premising that I
understand it to be fully admitted on all hands that a great and lead-'
ing purpose of both governments in making this treaty is to protect
and preserve the fur-seals iu, or that habitually resort to, Bering Sea.
The fur-seals to which this treaty relates comprise a family or herd
of animals that are in Bering Sea, or habitually resort to those waters
and the islands in that sea. As the protection and preservation of
these animals is the real result sought to be accomplished by the
treaty, the only accurate method of defining the scope of the powers 9
of this tribunal for their protection, as to its application, was to
describe the herd; but the restrictions upon the limits of the jurisdiction
are defined by the territorial boundaries of the two countries that own
all the shores and islands that are washed by the waters in which these
animals are found that resort to Bering Sea.
In the light of these facts, disclosed on the face of the treaty, the
following quotations from the treaty make it clear that this tribunal
possesses the powers stated in the motion of Mr. Justice Harlan:
Article I.
The questions which have arisen between the Government of Her
Britannic Majesty and the Government of the United States concerning the jurisdictional rights of the United States in the waters of Bering Sea, and concerning also the preservation 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, shall be submitted to a tribunal of arbitration, to
be composed of seven arbitrators.
• #####*
Article III.
The printed case of each of the two parties, accompanied by the documents, the official correspondence, and the evidence on which each
- relies, shall be delivered in duplicate to each of the arbitrators and to
the agent of the other party as soon as may be after the appointment
of the members of the tribunal, but within a period not exceeding four
months from the date of the exchange of the ratifications of this treaty.
Article IV.. ^
Within three months after the delivery on both sides of the printed
case either party may, in like manner, deliver in duplicate to each of
the said arbitrators and to the agent of the other party a counter case
and additional documents, correspondence, and evidence, in reply to
the case, documents, correspondence, and evidence so presented by the
other party.
* # # # #
Article VI.
In deciding the matters submitted to the arbitrators it is agreed that
the following five points shall be submitted to them, in order that their
award shall embrace a distinct decision upon each of said five points,
to wit:
• 1. What exclusive jurisdiction in the sea now known as the Behring
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 ?
* # # # -
5. Has the United States any right, and, if so, what right, of protection or property in the fur-seals frequenting the islands of the United mm
Ifniii
m
8tates in Behring Sea when such seals are found outside the ordinary
3-mile limit ?
* Article VII.
If the determination of the foregoing questions as to the exclusive
jurisdiction of the United States shall leave the subject in such position
that the concurrence of Great Britain is necessary to the establishment
of Eegulations for the proper protection and preservation of the fur-
seal in, or habitually resorting to, the Behring Sea, the Arbitrators
shall then determine what concurrent Eegulations outside the jurisdictional limits of the respective Governments are necessary, and over
what waters such Eegulations should extend, and to aid them in that
determination, 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 Eegulations.
Article IX.
*******
Each Government shall appoint two Commissioners to investigate,
conjointly with the Commissioners of the other Government, all the
facts having relation to seal life in Behring Sea, and the measures
necessary for its proper protection and preservation.
The four Commissioners shall, so far as they may be able to agree,
make a joint report to each of the two Governments,and they shall also
report, either jointly or severally, to each Government on any points ofi
which they may be unable to agree.
These reports shall not be made public until they shall be submitted
to the Arbitrators, or it shall appear that the contingency of their being
used by the Arbitrators can not arise.
Article XIV.
The High Contracting Parties engage to consider the result of the
proceedings of the Tribunal of Arbitration as a full and final settlement of all the questions referred to the Arbitrators.
MODUS VIVENDI OF 1892.■
Article I.
Her Majesty's Government will prohibit, during the pendency of the
arbitration, seal killing in that part of Behring Sea lying eastward of
the line of demarcation described in Article 1, of the Treaty of 1867
between the United States and Eussia, and will promptly use its best
efforts to ensure the observance of this prohibition by British subjects
and vessels.
Article II.
The United States Government will prohibit seal killing for the same
period in the same part of Behring's Sea and-on the shores and islands
thereof the property of the United States (in excess of seven thousand
five hundred to be taken on the islands for the subsistence of the
natives), and will promptly use its best efforts to ensure the observance
of this prohibition by United States citizens and vessels. Wa
11
Article III.
Every vessel or person offending against this prohibition in -the said
waters of Behring Sea outside of the ordinary territorial limits of the
United States may be seized and detained by the naval or other duly
commissioned officers of -either of the High Contracting Parties, but
they shall be handed over, as soon-as practicable, to the authorities of
the nation to which they respectively belong, who alone shall have
jurisdiction to try the offence and impose the penalties for the same.
The witnesses and proof necessary to establish the offence shall also
be sent with them.
Article V.
If the result of the arbitration be to affirm 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
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 pendency of the arbitration, upon the basis of such a regulated and limited
catch or catches as in the opinion of the arbitration 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 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 basis of the difference
between this number and such larger catch as In the opinion of the
Arbitrators might have been taken without an undue diminution of the
seal herds.
* * * * * * *
There are no italics in the text I have just quoted. The regulations
proposed by the United States for adoption by the Tribunal of Arbitration are in keeping with the suggestions contained in the motion
presented by Mr. Justice Harlan; but, while the British Government
denies to the tribunal the powers therein stated, the regulations offered
by that Government for our adoption would necessarily depend on the
assertion of the same powers.
They are as follows, the regulation numbered 8 having been presented to the tribunal and then withdrawn:
REGULATIONS.
1. All vessels engaging in pelagic sealing shall be required to obtain
licenses at one or other of the following ports:
Victoria, in the province of British Columbia..
Vancouver, in the province of British Columbia.
Port Townsend, in Washington Territory, in the United States.
San Francisco, in the State of California, in the United States.
2. Such licenses shall only be granted to sailing vessels.
3. A zone of 20 miles around the J?ribilof Islauds t shall be estab •
lished, within which no seal hunting shall be permitted at any time.  .
4. A close season from the 15th of September to the 1st of July shall 12
be established, during which no pelagic sealing shall be permitted in
Behring Sea.
5. No'rifles or nets shall be used in pelagic sealing.
6. All sealing vessels shall be required to carry a distinguishing flag.
7. The masters in charge of sealing vessels shall keep accurate logs
as to'the times and places of sealing, the number and sex of the seals
captured, and shall enter an abstract thereof in their official logs.
8. Licenses shall be subject to forfeiture for breach of above regulations.
Whence comes the power of this tribunal, asserted in this programme,
to bind Great Britain and the United States toenact laws requiring
all vessels engaged in pelagic sealing to obtain licenses at one or the
other of the following ports, viz: Victoria, Vancouver, Port Town send,
and San Francisco? All of these are seaports on the Pacific Ocean,
and San Francisco is below the waters in which fuT-seals.are found or
hunted.
To make this regulation the tribunal must go 2,000 miles south of
Behring Sea, with its authority, and enter the seaports of both Governments.
Our authority, thus conceded, to make regulations to protect and
preserve the fur-seals in or habitually resorting to Bering Sea, must
not only enter within the ordinary 3-mile limit of each of these-
sovereign powers, under this programme, but, while there, it must
destroy the pelagic hunting rights of all owners of steam vessels and all
the persons who hunt seals in canoes, by denying to them a license for
pelagic sealing. We must, while in these ports, disarm pelagic seal
hunters of rifles and nets while leaving to the licensees the use of the
deadly double-barreled shotguns, repeating pistols, and swivels. While
there we are expected to regulate navigation by creating a new international flag for the benefit of the four ports that are given the monopoly, by these proposed regulations, of outfitting all licensed sealers
and, consequently, of handling the great spring catch.
Then when we are engaged in establishing a close season during which
no pelagic sealing shall be permitted in Bering Sea, we must also fix
the boundaries of that sea, not yet fixed by any law or treaty. Otherwise, we can not define the boundary that shall separate inno3ence
from guilt in pelagic sealing.
Inside Bering Sea, we must fix and demark a zone of 20 miles around
the Pribilof Islands within which the seals shall live and pelagic
seabng shall perish.
None of these various regulations—which would destroy some private 13
rights of the people and build up others; would create monopolies for
some towns, to the great disadvantage of others; would build up some
railroads and cripple others—are so clearly within the power of this
tribunal to protect and preserve the fur-seals as the determination of
a close season in the Pacific Ocean, or of the prohibition of all pelagic
sealing would be.
The British Government, through its attorney-general, can giye
authenticity to any plan we may adopt for carrying out the purposes
of the treaty, so as to bind that Government at least, and although the
regulations thus presented, to the tribunal may involve an award by
the tribunal that would be ultra vires, if they should be adopted, the
award would have the valid and binding consent of Great Britain.
The United States can not be thus pledged to any consent decree and
must accept what we award without question, except that the tribunal
must act within its just powers under the treaty.
The regulations thus authentically proposed by Great Britain, being
entirely inconsistent with its contention that the powers of this tribunal are confined to the area of Bering Sea, it is justly to be considered
that the objection to the exercise of a more extended field of jurisdiction is waived, or abandoned, by that Government.
The examination and decision of the questions of the right of property
in the fur-seals in, or habitually resorting to, Bering Sea, and the right
to protect them claimed by the United States necessarily extends the
jurisdiction of this tribunal on that question to the North Pacific
Ocean.
In every important feature the case is an entirety, and all its parts
must be construed in pari materia. It is beyond my comprehension
that the jurisdiction of the tribunal should require us to make an
investigation into a great variety of facts and the laws governing the
rights of the United States as to property and protection in the Pacific
Ocean, and that, when the protection of its rights is reached, the
jurisdiction of the tribunal should suddenly cease.
Yet, if the objection of Great Britain is still urged, it is apparently
the only method of avoiding a very embarrassing condition, that the
Tribunal of Arbitration should present to both Governments the present attitude of the question and ask them, by a formal agreement,, to
remove the difficulty.
Mr. Justice Harlan and myself have stated to the tribunal our conviction that the United States would regard the decision of the tri- 14
m4
i
bunal as being in violation of the plain provisions of the treaty if they
should hold that they have no power under the treaty to extend whatever regulations they may find to be necessary for the proper protection
of the fur-seals into the Northern Pacific Ocean.
As we fully concur in that view of the treaty and believe that the
seal herd will be speedily destroyed if proper regulations for their protection in Behring Sea and in the North Pacific Ocean are refused, we
feel compelled to seek a full opportunity to present the subject to our
colleagues without the embarrassment that must attend its investigation
in the presence of a pending and undecided objection on the part of
Great Britain that we have no right to consider the subject of regulations applicable to the North Pacific Ocean, because this tribunal has
no power to award any regulations to apply outside the area of Behring
Sea.
We believe that the proper way and, indeed, the only way to secure
an unembarrassed consideration of this subject on its merits is to
take up the objection of Great Britain to the jurisdiction of this tribunal and dispose of it. I believe that every consideration of just and
proper procedure in this case requires that this vital question as to the^
powers of this tribunal should be disposed of before any other question"
in the case is taken up. The questions of extending regulations beyond
the area of Behring Sea into the North Pacific Ocean and of prohibiting pelagic sealing in Bering Sea can never be fairly considered upon
their merits under the pressure of a pending objection made by Great
Britain that, whatever convictions an Arbitrator may have as to the
necessity of such regulations, the treaty forbids such action by the
Tribunal of Arbitration.
The justice of the request that this question shall be disposed of in
limine, aside from its logical propriety, is manifest, when it is considered
that Great Britain has made this serious objection to the powers of
the tribunal and yet insists that its objection shall not be heard until
the case has been heard and decided, in all other respects, upon the
merits.
Can it be justly claimed that, if the case should be decided in favor
of the contention of Great Britain on every other point, on the merits,
that Government could at its pleasure, permit or prevent regulations
from being adopted applicable to the North Pacific Ocean, however
necessary they may be, on the ground taken in its. objection to the
jurisdiction of this tribunal that it has no power under the treaty to
make such regulations? 15
It should be determined, now, whether, in the judgment of this
tribunal, a power of this dangerous magnitude can be wisely or justly
left in the control of either party.
If this power to extend regulations to include an area in the North
Pacific Ocean does not exist, as Great Britain: asserts that it doe,s not
exist, no concession on the part of that Government could create the
power, without the consent of the United States.   It would require a.
change in the treaty to create that power if it does not exist.
The only ground that can be taken, in the situation presented by the
objection of Great Britain, is that the Tribunal of Arbitration will
decide the question and leave it to the respective Governments to determine what course they will pursue in view of the decision. It will result
in this, at last, for they are sovereign Governments and there are none
who can compel either of them, by any peaceful means, to accept and
perform an award which they may believe violates the treaty under
which this tribunal is acting.
I disclaim all authority to speak for the United States and I deny
the right of any other person to bind that Government by any declaration or act that is not clearly authorized by the treaty.
I only speak for myself when I state my conviction, that the objection urged by Great Britain to* the power of this tribunal to make regulations to protect the fur-seals, which shall have full operation outside of Bering Sea, if it is sustained by this tribunal, will destroy a
leading and most important feature of the treaty.
From some observations of Lord Hannen, when Mr. Justice Harlan
presented the propositions I have been discussing, I find that his objection to the second proposition is to some extent based on the point
that there is in that proposition a delimitation of the area of waters
in the Pacific Ocean, over which the regulations, if adopted, will extend.
I understand Mr. Justice Harlan to say that such is not his intention,
or his construction of that resolution.
Now, in order that the question of the power of the tribunal to make
regulations that will extend to the Pacific Ocean, outside of Bering Sea,
and outside of territorial limits, may be presented in a more distinct
form, if possible, I will offer the following as a substitute for the two
propositions offered by Mr. Justice Harlan, which, I think, covers the
substance of both the propositions he has offered, and I hope it may
remove the objections that are made by Lord Hannen to the form of
those propositions: i!i
16
" This Tribunal of Arbitration is empowered by the treaty of February 29,1892, between the United States and Great Britain, to determine
what concurrent regulations are proper to be adopted and enforced by
the action of the respective Governments, applicable to their respective
citizens or subjects, outside of their respective territorial limits and
outside of Bering Sea, for the protection and preservation of fur-seals
in, or habitually resortirig to, Bering Sea."
At the conclusion of the foregoing remarks Mr. Justice Harlan
accepted this declaration, offered by Senator Morgan, as a substitute
for those proposed by him, and moved the adoption of the same.
liih A QUESTION BEING UNDER DISCUSSION AS TO THE PROPER ORDER IN
WHICH THE MATTERS SUBMITTED TO THE TRIBUNAL FOB EXAMINATION SHOULD BE TAKEN UP AND DISPOSED OF, AND AS TO THE
GENERAL POWERS AND DUTIES OF THE TRIBUNAL, SENATOR
MORGAN MADE THE FOLLOWING PRELIMINARY REMARKS TOUGHING THE SAME:
The subject with which the tribunal is to deal is a practical one
of the highest importance. On the part of Great Britain a claim is
asserted, as a sovereign power, on behalf of her subjects, to the rij
of pelagic hunting of fur-seals in, or habitually resorting to Bering
Sea, in all the waters of the North Pacific Ocean that are not included
within ordinary territorial limits, without any restriction, or qualification, as to the time, place, or manner of their destruction.
In the Case of Great Britain, as it is stated to the Tribunal of
Arbitration in conformity with the requirements of the treaty, this
claim is presented in the broadest form and the present method of
pelagic hunting is justified as being within that claim of right, under
international law.
Great Britain has cited the principles of international law, and
certain analogies relied upon to support her case. The Government
of the United States, under the same requirement of the treaty, has
presented its case upon the law and evidence in like manner.
The claim of the United States is made in the name and on behalf of
that Government, which asserts that it is the sovereign owner of the
fur-seals that habitually resort to the waters of Bering Sea and to the
islands within that sea that are east of the water boundary between
Eussia and the United States of America, and that it owns these far-
seals as property, as a source of revenue, and as an instrumentality of
government.
In one aspect of this claim, the ownership of the animals is alleged
to be complete. In another aspect, the alleged ownership is stated as
a right to have and enjoy the usufruct of these seal herds, for the sup-
17
11495 M 2 18
port of a legitimate industry established by the United States on the
islands of St. Paul and St. George, in Bering Sea.
Two distinct " cases" are thus presented to the Tribunal of Arbitration for consideration and decision, and, while they are not consolidated,
as cross actions are often set down by the courts as comprising one
case, they are to be heard at the same time and the same evidence may
be used.
Each " case" must stand upon its own merits, and it does not necessarily result that a decision in favor of either Government upon the
case presented by it is a deniaLof all that is claimed in the case of the
other Government.
While the award to be made by the Tribunal of Arbitration may
affirm in whole or in part the claims so asserted by either Government, it is not a finding in the nature of a recovery of property or
judgment for money, as damages or otherwise, in favor- of either party
as against the other, but is an assent by both to a settlement of controversies between them in accordance with the terms of the award
which the Tribunal of Arbitration shall make. When the award is
so made, the result is the same as if loth Governments had stipulated
in the Treaty, in terms, that which shall be expressed in the award.
In this sense, and to this effect, whatever shall be declared in the
award will be a finding in favor of both Governments.
No rule is given ■ or intimated in the treaty to indicate whether the
tribunal is to take the international law, or a just view of the comity
of nations, or the peculiar relations of the two Governments to this^
subject, as a guide to their decisions, or whether the rigid rules of law,
or equitable considerations are to govern, and whether the tribunal is
held to an unbending rule of law, or whether there are exceptions to
it growing out of long usage or governmental necessities which should
qualify the right claimed by either party.
Another important consideration was in view when the treaty was
made, namely, the necessity for a declaration on their part, reaching
beyond the mere question of the interests of the United States and the
subjects of Great Britain in the Alaskan herd of fur-seals, that the
ultimate assertion of governmental control over the subject by all the
countries to which fur-seals resort in their breeding season should be
established by the consent of the United States and Great Britain.
It was a just expectation that all such countries would find, in the
results of this investigation, sufficient reasons for adopting the rules, 19
or principles, that this tribunal would establish for the protection of
fur-seals.
The destruction of the fur-seal species in the southern hemisphere,
in a commercial sense, had already resulted from indiscriminate
slaughter on land and sea. The slaughter had been conducted as a
matter of right upon the idea that none of those countries had treated
the fur-seals as domestic animals, or animals that were attached to
the soil, or as domesticated animals entitled to protection as property,
but had permitted them to be treated as wild animals, subject to capture by everyone at his pleasure. The people of the United States
and of Canada, and of many other countries, had exercised this
assumed right of capture of fur-seals in the Antarctic Seas until
within a recent period.
After the southern herds had been virtually destroyed, the colonization of Europeans in extreme southern latitudes led to the investigation
of this subject and the enactment of laws for the protection of fur-
seals in the hope that their numbers could be thus restored. These
efforts are most noteworthy in the British colonies of New Zealand and
the Cape of Good Hope. These legislative provisions were tentative
rather than conclusive in their operation upon the right of pelagic
hunting, within the prescribed limits of protection, by the people of foreign countries. While foreigners were included in the general terms
of the statutes enacted to protect fur-seals, room was left for the question whether they could be rightfully included within the protection of
the international law if the pelagic hunters chose to make objection.
In the absence of such statutes, the right of pelagic sealing was not
questioned, except in seas and bays that were claimed as being closed
for such purposes, such as Behring Sea, the sea of Okhotsk, and the
waters in and around the Japanese archipelago.
By insisting upon peculiar rights and powers of protection over fur-
seals in such waters Eussia and Japan had, in a large measure, preserved their herds from destruction. But there was then, and until
recently, no one to assert, in the name of any Government, that pelagic
sealing was an invasion of national interests, or .rights of property, in
fur-seals. The question was not raised by any serious dispute, by other
powers, of the right of protection of. fur-seals as asserted by Eussia;
and her policy stood opposed to the alleged right, in a negative way
rather than- by an active assertion attended with serious controversy
or force.   Such respect was paid to her well-known attitude on the sub- IWRtiaM.'
20
ject that no occasion offered to test the question whether a right of
pelagic hunting existed, under the laws of nations, which was superior
to Eussia's right to protect the fur-seals against trespassers on the
high seas, or within Bering Sea, when they were found more than
3 miles from her coasts and islands.
This question was never, in fact, raised in any practical way as a
matter of international dispute, until the present controversy between
the United States and Great Britain.
The question is, therefore, entirely new, without any actual precedent for its control, and also without analogy for its illustration, because
no other animals yielding valuable products to commerce have the habits
of the fur-seal, and none are compelled by the necessities of existence to
place themselves so entirely within the dominion of man. This award,
therefore, dealing with questions that are entirely new, will complete
the treaty between these two great powers, and establish between
them fixe! rules of conduct in respect to the protection and preservation of fur-seals in waters outside the limit of the jurisdiction of the
respective Governments. These rules will be a new compact of international agreement, based on rights and duties that are, as yet, without
accurate definition and without regulation.
The interests of peace and good will being the great moving causes,
and the benefit of mankind and the requirements of humanity being
included in the results of this arbitration, it is seen at once that it was
necessary and proper to entrust these, great powers to a Tribunal of
Arbitration having very broad discretion and liberty of action.
The proper understanding of the scope and purpose of this treaty is
to be gathered, also, from the diplomatic correspondence that attended
its negotiation, and from the various propositions and agreements that
took final shape in the text of the treaty.
The agreement between the two Governments in the convention treats
the preservation and protection of the seal herds in a broad and rational
way, and assumes that both Governments will freely and cordially
exercise their powers for that purpose.
This is not a controversy in which the award will fix the title to specific chattels in either of two claimants, or give compensation, in damages, as for the conversion of such chattels. It is not a lawsuit
between the United States and Great Britain. There are no special
issues joined between them. All the questions are put to the tribunal
interrogatively, and the award will settle principles and regulations 21
that will need to be enforced by the concurrent action of the two Governments. There can not be any self-executing powers included in the
award. The rights and duties that are ascertained by the award will
remain to be enforced by the sovereign powers of the Governments
concerned.
The right of property in a herd of seals within the meaning of this
treaty can not depend on the question whether every animal of the
herd was born on land belonging to the claimant. If this question
could arise, in any practical sense, it could only arise between Eussia
or Japan and the United States, and not between Great Britain,
claiming no seal herds, and the United States, that claims a herd that
habitually resorts to the Pribilof Islands. The questions submitted in
this treaty for arbitration do not hinge upon the place of nativity of
individual seals, but relate to those seals that resort habitually as herds
to the islands of the United States, and they turn upon that fact as to
their identification. This question of the intermixing of the heras
with those of Eussia was not raised in the correspondence that led up
to this treaty, nor is it referred to in the treaty, unless it is included in
the inquiry as to the right of property in the seals. That inquiry relates
to the right of property in the seals in, or resorting to, Bering Sea,
without reference to the place of their nativity. If they have that
habit, Great Britain and the United States have agreed in this treaty
that such a resorting to Bering Sea is the fact that identifies them as
the subject of the award to be rendered in this case.
If the award is that the United States have a property in the seals
so resorting to Bering Sea, or found in that sea, it fully covers the
question that the Arbitrators are required to settle on the subject of
property in seals. If there are other questions beyond this as to
the title of the United States to individual seals, while living, the
decision of them does not fully dispose of any right claimed by Great
Britain to kill them when found singly or in small parties far out in the
ocean; nor will it diminish any right claimed by the United States to
protect and preserve them if they can be identified as belonging to the
Alaskan herd, though they may have been born upon Eussian soil.
All the rights claimed by the United States in this treaty relate to
the protection and preservation of the lives of seal herds. All the rights
claimed by Great Britain and so submitted for arbitration, relate solely
to the right of the destruction of individual seal life in order to secure
the pelts.   Th'ere is no right of property in any single, Uving seal,', 22
ill
whether it is found on shore or swimming in the sea, that is in controversy between these Powers under the provisions of this treaty.
The controversy submitted to the Arbitrators is in respect to the
preservation of an. entire body of fur-seals. It is impossible that the
Arbitrators could declare in favor of Great Britain, on the case here
presented and upon the questions submitted in the treaty, that living
seals found at sea are the property of that Government or of its
subjects.
The case submitted by Great Britain is a general and special denial
of all property in seals until they are killed. But the Arbitrators can
make an award of the " rights of property" in a herd of living seals to
the United States, because such rights are included in the submission
and are claimed in the case of the United States.
The United States claim the property interest in the seals under
this arbitration, not for their justification in destroying them at sea or
on the land, but for the sole purpose of protecting them against pelagic
hunting, while Great Britain denies all such property rights until the
seals are killed, and claims the righfr to kill them anywhere that a
British ship can lawfully go. And the treaty, being framed to settle
these claims, on its face admits that, if the seals resort to Bering Sea,
that fact presents fully and sufficiently the question of the property
right on which the claim of the United States to protect and preserve
the seals is to be founded, and leaves the question to be settled by the
Arbitrators whether there is vested in the United States, as between
these parties, a right of property in the seals that are in, or habitually
resort to Bering Sea.
The distance of 150 miles from the eastern coasts of the North Pacific
Ocean is the extreme limit, to the westward, of pelagic hunting in that
part of the ocean that borders on the North American continent.
- Between February and June, when the seals are approaching Bering
Sea, the Japanese and Eussian herds are moving along the coasts of
Japan and Eussia, not less than 6,000 miles away from the Alaskan
herds.   If any stray Eussian or Japanese seals have found their way
across the Pacific Ocean to the American coast and into the Alaskan
herd, that fact could not affect any right of property that the United.;
States may have in the body of the herd.   And when that right of
property is asserted for the protection and preservation of the estrays
it is sufficient to justify all proper efforts and force that may be requisite I
to that end.   Even though Eussia or Japan may have a higher property ; 23
right than that of the United States in individual seals, yet, if their seals
are gone estray and are found in the Alaskan herds, the United States,
if they own those herds, or have the power to protect them, may also
lawfully and justly protect the estrays against everybody except the
owner.
Two questions of right are presented in point 5 of Article VI, viz:
The right of property in the fur-seals and the right to protect them.
These rights are not identical under all circumstances.
The right to protect property may exist in one who neither has nor
claims to have any absolute ownership of the property, and this right
has a peculiar force and value on the high seas, where the exposure of
property to destruction is great and the persons are few who may be
able to protect and preserve it. .The right to protect property is an
element of its ownership, but that right does not always depend on
ownership. In this treaty care is taken to submit to the Arbitrators
the separate rights of property and of protection as to the seals in or
resorting to Behring Sea.
It must be admitted that these questions in all their bearings are
entirely new. It is their novelty that has led to this Arbitration. H
they had been capable of solution under the rules and precedents of
international law it must be assumed that two great Governments,
equally desirous to protect and preserve the fur-seals, "would have
readily agreed as to which of them was charged with or entitled to per-
.form that duty. In the absence of such rules and precedents of international law it was wise and just, to submit these questions, as new
ones, to arbitration.
The fact that both Governments are required by the treaty "to
cooperate in securing the adhesion of other Powers to such Eegulations"
as shall be established by the tribunal, is an indication that is really
conclusive of the fact that they both expected that the award might be
based on new principles or on newly stated exceptions to old rules.
If the award could not properly be based on well-settled principles of
international law, the reason for securing the adhesion of other powers
would be obvious, whereas that would be an unnecessary act if the
award could be based only upon the concrete principles of international
law, for other nations must be understood as knowing and abiding by
the international law. Why should they be asked to give their adhesion
to an award that would hold the United States and Great Britain only
to a faithful observance of international law 1 24
This is a controversy between two Governments that hold a peculiar
relation to the fur-seals in the eastern waters of the North Pacific
Ocean. The peculiarities of that situation must, largely, control or
modify the equitable rights of the parties in their dealings with the
subject and in the establishment of regulations to secure their obedience to the rules of right and justice that pervade all laws.
The two Governments resorted to arbitration for the peaceful settlement of their controversy, because the strict and unbending rules of
international law, or their meager treatment of such subjects, were not
equal to the emergency of the ease, nor offered a precedent for the
satisfactory adjustment of the right claimed by the United States. The
settlement of this matter does not, necessarily, establish any rule
of international law, or declare any such rule. It will establish a
rule, inter partes, which they, by agreement, may rescind at pleasure.
It can only become a rule of international law by the general adhesion
of other powers.
So, I hold that the duty is included within the scope of the powers
of this tribunal to determine what are the just and equitable powers
and rights of the respective Governments that should be exercised
severally, or concurrently, in maintaining and executing the avowed
purpose of both, to protect and preserve the fur-seals. The 'question
of the right of property, or protection, has this relation, and none
other, to the great and novel subject submitted to this tribunal.
m OPINION DELIVERED BEFORE THE TRIBUNAL OF ARBITRATION
BY SENATOR MORGAN, JULY 22, 1893, AS TO THE PROPER TIME
FOR THE CONSIDERATION OF THE HISTORICAL QUESTIONS
SUBMITTED TO THE TRIBUNAL.
July 20, 1893, Mr. Morgan submitted the following answers to points
1, 2, 3, and 4, of Article VI of the treaty, for the consideration of the
tribunal:
1. From the time that Eussia first discovered and occupied Behring
Sea and the coasts and islands thereof until she ceded a portion thereof
to the United States she claimed the seal fisheries in Behring Sea,
and exercised exclusively the right to the usufruct and to own the product of such seal fisheries, and to protect the same against being interfered with in those waters by the people of any other country; and also
the exclusive jurisdiction that was found necessary for those purposes;
and also the exclusive jurisdiction to regulate the hunting of fur-
seals in those waters and to grant the right of hunting them to her
own subjects.
2. The attitude of Eussia toward the fur-seal fisheries in Behring
Sea, as described above, beiug known to Great Britain, she acquiesced
in the same without objection. ^v,'
3. The rights of Eussia, as above stated, remained unaffected by
the treaty of 1825 between Eussia and Great Britain, and were held
and exclusively exercised by Eussia after the date of said treaty as
they were before said date. The phrase "Pacific Ocean," as used in
said treaty, did include the body of water now known as Behring Sea.
4. All the rights of Eussia, as described in point 4 of Article VI of
the treaty of February 29,1892, passed unimpaired by the treaty of
March 30,1867, between Eussia and the United States.
The following statements submitted to the tribunal by Lord Hannen
and by Baron Oourcel, respectively, while coinciding in the same findings as to the conclusions drawn from the facts of history, differ as to
the facts upon which their respective conclusions are rested.
STATEMENT BY LORD HANNEN, SUBMITTED JULY SI, AS ANSWERS TO
QUESTIONS CONTAINED IN ARTICLE VI OF THE TREATY.
To question 1.—Eussia never exercised exclusive jurisdiction in
Behring Sea, outside the ordinary 3-mile limit. In 1821 she asserted
exclusive jurisdiction over a part of Behring Sea, viz: For 100 miles
along its coasts, by imperial ukase. But she withdrew the assertion
of jurisdiction expressed in the ukase, on the demand of Great
Britain and the United States, and never afterwards asserted or exercised such jurisdiction.
25 26
Eussia never exercised exclusive rights in the seal fisheries in Behring
Sea outside the aforesaid limit. In 1821 she claimed, by the aforesaid
ukase, exclusive rights of all kinds (as included in her claim of jurisdiction), extending for 100 miles along the coasts of Behring Sea; but
she withdrew the assertion on the demand of Great Britain and the
United States, and never afterwards asserted or exercised such rights.
The only exclusive right which Eussia subsequently exercised as to
the sea was the ordinary right conceded by international law for 3
miles from land.
To question 2.—Great Britain never recognized or conceded any claims
of Eussia of jurisdiction as to the seal fisheries, except as to the ordinary 3-mile limit.
To question 3.—The body of water known as Behring Sea was included in the phrase "Pacific Ocean," as used in the treaty of 1825 between Great Britain and Eussia.
Eussia neither held nor exercised any rights in Behring Sea after
the treaty of 1825, save only such rights as were allowed to her by
international law within the ordinary 3-mile limit.
To question 4.—That Russia having had no rights as to jurisdiction
or as to the seal fisheries in Behring Sea, except as to the lands ceded
and the ordinary 3-mile limit bordering the same, it follows that
no other rights passed to the United States under the treaty between
the United States and Eussia of March 30,1867.
MIS
STATEMENT PRESENTED BY BARON DE COURCEL, JULY S3, IN ANSWER
TO POINTS 1, 2, S, AND 4 OF THE TREATY.
I. The extent of authority asserted and exercised by Eussia in
Behring Sea, previously to the negotiations which led to the conclusion
of the treaty of February 16-28, 1825, between Eussia and Great
Britain, does not appear with historical certainty, but it results from
a dispatch of Count Nesselrode to Count Lieven, in date of St. Petersburg, the 26th of June, 1823, communicated to the London cabinet on
the 14th of August ensuing, that the surveillance of the commanders
of the Imperial Eussian navy was to be exercised henceforth, under
their instructions, in the region of Behring Sea over an extent of water
that should be within cannon shot from shore; and although those
instructions were stated as being provisional in the dispatch of Count
Nesselrode, it does not appear that since that time up to the time of
the cession of Alaska to the United States the Imperial Government
of Eussia exercised or asserted in Behring Sea, outside of the limit
aforesaid, any exclusive jurisdiction either of a general character or in
connection with the seal fisheries.
II. Great Britain has not recognized or conceded any jurisdiction of^
Eussia as to seal fishery beyond the limit of territorial waters.
III. The body of water now known as the Behring Sea was included
in the phrase "Pacific Ocean," as used in the treaty of 1825 between
Great Britain and Eussia, and after said treaty Eussia neither held
nor exercised in the Behring Sea, outside of territorial waters, any
exclusive rights.
IV. All the rights of Eussia as to the jurisdiction and as to the seal
fisheries in Behring Sea east of the water boundary in the treaty
between United States and Eussia of the 30th of March, 1867,^ passed
unimpaired to the United States under that treaty. f&ffl
27
These variances, if not disagreements, as to the historical inquiries
submitted to the tribunal in the first four points of Article VI of the
treaty, in my judgment, furnish a conclusive reason in support of a
motion I intend to submit for the postponement of a vote on points 1,
2, 3, and 4 in Article VI of the treaty, until the tribunal shall have
reached a conclusion as to the rights of the United States, as to property and protection in the fur-seals.
On July 22, when the subject of the answers to be made to points 1,
2, 3, 4, of Article VI of the treaty, was under consideration, I had the
honor of submitting the following motion and remarks:
11 move that no decision be made upon the first four points in Article
VI of the treaty, at this time, but that this historical matter be laid
aside until the tribunal has considered and decided the legal questions
submitted for award in the treaty, in whatever order may be adopted.
I will state the grounds for this motion:
"Prior to March 30,1867, Eussia owned all the coasts and islands
washed by the waters of Bering Sea, and yet owns all west of the
water boundary fixed in her treaty of that date with the United
States.
"Eussia has the same rights of jurisdiction in the western portion of
Bering Sea that the United States has in the eastern portion. If we
could reach an agreement as to what those rights are it would be far
better, if it was possible, that it should not be formulated into an award
in the absence of Eussia from this hearing.
"Eussia alone can state what exclusive jurisdiction she asserted and
exercised and what exclusive rights in the seal fisheries she asserted
and exercised in the sea now known as Bering Sea pr'or to 1825, or
since that date and until 1867, so far as such statements can affect or
describe her attitude as a sovereign with reference to that sea and
the surrounding coasts and the islands washed by its waters. These
matters rest in intention and are established by assertion and are
proven, where proof is needed, by the exercise of authority over
Behring Sea.and its islands and surrounding coasts, and, where the
sovereign rights of Eussia are challenged and put upon trial, Eussia
should be present if the decision is to have any bearing, immediate or
remote, upon her rights or any effect on her sensibilities, so important
to be regarded in the comity of nations.
" Eussia has retained rights and interests in the fur-seals and fisheries
of every kind in the western part of Bering Sea and on the coasts and 28
I
II
m
islands thereof, which are the same as to origin, assertion, and exercise, and as to all sovereign powers, as those that are claimed and
exercised by the United States. Eussia is still guarding her rights
in the form and to the extent that she is making a claim or assertion
of them with sedulous care, and Great Britain is actively engaged in
treating with her for the definition and settlement of those rights.
While treating with Eussia she is arbitrating with the United States
about the identical questions that equally concern both countries."
A main feature that seems to control the opinions of the Arbitrators
in determining what are the rights of the United States is the action
of Eussia, its conduct in fact, as it is alleged, pro and con, in first asserting, and then abandoning the assertion that Bering Sea is mare
clausum; in issuing her ukase in 1799 and abandoning some of its vital
features and adding others by a later ukase in 1821; in wiping out
all of the pretensions set up in both ukases by the treaty concluded
with the United States in 1824 and with Great Britain in 1825; in
instructing her minister at Washington to deliver to the United States
an explanatory protocol, defining more clearly her construction of the
treaty of 1824, which instructions were violated under impressions made
upon him by the Secretary of State, and, after this Was done, proceeding
under the text of the treaty as if no qualifying statement would ever
be relied upon by Eussia; and in renewing her charter to the Eussian
American Company in 1831 with the same exclusive privileges as were
granted to it in 1821.- In the opinions of the arbitrators, now delivered,
these questions, so closely related to the conduct of Eussia for a period
little short of a century, are dealt with and are to be decided by this
tribunal.
Whether Eussia had any right under international law, or any other
law, to assert and exercise exclusive rights or exclusive jurisdiction in
Bering Sea, can not alter the fact that she did, or did not, assert and
exercise them. Neither can these facts be altered by Eussia's constructive modification or abandonment of the attitude she had previously held to these subjects. The only question is, what did Eussia
intend to assert in respect to these matters, and whether she executed
that intention in dealing with these subjects. In the opinions delivered, strict history, as to facts, seems to have received a coloring of
legal and diplomatic opinion in the effort to ascertain what Eussia did
and intended to do, by first ascertaining what it was her duty to do
under the international law and the comity of nations. 29
In my judgment, if Eussia chose to violate the international law and
to repudiate all comity, her attitude was not altered because it may
have exposed her to unfriendly criticism provoked by the pressure of
adverse interests on the part of the United States or Great Britain.
At all events, any such departures of the tribunal from the strict duty
of stating this history, confined to the subject of fur-seal fisheries in.
Bering Sea, without reference, deduction, conjecture, opinion, gloss,
or comment, will only provoke the prompt dissent of Eussia, or will
cause Great Britain and the United States, whenever their policies so
require, to declare that our decision is not warranted by the strict
nature of the inquiry submitted to us, and is obiter dictum.
I consider it a happy circumstance that in the opinions delivered
On this subject there is such contrariety and conflict that, if they are
adhered to, we are obliged to show that a majority of the tribunal
are unable to agree upon an identical answer as to the historical facts
submitted for inquiry and decision in the first point and in the last
clause of the third point of Article VI.
And inasmuch as an agreement of a majority of the tribunal as to
the historical facts so required to be stated is the essential basis of
the decision of the other matters presented in points 2 and 3, I respectfully insist that we have not been able to reach a decision upon them,
and for this reason a majority of the tribunal can not actually decide the
inquiry stated in points 1, 2, and 3 of Article VI.
The matters presented for historical inquiry and decision in points
. 1, 2, 3, and 4, of Article VI, relate only to a derivative right of the
United States to the fur-seal fisheries, as they are termed, in Bering
Sea, and the exclusive jurisdiction over that sea to control and protect
such fisheries. These questions are presented and may be considered
and decided, upon the facts and law that must control our decision,
under the submission of questions of a judicial nature, in point 5, of
Article VI, and in Articles I and VII of the treaty. In so considering and deciding them we need find no occasion to express, in our
award, any conclusions that may impinge upon any right of Eussia,
or call it in question, or that may unnecessarily wound her sensibilities.
It may also turn out that a final award will be reached as to the
rights of property and protection claimed by the United States, or the
rights of pelagic sealing claimed by Great Britain, based upon considerations entirely apart from any derivative rights of the United States
.that may have come to that Government from Eussia. 30
11
H P5:
At all events, the disagreements already developed among the members of the tribunal, as to the matters with which the interests of Eussia
are so closely bound up, admonish us that we should lay this matter
aside until we have considered the subject before us under Article I,
and point 5 in Article VI, Article VII, and any others that open up an
■inquiry into the juridical features of the questions that are submitted
to the tribunal.
The opinion and summary of facts presented by Lord Hannen is concurred in by Sir John Thompson. The opinion of Marquis Visconti
Venosta is concurred in by Mr. Gram. These opinions, whatever the
conclusions of fact to be drawn from them may be, are not identical.
in statement or reasoning. In the absence of copies of these opinions, I am not able now to compare and contrast them as I would feel
it my privilege to do. These opinions deal with the rights and conduct of Eussia in different lights. 1 do not say that they purposely
deal with the present rights of Eussia, but that effect is unavoidable
if any weight is to attach to our findings.
Four Arbitrators will agree upon these historical facts, if four
agree to Lord Hannen's syllabus, while three dissent. This is not a
secure basis of historical decision of facts that concern a living and
great nation and her rights, in matters that are now the subject of her
anxious care that are under diplomatic consideration in correspondence with Great Britain. An opposing view of this history, presented
by me, has the concurrence of Baron de Courcel and Mr. Justice Harlan, to a considerable extent. There is a divided opinion in several.
directions, and this chapter of history, if it is written, will go forth
encumbered with serious doubts and objections.
After further discussion, the answers to be made to the first four
points in Article VI of the treaty were informally laid aside to enable
Mr. Justice Harlan to formulate his answers. THE TRIBUNAL HAVING AGREED TO CONSIDER THE FIRST FOUR
POINTS STATED IN ARTICLE VI OF THE TREATY, IN CONNECTION,
AS A GROUP OF QUESTIONS, SENATOR MORGAN SUBMITTED HIS
VIEWS OF THE CLAIMS OF RUSSIA, AND OF THE UNITED STATES
DERIVED FROM RUSSIA, UNDER THE TREATY OF 1867, AS THE SAME
ARE PROPOUNDED IN THE TREATY OF 1892 IN THE WORDS FOLLOWING :
1. What exclusive jurisdiction in the sea now known as Bering 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 those 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 Sea included in
the phrase "Pacific Ocean," as used in the treaty of 1825 between
Great Britain and Eussia; and what rights, if any, in the Behring
Sea were held and exclusively exercised by Eussia after said treaty ?
4. Did not all the rights of Eussia as to jurisdiction and as to the
seal fisheries in Behring Sea east of the water boundary in the treaty
between the United States and Eussia ot\the 30th March, 1867, pass
unimpaired to the United States under that treaty?
As the tribunal seems to agree unanimously in giving an affirma-.
tive answer to the fourth point I will not discuss it.
A like unanimity seems to exist as to the answer to the first inquiry
under question 3, which makes it unnecessary that I should comnent
upon that question.
All the questions submitted under the four points of Article VI are
historical rather than judicial in their character as to the facts to be
ascertained and as to the conclusions to be based upon them, except
the question presented in the second point, which I consider a mixed
question of law and fact. It is upon this view of the duty of the
tribunal in the consideration of these question's that my opinions are
rested.
The situation of the western and northwestern coast of North America in 1824 was practically that of an unoccupied and uninhabited
country to the north of Puget Sound. A few scattered tribes of
Indians inhabited the vast reach of coast, from San Francisco to the
31 Ill
ll
III,
32
frozen ocean, not less than 4,000 miles in length. The claims of
Great Britain, Eussia, Spain, and the United States to certain
boundaries along this great reach were based on alleged discoveries
and occupation, all of the most indefinite character, and all disputed,
except that Eussia held and occupied the islands and coasts on all
sides of Bering Sea and this claim was not disputed by any country.
This claim was thus held and recognized for many years before 1824,
reaching back to the discovery and exploration of Bering Sea.
The interest of Eussia in these wild and inhospitable regions was
not agricultural, for they are unfit for such pursuits. It was not an
ambitious desire for territorial aggrandizement on the American continent, for Eussia took no steps to increase her population there
beyond the numbers necessary to secure and handle the fur trade; and
when she found it inconvenient to incur the expense of governing a
colony so far away from her capital, that yielded so small a revenue,
she sold all her possessions and dominion in that region east of 170°
of west longitude to a power that had always been friendly and was
not in any sense her rival.
Fishing was not so profitable in Bering Sea as to induce fishermen to
encounter the unpleasant and short summer season when it was practicable to fish there and establish any regular business in taking fish.
The markets were too distant to justify them to transport their catch
fresh on ice, and there was not sufficient sunshine to enable them to
properly cure the fish. In consequence the business of fishing was
never permanently established in Bering Sea, and is not until this time.
Eussia directed the energy and capital of her people to the collection
of furs as the only really valuable industry in that region, and created '
monopolies in their favor and gave them large powers of legislation,
all directed to the same end, and all protected by her naval power in a
thoroughly systematic and effectual way.
These privileges were retained and exercised exclusively by Eussian subjects under her laws until the Alaskan region was sold to the
United States in 1867, with all the rights and dominion that Eussia
had therein. In order to extinguish in that region all claim of rights
existing under Eussian authority it was stipulated in the treaty of
cession that all former grants of exclusive privileges to any of the'
Eussian subjects should be abrogated.
It was in pursuance of the same authority and manifestly for these
reasons that the right of trading with the natives and of taking and 33
collecting furs was withheld from the concessions made by Eussia to
Great Britain aud the United States in 1824 and 1825.
In accordance with what was then the practice of the great powers as
to the right of declaring the closure of extensive areas of sea as territorial appurtenances, Eussia claimed that Behring Sea was mare clausum,
aud in practice this claim was carried into effect as to the control of
the fur trade.
Her people did not hunt whales at that period to any great extent,
nor did they conduct fisheries for commercial purposes. It was the
double purpose of protecting her fur trade and yet permitting whaling
and other fishing within safe limits that caused the Emperor, Alexander I, to issue the ukase of 1821. The whalers and fishermen had
begun to deal with the natives for furs and to catch seals in Behring
Sea. Eussia resented this as a wrong and an invasion of her territorial
rights, ami the ukase was issued to prevent its increase or continuance.
The ordinary three-mile limit was as fully recognized then as it has
been since that time, generally, as to coasts bordering the open ocean,
or even more fully recognized. But Eussia paid no attention to it ill
Bering Sea, aud for her own security in respect of her only industry
in those waters—the fur trade—and to keep down insurrection, she
fixed a line of prohibition to navigators at 100 Italian miles from her
coasts. In doing this, and in opening Bering Sea to whalers and
fishermen and other navigators in the parts not included in the 100-
mile limit, she asserted and exercised an exceptional jurisdiction over
that sea and claimed that her power extended over the entire sea,
but waived her rights at the distance of over 100 miles from the coasts.
In 1799 the interest of Eussia and her subjects in the fur trade had
become so important that on July 8, 1799, nearly twenty-five years
before the date of the treaty with the United States of April, 5-17,
1824, (he  Emperor Paul  issued  his   ukase,   in which he declared
that—
The benefits and advantages resulting to our Empirefrom hunting
and trading carried on by our loyal subjects in the northeastern seas
and along the coasts of America have attracted, our Imperialattention
and consideration; therefore, having taken under our immediate protection a company organized for the above-named purpose of carrying
on hunting and trading, we allow it to assume the appellation of
| Eussian American Company, operating under our highest protection;"
and for the purpose of aidiug the company in its enterprises, we allow
the commanders of our land and sea forces to employ said forces in the
company's aid if occasion requires it, while for further relief and assistance of said company, and having examined their rules and regulations,
11495 M —^3 I
III
W
mm
34
we hereby declare it to be our highest Imperial will to grant to this
company for a period of twenty years the following rights and privileges:
I. By the right of discovery in past times by Eussian navigators of
the northwestern part of America, beginning from the fifty-fifth degree
of north latitude and of the chain of islands extending from Kam-
tchafka to the north to America, and southward to Japan, and by right
of possession of the same by Eussia we most graciously permit the
company to have the use of all hunting grounds and establishments
now existing on the northeastern coast of America, from the above-
mentioned fifty-fifth degree to Bering Strait, a,nd also on the Aleutian,
Kurile, and other islands situated in the Northeastern Ocean.
There could not have been a more distinct assertion of rights of sovereignty and dominion, in virtue of discovery aud possession, than is
made in this State paper. Neither could it have been more formally,
or completely stated that the sovereign will and power of Eussia was
exerted by this Imperial ukase to secure to the "Eussian-American Company under (Eussia's) highest protection" "the benefits and advantages resulting * * * from the hunting and trading carried
on * * * in the'northeastern seas and along the coasts of Ame'r-
ica." There can be no reasonable doubt that this ukase covered Bering
Sea and all hunting and trading in those waters. The rights conferred
by this ukase were supported by the power of the army and navy •of
Eussia, pledged for that purpose.
The exclusive character of these rights, as to all the world, is stated
in Article X of the regulations embodied in this ukase, as follows:
X. The exclusive right is most graciously granted to the company
for a period of twenty years, to use and enjoy, in the above-described
extent of country and islands, all profits and advantages derived from
hunting, trade, industries, and discovery of new lands, prohibiting the
enjoyment of these profits and advantages not only to those who
would wish to sail to those countries on their own account, but to all
former hunters and trappers who have been engaged in this trade and
have their vessels and futs at those places; and other companies which
may have been formed will not be .allowed to continue their business
unless they unite with the present company with their free consent,
but such private companies or traders as have their vessels in those
regions can either sell their property or, with the company's consent,
remain until they have obtained a cargo, but no longer than is required
for the loading and return of their vessel; and after that nobody will,
have any privileges but this one company, which ay ill be protected in
the enjoyment of all the rights mentioned.
The rights thus exclusively granted relate to hunting and trading.
The rights of free navigation and of fishing are not granted exclusively
to this company, but " all profits and advantages derived from hunting,
trade, industries, and discoveries of now lands" are so granted.
W 35
That the privilege of hunting fur-bearing animals in the northeastern
sea, and on land, was "the exclusive right" of the greatest importance
that was granted in this ukase is made entirely clear in the prohibition stated iu Article X in these words, *' prohibiting the enjoyment of
these profits and advautages not only to those who would wish to sail
to those countries ou their own account, but to all former hunters and
trappers who have been engaged in this trade and have their vessels and
furs at those places."
This company conducted its operations iu reference to the fur trade
at great cost and with much profit during the twenty years of its chartered existence, and then applied to Eussia for a renewal of its charter
for an additional'term of twenty years.
The ukase of 1799 was found to be insufficient for the protection of
the privileges granted by it, and an additional ukase was necessary
for that purpose, which was issued. September 4, 1821. There could
be no need to again assert the right of Russia to grant the exclusive
privilege to its subjects ofll hunting and trading." "which had been carried
on by (her) loyal subjects in the northeastern seas and along the coasts
of America" for maDy years anterior to 1799, and for a quarter of
a century since that date; but Enssia, through its Emperor and
directing senate, in the most solemn manner, declared that the free
right of navigation, which was not restricted by the ukase of 1799, had
been abused, to the detriment of •• the trade of our subjects on the
Aleutian Islands and on the northwest coast of America, appertaining
unto Eussia."
This necessity for an additional ukase could not be expressed more
distinctly, or more tersely, than it is in the terms of that ukase, which
are as follows:
The directing senate maketh known unto*all men: Whereas in an
edict of His Imperial Majesty, issued to the directing senate on the
4tli day of September, and signed by His Imperial Majesty's own hand,
it is thus expressed: #
Observing from reports submitted to us that the trade of our subjects ou the Aleutian Islauds and on the northwest cqast of America
appertaining unto Eussia, is subjected, because of secret and illicit
traffic, to oppression and impediments, and finding that the principal
cause of these difficulties is the want of rules establishing the boundaries for navigation aloug these coasts, aud 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 necesary to determine these communications by specific regulations, which are hereto
attached.
In forwarding these regulations to the directing senate we command
that the-same bje published for universal information, and that the
proper measures be taken to carry them into execution. m
36
That ukase is directed to the suppression of a 1 secret and illicit
traffic" and " oppression and impediments" to which the trade of Eussian subjects on the Aleutian Islands on the northwest coast of
America was subjected. "The principal cause of these difficulties" is
stated in the ukase. It "is the want of rules establishing boundaries
for navigation along these coasts," not through Bering Sea, " and the
order of naval communication as well in these places as on the whole
of the eastern coasts of Siberia and the Kurile Islands."
In renewing the charter of the Eussian-American Company in 1821,
all these abuses were dealt with in the ukase, published on September
7,1821. That was a complete code of laws consisting of 63 sections
regulating and -setting apart, as an exclusive and additional right
"granted to Eussian subjects" of "the pursuit of commerce, whaling,
and fishery, and all other industries on all islands, ports, and gulfs,
including the whole of the northwest coast of America," from Bering
Straits to the 51° of north latitude, and 45° 50' on the Siberian side of
Bering Sea.
In this ukase, following this exclusive grant of rights and privileges
to Eussian subjects, section 2 ordains that: W®
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 second charter of the Eussiau-American Company was based
upon the ukase of 1821, which was based upon and amended the ukase
of 1799.   The first and second articles of that charter are as follows:
I.
The company established for carrying on industries and trade on the
mainland of Northwest America, on the Aleutian and on the Kurile
Islands remains, as heretofore, under the highest protection of His
Imperial Majesty. «
II.
It enjoys the privilege of hunting and fishing, to the exclusion of all
other Eussian or foreign subjects throughout the territories long since
in the possession of Eussia on the coasts of Northwest America, begin-,
ning at the northern point of the Island of Vancouver, in latitude 51°
north, and extending to Bering Strait and beyond, as well as on all
islands adjoining the coast and all those situated between this coast
and the eastern shore of Siberia, as well as on the Kurile Islands, where
the company has engaged in hunting, down to the south cape of the
Island Urupa, in latitude 45° 50'. 37
The term "hunting" in Article II necessarily includes the same
"hunting * * * carried ou by our loyal subjects in the northeastern
seas and along the coasts of America" that is reserved, exclusively, to
Eussian subjects by the ukase of 1799.
The right of fishing is not mentioned specifically in the ukase of
1799, for the reason, doubtless, that it then had no importance. It is
specifically mentioned in the ukase of 1821, and is therein classed as
follows, viz, " the pursuits of commerce, whaling, and fishery, and of
all other industry on all islands, ports, and gulfs."
In the ukase of 1821 all these pursuits, including hunting iu the
northeastern seas, are embraced in "the trade of our subjects (who are)
on the Aleutian Islands and on the Northwest coast of America appertaining to Eussia," are covered by the protecting power of the Eussian
Empire.. And in order to make the protection effectual the right of
navigation was in that ukase restricted to 100 miles from the coasts, etc.
In 1824 the United States held the Spanish title to its possessions
on the Pacific coast north of latitude 42°, and had no other substantial claim to that coast. In the treaty of 1824 between the United
States and Eussia nothing was settled that had not been claimed by
Eussia in these two ukases of 1799 and 1821, and in Article I of the
treaty (the rights of) "the respective citizens and subjects of the High
Contracting Powers" are "neither disturbed nor restrained either in
navigation or in fishing, or in the power of resorting to the coasts, upon
points that may not have been already occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles."
Articles 2, 3, and 4 are.as follows:
Article II.
With a view of preventing the rights of navigation and of fishing
exercised upon the Great Ocean by the citizens and subjects of the
high contracting powers from becoming the pretext for an illicit trade,
it is agreed that the citizens of the United States shall not resort to
any point where there is a Eussian establishment without the permission of the governor or commander; and that, reciprocally, the subjects of Eussia shall not resort without permission to any establishment
of the United States upon the Northwest coast.
Article III.
It is moreover agreed that hereafter there shall not be formed by
the citizens of the United States, or under the authority of the said.
States, any establishment upon the Northwest coast of America, nor in 38
ill
m
IP
tmilmii'Ai
IPl
any of the islands adjacent, to the north of fifty-four degrees and forty
minutes of north latitude; and that, in the same manner, there shall
be none formed by Eussian subjects, or under the authority of Eussia,
south of the same parallel.
Article IV.
It is, nevertheless, understood that during a term of ten years,
counting from the signature of the present convention, the ships of
both powers, or which belong to their citizens or subjects, respectively,
may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks upon the coast mentioned in the
preceding article for the purpose of fishing and trading with the
natives of the country.
This treaty was designed to settle all the questions involved in the
ukases of 1799 and 1821, in which the United States claimed any
interest, under international law, and there is no mention made of any
change or modification of the exclusive right of the Eussiaus (made so
prominent in the ukase of 1799) of "hunting and trading carried on
by our loyal subjects in the northeastern seas and along the coasts of
America," except that the right of "trading with the natives of the
country" is granted to Americans for ten years; and after that time
they "shall not resort to any point where there is a Eussian establishment without the permission of the governor or commander."
Aside from the question whether " the Great Ocean " included* Bering Sea, or is distinguished from it in the treaty of 1824, the right
of " hunting in the northeastern seas and along the coasts of America,"
which, with the right of trading, was considered so replete with "benefits and advantages resulting to our empire," as to be made the sole
grounds of the ukase of 1799, teas not touched by the treaty of 1824
with the United States, or the treaty of 1825 with Great Britain.
That right stands to-day as a right asserted by Eussia and reserved
out of ail treaties with the United States and Great Britain.
That is quite a sufficient assertion of the right, to support a prescriptive
title to the fur-bearing animals in Behring Sea.
The right of "resorting to the coasts, upon points which may not
already have been occupied for the purpose of trading" whichis agreed
upon in Article I of the treaty of 1824 is altogether distinct from the
right of hunting "in the northeastern seas" or along the coast.
The rights of "fishing" and "hunting" are not anywhere alluded to
i n these ukases or treaties as bein g the same; on the contrary, th e right
of hunting is reserved to Eussian subjects "in the northeastern seas
. and along the coasts of America," while the treaty of 1824 forbids citi- ii*l
39
zens of the United States from resorting to the coast of Eussia at any
point where there is a Eussian establishment without the permission
from the governor or commander. Those were the points along the
coasts where hunting was most profitable, where the fur-seals were
mostly hunted, and where, for that purpose, Eussian establishments
were located.
If the "fishing" mentioned in the treaty of 1824 meant seal "hunting," why was this "hunting" or "fishing" forbidden to the people of
the United States' at the places where the Eussians found it most
profitable? The Indians at that time hunted seals in Bering Sea outside the limit of 3 miles from the coast, and the Eussians hunted them
on the Pribilof Islands. Why should American citizens be excluded
from "hunting" seals on shore where the Eussians had establishments
and yet be admitted to the right of "fishing" for seals in the sea,
"along the coasts" where the Indians "hunted" them? These words,
"hunting" and "fishing," have each a natural and clear signification,
which is most strongly emphasized in these ukases and in the treaty
of 1824 as.being entirely distinct, and there is no warrant in the context of either of these ukases, or treaties, or in the circumstances that
led to them, for construing "hunting" and "fishing" as identical or
synonymous terms.
The ratification of the treaty of April 5-17,1824, with Eussia was
proclaimed on the 12th day of January, 1825. Until then it was not
in force. As early as June 12, 1824, Baron Tuyll, Eussian minister at
Washington, was instructed by his Government "to the effect that the
Northwestern Coast of America, along the extent of which, by the provisions of the convention, free trading and fishing are permitted subjects
of the North American States, extends from 54° 40' northward to
Yakutat (Behrirrg) Bay."
The understanding of the treaty by Eussia is in accord with the
policy stated in the note of the minister of finance to Director Uva-
rof of April 2, 1824, in which it is ordered that "the carrying on of
trade with foreign vessels arriving there (harbor of New Archangel,
now Sitka) established regulations at one designated port."
A conference of Eussian notables was held in St. Petersburg on Ju]y
21, 1824, by order of the Emperor, to "again examine" the effect of the
treaty of April 5,1824, upon Eussian rights and interests, "and also
the means which the Imperial ministry thinks best calculated to prevent all injurious and unjust interpretations." lm']
40
In the fifth resolution of this conference it is claimed that the treaty
secures to Eussia this advantage, viz, " that after the expiration of
ten years the subjects of the United States of America will abstain
entirely from visiting the waters of the North American coasts beyond
54° 40' and from fishing and from trading there with the native inhabitants."
The majority of the members of that committee stated as their
opinion—
That the treaty of April 5-17 must be ratified, and that for the
prevention of any incorrect interpretation of that act Gen. Baron
Tuyll may be instructed at the proper time to make the declaration
mentioned in the draft of the communication read by Count Nesselrode.
The minister of finance and Acting State Councillor Drushinin,
while admitting the necessity of ratifying the treaty of April 5-17,
express and place on record the special opinion hereto annexed in the
protocol, to the effect that Baron TuylJ should be instructed at the
exchange of the ratifications of that treaty to stipulate that the right
of free hunting aud fishing granted by the second article of the said
treaty shall extend only from 54° 40' to the latitude of Cross Sound.
The majority of the members of the committee could not but observe,
on the one hand, that as the Eussian-American Company has founded
many settlements in the said latitude, article 2 of the treaty of Appil
5-17, gives it the desired security on this subject; that even if "It
had simply organized hunting and fishing in those regions it is
extremely doubtful whether American subjects would undertake the
expense necessary for voyages to those Northern latitudes in which
they can enjoy their privileges for only ten years, and whether in that
case they would expose themselves to dangerous competition and would'
visit those waters for hunting and fishing where they had long been
anticipated by the company, as there would be little hope for them of
indemnifying themselves for their expenses and losses.
These proceedings show that the Eussian claim at that time and
under their construction of the treaty of April 5-17,1824, was that the
assertion of the exclusive right of fishing and hunting north of 59° 30'
was reserved to Eussian subjects even during the period of the privileges that were granted to United States citizens under article 4 of the
treaty, for ten years.
This attitude of Eussia towards the exclusive ri ght to the fur trade
in Bering Sea was maintained in practice down to. 1867, no one object,
ing. The close care of the fur-seal industry on the islands, the policeing
of the seas for the protection of fur-bearing animals, the arrest of suspected or offending ships, and the basing of civilization and government on that traffic upon all her coasts and islands in Bering Sea by
careful legislation, all prove that Eussia admitted no common, or partnership rights of any people or government in any of those privileges I 41
or industries. There is no evidence but the silence of other governments, if any objection to these claims of Eussia existed.
In every stage of the negotiations between the United States and Great
Britain and in every declaration of right by Eussia, up to the exchange
of ratifications of the treaties of 1824 and 1825, and in every declaration
of Eussia since that time, the protection and security of her fur trade
in Bering Sea has been an object of her solicitude. Every governmental act instituted and performed by Eussia in that connection has
been exactly in correspondence with her assertion of dominion over
Bering Sea as a preserve for taking furs through hunting "in the
northeastern seas" and "in the gulfs" thereof, and of the South Sea,
or Pacific Ocean, and along her coast line, south as well as north of
the Aleutian Islands and peninsula.
It was this assertion of dominion that the United States' and Great
Britain yielded to when they, respectively, accepted the restrictions
upon the rights of " fishing and trading with the natives," which are
limited to the period of ten years, in Articles III and IV of the treaty
with the United States, and Articles III and VII of the treaty with
Great Britain.
In the treaty of 1824 with the United States, Articles III and IV
are as follows:
III.
It is moreover agreed that, hereafter, there shall not be formed by
the citizens of the United States or under the authority of the said
States, any establishment upon the northwest coast of America, nor
in any of the islands adjacent to the north of fifty-four degrees and
forty minutes of north latitude; aud that, in the same manner, there
shall be none formed by Eussian subjects or under the authority of
Eussia, south of the same parallel.
IV.
It is, nevertheless, understood that during a term of ten years, counting from the signature of the present convention, the ships of both
powers, or which belong to their citizens or subjects respectively, may
reciprocally frequent, without any hindrance^ whatever, the interior
seas, gulfs, harbors, and creeks, upon the coas"t mentioned in the preceding article, for the purpose of fishing and trading with the natives
of the country.
In the treaty with Great Britain, Articles III and VII are as follows:
III.
The line of demarkation between the possessions of the High Contracting Parties, upon the coast of the continent, and the islands of
America to the northwest shall be drawn in the manner following:
Commencing from the southernmost point of the island called Prince Ill
111
42
of Wales Island, which point lies in the parallel of fifty-four degrees
and forty minutes north latitude, and between the one hundred aud
thirty-first and the one hundred aind thirty-third degree of west longitude (meridian of Greenwich), the said line shall ascend to the north
along the channel called Portland Channel, as far as the point of the
continent where it strikes the fifty-sixth degree of north latitude; from
the last-mentioned point the line of demarkation shall follow the summit of the mountains situated parallel to the coast, as far as the point
of intersection of the one hundred and forty first degree of west longitude (of the same meridian); and finally from the said point of intersection, the said meridian line of the one hundred and forty-first degree
in its prolongation as far as the fiozen ocean, shall form the limit
between the Eussian and British possessions on the continent of America to the northwest.
VII.
It is also understood that for the space of ten years from the signa;
ture of the present convention the vessels of the two powers, or those
belonging to their respective subjects, shall mutually be at liberty to
frequent, without any hindrance whatever, all the inland seas, gulfs,
havens, and creeks on the coast mentioned iu Article III, for the purpose of fishing and of trading with the natives.
If Great Britain had understood that the treaty of 1824 with the
United States gave to their citizens the perpetual right of fishing and
trading with the natives in " interior seas, gulfs,*harbors, and cree*ks,
upon the coast"—"the northwest coast of America"—and "in the
islands adjacent" thereto^ "to the north of 54° 40'north latitude," that
Government would not have accepted a limitation of thisright to a
period of ten years. Under such a construction of the treaty of 1824
with the United States it would have been sheer folly for Great Britain to
have given Eussia the same privilege for ten years from Prince of Wales
Island, along Portland Channel up to 56° of north latitude, for Great
Britain asserted, with absolute confidence, that Eussia would not make
terms with her that were less liberal than she had made with the United
States.
If Eussia yielded her dominion over her preserve of fur-seal hunting
in perpetuity to the United States, and then to Great Britain, what
could have been the necessity that prompted them to insert these by-
provisions for the same rights for a period of ten years in their
treaties'? it is too clear for disputation that Eussia intended to
yield these rights, reciprocally, for ten years, because she was not willing that they should extend beyond that period, except at her option.
A more forcible statement of the claim of Eussia to the exclusive right
of fishing and trading with the natives in those waters could not well
have been made. 43
Yet even these concessions did not include the right of "hunting " fur-
bearing animals, which Russia was never asked to yield. For these purposes her dominion over Bering Sea and all the gulfs, bays, inland
seas, and creeks on all her coasts was reserved.
The rights of whaling, fishing, hunting,, and trading, conducting
commerce and navigation, are all referred to in these ukases and
treaties as separate and distinct rights. In their nature they are
distinct, and none of them includes the others, though they are closely
related. When each of these rights is expressly and distinctively
mentioned in one part of these treaties and ukases, as. a substantive
right or pursuit, it is not a proper construction of these solemn instru
ments to say that those rights are intended to be included in those parts
where they are not mentioned, or that "hunting" is telescoped into
"fishing" and "fishing" into "whaling" and all of them into "navi-
ation," or that the use of that word or the assertion of that right
includes all these other rights.
Dominion of Bering Sea could have been exercised for the exclusive
enjoyment and protection of either of those rights, without including
any other, though, as in the case of the 100 miles limit, which was a
modification of the claim of the exclusive right' of navigation, the full
exertion of that power would have closed that sea to all navigators
whether they were whalers, fishermen, or hunters. The ukase of 1799
asserted this dominion, so as to protect the right of "hunting in the
northeastern seas" and of trading with the natives, and no other ukase
or treaty ever yielded the exclusive right of hunting, under any condition, or the right of fishing to any other extent, than under the ten
years limit provided in the above-quoted, articles of those treaties of
1824 and 1825.
Dominion in one country over land or sea, is entirely consistent
with easement or privilege in another.
Navigation is a universal easement to be enjoyed by all vessels sailing on lawful voyages upon the high seas, but it hag no element of
dominion to support it, except within territorial waters. Fishing, lawfully conducted, is also an easement equally universal, and the right
is also exclusive in territorial waters.
The dominion that protects fisheries is more exclusive than that
which limits the free right of navigation. Within territorial limits,
fishing is a property right, while navigation within those limits is, for
innocent purposes, an easement that no nation denies to another. 44
Hunting is an easement that is still more under the control of national
dominion, because it is conducted with firearms and is, therefore, a
more dangerous practice where the people are savages or are rebellious, because it furnishes a pretext for introducing among them arms
and ammunition. And hunting and trapping are different pursuits.
Eussia had powerful inducements for keeping hunting on land or sea
and trading with the natives under her exclusive dominion.
What is dominion? Sir Eobert Phillimore, in his "Commentaries
on International Law, Vol.1, p. 266, Ed. 1871, says : "Dominionis the
fullest right which can be exercised over a thing : the right of property,
so called." On page 267 he says : "As dominion is acquired by the combination of the two elements of fact and intention, so, by the dissolution
of these elements, or by the contrary fact and intention, it may be lost
or extinguished."
On page 274 he says :
But when occupation by use aud settlement has followed upon discovery, it is a clear proposition of law that there exists that corporal
possession (corporalis quaedam possessio (a) detentio corporalis (b)) which
confers an exclusive title upon the occupant, and the dominium emi-
nens, as jurists speak, upon the country whose agent he is.
On page 285 he further says:
CCXLII. The nature of occupation is not confined to any one class or
description; it must be a beneficial use and occupation (le travail d' appropriation) ; but it may be by a settlement for the purpose of prosecuting a particular trade, such as a fishery, or for working mines, or
pastoral occupations, as well as agriculture, though Bynkershoek is correct in saying, cultura utique et cura agri possessionem quam maxime
indicat.
Vattel justly maintains that the pastoral occupation of the Arabs
entitled them to the exclusive possession of the regions which they
inhabit.
It has been truly observed that, agreeably to this rule the North
American Indians would have been entitled to have excluded the British
fur-traders from their hunting-grounds; and not having done so, the
latter must be considered as having been admitted to a joint occupation of the territory, and thus to have become invested with a similar'
right of excluding strangers from such portions of the country as their
own industrial operations'pervade.
CCXLIII. A similar settlement was founded by the British and
Eussian fur companies in North America.
The chief portion of the Oregon Territory is valuable solely for the
fur-bearing animals which it produces. Various establishments in different parts of this Territory organized a system for securing the preservation of these animals, and exercised for these purposes a control over
the native population. This was rightly contended to be the only exercise, of proprietary right of which these particular regions at that time 45
were susceptible, and to work that a beneficial, use was made of the
whole Territory by the occupants.
CCXLIV. It should be mentioned that.the practice of nations in
both hemispheres is to acknowledge in favor of any civilized nation
making a settlement in an uncivilized country a right of preemption
of the contiguous territory from the native inhabitants as against any
other civilized nations. It is a right claimed by Great Britain with
respect to her Australian settlements, especially New Zealand; aud by
the United States of America with respect to the Indians in their back
States.
In the claim of Eussia to the exclusive "hunting in the Northeastern
seas," to say nothing of the rights of fishery and navigation, as such
rights are defined in the international law, there is enough in the highest
legal authority to support the foundation of the right, which is the handmaiden of peace, namely, the right which is "a mode of original acquisition which is effected by the operation of time," and is " what the
English and French jurists term prescription."
On page 298,Vol. 1, Sir Eobert Phillimore says:
The doctrine of immemorial prescription is, from the very necessity,
of the case, indispensable in the system of public law.   Accordingly
we find it mentioned more than once in the constitutions of the ancient
German Empire and as a mode of acquiring public rights.
On pages 299 and 300 the same author says:
Having discussed the position of prescription in the systems of private and public laAv we now approach the consideration of a matter,
holden by the master mind of Grotius to be one of no mean difficulty,
namely, international prescription. Does there arise between nations,
as between individuals, a presumption from long possession of a territory or of a right which must be considered as a legitimate source of
international acquisition?
In seeking an answer to this important question it is necessary to
keep clear of all subtle disquisitions with which this subject has,been
perplexed; whether, for instance, it be the creature of natural or civil law,
or whether it must be always founded upon a presumption of voluntary
abandonment or dereliction by the former owner. Through these metaphysical labyrinths we can not find a clue for questions of international,
jurisprudence. The effect of the lapse of time upon the property and
right of one nation relatively to another is the real subject for our consideration. And if this be borne steadily in mind it will be found, on
the one hand, in the highest degree irrational to deny that prescription
is a legitimate means' of international acquisition; and it will, on the
other hand, be found both inexpedient and impracticable to attempt to
define the exact period within which it can be said to have become
established—or, in other words, to settle the precise limitation of time
which gives validity to the title of national possessions.
Again, on pages 301, 302, and 303, he says:
CCLVI1I. It is true that some later writers on the'law of nations have
denied that the doctrine of prescription has any place in the system of
international law. But their opinion is overwhelmed by authority, at
variance with practice and usage, and inconsistent with the reason of
the thing.    Grotius, Heineccius, Wolff, Mably, Vattel, Eutherforth,
<m 46     .
Wheaton, and Burke constitute a greatly preponderating array of
authorities, both as to' number and weight, upon the opposite side.
The practice of nations, it is not denied, proceeds upon the presumption of prescription, whenever thereis scope for the admission of that doctrine. The same reason of the thing which introduced this principle
into the civil jurisprudence of*every country, in order to quiet possession, give security to property, stop litigation, and prevent a state of
continued bad feeling and hostility between individuals, is equally
powerful to introduce it, for the same purpose, into the jurisprudence
which regulates the intercourse of one society with another, more
especially when it is remembered that war represents between States
litigation between individuals. It is very strange that the fact that
most nations possess in their own municipal codes a positive rule of
law upon the subject, has been used as an argument that the general
doctrine has no foundation in international law.
It is admitted, indeed, that immemorial prescription constitutes a
good title to natioual possession; but this is a perfectly nugatory
admission, if, as it is sometimes explained, it means only that a State
which has acquired originally by a bad title, may keep possession of
its acquisition as against a State which has no better title. If it had
been merely alleged that the exact number of years prescribed by the
Eoman law, or by the municipal institute of any particular nation, as
necessary to constitute ordinary prescriptions, is not binding in the
affairs of nations, the position would be true, it is, perhaps, the
difficulty attending the application to nations of this technical part of
the doctrine which has induced certain writers to deny it altogether;
but incorrectly, for, whatever the necessary lapse of time may be, there,
unquestionably is a lapse of time after which one State is eutitled tfr
exclude every other from the property of which it is in actual possession. In other words, there is an international prescription, whether
it be called immemorial possession or by any other name. The peace
of the world, the highest and best interests of humanity,the fulfillment
of the ends for which States exist, require that this doctrine be firmly
incorporated in the code of international law.
Will this tribunal shrink from the recognition of this doctrine, now that
an opportunity, distinctly given, calls for a firm declaration f
The importance of prescription as a basis of title, or right, to any
property, or exclusive privilege, is thus stated by Sir Eobert Phillimore (p. 305):
But that prescription is the main pillar upon which the security of
national property and peace depends, is as incontrovertable a proposition as that the property aud peace of individuals rest upon the same
doctrine.
To these remarks should be added the observation of another great
modern jurist:
The general consent of mankind has established the principle that
long aud uninterrupted possession by one nation excludes the claim of
every other. Whether this general consent be considered as an implied
contract or as positive law, all nations are equally bound by it, since
all are parties to it, since none can safely disregard it without impugning its own title to its possessions, and since it is founded upon mutual .
utility, an d tends to promote the general welfare of mankind.   (Wheaton.) 47
In one of those treatises which show how deeply the mind of the
writer was imbued with the principles of general jurisprudence, Mr.
Burke uses the following admirable expressions:
If it were permitted to argue with power, might one not ask one
of these gentlemen whether it would not be more natural instead of
wantonly mooting these questions concerning their property, as if it
were an exercise in law, to found it on the solid rock of prescription?
The soundest, the most general, the most recognized title between man
and man that is known in municipal or public jurisprudence; a title in
which not arbitrary institutions, but the eternal order of things gives
judgment; a title which is not the creature, but the master of positive
law; a title which though not fixed in its term, is rooted in its principles
in the law of nature itself, and is indeed the original ground of all
known property; for all property in soil will always be traced back to
that source, and will rest there. * * * These gentlemen, for they
have lawyers amongst them, know as well as I that in England we
havealwajsa prescription or limitation, ax all nations have against
each other. * * * All titles terminate in prescription; in which
(differently from time in the fabulous instauces) the son devours the
father, and the last prescription eats up all the former.
These citations from very eminent British authority establish the
right of a government by prescription, based on occupancy and claim
of title, to any dominion, on laud or sea, of anything in the nature of
property, whether corporeal, or incorporeal, as firmly as if the right
; were established by grant or as the result of conquest or cession.
The true doctrine of the international law is stated in the extract
above quoted from Wheaton (Vol. 1 p. 207) that " The general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other."
This rule is fully applicable to the dominion of Eussia over the fur
industry and trade in Bering Sea, which was never yielded or transferred to any government until it was sold to the United States.
Dominion also includes the right of a government to the soil beneath
the territorial and adjacent waters. The claim of territorial waters
over an area of the sea that is clearly demarked by laud boundaries,
though not entirely inclosed by the land is, a valid exercise of power
by the government that owns the land which forms the coasts and
islands that define the boundary. It may not be sufficient to destroy
the easements that other nations may have in those waters, yet, it is
dominion' or ownership of the land beneath those waters, and it is clearly
sufficient to support the municipal jurisdiction of the government over
its own citizens, and, also, to support a claim to any pearl or oyster beds
beneath such an area of waters, or any mines that may be found there.
Such' a .claim and assertion of ownership may not be sufficient reason 48
I
lift
If m
for denying to other nations in that area the privilege of navigation
or fishery, but that fact does not negative the dominion that may be
thus lawfully exercised. To illustrate: If an island should be thrown
up by volcanic action or the action of the water within the limits of
Bering Sea it would belong to the United States, without first discovery
o# occupation, in virtue of its dominion already exercised over that sea.
And, so, if it became necessary that the United States should close
Unimak Pas,s with obstruction, for any purpose, even to the great
in convenience of navigators or .fishermen, the question of the right to
do this would be resolved, under the international law, by the other
question whether the easement of navigation through that pass was of
such importance to the world that the owner of the soil beneath the
water would, in justice, be compelled to yield its rights.
In all such cases, where the exercise of the privilege of navigation,
fishery, or other easement is injurious to the owner of the soil above
which it' is exercised, the privilege must yield to the higher right of the
dominion of the owner of the soil.
The right of dominion in a sea like Bering Sea or the sea of Okhotsk
does not depend ou its being separated from water communication with
the ocean. If the configuration of the land surrounding it is sucrcas
to make it necessary to the peculiar commerce of the country within
which it is embayed, or to the defense of such country, or to the proper
administration of its powers of government over its own people, it is a
right ex debito justitim that there should be dominion over such sea.
This is the right that is now the foundation of the exclusive right of
several nations to dominion over seas that are not inclosed by the land
on their shores, as stated by Sir Eobert Phillimore, page 225, as follows:
The exclusive right of the British Crown to the Bristol Channel, to
the channel between Ireland and Great Britain (Mare Hibernicum,
Canal de St. George), and to the channel between Scotland and Ireland is uncontested. Pretty much on the same category are the three
straits forming the entrance to the Baltic, the Great and the Little
Belt, aud the Sound, which belong to the Crown of Denmark; the
Straits of Messina (il faro di Messina, fretum Siculum), once belonging
to the kingdom of the Two Sicilies i the straits leading to the Black
Sea, the Dardanelles and Hellespont; theThracian Bosphorus, belonging to the Turkish Empire. To narrow seas which flow between
separate portions of the same kingdom, like the Danish and Turkish^
Straits, as to other seas common to all nations, like the Straits of
Messina and, perhaps the St. George's Channel, the doctrine of innocent
use is, according to Vattel, strictly applicable.
In the case of the seas here mentioned other nations have the right
to the innocent use of them, but it must rest with the nation claiming
. 49
them to determine whether the use that is made of them by another nation is
innocent. This is all that the United States claim of "dominion"
over Bering Sea in respect to the protection and preservation of the
fur-seals resorting to those waters and' the industry in the pelts and
oil so long established on their islands, which have no value for any
other industrial purpose.
This claim, when these waters are invaded by a destructive method
of hunting the seals, is a right of self-preservation. That right is thus
stated by Sir Eobert Phillimore:
COX. The right of self-preservation, by'that defense which prevents,
as well as that which repels, attack, is the next international right
which presents itself for discussion, and which, it will be seen, may
under certain circumstances and to a certain extent modify the right
of territorial inviolability.
CCXI. The right of self-preservation is the first law of nations as it
is of individuals. A society which is not in a condition to repel aggression from without is wanting in its principal duty to the members of
which it is composed and to the chief end of its institution.
All means which do not affect the independence of other nations
are lawful for this end. No nation has a right to prescribe to another
what these means shall be, or to require any account of her conduct in
this respect.
CCXII. The means by which a nation usually provides for her safety
are: (1) By alliances with other States; (2) by maintaining a military
and naval force; and (3) by erecting fortifications and taking measures
of the like kind within her own dominions. Her full liberty in this
respect can not as a general principle of international law be too boldly
announced or too firmly maintained, though some modification of it
appears to flow from the equal and. corresponding rights of other
nations, or at least to be required for the sake of the general welfare and
peace of the world.
Tbe United States have the right to treat the sudden and dangerous
increase of the number of vessels engaged and the number of seals
taken in pelagic hunting as an impending threat of the destruction of
the seal herd that habitually resorts to their islands. These apprehensions are more directly excited, because they are actually justified
by the attack made on the seal herd, than those which are regarded
as a just cause of war in relation to armaments by neighboring nations.
Of these Sir Eobert Phillimore says, on page 253:
CCXIII. Armaments suddenly increased to an extraordinary amount
are calculated to alarm other nations whose liberty they appear, more
or less according to the circumstances of the case, to menace.
In the seizure of ships within the eastern waters of Bering Sea the
United States resisted, in the begin uing, a raid upon her industry which
•suddenly threatened its destruction, and this resistance, which was
timely and necessary, was made within her own dominion—a domiu-
11495 M 4 I
ill
Ipfi
II
iil
50
ion established by prescription as to the fur-seal industry, and which
also has for its support the principles of the international law which
apply to the British waters, above quoted, and to other seas that are
not entirely inclosed by the land mentioned in the following quotations
from Phillimore, vol. 1, p. 243:
COV. With respect to seas entirely inclosed by the land, so as to
constitute a salt-water lake (maria clausa;mers feim6es, encloses: Bin-
nenmeer, geschlossene innere Meere), the general presumption of law is
that they belong to the surrouuding territory or territories in as full
and complete manner as a fresh-water lake. The Caspian and Black
seas naturally belong to this .class. Upon the former sea Eussia had
by treaty with Persia, the exclusive right of navigation with ships of
war, and by the treaty of the Dardanelles the Black Sea was practically
confined to Eussian and Turkish ships of war. But by the treaty of
Paris of 1856 this sea is neutralized and open to the merchant ships of
all nations and closed to ships of war of any State.
OCVI. There is another class of inclosed seas to which the same
rules of law are applicable—seas which are land-locked, though not
entirely surrounded by land. Of these, that great inlet which washes
the coast of Denmark, Sweden, Eussia, and Prussia, the Ostsee as the
Germans call it, the Baltic Sea according to its usual appellation, is
the principal.
But the right of self-preservation of the United States, in respect to
the fur-seal industry, naturally and without reference to the actual
property in the animals, extends beyond her dominion. As to such
rights Phillimore says:
CCXIV. We have hitherto considered what measures a nation is
entitled to take for the preservation of her safety within her own
dominions. It may happen that the same right may warrant her in
extending precautionary measures without these limits and even in
transgressing the borders of her neighbor's territory. For international
law considers the right of self-preservation as prior and paramount
to that of territorial inviolability, and, where they conflict, justifies
the maintenance of the former at the expense of the latter right.
If this right of self-preservation is prior and paramount to territorial, inviolability, it must be superior to any right or easement of fishing
and hunting, and better entitled to the protection of international law.
The necessity for protecting this right is now as manifest and indisputable beyond Bering Sea as within its limits. When a source of
revenue or a necessary instrumentality of government is attacked, or
seriously threatened, the occasion arises for the interposition of the"
right of self-defense.
The configuration of Bering Sea, its coasts and islands, is such as to
give it an exceptional relation to the outside world. It is inclosed on
all sides by land and frozen waters, except through the passes of the 51
Aleutian and Kamtschatkan islands. A blockade of the Aleutian
passes would close every port in Bering Sea and, where a nation may
be thus locked in, it is not too much to claim that it has the right of
dominion over such interior waters and, for purposes of self-preservation, to lock other nations out.
It is a just right that is thus claimed by the United States, and when
it is used for purposes of self-preservation it is sustained by international law. ippi
WHEN POINT FIVE OF ARTICLE VI OF THE TREATY "WAS UNDER CONSIDERATION SENATOR MORGAN DELIVERED THE FOLLOWING
OPINION:
I beg leave to submit the following additional statements and arguments which I think are sufficient to establish that the prescriptive
rights of Eussia and the United States, in respect of the fur-seals that .
habitually resort to Bering Sea, are to be safely based upon the continued
and unquestioned usage of both countries, as well as upon the peculiar
characteristics of these animals.
And I will endeavor to state the reasons that compel me to hold, on
these and some other grounds, that the United States have a right
of property and protection in these animals.
I have already presented to the tribunal, on a previous day, the views
I entertain as to the true history of the claims set up by Eussia relating to the exclusive right to control and protect the fur industry in
Bering Sea, and have endeavored to state.generally the foundations in
law and fact upon which Eussia rested her claims. I will now again
briefly review,some of those facts as I believe they exist, and will refer
1o others, and endeavor to connect them with the doctrines of the law
which I think are clearly applicable to establish a right of property in
the fur-seals that is well founded, both as a right by prescription and
a right growing out of the useful and domestic nature of these animals.
The Eussian Government exercised the right to own and control the
seals that resorted to Bering Sea, and made temporary grants to its
subjects of the right to take them in those waters.
It may be said that this was an assumption of right on the part of
Eussia not supported by any rule of international law.   It was not
more distinctly an assumption of right than was the title to the islands,
based on the discovery of them by a Eussian subject.   In both cases
a native sovereignty was displaced to make room for the claims  of
Eussia, backed by superior force.   The processes of appropriation were
the same in reference to the seals and seal fisheries as they were in
52 53
reference to the islands, viz, discovery, claim, occupation, and development. Exclusive use and the acquiescence of other civilized powers
were the attendant facts that established the right of property in both
cases.
As all international law grows out of custom and has no Other root,
it can not be denied that the right of Eussia to appropriate and protect
this herd of fur-seals has been established by custom and maintained
by constant and exclusive use. Certaiuly no other nation in its sovereign character has claimed these seals or denied the right of Eussia
to their exclusive ownership. When Great Britain, in 1825, was treating with Eussia for an open sea, free navigation, and the rights of fishing in those waters, she set up no claim to a common right of hunting
seals or fur-bearing animals in those regions. Eussia went on renewing
her charters for these purposes to her subjects, and Great Britain stood
by and made no assertiou of such right for herself or her subjects for
about a half century. Nearly a century elapsed after the colonization
of the islands by Eussia before any British subject opposed the claim
of Eussia and the United States, her vendee, to a property right in the
seals that habitually resorted to Bering Sea. There are few customary rights that have a surer foundation in usage or upon the doctrine
of acquiescence than the world has accorded to Eussia in respect of
the right to the fur-seals resorting to Bering Sea.
The long acquiescence of Great Britain in this' claim of ownership in
seals by Eussia was not only without objection, protest, or diplomatic
suggestion to the contrary, but that. Government -has encouraged her
own people to base an extensive and valuable industry upon the
material provided by Eussia and regularly supplied to them from her
fur-seal husbandry.
It is now too late for Great Britain to say that Eussiaand the United
States mistook the law of nations when they set up rights of property
in fur-seals. Ninety years of acquiescence attended with no harm to
British people or interests, but with great benefits to both, is time
enough in which to establish the consent of Great Britain that live
seals resorting to Bering Sea arerproperty, as much so as dead ones are
that are slain by British subjects. But the acquiescence of Great
Britain is not needed to establish the proposition that there is property
in live seals and that it exists ratione soli. 54
THE THIRD QUESTION IN ARTICLE I OF THE TREATY  SEEMS TO HAVE
BEEN AVOIDED.
One of the three questions submitted to arbitration in Article I is so
dependent for its decision upon the question of property in fur-seals
that it should be considered in connection with it. It is concerning
"the rights of the citizens and subjects of either country as regards
the taking of fur-seal in or. resorting to said waters." The foundation of such a right could be none other than a right of property in
the seals when captured or killed in nonterritorial waters—a right
acquired by the capture of the seal, dead or alive. The final analysis
of this question is whether a right of property can attach to a living
seal that is found swimming in the ocean. This question is nowhere.
presented in the treaty or alluded to as a question to be submitted to
the Arbitrators, except in the first article. It is the postulate stated
by Great Britain in these contentions, around which every fact and
every principle of law asserted by Great Britain is grouped.
If British subjects have the right of taking fur-seals in, or habitually
resorting to, Bering Sea, it makes little difference what the rights of
the United States may be, for they would amount to nothing practically, and, in theory, such a right would destroy all the grounds
on which the United States could rest a claim to the right of protecting the seals outside the ordinary 3-mile limit.
This question is submitted for decision in such broad form as to
include "the rights of the citizens or subjects of either country, as
regards the taking of fur-seals in, or habitually resorting to said
waters."
The statutes of the United States, following the unqualified assertions of Eussia while she was owner of these islands, assert the ownership of the United States in the fur-seals found in the Bering Sea, and
base upon that ownership a governmental industry of great value to
the revenues. They punish with severity any person who destroys
this property or interferes with the agents or lessees of the United
States in its management, and they provide for the lease, to their own
citizens under careful regulations, of the privilege of taking seals.
Great Britain has not assumed and could not assume such a relation
as that to the fur-seals in, or resorting to, Bering Sea, because it can
not claim them ratione soli. It sets up no claim of ownership in the
fur-seals, but denies that ownership in them is possible until the animals have been captured or killed. 55
The respective countries occupy, therefore, very different relations to
this subject. A declaration of the right in favor of the citizens of the
United States to take fur-seals in Bering Sea, if made by this tribunal,
is a declaration that the statutes of the United States that forbid such
taking are of no validity and should be repealed, while the same
declaration when made in favor of British subjects is in perfect accord
with the laws, policy, and contentions of that country.
This obvious impediment to a decision as to the right of pelagic sealing in Bering Sea, under which the power of the United States over her
own citizens would be called in question, confines the inquiry to the
simple proposition whether the United States have a property in the
seals in, or habitually resorting to Bering Sea, and the nature of that
property.
The crucial test of the right of the United States to property in fur-
seals that resort to Bering Sea, whether that right implies a perfect
ownership of the seals or an interest in the usufruct of the herd for the
support of a legitimate and useful industry, is made by the treaty to
turn upon the question whether British subjects have 'the unrestricted
right to take seals on the high seas^as free-swimming animals that are
fierce natures. This, therefore, is the main question in the case, and
draws within its influence every other question presented to the Tribunal of Arbitration, except those questions that relate peculiarly to
Bering Sea, I have already discussed.
-This claim of right to take fur-seals ou the high seas is asserted as a
private and personal rightof every person who goes upon the high seas
under a recognized national flag; and the employment of the flag for
that purpose is not required to be legitimated by a license to fish.'
No government has asserted, or ever will assert, the right, as a government, to employ its sovereign powers, or its war fleets, in this business, for the purpose of increasing its revenues. Such conduct by a
government would be regarded as a disreputable invasion of the high
seas for its own aggrandizement aud, when it should come in conflict
with the interests of the people of other countries, the invasion would
be regarded as a national offense.
The case would be quite different it the purpose of the government
was to protect a bona fide claim of property in seals, against destruction. If in quest of seals to which no claim of property was asserted by
a government it should send out its fleets to gather revenue, or to
destroy .such property, claimed by another government, the necessary , II
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56
result would be a disturbance of the peace and probably a hostile collision. The case is altered in degree, but not in its nature, wheu a
government sustains and adopts the rights of its people to destroy a
property or industry claimed by another nation. If such government
could not, under the usage of nations or just principles of international law, thus enrich its treasury, it is difficult to see on what principle it could support its people in such conduct for their private gain.
In either case the sentiment of justice entertained by the civilized
nations would sustain the power that, in good faith, claimed the right
to own and protect the fur-seals for the benefit of the commerce of the
world, rather than the nation that denied the right of property in
seals, until they are captured and killed, and claimed the right to make
property of them only by indiscriminate and destructive slaughter.
In this treaty, and in all the diplomatic contentions that have led to
its conclusion, both Governments have admitted that property in seals
may be acquired, protected, and preserved, at least to the extent of
protecting aud preserving them by their concurrent regulations, and
they have agreed to apply the* e conceded facts to certain seals that
habitually resort to the waters of Bering Sea. These questions are virtually removed from the field of doubt or disputation by the terms
of the treaty under which the Tribunal of Arbitration is acting.
Great Britain now asserts that the property in seals can be acquired
only by capture, which, under the practice of pelagic hunting, as conducted by its subjects, means that such property can be acquired "only
by killing the animals.
The United States asserts that property in seals may be acquired
while they live, and without actual capture. As to the right of property in the individual animals, this is the only form of issue that is
joined between the parties to this treaty.
As to the proper protection and preservation of seal life to which
the Governments are both solemnly pledged in this treaty Great
Britain contends that taking them at sea is a better method than
taking them on land, and is, therefore, the proper method; while the
United States claim that the only method of taking seals that can
properly protect them is by selecting the animals for slaughter, and
that this can be done on the land and can not be done in the water.
The killing of the animals is included in each of these contentious as
the only way in which they can be made useful to mankind; and the
time, place, and method of killing them that is best adapted to the protec- 57
tion and preservation of seals in the class or herd that habitually resort
to the waters of Bering Sea is the real inquiry "concerning the preservation of the fur-seal in, or habitually resorting to," Bering Sea that
is submitted to the Arbitrators. All the other questions presented for
consideration or decision by the Arbitr tors relate alone to the powers
that either Government may employ and their jurisdictional rights to
enforce their respective contentions, or that both should employ concurrently, to protect and preserve seal life, outside of their territorial
limits.
Is it true, as it is asserted by the United States, that property in
fur-seals may be acquired while they are alive and without actual
capture? That depends to a great degree upon the value of the uses
to which they are put aud the certainty and regularity with which
they may be subjected to those uses, and these considerations relate
to animals as classes, and to their habits as a class, aud not to the
peculiarities of the individuals. Some individuals are frequently found
among animals that are everywhere classed as domestic which are as
wild and fierce (or timid as the case may be) as the wildest of animals,
such as horses, cattle, sheep, swine, poultry, and dogs. And some of
the wildest and most ferocious animals have been so domesticated by
training as to become harmless, and even serviceable, or profitable in
a high degree, such as hunting leopards, hawks, cormorants, elephants,
and even bears, lions, and tigers. But these exceptional instances of
domestication by training prove nothing as to the general nature or
habits of the classes of animals in which they are found.
If a class of animals is valuable for the uses of mankind and is, by
habit, drawn within reach of man periodically, with regularity and
certainly, the nation that thus acquires a settled and peculiar power
of control over it on land may base a legitimate industry upon the material it affords, and may declare the animals to be its property. A
nation so situated may certainly make such an assertion aud declaration of ownership in the entire class of such animals as against the
right of its own people to treat them as being wild auimals and res
nullius, and in that sense and to that extent at least it may exercise
ownership over them without capturing them. Animals that are classed
as being domestic, are protected by a legal presumption of ownership,
however wild they, in fact, may be. Animals domesticated by training are sheltered by the same presumption of law, until they have
resumed their wild condition.
Wild animals, called game, are not protected by legal fictions but 58
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by legislative enactments. Their protection, when it is accorded,
must be by law, because it trenches upon the natural rights of the
people to capture and appropriate them. The State assumes a right
of public appropriation, and deprives its subjects of the right to
appropriate such animals and regulates or prohibits its exercise. If
the State takes the further step of declaring by law that it has
appropriated these wild animals to the uses of Government and that
its possession and ownership are complete by legal construction and
without taking actual possession of them, they become the property of the State wherever those laws are in force. Thus all
game laws are based on the sovereign right to appropriate wild
animals by the state. This right of government, for it is such a
right, is illustrated in a forcible way by laws giving bounties for the
destruction of wolves and other predatory animals. If a man, for
reasons of his own, should claim that he was, ratione soli, the owner of
a cave that sheltered wolves and therefore of the wolves, he could not
resist the right of the state to cause* their destruction in accordance
with law, even in the cave where they were bred but left uncon-
fined to go forth at will and maraud upon the property of others.
The power of the state in such case is not based on its judicial
function of suppressing nuisance, but on its ownership, when it chooses
to assert it, over wild animals.
It may be and, in a general sense, it is true that the private owner
of the soil on which a wild animal is bred can only acquire actual
property in such animal by its capture, but that is far from being true
as to the sovereign power in a state. A state that can not dispose of
what is res nulliu-s, within its own jurisdiction, is wanting in an essential power of sovereignty. It could not otherwise dispose of escheats,
waifs, derelicts, or forfeitures that occur without judicial procedure, as
many do occur. If these propositions are true it is unquestionable
that a state may acquire property iu anything susceptible of ownership
that is res nullius, found within its jurisdiction, by a simple declaration
of law and without taking it into actual possession. The property so
acquired is the creature of municipal law.
The United States has done all that is necessary to establish its
ownership of fur-seals by municipal laws that are operative against
everybody within the limits of their jurisdiction, whether those limits
include all the waters of Bering Sea or only the land and waters within the ordinary 3-mile limit.   Within those limits this declaration of 59
the supreme legislature establishes property in fur-seals and appropriates it to the United States while the seals are living and without the
necessity of capturing them. Wheu this property is found outside the
limits of the jurisdiction of the Uuited States the question arises for
the first time as to how far the people of other countries are bound to
respect the title asserted by the United States. As to the people of the
United States, they are bound to respect this title of their Government,
if so required by law, wherever their allegiance binds them,- and the
laAV does bind them to respect the property of the United States wherever it may be found.
No rule code, or system of law, municipal or international, is prescribed or alluded to in the treaty as the guide of the tribunal in
determining any question submitted to them.
The only allusion that is made in the treaty to laws or jurisprudence
is that the Arbitrators "should be jurists of distinguished reputation
in their respective countries." This requirement, as well as the nature
of the subject, questions, and points submitted to the tribunal for examination, is a sufficient indication that where the recognized principles of
international law or the municipal laws of the respective countries
furnish a basis and guide to ascertain and admeasure the rights of the
respective treaty powers, they shall be followed. But if there are
not such precedents and enactments the declaration of their respective
rights, outside the limits of their exclusive jurisdiction, is within the
competence of the tribunal, and also the declaration of their duty
concerning the protection and preservation of the fur-seals in question.
The United States assert their right of property in the fur-seal in
question while they are alive' and without the incident of actual capture:
First, as a right by prescription derived from Eussia, and acquiesced
in by Great Britain; and their usefulness to the Government and the
people.
Second, as a right established by law withiu its domain, that is not
impaired by the necessary and temporary absence of the seals in search
of food, either while they are inhabiting the seal islands, or when they
retreat from them on their winter excursions into the Pacific Ocean;
Third, as a right of property that is the necessary result of the
habits of the animals, and their natural and compulsory relation to the
Pribiloff Islands;
I Fourth, as a right of property growing but of the necessity of gov- inn
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ernmental control of the fur-seals, to prevent their destruction, and the
alleged fact that such control can be efficiently exercised only by the
Government whose territory is occupied by them at their birth, and
while they are their property, ratione impotentia;
Fifth, as a right of property based on the fact that, with the acquiescence of all nations, established by the fact that no objection or protest
was made or adverse action was taken by any nation for a period of
ninety years, 'an industry was established, depending for its support
upon the preservation of the stock of fur-seals, which will be destroyed
if indiscriminate-pelagic hunting is further permitted.
This is the first international controversy that has arisen as to the
right of property in or protection of fur-seals, and there is no case, in
point, to which reference can be made as settling the law of nations on
the subject. But there is no right, recognized by international law,
that is opposed by the case of Great Britain to either of these claims of
the United States to the ownership of the fur-seals in- question, except
the right of free fishing in the open sea. This right is claimed for its
subjects by the Government of Great Britain, and is made .to include
fur-seals, as free swimming animals, feres natures.
The universal right of free fishing in the open sea is established in
the custom of nations, which is the law of nations, and is not disputed
by the United States When it is conducted in a just and reasonable
manner and against fishes or animals that are res nullius.
The free right of fishing can not be exercised to make a.lawful-capture of fur-seals if they are not wild animals, or if they are anirnals
wild in their nature, but have been lawfully appropriated by a government and are at large in the ocean with the purpose of returning to
the dominion of the owner, or under the compulsion of an instinctive
necessity for returning to the dominion of the owner, which the animals habitually and periodically obey.
The right claimed by Great Britain is in every sense a right to hunt
and to kill game. The seals are never taken, as sometimes fishes are,
for purposes of propagation, but only for their value when they are
killed. The arts of fishing with hook and line and bait are never practiced as to fur-seals and would be utterly without success. Catching
them with seines or nets is impracticable as an industry and, when practiced, only small animals are captured and none are taken alive. That
is only a method of capturing them by drowning. The death of the game
is the only means of capture at sea, and that is conducted with the har- 61
poon and the gun—deadly weapons. The hunter attacks every seal
within range of his weapons without discrimination or forbearance. ' His
success depends entirely upon indiscriminate attack and slaughter, for
he can do no less than that if he hunts with any success. His forbearance, after he has captured his game with seine or hook, may release it
alive if it is found to be under age or size and it will grow to its full
size; but capture of the fur-seal in the open sea is sure and instant
death, and, as to the herd or species, it is swift and inevitable destruction.
If this is "free fishing" it is such fishing as no civilized nation would
tolerate within its own territory in respect to any fish or wild animal
as useful and as helpless as fur-seals.. No civilized nation that has
seal rookeries within its territory has omitted to provide laws for their
protection against i uch hunting to the full extent of its powers. The
indiscriminate killing of fur-seals is not, and never will be, sanctioned by
the statute laws of any civilized country.
This right of indiscriminate slaughter of fur-seals on land and sea
can only be traced, and, in this case, has only been traced, as to its
origin, to a custom of the savage'Indians, who were forced to adopt it
as a means of living. It is said to have thus gained its root in the law
of nations. Civilized nations that have gained dominion over these
savage tribes have taken control of the subject and have reversed these
laws of the savages in their application to their civilized subjects, and
have forbidden them to enjoy this unrestrained privilege. But, in some
instances, they have permitted the savages to continue the practice,
because it is confined to short distances from the shores, and is conducted with such weapons and in such manner as is not seriously detrimental to the fur-seal species. Moreover, the fur-seals are a source
of food supply aud of raiment, to deprive them of which would imperil
their existence. It is also cheaper to x>ermit their slight raids on the
fur-seals than it would be to feed and clothe them.
Finding this right, of savage origin, thus forbidden or restrained by
the municipal laws of all nations interested in the subject, and that the
uniform course and current of public opinion of the nations is directed
to this end for the purpose of preserving the fur-seal species, are'we to
conclude, in the absence of any direct or conclusive rule of international law, that there is a principle or rule to be found in the laws of
nations that sustains and upholds the unrestrained right as it existed
among the-savages to hunt or fish for fur-seals in the open sea in a 62
I
way and at times and places where the practice insures the speedy
destruction of the species?
The international law is a growth, and it is directed and shaped by
the experience and the sedate judgment of mankind. In its growth it
has displaced many rules and dogmas that have proven to be impediments to the inarch of civilization. Among the most important of these
concrete rules that have thus been dethroned is that law of nations which
gave to Eussia the right to declare the Sea of Okhotsk and Bering
Sea to be closed seas. That was the international law when they were
discovered and occupied by thatjpower.   It has since been changed.
Eussia, in 1824, yielded that claim to the advancing growth of international law, but did not yield to pelagic hunters the right, in those
waters, to destroy fur-seals indiscriminately. Eussia saw that the
sentiment of the world, to which she surrendered the right of free
fishing and free navigation in Bering Sea, would protect her against
the then unmentioned and unclaimed right of visiting destruction upon
her seal herds and the industry they*supported, upon the pretense of
the right of free fishing accorded to the United States and Great Britain.
In this formative and progressive growth of international opinion it
may well be asserted that the light of pelagic hunting, with its attendant right of indiscriminate slaughter of fur-seals, has lost the authority
of its ancient origin among savages and is no longer a concrete rule
or principle or even a reputable dogma of international law, in the
application that Great Britain makes of it. International law is based
on the same recognized elements of right government that are at the
foundation of nearly all the municipal laws of the great civilized
powers. This concordance in the elements and structure of the two systems of law is established by many rules that are common to the municipal laws of such nations. In none of them is there a clearer or more
distinctly recognized doctrine than that of rights acquired by prescription.
In the English common law ap absolute title is acquired to any property after it has been in the open possession of the occupant and those
holding under him for the period of twenty years. This is a rule of repose adopted for the peace of society. In those features it is even more
useful between nations than it is between individuals. So potent is this
rule that the courts of both countries have uniformly declared that any
grant, will, deed, or statute, will be conclusively presumed to exist, that
is necessary to support the title of the party who has held uninterrupted
possession for twenty years. 63
No just reason can be stated why this wholesome rule, founded in
the public policy of both countries, should not apply to the international
rights in controversy between them, and should not include every
interest in any property, industry, or privilege that has been, for the
period of prescription, in the exclusive control and enjoyment of the
claimant. The opposing rights, whatever they may be, are lost under a
conclusive presumption of a superior title in the actual occupant.
For more than seventy years GreatBritain stood by and fully understood
that Eussia had the exclusive usufruct of the Alaskan seal herd and
the exclusive control over them without making any question of that
right. If the property had been an island in the sea, to which Great
Britain had the actual prior right by discovery and occupation, her
title would have-been lost if she had suffered Eussia to occupy, claim,
and hold the island for twenty years under an open and uninterrupted possession.
The theater on which these, conflicting rights are enforced has much
to do with the limitations and restrictions under which they are to be
exercised, if the animals axe-feres natures and are so classed by this
tribunal. If such animals leave the land on which they were raised,
and are found and killed on the land of another, they belong to him on
whose land they are killed, because they are presumed to have escaped
to a new place of habitation, and the owner of that place takes them
ratione soli, as if they had been born and raised on his land. But if
they are killed on the highway they are the property of him on whose
land they were born and raised, unless they are shown to have escaped
from his laud in quest of their former freedom or under the wild
instinct of going at large, free from man's control.
If seals are made property by the laws of the United States, and are
found on the ocean traveling in search of food, the owner has the
right to be there and to take care of them. If his presence is not necessary, because it is useless for the purpose of protecting them, and if
they are identified as the seals that habitually resort to the Pribilof
Islands by their being found in the eastern part of the ocean, the
law regards the animals as being in the constructive possession of
the owner. Upon this rule of constructive possession the security of
all commerce and all personal chattels most largely depends. It is an
all-pervading element of property. Possession of a bill of lading, or
even an oral contract for freighting carries with it the possession of a
ship's cargo of fur-seal skins that the owner has never seen, and attends 64
iii:
them around the earth, onlandand sea. All he is required to do to make
his possession complete is to identify his property in any way he can.
And, so, if the United States own the fur-seals before they cross the 3-mile
limit, and have a constructive legal possession of them up to that line,
aud if the seals are, for instance, nursing mothers going after food to
nurture their pups on shore, with a fixed purpose of returning to it,
the constructive possession of the. animals is secured to the United
States after they cross the 3-mile limit. Without this there could
be no security for property in animals when they are not on the owner's land, even when they are within his view and he is guarding them
in the best way he can.
If the seals are wild animals belonging to the United *States -by the
declaration of positive law, or ratione soli, or ratione impotentia, or by
actual capture, and if this property is not lost when the animal goes
into the ocean for food or pleasure, with the intent to return, or under
an instinct that dominates its movements and leaves it without an
option as to returning, one who captures it when thus atlarge deprives
the United States of their property. If the captor is a citizen of the
United States he is guilty of the double wrong of breaking the preserve of the United States, which is closed as to him, and of taking its
property. That is poaching. If the captor is a British subject he
commits a trespass on the property of the United States, because he
found it at a place in the open sea to which it went lawfully and
where it was constructively in the lawful possession of the United
States.
The case might be different, would be different under the English
common law, if the seal, being a wild animal, should enter within
British territorial limits and there be slain or captured. In that case
the possession would change so as to give the right of property, ratione
soli to that Government, and that right, or that lawful power over the
animal would continue while it remained on British territory. But this
is the only instance in which the United States would lose its right of
property in the Alaskan fur-seal, born on its soil, while the animus
revertendi continued to control its movements in its visits to the ocean.
The indefinite right of private fishing iu the open sea, in favor of an
individual, is too slight and ill-founded to overcome the right of property in a nation that is trying to prevent the pelagic hunter from
destroying a great production of commercial value, a source of revenue,
and an instrumentality of government.   Not that the property rights 65
or lawful privileges of any man are less sacred than those of a State,
but government implies the subordination of private rights, in a necessary degree, to the general welfare, and this is the first view of all
rights taken by international law. It is on this principle that these
two Governments have, in this treaty, substituted their international
rights and powers as sovereigns over their people, and all their rights
respecting fur-seals, and over the seals and the rookeries, islands,
waters, and their lessees, and compel them all to yield to a rule of international law, that the sovereign nations alone can deal with the international rights of their people. H they should extend the existing modus
vivendi perpetually, no citizen of either country could be heard to make
complaint that his private rights had been thus destroyed, or that they
were protected by any law that could save them from the power of their
own government.
If all the facts presented in this case establish that seals are. property
to be classed as domestic or domesticated animals, the claim of the
right to hunt and destroy them anywhere against the consent of the*
owner is without foundation. If cattle on the boundary line of
"Canada, where they are grazed in vast herds, and are almost as wild
as buffalo, should wander across the border of the United States, that
Government could not seize them without a violation of international.
law. The case would be stronger under that law if the cattle were
owned by the Government of Canada, or Great Britain. The right of
property, ratione soli, would not accrue to the United States, for the
reason that they are domestic animals in their universal classification,
and that fact is notice to the world that they are the property of somebody, and are not res nullius.
Whether fur-seals are fishes, or domestic animals, or wild animals, is
to be determined, first, by the question whether the most essential facts
of their existence occur during the period of their lives, on theland. It
is possible to nurture them on land, by using proper appliances and
food, and they can thus be niade to increase in numbers, but that possibility only proves that they are not fishes. This is demonstrated in
Paris and London, and elsewhere, by daily experience. It is not possible that a seal can be born and reared in the sea. It is, therefore, to
be classed as a land animal, as its creation and birth can only occur
ou land, and these facts are essential to the. existence of this animal.
A singular faculty of the male seals, at least, of living for months
on land without-taking food, shows that they may be kept out of the sea
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for one-third, at least, of their lives, without injury to them. If during that period they were sufficiently fed, there seems to be no reason
to suppose that a visit to the sea could not be entirely dispensed with.
Indeed, this is done in menageries that travel inland, where fur-seals are
kept for years in good condition without once entering the sea. While
the sea is the place where their food is sought and found, it is no more
the exclusive haunt for such purposes than the wild mountains and
plains in America are for the nurture of cattle, and sheep, or swine,
or turkeys, or than the open waters of the_ sea are for the nurture of
ducks and geese that are classed as domestic animals. It cau not
be the food or feeding grounds that distinguish between animals as
land or sea animals, or as being wild or tame.
In the case of all these animals the essential and controlling fact as
to their classification as land animals or as fishes is that they can only
have birth on the land, and are not fishes either in form, structure,
instincts, habits, or the necessities of existence. They can not breathe
beneath the water.
If they are essentially land animals the question of their domesticity
is a very simple one. That fact depends upon their usefulness to man,
their inability to escape from his control, and the certainty and regularity of the forces that operate to subject them to his absolute disposal. In these respects the seal has an adaptation and fitness for
domestic use that is not sO obvious and so certain and easy of control
in any 6ther animals. Domestication of other animals that are allowed
freedom to come or go at pleasure depends, in a large measure, on their
consent. In the case of the fur-seal, the nature of the animal and the
conditions of its existence through a series of years, and also of its
increase, compel it periodically and with certaiuty to submit itself to
the power of those who own and occupy two small islands in Bering Sea.
A similar climate, similar shores and coasts, and the same food have
for many ages invited them to select other homes on the islands and
shores of the same sea. They have never done so, and there is no
ground for the conjecture that they ever will. The Pribilof Islands bear
the marks of a long-continued residence of the seals in vast numbers
upon their shores. The rough rocks are worn smooth from their hauling over them. What are called the parade grounds of the hollus-
chickie are described as being large areas of sandy soil worn and compacted to the smoothness of a floor. The carpet of fur and hair felted
together in the interstices of the rocks and in the sand could only have 67
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been produced by many years of shedding seasons in which it was
deposited. In all the close examinations that have been made by
many observers and experts sent to the coasts and islands of Bering
Sea and to the south and east of it, along the shores and islands of
the Aleutian chain and the coast of the North American continent,
not a sign or trace of any rookery or hauling ground has been found
except upon the two islands of St. George and St. Paul. Neither the
evidence nor any rational deduction from it conveys the least conjecture that they ever had any other home;
No two distinct classes of animals have been or can be domesticated
by the same means. Some have the social instinct strongly developed,
as dogs, horses, cattle, and sheep. Others are simply obedient to
superior power and skill, as the elephant, ass, buffalo, llama, and
reindeer. Others are domesticated through their greed for food and
need of protection, as swine and poultry. Others do not look to man
for any of these means of control or for food, as the fur-seals. Yet, iu
this lowest condition of the power of enforcing or inducing domestical
tion by the art of man, the result of domestication—the dominion of
}man over them—is the most certain and the easiest of enforcement.
Filling the most exact requirements of domestication, as to their subjection to the will of man, no reason exists why they should not be
classed as domestic auimals. In the legislation of the United States,
Eussia, Japan, Chile, and the British colonies, where fur-seals go
ashore to breed and to shed their coats-of hair and fur, the utmost possible protection is given them that can be effected by municipal law.
These acts of protection assume the rightful and full control of the
animals, within these respective jurisdictions, disregarding all claims
of citizens or subjects to rights of property in the animals, or rights
of chase for the purpose of converting them into property. These
acts go further and forbid hunting on land and sea during certain
seasons, and in certain areas of the ocean, aud the seals are appropriated by these Governments for revenue purposes through leases
and licenses, for which a tax is paid. And even these privileges are
confined only to the citizens of the respective countries and colonies.
In the British system of fur-seal protection, the only country
omitted from the list of colonies where seals are found is Canada.
It has no coasts or islands on which fur-seals habitually land, and
has, therefore, no interest in any rookery that requires protection.
Canada" lays broadside on the Pacific Ocean, near to the highway of -
68
the fur-seals in their annual migrations in search of food, and causes
them to be waylaid when they are bearing the future product, on which
the preservation of the species depends, to that place where, for all
time, so far as we know, they have gone to beget, deliver, and nurture
their offspring. It has also a location near to the narrow passes
through which these seals must pass on their journey to and from the
Pribilof Islands. There they are waylaid and captured without discrimination as to age or sex and while they are at the absolute mercy
of the hunters. They can easily concentrate there, in the open ocean,
with vessels enough to exterminate the species by an ambuscade that
the seals can- not possibly avoid.
If Canada shares the zeal for the preservation of the fur-seal species
professed by Great Britain in her correspondence with Eussia and the
United States, and should exhibit practically her concurrence in the
legislation of all the other British colonies that are directly interested
in fur-seals, she would find ample opportunity to legislate for their protection. The earliest practice of pelagic sealing in the waters of the North
Pacific of which anything is definitely known, was conducted by Indians
in the Straits of San Juan de Fuca, one-half of which ocean highway
belongs to Canada under a treaty with the United States. Pelagic
hunting is still conducted in these straits; and it is from those waters
that nearly every sealing vessel is fitted out. It is there that the protection of the British flag is afforded to citizens of the United Stales to
shelter them in violating the laws and public policy of their own country. It is in those waters that the pelagic catch of seal skins are assembled and sent to market. The hunting of fur-seals on the ocean at the
passes into Bering Sea, and in that sea and iu Eussian and Japanese
waters, is a great leading industry of the inhabitants of Vancouver
Island. If the Pacific ports of the British possessions in America were
closed to such traffic the seal herds would scarcely need other protection.
With all these opportunities, Canada takes no part in any legislation
for protecting fur-seals in the Pacific Ocean and is wholly out of sympathy with the professions of Great Britain of favor for these just and
high purposes. Canada seems to have no respect for the opinion
expressed in the legislation of other countries, and especially by all
British provinces interested in the preservation of fur-seals; but, to
maintain its hold on the seal herds, it urges Great Britain to insist that
her people have the right, under the pretext of fishing, to appropriate
to themselves any fur-seals found in the sea. 69
I
Great Britain, for political reasons, applies the doctrines of protection of fur-seals to all her other colonies, and quotes from the international law the established right of " free fishing" in j ustification of
Canada for a practice that will result in the wholesale destruction of
the species. While such contentions are insisted upon by this great
power, it would be only injurious to the honest portion of the people of
the United States for Congress to enact laws to punish pelagic hunting
on the Pacific Ocean. Such laws would only cause a repetition of the
practice on the ocean that was rife in Bering Sea before the modus
vivendi of 189 L was established—that is to say, it would invite dishonest
and unpatriotic citizens of the United States to seek the shelter of the
British flag, while in its name and under its power they would defraud
and dishonor their own country. It was not until Bering Sea was
closed, partially, to pelagic hunting of fur-seals in 1891 and 1892 that this
new source of danger to the seal herd was understood or appreciated.
The results of closing Bering Sea to pelagic sealing caused sealers
from Canada and the United States to concentrate their greatly
increased forces in hunting the herd on the Pacific and in intercepting
"them in the Aleutian passes. This was not known until after the
treaty of February 29,1892. This is a new and dangerous condition
which the treaty expressly included in the purview of the powers of the
Tribunal of Arbitration. It was iu the last days of the negotiation that
this important phase of the case was brought to notice and provided
for.
The question as to the justification of this plan of " fishing," if it is
fishing, is as new in international law as the occasion that gave rise to
it. If it is " fishing," the method of it is new, and was wholly unknown
when the right of fishing anywhere in the open sea was recognized in
the law of nations. If the right now claimed to be lawful under this
new method is a total departure from fishing, as it was practiced when
the right to fish was established, and is fatally destructive of the species of "fish" against which it is employed", there is no warrant for
saying that it is sanctioned by international law.
The abuses to which this practice must lead," as already developed in
two years of experience, show that the claim set up by Canada of a
right to "fish" for fur-seal with fleets of vessels and boats, armed with
shotguns and prepared cartridges, and to kill them indiscriminately,
has but one element of the established right of free fishing, namely,
that it is-conducted on the high seas.   Fishing with shotguns1, n the 70
lliixll''')
ocean is new. It is an innovation that destroys the subject to which
it applies. If this is a right which the international law must recognize, although it is almost universally denounced by municipal law, it
must be limited to a reasonable use, as all privileges are limited. As
it is practiced by pelagic sealers at this day it receives the condemnation of international law, because it sacrifices and destroys the benefits
of the seal herds to the commerce of the world and imposes on the
United States very serious burdens in preserving the seals for the
private advantage of persons engaged in an organized hunt, while
denying the right of her own citizens to take them.
The United States must protect the seals against her own people or
else they will be speedily destroyed. If in doing this all her care and
expense are turned to naught by a rule of international law, she cau
only abandou the seals to their fate, let the islands become barren
of all value, and console herself with the reflection that her sacrifice
adds a power to the international law that is more authoritative thau
the judgment of all the nations of the earth, except Canada.
It is a new and very dangerous phase of the rights of fishermen that
they can lawfully combine to destroy fish and use the agencies that
are necessarily destructive of a given species of fish under the protection of international law. It is still more dangerous if they can
lawfully waylay the fish at narrow passages between islands and
destroy them as they approach the shores and bays of a neighboring
nation, and yet more dangerous if they can lawfully form a cordon of
vessels, with great numbers of men armed with shotguns, just outside
the 3-mile limit, and can kill seals that are free-breathing as well as
free-swimming animals, whenever they rise to the surface for air and come
in range of their guns, while they are passing to and fro in search of sustenance for themselves and their offspring. Yet all these combinations
and practices are lawful, if the right of pelagic hunting of fur-seals is
the same—no more and no less—with the right of fishing in the high
seas.
It is not surprising, in view of such serious results as would follow
the practice of pelagic sealing, and have already lesulted from it,
where it is placed on the same footing with the right of fishing in the
open sea, that the power to ordain concurrent regulations for its control, or prohibition, was given to a Tribunal of Arbitration.
It is only by regulations, and not by advice, or by the statement of
the principles of law that govern the case, that these matters can be
settled. 71
The conclusions I have reached are:
1. That the United States have a property in the seals in and habitually resorting to their islands in Bering Sea.
2. That this property is in the lawful possession and control of the
United States when it is found on their islands, or within the limits of
their territorial jurisdiction, and they have the exclusive jurisdiction
to protect and preserve.them wdthin those limits.
3. That this property is also in the lawful possession of the United
States when the seals are found in the open ocean and, in such waters,
•they have such rights of jurisdiction over these fur-seals as any owner
of land animals would have over domestic or domesticated animals,
when found on the public highways.
4. That, as a sovereign power, the United States may punish its
citizens for appropriating or destcoying its property on the high seas;
but they can exercise no higher powers over property so situated, when
it is being appropriated or destroyed by the citizens of other countries,
than a private owner could exert under like circumstances. 1
IN THE DISCUSSION OF THE GENERAL SUBJECT OF THE AWARD TO BE
RENDERED BY THE TRIBUNAL, AS TO WHICH LORD HANNEN SUBMITTED A FORM OF AWARD, SENATOR MORGAN SUBMITTED THE
FOLLOWING REMARKS:
I supposed that the debate on the questions arising under the
treaty had been closed, and that the members of the tribunal would
now deliver their opinions, seriatim, inriie order agreed upon. But Lord
Hannen has made some criticisms on the attitude of the United States
and the arguments of its counsel, that seem to open up the discussion
of the whole subject, and I must not allow them to pass without notice.
As I have had occasion several times to remark, during the progress
of the discussion before the tribunal, this is not a litigation between
the United States aud Great Britain in which a judgment can be rendered by this tribunal in favor of one party and against the other for
a right asserted, or for property or damages which one party must
gain and the other must lose.
The treaty, which is a law to the tribunal, provides that each party,
at a certain time, shall deliver its printed case to the arbitrators, and
to the agent of the other party, in which its claims shall be fully stated.
Thus two independent cases are required to be stated and submitted
for decision. This was done, and when it was done, the attitude of the
two Governments, as to the claims they respectively .submitted, was
fixed and determined. This requirement was not observed by Great
Britain, but other evidence not presented and submitted either in its
case or counter case, was offered during the progress of the oral argument and was received and considered by the tribunal.
I insist that these proceedings do not comprise one case, but separate cases! They are to be heard together, but they are not cross
actions, neither are they consolidated actions, as is sometimes the
72 Ijflj
;' !i I
73
case, under the orders of a court having plenary powers. This tribunal has no such powers, but must decide each case, as it is stated
and submitted, upon its merits.
The simplest analysis of the cases, to which all other questions are
merely incidental, is this: that Great Britain claims for its subjects the
unlimited, unrestricted, and unqualified right of hunting and killing
fur seals of all ages, sexes, and conditions at any place in Bering Sea
and in the North Pacific Ocean, that is outside the ordinary territorial
limit of 3 miles from the islands and coasts of the United States. That
is the entire claim of Great Britain, as it is submitted to this tribunal
in the British case.
The United States claim the ownership of the fur-seals that are in,
or that habitually resort to Bering Sea, and the right to protect
#
them wherever they are found, outside the territorial limits of Great
Britain.   The tribunal should, in my opinion, have taken up these cases
separately and have decided them, giving due consideration to the objections raised in the counter case of either party to the case of the other
party.   The decision of the rights claimed in either case, does not, nee- s
-essarily, dispose of the rights that are claimed in the case of the other
" party.   A decision that the United States has the ownership of the seals
or the herd of seals does not affirm its power to extend its statutes into'
the Pacific Ocean and enforce them there against the subjects of Great
Britain in any and every case of trespass upon that property that may
occur, or may have occurred, even recently and upon hot pursuit of the ,
offender.
Neither would a decision to the contrary entitle the subjects of Great
Britain, or of the United States, to hunt fur seals, up to the borders of the
Pribilof Islands, in such force, and by such methods as would seriously endanger, disturb, or threaten the industry and the revenue
system that the United States has established there for the purpose
of maintaining government on the islands and of encouraging the
natives there in- earning a support and in raising themselves to better
conditions.
It is claimed here, as it was claimed in the arguments of counsel for
Great Britain, that the right of pelagic sealing exists, as to fur seals,
under the international law, in favor of the subjects of Great Britain,
and also in favor of the citizens of the United States, without any restrictions whatever. That no conditions of time, or manner of hunting the
seals, or- as-to the age, sex, or other condition of the animals, or as to the ill
74
numbers engaged in hunting them, or that their \ purpose is to destroy
them, or that their implements of warfare are most deadly, can operate
to control the pelagic sealer outside the limits of territorial waters.
This view of their rights is not disposed of by deciding that the United
States either has or has not the right to protect the fur seals, but that
question is pertinent in considering whether, under this treaty or in
the international law, the right of pelagic hunting of fur seals exists
and whether it is an unlimited and unrestricted right.
Lord Hannen has expressed the opinion that all animals found swimming in the sea, whether they are birds, fishes, or beasts, if they are not
within territorial waters, are the subjects of rightful pelagic hunting.
Under such a law an animal that is domestic, such as a hunting or
ducking dog, or a flock of tame geese, or ducks, or swans, would forfeit
the protection of the law, and their owner would lose his property in
them in favor of the better right of the first taker, if they, in search of
food or prey, should swim out on the water, as they often do, beyond
the ordinary 3-mile limit, or that such fowls would be liable to the
. free sport of the hunter if they should fly through the air in their
excursions beyond that limit.
In the effort of Lord Hannen to. apply to the fur seals a rule of property and the right of protection that would apply to wild ducks and
geese, and to swallows whose nests are taken and used for food in
China, he neglects to give due weight to the cardinal fact on which, in
one aspect, the case of the United States is based. It is the fact that
the fur seals that are in, or that habitually resort to Bering Sea, are
sui generis, and that no other fishes, birds, or animals that visit the
ocean for food or pleasure have a certain fixed abode or home on
land.
His lordship omits to give due weight to the fact that no other animal
visits its place of abode with such unvarying certainty, and that, when
they are assembled they live upon very limited areas of land, and in
compact masses, only separated from each other by the distance of a
few feet and arranged upon adjacent grounds in Classes entirely distinct from each other, whereby the animals that are fit for slaughter
for their pelts are kept entirely separate from those engaged in the
duties of procreation and the nurture of the young. So peculiar is this
trait that the young pups collect in groups, called pods, and separate
themselves from all other classes of seals, and keep up the separation
until they return to the islands the next summer after they are born.
it w lit 75
Nature has not given,to any other class of animals, wild or domestic,
this clear indication of their serviceable quality for the use of man and
their unavoidable destiny to become subject to his complete dominion.
The wild geese and ducks and the swallows mentioned by Lord
Hannen never lose the instinct of escape from man, which the seals
have not except when they are in the water, and even there it can
scarcely be called an instinct or habit, until it has been created in them
by the ill usage of pelagic hunters.
When swallows, geese, and ducks wish to escape from the presence of
man they have, at all times, the means of escape on the wing which is
their effectual method of avoiding capture.
The seal on land are almost entirely incapable of escaping death at
the hands of man. The breeding places of the wild ducks and geese
are scattered around the whole earth, above certain latitudes, and many
speciesbreed in all latitudes. They are res nullius because man can
not lay either his destructive or preserving hand on them at pleasure.
Would it be so as to their nests or eggs, which may be taken at pleasure, or their young that can not escape, and are, ratione soli, the property
of the owner of the soil ?
There is nothing in the evidence relating to Chinese swallows or
their nests, but if they build their nests on the rocks along the sea-
coast, as 1 am informed they do, the nests belong to the owner of the
soil as much as the honey collected by bees and stored in a tree that
stands upon his land. But it is needless to seek for rules that will
govern the rights of the United States in respect to fur seals by citing
those that may militate against those rights when applied to fishes,
birds, or beasts, that differ from them in their essential and elementary
instincts and do not invoke the duty of preserving them by laws, because they can not escape from man or protect themselves.
I do not intend to examine the question of property, or the right of
protecting it, with reference to the bearing and authority of cases decided in England or the United States. As far as analogies may be
useful iu reaching just conclusions, they are found to support the contention of the United States upon the authorities that have been so
ably discussed.
Mr. Justice Harlan's very clear and cogent opinions on this view of
the case, in which he quotes with approval from the text-books upon
municipal and international law, really leave nothing for me to say.
I fiilly.concur in what he has said on these topics.   But I feel war- tfi!
76
ranted and required to add some other views, arising upon the whole
treaty, as to the matters now under special examination.
This being now a controversy between Governments, the questions submitted are to be decided according to the duty of the high
contracting parties toward each other, both having the purpose of
protecting and preserving the fur seals. This duty arises out of the
treaty and a community of purpose, as it is solemnly avowed; and
it is not admeasured by the international law, as • would be the
case where a controversy existed that involved the ownership of the
seals, for instance, if they were claimed to belong to each Government,
and the tribunal was required to decide as to which of them has the
better title.
The tribunal is intrusted with the power and has accepted the duty
of providing for such concurrent action of the two Governments as
will protect and preserve the fur seals, when it shall determine that
the United States, in virtue of its own sovereign powers, and acting
alone, can not preserve them.
If the decision of any of the questions in this case is made to depend
solely upon what is the declared international law, there could be no
need for asking other nations to accept and ratify the award. Their
acceptance of the award, as the correct ruling upon questions of international law, would simply amount to an affirmance of the legal propositions involved in it. All nations are bound by the international law,
and, to accept a decision of this tribunal, by convention, that is merely
in accordance with that law, would only be to agree to do that, by
treaty, which they are already bound to do under the international law.
It is because no one can say that the international law determines
these questions, that it is proposed hereafter to establish by treaty,
in which all the States are requested to concur, what is their duty in
giving protection to the fur seals.
All property originates in municipal law or recognition, and no property is created, or defined, by international law. I admit the influence
properly to be exerted by the judicial decisions on analogous questions
by the courts of England and the United States, not as authority, but
as argument, or precedent.
I understand that the right and duty of protecting fur seals against
indiscriminate slaughter is much more distinct and obligatory, than is
the right and duty of protecting animals that are less valuable and
are not placed so entirely within the dominion of man. 77
I understand the treaty to make it the duty of the tribunal to consider the entire subject, in the light of the desire of the two nations to
protect and preserve the fur seals, and to have it determined whether
the United States has the right and power to deal, single-handed, with
the subject of proper regulations to protect and preserve the seal herd.
In this view, the attitude of the two governments towards the inquiries submitted to the tribunal is special and exceptional, and this is
evidently a cardinal feature in the cases submitted to the tribunal.
No other such situation ever existed, or ever can exist, between two
nations and it must be provided for, if at all, by a special award, upon
special facts, and not merely by seeking analogies in the decision of questions, in municipal courts and between private litigants, about wild
animals as to which a private right of property is in question. In either
view of the subject, the right of property in fur seals is well founded.
The rule of the common law, and the Eoman law, as to the acquisition
of property in animals that axefieros natures, when applied to fur seals,
show conclusively that these animals are capable of specific ownership
while living.
This is a great public matter that has engaged the attention of two
Governments, and all their geographical, industrial, maritime, and governmental relations enter into the proper consideration of the questions
submitted to the tribunal. The peace between the nations is also a
grave consideration for the tribunal, as well as the effect of the award
upon the interests of Eussia and Japan. The power to ordain regulations and to make them an essential part of the treaty is so interlaced
with questions that are judicial, as to give to the powers of the tribunal
and the award that it shall make, only such effect as the treaty provides—an effect peculiar to this case and not such as follows the judgment of a court.
When the fur seals are properly protected and preserved by the award
of this tribunal, the purpose of its creation will have been accomplished and the full limit of its duties will have been reached. Then the
appeal of these two great powers to other nations, to accept the award,
will contain no assertion that the award is a correct finding upon the
international law, to which all nations are bound, without convention,
but an affirmation that it is a just and salutary arrangement, reached
by treaty, and suited to the purpose, in the Pacific Ocean and in all
other seas, of preserving seal life and of restoring it to its condition
before-it"was-so nearly destroyed in the Antarctic Ocean, and so
seriously threatened with extermination in the North Pacific Ocean. 78
mm
III!
I believe that in every step we take, and in every decision we make
in. this matter, we should avoid abstract questions and inquiries that
can have no practical effect upon the avowed purpose of the parties to
protect and preserve the fur seals. The attitude of the two Governments towards the admitted duty of xireserving the fur seals in the
future; the powers they have exercised jointly and severally, over the
subject in the past and in this treaty; the configuration of the Aleutian
peninsula and the islands of that archipelago; the peculiarities of seal
life, and the destructive methods of seal hunting in the open sea; the
proper restriction, or necessary prohibition to be imposed upon pelagic
sealing; the right of the United States to defend and protect its powers
of government, its revenues, and to preserve its industry on the islands;
are all brought within the scope of this inquiry, by the provisions of
this treaty, and are all to be considered in determiniug what are the
just and equitable rights and the duties of the high contracting powers.
Not merely the rights that would result in a judgment for one party
or the other in a suit by the United States in a municipal court for the
recovery of the value of a seal killed by a pelagic hunter on the high
seas, but that the just and honorable international obligation resting by
agreement upon both Governments, will find authentic and final expression in the award of this tribunal.
On all hands it is admitted that the award, when rendered, will
constitute a stipulation of the treaty in the same sense as if it had
been written in the text of the agreement by the high coutractiug powers.
This being so, and the power of this tribunal to determine and establish concurrent regulations being a power to ordain, and not a juridical
power to decide, and both being united in the tribunal and subject
largely to its discretion, the facts that bear upon the judicial inquiries
and upon the powers of ordination are the same, are made identical by
the treaty, and are to be considered as one entire body of evidence, in
respect of both classes of powers.
No abstract question of law is submitted to this tribunal. The
law that is intended to govern this case in all its parts and phases
is the law of justice, comity, trade, commerce, humanity, good will, and
peace, in carrying out a common purpose of protecting and preserving
the fur seal species iu the interests of commerce upou the facts presented to the tribunal and such as are within the reach of its judicial
knowledge. It is upon this view of the duties of the tribunal and of its
powers and of the rights of the parties and the complexion they have ""I ill I
79
given to these inquiries and questions by the treaty that I will examine
the subject.
The very general manner in which the questions submitted to arbitration are stated in the treaty, and the indefinite statement of the
claims of the respective governments, the absence of direct issues of
fact or law in the submission, and the unlimited range of inquiry as
to all facts, whether historical or judicial in character, the general
form in which all questions are stated in the treaty, seem to demand
a broad and just award by the tribunal that will cover a great controversy that is entirely new. In the treaty of 1892, differing from all
former treaties on like matters, the facts which constitute the foundation
of the claims of the respective parties are not stated hypothetically, or
in any form, nor are the questions that arise on those facts stated in
any issuable form, nor are the rules of law or justice stated uuder
which the tribunal shall ascertain and admeasure the rights of the
parties.
In this treaty everything is left to the ascertainment and the determination of the tribunal within very broad limits of inquiry upon certain topics. The only separate and specific duty imposed on the tribunal is that they will ascertain aud declare the facts, and apply the
law that, in their opinion, gives a true answer to certain sweeping
inquiries stated in Article VI of the treaty. This is an exceedingly
broad and comprehensive grant of power and discretion to this tribunal
of arbitration, in reference to a subject in which all civilized countries
are Interested, and is, to many uncivilized people, a source of supply
of food and raiment.
These great nations found occasion to project, if not to formulate and
to establish by impartial arbitration, new rules of right and convenience,
and also of jurisdiction, that are not distinctly stated in the international
law, for the protection and preservation of the fur seal, to be enforced
outside the jurisdictional limits of the two governments and of all other
governments. In doing this they agreed to bind themselves to accept
and abide by the rules that this tribunal shall adopt, and to cooperate
in securing the adhesion of other powers to them. A course somewhat
similar was followed by them in the Treaty of Washington, of 1871.
When the nature of this splendid fur is considered, and the fact that
it is the only source of supply of large pelts that is available for the
uses of mankind; and that the fur seal is the only fur-bearing animal
that can be preserved by law, on the principle of domestication; and that 80
111
its value, and the easy prey it offers to a combination of vessels and
weapons for its capture have destroyed the species, in a commercial
sense, in the southern hemisphere, and are rapidly destroying it in the
waters of the north Pacific, it would only be surprising if Great Britain
and the United States, whose people are alone engaged in this work
of destruction, should not have agreed to provide some effectual means
for the protection and preservation of this valuable animal.
In the confident expectation that all the countries where fur seals are
bred will adopt the methods of protection and preservation that this
tribunal shall provide, to operate outside the acknowledged limits of
exclusive, sovereign, national jurisdiction, if they are found to be wise,
just, and practical; and that the Governments concerned will take
proper care of these valuable animals, on their islands and coasts;
these two Governments have instituted a plan for securing these ends,
which is well adapted to that purpose. That result will be secured if
the tribunal will exert, firmly and wisely, the high powers confided to
them.
The confidence felt by these Governments in the beneficial results of
arbitration, is fully justified by their past experience, and has led, doubtless, to the increase of powers and discretion given, in the treaty of 1892,
to this tribunal of arbitration.
The whole civilized world is interested in the result, and many justly
expect that the award, when made, will cover the great question of the
proper protection and preservation of the fur seal species iu such
manner that the regulations may win the approval and secure the
adhesion of all the maritime powers.
It would be a serious dereliction of duty on the part of the tribunal
if they should fail to deal With this great question in the broadest way,
included in the purview of their powers, and should confine their declarations and award to narrow or technical grounds, or to a simple declaration of rights of property in fur seals, or to the powers, or jurisdiction
to preserve or protect them in Bering Sea, and should provide no regulations under which these rights, powers, and jurisdiction should be
enforced, or exerted, wherever the seals are found.
The necessity for protecting this property, lis pendens, was not fully
understood, and could not be, until the close of the sealing period for
1892, after the treaty had been concluded.. In 1891 the destruction of
seal life, resulting from the catch of 30,000 seals in Bering Sea, by
pelagic hunting, was estimated as being at least equal to the number 81
killed on the seal islands. And this was the result despite the fact
that the modus vivendi for that year was signed on June 15.
The modus vivendi for 1892 was signed on the 18th of April, before
the pelagic hunting had occurred for that year. In both these agreements of 1891, and of 1892, which were intended, in the first one, to
carry out the proposed treaty, and the treaty as agreed upon and
signed, in the second one, a prohibition of pelagic sealing was agreed
upon and enforced against the people of each Government. These
were " concurrent regulations," and the necessity for them was thus
admitted by both Governments. They were not extended to the North
Pacific, because the destructive effects of pelagic hunting there were
not then known to the United States.
Now, it is ascertained that the seal hunting in the open ocean and
at the entrances to Bering Sea is even more destructive beyond the
jurisdictional limits of both countries than it ever was in Bering Sea.
These facts have been developed since the cases of the parties were
delivered to the arbitrators.
I am led to restate these facts in part and to repeat arguments I have
had the honor to submit upon previous phases of this discussion, because
of my earnest desire that the award of the tribunal should measure
up to the opportunities and demands of a great occasion and should
recommend itself to general acceptance by the civilized nations.
The question stated in " point" five, of Article VI, of the treaty, relates to the right of property and the right of protection of that property, which the tribunal may fully decide without touching the question of the exclusive jurisdiction of Eussia and the United States to
provide for the protection of that property, if the right to it is found to
exist. Those questions—" points ":—as to the exclusive jurisdiction of
the United States arose out of claims that Eussia is alleged to have
asserted and exercised "prior and up to the cession of Alaska to the
United States," without reference to the question whether those claims
were well-founded in custom, in natural or moral law, or in the law of
nations.
The claim, or question, stated in point 5 of Article VI has a wholly
different foundation. It is a claim of "property in the fur seals frequenting the islands of the United States in Bering Sea," and the cor.
relative right of protecting them when such seals are found | outside
of the ordinary three-mile limit," to the same extent that such right
11495 "m——6 82
jljl n
III
exists and may be protected when the seals are found inside the
acknowledged territorial limits of the islands.'
This claim of property in the United States, if it exists and so far
as it is not affected by prescription, is based upon the habits of the
animals which make them domesticated property and subjects them
absolutely to the possession, dominion, aud use of the United States
by an irrevocable law of nature, which supplies a just foundation for
its protective legislation.
The right of "exclusive jurisdiction of the United States" to protect
the seals "found outside the ordinary three-mile limit" is a right that
is based on moral, or municipal, or international law, or upon all those
laws combined in support of justice, the protection of commerce, and
in aid of humanity and the peace and good will of nations.
The right of the United States to this property is neither greater nor
less, when it is based on the nature and habits of the seals, because
Eussia may have asserted or exercised " exclusive rights in the seal
fisheries" in Bering Sea; nor is the right to protect the property
necessarily dependent upon the answer to the question, " What exclusive jurisdiction in Bering Sea did Eussia assert and exercise?" While
this right and this jurisdiction are correlated, they are not identical,
nor do they depend necessarily upon each other in the form in which
they are stated in the five points of Article VI.
If the arbitrators find that the United States have no " exclusive
jurisdictiou " to protect " the fur-seals in, or habitually resorting to the
Bering Sea," such a decision must mean that, as between the United
States and Great Britain, whose subjects claim the right to take the
seals wherever found | outside the jurisdictional limits of the respective
Governments," the consent of Great Britain is necessary in that area
of the sea, to supply such lack of jurisdiction by "concurrent regula.
tions " to suppress, or control, jielagic hunting: And, if the Arbitrators hold that they have no power, in that event, to protect the seals
by ordaining concurrent regulations for that purpose, and if the United
States have no lawful power to protect them, and, if Great Britain will
not consent to a joint protection of them, they will perish utterly.
If the arbitrators hold that the United States have the "exclusive
jurisdiction" to protect and preserve the fur seals "outside their jurisdictional limits," (which is a solecism), because they are the exclusive
owners of the seals; or, if they hold that pelagic hunting outside the
ordinary territorial limits of three miles around the seal islands does 83
not so affect seal life as to make it necessary to establish regulations for
the suppression or control of that practice, they will have no need to
make any award further than to dismiss all that part of the submission
and leave the questions submitted to them undecided.
This would not be a "result of their proceedings" that would be final,
I as a full and perfect settlement of all the questions referred to the
arbitrators," but would leave the Governments confronted to each
other, with no barrier between them to prevent hostilities in future.
If the arbitrators should hold that the United States "has exclusive
jurisdiction" to protect the fur seals on the open ocean, because the
seals are their exclusive property, and if they should stop at that declaration, many questions as to the manner of exerting that right or
power, which lie beyond that determination, would arise; such as the
right of visitation, search, and seizure; and also questions as to the
effect of statutes of the United States beyond the limits of their territorial jurisdiction, and also the question of the condemnation of ships
belonging to Great Britain, in the courts of the United States.
Proper concurrent regulations, established by this tribunal, would
result in establishing the peace of nations, and the protection and preservation of a valuable species of animals, the destruction of which
would seriously injure commerce, would deprive many thousands of
people of remunerative employment, and would leave a blot on the
civilization of the age.
To hold that there is no necessity for the regulation of pelagic sealing
by some power or some authority is to ignore the evidence in the case
and the joint report of the commissioners appointed under this treaty
and the statement and opinions of the diplomatic representatives of
both countries and of Eussia and Japan.
Canada alone has formerly contended that no necessity exists for
regulating pelagic sealing, but that the Government has so far modified
its views as to agree to the draft convention submitted to Mr. Blaine by
Lord Salisbury, which proposed a close time for pelagic sealing in the
North Pacific Ocean and in Bering Sea. H Canada has not gone far
enough in the right direction she has, at least, admitted the necessity
of some progress, and has shown her willingness to conform her action
to the views uniformly expressed by the Government of Her Majesty,
that the seals in- Bering Sea and the North Pacific should be preserved,
and that unrestricted and indiscriminate sealing should not be allowed.
There is" no' dispute that this has been the avowed purpose of both I
I
JJi'Hi
ill
84
Governments in their long and exhaustive diplomatic correspondence
and negotiations, and in agreeing to arbitration upon the whole " subject" of protecting and preserving the fur-seal in Bering Sea, and resorting to or frequenting that sea. But I think this matter is of sufficient
importance in its bearing upon the duties of this tribunal to justify me
in a concise statement of my views as to how the questions of difference
arose between the United States and Great Britain, and how their
treatment gave rise to the questions formulated in the treaty.
The United States seized some of the sealing vessels employed in
Bering -Sea and they were condemned in their courts in Alaska, and
thereupon the Government of Great Britain assumed the protection of
vessels so employed under her flag, and made protest to the Government of the United States against their seizure and confiscation and
against the arrest and punishment of her subjects sailing under the
British flag, and made a claim for damages in their behalf.
The first seizure was an American vessel, August 1,1886. Thus it
was this diplomatic controversy had its origin in the insistence of
Canada upon the claim of an unrestricted right of pelagic sealing
without regard to the preservation of seal life, or the rights of the
United States, or their interests; and it was, at first, confined to
pelagic hunting of fur seal in Bering Sea. It was the abuse that grew
up under the asserted right of pelagic sealing, as it was practiced by
the Canadians, and not the arrest of the. vessels that gave origin to
this controversy. The initial point of the negotiations that resulted in
the treaty of February 29,1892, was established in 1887. It was expanded into this treaty and has drawn after it, as an incident, the
contention relating to jurisdiction over Bering Sea.
The contentions of the two Governments were confined to questions
that affected their respective claims of rights, within Bering Sea, when
Mr. Phelps, minister to Great Britain, on November 11,1887, brought
the subject to the attention of Lord Salisbury, and then proposed, on
the part of the Government of the United States, "that by mutual
agreement of the two Governments, a code of regulations should be
adopted," etc., tor the preservation of the seals in Bering Sea, " entirely
irrespective of any question of conflicting jurisdiction in these waters."
Mr. Phelps wrote to Mr. Bayard, as follows :
His Lordship promptly acquiesced iu this proposal, on the part of
Great Britain, and suggested that I should obtain from my Government and submit to him a sketch of a system of regulations which
would be adequate for the purpose. 85
On April 16,1888, Lord Salisbury, with a view to meeting the wishes
of the Eussian Government respecting the waters surrounding Eobben
Island, suggested to Mr. White "that besides the whole of Bering
Sea those portions of the Sea of Okhotsk and of the Pacific Ocean
north of latitude 47 degrees should be included in the proposed arrangement." (See Appendix, Vol. i. to Case of the United States, p. 179.)
This fixed the area of the " close time" 200 miles south of the northern
border of Washington State. He also suggested that the close time
extend from April 15 to October 1.
Mr. Bayard, through the plenipotentiaries of the United States, presented the proposal made to Great Britain and the assent of Lord
Salisbury to the same, to the Governments of Japan, Eussia, Germany,
and Sweden-Norway, and asked their concurrence in an international
convention to settle the question of pelagic fur-seal hunting, on the
general basis of the informal agreement reached by the two Governments. Both Japan and Eussia cordially assented to such a negotiation, and Sweden and Norway said:
The Eoyal Government having no interest in the seal fisheries, His
Majesty thinks there is uo need to take part in any treaty in reference
thereto on the part of the United Kingdoms. He, however, expresses
the desire that a mutually beneficial accord may be arrived at between
the interested powers, and that the same may be maintained, with a
reservation that the powers not at present interested may join in such
an arrangement in future, if they desire.
Japan replied to the note of the United States October 8,1887, and
said:
The unregulated and indiscriminate slaughter of the sea otter as
well as the fur seal on the coasts of Japan and in their coterminous
waters is a subject which has for many years engaged the attention of
the Imperial Government. The experience of His Majesty's Government justifies the belief that the end sought to be obtained can be
best secured by means of a cooperative international action, and they
therefore cordially approve of the suggestions of the honorable the
Secretary of State.
The Eussian Government on November 25,1887, said:
Mr. Wurts, under date of August 22 (September 2), was good
enough to communicate to me the views of the Government of the
United States of America upon the subject of the desirableness of an
understanding, among the Governments concerned, for the regulation
of the taking (la chasse) of the fur seal (loutres) in the Bering Sea, in
order that an end might be put to those inconsiderate practices of
extermination which threaten to dry up, at their source, an important
branch of international commerce.
We concur entirely in the views of the Government of the United
States. Like it, we also have been for a long time considering what
means'could be taken to remedy a state of things which is prejudicial 86
not only to commerce and to revenue, but which will soon work disastrous results, not only to the well-being but even to the existence of our
people in the extreme Northwest. The establishment of a reasonable
rule, and of a lawful system in the use (l'exploitation) of the resources
which furnish their only industry, is for those people of vital importance.
The pressing interest which the Imperial Government has been thus
called to consider had already suggested to it the idea of an international agreement, by which this interest might find its most efficient protection. It is by this way that the different questions involved can be
best resolved, and among which there exists, in our opinion, a close
connection.
The proposition of an accord emanating from the Government of the
United States, and which we take pleasure in considering as a step
toward that general solution, must, of course, but meet the sincere
sympathies of the Imperial Government and its active support; and
this I pray you to make known to the cabinet at Washington. Please
receive, etc.
Thus the four powers that include between their respective territorial
possessions all the waters of the North Pacific Ocean and of the seas
in which the Alaskan fur-seal is found, were in complete accord and
agreement that pelagic sealing should b'e regulated by their mutual consent.
And Lord Salisbury, as late as February, 1888, informed Mr. Phelps
that he assented to Mr. Bayard's proposition for a close time for fur
seals between April 15 and November 1 in the Bering Sea, and stated
that he would "join the United States in any preventive measure it may
be thought best to adopt, by orders issued to the naval vessels in that
region of the respective Governments." (See Appendix to American
C ase, vol. 1, p. 175.)
The negotiations progressed thus favorably until Canada interposed
to prevent the settlement of the question as to which four great powers
had practically agreed, and asserted that no close time was necessary.
Canada, without diplomatic power or responsibility, still had power,
through her political relations with Great Britain, to control and embarrass the diplomacy of the Imperial Government, even in antagonism
with the interests of the British people, as stated by Lord Salisbury.
Without questioning the right or duty of Great Britain to consult the
interests or wishes of her colony in the matter, it is a serious and dangerous embarrassment to the United States that they must deal only
with Great Britain in settling difficulties that relate to the conduct of
the Government of Canada. She issues fishery clearances to vessels
belonging to her people, and under them the citizens of the United States
are sheltered in their violations of United States statutes; and, when 87
they are arrested for the wrong, Great Britain is called upon to interpose, at the moment when she is negotiating with the United States for
its suppression.   This is a very embarrassing situation.
On the 13th of August, 1888, Mr. Phelps held a conversation with
Lord Salisbury, and urged the completion of a convention between the
United States, Great Britain, and Eussia, which had previously been
the subject of discussion between these Governments. (See Appendix,
vol. 1, to Case of the United States, p. 182.)   Mr. Phelps says:
This convention had been virtually agreed on, except in its details;
and the Eussian as well as the United States Government were desirous to have it completed. The consideration of it had been suspended
for communication by the British Government with the Canadian Government, for which purpose an interval of several months had been
allowed to elapse. Lord Salisbury's attention was repeatedly recalled
to the subject by the United States, and, on those occasions, the answer
was that no reply from the Canadian authorities had arrived. During
this interval, Canada was aiding with all its powers, as a Government,
in supporting and aggravating the practices which Great Britain desired to repress, and thus left her in a most doubtful and disagreeable
attitude in her relations with the United States.
Mr. Phelps states further that—
In the conversation on the 13th August, above mentioned, I again
pressed for the completion of the convention, as the extermination of
the seals by Canadian vessels was understood to be rapidly proceeding.
His lordship in reply did not question the propriety or importance of
taking measures to prevent the wanton destruction of so valuable an
industry, in which, he remarked, England had a large interest of its
own, but said* that the Canadian Government objected to any such
restrictions, and that until its consent could be obtained, Her Majesty's Government was not willing to enter into the convention, that
time would be requisite to bring this about, and that meanwhile the
convention must wait.
It is very apparent to me [says Mr. Phelps] that the British Government will not execute the desired convention without the concurrence
of Canada. And it is equally apparent that the concurrence of Canada
in any such arrangement is not to be reasonably expected. Certainly
Canadian vessels are making profit out of the destruction of the seal
in the breeding season in the waters in question, inhuman and wasteful as it is. That it leads to the speedy extermination of the animal is
no loss to Canada, because no part of these seal fisheries belong to that
country, and the only profit open to it, in connection with them, is by
destroying the seal in the open^sea during the breeding time, although
many of the animals killed in that way are lost, and those saved are
worth much less than when killed at the proper time.
Under these circumstances the Government of the United States
must, in my opinion, either submit to have these valuable fisheries
destroyed or must take measures to prevent their destruction by
capturing the vessels employed in it. Between these alternatives it
does not appear to me there should be the slightest hesitation.
It was thus that Canada was permitted to intervene, as a Govern-
ment,'to prosecute, the right of Canadians who were British subjects, 88
and not Canadian subjects in the international sense, and in a matter
as to which his lordship remarked that "England had a large
interest of its own," and that "until its (Canada's) consent could be
obtained Her Majesty's Government was not willing to enter into the
convention."
The propriety of that intervention by Canada was a matter between
those Governments, but the embarrassment and damage to the United
States was increased by the fact that Great Britain thus changed her
attitude on these questions without changing her views of what was right
in the matter, as to the preservation of the fur seals. The United States
were thus forced to abandon further efforts at cooperation with Great
Britain and to vindicate their separate rights, and the diplomatic discussion was then directed to the property rights of the United States
in the fur seals and the " fisheries," and to their rights of jurisdiction to
protect and preserve them.
It was in themannerl have just stated and under these circumstances,
that the United States was forced to yield her efforts for a joint arrangement with Great Britain for the protection of the fur seals in Bering
Sea, and to fall back upon her rights as owner of the seals, and of the
industry based upon the security of these animals against indiscriminate slaughter.
The situation was emergent, and the United States acted upon it to
save the seal herd and to protect her rights and powers of government,
which were indispensable to that high duty, in that remote and peculiar region. The separate and independent rights which the United
States was thus driven to assert, were:
First. That she had derived from Eussia, with the acquiescence of
Great Britain, the exclusive jurisdiction to control and protect the fur
seals in Bering Sea.
This claim has been virtually decided by the tribunal, adversely to
the United States, and I will not now discuss it further.
Second. It was claimed by the United States Government that it is
the owner of the fur seals that are in Bering Sea or that habitually,
resort to its waters and islands.
Third. That if its claim of ownership ofthe seals can not be maintained
it has a right of protection of seal life, to be exerted, as far as may be,
under its separate powers of sovereignty, and if these are inadequate
for their protection then it has a just claim that Great Britain will
restrain her subjects, in conformity with concurrent regulations which
i i|,|!i? 89
this tribunal shall determine in its award, from acts that are in hostility to seal life and destructive to it, taken as a whole.
On these questions, I now propose to state my opinion as an arbitrator. I will discuss this matter further in connection with the right of
pelagic hunting of fur seals, which is the only human agency that wars
upon seal life in the waters of the ocean, and is the right claimed by
the British Government as being free and unrestricted, in favor of her
subjects.
The claim of protection of and for seal life set up by the United
States is, in its most enlarged sense, simply a question of jurisdiction as
to which Government shall exercise the power to protect the seal herds
outside the territorial limits of both countries. The right of the United
States to have such protection is not more real or necessary if it is
held to be the. owner of the property, than it is, as the owner of an
industry which can not exist if the seals are destroyed.
The industry on the islands, as it is conducted by the United States,
is, in every sense, legitimate; it is useful to commerce and to other great
industries in other countries; it is humane in its methods, and is the
only means by which seal propagation can be practiced successfully.
It is the only method that is in accordance with the avowed purpose
of both Governments, expressed in this treaty, and in various other
solemn utterances, of protecting and preserving seal life in the North
Pacific Ocean. But above all this the industry based on seal life is the
only valuable resource of living for the people on the islands and coasts
of Bering Sea, and if this is lost they must perish, if they remain in
their native country, or else they must be fed and clothed from the
Treasury of the United States. The preservation of the seals is, therefore, a right and duty of government on the part of the United States,
which it owes to and must exercise in behalf of those citizens and
can not abandon. The seal industry also yields a revenue to the United
States that is valuable and necessary for the support of government
in that inhospitable region.
If that country can enjoy the advantage of its only valuable resource—its only production of commercial Value—without material interference with the positive rights of the British or any other people,
it is the duty of the United States to protect such means of existence
and civilization for the benefit of the people there. In the efforts to
do this, which have been crowned with the most honorable success, the
United States have found it necessary as a measure of government, 90
If ill
to protect the seal herd and to indemnify its Treasury by levying a tax
upon the pelts of the seals taken under their laws and regulations.
This public and governmental necessity and right is not denied, but
if it was, the United States would still be the sole and sovereign judge
of that duty. In fact, the revenues so derived are not sufficient to pay
all the expenses of administration in the perilous and costly police of the
islands and the seas around them for the protection of seal life and the
conduct of this industry.
If we turn to the photographic plates produced in evidence, those
historians that can not use words"to abuse the truth, we see at a glance
what it must have cost the United States already to have converted
these desolate islands into places of decent abode, and those wretched
savages into self-repecting people worthy of a place and a name among
civilized and Christian peoples. The United States can not afford
to allow these people to relapse into savage barbarity. It can not
abandon them to a cruel and destructive fate, and this tribunal
can not afford to search for some reason for assisting such a relapse,
alone in legal decisions made under municipal laws in England or
elsewhere in private lawsuits between private litigants about pheasants and rooks and rabbits. These two Governments have found it
necessary, in order to secure justice and peace between their people and
to repress a slaughter of useful animals, which is wasteful, destructive, unnecessary, and inhuman, to remove the controversy beyond the
reach of the influence of the mere cupidity of men eager for private
gain, into the higher plane of a contest between nations. It is no longer
a case in which men who are citizens of the United States can accuse
their Government of a mean purpose of making illicit gains for its revenues
by a tax on fur-seal pelts, or of aiding a monopoly granted to favorites;
or in which renegade citizens can be allowed to abuse the laws of the
United States by the surreptitious use of the flag of Great Britain.
These Governments are pledged to find away, by means of the award
the tribunal shall make, to protect and preserve these seals, and they
can not and will not permit them again to become the prey of private
cupidity. It is only the private greed for gain at any sacrifice of great
public interest and duties that calls in question the public right and
duty of protecting the seals by international action. To dignify this
opposition of the seekers for private gain into a business that rises above
the duty of nations towards the peace and prosperity of the world, the
reckless and destructive methods of the pelagic hunter are raised to 91
the plane of the honorable and useful industries of mankind. This is
called in the British case and in the arguments of British counsel "the
industry" of pelagic hunting or fishing; and it is claimed that it is
legitimate trade, in competition with the trade and industry conducted
on the Pribilof Islands by the United States. An industry that
destroys and exterminates the subject to which it is applied is not
deserving of this honorable definition.
But, treating it as a just and honorable industry, will Great Britain,
now that it has taken up the duty of preserving and protecting this
fur-seal industry on public account, publicly license and conduct fur-
seal hunting, in the way aud with the destructive effect that it is being
prosecuted by its own subjects, and by citizens of the United States
who abuse its flag by making it a shelter to protect them against
criminal responsibility to their own Government?
Is it true that under this treaty, which leaves this tribunal to deal
with these questions as matters that concern justice, peace, and comity
between nations, and not as mere private rights, the Government of
Great Britain claims for itself, as a government, or for its people, the
right to pursue this industry in the present destructive and cruel way
in whiehit has been and is being conducted ?
If the strict legal right of pelagic sealing attends and legitimates this
industry in all waters outside actual territorial limits, .and makes it lawful to surround the seal islauds with ships and to kill the animals as
they come and go from the islands to the open sea, does Great Britain,
under this treaty, claim that the right now exists in this unqualified
extent, in favor of its subjects, or that it comports with the pledges of
this treaty that the seals are to be preserved and protected ?
Great Britain has taken the right to pursue this industry from the
hands of its subjects, on the grounds of public policy and of duty to
the United States, and has submitted them to this tribunal for decision.
If the "industry," as it is pursued, is legitimate fishing, and if it
could have received the sanction of the British Government, this serious wrong to her subjects in depriving them of it could not have been
done.
It is said by counsel of Great Britain that, in the case supposed, of a
cordon of ships drawn up around the seal islands, waylaying the seals
in the breeding season as they come from and go to the sea for food
and killing them indiscriminately, that such an act would be malicious
and the-United States would treat it as a casus belli, within the right
of nations under the international law. 92
'Plii1
\m]
The right to give such an interpretation to such conduct means that
the industry of pelagic hunting, like all other pursuits, however legitimate, is qualified by the demands of justice that are due to all other
nations. The international law neither requires nor sanctions.a resort
to war for the protection of the plainest rights, if they can be peacefully maintained without detriment or dishonor.
This tribunal cannot, in justice to itself, adopt the suggestion that it
must leave the industry of pelagic sealing, in view of this treaty and
its great purposes, so loosely defined and so free in its privileges and
so licensed to maraud upon the rights of the United States, that an
assemblage of sealing vessels in Bering Sea, sufficient to destroy the seal
herd in one or more seasons, is lawful. If it is malicious it is admitted
to be unlawful and that in such case the only remedy is war. In such
case the United States, being forced to judge of the evil and to provide
the remedy, would, as any court of justice must do, impute the nialice
to the nature and consequences of the act. This tribunal is authorized
to act upon the same presumption in prohibiting this evil.
Following up this right in all parts of the Bering Sea and in the
Pacific Ocean, the United States would justly impute malice—a purpose of wrong-doing—to all act's that warred upon its revenues, in
respect to fur-seals, during the period of resort to the islands. This
action of the United States would find its full justification iu the doctrines stated by counsel, which should be adopted in the award in this
case. If it would be right to resort to war to prevent or redress such
wrongs, the more peaceful remedy can not be contrary to the law of
nations.
If we follow the British contention as to the rights of pelagic sealers,
aud refuse to put any restraints upon pelagic sealing, instead of making an amicable settlement of the controversies that called us together
we would leave new and burning questions open between these Governments to be settled by war. It is not to be expected that the United
States, if left by this tribunal to the duty of defending itself against
the abuse of rights accorded to pelagic hunters, without any restrictions being imposed upon them, will fail to avail itself of the necessary
means of doing that duty.
I now turn to other views of this subject which I think are made necessary by what has occurred in this case.
The unrestricted right of pelagic sealing has been supported by the
assertion that it is the only way in which a monopoly in the fur-seal 93
trade, growing out of the ownership of the seal islands by the United
States, can be counteracted.
The commercial attitude of the United States towards the supply of
the markets of the world with the pelts of the fur- seal, is the same
that all countries hold in respect of any valuable commodity that is a
peculiar product of the soil or climate. The incentive of commercial
interchange, the necessities of the consumers, and the laws of supply
and demand are simply left to regulate the outflow of such productions
into the open channels of commerce.
If the United States, alone, produced fur seals, the Constitution of
that Government, which prohibits all duties on exports, affords a
guaranty that no other nation has given, against the possibility of a
monopoly in the pelts of that animal.
But Eussia and Japan yet remain as active competitors iu this and
other branches of the fur trade, and their care of this industry and the
distance of their sealing islands from the coasts of Canada and of the
United States aud the difficulties of navigation in their seas are likely
to preserve a large proportion of their seal herds from destruction for
many years to come. Many peltries will be thus supplied to commerce,
in competition with those that are taken by the United States.
If the regulations of seal hunting, that are found necessary by this
tribunal to preserve the species, are adopted by those Powers along
whose coasts and islands the fur-seal formerly abounded, the number
of these animals will again increase in the southern hemisphere until
the world will have, again, an abundant supply.
The course of the United States in reference to the care and nurture
of seal life is directly opposed to the engrossment of this product in
the way of monopoly. On the contrary, that Government has shown
its anxiety to preserve and increase tbe stock by its regulation of killing on laud, by forbearing, during three seasons, from taking seals in
excess of 7,500 which were reserved for the support of the natives, and
by reducing the number of seals that the lessees were entitled to kill
from 100,000 to 60,000 per annum, at the possible risk of pecuniary liability to the lessees.
Besides this, the expense of agents and superintendents of the islands
and of guarding them from the raids of poachers, is very considerable.
11 is difficult to conceive that a government could have done more, or
could have acted in better faith towards other powers, in a matter where
thereis an acknowledged public trust arising from its possession of the
seal islands. 11
94
Tariff duties that prohibit or strongly tend to the exclusion of imports, so as to benefit the special industries or productions of a country,
are in the nature of monopolies of the home markets and are generally
enforced by enlightened governments. And they do not stop to inquire
as to the injuries that such laws may entail upon other countries.
Tobacco is not extensively produced in Europe, and several of the
Eurdpean governments purchase the stock, chiefly from America, and
manufacture and sell it on government account, and fix the prices that
consumers, in those countries, must pay for the manufactured article.
This monopoly works an injury to manufacturers in America, but no
one has thought to make complaint against the governments that create
it, in respect to an American production. In this important matter
the Congress of the United States has no power to protect the producers of tobacco or the manufacturers by an export duty on tobacco.
Many other instances of monopoly of trade could be cited to show
that it is essentially a power of government which any nation may
rightfully employ to provide for its revenues and the welfare of its
people.
There is, really, no conceivable case or condition connected with the
industry of the fur-seal fisheries in which the United States could
monopolize this trade, except by destroying, as rapidly as possible, the seals on the islands. When a government finds it necessary
to protect these animals against its own people, as well as against
those of other countries, by assuming to itself their exclusive ownership, a monopoly is the invitable result and it is indispensable to the
safety of the property. This sort of monopoly is a part of the duty of
government and of its legitimate powers.
It is both the right and the duty of the United States to assume and
to exert ownership over these animals, in order to extend to them
the protection that is due to useful domesticated animals. The legislation of nearly every government upon whose shores or islands fur
seals resort habitually for breeding purposes assumes over them a government control for their protection and the right to raise revenue out
of them, which is based on the right of appropriating them to governmental uses and purposes, so that all those governments are in that
sense, monopolists. Such control can not be less than an assertion
of a right of property, for it prohibits all persons from asserting a
claim to them on private account, and it makes them a source of revenue;
These may be justly called laws for the domestication of the fur seals—
HP!:
'. n|:|il 95
laws for converting them into property as domestic animals. They differ
from game laws, which protect wild animals in order to secure a greater
supply for the common use.
All this legislative tendency indicates, in the plainest manner, a concensus of opinion and a common movement in the direction of classifying fur seals as domestic animals in respect to their protection by positive laws. Why this universal sentiment should only be resisted by
Canada for purpose of assisting her people in making selfish gain, is
an inquiry that only gives point to the suggestion that the international law should conform to the general municipal law on this subject.
The careful examinations and reports of many eminent naturalists,
supported by a general and distressing experience as to the extinction
of the fur seals, first in the southern hemisphere and now in the northern,
has set the local lawmakers to work in contriving statutes to stop these
destructive practices and to restore the herds to their former status.
All these laws are based on the fact that government control of the seals
is necessary for their preservation, and that the seals are entitled to the
same protection of the law, suited to their nature, as other domestic animals.
As this subject is now presented for the first time to an international
tribunal, and in a controversy between two great powers, and as the
origin of the questions so presented is of a very recent date, and as no
direct precedent or discussion exists to guide or control the judgment
of this tribunal, a proper occasion is presented for declaring that these
"animals should have the same .classification under the international
law that they have under the municipal laws of all countries that furnish a resort for the fur seals during their period of compulsory living
on land. Such a declaration would not create a new rule of international law; it would only apply the rules that may now be termed
universal law, in municipal legislation, to that area of the earth's surface in which there is no supreme law, because there is equal sovereignty in all nations, and would include in those rules the preservation on the high seas of animals that are so serviceable to man as to
deserve to be classed as domestic animals. All useful animals are subjected to domestication by the divine decree that gave to man the
dominion over the beasts of the field and the birds of the air.
Laws for the protection of animals are elaborately provided and are
made cardinal features of all civil codes and of the moral code of the
Pentateuch. This benign system has expanded from age to age so as
to admit within the circle of domesticated animals, that are protected \w\
96
by laws, all that have been found of common use for food or raiment,
and are, by their habits, capable of identification with reference to separate ownership, such as shell-fish yielding pearls, oysters, clams,
corals, sponges, etc., and a large number of animals that were not so
classed until within a recent period.
The tendency has been uniform to enlarge the scope of the laws so
as to include all animals within the classification of domestic animals, as
occasion has presented, and no animals have been permitted to be relegated to a classification as wild animals, that have been once included
in the protection extended by the laws to domestic animals. Any
other rule of action would deny to all new conditions that are valuable, the protection of the principles of international law.
The domestication of animals by general usage, or by law, attaches
to them the presumption that they are exempt from slaughter at the
will of anyone who may choose to kill them. Within the field of operation of such laws, such animals are protected as all domestic animals
are protected. Outside that jurisdiction, they are protected by comity,
or by the application of principles of international law, derived from
municipal laws, or else from the sentiment or the necessity that lies
at the foundation of municipal laws.
Those principles are justly founded on the general usefulness of the
animals to mankind, and the consequent necessity for giving them protection. The international law should attach to them the same presumption of domesticity that is attached to them in such cases by the
municipal law.
In matters like those submitted to us the opportunity occurs for a
formal declaration, which, by treaty agreement, is made obligatory upon
two great powers, of the relation that these animals should bear to the
question of their preservation, in the'international law. That relation
is uniform and unbroken, except in the laws and usages of Canada, in
all the legislation of all the municipalities that have any interest in the
subject. It is nothing less, in effect, than a declaration of those legislatures that fur seals, by reason of their value, their helplessness to resist
or escape from the power of man during a large part of every spring,
summer and autumn, their docility and the absolute necessity of giving
them that protection by positive law that nature has denied to thenx
should be classed and are entitled to be classed in favorem vitas, as
domesticated animals.
I can not understand how it can be possible, in view of the facts, that 97
this Tribunal should declare that they are wild animals in contemplation of law, and shall have no more shelter against the greed of man,
assisted by his genius in the invention of instruments of destruction,
than they have against the killer whale. That their only protection
shall be their capacity, in the water, to escape pursuit, out of which
element they must spend nearly half the period of their lives, is too
imperfect a shelter for such a valuable contribution to commerce as
these animals yield, to receive the sanction of the great commercial
nations.
11495 M 7 REGULATIONS.
THE TRIBUNAL, HAVING DECIDED THE OTHER QUESTIONS SUBMITTED
TO THEM UNDER THE TREATY, PROCEEDED TO THE CONSIDERATION
OF THE SUBJECT OP PROPER REGULATIONS FOR THE PROTECTION
AND PRESERVATION OF FUR-SEALS IN THE NORTH PACIFIC OCEAN,
INCLUDING BERING SEA.
Ill
On this topic Mr. Senator Morgan delivered the following opinion:
I have heretofore insisted that when concurrent regulations are
adopted they will be the result of the power of the Tribunal to agree
upon and stipulate a feature of the treaty, in respect of pelagic hunting of fur-seals, as between the two Governments; as much so, as if
the regulations had been formally agreed upon and written into the
body of the convention under which we are acting. I understand that
this point is agreed to on the part of all the Arbitrators, and I so
state it.
(2) The Arbitrators, in the exercise of these powers, must act as
impartial negotiators, as they hold their authority from both the High
Contracting Parties, under the treaty; and, their award being final, it
is sanctioned and sustained, if it is within the purview of their authority, by the sovereign powers of both Governments, pledged in the
treaty in advance of the decision of the Arbitrators. 1 also understand that this point is not disputed.
(3) The regulations we shall adopt are in no sense judicial decisions;
though they are based upon principles of law declared by the Tribunal,
nor is the power, or duty, of making them, so as to protect and preserve
the fur-seals, restrained or controlled so as to conform to the personal
interests of pelagic hunters or the national interests of the United
States. The two Governments have removed such considerations from
the scope of our duties by assuming absolute control of the entire
subject, which was found necessary to be done in order to properly
protect and preserve the fur-seals in the interests of commerce and
humanity.   In like manner they have excluded from our consideration,
98
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m 99
according to the decision of the Tribunal, the question of gain or
advantage to the United States, as a Government, resulting from the
preservation of seal life.
The modus vivendi, established for three consecutive sealing seasons
took the highest possible governmental authority over the fur-seals in
Bering Sea, and during those seasons prohibited all pelagic sealing in
those waters. This is a virtual declaration that fur-seals, while swimming freely in the ocean, are capable, of being treated as property and
are subject to the care of the two Governments.
The last of these agreements is incorporated with and made a part
of the treaty of February 29, 1892.
(4) The true attitude of the question we are now to consider is
simply this, to use the language of the treaty: "The arbitrators shall
then determine what concurrent regulations outside the jurisdictional
limits of the respective governments are necessary, and over what
waters such regulations should extend," "for the proper protection and
preservation of the fur-seals in or habitually resorting to the Bering
Sea."
It is not possible that the power to determine regulations to operate
outside the jurisdiction of the two Governments, which can only include
pelagic sealing in the waters of the Pacific Ocean and Bering Sea
outside the territorial limits, can be so stretched, without a bold usurpation, as to include the killing of seals on the land.
It is quite as impossible to suppose that either government intended
that by concurrent regulations this Tribunal could provide laws for
either Government that should operate as laws within the actual boundaries of the other.
When the power is given only to determine "over what waters such
regulations should extend," it is not possible to conceive that the Tribunal has the power to determine over what lauds or islands they
shall extend. This power is so clearly withheld from this Tribunal by
the treaty that its exercise would be ultra vires, in any form or for any-
conceivable purpose.
So that we have in the body of this treaty the statement and actual
enforcement of the power of the British Government to dismiss from
consideration the personal rights of its subjects, under international
law, in respect to pelagic hunting, and the assumption by that Government of supreme and absolute control over them and their rights. All
this was done-for the purpose of making the matter of concurrent reg- too
ulations a question between the two Governments, to be controlled by
the mutual international policy of protecting and preserving the Alaskan
seals, as to which purpose both Governments are in accord. They agree
as to the national duty of both Governments to protect and preserve
these fur-seals, and have only disagreed as to the- rightful and best
method of executing this duty.
(5) There is no mistakiug the exact nature and extent of the power
conferred on this Tribunal. It is simply the power to determine concurrent regulations for the proper protection and preservation of the
fur-seals in or habitually resorting to Bering Sea, and to designate
the waters that should be included in such regulations.
If this Tribunal bases its award upon the effect that such regulations
are to have on the rights or profits of pelagic sealers, they rebuke both
Governments for havingassumed the whole responsibility of that subject,
and for having retired from view the private rights of their citizens
under the international law, and for having subjected them to such
municipal laws of the respective Governments, to be enacted in conformity with the award, as shall accord with the avowed public policy
of those Governments to preserve and protect the fur-seals.
These Governments have not invited us to decide how far this
policy, mutually agreed to and declared in the most unequivocal terms,
shall be obstructed by our efforts to take care of the interests of their
citizens engaged in pelagic sealing. They have assumed that duty
and will doubtless respond to it.
Both Governments would rejoice if the preservation and protection
of the seals in question would admit of the greatest extent of pelagic
hunting by their citizens consistent with the prudent and humane
treatment of these useful animals. But they carefully considered that
question and appointed a joint Commission to make examination into
all its bearings. That Commission made a joint report before the
treaty, signed February 29,1892, had been ratified by either Government, in which they say: "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 their protection and preservation;" and
further, they declare that—" 7. We find that, since the Alaskan pur-
"chase, a marked diminution in 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 killing by man." 101
These two Nations, acting on this report and upon other ascertained
facts of the gravest character, took the subject into their own hands and
provided for the determination of concurrent regulations by this Tribunal, to operate outside the jurisdictional limits of the two Governments,
on the water and not on the land, for the j)rotection and preservation
of these fur-seals.
The subject of regulating the seal herds on land was not mentioned
between the Governments iu their negotiations, nor in the treaty;
doubtless for the reason that Great-Britain saw that it was the interest
of the United States to protect and preserve the seals and to promote
their increase, and had no cause then or since to doubt the good faith
of the United States in the use of every means that would contribute to
that end.
"The excessive killing by man" that the Commissioners agreed to
report could not have been the killing by the United States on the
islands of St. Paul and St. George; otherwise, that fact would have been
mentioned and made the subject of negotiation.
The protection and preservation of the seals against excessive killing, is the killing upon the waters outside the jurisdictional limits of
both countries. It is beyond a reasonable doubt that it was pelagic
killing that was considered by the United States and Great Britain
as being so destructive to seal life as to make it incumbent upon all
nations to provide for their protection and preservation, and was especially the duty of these two powers. To do this, these Governments
agreed with each other to place this question upon the high and just
ground of international duty, disregarding the profit that might accrue
to the subjects and citizens of both countries from th« indiscriminate
slaughter of the fur-seals, or to the United States from preserving and
increasing the number of fur-seals.
(6) This Tribunal is to make regulations that apply to this herd in
its present condition, and not with reference to some former condition.
The most conspicuous fact in the present situation, and the dangerous fact of the inevitable future, is this, that the fur-seals will disappear rapidly if the pelagic hunter is able to makethat business profitable
on the sea and to make it unprofitable on the Pribilof Islands. Either
of these results will destroy the fur-seals rapidly, and both of them would
make the destruction sudden, and that without remedy. And if one result
ensues, the other must follow speedily.
This- treaty also requires this Tribunal to consider and decide concern- I
102
ing the rights of the subjects and citizens of either country as regards the
taking of fur-seals in or habitually resorting to Bering Sea. Whether
this question has been decided or remains to be decided the Tribunal
has not yet come to any resolution. That subject, though I have
demanded its separate examination and decision, has been passed over
by the Tribunal, but in either case I will assume that their rights
must be equal and that there will be no discrimination between the
people of the two countries as to such rights.
If the right is given them by this award to scour the North Pacific
Ocean and Bering Sea at all season's of the year, with all descriptions of
firearms except rifles, and with such number of vessels as may be
tempted into the business by its profits, assisted by steamers to carry off
the catch so as to keep the hunters steadily employed in killing seals, it
will not be possible for the Congress to prevent the citizens of the
United States from sharing in the raids upon the seals equally with
British subjects. I mean that the people of the United States would
withdraw their support, as they should do, from any body of representatives that would tolerate such an injustice, and all seal hunters and
many thousands who are not, would rush in to destroy them as they
did in 1868.
We can not expect to impose upon the United States the duty of
keeping up this expensive and harassing plan that it now maintains in
good faith and perfect honor for the preservation of the fur-seals when
we condemn the seals to certain destruction in the face of the avowed
policy of both countries that they should be protected and preserved.
We can not expect the United States to maintain its prohibition of
pelagic sealing in Bering Sea as to its own citizens when we enjoin
it upon that Government, as a moral duty and a treaty obligation, to
repeal her laws as to restrictions upon British subjects in that sea.
This is what the United States must do, under concurrent regulations framed upon the plan of Sir John Thompson, or else it must violate the spirit of the treaty, if not its letter, as it is to be declared in
such an award, because of the disadvantage to its own people. We
can not thu^s condemn the policy of the United States in its faithful
efforts to preserve seal life, and expect that Government to maintain
its rigorous laws against its own citizens.
If we extend an invitation to other nations to enjoy equally with
Great Britain and the United States the looting of the seal herd in
the North Pacific and in Bering Sea, we pledge the honor of these 103
Governments that they will sustain the rights of all nations, both in a
moral and national sense, in like invasions of the herds of Eussia and
Japan.
The flag of the most insignificant power in the world will have the
pledge, through such an award, of perfect immunity and protection
while raiding the North Pacific Ocean and Bering Sea with all implements of destruction, not excepting any, and in such number of vessels and of such tonnage and description as they choose, not excluding
steamers, and without having a license or a distinctive flag.
A recent event has demonstrated the fact, if it needed any demonstration (as it does not), that the little kingdom of Hawaii will, through
the help of renegades of the United States and Canada, grow rich in
renting her flag to them in .order to take advantage of the scheme
presented here by Great Britain as her project of regulations. Why
these two Governments should thus create such a destructive fatality
to seal life through the award of this Tribunal while professing the wish
and purpose of protecting it is quite beyond my ability to comprehend.
The regulations submitted by the respective Governments for the
consideration of this Tribunal must be regarded as their official statements of the basis and plan of settlement proposed by each, and not as
the ultimatum of each Government, between which we are to choose by
accepting the one and rejecting the other. And, as no plan or formulation of regulations is stated in the treaty or alluded to, this subject is left
to the judgment of this Tribunal, which is at liberty to discard both
schemes or to.adopt regulations that neither Government has suggested. The only limitations ou the power of the Tribunal in this
regard is, that the regulations shall be concurrent and, therefore,
uniform as to both Governments, that they shall relate to waters
that are outside the jurisdictional limits of either Government, and
that they shall be "necessary * * * for the proper protection and
preservation of the fur-seal in or habitually resorting to Behring Sea."
The treaty also furnishes a giiide as to the general nature of the regulations, that they should be such as to claim, for their international
support,the adhesion of other powers to such regulations.
It will be observed that the invitation of the two Governments to
other powers, that they will give their adhesion to this treaty, relates
only to the regulations we are to provide. Ithas no relation to any other
part of the treaty. The object of this invitation was not so much to
prevent- other powers from encouraging pelagic sealing in Bering Sea, 7~i
T |i|!li-
191
liiii
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104
or the North Pacific Ocean, as it was to obtain their consent to regulations that would preserve and protect fur-seals in the waters in which
they are found anywhere in the world, if they are generally adherred to.
No nation except Great Britain has found itself interested in the
hunting of the seal herd that resorts to Bering Sea. The people bf
other nations have not carried on pelagic sealing in that herd, or iu
the waters of the North Pacific or Bering Sea. If the regulations
that we adopt are founded upon or modified by the peculiar interests
of Canada, or the United States (as is proposed in the British case),
the other powers will find that they are in no sense international, but
are entirely local; that they adopt no general principle of action for
the protection and preservation of fur-seals, but are only an expedient
devised to get rid of a particular controversy between the United
States and one of the provinces of Great Britain. We could not ask
other powers to adhere to regulations based on grounds so narrow and
selfish. It would be in effect only a request that they would agree
not to interfere with this herd of seals while they are being divided,
according to an award of this Tribunal which apportions them between
the United States and Canadian sealers.
The regulations presented by Sir John Thompson appear to be based
upon the recent modus vivendi agreed upon between Eussia and Great
Britain, to which the attention of the Tribunal has been called. Eussia
appears to have accepted that arrangement as a mere temporary check
upon the aggressions of the pelagic sealer, and has accompanied it
with reservations and protestations that show her extreme unwillingness to adopt it as the final definition of her rights.
If the award of this Tribunal should thus conform to the plan
adopted in the Anglo-Eussian modus vivendi, it will either force Eussia
into terms of final agreement with Great Britain that she would not
otherwise adopt, or it will show a wide distinction between Eussia and
the United States in treating with Great Britain about a subject of
the same character, and in reference to the same body of waters.
Eussia could not finally adhere to the regulations proposed in the programme presented by Sir John Thompson, without agreeing to all that
Great Britain is demanding of her, against much of which she is
firmly protesting.
Before stating the form of regulations to which I would prefer
to give the support of my voice in this Tribunal, I will state some
conclusions of fact that I have drawn from the evidence as to the 105
character of the regulations which are necessary to execute the purpose of both Governments to preserve and protect the fur-seals of the
Alaskan herd, and that would also answer a beneficent purpose in
accomplishing the universally declared wish of all nations interested
in the subject of protecting aud preserving seal life, and in repairing
the damage that has been inflicted npon it by raiders in the absence
of governmental protection. This, I take it, is the real ground upon
which other powers are to be invited to give their adhesion to the regulations that this Tribunal may determine aud award as between
Great Britain and the United States,
The regulations, like all enactments of laws that are remedial in
their character, are to be framed with a view to giving relief against
au existing evil, and this can only be wisely and justly accomplished
when the nature and extent of the evil is first ascertained. When that
is done", the nature of the evil suggests the character of the remedy,
aud we can not frame the remedy that we are to provide so as to merely
check the evil for a time, leaving-it to burrow and work its havoc at a
date that is more acceptable only because it is more distant from us.
The occasion requires a just, serious, and firm attitude as to a question of great importance to the whole world.
I will now state, as I gather from all the evidence before us, what is
the evil that these Governments have found to be so threatening to
seal life in the Alaskan herd as to draw them into an agreement that
it should be repressed by their concurrent action.
1 will not attempt to examine again the details of the evidence, so
thoroughly presented and with such judicial impartiality, by Mr.
Justice Harlan. I can find no flaw or omission in his careful statement of the evidence, or in the conclusions that he drew from it as to
matters of fact. I believe that he stated the exact truth of the situation, and I fully concur in his treatment of the subject and in the
conclusions that he has reavhed.
The present situation, as I understand it, is as follows, as shown by
a comparison of the Pribilof and pelagic catches:
Year.
1890.
1881.
1893.
Total.
Total
Pribilof
nd8-    "caton7
Islands     P61**10
21,234 51,655
12,071 18.000
7,500 78,894
7,500 *80,000
48,305 i   273,049
* Estimated. 106
In 1889 the Pribilof catch was 102,617, which fell off to 21,234 in
1890, and this was all that the islands would yield of killable seals,
leaving a deficit, as compared with the previous year, of 81,379 seals
upon the islands. If this contrast in the number of seals that could
be taken on the islands in 1889 and 1890 was due to the overkilling
of males on the islands, and not to pelagic hunting, the falling off of
numbers would have been indicated in each of the six years prior to
1889. No one has asserted such afact, and we know that a male seal must
be 6 years old before he is able to take up and maintain a harem on
the rookeries. So that this sudden falling off between 1889 and 1890,
if it was due to an excessive killing of males, must have occurred at
least as early as 1882. This is not true, and no one pretends that it is.
The killing of 51,655 seals that the pelagic, hunters got, and at least
three-fold that number, including those that were lost, must have
reached 300,000 seals that were destroyed. Of this number, three-
fourths were females, that are not killable seals on the islands, and are
not counted in the Pribilof catch.
The verification of this calculation is almost perfect in 1892, when
the pelagic sealers took 73,000 seals, and in 1891 when they took
68,000. The close approximation of these figures shows that the loss
of the seals on the islands was due to pelagic sealing, and not to
the waut of virility in the bulls on the breeding grounds, or to any other
cause.
That the process which has actually depleted the seal herd in four
years to the extent of 569,065 (273,000 of which were females), is an evil
that requires to be remedied, for the sake of the protection and preservation of seal life, no one can doubt, as it seems to me. This progressive
depletion of this herd of seals can not fail to destroy them very soon,
aud, in the meantime, to deprive the United States of all possible
advantage and compensation derived from its efforts to save the species.
What the United States has done, or omitted to do, to deserve treatment at the hands of this Tribunal that will expose its lawful industries to ruin, its revenues to depletion, and its wards on the Pribilof
Islands to the loss of their only valuable industry will be an inquiry
that will seriously challenge the justice of such an award, in the estimate of.the civilized world.
The evil to be provided against by this Tribunal is, clearly, pelagic
sealing with firearms.
If there is, or has been, any detriment to the seal herd from the 107
treatment of the United States, on the islands, tbe facts on this subject
were not unknown to Great Britian when the treaty was made and
before ratifications were exchanged. This subject was not referred to
in any of the correspondence between the Governments, and the treaty
is silent as to this supposed mismanagement.
Will the Tribunal, in such a case, make an objection to protecting
and preserving the fur-seals on the water because Great Britain has
not thought it proper or necessary to call the methods into question,
or the United States into account, for its manner of dealing with that
subject on land? True, if it can be shown that the depletion of the
herd is due to that cause, and not to pelagic hunting, that is a just and
proper inquiry. If it is due to both causes, this Tribunal will deal with
the pelagic evil, that is submitted to its consideration, and leave it to the
nations concerned in the protection of seal life to deal with the evil on
land.
If the United States are not so wise in caring for the seals on land
as the pelagic hunters are in caring for them at sea, as seems to be
asserted, they are quite as earnest in the wish to do so. They destroy
no female seals; while the pelagic hunter never spares one. They do
not fire upon the breeding rookeries when the seals are massed, many
of them asleep, with double-barrelled shotguns and buck-shot cartridges.   They do not kill indiscriminately all seals that come in sight.
The United States permit no female seals to be killed;- while 75 per
centum of those killed by the pelagic hunter are females heavy with
young aud almost helpless.
In that condition, as well as in accordance with a law of their nature,
whichisan important fact in connection with their domesticity, thefemale
fur-seal require a great deal of sleep. When asleep, they turn upon
their backs, fold their flippers over their breasts, aud curving their hind
flippers upwards, they form of their bodies a sort of boat, the spinal
column representing the keel. They can only breathe the upper air;
they can not, like a Ush, extract air from the water. While sleeping
their noses are above the water. After inhaling the air the nostrils
close firmly together, and the air, heated by their bodies, expands and
buoys them up. They seldom breathe oftener than once in fifteen minutes, and, when diving, they need not return to the surface for air
oftener than every thirty minutes. We know nothiug of. their habits
at night while in the ocean. On land they are so boisterous at night
with their howlings that sleep would seem to be impossible, except 108
w\
from sheer exhaustion. They have not a keen vision, and the sunlight
is painful to them, so that they leave the land aud go to sea on days that
are bright. This causes them to seek a summer home in a place where
fogs and rains prevail. Yet they must have warmth. Nature has amply
provided for this necessity by giving them a double coating of thick,
strong hair, and of the thickest and finest fur that was ever bestowed
upon any species of animals. It is as impervious to water as the dowu
of an eider duck. The pups are born without this fur, and hence their
aversion to swimming until it has grown out; and this detains them ou
land for four months, at least, during which period they can subsist
only on the milk of the cow seals. While their vision is not keen, their
auditory organs and seuse of smell are exceedingly acute. They are
attracted by sounds as few other animals are. In this faculty they
make a close approach to the endowments of mankind. Sir John
Thompson is amused at an account, read by Mr. Justice Harlan, of the
seals being attracted in'great numbers near to the shore at Hoy by the
ringing of a church bell. In his incredulous sport over this incident
Sir John forgot that it is the personal observation of Mr. Low, one of
the greatest naturalists who ever lived, the friend and companion of
Cuvier, and is more than confirmed by M. Peron^whom France has
honored in the most conspicuous way. His abilities as a naturalist,
acquainted intimately with seal life, are as far in advance of those of
Prof. Elliott, from whom Lord Hannen quotes with much satisfaction,
as Napoleon was in advance of the Sioux chieftain, Sitting Bull, as a
military genius.
I will presently quote something further about fur-seals from Mr.
Peron.
I know Mr. Elliott, whom the British Government has dubbed " professor." I have respect for his character and sprightliness. He is a
painter in water colors of no mean pretensions, but his use of color
does not stop with his canvas. It enters into all he says, and makes
him too vivid an enthusiast for a safe reliance on questions of measurements, statistics, and cold facts. Mr. Elliott was out on the Pribilof
Islands on the 10th of July, 1890, taking field notes, which, to be of any
value, should be free from all romantic conjecture. The following is
one of his highly colored extracts taken from his report of that day:
In company with Mr. Goff and Dr. Lutz, I made my plotting of the
breeding seals as they lay on the Eeef and Garbotch to-day.
Here at the very height of the breeding season, when the masses 109
were most compact and uniform in their distribution in 1862-774,1 find
the animals as they lay to-day, scattered over twice and.thrice as much
ground as a rule, as the same number would occupy iu 1872—scattered
because the virile bulls are so few in number and the service which
they render so delayed or impotent. In other words the cows are restless; not being served when in heat, they seek other bulls by hauling
out in green jagged points of massing (as is shown by the chart), np
from their landing belts.
This unnatural action of the cows, or rather unwonted movement,.
has caused the pups already to form small pods everywhere, even where
the cows are most abundant, which shadows to me the truth of the
fact that in five days or a week from date, the scattering completely of
the rookery organization will be thoroughly done; it did not take place
until the 20th-25th July, 1872.
In 1872, these cows were promptly met with the service which they
craved on the rookery ground. The scattering of these old bulls to-day
over so large an area, is due to extreme feebleness and combined in
many cases to a recollection of no distant day when they had previously hauled thus far out on this very ground surrounded by bareness,
though all is vacant and semi grass grown under and around them now.
The fur-seals, so well provided against cold, are yet so sensitive to
its effects that they go south at the approach of winter and seek their
food in the great river of warm. waters that comes from the tropical
coast of Asia and pours its flood across the Pacific Ocean. It bears
enormous treasures of fish food, and swarms with schools of herring,
salmon, and squid* The migratory fishes, that naturally feed against
the current, pursue the track of this warm river in the ocean and
ascend it. This leads them to the northern coast of the United States,
and thence around the great curve which this river has formed on the
coast, past British Columbia, to the south of the Alaskan peninsula.
The fur-seals, finding warmth and food in this ocean current, enter it
when they quit the breeding islands aud Bering Sea, in November, and
must stay in the broad expanse of warm waters, where it ceases to
flow, during a considerable part of the winter. There they remain in
search of the herring and other, vast schools of migratory fishes that
are surface swimmers and feeders, and they- fellow them on their way
to the spawning grounds, as the seals return to their summer abode on
the islands to the north of the Aleutian peninsula, where the Arctic
current and the Asiatic river meet.
Around the great curve I have mentioned, this ocean current sets in
close to the shore, flowing southward, and its warm waters make the
winter climate in those high latitudes and altitudes nearly as soft and
genial as that of Ireland, and for the same reason. The seals are thus
drawn into numerous large assemblages or schools near to the western 110
iftii 'I
■I
coast of North America, and are in easy reach of the "industry" of
pelagic sealers.
They must travel a great deal in the night time.   In this they are
guided and protected by thefr sense of hearing and smell, and, bike
the cat, they are "provided with several rows of whiskers that are very
sensitive and that admonish them of danger in places where they can
' not see their way.
The gravid females must necessarily spend a large part of each day
in seeking food, and do not travel so fast as the male seals. Their exertions are necessarily very taxing to their strength and require them
to sleep frequently during the day.
I have made this statement of facts and conclusions, as I draw them
from the evidence, to support the further conclusion of fact, which, I
think, is unavoidable, that the war upon the gravid female seals is
like a war upon the women and children of a nation, which all, except
the most depraved of savage nations, abhor. True, these are beasts;
but they are harmless, docile, useful beasts, and very helpless, and
when they are denied any more protection by the supposed law of
nations against the mercenary ferocity of the pelagic sealer than is
given to tiger.s or serpents, while I am empowered to vote in this Tribunal, which is now their only protector, I must vote at least to
disarm the pelagic sealer of his double-barreled shotgun, or else to
confine his warfare to an area of waters and to a close season where
his powers of destruction will not exterminate the race.
If I could find no better reason for restraining the pelagic hunters
from the use of double-barreled shotguns in their "sportsmanlike"
business of killing gravid females and nursing mother seals in order to
earn $10 a piece from each pelt, I would join my voice with that of every
respectable legislature in the world in their careful and highly penal
enactments for the prevention of cruelty to animals, and would at least
put the female seals under the protection of proper regulations to be
awarded by this Tribunal.
On this point I will quote from The Naturalist's Library (p. 81), which
thus describes the cruelties inflicted upon these valuable, docile, and
harmless animals:
Before proceeding to make the few remarks which our limits allow
on the valuable products derived from these animals,, we would say a
word or two upon their capture. They are exceedingly tenacious of life,
and many cruelties have been perpetrated upon them, which most who
have witnessed declare to be too horrible for description, and over
which we willingly draw a veil.   If life" is to be sacrificed, there is a Ill
right way of taking it as well as a wrong, and we insist that the former
should be followed and the latter avoided. Before, however, entering
upon this topic, we take leave to remark that it is impossible to investigate, as we have done, the natural history of these animals without
discovering how much their capture has been made a matter of mere
amusement and, as it is familiarly but emphatically called, of sport.
We venture to denounce all such sports as both indefensible and wrong.
Animals have been given to provide for the necessities and comforts of
man, but not that he may gratify himself with their dying agonies; and
he is wholly inexcusable if even here he breaks the golden rule of doing
as he would be done by. Sporting with the feelings, and pains and lives
of these creatures has a strong tendency to lead to cruelty and wickedness ; and, therefore, this inherent tendency should be checked in the
bud and invariably opposed. When we witness, says Peron, a thoughtless sailor hastening for his amusement, club in hand, into the midst
of a great herd and surrounding himself with their dead bodies, we
can not but sigh over this improvidence and cruelty which lays low so
many peaceful, gentle, and unhappy beings.
While I have the book in hand, I will read other extracts in relation
to the docility of the seals, on pages 73 to 77:
At a particular season of the year, every male, inflamed with lust,
and jealous almost at its shadow, lords it over his numerous harem
with even more than eastern despotism, and thereby throws the whole
community into a state of the highest excitement and agitation. During this period, which continues for months, many a jealous Bashaw,
as these animals have not inaptly been designated, engages in fearful
strife with a rival; the contest is often long and obstinate, as well as most
sanguinary and fatal. Nor does it end with these doughty champions.
Other males soon imagine that their interests are involved, or their
rights invaded, and the strife spreads from family to family, till at
length the whole community is involved in one general melee of passion and rage, of fierce cries and groans, of blood and death; aud,
after all, short is the triumph of the conqueror, and deep and poignant
the chagrin and malice of the vanquished.
Originally, and therefore we are disposed to hold that naturally,
these amphibia, far from having a dread, have rather a reposing confidence in man. When a young one by an accident is separated from
its parents and comes in contact with man, instead of shunning it
courts its company. It will follow him, and if the finger be held out
will suck it like many domestic animals. Through the kindness of
Prof. Trail we can illustrate this trait in their mental constitution by
an interesting incident of which he was a witness, and which, with
several other anecdotes, we can, through his polite attention, record in
his own words: "A little islet in Orkney, called the Holm of Papa
Westray, had long been a favorite haunt of numerous seals, which had
become more than usually tame from the care of the proprietor of the
adjoining island to prevent their being molested. On visiting that
gentleman in 1833 I found the seals exhibited their wonted confidence
in those who approached their protected haunt. Several of them swam
along the shore as a party of six or eight persons walked along the
beach, aud did not in general keep farther from us than 30 or 40 yards.
When we turned so did they, and when we reentered our boat they
followed it in the narrow channel that divides Holm from the island of
Papal   Seakrare said to relish music, and a seal hunter once informed 11:11
mm
112
me that the sound of a flute will allure them to a boat; but in the
above instance it was merely the consequence of ho gun being ever
lifted against them in that islet which has won their confidence in
man." Nor is this characteristic less strikingly exemplified by an
observation made by Mr. Dunbar, the present incumbent of the parish
of Applegarth, during his residence at a former period in one of the
Hebrides. In a letter to Mr. Lizars, which appeared in the last volume
of the Naturalists'Library, we find the following statement: "While
my pupils and I were bathing, which we often did, in the bosom of a
beautiful bay in the island named, from the circumstance of its being
a favorite haunt of the animal, Seal Bay, numbers of these creatures
invariably made their appearance, especially if the weather was calm
and sunny and the sea smooth, crowding around us at the distance of
a few yards, and looking as if they had some kind of notion that we
were of the same genus with themselves. The gambols in the water
of my playful companions and their noise and merriment seemed, to our
imagination, to excite them and to make them course round us with
greater rapidity and animation. At the same time the slightest attempt
on our part to act on the offensive, by throwing at them a stone or
shell, was the signal for their instantaneous disappearance, each as it
vanished leaving the surface of the water beautifully figured with a
wavy succession of concentric circles."
In the previous paragraph allusion is casually made to the notion
that these auimals are not indifferent to the charms of music, whilst
we believe it may be safely affirmed that this assertion is more frequently
made than credited. The statement, however, appears to be perfectly
correct; aud the following quotations, the former from the celebrated
Orkney naturlist, Law, and the latter from Mr." Dunbar just quoted,
are sufficient to banish all skepticism on the point. "If people are
passing in boats the seals often come close up to them and stare at
them, following for a long time together; if people are speaking loud
they seem to Wonder what may be the matter. The church of Hoy is
situated near a small sandy bay much frequented by these creatures,
and I observed when the bell rang for divine service all the seals
within hearing swam directly for shore, and kept looking about them,
as if surprised rather than frightened, and in this manner continued
to wonder as long as the bell rang."
And again Mr. Lizars's correspondent: "The fondness of these animals for musical sounds is a curious peculiarity in their nature, and
has been to me often a subject of interest and amusement. During a
residence of some years in one of the Hebrides I had many opportunities of witnessing this peculiarity, and in fact could call forth its
manifestation at pleasure. In walking along the shore in the calm of
a summer afternoon a few notes of my flute would bring half a score
of them within 30 or 40 yards of me; and there they would swim about,
with their heads above water, like so many black dogs, evidently delighted with the sounds. For half an hour, or, indeed, for any length
of time I chose, I could fix them on the spot; and when I moved along
the water edge they would follow me with eagerness, like the dolphins who, it is said, attended Arion, as if anxious to prolong the
enjoyment. I have frequently witnessed the same effect when out on
a boat excursion. The sound of a flute or of a common fife blown by
one of the boatmen.was no sooner heard than half a dozen would start
up within a few yards, wheeling round us as long as the music played,
and disappearing one after another when it ceased."
if 113
Again I read from the same volume to prove what I have said about
the sense of hearing, touch, and smell that seals possess (pages 65 and
66):
The truth is, the eye of the Amphibia is a perfect study and would
well repay a lengthened description. It is very large and quite spherical ; sclerotic or outer membraue is very peculiar, inasmuch as it has a
soft and thin zone around its middle, thickly covered with muscles,
whilst both before and behind it is thick and almost cartilaginous.
The precise use of this structure has not yet been discovered, though
Blumenbach has thrown out the idea that it may enable the seal to see
both in air and water. Eosenthal so far confirms this opinion by having observed that the mechanism is peculiar to those auimals which
live in a dense medium, such as water; that the remarkable thickness
of the coat is found in those animals in which the orbit is not wholly
osseous, and that some fishes have the sclerotic nearly cartilaginous.
With regard to the ear, it ought not to be forgotten that fishes, with
no external ear or aperture, have in their native element an acuteuess
of hearing which, according to some respectable authorities, far exceeds
our own, and Eosenthal states that the auditory nerve of the seal is
very large. Bespecting the sense of touch, We shall here quote M. F.
Cuvier, who well remarks : "The whiskers are very sensible portions
of the sense of touch. Those hairs placed on each side of the mouth
and at the corner of ohe eye communicate with nerves which are
remarkable for their size, and to which, as I have often convinced myself,
the slightest impression communicates an immediate sensation." So
', it is, we believe, with the other senses, which we consider wonderfully
' adapted to both elements. Thus Buffon remarks of the monk seal on
land: "It has a very acute hearing, since even at a distance it never
failed to obey or respond to its master's voice;" and thus Capt. Scoresby:
" Seals appear to hear well under the water. Music or particularly a
person whistling draws them to the surface and induces them to
stretch out their necks to the utmost extent, so as to prove a snare by
bringing them within the reach of the shooter;" and Weddell: "Their
sense of hearing is acute, and also their sense of smell." It is on
.account of this last sense that the Greenlanders always endeavor to
approach them against the wind. And were we to judge of their taste
by the keenness with which they relish their food—few animals possess
it in equal perfection. The greatest gourmand's teeth do not water at
the anticipation of the richest feast as do theirs in expectancy of their
common food. "A copious saliva," saysM. F. Cuvier, "fills and flows
from their mouth during deglutition, and not less so the moment the
seal perceives its prey."
As to their breathing
the following is stated:
I will read from pages 56, 57, and 58, where
Having thus noticed that the external structure of these Amphibia is
admirably adapted for their watery element, and yet made wonderfully
conformable to their requirements on land, we proceed to remark that
their vital functions also are strikingly fitted for their peculiar exigencies. Their respiration, as might readily be inferred, differs considerably from what is observed in most other animals. Even the air passages undergo a change which ought not to be overlooked. We refer
particularly to the nostrils, whose state, unlike that of other quad-
11495 k——8 114
ill'
rupeds, is that of being habitually closed, instead of being uniformly
open. This was first noticed, we believe, in a walrus domesticated in
England, of which, as will appear in our account of that animal, it was
said: "It can open and shut its nostrils at pleasure." The Count
Buffon again pointed out the peculiarity in a tame seal which he
examined: "In the intervals of breathing, the nostrils were accurately
closed, and, on the act of inspiration being completed, they were shut
as before." M. F. Cuvier, at alater period, made a similar observation,
so that we apprehend we may safely affirm that this peculiarity exists
in the air passages as their ordinary condition. This state of parts of
course supplies ready means of judging of the frequency of respiration,
and here, too, there appears to be a marked difference, even on land,
from what obtains among other animals. Thus Buffon, in the instance
already alluded to, remarks: " The period between its several inspirations was very long; the creature opened its nostrils to make a strong
expiration, which was immediately followed by an inspiration, after
which it closed them, often allowing them minutes to intervene without
taking another breath." In connection with this peculiarity, M. F.
Cuvier makes an additional and important remark: " Notwithstanding
the slow and irregular breathing of these animals, the regular supply
of air to the lungs is in-no degree diminished, if we may judge from
the very free motion of the ribs, aud the great quantity of air expelled
at each expiration. In truth, the quantity of air taken in makes up
for the small number of the respirations; for few of the Mammalia
have appeared to me to have so high a natural temperature as the seals.
But, however great the peculiarity as exhibited on land may be, it is
trifling when compared to its singularity in water, where it is not
uncommon for these animals to remain for a quarter of an hour at a
time under the surface (the usual period even for whales); and we are
not prepared to state what the extreme limit may be. Thus, Crantz
states that when harpooned they must come up in about a quarter of an
hour to take breath; and Mr. Edmonston informs us that he once saw
one of the bearded seals entangled in a net, which struggled with
amazing force for more than twenty-five minutes without once inspiring,
and yet was brought to the surface alive. An observation of M. F.
Cuvier is still more remarkable. He states, concerning those which
were preserved in the menagerie at Paris, that he has seen them while'
asleep keep their heads under water consecutively and consequently
without breathing rfor an hour at a time. This is an extraordinary
phenomenon, even allowing that the animal was in that somewhat
lethargic condition to which we shall ere long allude.
As to their destruction, by unrestricted hunting, the following pages
may be referred to: pp. 93, 95, 96, and 97, where it is said:
The time was when cargoes of those skins yielded $5 or |6 apiece in
China, and the present price in the English market averages from 30
to 50 shillings per skin. The number of skins brought off from Georgia
can not be'estimated at fewer than 1,200,000; the Island of Desolation
has been equally productive, and in addition to the vast sums of money
which these creatures have yielded it is calculated that several thousand
tons of shipping have annually been employed in the traffic.
* * * These valuable creatures have often- been found frequenting some sterile islands in innumerable multitudes. By way of illustration, we shall refer only to the fur-seal, as occurring in South Shetland.   Ou this barren spot their numbers were such that it has been 115
estimated that it could have continued permanently to furnish a return
of 100,000 furs a year; which, to say nothing of the public benefit, would
have yielded annually from this spot alone a very handsome sum to the
adventurers. But what do these men do? In two short years, 1821-
'22, so great is the rush that they destroy 320,000. They killed all and
spared none. The moment an animal landed, though big with young,
it was destroyed. Those on shore were likewise immediately despatched,
though the cubs were but a day old. These of course all died, their
number, at the lowest calculation, exceeding 100,000. No wonder, then,
that at the end of the second year, the animals in this locality were
nearly extinct. So it is, we add, in other localities, and so with other
seals; so with the oil seals, and so with the whale itself, every addition
only making bad worse. And all this might easily be prevented by a
little less barbarous and revolting cruelty, and a little more enlightened
selfishness. Fishermen are by law restrained as to the size of the
meshes of their nets in taking many of our more valuable fish; and in
the Island of Lobos, in the Eiver Plata, where, as we have seen, there
are quantities of seals, their extermination is prevented by the governor
of Montevideo, who farms out the trade under the restriction that the
hunters shall not take them but at stated periods, ages, etc. * * *
With regard to the seal fishery of the south the English and Americans have exclusively.divided it between them, and with very great
profits. It has lately been stated that they together employ not fewer
than sixty vessels in the trade of from 250 to 300 tons burden. These
vessels are strongly built and have each six boats, like those of the
whalers, together with a small vessel of 40 tons which is put in requisition when they reach the scene of their operations. The crew consists of about twenty-four hands; their object frequently being to select
a certain fixed locality from ' which they make their various battues.
Thus it is very common for the ship to be moored in some secure bay
and to be partially unrigged, whilst, at the same time, the furnaces,
etc., required for making the oil are placed on shore. The little cutter is then rigged and manned with about half the crew, who sail
about the neighboring islands, and send a few hands on shore when
they see seals, or where they wish to watch for them. This vessel can
hold about two hundred seals rudely cut up, which will yield about
100 barrels of oil. This is transported to the headquarters and melted.
The campaign frequently lasts for three years, and in the midst of
unheard of privations and dangers. Some of the crew are sometimes
left on distant barren spots, and the others being driven off by storms,
they are left to perish or drag out for years a most precarious and
wretched existence.
This evidence, from the highest English and French authorities, was
stated to the scientific world more than fifty years ago, as a plea for
the preservation of these valuable and docile animals. If we calculate
the values they woidd have added to commerce, had Great Britain
and tbe United States then agreed, as they do now, to adopt regulations for their protection, we must reproach ourselves if this Tribunal
is hot now equal to this important duty and if the regulations we adopt
are not effectual to stop this great wrong. 116
The following.pages, 275, 276, and 277, contain a description of fur-
seals in the Antarctic, taken from the writings of Capt. Weddell:
Nothing regarding the fur seal is more astonishing than the disproportion in the size of the male and female. A large grown male, from
the tip of the nose to the extremity of the tail, is 6 feet 9 inches, while
the female is not more than 3£ feet. This class of the males, however,
is not the most numerous, but being physically the most powerful they
keep in their possession all the females to the exclusion of the younger
branches; hence, at the time of parturition, the males attending the
females may be computed as one to twenty, which shows this to be,
perhaps, the most polygamous of large animals.
They are in their nature completely gregarious; but they flock
together and assemble on the coast at different periods and in distinct classes. The males of the largest size go on shore about the
middle of November to wait the arrival of the females, who of necessity
must soon follow for the purpose of bringing forth their young. These
in the early part of December begin to land, and they are no sooner out
of the water than they are taken possession of by the males, who have
many serious battles with each other in procuring their respective
seraglios and by a peculiar instinct they carefully protect the females
under their charge during the whole period of gestation. By the end of
December all the female seals have accomplish the purpose of their landing. The time of gestation may be considered nearly twelve mouths, and
they seldom have more than one at a time, which they suckle and rear
apparently with great affection. By the middle of February the young
are able to take to the water, and after being taught to swim by
the mother they abandon them on the shore, where they remain till their
coats of fur and hair are completed. During the latter end of February
what are called the dog-seals go on shore; these are the young seals of
the two preceding years, and such males as, from the want of age and
strength, are not allowed to attend the pregnant females. These young
seals come on shore for the purpose of renewing their annual coats,
which being done by the end of April they take the water, and scarcely
any are seen on shore again till the end of June, when some young
males come up and go off alternately. They continue to do this for six
or seven weeks, and the shores are then again abandoned till the end of
August, when a herd of small young seals of both sexes come on shore
for about five or six weeks, and then retire to the water. The large
male seals take up their places on shore, as has been before described,
which completes the intercourse all classes have with the shore during
the whole year. The young are at first black; in a few weeks they
become gray, and soon after obtain their coat of hair and fur.
When these South Shetland seals were first visited' they had no
apprehension of danger from meeting men; in fact, they would lie still
while their neighbors were killed and skinned; but latterly they had
acquired habits for counteracting danger by placing themselves on
rocks, from which they could in a moment precipitate themselves into
the water. The agility of this creature is almost greater than, from its
appearance, an observer would anticipate. I have seen them, indeed,
often escape from men running fast in pursuit to kill them.
These statements, collated in volume 12 of the Naturalist's Library,
which Lord Hannen tells us is a standard work, were written about
1820 to 1830, and some of them earlier, by the most scientific natural- ists who gathered the facts from personal observations. They relate to
the same race of fur-seals at the antipodes that we arc inquiring about
in this case.
These able scientists enter minutely into all the characteristics of the
fur-seals and other carnivorous amphibia and give exact descriptions
of their actual and comparative anatomy. Their accounts furnish
a.-curate data, in strong contrast with the guessing and conjectures of
the tyros, many of them without previous experience, who were sent
out to make a brief and necessarily superficial study of the Pribilof
herd, chiefly with a view to bolster up special theories that are made
the bases of the contentions that the Tribunal is now examining.
Although these books were written more than a half century ago,
they are as accurate as a photograph as to .the physical characteristics
and the habits of the fur-seals of the North Pacific, and show that they
are exactly now what the same species was one hundred years ago*in
the South Pacific Ocean.
I rely upon these exact and scientific statements of these learned and
trained naturalists to clear up the doubts and reconcile or remove the
conflicting conjectures of the numerous witnesses in this case who disagree chiefly because they are not well informed as to the subject. In
the matter of the virility of the harem masters, the alleged barrenness
of cows killed in July, August, and September, and the possible diseases that may have swept off large numbers of pups on the island,
opinions are advanced with bold freedom by men whose opinions are
not entitled to any weight whatever. I do not remember that any one
of the many statements of the hundreds of witnesses who speak so
confidently on these subjects is based either upon actnal skill or actual
examination, by dissection or in any practical way, of the characteristics
of fur-seals. All the evidence shows that the breeding cows are fertilized within a few days—about ten days—after parturition, and that
until that is accomplished the harem masters control their movements
with the most jealous care, and none of them are permitted to go into
the sea until they are impregnated. They then set out to get food to
nourish the pups they have borne, carrying in their bodies the living
germ of the next creation. In these early days the fact of fertilization
i > not discernible even on close examination to the unskilled eye} yet
such examinations were not made, and these seal-hunters and so called
professors unhesitatingly testify that a cow seal, having milk in her
breasts, is barren because there were no external signs that she was
gravid with young. 118
And so it is in respect of the virility of the bulls, a fact that would
probably defy the most exact scientific examination to prove, is stated
with sublime confidence by Prof. Elliott and other like guessers. He
finds the bulls at peace on the rookeries, and though they are not
irritated by being crowded together as formerly, he concludes that
because they have their domestic enjoyments without the necessity of
jealous warfare that they have lost their virility. Among all polygamous animals endowed with fighting capacity nature provides for
destroying the excess of males by the wars they wage upon each other.
Breeders of animals reach this result without the necessity of permitting them to fight and kill each other. It requires very simple reasoning to reach the conclusion that, if this waste of physical energy is
saved to breeding males by their separation from each other and the
suppression of their warfare, that it will supply the virility to meet, a
greater demand upon their powers of procreation.
No dissections seem to have been made of dead pups found on the
islands on one occasion to ascertain whether they had died of starvation or of disease, or were swept off by tempests and drowned and
were thrown upon the coasts in " winrows" by the waves of the sea;
Tet each witness gives his opiuion as to what -killed the pups with as
much confidence as if he really knew what he was talking about.
The effort to account for the disparity of 81,000 killable seals on the
islands between 1889 and 1890 by any of these mere conjectures is
founded upon this sort of testimony and can not break the force of the
fact that in 1890 the pelagic hunters got 51,655 seals, while on the
islands, where 102,617 killable seals were taken in 1889, only 21,238
could be found the next season "by scraping the rookeries," as Lord
Hannen observed.
The crucial test of the necessity of forbidding pelagic sealing with
firearms in parts of the ocean where seals abound is the fact that it
results necessarily and without doubt in the killing of great numbers
of female seals, because of their disposition to sleep when gravid.
They are more easily approached than the males, and the result is the
destruction of a much larger proportion of females than of males.
The encouragement of this indiscriminate killing of females, or its toleration, will establish a practice that violates every idea of the protection and preservation of the species. It legitimates a war upon the
race that can not be restrained.
If we first deny to this race of valuable and docile animals (that have 119
less dread of the presence of man, whether on land or sea, than any
other animal that is classed as a wild animal) all the protection that
the law gives to animals that are domesticated, and for no other end
than to protect the merely technical, cruel, and unrelenting claim of
rights by its worst enemy, the pelagic sealer, we should never take to
ourselves the credit of protecting and preserving them. When we arm
those enemies with double-barreled shotguns, with cylinder cartridges
charged with buckshot, and turn them in upon the herd to kill them
indiscriminately after they have congregated in great numbers and
are making their way to their only place of resort for the purposes
of procreation, we, their only protectors, become their destroyers.
This is not a hypothectical case or an exaggerated statement, but is
the simple and undeniable truth.
This Tribunal, by such a decree, will deny to the fur-seal species, all
over the world, that protection which themunicipal law has always freely
and even eagerly extended to all harmless, docile, and useful animals that
are valuable to man for food and raiment. We will put upon them the
ban of outlawry ouly because they must go into the sea for food, and
because they do not need to be converted from their natural condition or
disposition by the discipline or the temptations of the skill of man that
must be used in taming savage beasts. Nature having dispensed with
all necessity for such inducements and manipulations to overcome any
aversion of the fur-seals to the dominion of man, and having delivered
them into his hands as a free gift, to be used at his pleasure and to
meet a want that no other animal can supply, the law steps in and
declares that because nature has done this, and has so placed it out
of man's power to make the seals any more docile and tame by inducements and manipulations than they are by nature, the fur-seals can
never, as a class, become domestic or domesticated animals, and can
receive no legal protection in the sea, They are forever excluded on
such grounds from the legal possibility of domestication, and are handed
' over to the most formidable enemy that ever hunted any animal, tame
or wild, doomed to inevitable destruction.
I dissent from such opinion as being contrary to the laws of God and
the often-expressed legislative intentions of man; but I yield to it as
the sincere judgment of this Tribunal, and refer to it to show how much
greater is the necessity now resting upon this Tribunal in the amplitude of
its powers supplied to them,forthisoccasionandforthatpurpose,#oft/7brdS
substantial protection for the preservation of the species.   I will explain 120
my meaning when I say that the outlawry of the fur-seal species is contrary to the laws of God. Hundreds or thousands of years ago these
animals and the Aleuts were brought in contact by the directing hand
of Providence along the shores and on the islands of Bering Sea.
No tree, no fruit, or grain, or grass, or cattle were there to support human life; but men were there, who subsisted on these fur-seals
and were clothed in their skins. This was nearly the only food and
raiment they could obtain in a climate as inhospitable and in a country
as rugged and dreary as any on the habitable, globe.
Only one hundred and fifty years ago, a powerful nation, Eussia,
came with her great ships and armaments and took the country and
the people and the seal herds, by right of discovery, and supported its
right by the title known to the law of nations as title by discovery—a
most tyrannical and fraudulent maxim of international law which the
civilized world has now practically abandoned. If this had never been
done, the Aleuts would now be the owners and rulers of that country;
and the question we are now discussing would be whether, under
international law as it is now, the food and raiment;—the only valuable
resource of these poor and helpless people—could be taken by any great
power and the people left to perish. In that case the consensus of the
civilized powers would be that those animals should be considered the
property of the Aleuts, the owners of the breeding islands, and when
they left the coasts with the intention to return and visited the ocean
for food, that they should at least be attended with the protection that
is given by the law of all civilized nations to domesticated, animals.
This is the law of God, who first gave these animals to those northern
tribes and made them the staff of life to them by reason of their docility, the regularity of their coming into the service of those people, and
their complete submission to that service.
That law is not changed because the United States, a powerful and
wealthy nation, has assumed to make provision for these people while
lifting them into a higher civilization and finds in the fur-seals the revenue that is needed for these purposes. For more than one hundred
years Great Britain and her subjects have known the fact that Eussia
and the United States have made these fur-seals the basis of a valuable
industry; a means of providing for the Aleuts; au instrumentality of
government; aiid almost the only source of revenue that country possessed. It was not until 1876 that any pelagic sealer entered Bering
Sea., and that was a United States vessel that was captured and confiscated by that Government. 121
The seal hunters had depopulated the Antarctic Ocean of fur-seals,
and had made many successful raids on the islands and coasts of
Japan. Their poaching grounds had been exhausted and the hope of
great profits drew them to Bering Sea. They found governmental
resistance in Japan, Eussia, and the United States, but they found in
Canada a Government that would give countenance to their raids, and
despite the best efforts of the United States and Great Britain, and of
their ordinances closing Bering Sea to them, they now swarm upon
the known route of the migration of the seals, which they follow with
immense fleets. It was this sudden and dangerous movement that
caused these nations to agree that this Tribunal should settle the questions that stood in the way of concurrent action between these Governments; and should then determine regulations for the proper protection
and preservation of the fur-seals in the water, and not regulations to be
provided for the protection of the pelagic hunters, who are the only
human destroyers of the fur-seals that can not be otherwise completely
restrained. |jj|||j
If we will take a correct view of the number and the power of these
destroyers we shall see in the dangerous aggregation of those enemies a
demand that we can not reasonably resist for preventing them from
destroying the fur-seals placed under our protection by this treaty.
In view of the very heavy forces that are and have been marshalled for
this ruinous purpose, and that are really invited to increase their numbers and strength by the regulations offered for our adoption on behalf
of Great Britain, we shall find a just and sufficient reason for firm
action, without being left to conjecture upon a meager statement of
facts, and abundant statements of loose, ignorant, muddy, conflicting,
and partial opinions as to how much wanton and needless injury has
already been done to seal life, and in what months of the year it has
been done.
In 1892, the sealing fleet in the North Pacific Ocean numbered 122
vessels, 69 of which were under the British flag, and 53 under the flag
of the United States. No other nations were participating in the hunt.
Allowing to each vessel 8 sealing boats, though none had less than 5,
and many of them had 15, there were 976 boats. There could not have
been less than 1,000 boats. Giving to each boat a hunter and oarsman,
there were 2,000 men employed in hunting. They also had the ship
and its crew as a base for supply of ammunition and provisions, and to
give assistance in skinning the seals after hoisting them into the ship, 122
and in disposing of the carcasses and salting and stowing the pelts.
These crews, allowing 10 men and officers to each vessel, though the
numbers were much greater, numbered 1,220; in all, 3,220 men. I
place this estimate below that of both Governments because I believe
that is a full allowance of the men needed, and this business requires
no great investment of capital to make it profitable.
Each hunter has a rifle, and a double-barreled shotgun, and takes
100 rounds of ammunition ou each excursion from the ship, which he
usually expends in a day's work. The guns are breech-loading, rapid-
firing weapons, and have fixed ammunition, made waterproof; and are
fired by the impact of the hammer upon an explosive that is fixed in
the base of each cartridge. The powder and the explosive for igniting
it are charged into a copper cup or cylinder that forms the base of the
cartridge, and the lead is imbedded in the cylinder, in front of the
powder. A slight flange around the exterior of this cylinder at its
base prevents its escape from the gun in firing, and when it is emptied
a very simple contrivance removes the shell from the breach of the gun.
Fifteen buckshot, each a deadly missile, is usually the charge of lead
placed in each cylinder cartridge, and if a hunter fires 100 shots in a
day, he discharges 1,500 of these missiles at, or into, the seals.
In 10 days of good sealing in the North Pacific out of 60, the single
hunter would fire 15,000 deadly shots at close range; and in 15 days
out of 90, in the Bering Sea, he would fire 22,500 deadly missiles at or
into the seals, even under the more apparently forbearing and humane
scheme of regulations offered by Sir Johu Thompson. But under the
British scheme his opportunities would be much greater. In a sealing campaign of two months in the North Pacific and three months in
Bering Sea—continuous months—the single hunter, during twenty-five
days of good sealing out of one hundred and fifty-three days (Sundays
included), would fire at and into the seals 37,500 deadly cartridges.
One hunter with that opportunity, if he was moderately skilled in
shooting seals, would destroy 2,000 or more seals in 153 days of hunting.
It is idle to suppose that out of 153 days of hunting he would not
find 25 days of good sealing, in which he would fire 100 shots each day.
The average for the entire period would be 24 shots each day for each
hunter. Now multiply these figures by the number of hunters in the
entire fleet of 122 vessels—967, and in the 25 days of good sealing
weather out of the 153 days spent in the North Pacific and Bering 125"
Sea, they would fire at and into the seals 3,550,824 cartridges, each
loaded with 15 buckshot, all deadly missiles, and numbering 53,262,360.
Now, let us suppose that three-fourths of these shots failed to hit the
seals and that only half of the number that hit them either killed the
seals or wounded them mortally, and we expose this herd of seals to
an annual loss of 443,853 seals at the very lowest possible estimate
and upon a basis of facts that no one can safely dispute. This shows
that not more than one seal is taken out of every five seals shot. This
seal herd in its present depleted condition can not continue to exist if
half that number of seals is taken from it in each of. the years from
1894 to the -end of the century. And if the percentage of female
seals killed is equal to two-thirds or even half the whole number, the
speed and certainty that must attend the destruction of the herd will
be very greatly increased under the plan of Sir John Thompson.
If we expect that a less number of vessels will hereafter assemble for
seal hunting than came in 1892, on what ground can we safely base
such a conjecture?
The skins of seals are worth $10 apiece; they were worth that much
in 1821, and if the average catch of each vessel is only 250 for five
months, or 50 seals a month, it is a very large earning, and it leaves
half the year for other voyages. If the attack on the seals is permitted
when they are herded together in Bering Sea in one vast body, or
when traveling in large parties up the Pacific coast, the limiting of
the hunting season to a brief period will only increase the activity of
the pelagic sealers, and as much killing will be done with 200 vessels
in one month as would be done with 100 in two months, if the open
season was two months instead of one. We could no more safely
assume that the sealing fleet in 1894 or 1895 will not exceed the number
assembled in 1892 than we could have assumed in 1876 that pelagic
hunting would be limited to a single vessel and could not possibly
reach the number of 122 vessels by the year 1892. The experience of
the last seventeen years on this subject is not to be disregarded.
It is a living lesson of truth that the legerdemain of minor and astute
calculations can not conceal under a cloud of doubt. The fact remains
that in the year 1892, 122 vessels assembled in the North Pacific and
took 73,394 skins of dead animals, killing or fatally wounding at least
twice that number—146,788-—in all, 220,182 seals, of which two thirds
were females, numbering 146,794.
There can be but little doubt, on all the evidence, that the number 161
i
124
of female seals killed and wounded was more than double the number
of skins that were taken. There is also as little doubt that two thirds
of the females killed or fatally wounded were gravid, and on their way
to the islands to be delivered of their young; and each seal in that
condition was then the repository of two lives that were thus destroyed;
the unborn pups being 99,862.
This number, adding the number taken     73, 394
And the number killed and wounded, but not taken  220,182
And the unborn pups of the 146,794 females killed or fatally wounded     99,862
Gives a total of  393,438
How can it be said that, on the evidence in this case, this is not a
true and safe estimate of the result of the work of destruction wrought
by 122 sealing vessels in 1892, in the North Pacific while they were
limited to those waters by the modus vivendi of 1891 ?
Eeduce this estimate if you will by one-half and make it only
196,714 seals of all conditions and sexes that are killed, and the number destroyed is nearly twice as great as "the number of seals that
were killed and recovered in 1892. Until these facts are changed or
expunged from the record, I can find no occasion for examining in this
opinion the minor details that relate to other seasons. These facts,
if they are to be repeated indefinitely, destroy all hope of preserving
these seals.
The year 1892 with its actual experiences stands nearest to 1893, and
is the safest, as it is the most complete, guide to the truth of the situation. I therefore take that year, with its ascertained facts and
results, as the chief basis of my objections to the schemes of regulations proposed by Great Britain and departed from and modified, but
scarcely improved, by the plan of Sir John Thompson.
That Sir John has found it necessary to depart from the British
proposals is a grave concession, especially in the point so earnestly
contested by Great Britain, that this Tribunal has no jurisdiction outside of Behring Sea. He proposes a zone of absolute prohibition of
pelagic sealing of 10 miles around the Aleutian Islands.
In considering regulations as they may be shaped and modified by
other considerations than the method that will best protect and preserve the particular class of fur-seals placed under the" protection of
this Tribunal by the treaty (if we are to taka such liberties with our
powers), the Tribunal must, in justice, examine into the rights of the
pelagic sealers of the United States, in the Pacific Ocean and in Ber- 125
ing Sea, as they will be when the statutes of the United States shall
permit them to enter with the Canadians and also with the people of
other nations into that harvest field, and to have equal rights in the
spoils that we are asked to place within their reach.
Although we have not yet considered the British case on its
merits, which covers only the claim of right to unlimited and uncontrolled pelagic sealing, and have only considered the objections
to the case of the United States that are stated in the British counter
case, I must assume that the citizens and subjects of the respective
Governments everywhere on the high seas are to have equal rights
and privileges. If it is the right and privilege-of the pelagic sealers of
Canada to waylay the seals iu May and June at Unimak Pass or any
other pass, and in July, August, and September to waylay them in
Bering Sea near the passes or near the breeding islands, the same
right must be accorded to the citizens of the United States who for
personal gain choose thus to violate the declared public policy of their
Government.
If it must be that this Tribunal will iuflict upon the United States
the double indignity of having her wise and honorable policy of
preserving the fur-seal species disregarded by her own people, under
the suggestions of the award, and of requiring the concurrent action
of Great Britain in the principles, if not in all the details of laws and
of administration, in guarding the proposed 30-mile zone against intrusion by citizens of the United States, we should at least be careful
to protect the United States against a definition of the rights and
powers of pelagic sealers that is so radical as to break down the
admitted rights and principles of self-defense.
The same necessity does not exist for guarding Great Britain with
protective regulations, because no pelagic hunting is done within thousands of miles of any place where she has any sealing industry, and
the interest of the pelagic hunters is in accordance with her present
policy of giving them free rein iu the destruction of fur-seals if they can
make any money by the operation, as her policy is now disclosed in the
regulations she has submitted.
As to citizens of the United States who would be thus encouraged
by such an award policy to raid upon the industries and revenues of
their Government during five months of the year and to defy its public
policy, it may turn out that the United States will abandon them to
their, own devices for protection while they are engaged in this selfish,
cruel, and unpatriotic work. 126
And here comes to view the most dangerous and difficult task and
the most irritating that the two Governments wSl have to perform in regulating as between these pelagic sealers their rights while they are pursuing and capturing fur-seals with double-barreled shotguns. The
pelts are worth $10 each, a much larger sum than is the average yield
of the richest gold mine per diem to the gold hunters; and we know
how impossible it is to restrain by law the violence that has attended
their struggles for "diggings," where none of them own the soil or
any privilege in it except to discover new leads and to dig for gold.
On the high seas 30 miles or more from any land there are no courts
and can not be any efficient police-by either or both nations. Conceding to them the best intentions and the most honorable zeal in protecting the rights of all concerned, they will fail to prevent those personal
conflicts between the ravenous pelagic sealers around the 30-mile zone,
especially, which in the end will embroil the two countries.
The United States, as I have observed, may not choose to take up,
as an international question, the quarrels of her citizens with Canadian
subjects while they are both engaged iu doing a great national wrong
to that Government; but they will be, naturally, very chary of the
dealings of Great Britain with such controversies. There will be no
international court for the hearing of such controversies between
private persons engaged in sealing in boats and canoes on the high
seas, and they will probably be settled by the vis major. The fact that
both parties will be heavily armed for assault upon the seals will make
such collisions very dangerous, and their occurrence almost certain.
A United States sealer finds a school, or party of seals and goes to the
leeward to get in gunshot of them; andaparty of Canadians desiring to
kill them, approaches the seals from the windward and shoots one with
a rifle before the other hunter can get in range with his shotgun. A
quarrel ensues and results in bloodshed. By a fiction of law, they are
each upon the territory of their respective countries, and the settlement
of that case, without the intervention of the Governments, Avould tax
the wisdom equal to that of Solomon. If one sealer in his boat
shoots at a seal that another is approaching from the other side,
and wounds or kills the hunter, what is to be done in that case?
That conflict will result from such occasions is almost certain, and how
it can be settled is most uncertain. Illustrations are feeble to portray
the difficulties and conjectures are far short of the reality as to the
conflicts that must occur in the wild hunt for seals that the British
regulations invite. 127
Sir John Thompson spoke of the generosity of the British Government in treating with the United States for the preservation of the
fur-seals. There was as much generosity on .one side as on the other,
and none on either. It "was a business matter relating to material interests and, I may well assert, of equal importance to both high contracting powers, which took its origin in what Sir John has aptly termed
the "bursting in" of the Canadians into Bering Sea in 1886. It was
a sudden "bursting in," and had the appearance of a violent and defiant experimeut—a raid. Canada and the United States since 1818
have had many severe contentions over the fisheries of the northeastern
coast, in which arrests of ships and of persons have led to very earnest
discussion. The United States, claiming certain' treaty rights there,
have not burst into any of the waters that Canada has claimed as her
fishing preserve, although her people have been treated there with
severe inhospitality.
That Government has preferred to prevent collision and strife by
restraining her people from bursting into places where they believed
that their rights entitled them to go. It was an easy matter for Canada
to have propounded its claim of rights to the United States, and to have
had them decided upon without permitting her citizens to go into
Bering Sea with their vessels and hunters armed with double-barreled
shot guns and hunt seals up to the 3-mile limit, which she now admits
should be 10 miles as to such huuting. It was quite as easy for Canada to restrain her citizens from, bursting into Bering Sea as it was to
enact her system of very stringent laws to protect her preserve of hair
seals 1,000 miles from Canada, in the open ocean off the coast of Greenland. If Canada had passed any reasonable laws for protecting these
interests of the United States, even during negotiations, a serious disturbance of neighborly feeling could have been avoided, and fearful
havoc in the seal herds passing her coasts would have been prevented.
The enactment of such a law would have enabled the United States
to have controlled her own people as to hunting seals in the North
Pacific without incurring- the reproach from them of denying to them
the privileges that Canadian subjects enjoyed on the high seas, and of
allowing them to reap all the profits of rhe massacre of the fur-seals.
The policy of Canada has made it impossible for Congress to restrain
the people of the United States from participating in this reckless
destruction, aud from this defiance of her public policy and laws. Yet,
in the presence of this obvious legislative impossibility, it seems equally
HHB 128
impossible to answer the thrust that is always made at the United
States in argument, in censure of her conduct, that Congress has not
enacted laws to prevent citizens of the United States from pelagic hunting in the North Pacific Ocean. The fact which no one seems to deny,
that citizens of the United States took shelter under the British flag
and Canadian registry to evade the laws of the United States excluding them from sealing in Bering Sea, seems to have been forgotten.
That fact alone shows how impotent would have been the laws of the
United States to protect and preserve the fur-seals against the depredations of its own people while sealing under the shelter of the British
flag. Canada controls the registry, licensing, and clearance of sealing
vessels in her sea-ports, as is shown by her statutes relating to the
hair-seal fisheries. A simple regulation would have saved the fur-seals
from this exterminating raid that the evidence in this case has disclosed.
But Canadian subjects seem to have a double allegiance and a twofold protection under their colonial system. The Canadian government
can permit them, without control, to burst into Bering Sea and prevent
the seals from reaching the islands of the United States, aud when
such raids are followed by arrests they can claim the imperial power of
Great Britain to protect them.
Whatever censure, therefore, may be visited upon the United States
for her dealings with her own people, it must be admitted that the
difficulties of the situation have been caused by the policy that her
neighbor has seen proper to pursue. If such censures had been
just they would have been made by Great Britain when negotiations
in respect to this treaty were pending. That Government' did not
venture to allude to the subject. It seems to have been held back as
a make weight for the argument and considerations of this case.
When the United States shall have an opportunity to consider that
question in her future discussions of such matters, should that be
uuhappily necessary, her vindication will be found to be complete. Mr.
Bayard, who first pointed out the rights of the United States, which
included, in substance, the five points we have just beeu discussing,
and which were' advanced subsequently with great earnestness by Mr.
Blaine, proposed to leave those matters out of consideration, and to
proceed at once to establish the regulation of pelagic hunting by des-
ignating an area within which a close season should be enforced. And
afterwards, when arrests were made of the Canadian vessels that were
killing seals in Bering Sea, Mr. Bayard ordered their release.   This 129
was done, not because Mr. Bayard had receded from the attitude he
held, as was contended by the British counsel in oral argument, but for
the reason that a negotiation was pending for the settlement of all the
controversy, and he did not think that it would promote good will between the nations to push the claims of the United States by the exercise
of force while.it was negotiating with Great Britain about the validity
of those claims. After such example of considerate action on the part
of the United States, it is not doing justice to either party to claim that
the other was treating with it in a spirit of generosity or of forbearance.
Does anyone doubt that the United States acted, in all this controversy, upon a firm belief in the justice of its claims in every
particular ? If those claims were just, or made in that firm belief, it was
a matter of as much concern to Great Britain as it was to the United
States,- both in the view of justice and as to the preservation of the
peace, that they should be fairly considered and settled.
Great Britain has never, until the scheme of her regulations were
presented to this Tribunal, asserted that the United States had not a
special and peculiar interest in the fur-seals frequenting Bering Sea.
In the diplomatic correspondence that Government conceded such a
peculiar interest in the United States, but has at last got its consent
to dwarf the concession to an area that would conform only to the interests of the Canadian sealers.
It was these men who compelled Great Britain to interpose for their
protection, and when that Government found that their practices were
destroying a great and valuable elemeut of commerce,"they demanded
an investigation of the necessity for restraining pelagic hunting by a
joint commission, and this is the initial point of this Arbitration.
Having touched on the general questions or subjects now presented
for our consideration, and leaving to Mr. Justice Harlau the task he
has chosen of making a closer examinatiou of the evidence bearing ou
these questions, I will take up the plans or schemes of regulatious, so ,
far laid before the Tribunal, and' endeavor to state my uuderstaudiug
of what they are and what will be the results if any of them are
adopted.
The further remarks of Senator Morgan ou this topic related to the
comparative merits of the several schemes or projects of regulations
presented to the Tribunal, and are not here given.
11495 m-           

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